Publication of invalid decisions from court cases of public interest

INTRODUCTION

This legal opinion analyzes the Principle position of the Supreme Court of the Republic of North Macedonia (hereinafter, the Supreme Court) on the publication of invalid decisions, judgments and decisions, for court cases for which they have public interest. The principle position of the Supreme Court is analyzed from the aspect of publication and availability of decisions made in court proceedings that are not final, as well as ensuring legal certainty through a clear determination of the hierarchy of application of laws within court proceedings.

FACTS OF THE CASE

The Assembly of the Republic of North Macedonia at the session held on February 16, 2020 adopted the Law on the Management of the Movement of Cases in the Courts published in the "Official Gazette of the Republic of Macedonia" No. 42/2020, with which the Law on managing the movement of cases in the courts was replaced and ceased to be valid  ("Official Gazette of the Republic of Macedonia" No. 171/10). In the Article 9 of the Law of  2020, the legislator regulated the publication of final decisions on the court's website, and accordingly, in paragraph 1, he provided that "(1) The authorized court officer of the court of first instance is obliged within seven days from the of the legality of the court decision, i.e. from the day of delivery of the decision by the higher court, to publish it on the website of the court with the name and surname of the parties, i.e. the name of the legal entity, whereby the address of residence, i.e. the place of residence or the headquarters of the parties, the unique identity number of the citizen or the unique identity number of the subject of registration and the personal data of the witnesses and damaged in the procedure are anonymized." This issue was regulated differently by the Law on the Management of the Movement of Cases in Courts ("Official Gazette Republic of Macedonia" no. 171/10) which in Article 10 regulated the publication of decisions on the court's website in such a way that "The authorized court official within two days from the day of receipt of the invalid court decision is obliged to publish it on the website of the court by completely anonymizing the personal data of the participants in the procedure, except for the name and surname of the judges, public prosecutors, state attorneys and legal representatives of the parties." At the same time, the Law on Criminal Procedure ("Official Gazette of the Republic of Macedonia" no. 150/10, 100/12, 142/16 and 198/18) in the Article 125 Publication of court decisions regulates the publication of court decisions in criminal proceedings, and according to paragraph 3 of the same article it is regulated that ,,(3) The courts are obliged to publish the adopted decisions within two days of their drafting on the court's website, in a manner established by law." Hence, the courts had a dilemma as to which law should be applied when it comes to the publication of court decisions in criminal proceedings, because the newly adopted Law on managing the movement of cases in the courts from 2020 has a diametrically opposite doctrine when it comes to publishing all decisions, because unlike the previous Law on managing the movement of cases in the courts ("Official Gazette of the Republic of Macedonia" no. 171/10) and the Law on Criminal Procedure provides for the publication of only final decisions, while the previous law and the Criminal Procedure Law provide for the publication of all court decisions, both final and non-final decisions.
Since the entry into force of the Law on the Management of the Movement of Cases in the Courts in 2020, the courts have been faced with this legislative non-compliance, which was a problem for them due to the reactions that came from both the media and citizens.
The courts, due to the situation caused by the introduction of diametrically opposite rules, unlike those that were valid for 10 years and based on which a firm practice of complete openness and transparency of the work of the courts was established, were faced with a legal dilemma of which law to apply.
The Supreme Court of RNM, as the highest court in North Macedonia, which is competent to ensure the equal application of laws by the courts, in accordance with the Article 37 paragraph 1, indent 1 and 3 of the Law on Courts, at the proposal of the President of the Supreme Court of RNM, approached the determination of a principled position regarding the question. At the General Session of the Supreme Court of the RNM, held on 21.12.2022, the Supreme Court established a principled position according to which ,,Courts publish the decisions (judgments and decisions) that are not final and that refer to matters of public interest on the website of the court.'’
In the explanation of the Principle position of 21.12.2022, the Supreme Court of RNM states that from the content of the specified provisions of the Law on Courts, the Law on the Management of the Movement of Cases in the Courts, it indisputably follows that the legal obligation of the courts is to publish the final decisions made in the specified deadline on the court's website, in contrast to Article 126 paragraph 1 and 2 of the Law on Criminal Procedure, according to which Article all court decisions are public and available in electronic or printed copies available for inspection and transcription by any interested person. In doing so, the Supreme Court of RNM stated that the Law on Criminal Procedure is one of the systemic laws that is a special law in relation to the Law on Courts and the Law on the Management of the Movement of Cases in the Courts, and that therefore the principle "lex specialis derogate lex generalis", should be respected in the specific case, i.e. that the application of the provisions of the Law on Criminal Procedure have priority over the other two laws for the matter they regulate, including the publication of court decisions on the courts' website.
The Supreme Court of the RNM based this Principled position on the Article 16 in connection with the Article 102 of the Constitution of the RNM, which guarantee the freedom of public information and the public in judicial proceedings. In addition to invoking the guarantees provided by the Constitution, the Supreme Court of RNM referred to the Article 6 Right to a fair trial and Article 10 Right to freedom of expression from the European Convention on Human Rights and the practice of the European Court of Human Rights (Sutter v. Switzerland, P and B v. United Kingdom and Tbrsasbg a Szabadybgjogokirt v. Hungary) which refer to the public announcement of judicial decisions as well as the Recommendation Rec (2003) 13 of the Council of Europe which refers to the provision of information through the media in relation to criminal proceedings.

ANALYSIS OF THE PRINCIPAL POSITION OF THE GENERAL SESSION OF THE SUPREME COURT OF RNM

The Supreme Court of RNM, as the highest court and creator of the policies in the judicial authority on one hand, but also the guarantor for ensuring legal security and legal predictability on the other hand, with this Principled position made a clear distinction in relation to the order of application of the positive legal acts with which the issue of publication of court judgments is regulated. Namely, the Supreme Court of RNM, faced with the establishment of a new retrograde doctrine by the Law of 2020 by the legislator, and its inconsistency in incorporating this doctrine into all laws governing this issue as well as the reaction of the public and the media, reacted expeditiously and on his own initiative through the proposal of the President of the Supreme Court of the RNM, he put this issue for consideration and discussion at the General Session as the highest judicial forum in the judiciary of the Republic of North Macedonia.
The principled position in itself provides a guarantee in which case the provisions of the Law on Criminal Procedure should be applied as opposed to the Law on the Management of the Movement of Cases in the Courts published in 2020, but only in the part of the publication of invalid court decisions, while giving a rationale for the hierarchy of application of laws from the doctrinal level. But the Supreme Court, despite the fact that it gives a clear direction which law has priority in its application, still does not fully clarify which law should be applied in its entirety. This stems from the fact that despite the fact that the Law on Criminal Procedure, as stated by the Supreme Court of RNM in this particular case, is the lex specialis in relation to the Law on the Management of the Movement of Cases in the Courts published in 2020, and according to that principle, it should has precedence in its application, the Supreme Court limits its application through the principled position, due to the fact that it establishes an additional condition that refers to the fact that the courts will publish decisions that are not final only if they refer to cases of public interest. In addition, from the very explanation of this Principle, one gets the impression that the publication of illegal decisions for which there is public interest refers only to court decisions of a criminal nature.
However, this Principled position should be seen from the perspective of application not only of national laws in clarifying the transparency and openness of the courts, which obviously has a tendency to decrease with the Law of 2020, but also of the application and monitoring of international standards that relate to transparency and openness of the Susian government. The Supreme Court of the RNM bases this Principled position in its entirety on Article 6 and Article 10 of the European Convention on Human Rights, and the practice of the European Court of Human Rights is used as a means of argumentation. In addition to incorporating the ECHR and ECHR jurisprudence, the Supreme Court of RNM also follows the Council of Europe's recommendations on openness and transparency, while directly following the standards provided for by Recommendation Rec (2003) 13 of the Council of Europe on the provision of information through the media regarding the criminal procedure.
With the trend and dynamics imposed by the Supreme Court of RNM by direct application of the European Convention on Human Rights and the practice of the European Court of Human Rights, in fact the Supreme Court of RNM fulfills its function in applying the Principle of Subsidiarity, embodies the shared responsibility of the states and of the Court for effective implementation of the Convention. Namely, the Supreme Court of RNM as the highest court in North Macedonia is responsible for guaranteeing the rights and freedoms guaranteed by the Convention and for providing effective legal remedies for their protection. Hence, the Supreme Court acted in a timely, efficient and effective manner when, through the General Session, it raised the issue of harmonizing the positive legislation in the area of publication of court decisions by the courts on their websites, thus clarifying the situation and giving clear directions which lower courts should act upon.