Intro 

[00:00:00] Hello and welcome to Just Access! In this podcast series, we talk to some fascinating people, legal experts, academics and human rights advocates, and we explore ideas about the future of human rights and improving access to justice for all. I'm Dr. Miranda Melcher, a Senior Legal Fellow at Just Access, and over the next two episodes I talk to Mirjana Lazarova-Trajkovska. She is nominated as a judge candidate for the International Criminal Court. She currently serves as judge on the Supreme Court of North Macedonia, and she formerly was a judge at the European Court of Human Rights and at the Constitutional court of North Macedonia among many other career accolades.

[00:00:49] In this first episode, we focus on her background, her work on corruption and access to justice, especially within the European Court on Human Rights. In the second episode, we talk more about the International Criminal Court and the future of international law. 

Interview 

[00:01:16] Dr Miranda Melcher: Can you tell us a bit about your background and especially how you came to your current position?

[00:01:26] Mirjana Lazarova-Trajkovska: As I'm Judge at the Supreme Court of the Republic of North Macedonia. I was appointed in March, 2020 by the Judicial Council in my country on disposition after returning from serving as a Judge at European Court of Human Rights for nine years. Before serving the court in Stasbourg I was a judge at the constitutional court in my country for five years, and so I have been in a high level national and international courts in the last 21 years.

[00:02:00] Before becoming judge of the Constitutional Court in my country, I was the head of the Human Rights Department. One part of my career, I was the Assistant Minister for immigration As. Asylum nationality. Immediately after the armed conflict in my country, I was the president of the State Election Commission and in early days of my career, I was legal representative in front of the criminal, civil and administrative courts. For a long time I was a member of the Venice Commission and other international bodies or groups. So more or less, this the background, professional background for me before becoming judge of the Supreme Court in my country.

[00:02:50] Dr Miranda Melcher: Wonderful. Thank you for introducing us to such a fabulous career. Obviously, any of those topics could be a subject of an entire episode. But I'm wondering if you can maybe help us, provide a little bit more foundation before we dive into some of them. A lot of our listeners might be students or new to the field of international law.

[00:03:11] How would you explain your current work and your current focus to someone who might be new to the field?

[00:03:18] Mirjana Lazarova-Trajkovska: Behind me are three decades of intensive work in different areas of international human rights law, and also in international criminal law. In last two decades, I will say that the focus of my career is on international criminal law and international human rights law. Being part of the European Court of Human Rights, between 80 and 85% of my work was linked with the cases which were deriving from criminal proceedings. Some of them were linked with international conflicts, other were deriving from the factual situation linked with terrorism, terrorist organizations and now being judge at the Supreme Court in my country, I'm member of the Department on Criminal Affairs again. My work is mainly focused on criminal proceedings, so I can say that in last two decades the focus of my activities is somehow interacting between international human rights law, criminal law, and international humanitarian laws. This is interplay of my professional work.

[00:04:34] Dr Miranda Melcher: Fascinating interplay. One of the areas you focused on is corruption, at all sorts of different levels and various views of it. And I was wondering if you could maybe help us understand your view of corruption. Is this something that can be contained through transparency, regulations about conflict of interest, that kind of thing?

[00:04:54] Or is this just part of human nature that institutions and laws are gonna struggle to deal with? Maybe through some examples of the work you've done in this area. What do you think about when you think about the problem of corruption?

[00:05:08] Mirjana Lazarova-Trajkovska: I think that you are right linking corruption with the cases deriving from criminal proceedings that I was mentioning. Let us not forget that the problem with corruption dates to the beginning of law and states, but also it was only after the Second World War that more attention was devoted to this issue.

[00:05:32] And today we are sensitive on corruption by taking into account the different forms of conflicts of interest as nepotism, clientelism, or cronysm and this means not only on bribery. Society is fighting with corruption in different forms and in that direction it took a lot of energy and time to build clear international and European standards.

[00:05:59] And part of these standards are also linked with the work of the European Court of Human Rights. The international and European standards have been to a large extent somehow transmitted into the national legislation of the European countries, but in practice, the implementation of these standards at the operational level remains weak in most of the countries, including my country as well and the countries from the Western Balkans.

[00:06:31] The reason for this is mainly a lack of political will and in some cases lack of know-how, as to how we can improve the situation. As you mentioned, how we can improve the situation when the system is not functioning. That is probably the main question. I believe that for this, the involvement of civil society journalists, especially investigative journalists, as well as the inclusion of the anti-corruption policy in the curriculum of schools and universities is indeed necessary because it is important to raise culture and knowledge of anti-corruption behavior. And it is important to learn from early days to transmit the idea how to fight corruption in early, let's say childhood for the citizens in our countries. 

[00:07:30] And you mentioned about the cases. Yes, I have many cases on my mind, and I can tell you that European Court of Human Rights was working very hard on this profile of cases. For example, the case Raimondo versus Italy was one of the, let's say, first cases linked with anti Mafia law in Italy and the court was trying to deal with the phenomenon of organized crime and corruption in modern society and how to deal with this in situations when illegally obtained property was circulating from one to another form in the hands of the mafia.

[00:08:15] Then I'll mention another case coming from new democracies, the case of Gogitidze versus Georgia. It's about asset recovery on property that was obtained as a result of the corruption of a minister in one of the governments in Georgia. And the use of asset recovery as a measure, but not as a part of the criminal procedure, the use of administrative asset recovery procedure. So there are many ca different cases, but let's say these are the two that came on my mind at this moment.

[00:08:56] Dr Miranda Melcher: Thank you for sharing them with us. And this idea, the importance of education, I think is such an important piece. So I'm really glad you brought that up. Thinking about the importance of education, the idea of kind of change over time, in your experience, given how many different courts and areas you've worked on, have you seen regional or national differences in cultures of corruption? For example, within the European Union differences, or between Western Europe or the US etc.? Are expectations or the way that corruption is enacted universal or more specific to certain places?

[00:09:35] Mirjana Lazarova-Trajkovska: From my experience, there is no real difference in cultures of corruption. This approach of differences in cultures of corruption might be used as an excuse why the system is not functioning. I will say that the level of corruption is linked with the lack of professionalism in the institutions that must fight corruption. So they will have to behave professional. Then the lack of rule of law in practice and all this under the strong control of corrupted elites, this is the problem when in societies we have corrupted elites that are obliged to settle down role models and rules how to fight corruption.

[00:10:19] People universally have the capacity to distinguish right from wrong, just from unjust, honest, from corruption and the regional, national, or cultural differences in culture of corruption are, from my perspective different regional, national, or culture models of coping with wrongdoings, injustice and dishonestly from a side of public servants and those who are protecting this type of behavior.

[00:10:52] That is why I believe that there is space for universal norms and measures against corruption, and that's why international regional cooperation among prosecutors, among judges, and as we've already mentioned universities also will be part of let's say settling down this universal values in our societies.

[00:11:20] Dr Miranda Melcher: Fabulous. Thank you so much for helping us understand the reality from someone who's so expert versus maybe what's talked about in headlines, and as you said, some of those claims and excuses. You've mentioned a little bit about asset recovery. I'm wondering if you can tell us more about what this is under European and international law and why it matters for access to justice.

[00:11:42] Mirjana Lazarova-Trajkovska: An asset seizure is of major importance for the successful fight against organized crime and corruption, and that's why I was linking assets recovery with the problem of corruption. Asset recovery is a set of legal measures on how to achieve the legal retrival of illegally obtained property and ownership and in practice asset recovery is not so easy procedural element of the criminal or administrative proceeding. It is a complex and also multi-dimensional area of law requiring practical procedures and involving multiple parties and jurisdictions sometimes. 

[00:12:26] This practical complexity requires from judges and prosecutors to have a clear understanding of their domestic legislation first of all, in relation with the asset recovery in relation with freezing, and confiscation and also a solid appreciation of the international standards and instruments that seek to straighten and harmonize international practice. Confiscation is the final or permanent deprivation of property by order of a court, and it might also include deprivation of property by order of a competent authority other than a court, as I've mentioned the case coming from Georgia. Despite the fact that there are different views on exactly what asset recovery regime should look like, as a recovery is widely recognized and promoted as a powerful weapon in the fight against the serious crimes and corruption.

[00:13:29] And it serves a number of purposes in this regard. When successfully implemented, it has the potential to protect legitimately, obtain properties or legitimate economy from corruption and infiltration of illegal assets, because money laundering is one of the biggest problems in organized crime in today's society.

[00:13:55] And it is a huge problem and the asset recovery or bringing back to the citizens what legally belongs to them will booster also tax revenues in the legitimate economy from another side. It'll generate also the assets that can be used for the public goods from another angle. And of course, it'll assist in upholding the rule of law on a general basis, and to build trust into the institutions which are dealing with fight of corruption and organized crime. In brief. This is what I can describe as an asset recovery policy in a modern society.

[00:14:44] Dr Miranda Melcher: Thank you. Could you please tell us about Protocol 14 of the European Convention on Human Rights, as you were one of the people who helped draft it, and how it relates to this conversation we're having about access to justice?

[00:14:58] Mirjana Lazarova-Trajkovska: Oh, yes, it does help because, European Court of Human Rights was settled as a regular or permanent court in 1998 after a number of country members of the court start to grow and the number of cases which were creating a huge backlog in front of the court was growing year by year and the prospect of a continuing increase in the workload of the court leads to the conclusion that a reform of the court in Strasbourg was necessary, if the system was to be preserved because the states members of the convention, were looking for reforms that will preserve the unique features of the system in Strasbourg, meaning the judicial character of the process and the right of the individual application.

[00:15:54] And this was the reason why Council of Europe tried to involve legal experts who were focused on at that time drafting Protocol 14 as a reformative protocol. And the protocol 14 was with the aim to keep the system, but to improve the methodology of work of the court in Strasbourg, to improve efficiency, transparency, and independence of the judges in Strasbourg.

[00:16:22] These measures and working methods were in fact improving the prospects for access to justice for many applicants all over the Europe, because their final fate for achieving fair and just approaching their cases was of course the court in Strasbourg. And the aim was by improving the efficiency of the court and reducing the workload of the court in Strasburg to concentrate on those cases that were raising the most important human rights issues.

[00:16:58] Protocol 14, maybe you remember, I can recall the fact that it was open for ratification in 2004, but finally ended into force in 2010 after its ratification by Russia. And the main changes which were introduced by this protocol were reinforcement of the court's filtering capacity to deal with clearly inadmissible applications informing single judge formation and committee of three judges who were focused on repetitive cases, and those cases for which the court already settled clear standards. 

[00:17:41] Another new element of Protocol 14 was a new admissibility criteria concerning cases in which the applicant has not suffered a significant disadvantage. And of course, measures for dealing more efficiently with repetitive cases on the basis of article 46. The independence of the judges was additionally enforced by extending the term of office for the judges to nine instead of six years, which was the previous policy of the convention with at that time possibility for reelection.

[00:18:22] Now, fixing one term of office for nine years was a form of somehow influencing the independence of the judges and helping them to focus for nine years on their work without rethinking for possible reelection after some time. 

[00:18:41] Staying with the European Court, can you tell us about a few cases by the court that you think perhaps have greater implications for human rights, for access to justice than maybe people would think. Protocol 14 being a good example. It looks like on paper it's about administration, but actually has all these bigger implications.

[00:19:00] There are a number of such cases and from my perspective, I would mention the case of Hassan versus United Kingdom. It's about interaction of international humanitarian law and international human rights law in time of war. I think this judgment is influential and important not only for European countries, but also on a global stage because it does serve as a good judgment, which is settling down the standards for inter interaction of this important international laws.

[00:19:35] I'll also mention the case Cyprus versus Turkey. But the cases which were deriving from this case linked again with war and conflictual situations, this case linked with the case Varnava and others, because from my perspective, these are important cases about the rights of victims of the conflictual and war situation. 

[00:20:02] Also I'll mention the case Kafken versus Germany. It is on further development of the standards on inadmissibility of evidence obtained with the threat of violence, not with the violent approach from a site of the investigators, but the threat of violent approach was in the focus in this case. There are a number of cases which were also deriving from the time when thousands of immigrants were coming from North Africa, from Syria, Afghanistan in Europe. But from my perspective, Hirsi Jamaa vs. Italy was among the most important cases in this group of cases.

[00:20:47] Of course, there are other cases, but let's say from at this moment, I can give you this quick overview for what was important from my perspective nowadays.

[00:20:59] No, that's very helpful. One final question on this court. If you could wave a magic wand and pick one thing to reform about it, what do you think that would be, and how realistic do you think that would be to actually happen?

[00:21:12] You'll find in many judgments of the European Court of Human Rights when the court is describing the convention as a living instrument, that the case law of the court does create the living instrument - the approach of living instrument. I think that the main problem of the court nowadays is the execution of the judgments of the court, and here the focus should be how to execute the judgments or how to improve execution of the judgments because those judgements which are not correctly executed in practice are creating possibility for new cases in front of the court in Strasbourg.

[00:21:57] And we have seen this in a number of cases. That's why I think that It will deserve time and energy to focus on finding a proper form of better interaction between the court committee of ministers and the national institutions. Then I think that in the years to come the court should focus on capacity building and awareness raising at the national level because the principle of subsidiarity is one of the elements which are among the main pillars or one of the main pillars of the convention better national practices, better national legislation means preventive work of national institutions before applicants will come in front of the court in Strasburg. 

[00:22:49] And of course it deserves to put more energy also on the dialogue with judiciary, prosecution civil organizations, students, and to find form how to interact with all this is subject or institutions at the same time. I think that the court was doing quite fine in the years behind it. And large quantity of work has been finalized in the last two decades I will say.

[00:23:23] Dr Miranda Melcher: Thank you so much, Mirjana, for taking us through some of your career experiences and expertise. In our next episode, we'll look at international legal institutions and the future of international law, again with Mirjana.