RAPPORT MACEDOINE: La Médiation
RAPPORT MACEDOINE: La Médiation
Rapporteur national : Radica Lazareska Gerovska State counselor, Ministry of Justice
I. The contribution of the notarial profession to the administration of justice
1. Historical information and role of the notariat
The independence of the Republic of Macedonia brought fundamental changes in the socio-political and economic system, and even more in its legal system which introduced several novelties aiming to its more effective functioning.
The adoption of the Constitution of the Republic of Macedonia in 1991, created among the others, conditions for part of the out-of-court proceeding matters, which are not contentious between the legal entities, to be performed as a public authorization by autonomous and independent public service. This constitutional commitment introduced a new institution in our legal system entitled as "Notariat" which is slowly taking its right place and dimension over the past 12 years.
The notariat in the Republic of Macedonia was established for the first time in 1996 with the adoption of the Law on performing notary activities, as a modern public service aimed at meeting the needs and legal interests of the citizens and the other legal entities, and has had a positive impact on the overall functioning of the legal system. It has particularly influenced the advancement of the preventive legal protection and the increase of citizens' legal security.
The notariat has been operational since 1998 when the first notaries were selected.They performed the public service on systematic basis on the Law on performing notary activities which for the first time listed core competencies of the notariat as an autonomous, independent and public service.
Gradually the number of notaries and their responsibilities increased, which led to positive responses by the expert public. Based on the above, a new Law on Notariat was adopted in 2007 with a hope that will facilitate in a practical manner the further implementation of the modern achievements in the notary field following comparative experiences and European standards in regards to modernization of the civil legislation, but also to increasing the responsibility of the notary for undertaking activities in the notary service. The law arranged for even greater legal security and the protection of citizens and legal entities in the achievment of their rights, mainly in the legal turnover and reducing court cases. Special emphasis was placed on the provisions governing the supervision over the notaries and the Notary Chamber of the Republic of Macedonia.
The law was amended twice (in 2008 and 2009) in the direction of establishing the legal basis for the adoption of a notary tariff, and it also specified the legal basis for the adoption of the bylaws prescribing the manner of notary work in drafting notary acts, keeping the registers, books and directories, the manner of keeping records of notary documents, marking notary offices, the issuance, usage and revocation of the seal and the watermark.
The first notaries in the Republic of Macedonia started working in June 1998, and soon after, the Notary Chamber of the Republic of Macedonia and its bodies were founded.
The highest bodies of the Notary Chamber of the Republic of Macedonia are the Chamber Assembly, Board of Directors and President of the Chamber. The Notary Chamber of the Republic of Macedonia has capacity of a legal entity.
The Notary Chamber of the Republic of Macedonia is a full right member of the International Union of Latin Notariat since September 30th, 2001, and also has the full right participation at the meetings of the Committee for European and Mediterranean issues.
The notariat nowdays throughout Macedonia counts 177 notary offices with more than 460 employees - mostly employees with Bachelor in Law, working in the areas of the courts (26) for which they have been appointed.
2. Latest legislative developments
The introduction of the notariat in the Republic of Macedonia has had a positive impact on the overall functioning of the legal system in the country. This public service has facilitated the legal trade, has allowed for certain legal services that were previously not provided, to be provided, and what is especially important, according to many opinions, it has influenced the growth of the so-called preventive legal protection, because with its action it contributes to legal security and disputes avoiding.
The notary works primarily relate to uncontested legal relations in the field of property, family, inheritance and personal rights and interests of the citizen. The notary performs the notary service as primary occupation in a specific territorial area and the seat of the area of the district court for which he was listed. The notary performs the notary works in a free, independent, autonomous, professional and impartial manner, based on the Constitution, laws, ratified international agreements, other regulations and general acts.
The notary public authorizations and the manner of performing notary works are envisioned to produce, that is, to provide authenticity, confidentiality and efficiency in issuing notary documents, and thus facilitated progress of the legal life in the country. The notaries are holders of public authorizations that the state has transferred to them, including the primary authorizations for drafting notarial documents with the force of a public document, which may be enforceable if certain conditions are fulfilled as prescribed by law.
As per the public opinion, especially in the last few years, the notariat is one of the country's most stable institutions that efficiently and effectively perform public authorizations. Hence, in the past 3-4 years, the state decided to transfer part of its authorizations to the notaries who work as court trustees.
It first happened with the inheritance cases in which the manner of property distribution is undisputable, and only in the period from 01.01.2011 to 31.12.2011, the total number of inheritance cases entrusted by the court to the notaries reached 17,324. Thus, the number of completed inheritance cases is 12,380, or 71.48%.
Since July 2011 the notaries got a new responsibility for the adoption of the decision on enforcement based on authentic documents (mostly unpaid utility bills), which was till then performed by the courts. Only for the period from July 1, 2011 until March 2012, the notaries only on this basis received 129,671 cases, which led to a significant decreasing of the courts in lawsuits filed by proposals for the issuance of payment orders based on authentic documents. Thus, the courts decide only after an appeal against a decision made by a notary, and make decisions in accordance with the provisions of the Law on Civil Procedure in a procedure upon appeal, thus it is expected courts' efficiency for the disputed cases to be increased.
The project for connecting the notaries with the Real Estate Cadastre Agency, led to access of the notaries for submission of applications for changes in the geodetic cadastral information system via Internet to e-desk of the Agency for Real Estate Cadastre. Thus the procedure was simplified for submission of notaries' applications, which was until then perfromed only with applications physical delivery. With respect to the operation or performance of the notary service by notaries in the Republic of Macedonia, this way of connecting the notaries with the Real Estate Cadastre Agency, means increasing the legal security of the natural and legal persons involved in making contracts or who undertake legal matters, as well as increasing confidence in the institutions of the legal system by the citizens and the legal entities in the Republic of Macedonia. For this purpose, all notaries in the Republic of Macedonia created electronic signatures.
Since September 1, 2012 the notaries got another competence, to verify the debenture. The debenture is affirmed notary document with the force of an enforcement instrument which is expected to contribute to overcoming the current problem related with the payment of debts between the business entities.
Furthermore, there was prepared and it is in an ongoing procedure for adoption by the government of the Republic of Macedonia, another amendment to the Law on Notariat, which introduces the possibility of drafting notary documents in electronic format with electronic signature and electronic delivery.
It is clear that the adoption of the Law on Notariat and its implementation have fulfilled its goals. Namely, the courts are relieved of uncontested cases, the judiciary's efficiency was improved, while the citizens in a much faster, simpler and more efficient way, exercise their rights.
The Macedonian legislation introduced the mediation in 2006 by the Law on Mediation. During 2007 and 2009 amendments were to the law were made in order to improve the results of the mediation, and at the moment there is discussion about the need for further amendments to the legislation in order to improve the results of the mediation.
Mediation is defined as a way of resolving disputes in which the parties endeavor to resolve the dispute peacefully with one or more mediators who help them reach a mutually acceptable solution.
The mediation not allowed in all areas, but only in the areas clearly listed in the law, such as: civil, commercial, labor, consumer and other contentious relationships between natural and legal persons, in which the parties may freely place their requirements, in accordance with law, except where otherwise provided by law; as well as in family and criminal disputes, if it suits the nature of the dispute and a special law does not exclude its application.
The mediation is possible only on the basis of an agreement reached between the parties before the initiation of judicial proceedings, or after the commencement of court case.
Access to mediation
The mediation is possible both within an already started dispute, and before a case is registered in the court.
If mediation takes place before registering court case, it is strictly on a voluntary basis.
Within the court case however, the mediation can take place voluntarily, but it can be also recommended by the court or other authority. Since 2011, the civil courts are bound, along with invitations to a preparatory hearing to point to the parties that they have the opportunity to resolve the dispute through mediation. The Law on Juvenile Justice provides also for mandatory approach.
In the country, at the moment, there is a strong opinion which insists for introducing mandatory endeavour for mediation in certain areas - consumer rights, family relations (with the exception of divorce and placing children) and rights from car insurance.
There is not yet an adopted position for introducing such a possibility in certain legal decisions. Under the current Law on Mediation in Macedonia the parties are not prohibited from initiating court proceedings or arbitration prior to the completion of the mediation. This, in terms of performance and speed in dispute resolution, it represents a burden for the parties to be under an obligation to engage in court proceeding or arbitration, before or during the mediation, if they would like to prevent expiry of the preclusive deadlines or obsolescence.
Enforceability of agreements
The agreements must be concluded in writing and signed by the mediator as well as the parties. Enforceability of the reached agreements with the help of the mediator depends on whether they are reached before the initiation of court proceedings, or within the ongoing court proceeding.
If the settlement is reached out of the court proceedings, enforceability is acquired through a solemnization agreement before a notary. If the agreement is reached during the proceedings, the mediator shall, within 3 days after the reached settlement, to submit the settlment to the court and it is a basis for the court settlement, which will be concluded by a judgment made on the basis of such agreements.
Details of procedure
The mediation is voluntary, neutral and without mediator's bias.
It is confidential, the public is excluded and should provide equality of the parties. The mediation procedure includes initiating the proceedings with the consent of both parties (in writing!), optional choice of proxy, agreement on determining one or more mediators, carrying out the procedure, presenting proposals and presentation of evidence by the parties, ending of the procedure and agreement of the parties.
The mediator may communicate with the parties together or separately. The information which the mediator receives from any party in the proceedings, he may disclose to the other party, except that information for which the party will state to be confidential.
The costs of mediation and mediator reward are to be paid by the parties in accordance with the Tariff of reward and costs reimbursement of the mediators, that is adopted by the Minister of Justice after considering the opinion of the Chamber of Mediators:
The mediators charge:
- mediator reward for the mediation conducted (at least 15 euros per hour, or 24 euro per hour if there are multiple parties to the dispute) and
- factual expenses.
The mediator's reward for the mediation performed is determined by:
- the invested effort and time spent in the proceedings, in accordance with the Tariff for reward and factual expenses of the mediators;
- the type of dispute and
- the number of parties.
The reward cannot be lower than 15 euros for each started hour if there are two parties in the dispute, or 24 euros per hour if there are multiple parties involved in the dispute.
The reimbursement of actual expenses of the mediators is determined by administrative and technical expenses which include the necessary costs for the initiation of the procedure and its implementation.
The tariff is public and is published in the "State Gazette of the Republic of Macedonia".
The mediation procedure could be free of charge for the parties in case the parties and the mediator shall agree upon it or when it is prescribed by law. The mediation procedure shall be completed within 45 days from the date of signing a statement for commencing the procedure, regardless its outcome.
2. THE FIGURE OF THE MEDIATOR
The mediator is a work capable individual who assists the parties to reach an agreement, without the right to impose a solution to the dispute, in accordance with the principles of mediation.
Mediators can be: lawyers, law graduates or persons of other professions and other prominent experts and professors, depending on the type of dispute, who completed training for mediators and meet the following conditions:
- have gained a university degree for completed high education
or acquired 300 credits under the European Credit Transfer System (ECTS) in the Republic of Macedonia or verified degree from abroad with acquired 300 credits;
- have at least five years of work experience after graduation;
- have a certificate issued or recognized by the Ministry of Justice for completed training under the program for mediators training
- to be listed in the Directory of Mediators which is administered by the Chamber of Mediators.
The mediator training is organized by the Ministry of Justice in accordance with bylaw, which prescribes the manner and procedure for conducting the mediator training. The training costs are borne by the candidate who attends the mediator training. The Minister of Justice with a bylaw shall determine the real costs incurred for training of mediators and the compensation for the work of trainers.
In disputes with a foreign component a mediatior may be a foreign citizen if he is authorized to perform mediation in the home country.
Mediator ceases status:
1) upon the request by the mediator to be removed from the Directory of Mediators
2) if the mediator's legal capacity is revoked or limited with a court decision.
The Chamber of Mediators within 15 days from the date of meeting the criteria of termination, shall make a decision on termination of the status of a mediator.
The capacity of a mediator is on hold if the person is selected to perform a public function (judge), or if the state has transferred to him a public authorization (notary, enforcement agent)
Duties and responsabilities of the mediator
The mediator is obliged to run and complete the process of mediation in accordance with the principles of law.
The mediator can not impose solutions to the parties, give promises and guarantee certain results of the mediation procedure. The mediator is obliged to run and complete the mediation procedure within 45 days, taking into account the interests of the parties.
The mediator is obliged to report every initiation of a mediation procedure, any completion or discontinuing of a mediation procedure in the Register records for mediation procedures.
The mediator shall be entitled to cost reimbursement and reward, according to the Tariff for reward and factual expenses of the mediators.
The mediator shall be liable for the damage that he will cause to the parties with his unlawful conduct, in accordance with the general rules for compensation of damages.
The mediator cannot act in cases in which he has or had a personal interest, personal, family or business relationship with a party to the dispute, or if there are other circumstances that would cause doubt in his impartiality.
The mediator will not act in cases in which he previously acted as a judge, was authorized legal representative, arbitrator or counsel of one of the parties.
The person who will be proposed for a mediator is required to bring to the parties any circumstances that may be a reason for justified doubt in his impartiality and independence with regards to the dispute.
From the moment of notification of selection of the mediator, and during the whole procedure, he will promptly inform the parties about the existence of the grounds for his exemption, unless he has not previously informed the parties.
If none of the parties, having learned of the circumstances of exemption does not require the appointing of another mediator he shall not be entitled on that ground to refute the agreement reached in the mediation procedure.
3.THE NOTARY AND MEDIATION
As previously stated, notaries are related with mediation in the solemnization of the successfully completed mediation agreements to which the parties wish to give power of enforcement document.
The solemnized mediation agreement is enforcement document and may be subject to forced enforcement (by the enforcement agensts - who in Republic of Macedonia are private entities with public authorizations and perform forced execution of all enforcement documents), as well as the basis for listing the rights and relations agreed in the settlement, in the public records and registers in the
The promotion of mediation by notaries is not regulated by legal provisions, thus only from notary desire and awareness depends whether he would recommend mediation as a way to overcoming possible disputes, or will insert a clause in the notary acts which will regulate the solving of the possible contentious relationship. Current practice in this filed does not indicate a great using of this opportunity by notaries.
As previously stated, in the Republic of Macedonia it is not allowed merging functions and authorizations. This means that it is not possible in parallel to perform both functions. If a person is listed in the Registry of Mediators within the Chamber of Mediators, becomes a notary, enforcement agent or elected judge, his status as a mediator is put on hold, or at his personal request, the status of a mediator may be terminated.