PART TWO COURSE OF PROCEDURE
PROCEDURE FOR APPROVAL OF INTERNATIONAL JUDICIAL ASSISTANCE AND EXECUTION OF INTERNATIONAL TREATIES IN JUDICIAL CRIMINAL CASES
The international judicial criminal assistance will be performed according to the provisions of this law in line with the provisions of the European Convention for the international judicial assistance in the criminal matter with the Protocols, European Convection of United Nations for trans national organize crime and with other international treaties ratified in accordance with the Constitution of Republic of Macedonia .
(1) The applications of the domestic courts for judicial assistance in the criminal cases are delivered to the foreign agencies in a diplomatic course. In the same manner to the domestic courts are delivered the applications of the foreign agencies for judicial assistance, through the Ministry of Justice or directly from the competent court”.(2) In emergencies, if there is mutuality, the applications for judicial assistance may be delivered by the Ministry of internal affairs.
(2) By law it will be determined which courts will be competent for giving international judicial criminal assistance and one court may be assigned to perform the work for all the courts on a certain region.
(1) The Ministry of External Affairs will direct the application of the foreign agency for judicial assistance to the Ministry of Justice which will direct it for a procedure to the court on which region the person resides, who has to be handed a writ or who has to be examined or confronted or on which region another investigating act has to be conducted.
(2) In cases under Article 503, paragraph 2 of this Code, the Ministry of Internal Affairs directs the application to the court by the Ministry of Justice.
(3) On the permission and manner of the conducting of the act, which is the case in the application of the foreign agency, decides the court according to the domestic regulations.
(4) When the application refers to a crime for which according to the domestic regulations extradition is not allowed, the court will request an instruction from the Ministry of Justice.
(1) The domestic courts may accept the application of the foreign agency with which it is requested execution of the criminal sentence by the foreign court or on the international court”
if it is determined with an international treaty, or if there is reciprocity or if the sanction is also pronounced by the domestic court according to the Criminal Code.
(2) The competent court reaches the verdict at the Chamber under Article 22, paragraph 6 of this Code. The public prosecutor and the counsel will be informed of the session of the Chamber.
(3) The local competence of the court is determined according to the last residence of the convicted person in the Republic of Macedonia- according to his place of birth. If the convicted person has not a residence nor was born in the Republic of Macedonia, the Supreme Court of the Republic of Macedonia will determine one of the courts to be competent before which the procedure will be conducted.
(4) The competent court is the court which is determined by law.
(5) In the pronouncement of the verdict under paragraph 2 of this Article, the court will insert the complete pronouncement and the title of the court with the foreign verdict and will pronounce a sanction, appropriate with the verdict pronounced by the foreign court”. In the elaboration of the verdict will be presented the reasons for which the court has pronounced the sanction.
(6) Against the verdict may appeal the public prosecutor and the convicted person or his counsel.
(7) If the foreign citizen convicted by a domestic court or if the person authorised with an agreement submits an application to the first degree court the convicted person to serve the sentence in his country, the first degree court will act according to the international treaty
(8) Execution of the verdicts brought by the international court has to be performed in accordance with international treaties ratified in accordance with the Constitution of Republic of Macedonia.
(9) The Criminal Council from article 22 (6) of this law , on the local-govern first degree court, with verdict is confirming the authenticity and execution of the international court verdict and determines the manner of the sanction or the other measures of execution.
Article 505 –a
(1) Domestic courts are proceeding upon the application of the foreign organs for overtaking the temporary measures for ensuring the article 203-a from this law, or towards the execution of measure for property confiscation and property interest and seizure of the objects towards which they have proceeded in accordance with the provisions from the international agreement.
(2) The confiscated property and the property interest or the seized objects could be renounced with the court decision from the foreign country under certain conditions defined with the international agreement.
(3) The domestic ( national) courts under special defined conditions which are determined with the international contract can request determination of the temporary measures for ensuring that article 203- a of this law and execution of the confiscation of property and the property interest and seizing of the objects from the foreign organs
(4) In the case when with the international agreement it is regulated that the confiscated property and the property interest shall be divided between the Republic of Macedonia and some other state, such of proposal will be delivered by the Ministry for justice. to the foreign country.
For the crimes- making and releasing counterfeit bank notes, unauthorised production and trade with the narcotic drugs, psychotropic substances and precursors, trafficking with human beings, enterprising of pornographic material on child” as well as other crimes in view of which with the international treaties it is determined centralisation of data, the court before which the criminal procedure is conducted, without delay, is obliged to deliver to the Ministry of Internal Affairs the data for the crime, the criminal and the legally valid verdict.
(1) If on the territory of the Republic of Macedonia a crime has been committed by a foreigner who has a residence in a foreign country, out of the circumstances under Article 510 of this Code, to that country may be transferred all criminal records for the criminal prosecution and trial, if the foreign country is not against it.
(2) Before the decision for investigation is brought, the decision for transferring is brought by the competent public prosecutor. During the investigation, the decision on the proposal of the public prosecutor is brought by the investigating judge, and by the beginning of the trial, the Chamber (Article 22, paragraph 6).
(3) Transferring may be allowed for crimes for which a sentence to ten years is anticipated, as well as for the crimes- endangering the public traffic.
(4) If the damaged is a citizen of the Republic of Macedonia, transferring is not allowed if he resists it, unless it is allowed security for realisation of his lawful property request.
(5) If the accused is detained, from the foreign country it will be requested in the briefest possible way within 40 days to state whether it undertakes the prosecution.
(1) The request by the foreign country in the Republic of Macedonia to be undertaken prosecution of a citizen of the Republic of Macedonia or of a person who has a residence in the Republic of Macedonia for a crime committed abroad, is directed with the records to the competent public prosecutor on whose region the person has his residence.
(2) If to the competent agency of the foreign country is submitted the lawful property request, it will be proceeded as if the request is submitted to the competent court.
(3) Of the refusal the criminal prosecution to be undertaken as well as whether the decision is legally valid, which has been brought in the criminal procedure, will be informed the foreign country which has submitted the request.
PART TWO COURSE OF PROCEDURE
PROCEDURE FOR EXTRADITION OF ACCUSED AND CONVICTED PERSONS, AND PROCEDURE FOR TRANSFER OF CONVICTED PERSON
1. The procedure for extradition of the accused and convicted persons.
The extradition of the accused or of the convicted persons will be requested or will be performed in accordance with the provisions of this law, whether with the European Convention of Extradition with the Protocols and with the other international treaties ratified according to the Constitution of the Republic of Macedonia it is not differently regulated
(1) Presumptions for extradition are:
1) the person whose extradition is requested not to be a citizen of the Republic of Macedonia;
2) the crime for which there is a request for extradition not to be committed on the territory of the Republic of Macedonia against it or against its citizen;
3) the crime for which there is a request for extradition to be a crime both according to the domestic law and the law of the country in which it has been committed;
4) according to the domestic law the criminal prosecution not to be obsolete or the execution of the punishment not to be obsolete before the foreigner is detained or examined as an accused;
5) the foreigner whose extradition is requested not to be convicted before by the domestic court for the same crime, or for the same crime by the domestic court not to be released with a legally valid decision, or against him the criminal procedure not to be interrupted or the prosecution not to be rejected with a legally valid decision, or for the same crime procedure not to be initiated in the Republic of Macedonia or against it or against a citizen of the Republic of Macedonia, unless a guarantee is not issued for realisation of the lawful property request of the damaged;
6) the identity of the person, whose extradition is requested to be determined, and
7) there to be sufficient evidence for a grounded suspicion that the foreigner, whose extradition is requested, committed certain crime or that there is a legally valid verdict.
(1) Procedure for extradition of accused or convicted foreigners is initiated on the application of the foreign country.
(2) The application for extradition is submitted in a diplomatic course.
(3) To the application for extradition must be enclosed:
1) means for determination of the identity of the accused i.e. the convicted person (exact description, photographs, fingerprints and similar);
2) certificate or other data for the citizenship of the foreigner;
3) the prosecution act or the verdict or the decision for detention or another act which is equivalent to this decision, in original or in a certified copy in which has to be noted the name of the person whose extradition is requested and other necessary data for determination of his identity, description of the crime, lawful title of the crime and evidence for the grounded suspicion, and
4) an extract from the text of the Criminal Code of the foreign country which is to be applied or has been applied against the accused for the crime for which there is a request for extradition, and if the crime has been committed on the territory of a third country, also an extract from the text of the Criminal Code of that country.
(4) If the application and the enclosed documents are in a foreign language, it also has to be enclosed a certified translation in Macedonian language .
(1) The Ministry of External Affairs delivers the application for extradition of a foreigner by the Ministry of Justice to the investigating judge of the court on whose region the foreigner has resided or on whose region he will be caught.
(2) If the permanent or temporary residence of the foreigner whose extradition is requested is not known, it will be previously determined by the assistance of the police.
(3) If the application is appropriate to the conditions in Article 511 of this Code, the investigating judge will issue an order the foreigner to be detained if there are reasons under Article 184 of this Code, i.e. will undertake other security measures his presence to be secured, unless from the application itself it is obvious that there is no question for extradition.
(4) After he has determined the identity of the foreigner, without any delay the investigating judge will inform the foreigner why and on the basis of which evidence his extradition is requested and he will call him to make a statement at his defence.
(5) For the examination and the defence will be constructed a minutes. The investigating judge will instruct the foreigner that he may choose a counsel or he will assign him a counsel ex officio, if it is a crime for which defence is compulsory according to this Code .
(1) In emergencies, when there is a danger that the foreigner might abscond or hide, the Ministry of Internal Affairs may arrest the foreigner to be delivered to the investigating judge of the competent court on the basis of the application of the competent foreign agency, without reference how it is directed. In the application have to be included the data for the certification of the identity of the foreigner, the nature and the title of the crime, the number of the decision, the date, place and title of the foreign agency which has determined the detention and a statement that the extradition will be requested regularly.
(2) When detention is determined in reference of paragraph 1 of this Article, after the examination, the investigating judge will inform of the detention the Ministry of External Affairs by the Ministry of Justice.
(3) The investigating judge will release the foreigner when the reasons for detention cease to exist, or if the application for extradition is not submitted within the period which he has determined, taking into consideration the distance of the country which requests for extradition, and which deadline for delivery of the motion and writs for extradition can not be longer then 40 days from the day when the alien was detained, and the time limit for transferring can not be longer then 180 days from day when he was detained.
(4) When the proscribed application is submitted within the determined period, the investigating judge will proceed according to Article 512, paragraphs 3 and 4 of this Code .
(1) After the hearing of the public prosecutor and the counsel, if necessary the investigating judge will conduct other inspections in order to be certified whether there are conditions for the extradition of the foreigner i.e. for delivery of the objects on which or with which assistance the crime has been committed if the objects have been confiscated from the foreigner.
(2) After the conducted inspections, the investigating judge will submit to the Chamber the inspection records and his opinion.
(3) If against the foreigner whose extradition is requested there is a criminal procedure at the domestic court due to the same or another crime, the investigating judge will notify that in the records.
(1) If the Chamber of the competent court finds that the lawful presumptions for extradition are not fulfilled, it will bring a decision that the application for extradition is denied. The decision will be directed ex officio by that court to the Supreme Court of the Republic of Macedonia, which after the hearing of the public prosecutor will either confirm, cancel or alter the decision.
(2) If the foreigner is detained, the Chamber may decide the foreigner to remain in detention until the legally valid decision is reached for the rejection of the extradition.
(3) The legally valid decision with which the extradition is rejected will be directed by the Ministry of Justice to the Ministry of External Affairs, which will inform the foreign country of that.
If the Chamber of the competent court finds that the lawful presumptions for extradition of the foreigner are fulfilled (Article 510), it will certify it with a decision. Against the decision the foreigner has a right to an appeal to the competent court.
If the court on the appeal finds that the lawful conditions for extradition of the foreigner are fulfilled, i.e. if against that decision of the first degree court an appeal is not submitted, the case is directed to the Ministry of Justice, which will decide on the extradition.
(1) The Minister of Justice reaches a decision with which he allows or does not allow the extradition. The Minister of Justice may bring a decision the extradition to be postponed because of the fact that for another crime at the domestic court there is a criminal procedure against the foreigner whose extradition is requested or because the foreigner is serving a sentence in the Republic of Macedonia.
(2) The Minister of Justice will not allow extradition of a foreigner if he has a right of asylum in the Republic of Macedonia or if it is in question a political or military crime. He may reject the extradition if they are in question crimes for which according to the domestic law is proscribed a sentence to three years or if the foreign court has pronounced a sentence of imprisonment to one year.
(1) The Minister of the Justice will not allow the extradition of a foreigner if there are serous reasons of suspicion that he will be subjected of severe torture and other kind of severe, inhuman or humiliating behaviour or pronouncement of death sentence.
(2) Upon the proposition of the Minister of Justice the Government can decide not to permit the extradition where for this there are special justified state interests .
(1) In the decision with which it is allowed extradition of a foreigner, the Minister of Justice will note:
1) that the foreigner cannot be prosecuted for another crime committed before the extradition;
2) that against him cannot be executed a sentence for another crime committed before the extradition;
3) that against him cannot be applied a more severe punishment than the one he is convicted of, and
4) that he cannot be extradited to a third country due to prosecution for a crime committed before the allowed extradition.
(2) Apart from the noted conditions, the Minister of Justice may set other conditions for extradition .
(1) Of the decision with which it is decided on the extradition will be informed the foreign country in a diplomatic course.
(2) The decision with which the extradition is allowed will be directed to the Ministry of Internal Affairs which orders the foreigner to be apprehended to the border where on the agreed place he will be extradited to the agencies of the foreign country which has requested the extradition .
(1) If extradition of the same person is requested by several foreign countries for the same crime, the primacy will be given to the application of the country whose citizen the person is, and if that country does not request the extradition- to the application of the country on which territory the crime has been committed, and if the crime has been committed on the territory of several countries or if it is not known where it is committed- to the application of the country which has first requested for extradition .
(2) If extradition of the same person is requested by several countries for different crimes, the primacy will be given to the application of that country whose citizen the person is, and if that country does not request extradition- to the application of the country on whose region is committed the most severe crime, and if the crimes are equally severe- to the application of the country which has first requested for extradition .
(1) If against the person who is in a foreign country, there is a criminal procedure in the Republic of Macedonia or if the person who is in a foreign country is convicted by the domestic court, the Minister of Justice submits an application for extradition.
(2) The application is submitted to the foreign country in a diplomatic course and with it are enclosed the documents and data under Article 511 of this Code.
(1) When there is a danger that the person whose extradition is requested might either abscond or hide, before it is proceeded according to Article 522 of this Code, the Minister of Justice may request against that person to be undertaken necessary measures for his detention.
(2) In the application for temporary detention will be particularly noted the data on the identity of the requested person, the nature and title of the crime, the number of the decision, the date, place and title of the body which has determined the detention, i.e. data on the verdict which is legally valid as well as the statement that the extradition will be requested regularly.
(3) The time spent in detention which is determined by the foreign court, is not calculated in the period determined under Article 189, paragraph 1 of this Code.
(1) If the requested person is extradited, he may be criminally prosecuted, i.e. against him a sentence executed only for the crime for which the extradition has been allowed.
(2) If that person has also been convicted with a legally valid verdict by the domestic court for other crimes committed before the extradition for which the extradition is not allowed, the provisions of Article 330 of this Code will be accordingly applied.
(3) If extradition is allowed under particular conditions in view of the type or severity of the sentence which may be pronounced i.e. be executed and under these conditions is accepted, during the pronouncement of the sentence, the court is bound to those conditions, and if it is in question an execution of an already pronounced sentence, the court which has proceeded in last degree will alter the verdict and will accord the pronounced sentence to the conditions for extradition.
(4) If the extradited person was detained in a foreign country for a crime for which he is extradited, the time which he spent in detention will be calculated in the sentence.
(1) If extradition is requested by a foreign country from another foreign country and the requested person has to be extradited through the territory of the Republic of Macedonia, the extradition on the application of the interested country may be allowed by the Minister of Justice under condition that he is not a citizen of the Republic of Macedonia and the extradition not to be performed for a political or military crime.
(2) The application for extradition of the person through the territory of the Republic of Macedonia has to contain all data under Article 511 of this Code.
2. The procedure for transfer of the convicted persons
The procedure for the transfer of the convicted person shall be performed in accordance with the provisions from this law in line with the European Convention for transfer of the convicted person with the Additional Protocol and with the others International treaties ratified in accordance with the Constitutions of the Republic of Macedonia.
(1) The convicted person who is not citizen of Republic of Macedonia can submit request for execution of sanction on the territory of other country which has to be with in accordance with the Convention from the article 525-a of this Law
(2) The requests and the replies related with the procedure for transfer are referred through the Ministry of Justice.
(3) The reply on the request with which the transfer was granted will be handed over to the Ministry of interior Affairs as well, and the convicted person will be escorted to organs of the other foreign state by the MOI .
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.