PART TWO COURSE OF PROCEDURE
Chapter XVII MEASURES FOR SECURING PRESENCE OF THE ACCUSED AND FOR SUCCESSFUL PERFORMANCE OF THE CRIMINAL PROCEDURE
(1) Pre- trial detention may be determined only under conditions anticipated by this Code.
(2) The duration of the pre- trial detention must be set to the shortest necessary time. It is a duty of all agencies participating in the criminal procedure and agencies which contribute with judicial assistance to act in most urgent manner if the accused is pre- trial detained.
(3) During the procedure the pre- trial detention will be withdrawn as soon as the reasons on which basis it was determined cease to exist.
(1) If there is a grounded suspicion that a person has committed crime, a pre- trial detention for the person may be determined:
1) if he hides, if his identity cannot be detected or if there are other circumstances emphasising danger of escape;
2) if there is justified fear that he will destroy the traces of the crime or if certain circumstances point out that he will inflict the investigation influencing the witnesses collaborators or conceivers;
3) if certain circumstances justify the fear that he will commit crime again, or he will complete the attempted crime or will commit crime with which he threatens.
(2) The pre-trial custody is compulsory determined when there is ground suspicion that the person has committed the criminal act for which a life time imprisonment can be pronounced.
(3) In case of item 1, paragraph 1 of this Article the pre- trial detention determined due to the failure of detecting the identity of the person, lasts until his identity is revealed. In case of item 2, paragraph 1 of this Article the pre- trial detention will be interrupted as soon as the evidence for the pre- trial detention are determined.
(1) The pre- trial custody is determined by the investigating judge on the proposal given by the Public Prosecutor, except in case when the pre- trial custody is compulsory. Against the decision with which the proposal for determining pre- trial custody is rejected, an appeal is allowed in a period of 48 hours to be submitted to the counsel under article 22 paragraph (6) of this law.
(2) The pre- trial detention is determined with a written decision which contains: the name of the person deprived from his freedom, the crime for which he is accused of, the legal ground for pre- trial detention, the name of the institution in which the pre- trial custody is carried out, instruction of his right to an appeal and a brief explanation with a special elaboration on the grounds on which the pre- trial detention is determined, an official seal and a signature by the judge who has determined the pre- trial detention .
(3) With the decision which determines the pre- trial custody by justified reasons can be determined the conducting of the pre- trial custody to be carried out in the department of pre- trial custody or in other penitentiary-corrective institution.
(4) If the accused does not chose himself a counsel, with a decision he will be assigned a counsel ex officio (Article 66, paragraphs 2 and 5). In case the President of the Court is impeded, the investigating judge will assign a counsel .
(5) The decision for pre- trial detention is delivered to the person to whom it refers at the moment of his depriving from freedom and at the most within 24 hours from the hour of his arrest. For the record it must be notified the hour of the arrest and the hour of the delivery of the decision.
(6) Against the decision for pre- trial detention, the detained may appeal to the Chamber (Article 22, paragraph 6) within 24 hours from the time of delivery of the decision. If the detained is examined for the first time after the expiring of this period, he may appeal at the examination. The appeal with a copy from the minutes for examination, if the detained has been examined, and the decision for the pre- trial detention, are submitted to the Chamber immediately. The appeal does not keep from execution of the decision .
(7) In cases of paragraph 1 and 6 of this Article, the Chamber which decides on the appeal is obliged to reach the decision within 48 hours.
(8) The public prosecutor and the counsel may ask to be informed of the session of the Chamber and at the session orally to elaborate and explain their proposals; if they do not attend the session, does not keep from holding the session.
(1) The investigating judge is obliged to the person deprived from his freedom who was apprehended, immediately to instruct him that he may have a counsel who may attend his examination and if necessary- to help him find a counsel. If within 24 hours from the time of the instruction, the arrested person does not provide a counsel to be present, the investigating judge is obliged to examine the person immediately.
(2) If the arrested chooses not to have a counsel, the investigating judge is obliged to examine him without any delay.
(3) In case of a compulsory defence (Article 66, paragraphs 1 and 2), the arrested does not have a counsel within 24 hours from the time when he was instructed on that right or if he states that he chooses not to have a counsel, a counsel will be appointed ex officio .
(1) The investigative judge can upon the proposal of the public prosecutor with written decision to determine to the person deprived of freedom a short term pre-trial custody up to 48 hours in case when he founds that there is ground for suspicion that this person is the perpetrator of the criminal act which is imposed to him and that there is a base for determining the measure pre-trial custody under article 184 paragraph (1) of this law, if the public prosecutor has still not submitted request for conducting an investigation or immediate accusation against that person.
(2) If the public prosecutor after the expiration of the 48 hours term does not submit proposal for determining pre-trial detention in accordance with the article 184 of this law , the accused will be set free.
(3) The investigative judge can upon the proposal of the public prosecutor with written and justified decision determine to the detained person a short time pre-trial custody of 24 hours if he concludes that there is ground for suspicion that detained person is the perpetrator of the criminal act if the circumstances under article 184 paragraph (1) line 1) and 2) of this law, and that is necessary for determination of the identity and to check his alibi. The short time pre-trial custody can be extended for 24 hours at most.
(4) The decision for short time pre-trial custody from the paragraphs 1 and 2 is given to the person against who this measure is determined and to the competent public prosecutor.
(5) An appeal is allowed to be submitted against the decision of the paragraph 3 of this article, within 5 hours from the reception of the decision to the council mentioned in the article 22, paragraph 6 of this law that is obliged to proceed upon the appeal within 3 hours of the reception .
(1) A pre- trial detention may be determined by the investigating judge of a local competent court, when he was entrusted to conduct certain investigating acts or in cases under Article 149, paragraph 1 of this Code. In respect of determination of pre- trial detention, provisions of Article 185, paragraphs 2 to 5 of this Code are applied, with the difference that the decision under paragraph 5 of this Article on the appeal is brought by the competent court.
(2) Immediately after the examination of the arrested, the investigating judge will decide whether to release him or whether he will order the arrested to be brought before the investigating judge of the competent court. In reference of the examination of the arrested, provisions of Article 186, paragraphs 1 to 3 of this Code are applied.
(3) The investigating judge on whose region the criminal act is not committed can determine short time pre-trial custody for period of 48 hours at most counting from the moment the person taken in to the custody is brought in during undertaking of the investigative measures under article 149 paragraph (1) of this law.
(4) If during the period of 48 hours the investigative judge under paragraph (3) of this article does not receive a decision for undertaking the investigation from the investigative judge of a local competent court or the public prosecutor does not submit a request for undertaking the investigation, with proposal for determining a pre-trial custody, the person will be set free.
(1) The person caught committing a crime prosecuted ex officio may be deprived from his freedom by anyone if there is a danger of his escape, for which the Ministry of Interior is immediately notified. The person deprived from his freedom must immediately be brought before the investigating judge or the Ministry of Internal Affairs, and if it cannot be done, one of the agencies must immediately be informed. The Ministry of Internal Affairs will act according to the provisions of this Article.
(2) The authorised officials of the Ministry of Internal Affairs, without a decision by the court, may arrest the person suspected of a crime prosecuted ex officio if there is a danger of cancelling and there are some of the reasons for pre- trial detention under Article 184, paragraph 1 of this Code, but are obliged to bring him immediately before the competent investigating judge. At the apprehension, the authorised official of the Ministry of Internal Affairs will inform the investigating judge of the reasons and of the time of the arrest for which an official note is completed. If the official note is not completed, the investigative judge will include the given announcement in the minutes.
(3) The authorised officials of the Ministry of Internal Affairs may with exception detain the person under paragraphs 1 and 2 of this Article, if the detaining is necessary for the certification of the identity, checking alibis or if for other reasons it is necessary certain data for the procedure against a person to be collected, and if there are other reasons for pre- trial detention under Article 184, paragraph 1, items 1 and 3 of this Code and in case of Article 184, paragraph 1, item 2 only if there is a justified fear that the person will destroy the traces of the crime.
(4) The person deprived from his freedom must be instructed according to the provision of Article 3 of this Code.
(5) In case of detention according to paragraph 3 of this Article if the person deprived from freedom requires assistance of a counsel, the authorised official of the Ministry of Internal Affairs will allow him to call his attorney i.e. will provide him with an attorney and will postpone undertaking of all activities until the attorney comes, but as long as 2 hours from the moment the attorney was notified.
(6) The detention under paragraph 3 of this Article may last at most for 24 hours, starting from the moment the person was deprived from freedom. After the expiring of this period, the authorised official of the Ministry of Internal Affairs is obliged to release the detained or to proceed according to paragraph 2 of this Article.
(7) The person is to be detained in special arranged police stations, determined with an act of the Minister of Interior. The detaining is approved by an official on duty. For every detained person, the official on duty makes special minutes in which the following information is entered: the day and hour the person is taken in to custody; the reasons for deprivation from freedom, the reasons for detaining; the time when the person is notified of his rights; signs of visible injuries; illness, mentally disturbed etc; when was the family contacted, the attorney, doctor, embassies and consulates etc; information concerning the time when it was spoken to the person; was the person transferred to other police station; freeing and taking the person before the court and other important information. The person deprived from freedom will sign the minutes regarding the hour and the date of the apprehension, the hour and the date of freeing and notification of his rights to have an attorney, as well as the whole minutes. The official on duty must explain the reason why the apprehended person has not signed the minutes. The detained person is given a sample of the minutes during his freeing or his handing to the investigative judge. In case when the person according to the provisions of this law is not handed over to the investigative judge, and is transferred to other police station, a copy of that minute is given to that police station.
(8) If the person deprived from freedom is brought in front the investigative judge, the investigative judge ex officio examines the soundness of the deprivation from freedom and is obliged to confirm it with a decision. The person deprived from freedom that is not brought in front of the investigative judge , can in the period of 30 days from the day he was set free, ask from the investigative judge to examine the soundness and to confirm it with a special decision. Against this decision, an appeal can be submitted within 48 hours to the council under Article 22 paragraph (6) of this law, which decides within 3 days. The appeal postpones the execution of the decision.
(1) The determined pre-trial custody with the decision of the investigative judge or the pre¬trial custody which is determined for the firs time during the investigation by decision of the council, can last 30 days at most from the day of the apprehension. During the pre-trial custody, every deprivation from freedom is calculated.
(2) By the justified proposal of the investigative judge or the public prosecutor, the council under Article 22 paragraph (6) of this law can extend the pre-trial custody during the investigation for 60 more days at most.
(3) If the investigation is conducted for the criminal act for which according to the law a penalty of imprisonment of 5 years can be pronounced, on a justified proposal of the investigative judge, the council in front of the immediate superior court can after the expiration of the term under paragraph (2) of this Article, to extend the pre-trial custody for 90 days at most.
(4) The duration of the pre-trial custody in the investigation, counting also the duration of the deprivation from freedom before the decision for pre-trial custody has been brought, can not last more than 180 days, and with the expiration of that term, the detained person will be immediately released.
(5) Before raising the accusation proposal in the summary proceedings, the pre-trial custody can last as much as it is necessary for conducting the investigative measures, but not more than 8 days.
(6) Against the decision of the council for the extension of the pre-trial custody, an appeal within 48 hours is allowed, to the immediate superior court, and it does not postpone the execution of the decision.
(1) During the investigation the investigative judge may decide for abolition of the pre- trial custody.
(2) Against the decision of the investigative judge, an appeal is allowed within a period of 24 hours to the council under Article 22 paragraph (6) of this law.
(3) The council decides within the period of 48 hours and the appeal postpones the execution .
(1) After pressing charges until the end of the main court hearing, by the proposal of the competent plaintiff or by ex officio, the pre- trial custody can be determined, extended or abolished only with a decision of the council (under Article 22 paragraph (1) or (6)).
(2) After pressing the charges, the pre- trial custody can last at most;
1) up to 1 year for the criminal acts for which penalty of imprisonment up to 15 years can be pronounced.
2) up to 2 years for the criminal acts for which a life time sentence can be pronounced.
(3) The Chamber is obliged, after the expiry of 30 days of the legally valid final decision for pre- trial detention and without proposals of the parties, to examine whether there are still reasons for pre- trial detention and to bring a decision to prolong or withdraw the pre- trial detention.
(4) The appeal against the decision of paragraphs 1 and 3 of this Article does not keep from execution of the decision.
(5) A special appeal is not allowed against the decision of the Chamber which rejects the proposal for determination or withdraws from the pre- trial detention.
(6) If the accused escapes from pre- trial custody, the terms for pre- trial custody under this Article will start from the beginning.
Within 24 hours the court is obliged to inform the family of the detained for the detention, unless the person resists it. A competent agency for social issues will be informed of the pre- trial detention if it is necessary measures to be undertaken for providing for his children or other members of his family for whom the detained provides.
9. Procedure with the detained
(1) During the detention, the personality and dignity of the accused must not be offended.
(2) Against the detained must be applied only the limitations necessary to avoid escape and an agreement which could be harmful for a successful performance of the procedure. (3)Persons of opposite sex cannot be locked in the same room. It is determined with a regulation that persons who have participated in the same crime or persons which are serving sentence cannot be put in to the same room with detained persons. If it is possible, persons which committed crimes again will not be put into the same room with arrested persons on whom they might have bad influence .
(1) The detained persons have a right to an eight- hour continuous rest within 24 hours. Apart from that, they will be allowed to walk in an open area within the prison for at least two hours a day.
(2) The detained have a right to be fed on their own expense, to wear their own clothes and to use their own bed linen, at their expense to provide books, newspapers, magazines and other things appropriate to their habits and needs, unless it is harmful for the successful conduct of the procedure. The body which conducts the investigation decides on that.
(3) The detained may be used to cater for the maintenance of the hygiene of the room where he is settled. The detainee maintains the hygiene within the detention room If the detained requests from the investigating judge i.e. Chairman of the Council, with the agreement of the management of the prison, it may be allowed for the detained to work within the prison on chores which suit his psychical and physical abilities, under the condition that it would not be harmful for the conduct of the procedure.
(4) The Minister of Justice by subordinate legislation will determine the way of the acceptance and deploying of the detainees in the penitentiary.
(1) On the approval of the investigating judge who conducts the investigation and under his supervision or under the supervision of the person assigned by him, within the limits of the order in the institution, the detained may be visited by his close relatives, and on his request- physician and other persons. Certain visits may be forbidden if they might badly influence the conducting of the procedure.
(2) The chiefs of diplomatic missions and consulates in the Republic of Macedonia, on the approval of the investigating judge conducting the investigation have a right to visit and to talk to the detained citizen of their country without supervision. The approval for the visit will be requested by the Ministry of Justice.
(3) The representatives of the European Committee for prevention of torture and humiliating behaviour or punishment (CPT) of the Council of Europe has the right under the approval of the investigative judge who undertakes the investigation, to visit and without supervising to talk to the imprisoned persons.
(4) By the request of the Committee under paragraph (3) of this Article, the investigative judge is obliged to approve a visit to the imprisoned persons and a conversation there.
(5) The Representatives of the International Committee of Red Cross have the right with approval of the investigative judge to visit and without out supervision to discuss with the detained persons.
(6) The detained may correspond to persons out of the prison with the knowledge and under supervision of the body conducting the investigation. This body may forbid sending and receiving letters and other parcels which are harmful for the conduct of the procedure. Sending applications, pleads and appeals can never be forbidden.
(7) After the prosecution act is brought or a private action until the verdict becomes legally valid, the authorisations under paragraphs 1, 2, 3, 4 and 5 of this Article are performed by the Chairman of the Chamber.
(1) Against disciplinary offences of the detained, the investigating judge i.e. the Chairman of the Chamber may pronounce disciplinary punishment- the detained to be limited his visits. This limitation does not refer to the communication between the detained and the counsel.
(2) Against the decision for the punishment pronounced under paragraph 1 of this Article, an appeal is allowed to the Chamber (Article 22, paragraph 6) of the court competent for conducting the investigation if it is submitted within 24 hours from the reception of the decision. The appeal does not keep from execution of the decision.
(1) Supervision over the detained is performed by the President of the competent court of first degree.
(2) The President of the court under paragraph 1 of this Article or the judge appointed by him is obliged to visit the detained at least once a week and if necessary to be informed, without the presence of the supervisor and the guards how detained are fed, how they are provided with other necessities and how they are treated. The President i.e. the appointed judge is obliged to undertake necessary measures for the anomalies noticed during the visit of the prison to be excluded. The appointed judge cannot be the investigating judge.
(3) During the visits under paragraph 2 of this Article, the public prosecutor may be present.
(4) The President of the court, the investigating judge and the Ombudsman at any time may visit the detainees, may talk with them without the presence of the authorized person and to receive complaints from them .
PART TWO COURSE OF PROCEDURE
Chapter XXII TRIAL
3. Presumptions for holding the trial
(1) If the accused was summoned but does not attend the trial nor he justifies his absence, the Chamber will order the accused to be apprehended forcefully. If the apprehension could not be performed immediately, the Chamber will decide the trial not to be held and will order the accused to be apprehended forcefully at the next trial. If by the time of his apprehension the accused justifies his absence, the Chairman of the Chamber will revoke the order for a forceful apprehension.
(2) If the summoned accused has obviously been avoiding the attending of the trial, and there are no reasons for pre- trial detention under Article 184 of this Code, the Chamber may determine a pre- trial detention in order the presence of the accused at the trial to be secured. The appeal does not keep from execution of the decision for a pre- trial detention. For a pre- trial detention determined for this reason accordingly are applied provisions from Articles 183 to 197 of this Code. If not revoked before, the pre- trial detention lasts until the pronouncement of the verdict and for at most 30 days.
(3) The accused may be judged in absence only if he is a fugitive or not available to the state agencies and there are particularly significant reasons to be prosecuted although absent.
(4) A decision for prosecution in absence of the accused is brought by the Chamber on the proposal of the prosecutor. The appeal does not keep from the execution of the decision .
1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.
2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:
(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;
(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;
(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and
(d) A statement that a request for surrender of the person sought will follow.
3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.