CRIMINAL PROCEDURE CODE
ON THE GENERAL PART
Recognising a person
1. Where a person who is to recognise another person fails to fully identify him or her by describing that person’s characteristics, a physical identification of the latter shall be done.
2. Except in the case of a trial hearing, the validity of this means of evidence requires that the person to be recognised be placed in the midst of various others with identical physical characteristics and way of dressing, and the person who is to physically identify another person shall state whether any of the present is the person to be identified and, if so, which one.
3. Should there be more than one person to be identified, the procedure described in Sub-articles 163.1 and 163.2 shall apply separately to each of them.
4. Where there is reason to believe that the person called to physically identify another person might be intimidated or harassed for doing so and the identification is not done at the hearing, it shall be done, where feasible, without the former being seen by the latter.
The provisions of article 163 are correspondingly applicable to the identification of items, with the necessary adaptations.
The court shall assess at its own discretion the result of the proof obtained by means of identification.
PART TWO COURSE OF PROCEDURE
Chapter XV PRE-INVESTIGATIVE PROCEDURE
1. Criminal charge and authorization of the organs in the pre-investigative procedure
(2) In order the tasks under paragraph 1 of this Article to be conducted, the Ministry of Internal Affairs may:
i) Demand necessary information from the citizens.
ii) To stop, ask for verification of the identity and to perform a necessary inspection or search of persons, motor vehicles and luggage when there are grounds of suspicious that traces of a criminal act or objects which can be used as evidence could be found. The Ministry of Internal Affairs can use a reasonable amount of force only as a last solution if that’s necessary in order to undertake an inspection or a search of the person, or detecting the identity of persons and objects motor vehicles or luggage ;
iii) With order to redirect, direct, or limit the movements of persons and vehicles in a certain area during the necessary time.
iv) May undertake necessary measures in reference of detecting the identity of persons and objects
v) May conduct search and issue a pursuit for the person and announce for the property and property benefits or for the objects which are being traced.
vi) In presence of the responsible person to conduct an inspection or a search of certain objects and premises of state agencies, institutions which perform public authorisations and other companies and to perform inspection in certain documentation of theirs .
PART TWO COURSE OF PROCEDURE
Chapter XV PRE-INVESTIGATIVE PROCEDURE
2. Special investigative measures
(1) The Court may order the application of special investigative measures, when there is a well founded suspicion that a criminal offence is under preparation, or a criminal offence is being committed or has been committed, if, for such criminal offence, the law prescribes a prison sentence of at least four years, as well as for criminal offences for which there is a well founded suspicion that they are being prepared, committed or they have been committed by an organized group, gang or another criminal enterprise, in order to provide information and evidence that are necessary for successful criminal prosecution, which can not be secured in any other manner, or if their procurement would cause greater difficulties:
1) Monitoring of communication and entrance in home or other premises or in means of transport for creating conditions for monitoring of communication, under conditions and procedure prescribed by the Law.
2) An insight and searching in the computer system, confiscation of computer system or part of it or the data -base for storing of the computer data’s.
3) Secret surveillance, monitoring and visual-sound recording of persons and objects with technical equipment.
4) Simulating purchase of objects, as well as simulating bribery and simulating acceptance of the bribe;
5) Controlled delivery and transport of persons and objects;
6) Using people with hidden identity for monitoring and collecting information or data;
7) Opening apparent (simulating) bank account, where founds which originate from the committed criminal deed can be deposited.
8) Registration of apparent (simulated) companies or usage of the existing companies for collecting data;
(2) In order to provide information and evidence that are necessary for successful criminal prosecution, which can not be secured in any other manner, or if their procurement would
cause greater difficulties, the court may also order the application of special investigative measures in relation to the following criminal offences stipulated in the Criminal Code:
- unauthorised production and trade in narcotic drugs, psychotropic substances and precursors, stipulated in Article 215;
- extortion, stipulated in Article 258;
- blackmail, stipulated in Article 259;
- laundering money and other proceeds of a crime, stipulated in Article 273; - smuggling, stipulated in Article 278;
- customs fraud, stipulated in Article 278-a;
- misuse of an official position and authority, stipulated in Article 353;
- embezzlement, stipulated in Article 354;
- fraud, stipulated in Article 355;
- stealing, stipulated in Article 356;
- acceptance of bribes, stipulated in Article 357;
- allowance of bribes, stipulated in Article 358;
- illegal intercession, stipulated in Article 359;
- unlawful influence on witnesses, stipulated in Article 368-a;
- membership in a criminal enterprise, stipulated in Article 394;
- membership in a terrorist organization, stipulated in Article 394-a;
- terrorism, stipulated in Article 394-b;
- crimes against the state (Chapter XXVIII); and
- crimes against humanity and international law (Chapter XXXIV) of this law,
as well as in relation to criminal offences committed through means of electronic communication.
(3) In case when the knowledge for the identity of the perpetrator is not at disposal, special investigative measures under paragraph (1) of this Article can be prescribed towards the object of the criminal act.
(4) When the special investigative measures under paragraph (1) line 4), 6), 7), and 8) of this Article are being undertaken, no criminal act should be impelled.
(5) Against the person which undertakes the necessary investigative measures under paragraph (1) points 4), 6), 7), and 8) of this Article, the criminal prosecution will not be undertaken for the actions which are considered to be abetting the criminal act, and are committed for execution of the goal under paragraph (1) of this Article and are in accordance with the provisions of this Law .
1. Search of residence and person
(1) Search of residence and other premises of the accused or of other persons may be initiated if it is likely that with the search the accused will be caught or traces of the crime or objects significant for the criminal procedure will be found.
(2) Search of persons may be undertaken when it is likely that traces or objects important for the criminal procedure will be found.
(1) The search is ordered by the court with a written elaborated order which explicitly contains the place and the person to be searched as well as the objects which are searched for or confiscated from the person.
(2) The search warrant is shown before the search to the person whose home or himself will be searched. Before the search, the person to whom the search warrant refers will be asked voluntarily to turn in the person i.e. give away objects which are searched for.
(3) If an armed resistance is presumed or it is suspected that a severe crime is conducted by a group or organisation or if the search is to be performed in public premises, the search may be performed suddenly or it could be performed without previous showing of the search warrant or without a previous request for turning over of the person or giving away the objects.
(4) The search is performed during the day. It may continue at night if it has started at daylight but has not been completed. With exception, the search may be conducted at night if there is a danger of cancelling.
(1) The householder or the holder of other premises will be summoned to be present at the search, and if he is absent his authorised representative will be summoned or some of his adult members of the family or neighbours.
(2) Locked premises, furniture and other objects will be opened forcefully only if their holder i.e. owner is absent or does not agree to open them voluntarily. While opening, unnecessary damage will be avoided.
(3) During the search of premises or persons two adult citizens will be present as witnesses. The search of a female is performed only by a female officer, and the witnesses are also female. Before the beginning of the search the witnesses will be warned to pay attention to the performance of the search and they will be also reminded of their right, before signing the minutes for the search to write in their objections if they consider that the contents of the minutes is incorrect.
(4) The search may be performed without the presence of witnesses if their presence is not possible immediately to be provided and there is a danger of cancelling. The reasons for a search without the presence of witnesses must be written in the minutes.
(5) When the search is conducted in the premises of state agencies, institutions which perform authorisations or legal persons, their chiefs will be called to be present during the search.
(6) Searches and inspections of army buildings will be performed on the approval of the competent army non- commissioned officer.
(7) The search of premises and persons is to be performed carefully without disturbing the order of the residence.
(8) During the performance of the search only those objects and identity cards i.e. documents will be temporarily confiscated which are in connection with the aim of the search in that particular case.
(9) If during the search of premises and persons objects are found which have no connection with the crime for which the search is intended but which point to another crime which is to be prosecuted ex officio, the object will be confiscated and a receipt for the confiscation will be immediately issued. The public prosecutor will be immediately informed in order a criminal procedure to be initiated. These objects will be immediately returned if the public prosecutor finds that there are no grounds for initiation of a criminal procedure and there is no other lawful ground according to which those objects should be confiscated.
(1) For each search of residences or persons a minutes will be constructed. The minutes is signed by the official conducting the search, the person at whose place or on whom the search is conducted and the persons whose presence is compulsory.
(2) In the minutes there will be included and notified correctly the objects and documents which have been confiscated.
(3) For the confiscation of the object or documents, the person will be given a certificate.
(1) The authorised officials of the Ministry of Internal Affairs may without a search warrant enter a residence or other premises if the person who, according to the court order is to be detained or forcefully apprehended is there.
(2) The authorised officials of the Ministry of Interior may without a search warrant and without the presence of witnesses perform a search of a person while conducting the court order for apprehension or if while arresting him it is suspected that the person possesses guns or tools for attack or if it is suspected that he will throw away, hide or destroy the objects which are to be confiscated from him as evidence in the criminal procedure.
2. Temporary securing and confiscation of objects and property
(1) Objects which according to the Criminal Code are to be confiscated or may serve as evidence in the criminal procedure will be confiscated temporarily and entrusted to the court to guard or in another manner their guarding will be secured.
(2) The person who holds such objects is obliged to give them to the court on its request. The person who refuses to give away the objects may be punished with a fine penalty encompassed within Article 74, paragraph 1 of this Code. The detention lasts until the objects are given away or until the criminal procedure is completed and it may last for at most 30 days. It will be proceeded in the same manner with the official or the responsible person of a state agency, institution which perform authorisations or other legal persons.
(3) For an appeal against the decision according to which a fine penalty, the Chamber decides (Article 22, paragraph 6). The appeal against the decision does not keep from execution of the decision.
(4) The authorised officials of the Ministry of Internal Affairs may confiscate the objects listed in paragraph 1 of this Article when they act according to Articles 142 and 147 of this Code or when they execute a court order.
(5) At the confiscation of the objects the locality where they are found will be notified and they will be described and if necessary the certifying of their identity will be secured in another way. A receipt will be issued about the confiscated objects.
(6) The confiscated narcotic drugs, psychotropic substances, precursors and other objects for which the trade is forbidden or limited, which are not withhold as a samples for expertise, by the decision of the competent court, can be destroyed even before the absolute verdict.
(1)The investigative judge or the council by a decision can determine temporary securing of the objects and means which are related to the criminal act. The property and the means of the securing are under the supervision of the court. The temporary securing of objects or property is understood as temporary freezing, confiscation, holding funds, bank accounts and financial transaction or gains from the criminal acts.
(2)Apart from the objects under Article 203 of this law, the court can bring a decision for freezing the means, accounts and funds for which there is a ground for suspicion that they are gains from the criminal act.
(3)The measures for temporary securing of object or property can last until the end of the procedure.
(4)The temporary freezing of accounts can last until the end of the procedure, and its justification will be re-examined by ex officio every two months.
(5)The securing of the immovable property is done with encumbering a mortgage.
(6)The confiscation of the money fund is done by an order and is kept in safe, or is deposited on a special account without the right to be at someone’s disposal.
(7)The decision for freezing the financial transaction or bank account, the court delivers it to the bank or other financial institution.
(8)No one can call upon the bank secrecy in order to escape the execution of the court decision for temporary freezing, confiscation or holding of the means which are deposited in the bank.
The decision for temporary securing of objects and property is brought by the court on the request by the state, in cases prescribed by the international agreements ratified in accordance with the Constitution of the Republic of Macedonia.
(1)With the decision under Article 203-a of this law the following items can not be confiscated:
- The files or other documents of the state bodies by which an announcement would have mean violation of an official, state or military secrecy, until the competent body decides differently.
- The written documents addressed from the accused to the defence attorney and the persons under Article 219 paragraph (1) of this law, except in case when the accused voluntarily hands them over.
- The technical recordings which are in possession of the persons under Article 219 paragraph (1) of this law, and which were made for the facts for which they are released from the obligation to testify.
- The files, an abstract from the register and similar documents which are in possession of the persons under Article 219 and which were made for the facts for which they found out from the accused during their job execution.
- The files for the facts which were made by the journalists and their editors in means of media from the source of announcement and the information for which they found out during their job execution and which were used during arranging the means of media, which are in their possession or in the redaction where they are employed.
(2)The ban under paragraph (1) of this Article it’s not applicable:
- Towards the defender or the person released from the obligation to testify according to Article 219 paragraph (1) of this law, if there is a ground suspicion that they helped the accused one in committing the criminal act, or they provide him with help after the criminal act was committed or have acted upon concealment or
- If it is a matter of objects which must be confiscated according to the Criminal Code. (3)A ban for temporary confiscation of documents, objects and technical recordings under paragraph (1) of this Article, its not applied for the criminal acts regarding damaged
children and minors. The information kept in devices for automatic i.e. electronic processing of the information and media in which the information is being kept, which on their request must be submitted to the organs of the criminal procedure in clear and understandable form.
(1)The measures for temporary securing and confiscation of the objects or property, are determined by a decision of the court, the investigative judge during the investigation and after the pressing the criminal charges, the court council i.e. a judge.
(2)Upon the appeal of the decision of the investigative judge, the criminal council decides under Article 22 paragraph (6) of this law, and against the decision of the trial judge i.e. council, decides the immediate superior court.
(3)The objects which were confiscated opposed to this Article can not be used as evidence in the procedure.
(1)The state agencies may disallow showing or issuing records or other documents if they consider that the issuing of their contents would be harmful for the interests of the state. If the showing or issuing records or other documents is not allowed, the Chamber reaches the final decision (Article 22, paragraph 6).
(2) Legal persons may request the data which refer to their work not to be issued.
(1) If it is performed a temporary confiscation of records which may serve as evidence they will be registered. If it is not possible, the records will be wrapped in a case and will be sealed. The owner of the records may put his seal on the case.
(2) The person to whom the confiscated records belong will be invited to attend the opening of the case. If he does not reply on the invitation or is absent the case will be opened, the records will be checked and inventorized in his absence.
(3) During the checking of the records it must be secured that unauthorised persons would not have an access to their contents.
(1) The investigating judge may give an order to the legal persons in the field of post, telegraph and other traffic, with the receipt for the received to keep and to give to the investigating judge the letters, telegrams and other parcels addressed to the accused or which he addresses if there are circumstances according to which it could be expected that these parcels may serve as evidence in the procedure.
(2) The letters and other parcels are opened by the investigating judge in presence of two witnesses. While opening it will be considered the seals not to be damaged and the case and address will be kept. A minutes will be constructed for the opening.
(3) If the interest of the procedure allows, the contents of the parcel may be announced fully or partially to the accused i.e. the person to whom it is addressed and it may be handed over to him. If the accused is absent the parcel will be announced or given to some of his relatives and if not, it will be handed to the expediter if that does not inflict the interests of the procedure.
(1)The objects which during the procedure are temporarily confiscated will be returned to the owner i.e. holder if the procedure ceases and there are no reasons for their confiscation (Article 485).
(2)After the circumstance for confiscating, holding freezing is ceased, the investigative judge brings a decision for their freeing and giving back.
(3)The decision under paragraph (2) of this Article is immediately delivered to the competent financial or other institution.
3. Processing with suspicious objects Article 208
(1) If a strange object is found with the accused, and the person who owns it is not known, the body conducting the procedure will describe the object and the description will be announced on the board at the body of that municipality in which region the accused lives or the crime was committed. In the announcement, the owner of the object will be invited to reply within one year from the day of the announcement and if not, the object will be sold. The money from the sale of the object are contributed to the budget of the Republic of Macedonia.
(2) If they are objects of considerable value the announcement may be performed in the daily newspapers.
(3) If the object is liable to damaging or its keeping is connected with significant expenses, it will be sold according to provisions valid for the executing procedure and the money will be kept as a court deposit.
(4) According to the provision of paragraph 3 of this Article it will be proceeded in the same manner when the object belongs to an escaped person or to an unknown criminal.
(1) If within a year no one replies for the object or for the money gained from the sold object, a decision will be brought with which the object will become a state property i.e. the money to be contributed to the budget of the Republic of Macedonia.
(2) The owner of the object has a right through a dispute to request for the return of the object or of the money gained with the sale of the object. The obsolescence of this right runs since the day of the announcement .
PART TWO COURSE OF PROCEDURE
Chapter XVIII INVESTIGATING ACTS
4. Examination of the accused
(1) When the accused is questioned for the first time, he will be asked for his name, nickname if he has so, names of his parents, maiden name of his mother, his address, his date of birth, his nationality and citizenship, his occupation, his family status, type of education, has he served a military service, when and where, is he registered in the military register, if he was decorated, what is his property condition, if he has been where and why he was convicted, if he has or when he served the verdict, if there is a procedure for another crime against him, and if he is a minor who his legal representative is. The accused will be instructed that he is obliged to answer the summons and to announce each alternation of his address or intention to alter his residence immediately and he will be warned of the consequences if he does not act so. If the accused does not have permanent or temporary residence in Republic of Macedonia or when he is a foreigner, he will be acknowledged that is obliged within a period of eight days to determine an address or person in Republic of Macedonia for summoning of writs and decisions, and will be warned that in case the accused do not determine an address or a person for receiving the writs, the court will post the writ on the public court table and with the expiring of the term of eight days from the day of the posting, the summoning will be considered as completed.
(2) Afterwards the accused will be informed of his accusation and for the grounds of suspicion against him and he will be asked what he has to state in his defence and he will be informed that he is not obliged to speak for his defence nor answer the questions .
(3) The accused is examined orally. During the examination the accused may be allowed to use his own notes.
(4) During the examination the accused is to be allowed to continue his elaboration in order to clarify all circumstances which are impose on him and to state all facts which serve on behalf of his defence.
(5) When the accused has finished his statement, if necessary he will be asked questions in order the gaps to be supplemented and the oppositions or any unclearness in his statement to be eliminated .
(6) The examination must be conducted in the manner that the personality of the accused is fully respected.
(7) Against the accused must not be used force, threats or other similar means (Article 251, paragraph 2) in order to extort his statement or confession .
(8) The accused may be examined in absence of a counsel only if he has explicitly denied his right, and his defence is not compulsory or if within 24 hours from the moment he has been instructed of his right (Article 63, paragraph 2) he does not provide himself a counsel unless in case of a compulsory defence .
(9) If it has been proceeded contrary to the provisions of paragraphs 7 and 8 of this Article or if the statement of the accused under paragraph 8 of this Article for the presence of a counsel is not notified in the minutes, upon the statement of the accused a court decision cannot be based .
(1) The questions for the accused are to be set clearly and explicitly for him to understand them fully. In the examination, it must not be approached as if the accused has confessed something which he has not, nor any questions may be set in the way that the answers are already contained in them. Deceit must not be used against the accused in order to extort his statement or confession.
(2) If the latter statements of the accused differ from the former ones, especially if the accused revokes his confession, he will be asked to state his reasons for the different statements i.e. why he revokes his confession .
(1) The accused may be confronted with a witness or another accused if their statements disagree in respect of significant facts.
(2) The confronted accused will be examined separately for each circumstance in which their statements does not mutually agree and their answer will be included in the minutes.
The objects which are in connection with the crime or serve as evidence will be shown to the accused for recognition after he has previously described them. If these objects cannot be brought on the very place, the accused may be escorted to the place where they are.
(1) The statement of the accused is inserted in the minutes in a narrative form and the questions and answers will be inserted in the minutes only if it is necessary.
(2) It will be allowed the accused to pronounce his statement himself for the minutes.
The court is obliged apart from the confession of the accused to collect other evidence. If the confession is clear and completed with evidence, the further collection of evidence will be undertaken only on the proposal of the prosecutor.
(1) The examination of the accused will be performed by an assistance of an interpreter in cases proscribed in this Code.
(2) If the accused is deaf, he will receive his questions in writing, and if he is dumb, he will answer in writing. If the examination cannot be performed in this manner, a person who can communicate with the accused functioning as an interpreter will be called.
(3) If the interpreter is not under oath, he will take an oath that he will translate originally
and faithfully the questions directed to the accused and his statements.
(4) Provisions of this Code referring to the experts are accordingly applied to the interpreters .
PART TWO COURSE OF PROCEDURE
Chapter XVIII INVESTIGATING ACTS
5. Hearing of witnesses
(1) As witnesses are summoned the persons who are likely to make statements for the crime and criminal and for other important circumstances.
(2) The damaged, the damaged as a plaintiff and the private prosecutor may be heard as witnesses.
(3) Anyone summoned as a witness is obliged to answer the court summons, and if it is not proscribed differently with this Code, the person is obliged to act as a witness.
The following persons cannot be heard as witnesses:
1) the person who with the statement would violate his duty of keeping an official or military secret until his competent body releases him from his duty, and
2) the counsel of the accused for what he has been entrusted with by the accused as his counsel, unless the accused himself requires it.
(1) The following persons are released from their duty to be witnesses:
1) marital and illegitimate spouse of the accused;
2) blood relatives of the accused of first line, relatives of further line to the third degree as well as in- laws to the second degree;
3) an adopted child or parent who has adopted of the accused;
4) religious confessor to whom the accused or other persons has confessed;
5) a lawyer, physician, social worker, psychologist or other person for facts which they learned executing their duty in reference of their duty to keep it as a classified secret while executing their professional duties.
(2) The court which conducts the procedure is obliged to warn the persons that they need not be witnesses, i.e. persons mentioned in paragraph 1 of this Article before their hearing or as soon as it learns about their relationship to the accused. The warning and the answer are included in the minutes.
(3) Considering his age and mental development the minor who is not capable to understand the meaning of his right that he need not be a witness cannot be heard as a witness.
(4) The person who is allowed not to be a witness to one of the accused is released from his duty of witnessing to the other accused persons if his statement according to the nature of the circumstances cannot be limited only to the other accused.
If a person was heard as a witness but who could not have been heard as a witness (Article 218) or the person who need not be a witness (Article 219) and he was not warned or has not explicitly denied his right or if the warning and the denial are not notified in the minutes, or if a minor was heard who could have not understood the meaning of his right that he need not witness or if the statement of the witness is extorted by force, by threat or by other similar forbidden means (Article 251, paragraph 2), a court decision cannot be based upon the statements of the above mentioned witnesses .
The witness is not obliged to answer particular questions if he is likely to expose himself or his close relatives (Article 219, paragraph 1, items 1 to 3) to severe embarrassment, significant material damage or criminal prosecution .
(1) The summoning of the witness is performed by a delivery of a written court summons in which the following will be notified: the name and occupation of the summoned, time and place of arrival, criminal case upon which he is summoned, notification that he is summoned as a witness and warning on the consequences of his unjustified absence (Article 229).
(2) The summoning for witnessing of a minor who is not sixteen yet is performed by his parents i.e. authorised representatives, unless it is impossible due to the necessity to act urgently or due to other circumstances.
(3) The witnesses who due to their old age, illness or severe physical handicaps cannot answer the court summons may be examined in their home.
(1) Witnesses are heard separately and without the presence of other witnesses. They are obliged to answer orally.
(2) The witness will be previously warned that he is obliged to speak the truth and must not conceal anything and hereby he will be warned that giving false statements is crime. The witness will be warned that he is not obliged to answer the questions encompassed in Article 221 of this Code and the warning will be included in the minutes.
(3) Afterwards the witness will be asked about his name, father's name, occupation, residence, place of birth, age and his relationship to the accused and damaged. The witness will be warned that he is obliged to inform the court of his new address or residence.
(4) During examination of a minor, especially when damaged with a crime, it will be acted carefully so that the hearing does not inflict the psychical condition of the minor. If it is necessary, the hearing of the minor will be performed by an assistance of a pedagogue or another specialised person.
(5) If the court deems it necessary, in order to protect a juvenile individual, a victim of human trafficking, violence or sexual abuse, the examination shall be conducted in the absence of the parties, in a special room, where the child is going to be kept, whilst they will be able to ask questions through the investigative judge, pedagogue, psychologist or another competent person who is present in the same room, together with the victim. The court shall decide whether there will be an audio or video recording of the examination, which can be used later on during the proceedings as evidence, or it will be observed live, with the assistance of appropriate technical means of communication (video conference or another type of a video link or connection) .
(1) If there is any probability that by giving a statement or by answering a certain question, the witness, collaborator of justice or the victim i.e. the person who suffered some damage, would expose himself or herself or another closely related person to a serious threat to their life, health or physical integrity (endangered witness), the endangered witness may withhold his statement or the presentation of information as referred to in Article 223, paragraph (3) of this Law, until the necessary conditions for his or hers protection are provided for.
(2) The protection of the endangered witness, consists of a special method of examination and participation in the procedure regulated by this Law (Chapter XIX-a) and by application
of protective measures outside the procedure, regulated by another law.
(3) If the investigative judge believes that the threat apprehension, as referred to in paragraph (1) of this Article is well founded, he or she shall terminate the examination and will undertake urgent actions, pursuant to the provisions for protection of witnesses, collaborators of justice or victims, regulated by this Law.
(4) If the investigative judge believes that the request as referred to in paragraph (1) of this Article is unfounded, he or she shall act pursuant to Article 229 of this Law. (1)
(1) After the general questions, the witness is called to state everything familiar to him on the case, after which he will be asked questions in order the statements to be checked, supplemented and clarified. During the hearing of the witness it is not allowed to be used deceit, nor asking questions in which the answer is included.
(2) The witness will be always asked how he is familiar with the issues he is witnessing of.
(3) Witnesses may be confronted if their statements do not agree in respect of significant facts. The confronted witnesses will be examined separately for each circumstance for which their statement mutually disagree and their answer will be inserted in the minutes. Only two witnesses can be confronted at the same time.
(4) The damaged heard as a witness will be asked whether he chooses to realise his lawful property request in the criminal procedure.
If it is necessary to be certified whether the witness is familiar with the person or objects, first he will be asked to describe the signs in which he i.e. they are different from the other persons or objects, then he will be shown for recognition the suspect together with other persons not familiar to the witness i.e. the object, if possible together with objects of the same kind.
If the hearing of the witness is performed by an assistance of an interpreter or if he is deaf or dumb, his hearing is performed in the manner included in Article 216 of this Code.
It may be asked from the witness to take an oath. Before the trial the witness may take an oath only if there is a possibility that due to an illness or for other reasons he could not attend the trial. The reason for the oath is included in the minutes. The oath is taken in the manner proscribed in Article 317 of this Code.
The following persons must not take an oath:
1) who are not adults at the moment of the hearing; and
2) for whom it has been proved or there is a justified suspicion that they committed crime or participated in the crime for which they are heard.
(1) If the witness who was summoned does not come and does not justify his absence or without an approval or justified reason leaves the place where he is to be heard, it may be ordered the witness to be apprehended forcefully and he may be punished with a fine
penalty according to Article 74, paragraph 1 of this Code.
(2) If the witness comes and after he has been warned of the consequences without a lawful reason does not choose to witness, he may be punished with a fine penalty under Article 74, paragraph 1 of this Code and if he refuses to witness after the fine, will be punished with a fine under Article paragraph (3) of this law.
(3) On the appeal against the decision with which fine penalty is pronounced, the Chamber decides (Article 22, paragraph 6). The appeal against the decision does not keep from the execution of the decision.
(4) If an Army and police officers refuse to witness, their competent headquarters will be informed for this .
PART TWO COURSE OF PROCEDURE
Chapter XX,Protection of the Witness, Justice Collaborators and Victims
(1) Upon proposal by the public prosecutor, the court shall decide on the measures of procedural protection of the endangered witness. If the endangered witness has withheld the presentation of the information, as referred to in Article 223-a, paragraph (1) of this Law, without any delay, the investigative judge or the President of the trial chamber shall inform the public prosecutor and submit a report, with a request that in a period of three days, he or she submits a proposal with a written rationale, for the application of the special method of examination and participation in the procedure.
(2) If the public prosecutor does not submit a proposal for the special method of examination and participation in the procedure of the endangered witness within the deadline prescribed in paragraph (1) of this Article, the investigative judge or the President
of the trial chamber shall ask the trial chamber to adopt a decision about the special method of examination and participation (Article 22, paragraph 6). The trial chamber (Article 22, paragraph 6) shall be obliged to adopt the decision within 48 hours after the receipt of the request by the investigative judge or the President of the trial chamber.
(3) The public prosecutor shall deliver the proposal with a written rationale, for the application of the special method of examination and participation in the procedure, to the investigative judge or the President of the trial chamber in a sealed envelope marked as “endangered witness – confidential”. In the proposal itself, the public prosecutor shall elaborate on the special method of examination and participation by the endangered witness that are being proposed and the reasons herein.
(4) The public prosecutor may submit the proposal as referred to in paragraph (4) of this Article even before the initial examination of the endangered witness, or later on during the proceedings, but immediately after becoming aware about the existence of the threats to the endangered witness in respect of Article 223-a of this Law.
(5) The investigative judge, i.e. the President of the trial chamber shall decide relative to the public prosecutor’s proposal, by issuing a decision.
(6) The parties and the endangered witness shall have the right to appeal the decision as referred to in paragraph (5) of this Article to the Trial chamber (Article 22, paragraph 6), which shall make its own decision within a period of three days.
(1) The special method of examination may consist of concealing the identity and the appearance of the endangered witness.
(2) When the special method of examination and participation by the endangered witness relates only to concealing the information as referred to in Article 223-a, paragraph (1) of this Law, the concealment of the identity shall be provided for by examination of the endangered witness by using a pseudonym. In certain cases, especially if it is a person who participated in the application of special investigative measures, as referred to in Article 142-b of this Law, during the examination, the person may provide his or hers name and the address of the institution he or she is working for, but no additional personal data. In every other regard, the examination of the endangered witness shall be conducted pursuant to the general provisions for examination of witnesses of this Law.
(3) The concealment of the appearance of the endangered witness who is being examined under a pseudonym, shall be provided for by the use and application of special technical devices for transfer of audio and video pictures, where the appearance of the endangered witness and his or hers voice are modified and distorted. During the examination, the endangered witness is in a separate room, which is physically detached from the courtroom, which houses the investigative judge, i.e. the President of the trial chamber and other individuals who are present during the examination.
(4) Upon completion of the examination, the endangered witness shall sign the transcript under his or hers pseudonym, in the presence of the investigative judge only, or in the presence of the President of the trial chamber and the court secretary.
(5) Any person, under any competence, who has acquired knowledge about any data related to the endangered witness, shall be obliged to treat it as if it was classified information in accordance with the law.
The application of measures for protection outside the proceedings shall be done by inclusion in the Witness Protection Program, by applying the provisions regulated with a separate law .
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.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.