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
1. Criminal charge and authorization of the organs in the pre-investigative procedure
(7) The invited person can be brought by force only with courts approval in case when he apparently avoids to report due to the received written invitation in which he is acknowledged of the possibility of forceful apprehension and in case when he would not justify his absence. The person which have showed up upon the written invitation, or was brought by force but have refused to give statement, can not be called upon for the same reasons.
(8) The person which is called or brought by force will be acknowledged for his rights under the Article 3 of this Law, but also for the circumstance that he is not being apprehended and that ones he gives or refuse to give the statement, can leave .
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 .
PART TWO COURSE OF PROCEDURE
Chapter XVII MEASURES FOR SECURING PRESENCE OF THE ACCUSED AND FOR SUCCESSFUL PERFORMANCE OF THE CRIMINAL PROCEDURE
(1) The order for apprehension of the accused one can be issued by the court if there is an existence of the grounds for pre-trial custody under article 184 of this law, if the decision for the pre-trial custody is already brought or if the accused one who was correctly summoned does not come, and if he does not justify his absence or if was not possible to complete the correct delivering of the summon, and from the circumstances it is obvious that the accused one avoids the reception of the summon.
(2) The order for apprehension is carried out by the Ministry of Internal Affairs.
(3) The order for apprehension is issued in writing. The order has to contain: the name of the accused who is to be apprehended, the title of the imposed crime with the notification of the provision of the Criminal Code, the reasons for ordering apprehension, an official seal and signature of the judge who is ordering the apprehension.
(4) The person entrusted with the order hands in the order to the accused and asks him to follow him. If the accused refuses it, he will apprehend him forcefully.
(5) Against army officials, police officials or security officials of an institution for persons deprived from their freedom, an order for apprehension will not be issued but from their headquarters i.e. institution it will be demanded the person to be apprehended .
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 .
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 .
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 .
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. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
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:
(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.
1. Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process.