Taking of evidence - national proceedings

The former Yugoslav Republic of Macedonia

Macedonia - Criminal Procedure Code 2010 EN

2. Special investigative measures

Article 142-b
(1) The Court may order the application of special investigative measures, when there is a well founded suspicion that a criminal offence is under preparation, or a criminal offence is being committed or has been committed, if, for such criminal offence, the law prescribes a prison sentence of at least four years, as well as for criminal offences for which there is a well founded suspicion that they are being prepared, committed or they have been committed by an organized group, gang or another criminal enterprise, in order to provide information and evidence that are necessary for successful criminal prosecution, which can not be secured in any other manner, or if their procurement would cause greater difficulties:
1) Monitoring of communication and entrance in home or other premises or in means of transport for creating conditions for monitoring of communication, under conditions and procedure prescribed by the Law.
2) An insight and searching in the computer system, confiscation of computer system or part of it or the data -base for storing of the computer data’s.
3) Secret surveillance, monitoring and visual-sound recording of persons and objects with technical equipment.
4) Simulating purchase of objects, as well as simulating bribery and simulating acceptance of the bribe;
5) Controlled delivery and transport of persons and objects;
6) Using people with hidden identity for monitoring and collecting information or data;
7) Opening apparent (simulating) bank account, where founds which originate from the committed criminal deed can be deposited.
8) Registration of apparent (simulated) companies or usage of the existing companies for collecting data;
(2) In order to provide information and evidence that are necessary for successful criminal prosecution, which can not be secured in any other manner, or if their procurement would

cause greater difficulties, the court may also order the application of special investigative measures in relation to the following criminal offences stipulated in the Criminal Code:
- unauthorised production and trade in narcotic drugs, psychotropic substances and precursors, stipulated in Article 215;
- extortion, stipulated in Article 258;
- blackmail, stipulated in Article 259;
- laundering money and other proceeds of a crime, stipulated in Article 273; - smuggling, stipulated in Article 278;
- customs fraud, stipulated in Article 278-a;
- misuse of an official position and authority, stipulated in Article 353;
- embezzlement, stipulated in Article 354;
- fraud, stipulated in Article 355;
- stealing, stipulated in Article 356;
- acceptance of bribes, stipulated in Article 357;
- allowance of bribes, stipulated in Article 358;
- illegal intercession, stipulated in Article 359;
- unlawful influence on witnesses, stipulated in Article 368-a;
- membership in a criminal enterprise, stipulated in Article 394;
- membership in a terrorist organization, stipulated in Article 394-a;
- terrorism, stipulated in Article 394-b;
- crimes against the state (Chapter XXVIII); and
- crimes against humanity and international law (Chapter XXXIV) of this law,
as well as in relation to criminal offences committed through means of electronic communication.
(3) In case when the knowledge for the identity of the perpetrator is not at disposal, special investigative measures under paragraph (1) of this Article can be prescribed towards the object of the criminal act.
(4) When the special investigative measures under paragraph (1) line 4), 6), 7), and 8) of this Article are being undertaken, no criminal act should be impelled.
(5) Against the person which undertakes the necessary investigative measures under paragraph (1) points 4), 6), 7), and 8) of this Article, the criminal prosecution will not be undertaken for the actions which are considered to be abetting the criminal act, and are committed for execution of the goal under paragraph (1) of this Article and are in accordance with the provisions of this Law .

1. Search of residence and person

Article 198
(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.

Article 199
(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.

Article 200
(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.

Article 201
(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.

Article 202
(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

Article 203
(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.

Article 203-a
(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.

Article 203-b
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.

Article 203-c
(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.

Article 203-d
(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.

Article 204
(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.

Article 205
(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.

Article 206
(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.

Article 207
(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.

Article 209
(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 .

Chapter XXXII

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.

Rome Statute

Article 93 Other forms of cooperation

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:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;