CODE OF CRIMINAL PROCEDURE

CODE OF CRIMINAL PROCEDURE

PART ONE

GENERAL PROVISIONS

Chapter I

BASIC PRINCIPLES

Article 1

(1) This Code establishes the rules with which it is ensured that an innocent person is not convicted and the guilty person is pronounced a criminal sanction under the conditions which are proscribed by the Criminal Code and on the basis of a legally enforced procedure.

(2) Before pronouncing a final legally valid verdict, the rights and freedoms of the accused and of other persons may be limited only to a necessary extent and under conditions proscribed by this Code.

Article 2

(1) Everyone charged with a criminal offence will be presumed innocent until proved guilty by a legally valid verdict.

(2) The existence or not existence of facts which compose the characteristics of crime or upon which the implementation of a certain provision of the Criminal Code depends, is confirmed by the court in a favourable manner for the accused.

Article 3

(1) Anyone who is summoned, apprehended or arrested, must immediately be informed, in the language which he understands, of the reasons for his summoning, apprehension or arrest and of any charge against him, as well as about his rights and that he cannot be compelled to make a statement.

(2) The suspect, i.e. the charged must at first and clearly be instructed on his right to remain silent; his right to consult and to have a counsel of his own choosing present at the questioning, as well as his right that a member of his family or a relative to be informed of his apprehension or arrest.

(3) The arrested person must immediately or at the most 24 hours from his arrest be brought before court, where the court without any delay will decide on the legality of his arrest.

Article 4

(1) Everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time and before a competent, independent and impartial tribunal, established by law.

(2) Every accused has the following minimum rights:

- to be informed immediately and in detail, in a language which he understands, of the crime he is imposed on and the evidence against him;

- to have adequate time and facilities for the preparation of his defence and to communicate with a counsel of his own choosing;

- to be tried in his presence and to defend himself in person or by legal assistance of his own choosing and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

- not to be compelled to testify against himself or his relatives or to confess guilt;

- to be present during the examination of the witnesses and to be able to ask questions himself.

Article 5

No one shall be liable to be tried or punished again for an offence for which he has already been tried and a final legally valid verdict has already been brought.

Article 6

The official language in the criminal procedure is the Macedonian language and its Cyrillic alphabet.

Article 7

(1) A representative of the minorities- citizen of the Republic of Macedonia in the court procedure has the right to use the language of his nationality and his alphabet. The court provides the person a free assistance of an interpreter.

(2) Other parties, witnesses and participants in the court procedure have the right to a free assistance of an interpreter if they do not understand or speak the language in which the procedure is performed.

(3) The person will be instructed of his right to an interpreter. It will be notified in the record both about the given instruction and the statement of the person.

(4) The interpretation is conducted by a legal interpreter.

Article 8

(1) Charges (prosecution acts, prosecution proposals, and private charges), appeals and other petition requests are directed to the court in the official language.

(2) A representative of the minorities, citizen of the Republic of Macedonia has the right to direct the petition requests to the court in the language and alphabet of his or her nationality. In such an instance, the court translates the petition requests and so translated delivers them to the other parties in the procedure.

(3) Everyone who does not speak or understand the Macedonian language and its Cyrillic alphabet may direct the petition requests to the court in his or her language and alphabet. In such instances, the court proceeds according to paragraph 2 of this Article.

(4) An arrested foreign citizen has the right to direct his petition request in his native language to the court, and in other cases- under the condition of reciprocity.

Article 9

(1) Court summons, decisions and other writs are directed by the court in the official language.

(2) To the representative of the minorities, citizen of the Republic of Macedonia the court summons which will be delivered to him or her will be written both in Macedonian language and Cyrillic alphabet and also in the language and alphabet of his or her nationality.

(3) To the accused, representative of the minorities, citizen of the Republic of Macedonia, the writs will be delivered in the language which he or she used in the procedure.

Article 10

It is forbidden and punishable to extract a confession i.e. a statement from the accused or from other persons who have participated in the procedure.

Article 11

A person illegally arrested, detained or illegally convicted has a right to compensation for damage from the budget, has a right to be rehabilitated and has other rights established by law.

Article 12

If the accused or other persons who participates in the procedure and who ignorantly misses any act of the procedure, therefore not using his or her rights, he or she will be instructed by the court on his or her rights which he or she can lawfully exercise and on the consequences of not using the acts.

Article 13

The court is obliged to attempt the procedure to be enforced without delay.

Article 14

(1) The court and the state bodies participating in the criminal procedure are bound truly and fully to establish facts which are important for bringing the legal decision.

(2) The court and the state bodies are obliged with equal attention to investigate and establish both facts on behalf of the accused and facts against him.

Article 15

(1) The right of the court and state bodies which participate in the criminal procedure to evaluate existence or not existence of facts is not bound nor limited by any special formal rules of evidence.

(2) Evidence illegally obtained or obtained by violation of freedoms and rights established by the Constitution, the Code and ratified international treaties, as well as evidence derived from them cannot be used and a court decision cannot be based on them.

Article 16

(1) Criminal procedure is brought on request of an authorised prosecutor.

(2) The authorised prosecutor is the public prosecutor for crimes prosecuted ex officio or on the request of a damaged person and the private prosecutor is the authorised prosecutor for crimes prosecuted on private charges.

(3) If the public prosecutor finds no basis for initiation or continuing criminal procedure, the damaged may stand instead as a plaintiff under conditions establish by this Code.

Article 17

The public prosecutor is obliged to initiate a criminal investigation if there are evidence that a crime is committed which is initiated ex officio.

Article 18

(1) In the criminal procedure the courts prosecute within a Chamber.

(2) In elementary courts an individual judge judges for lesser crimes.

Article 19

When it is proscribed that the initiation of criminal procedure has its consequences in certain rights limitation, if it is not differently legally determined, these consequences are in effect with enforcement of the prosecution act, and for crimes for which a fine penalty is proscribed or a sentence to three years from the day when the verdict is pronounced, regardless whether it is legally valid.

Article 20

(1) If the provisions of the Criminal Code implementation depends on a previous decision on a certain judicial issue for which a court in some other procedure or some other state body is competent, the court in the criminal case may itself decide on that issue according to provisions for substantiating in the criminal procedure. The decision on the judicial issue by the criminal court is legally valid only for the criminal case which is being prosecuted by this court.

(2) If on such a previous issue the court or some other state body has already decided in another procedure, this decision does not bind the criminal court in regard of the evaluation whether a certain criminal crime has been committed.

Chapter II

COMPETENCE OF COURTS

1. Actual competence and composition of the court

Article 21

Courts in criminal cases judge in the limits of their actual competence determined by law.

Article 22

(1) In courts of first degree it is judged in Chambers consisted of two judges and three lay judges for crimes for which by law it is proscribed a sentence to a fifteen- year prison term or a sentence to life imprisonment, and in Chambers consisted of one judge and two lay judges- for crimes for which by law it is proscribed a mitigated sentence. For crimes for which as a sentence it is proscribed a fine penalty or a sentence to a three- year prison term, an individual judge judges in the court of first degree.

(2) In second degree courts it is judged in Chambers consisted of five judges for crimes for which by law it is proscribed a sentence to a fifteen- year prison term or a sentence to life imprisonment, and in Chambers consisted of three judges- for crimes for which a mitigated sentence is proscribed. When the Chamber judges in the second degree during a court proceeding, it is consisted of two judges and three lay judges.

(3) Chambers consisted of five judges judge in the third degree court.

(4) Investigation is performed by a judge from the first degree court (investigating judge).

(5) The Court President and the Chamber Chairman decide on cases anticipated by this Code.

(6) First degree courts organised in a Chamber consisted of three judges decide on appeals against investigating judge's decisions and against other decisions when it is determined by the Code, make decisions of first degree out of the trial, conduct a procedure, bring a verdict according to the provisions of Article 508, paragraphs 2 to 6 of this Code and make proposals in cases anticipated in this or another Code.

(7) On the request for extraordinary mitigation of a sentence and on the request for extraordinary reinvestigation of a final legally valid sentence, the court decides in a Chamber consisted of five judges if it refers to a crime for which by law a life imprisonment sentence is proscribed, and in a Chamber consisted of three judges- if it refers to crime for which a lesser sentence is proscribed.

(8) On the request for protection of legality the court decides in a Chamber consisted of five judges and if the request is against the decision of the Supreme Court of the Republic of Macedonia, on this request the Supreme Court of the Republic of Macedonia decides on a general session.

(9) If with this Code it is not determined differently, courts of higher degree decide in a Chamber consisted of three judges on cases which are not anticipated with the previous paragraphs of this Article.

2. Local competence

Article 23

(1) In general locally competent is the court on which region a crime has been committed or attempted to be committed.

(2) A private charge may also be submitted to the court on which region the accused has his permanent or temporary residence.

(3) If the crime is committed or attempted on different court regions or on the borders of these regions or it is uncertain on which region it is committed or attempted, the court where the request of the authorised prosecutor has first initiated the procedure is competent, and if the procedure has not yet been initiated- the court where the request for a procedure has first been submitted.

Article 24

If a crime is committed on domestic ship or on domestic aircraft while it is on domestic port, the court in which region the port is located is competent. In other cases when a crime is committed on domestic ship or on domestic aircraft, it is that court which is competent in which region the home port of the ship, i.e. aircraft is or in the domestic port in which the ship i.e. aircraft has first arrived.

Article 25

(1) If a crime is committed by the press, it is the court in which region the article is printed that is competent. If the locality is not known, or if the article is printed in a foreign country, it is the court in which region the printed article is distributed that is competent.

(2) If according to the Code, the author of the article is responsible, it is the court in which region the author resides that is competent, or the court in which region the event described in the article took place that is competent.

(3) Provisions of previous paragraphs will accordingly be implemented if the article or the statement is announced by radio or television.

Article 26

(1) If the crime locality is not known or it is out of the territory of the Republic of Macedonia, then the court in which region the accused has his or her permanent or temporary residence is competent.

(2) If the court, in which region the accused has his or her permanent or temporary residence that has initiated the procedure, continues to be competent despite the fact that the crime locality has been revealed.

(3) If the crime locality is not known nor is the permanent or temporary residence of the accused or both of them are out of the territory of the Republic of Macedonia, then the court in which region the accused will be caught or will turn himself in is competent.

Article 27

If a person has committed crimes both in the Republic of Macedonia and abroad, then the court of the Republic of Macedonia is competent.

Article 28

If according to the provisions of the Code it cannot be established which court is locally competent, then the Supreme Court of the Republic of Macedonia is authorised to appoint one of the competent courts before which the procedure will be conducted.

3. Joining and separating of the procedure

Article 29

(1) If one has been accused of several crimes, it is the court where on the request of the authorised prosecutor the procedure has first been initiated, that is competent and if the procedure has not yet been initiated- the court where the request for a procedure has first been initiated.

(2) According to provisions of paragraph 1 of this Article the competence is also distinguished in cases when the damaged has simultaneously committed crime against the accused.

(3) The court which has first initiated the procedure for one of the collaborators is competent for all collaborators.

(4) The court competent for the person who has committed crime is also competent for the collaborators, persons who have hidden the crime, ones who have helped the person to commit the crime, as well as ones who have not denounced the criminal, the crime preparation and the crime committing.

(5) In all cases of paragraphs 1, 2, 3 and 4 of this Article, by regulation a unique procedure will be initiated and a unique verdict will be brought.

(6) On the proposal of the public prosecutor, the court may decide to initiate a unique procedure and bring a unique verdict even in cases when there are several accused persons for a number of crimes, but only if there is a mutual relationship among the committed crimes and the same evidence.

(7) The court may decide to conduct a unique procedure and to bring a unique verdict if before one court deferent procedures are engaged against one person for several crimes and against several persons for the same crime.

(8) For procedure joining decides the court which is competent for the unique procedure. A special appeal against the decision is not allowed which refers to the procedure joining or when the joining proposal is refused.

Article 30

(1) The competent court under Article 29 of this Code may decide the procedure for separate crimes or against different accused to be separated and finished separately or to be directed to another competent court if there are important reasons or reasons for completion until the finishing of the trial.

(2) The procedure separating decision is brought by a competent court after the hearing of the public prosecutor when the criminal procedure is engaged on his request.

(3) A special appeal is not allowed against a procedure separating decision or against a refused separating proposal for the procedure.

4. Transferring local competence

Article 31

(1) If the competent court is prevented to proceed for lawful or real reasons, it is obliged to inform the immediate superior court, which after the hearing of the public prosecutor, when the procedure is conducted on the request of the public prosecutor will appoint another competent court on its region.

(2) A special appeal against this decision is not allowed.

Article 32

(1) For this procedure, the immediate superior court may establish another competent court on its region if it is obvious that the procedure will be conducted with less complication or if there are other important reasons.

(2) The court may bring the decision on reference of paragraph 1 of this Article on the proposal of the investigating judge, the individual judge or the Chairman of the Chamber, or on the proposal of the public prosecutor who proceeds before the court which decides on local competence transferring when the criminal procedure is on the request of the public prosecutor.

5. Consequences of competence and competence encounter

Article 33

(1) The court has a duty to consider its competence and when it has concluded that it is not competent, the court will be announced to be incompetent and according to the final legally valid decision it will direct the case to the competent court.

(2) After prosecution act has been enforced, the court cannot be announced to be locally incompetent, nor can the parties object to its local incompetence.

(3) The incompetent court is obliged to take over the acts in the procedure when there is a danger of cancelling.

Article 34

(1) If the court to which the case has been directed as competent considers that the court which directed the case to itself or some other court is competent, it will initiate a procedure for resolving the competence encounter.

(2) When on the appeal against the decision of first degree court according to which it was announced incompetent and second degree court has made the decision, in reference of the competence, the court to which the case has been directed is bound to that decision if the second degree court is competent to resolve the competence encounter between these courts.

Article 35

(1) The competence encounter between courts is decided by the mutual immediate superior court.

(2) Before resolving competence encounter, the court will ask for an opinion from the public prosecutor, who is competent before that court, when the criminal procedure is conducted on the request of the public prosecutor. A special appeal against this decision is not allowed.

(3) While resolving competence encounter, the court may simultaneously ex officio bring a decision on transferring local competence, if the conditions under Article 32 of this Code are fulfilled.

(4) Until the competence encounter between courts is resolved, each court is obliged to take over the acts in the procedure when there is a danger of cancelling.

Chapter III

EXCLUSION

Article 36

A judge or a lay judge must not exercise his obligations:

1) if he is damaged with a crime;

2) if the accused, his counsel, prosecutor, damaged, his defence attorney or authorised representative is his marital i.e. illegitimate spouse or a blood relative according to law to whichever degree of kinship, a distant relative to the fourth degree and an in- law to the second degree;

3) if with the accused, his counsel, prosecutor or with the damaged is in the relationship of a guardian, a person under guardianship, one who adopts, an adopted child, one who fosters or a foster child;

4) if in the same criminal case he was investigating or he participated in the examination of the accusation before the trial or participated in the procedure as a prosecutor, counsel, defence attorney or authorised representative for the damaged i.e. the plaintiff or was at the hearing as a witness or as an expert;

5) if in the same case he participates in the decision bringing of the lower court or if in the same court he participated in the decision bringing which is cancelled with an appeal;

6) if there are circumstances which provoke suspicion on his impartiality.

Article 37

(1) When he realises existence of reasons for exclusion under Article 36, paragraphs 1 and 5 of this Code, the judge or lay judge is obliged to interrupt any activity on that case and to inform the President of the court on that, who will provide him a substitute. If there is an exclusion of the President of the court, he will provide himself a substitute among judges of that court, and if it is not possible, he will address to the President of the immediate superior court to provide him a substitute.

(2) If the judge or lay judge considers that there are other circumstances for his exclusion (Article 36, paragraph 6), he will inform the President of the court of that issue.

Article 38

(1) Parties can demand exclusion.

(2) Parties may submit a request for exclusion until the beginning of the trial and if of the reasons for exclusion they are informed later, they submit the request for exclusion immediately after they have been informed.

(3) Exclusion of a judge of the superior court can be demanded by the party in a form of an appeal or a reply to the appeal.

(4) The party can demand exclusion only of an individual judge or a lay judge, who proceeds the case i.e. a judge from the superior court.

(5) The party is obliged to cite the circumstances in its demand according to which it considers that there is a lawful ground for exclusion. In the demand, the reasons for the previous exclusion demand, which was refused, cannot be cited again.

Article 39

(1) The President of the court decides on the exclusion demand under Article 38 of this Code.

(2) If there is an exclusion demand only for the President of the court, or for the President of the court and the judge or the lay judge, the exclusion decision is brought by the President of the immediate superior court, and if there is an exclusion demand for the President of the Supreme Court of the Republic of Macedonia, the exclusion decision is reached on a general session of that court.

(3) Before bringing the exclusion decision it will be provided a statement from the judge, lay judge i.e. President of the court and if necessary other acts will be performed.

(4) A special appeal against the decision on the approval of the exclusion demand is not allowed. A special appeal can refute the decision with which the exclusion demand is refused and if such a decision is brought after the reopened charge, then it can be refuted only by an appeal to the verdict.

(5) If the exclusion demand under Article 36, paragraph 6 of the Code is initiated after the beginning of the trial and if it was proceeded against the provisions of Article 38, paragraphs 4 and 5 of this Code, the demand will be fully i.e. partially refused. A special appeal against the decision, with which the demand is refused is not allowed. The decision with which the demand is refused is brought by the President of the court, and on the trial- by the Chamber. The judge, whose exclusion is demanded may participate in the decision bringing.

Article 40

When a judge, or lay judge learns of his exclusion demand, he is obliged to interrupt his work on the case immediately, and if his exclusion is under Article 36, paragraph 6 of this Code, until the decision bringing of the demand, he may take over only those acts for which there is the danger of cancelling.

Article 41

(1) The exclusion provisions for judges and lay judges will be accordingly implemented on public prosecutors and persons, which according to the public prosecution law are authorised to present the public prosecutor in the procedure, the court clerks, interpreters and specialised persons, as well as experts, if nothing else has been defined for them (Article 236).

(2) The public prosecutor decides on exclusion of persons, who on the ground of public prosecution law are authorised to present him in the criminal procedure. The immediate superior public prosecutor decides on exclusion of a public prosecutor. The Board of secretaries of the Public Prosecution of the Republic of Macedonia decides on exclusion of the public prosecutor of the Republic of Macedonia.

(3) The Chamber, the Chairman of the Chamber or the judge decides on exclusion of court clerks, interpreters, specialised persons and experts.

(4) When authorised officials from the Ministry of Internal Affairs take over investigations on the ground of this Code, the investigating judge decides on their exclusion. If a court clerk participates in taking over the acts, the official who takes over the act decides on his exclusion.

Chapter IV

PUBLIC PROSECUTOR

Article 42

(1) The public prosecutor's general right and duty is to prosecute criminals.

(2) Of crimes which are prosecuted ex officio, the public prosecutor is competent:

1) to take necessary measures in relation of revelation of crimes and criminals and to direct the preliminary procedure;

2) to demand investigation;

3) to enforce and present the prosecution act i.e. prosecution proposal before the competent court;

4) to appeal against court decisions which are not final and to propose extraordinary remedies against final court decisions.

(3) The public prosecutor conducts other activities determined by this Code.

Article 43

The local competence of the public prosecutor is determined by provisions valid for the court competence on that region to which the prosecutor is appointed.

Article 44

When there is a danger of cancelling, the procedure acts will be taken over by an incompetent public prosecutor on that region, but he must immediately inform the appointed competent public prosecutor.

Article 45

The public prosecutor takes over every procedure act to which he is authorised according to the Code, individually or by assistance of other persons, who on the grounds of the public prosecution code are authorised to present him in the criminal procedure.