Strasbourg, 1 February 2006

CCJE/REP(2006)1
English only

Consultative Council of European Judges (CCJE)

Questionnaire on “ The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism”: reply submitted by the delegation of “The former Yugoslav Republic of Macedonia”

A/ AVAILABILITY OF INFORMATION AND DOCUMENTATION ON ALL INTERNATIONAL LEGAL INSTRUMENTS RELEVANT TO JUDICIAL ACTIVITIES

A.1. DOES YOUR COUNTRY HAVE SCHEMES TO PROVIDE JUDGES WITH INTIAL AND IN-SERVICE TRAINING IN INTERNATIONAL AND EUROPIAN LAW?IF IT DOES, PLEASE PROVIDE A LIST OF THESE SCHEMES DISTINGUISHING BETWEEN INITIAL AND IN-SERVICE TRAINING AND THE TOTAL OF NUMBER OF JUDGES IN YOUR COUNTRY

TRAINING OF JUDGES ON EUROPIAN AND INTERNATIONAL LAW

In the Republic of Macedonia there is no system of initial training for judges and public prosecutors. However, there is a system of continuing education of the judges and the prosecutors, executed by the Centre for Continuing Education (CCE).

Introduction of a system of initial training of candidates for judges and public prosecutors is envisaged as a priority in the Judicial Reform Strategy, hereby the Centre for Continuing Education will grow into a public institution – School for Education of Judges, Public Prosecutors and other employees in the courts and the Public Prosecutor’s Office.

The judges’ continued education is conducted by the Centre for Continuous Education (CCE) established in May 1999 within the Judges Association of the Republic of Macedonia, (MJA) as a follow-up to the Education Committee, primarily focused on the continuous education and professional training of judges, expert associates and court administration.

Lecturers at the seminars and counselling sessions organised by the Centre for Continuous Education are domestic and foreign experts. Lecturers from the Republic of Macedonia include judges of the Supreme Court and appellate courts. Foreign lecturers are primarily Council of Europe experts.

The CCE of the MJA, during the period of 2004 operated according to the Framework Curriculum for 2004. The Framework Curriculum is systemized according two basic criteria: target groups and the legal areas.

In that context, with the act of signing and ratification of the Agreement for Association and Stabilization between the Republic of Macedonia and the European Union, CCE/MJA dedicated greater attention in creation and implementation of particular training module for the education on the European Union Law.

Regarding the the Regional Cooperation initiated with the Embassy of the Republic of France and the National School for Training of Judges and Public Prosecutors of France in 2000, during year 2003 in cooperation with the Agency for International Judicial Cooperation – ACOJURIS and the abovementioned institutions, the cooperation continued in realization of the Regional Project, entitled as: “Training of Judges from the South-eastern Europe”, described in details in the CCE’s Annual Report for 2003. The project’s fourth conference, took place in Sofia, from 22nd until 26th of March, on: Harmonization of the training Curriculums.

During this period, the public prosecutors and the deputy public prosecutors were involved in all CCE training activities related to the criminal law. This is in regard with the implementation of the European Commission’s recommendations and the determination of the CCE to be transformed into National Center for professional improvement of judges and public prosecutors and other judiciary personnel.

Following is the outline of the workshops and seminars organized directly by the Center for Continuing Education of the MJA, as well as those organized by other associations and institutions, in which the Center took part and provided participation of judges,on the themes related to Europian and International law, within the period of December 15th 2003 – December 15th 2004, the topics, date, place and number of participants.

One Regional Round Table, twenty four workshops, with a total of 910 participants, out of which 567 judges, 138 legal assistants, 66 participants from the Office of the Public Prosecution and 139 guests, were organized in this period.

Overview for the organized seminars and workshops follows:

Regional Round Table on: “Future Institutional Development of the Center for Continuing Education of the MJA and its upgrading into a National Institution Responsible for Training of Judges, Prosecutors, and Other Employees within the Judiciary”, organized under the auspice of the Ministry of Justice of the Republic of Macedonia, Republic Judicial Council and the Supreme Court of the Republic of Macedonia, with the financial support of the OSCE Spillover Monitor Mission to Skopje and Court Budget Council, with 58 participants, out of whom 17 judges.

Workshops organized directly by the CCE of the MJA and in cooperation with other organizations:
“Alternative Dispute Resolution”, three workshop organized in cooperation with the British Association for Central and Eastern Europe and the Bar Association of the Republic of Macedonia, with 89 participants, out of whom 50 judges and 4 law clerks
“International and Domestic Obligations regarding Treatment of Detainees and Prisoners”, seminar organized in cooperation with the Organization for Security and Cooperation in Europe (OSCE) Spillover Monitor Mission to Skopje, with total of 87 participants, out of whom 33 judges and 24 public prosecutors .
“Trafficking in Human Beings – Implementation of the SPTF Regional Anti-Trafficking Training Module for Judges and Prosecutors”, four workshops in cooperation with the Rule of Law Unit, of the OSCE Spillover Monitor Mission to Skopje and the Stability Pact Task Forces for the fight against the trafficking in human beings, with the total of 76 participants, out of whom 27 judges, 19 from PPO (Public Prosecutor Office) and 17 law clerks
“Introduction into the European integrations and the basic principles of the European Law”, one workshop in cooperation with the Sector for European integration of the Government of Republic of Macedonia and the Macedonian Center for European Education, with the financial support of the German Association for Technical Support (GTZ), with total of 24 participants, out of whom 2 participants from the PPO, 19 law clerks.
“Application of selected articles of the European Convention on Human Rights”, one workshop in cooperation with the Council of Europe, with a total of 35 participants, out of whom 17 judges, 2 law clerks,15 participants from the PPO.
“International judicial cooperation in civil and commercial matters”, one workshop in cooperation with European Center for Judges and Lawyers in Luxembourg – European Institute for Public Administration in Mastricht, with the financial support of the Ministry of Foreign Affairs of Luxembourg, with a total of 36 participants, out of whom27 judges,1 from PPO.
“Social and Labour Law of the European Union”, one workshop in cooperation with European Center for Judges and Lawyers in Luxembourg – European Institute for Public Administration in Mastricht, with the financial support of the Ministry of Foreign Affairs of Luxembourg, with a total of 18 participants, out of whom 15 judges, 2 law clerks.
“Judicial cooperation in Criminal Matters”, one workshop in cooperation with European Center for Judges and lawyers in Luxembourg – European Institute for public administration in Mastricht, with the financial support of the Ministry of Foreign Affairs of Luxembourg, with a total of 23 participants, out of whom 14 judges,2 law clerks,5 participants from the PPO.

Workshops and seminars organized by other associations and institutions, where the Center for Continuing Education participated and provided participation of 113 judges and 27 law clerks:

“Discussion on the new Draft Law on Trade Companies”, four Round Tables in cooperation with the Corporate Governance and Commercial Law Project of the American Agency for International Development – USAID and the “Project for Technical Assistance in Drafting Commercial Legislation”, funded by the European Union, managed by the European Agency for Reconstruction, with a total of 17 participants, out of whom 15 judges and 2 law clerks.
“The Possibilities of Plea Bargaining under the Macedonian Criminal Justice System and the Alternative Sanctions of the Criminal Code of the Republic of Macedonia”, two workshops in cooperation with the Association of Public Prosecutors of the Republic of Macedonia, with a total of 30 participants - judges.
“Organized Crime”, one workshop in cooperation with the USA Embassy in the Republic of Macedonia – The USA Ministry of Justice’s Overseas Program for Development, Assistance and Training (OPDAT), with a total of 6 participants judges.
“Trafficking in Human Beings”, two workshops in cooperation with the USA Embassy in the Republic of Macedonia – The USA Ministry of Justice’s Overseas Program for Development, Assistance and Training (OPDAT), with a total of 22 participants, out of whom 6 judges and 16 law clerks.
“Tax Crime”, two workshops in cooperation with the American Agency for International Development (USAID), held in the Parliamentarian Club, Skopje, with a total of 19 judges:
Investigating and Prosecuting Sex Crimes”, one workshop in cooperation with the USA Embassy in the Republic of Macedonia – The USA Ministry of Justice’s Overseas Program for Development, Assistance and Training (OPDAT), with a total of 8 participants law clerks.
“Criminal Investigations related to Weapons of Mass Destruction”, one workshop in cooperation with the USA Embassy in the Republic of Macedonia – The USA Ministry of Justice’s Overseas Program for Development, Assistance and Training (OPDAT), with 3 judges participants.
“The Possibilities for Utilizing Plea Bargaining/Alternative Disputes resolution tools for efficient case management by the public prosecutors and judges”, one workshop in cooperation with the USA Embassy in the Republic of Macedonia – The USA Ministry of Justice’s Overseas Program for Development, Assistance and Training (OPDAT), 17 judges, 1 law clerk .
“Investigating and Prosecuting Organized Crime Cases”, one workshop in cooperation with the USA Embassy in the Republic of Macedonia – The USA Ministry of Justice’s Overseas Program for Development, Assistance and Training (OPDAT)- 2 judges.
“Case Management Training on Trafficking in Human Beings and Illegal migration”, one workshop in cooperation with the IOM, funded by the Norwegian Government,8 judges
“The fight Against the Organized Crime via Crime Proceeds”, one workshop in cooperation with the Money-laundering Prevention Directory and the Council of Europe, 7 judges.

The Framework program for education for 2005, regarding the area of European – international law, foresaw holding of two seminars for further elaboration of separate articles of the European Convention for Human Rights an its Protocols, as well as the case law of the Court in Strasbourg; the European Convention on Extradition and transfer of convicted persons (according to the suggestions of the judges); Educational module on the European Union Law, the structure and the institutions of the EU and the process and mechanisms for decision-making and legal resources – training through the EU CARDS 2001 Program; Procedure of execution of punishments in the European Union (according to the suggestions of the judges); Protection of the human rights and freedoms through legal instruments and mechanisms of the EU and the Council of Europe; Introduction with the structure, jurisdiction and organization of the international courts – the European Court of Justice, the European Court of Human Rights, the Hague Tribunal, and the International Criminal Court, as well as the international judicial cooperation in civil and criminal matters.

Out of all abovementioned seminars, that were planned, in the first six months of 2005, the following ones were held:

“The Role of National Judges and Public Prosecutors in the European Area of Justice, Freedom and Security”, seminar in cooperation and with financial support of the European Centre for Judges and Lawyers in Luxembourg – European Institute for Public Administration in Maastricht, with 18 participants (12 judges and 6 legal assistants)
“The Procedure on extradition of detained and convicted persons and transfer of convicted persons”, seminar in cooperation and with financial support of the OSCE Spillover Monitor Mission in Skopje, with 30 participants (18 judges, 7 representatives from the public prosecution offices and 5 legal assistants)
“Trafficking in Human Beings and Illegal Migration”, in cooperation with IOM, with 11 participants (judges).
In cooperation with the Embassy of the USA in the Republic of Macedonia, the Program of the Ministry of Justice of the USA for assistance and development of the prosecution offices (OPDAT), 4 seminars were held, with a total of 18 judges and 10 legal assistants, on these subjects: Conducting investigations of criminal acts related to use of weapons for mass destruction; Money laundering; Liability of legal entities according to the new criminal legislation and Revealing and prosecuting criminal acts of sexual violence.
In the frames of the Regional Project for development of reliable and functional judicial systems CARDS 2003, 3 seminars were held, with a total of 17 judges, on these subjects: Liable and functional judiciary; Principle of loyal cooperation in the EU and preliminary rulings of the European Court of Justice and Theoretical and aspects of the jurisdiction, recognition and enforcement of judgments in civil and commercial cases.

The final report on the realized seminars, the topics and the number of participants for 2005 will be published by the end of January 2006.

The Draft Law on Academy is in parliamentary procedure.The general purpose of the Academy is to provide competent, professional independent impartial and efficient performance of judicial and prosecution function through selection,organization and implementation of initial training of candidates for judges and prosecutors and continous professional training of judges and prosecutors and of the judicial and prosecution personnel and officers.The Academy has a status of a legal entity.One of its determined activities by the Law is organizing and implementing of congresses, seminars,conferences symposiums, meetings and other forms of training for issues related to the application of the law of Europian Union and the international law, keeping a library, issuing publications and performing publishing activities for its own needs, maintaining co-operation with similar local and foreign institutions and associations.The funds for financing shall be provided from the budget of the RM from its part reffered as Judicial power (branch).It is determined that the program for passing the admission exam of the candidates at the Academy for attending the program for initial training, shall consist of questions in the following areas criminal law, civil law, commercial law, constituinal law and administrative law, international law and Europian law.The continous professional training shall be implemented through a specialized programmes which will cover the application of substantive and procedural laws, the latest scientific and professional acompishments in the field of national and international law, especially the law of the EU.The initial training shall include 3 months practical training in court and 10 months practical training under supervision of the judge,The duration for continous training will depend on the work of experience of the judges and will last from 15 to 50 hours per year.

The adoption of this Law has also an objective to harmonise the national legislative with the internatonal documents in the field of the judiciary- the Recc.(94)12, of the Committee of the Ministers, The Euriopian Convention for the status of Judges.

A. 2. ACCESS TO LEGAL INFORMATION

Judges in Republic of Macedonia do not periodically receive full information on recent legislation and case law at the Europian and international levels by the national authorities.

The Official Gazzette of the Republic of Macedonia has the key position as supplier of legal information, as every law and regulation comes into effect within certain period of time (vacatio legis) after it is published in the Official Gazette. According the judges involved in the assessment study, the printed edition of the Official Gazette is by far the most utilized legal resource. Since 2003, every judge in the Republic of Macedonia receives a copy of every issue of the Official Gazette.

The usage of paper format of the Official Gazette absolutely prevails over the electronic format – the usage of the web site of the Official Gazette of the Republic of Macedonia, none of the pilot courts is subscribed on that web site.

The courts are provided with consolidated national law texts (the ones available in the market in book format), but not in the sufficient number, so that they could be distributed to the desk of every judges and legal assistant.

The situation is very similar with the law commentaries. The lack of this type of legal resources is evident. The judges stongly reject the commentaries which contain only re-phrased text of the law, which are not rare, given the current situation in the legal publication market in the Republic of Macedonia.Judges often buy commentaries at their own expense.

The CD Rom editions of the national laws in the Republic of Macedonia are available and are incidently used by the judges and the legal assistants in the courts which have local computer network, if the laws are copied and available at the server, or if the content of the CD Roms is directly copied on their PC’s (the CD Rom edition with the laws from 2004 is protected and doesn’t support copying). Such possibility exists in the Supreme Court of the Republic of Macedonia, Appellate Courts in Bitola and Stip, the Basic Court Skopje.There is no CD rom on compilation of Europian and international law and case law translated in Macedonian.

CD Rom editions of the national law commentaries or their publication on Internet are non-existent, thus unavailable for the judges and legal assistants.

ACCESS TO THE CASE LAW OF THE EUROPIAN COURT OF HUMAN RIGHTS AND THE EUROPIAN COURT OF JUSTICE

Assessment results show that the judges are not provided with the texts of international treaties, conventions and other international legislation, except for the international documents, ratified by the Republic of Macedonia, which are being published in the Official Gazette.

The case law of the European Court of Human Rights and the European Court of Justice, and, in general, overall international case law is, by far, the top unavailable legal resource for the judges and the legal assistants, according to the publishing activity in this field in the Republic of Macedonia, which is very poor, practically non-existent.

The judgments of the ECHR in whole, and particularly, the cases in which R Macedonia is involved, are not still translated in Macedonian, so the judges can have an access in them, only by Internet on their expense.

However, the assessment results show that 55% of the judges and legal assistants from the Supreme Court, 33% from the Appellate Court Skopje, 68% from the Appellate Court Bitola, 9% from the Basic Court Gostivar and 4% from the Basic Court Prilep have access to the case law of the European Court of Human Rights, while 33% of the respondents from the Supreme Court and 5% from the Appellate Court Skopje have access to the case law of the European Court of Justice. Publications they refer having access to are matrials received from participation at educational events, covering this subjects.

The MJA (Macedonian Judges Association), has on its web site, an open linc with the Council of Europe web site, and of the Europian Association of judges, but only few courts in Macedonia have an Internet connection.

There is a possibility for Internet access to the case law on the official web sites of the European Court of Human Rights and the European Court of Justice, but very small number of the interviewed judges and legal assistants responded using these web sites.

The Ministry of Justice does not have its own web site.The Ministry has been providing the MJA until 2003, with editions of the current case law of the Europian Court on human rights in English, but only with one copy and they were not distributed to the judges.

There is no national judicial organ that in its own web site has published the international treties ratified by R.of Macedonia .

The assessment shows that judges and legal assistants strongly feel the lack of this type of legal resource, especially those from the higher and the larger first instance courts.

Due to the language barrier, translation of the case law of the European Court of Human Rights, the European Court of Justice and other international case law should be provided for the judges and the legal assistants in the Republic of Macedonia.
- each judge has received 2 Collections of international documents on the independence of the judiciary, adopted by the UN and the Council of Europe, published in 1996 and 2000,

- The Publication - International agreements of the Republic of Macedonia, by mr.Dragan Tumanovski, judge of the Supreme court of the Republic of Macedonia, containes all the international agreements from the area of the judiciary that the RM has signed since its independence up to date, a list of all valid Conventions and Protocols of the Council of Europe and the agreements concluded by the RM up to 2004 per state, with data when they were concluded , do they exist at all, have they been ratified, and when did they go into force, which Publication is distributed to each judge.

- edition financed by the Council of Europe office in Skopje, Europian Human Rights Law by M.W.Janis,R.S.Kay and A.W.Bradly-translated in macedonian

The CCE (Center for continuing education) of MJA has continued to distribute books and the publications to the Courts during this year, as well Manuals on Human Rights, No 1-5, edition of Council of Europe, Europian Convention on human rights (with the Protocol No 11, edition of Council of Europe, Law, edition of FOSIM, Living in an area of Freedom, Security and Justice, edition of Europian Commision

The Ministry of justice in 2000, has published a Publication- Independence, impartiality and liability of the judges, where the most significant Resolutions and Reccomendations of the Council of Europe and conclusions of the Council of Europe, adopted on the multilateral meetings are translated in Macedonian which documents are dedicated to the court procedures, the independence status of the judges, but it is not distributed to each judge.

Publishing of international legal literature written by various authors, mainly by university law professors, is relatively developed in the Republic of Macedonia. Judges and legal assistants use law books in their every-day work (written by university law professors), which are usually publications, they have provided privately, at their own expense.

Several law journals are being published in the Republic of Macedonia and are available, some for all judges, some for the judges and legal assistants, and some are distributed to the courts in only one copy.

The “Judicial Review” is a scholarly publication, which the MJA publishes on a quarterly basis and distributes to all judges in Macedonia. The “Judicial Review” consists of articles from different areas of the law, interpretations and application of legal provisions and codes, both on national and international law, views on the judiciary organization, the status of the judge and the court in the society, the conclusions of certain seminars for education on certain topics referred to the application of the certain provisions of the natonal and international law and law standards.

The “Judicial Informer”is also a publication of the MJA which consists of articles about the main activities and operation of the MJA and CCE, as well as brief information about other significant events in the Macedonian judiciary, issues on the trainings of judges, at national and international level, round tables, seminars performed, study visits abroad etc. The “Judicial Informer” is published with a special addendum, entitled as “Professional Appendix”, which encompasses laws, collective agreements and excerpts of some of the more characteristic decisions of higher courts, which judges find very useful for their day-to-day work. The “Judicial Informer” is distributed not only to all judges in the Republic of Macedonia, but also to all legal assistants in the courts.

The “Lawyer” is a publication of the Macedonian Bussiness Lawyers Association, which covers various issues of the commercial legal field, both national and international. This law journal is not distributed to all judges, but to the judges in the higher courts, and the judges from the lower courts only receive the issue in which they have an article published. All courts receive a copy of “Lawyer”, which is available in the libraries or in the court presidents offices.

The judges and the legal assistants in the Appellate Court Bitola indicated the access to some older issues of law journals published in the neighboring countries, which the court have received in the past and are available in the library of the court. According to the judges, law journals from the neighboring countries are very important legal resource, due to the similarities in the legislation of the Balkan states, and strongly recommended this practice to be continued in the future.

Conclusions and working materials from educational activities are available for the judges and the legal assistants only if they are in attendance. The judges and the legal assistants indicated that they consider this type of legal resource as very important one and that they would like to receive them on a regular basis, wheather or not the representatives from the courts have attended the educational activity.

A.3. DO THE JUDGES HAVE AN OPPORTUNITY TO ATTEND COURSES COURSES FOR FOREIGN LANGUAGES? ARE THEY FREE OF CHARGE? DOES EACH COURT HAVE LEGAL TRANSLATION FACILITIES?

In order to obtain better incorporation with the international legal community and international communication and cooperation, during 2004, courses for english and french language were organized.
In cooperation with the Embassy of Republic of France and the French Cultural Center, the courses for French language continued in 2004. These courses were attended by the judges of the Trial courts Skopje I and Skopje II, public prosecutors of the Public Prosecution Office – Skopje and part of the CCE/MJA staff.
Also, during 2004, courses for English language continued to be organized in cooperation with the OPDAT Program of the USA Embassy in the Republic of Macedonia. The classes were organized for the elementary and intermediate level of knowledge for several groups of judges and public prosecutors from the Appellate region of Bitola, more precisely for the judges of the Appellate Court – Bitola and Trial Courts Bitola and Prilep, as well as public prosecutors from the Higher Public Prosecution Office of Bitola and Basic Prosecution Offices of Bitola and Prilep.
The participants who had attended the classes for English language during 2003, on a special ceremony in March 2004, received their certificates.
The classes for English language will continue in 2005, for judges and public prosecutors of the Trial courts and Public prosecutors.

The courses are free of charge for the judges and the prosecutors.The courts do not have legal translation facilities.

B/ DIALOGUE BETWEEN NATIONAL AND EUROPIAN JUDICIAL INSTITUTUIONS

MEETINGS AND STUDY VISITS

During the first half of 2005, the judges participated in international meetings seminars and stydy visits abroad.

in Luxemburg – in organization with the Europian Institute for public administration, Europian center for judges and lawyers, there was an seminar on the topic- The role of the national judge and public prosecutor in combating transnational crime in the unique Europian room of freedom,securityand justice.
- study visit in the Europian court of justice

In organization of the CCE in cooperation with the Council of Europe Directorate General of Human Rights, Strasbourg and the Information office of the Council of Europe in the Republic of Macedonia, in 2002 4 workshops on Application of selected Articles of the Europian Convention on Human Rights and their practical application on national level, were held as part of the approved project by the Council of Europe and financially supported by the Government of the UK.(Articles 5, 6, 8,10,13, Article 1 of the protocol 1. A total of 59 judges and 34 prosecutors attended these wokshops.The presentations were given by experts from the CE as well from the RM Mrs Margarita Caca Nikolovska, judge at the ECHR.The participants were given the extracts from the book Law on the Europian Convention of human rights by O Boyle dedicated to the Articles of the Convention that were subject of application, The Rules of the Europian Court on Human Rights from 1998, pocketbooks of the ECHR, human Rights handbooks on Articles 6, 8, 10 and Article 1 of protocol 1 of the EC, Application for the ECHR under article 34 of the ECHR with the Explenation for persons wishing to apply to the Court and Instructions for filling in the Application, Europian Court of Human Rights Questions and Answers, Human rights Bulletins no.49 and 50.These materials were distributed for the participants on these 4 seminars, only.

In 2003 and 2004 in organization of the same aforementioned organizers, 2 workshops on Application of selected Articles of the ECHR were held with total of 48 judges and 17 prosecutors.The judges suggested that the courts should be provided with legal literature especially from the International courts, the following topics were proposed as suggestions by the participants, applications of Macedonian citizens before the ECHR and the court judgements, comparative study of the Macedonian procedural laws in comparison with the procedural laws of the member states of the CE, elaboration of other articles from the EC enforcement of a judgement of the Court in Strasbourg.

The CCE is determined to continue the successful cooperation with the Council of Europe and the other international organizations for the purpose of organization and preparation of other upcoming seminars and workshops especially now when recently Macedonia received a candidate status for entrance in EU.

C. APPLICATION BY NATIONAL COURTS OF THE ECHR AND THE CASE LAW OF THE ECHR,EUROPIAN COMMUNITY LAW AND OTHER INTERNATIONAL LEGAL INSTRUMENTS

C.1. WHAT RANK DO THE FOLLOWING SOURCES OF LAW ENJOY IN THE HIERARCHY OF LAW PARTICULAR IN RELATION TO CONSTITUTUIONAL PROVISIONS AND ORDINARY LEGISLATION IN R MACEDONIA:

a/ /the Europian Convention on Human rights
b/ EU treaties
c/ the case law of:
-the Europian court of Human rights
-the Court of justice of the Europian Communities
d/ international treaties

In the legal system of the Republic of Macedonia, the relation between the domestic and the international law is a constitutional issue and has been regulated in line with the monistic theory. Pursuant to Article 118 of the Constitution, international treaties ratified in accordance with the Constitution are an integral part of the domestic legal order and may not be changed by law. Consequently, within the hierarchical structure of legal norms, international treaties stand above the domestic legislation.

C.2. DOES YOUR COUNTRY’S CASE LAW RECOGNIZE THE VALUE-AT LEAST FOR INTERPRETATION PURPOSES- OF COUNCIL OF EUROPE RECOMMENDATIONS AND RESOLUTIONS

It is usually a practice relevant definitions from Council of Europe's Recommendations and Resolutions to be incorporated in certain domestic laws and regulations, so that the courts can based their decisions upon them

In addition, the Republic of Macedonia has been implementing in the domestic legislation the recommendations of the competent bodies, i.e. of the monitoring mechanisms established with the international conventions given in the reports on the country’s implementation of the obligations under the conventions. In that respect, the legal framework for gender equality in the field of political participation has been improved; as part of the criminal legislation reform, the institute of alternative measures of punishment has been introduced; domestic violence has been incriminated; criminal and legal protection against discrimination has been improved; the National Committee on Children’s Rights has been established which prepares the National Plan on Children’s Rights; and a reform of the system of juvenile justice is underway.

Bearing in mind the direct application of international agreements in the domestic legal system, the judiciary has been awarded key role. The constitutional concept of the rule of law, therefore, insists on the independent position of courts before which, by applying ordinary procedural and legal means in a fair procedure, the protection of basic rights and freedoms has been exercised as well as control over political authorities through law. Apart from the regular courts, an important role in the protection of human rights has been awarded to the Constitutional Court of the Republic of Macedonia, the Ombudsman, the Standing Inquiry Committee for Protection of Freedoms and Rights of Citizens within the Assembly of the Republic of Macedonia.

As mentioned before, International human rights conventions are ratified by the Assembly of the Republic of Macedonia in accordance with the Constitution of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 52/91, 01/92, 31/98, 91/01 and 84/03), and as such they are part of the domestic legal order and may not be changed by law (Article 118 of the Constitution of the Republic of Macedonia).

International treaties are paramount to domestic laws. This has been regulated by the Constitution of the Republic of Macedonia in a way that it prohibits the alteration of international treaties by domestic laws.

International treaties in Macedonian legal order are sources of law, hence individuals can cite provisions of international treaties, and courts and administrative bodies are compelled to directly implement them (Article 98 of the Constitution of the Republic of Macedonia).

Human rights instruments enjoy even higher legal power than other international treaties. This is also reiterated in Article 8, paragraph 1, subparagraph 1 of the Constitution of the Republic of Macedonia, which determines that one of the fundamental values of the constitutional order of the Republic of Macedonia is the respect of the basic freedoms and rights of the individual and the citizen, recognised in international law and set forth in the Constitution.

On 30.01.2002, the Assembly of the Republic of Macedonia adopted the Law Ratifying the Statute of the International Criminal Court (“Official Gazette of the Republic of Macedonia”, No. 20/02). Hence, the Republic of Macedonia assumed the general obligations for full cooperation with the ICC in terms of implementation of investigations and prosecution for crimes under the ICC competence, set out in the ICC Statute.

The Law Amending the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, No. 74/04) introduces novelties in Article 505, envisaging that judgements of international courts shall be executed in accordance with the treaty establishing that particular court and ratified in accordance with the Constitution of the Republic of Macedonia. The criminal law Chamber of the basic court, competent in terms of territorial jurisdiction, adopts a judgement confirming its authenticity and enforceable character and determining the manner of execution of the sanction and other measures. Namely, domestic courts may approve the request of the foreign body requesting execution of a criminal law judgement of a foreign or an international court, if this is so determined by an international treaty or on basis of reciprocity and if the sanction is also pronounced by the domestic courts in accordance with the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No. 37/96, 80/99, 04/02, 43/03 and 19/04) .

C.3. IF THE ECHR WERE TO HOLD CERTAIN PROVISIONS OF YOUR COUNTRY, LEGISLATION VIOLATE THE ECHR, WOULD YOUR NATIONAL COURTS BE PERMITTED NOT TO APPLY THOSE PROVISIONS?
DO THE NATIONAL COURTS HAVE AUTHORITY TO PRESCRIBE THEIR OWN MEASURES IMPLEMENTING THE COURTS,S DECISIONS?

As mentioned before, the international treaties ratified in accordance with the Constitution are an integral part of the domestic legislation and may not be changed by the national law and court practice. Consequently, within the hierarchical structure of legal norms, international treaties stand above the domestic legislation. Relevant basis for reviewing the Macedonian legislation and for its approximation with the internationally accepted standards is the case law of the European Court of Human Rights. The Judgments of the European Court of Human Rights also serves as a basis for harmonisation of the domestic legislation. In the procedures in cases against Macedonia conducted thus far in the Strasbourg Court, there have been no violations established that would point to the need of change of certain legal provisions or practice.

The international documents ratified by the RM in accordance with the Constitution are integral part of the domestic legislation and they can not be amended by the national law.

But, there is no legal provision that allows the courts to create their own measures in applying the ECHR ‘s judgements, but there are no either legal obstacles, for the courts to create them.The Supreme court has an opportunity to unificate the court practice through issuing legal opinions regarding the interpretation of the domestic legislation in relation to the ECHR with aim to prevent similar new violations of the provisions of the ECHR in the future.

C.4. WHERE LEGISLATION VIOLATION PROVISIONS OF THE ECHR HAS BEEN APPLIED IN LEGAL PROCEEDINGS BY A FINAL, NON APPEABLE DECISION, ARE THE FOLLOWING REMEDIES AVAILABLE IN YOUR COUNTRY BEFORE A POSSIBLE APPLICATION TO THE COURT IN STRASBOURG:
a/ direct application for reopening of the proceedings?
b/ lodging of a claim for compensation?

The State has supplemented the preventive action in the area of human rights by continuous consideration of the case-law of the European Court of Human Rights. A number of amendments to several domestic laws in recent years have been a result of the Court’s interpretations in cases against other High Contracting Parties. As part of the criminal law reform, and in order to ensure unimpeded compliance with the decisions of international bodies for human rights protection, a possibility was introduced for re-opening court procedures in cases of violation of international obligations by applying extraordinary legal remedies. Namely, pursuant to Article 392 of the Law Amending the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, No. 44/02), the extra-legal remedy reopening of the proceedings has been introduced, following a pronounced judgment of the European Court of Human Rights, relating to the violation of human rights as guaranteed in Article 6, paragraph 1 of the European Convention. Similarly, the Government, through the Public Prosecutor’s Office, may submit an extraordinary legal remedy request for protection of legality for violation of obligations under international treaties. The renewal of the procedure and the request for the protection of legality may now be also used for re-opening of procedure in cases of violation of the European Convention on Human Rights or another international treaty ratified in accordance with the Constitution.

The new Law on civil procedure in the provisions on the extra ordinary remedies that covers the repetition of the procedure, in Art.400 foresees:

When the European Court on human rights determines the violation of some human rights or fundamental freedoms stipulated in the European Convention for protection of the Basic Human Rights and Fundamental freedoms with additional protocols of the Convention, which the Republic of Macedonia ratified, the party may within 30 days from the day the judgment of the European Court for Human Rights becomes final to file a request to the court in the Republic of Macedonia that decided in the first instance procedure in which the decision was made that violated some human right or fundamental freedoms, to change of the decision, with witch that right or fundamental freedom is violated.

In the procedure from paragraph 1 of this Article the provision for repetition of the procedure are applied accordingly.

In the repetition of the procedure the courts are obliged to respect the legal directions expressed in the final judgement of the Europian Court for Human Rights with which a violation of the basic human right and fundamental freedoms is determined.

PLEASE SPECIFY WHETHER NATIONAL LAW AFFORDS SOLUTIONS OF THIS KIND WHICH ARE SOLELY CONFINED TO CERTAIN VIOLATIONS OF THE ECHR SUCH AS LEGAL PROCEEDINGS WHICH HAVE BREACHED THE REASONABLE TIME REQUIREMENT?

The ECHR is an integral part of the domestic law, so the citizens can launch a procedure for violation of the Article 6 of the ECHR, and the other articles of the ECHR. In the case Janeva v.The former Yugoslav republic of Macedonia No.58185/00 from 23.10.2001, Janeva has launched a procedure for violation of Art.6 –violation of right to a fair trail in a reasonable time, which has been completed by a final decision with friendly settlement, and this judgement is executed by the national Governement.There is no opportunity in the national law for legal proceedings which have breached the reasonable time requirement, except the aforementioned legal opportunity for reopening of the proceeding in the newest criminal and civil codes on procedures.(Art.392p.1/7, Code for crim.procedure, and Art.400,Code on civil procedure)

D. THE ROLE OF JUDGES IN STRIKING BALANCE BETWEEN PROTECTING THE PUBLIC INTEREST AND HUMAN RIGHTS IN THE CONTEXT OF THE FIGHT AGAINST TERRORISM

D.1. HAS YOUR COUNTRY INCORPORATED THE CE RECOMMENDATIONS AND RESOLUTIONS IN ITS LEGISLATION OR TAKEN MEASURES TO PUCLICISE THESE INSTRUMENTS?

Yes, they are a part of the newest criminal and administrative substantive and procedural law.

These Recommendations and resolutions are not still translated in Macedonian and publicized because of the lack of financial support.

Also, according to the Basic directions for the protection of the human rights and the fight against terrorism adopted by the Committee of Ministers, the amendmends in the newest Code on criminal procedure are implemented in Art.518- (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.
(3) 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.
(4) 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.

D.2 HAS YOUR COUNTRY PASSED SUBSTANTIVE AND PROCEDURAL LEGISLATION SPECIFICALLY CONCERNED WITH THE FIGHT AGAINST TERRORISM, DO THEY DEPART FROM THE GENERAL LAW?

INTERNATIONAL LEGAL FRAMEWORK OF THE FIGHT AGAINST ORGANIZED CRIME, INCLUDING THE TERIRISM ACTS
In recent years, the Republic of Macedonia achieved significant progress in implementation of the European and other international standards that facilitate cooperation in the fight against severe forms of crime, especially in the fight against organised crime, corruption and money laundering, as well as in harmonisation of the national legislation with the relevant international Conventions.
Regarding this, the Republic of Macedonia signed and ratified many international Conventions aligning its legislation to the provisions and standards included in these documents. Thus far, the following Conventions were ratified:
The United Nations Convention against Transnational Organised Crime and Additional Protocols (2004);and the Additional protocols
The UN International Convention on Suppression of Terrorist Bombings
(2004); and
The Convention on Suppression of Financing of Terrorism (2004),.
The Criminal Law Convention on Corruption (1999);
The Civil Law Convention on Corruption (2002);
The Convention on Transfer of Sentenced Persons with Additional Protocols (1999);
The European Convention on Mutual Assistance in Criminal Matters (1999)and The Second Additional protocol in mutual legal assistance in criminal Matters;
The European Convention on Extradition with Additional Protocols (1999);
The Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime (2000);
The European Convention on Transfer of Proceedings in Criminal Matters (2004);
The European Convention on Suppression of Terrorism (2004) Protocol Amending the cited Convention
The Convention on Cyber crime (2004);

Ratification is pending on:
The Additional Protocol to the Criminal Law Convention on Corruption, and
The United Nations Convention against Corruption adopted by the UN General Assembly on 31.10.2003

The procedure of ratification of the newest CE Conventions on the prevention of terrorism adopted by the Committee of Ministers on 13.5.2005 and on laundering,search, seizure and confiscation of the proceeds from crime and of the financing of terrorism is on going.

Following the terrorist attacks on the USA of 11.09.2001 and the changes of the geo-political factors resulting from the global threat, the legislative setting in the Republic of Macedonia clearly indicates the intention to ensure participation of the Republic of Macedonia in the international cooperation in the fight against terrorism.

In terms of the instruments of the United Nations on fight against terrorism, the Republic of Macedonia has signed, ratified and implemented the following Documents:

1. Convention on Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents:
The Republic of Macedonia is a Party since 12.03.1998 following the notification on succession.
The provisions of the Convention are implemented in the Articles 141, 181, 182, 183, 309, 310, 311, 419 and 420 of the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 4/02 and 43/04).

2. International Convention against Taking of Hostages:
The Republic of Macedonia is a Party since 29.01.1998 following the notification on succession;
The provisions of the Convention are implemented in the Article 421 of the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 4/02 and 43/04).

3. Convention for Suppression of Unlawful Seizure of Aircraft:
The Republic of Macedonia is a Party since 07.01.1998 following the notification on succession.
The provisions of the Convention are implemented in Articles 302 and 303 of the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 37/96, 80/99, 4/02 and 43/04).

4. Convention on Offences and Certain Other Acts Committed on Board Aircraft:
The Republic of Macedonia is a Party since 30.08.1996 following the notification on succession;
The provisions of the Convention are implemented in the Articles 302 and 303 of the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 4/02 and 43/04).

5. Convention on Physical Protection of Nuclear Material:
The Republic of Macedonia is a Party since 20.09.1996 following the notification on succession;
The provisions of the Conventions are implemented within the Articles 231, 288 and 407-b of the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos.37/96, 80/99, 4/02 and 43/04).

6. Convention for Suppression of Unlawful Acts against the Safety of Civil Aviation,
The Republic of Macedonia is a Party since 04.011995 following the notification on succession;
The provisions of the Conventions are implemented within the Articles 300 and 303 of the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia” Nos.37/96, 80/99, 4/02 and 43/04).

7. Protocol on Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to Convention for Suppression of Unlawful Acts against Safety of Civil Aviation,
The Republic of Macedonia is a Party since 04.01.1995 following the notification on succession;
The provisions of the Conventions are implemented within the Articles 304, 403-a and 404 of the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia”, Nos.37/96, 80/99, 4/02 and 43/04).

8. International Convention for Suppression of Terrorist Bombings
The Republic of Macedonia has signed this Convention on 16.12.1998, ratified on 06.04.2004.
The provisions of the Conventions are implemented in the Articles 288 of the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia” Nos.37/96, 80/99, 4/02 and 43/04).

9. International Convention for Suppression of Financing of Terrorism
The Republic of Macedonia has signed this Convention on 31.01.2000, ratified on 06.05. 2004;
The provisions of the Conventions are implemented within the Article 273 of the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia” Nos.37/96, 80/99, 4/02 and 43/04).

In terms of instruments of the Council of Europe on fight against terrorism, Republic of Macedonia has signed, ratified and implemented the following Documents:
European Convention on Suppression of Terrorism; signed on 08.11.2001, ratified on 29.11.2004. The provisions of the Conventions are implemented within the Articles 313, 419 and 394-a of the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia” Nos. 37/96 80/99, 4/02 and 43/04).
European Convention on Extradition and the Additional Protocols; signed on 28.07.1999, ratified on 28.07.1999 and entered into force on 26.10.1999. The provisions of the Convention are implemented within the Articles 509 to 525 of the Law on Criminal Procedure, and Articles 181 up to 186 of the Law Amendmending the Law on Criminal Procedure (”Official Gazette of the Republic of Macedonia” Nos. 15/9, 44/02 and 74/04).
European Convention on Mutual Assistance in Criminal Matters; signed on 28.07.1999, ratified on 28.07.1999 and entered into force 26.10.1999. The provisions of the Conventions are implemented within the Articles 502 up to 509 of the Law on Criminal Procedure of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia”, Nos.15/97, 44/02 and 74/04).
Additional Protocol to European Convention on Mutual Assistance in Criminal Matters; signed on 28.07.1999, ratified on 28.07.1999 and entered into force 26.10.1999.. The provisions of the Conventions are implemented within the Articles 502 up to 509 of the Law on Criminal Procedure of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia” Nos.15/97, 44/02 and 74/04).
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime; signed on 14.12.1999, ratified on 19.05.2000 and entered into force 01.09.2000. The provisions of the Conventions are implemented within the Articles 273 of the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia” Nos .3 7/96, 80/99, 4/02 and 43/04), and within the provisions of the Law on Prevention of Money Laundering and other Proceeds of Crime (”Official Gazette of the Republic of Macedonia” No. 46/04).
Ratification is pending on:
The Additional Protocol to the Criminal Law Convention on Corruption, and
The United Nations Convention against Corruption adopted by the UN General Assembly on 31.10.2003

Pursuant to Article 118 of the Constitution of Republic of Macedonia (”Official Gazette of the Republic of Macedonia” No. 52/91), the international agreements ratified in accordance with the Constitution are a part of the internal legal order and cannot be changed by law.

Internally, since its independence, the Republic of Macedonia has been exposed to certain threats from terrorist activities against its national interests. Specific terrorist actions in the Republic of Macedonia were performed in 1995 (the assassination attempt against the President of the Republic of Macedonia); in 1997 the court in Gostivar was a target of a bomb attack, while in 1998 the targets of bomb attacks were the police stations in Prilep, Kumanovo, Tetovo, the Court in Kičevo, as well as the Skopje – Belgrade railroad.
The 2001 armed conflict disrupted the security situation in the Republic of Macedonia to a greater extent. After the Ohrid Framework Agreement was signed, and after its implementation commenced, the Republic of Macedonia still faced threats of individual acts of terrorism, particularly by persons and criminal groups that were active in the former crisis regions. Such threats are used by the “Front for National Unification of Albanians” and the “Albanian National Army” (the platform of which is to create the “United Albanian State” in the Balkans, using violent methods and means, due to which they are declared by the European Union and the USA as terrorist organisations) in preparation and committing individual terrorist acts or actrs of violence, for shich they claim responsibility.
In 2002 and 2003 acts with features of terrorism were perpetrated and criminal charges were instituted for the crime of Terrorism and perpetrators were sentenced to appropriate prison sentences.
In 2004, along with the stabilisation of the security situation, no terrorist acts were registered, although possibility for individual acts of terror and violence by individual criminal groups related to “FNOA” (Front for National Unification of the Albanians”) and “ANA” (Albanian National Army”), as well as by other extremist individuals and groups who oppose the implementation of the Framework Agreement, founding their activities on the ideas for "a greater state”, can not be excluded.The last criminal procedure on Terorism is the case on bombing of the police station in Skopje and is still going on.

THE NATIONAL LEGAL FRAMEWORK AND LEGAL BASIS FOR ANTI-TERRORIST ACTION

In the national legislation, in the process of harmonization of the domestic law with the obligations achieved by ratifying of the international documents, adopted by UN and the Council of Europe, the following amendments were introduced:
1. Constitution of the Republic of Macedonia
On 26.12.2003, the Assembly of the Republic of Macedonia passed the Draft Amendment XIX to the Constitution of the Republic of Macedonia, amending Article 17 of the Constitution (”Official Gazette of the Republic of Macedonia”, No. 84/2003). With this Amendment, the interception of communications under certain conditions and procedure was legalised, which represents a legal basis for application of special investigative measures.
2. Amendments to the Criminal Code of the Republic of Macedonia (”Official Gazette of the Republic of Macedonia”, No. 19/2004), harmonised with the European and other international standards and solutions and creating legal grounds for suppression of organised crime and terrorism. These amendments introduced:
Criminal liability for legal entities;
The legal institute of confiscation of property and proceeds, and return of confiscated property to a third country;
New criminal offences: sanctioning of new forms of money laundering, financing of terrorism, cyber crime
Redefinition of the sanction system by introducing an alternative punishment.
The provisions from the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 4/02 and 43/04) express the intentions of the legislator to align with and implement the international criminal law standards in the fight against organized crime, including terrorism. Namely, the domestic legislation incriminates all the acts, which, under the generally accepted standards and criteria, are considered as terrorist acts. The Article 313 of the Criminal Code incriminates Terrorism as a crime, Article 419 incriminates the actions of the perpetrators of International terrorism, and Article 394a of the Law Amending of the Criminal Code also incriminates Creation of terrorist organisation, and the financing, public incitement, instigating or supporting the creation of such organisation. Furthermore, more sever sanctions for crimes connected to terrorism have been introduced.

The Criminal Code of Republic of Macedonia (Article 313), in defining the act of terrorism, prescribes that a person who, with the intention of endangering the constitutional system or the security of the Republic of Macedonia, causes or seriously threatens to cause an explosion, fire, flood, or some other generally dangerous act or act of violence, creating a sense of insecurity or fear among the citizens, shall be punished with imprisonment of at least four years.

A punishment (an imprisonment of at least four years) is also prescribed for any person who creates a conspiracy, gang, group or other association of persons or organisation (Article 324) for the purpose of committing terrorism. The Law prescribes a punishment of one to five years for a person who becomes a member of the conspiracy, gang, group or other association. Acquittal from punishment is foreressen for a member of an association, who discloses the association, before he commits a terrorist act as a member of that association or on behalf of it.
Sheltering and assisting the perpetrator (Article 325) of a crime of terrorism (giving shelter, food, money or other means, maintaining contact, performing activities in order to prevent discovery or capture of a perpetrator, or providing assistance in some other way), is also prescribed as a criminal offence. Imprisonment of one to ten years is stipulated. Also, the preparation to commit this crime is incriminated (Article 326), with a prescribed punishment of three to ten years of imprisonment.
The Criminal Code prescribes a more severe sanction (imprisonment of at least ten years) if during the perpetration of the terrorist act, death of one or more persons was caused, or if a property damage of large extent was caused. The intentional killing of one or more persons during the perpetration of the terrorist act, as well as committing such acts during a war or under direct military danger, is sanctioned with imprisonment of at least ten years, or with life imprisonment.
The creation of a terrorist organisation (a gang, group or other criminal organisation) for committing criminal acts is also incriminated in the Criminal Code (imprisonment of at least eight years). The prescribed criminal acts are as follows: murder; bodily injury; kidnapping persons; destruction of public facilities, of transport systems, of infrastructure facilities, of information systems and of other facilities in public use; hijacking aircrafts and other means of public transport; production, possession or trade with nuclear, biological, chemical or other weapons and dangerous substances; release of dangerous radioactive, toxic and other dangerous substances; or causing a fire or explosion, destruction of utilities for water supply, energy or other basic natural resources, in order to create a sense of insecurity or fear among the citizens or to endanger the constitutional order or the security of the Republic of Macedonia or the interests of an international organisation or foreign state. The Code prescribes more lenient punishment (imprisonment of three months to three years) for the perpetrator who by disclosing the organisation or in some other way prevents the perpetration of the planned crimes.
Also, in the Criminal Code, financing of terrorism acts is determined to be a new incrimination.A punishment (imprisonment of four to ten years) is also prescribed for a member of the group, gang or other criminal organisation, as well as for person who provides financial resources, or provides assistance in some other way. The legislator permits acquittal from punishment for the member of the group, gang or other criminal organisation who discloses the organisation before committing some of the aforementioned crimes, as a member of that organisation, or on behalf of it. The public instigation, call and providing support for creation of a terrorist organisation is incriminated, as well. Article 419 prescribes imprisonment of at least three years for anyone who with the intention of harming a foreign state or some international organisation, commits a kidnapping of another or some other act of violence, causes explosion or fire, or with some other generally dangerous act or by generally dangerous means causes a danger to the life of people and to property of a significant value. If, because of the above mentioned activities, one or more persons died, or damage was caused of larger extent, i.e. another person was intentionally killed; the perpetrator will be punished with imprisonment of at least five years, i.e. with imprisonment of at least ten years, or with life imprisonment.
Following the adopted principles of the UNCTOC, R Macedonia adopted approptiate national legislature such as criminal offences for preventing the opstruction of justice, Unlawful influence upon the witnesses, in the giving of testimony or the production of evidence, criminalization of the use of psyhical force or threats to interfere the exercise of official duties by a justice or law enforcement official in relation to the commission of offences related to organized crime, including Terrorism.

The criminal law of the Republic of Macedonia (Article 116) is applicable when the terrorist act is committed on the territory of the Republic of Macedonia, on a domestic ship or aircraft, regardless where the ship or aircraft were at the time when the crime was committed.

The criminal law of the Republic of Macedonia is applicable to everyone who commits a terrorist act abroad (117), as well as to foreigner who commits a terrorist act abroad against a foreign country or a foreigner (when according to that legislation he/she may be sentenced to five years of imprisonment or to a more severe punishment), and when he/she is not extradited to the foreign country.
The general provisions in the newest Criminal Code are harmonized with the avbovementioned international legal standards aimed at strengthening the combat against organized crime, included Terorisam acts and suppressing its financing, as follow:

The criminal law concept of Confiscation of proceeds from crime is established with the Law Amending the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, No. 19/04). This concept, although it was functioning in a different form before the adoption of this amendments (seizure of proceeds), is a major step forward in suppression of illicit earning of persons connected to organised crime.

The substance of this concept is regulated within a separate Chapter of the Criminal Code ("Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 4/02 and 19/04) where the provisions stipulate the grounds and the methods for confiscation. The confiscation from a legal entity and the protection of an injured Party is regulated as well. The procedure for confiscation is regulated with the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04).

According to the provision of the Criminal Code, it is prescribed that a person may not retain an indirect or direct profit acquired through crime. The provisions of the Law prescribe that the proceeds acquired in such manner shall be confiscated with a court decision with which the fact of perpetration of the criminal offence was established. The Court will bring a decision on confiscation in a procedure determined by law even when, because of factual or legal obstacles the criminal procedure against the perpetrator of the criminal offence is impossible.

The Criminal Code also contains a provision stipulating that the confiscated property may be returned to another state under conditions determined by a ratified international agreement.
As a rule, the confiscated goods are returned to the injured party. If there is no Injured party, the confiscated property become state ownership.

Within the Criminal Code there is a provision for protection of the injured party. Namely, the injured party that within a criminal procedure referrs to litigation with regards to its property claim, may request to be compensated from the amount of the confiscated value, within a legally prescribed timeframe.

In the fight against organised crime and corruption, of particular significance is the novelty of introducing criminal law liability of legal entities, and the legal possibility for confiscation of acquired proceeds from crime from a legal entity.

The procedure for implementation and enforcement of the confiscation of property and proceeds is regulated by the Law on Criminal Procedure. The provision of the Law stipulate that the enforcement of the confiscation shall be carried out within 30 days from the day when the sentence became final, and on the basis of an enforcement order issued by the Court that brought the sentence in the first instance.

Amendments to the Law on Criminal Procedure (”Official Gazette of the Republic of Macedonia”, No. 74/2004), harmonised with the EU legislation and with the provisions of the ratified international documents. These amendment prescribed:

Application of special investigative measures;
Measures for ensuring the presence of the defendant in the course of procedure;
Protection of witnesses, collaborators of justice and victims of crime;
The opportunity for the persons included in the witness protection program not to be present during the main hearing, and the opportunity to be interrogated through video linc
Legal procedures against legal entities;
New legal solutions in respect of the procedure for seizure, freezing and confiscation of property in order to enhance the implementation of the Vienna Convention against Traffic of Narcotics Drugs and Psychotropic Substances and the Strasbourg Convention on Money Laundering, Search, Seizure and Confiscation of Proceeds from Crime;
Procedures for enhancing the transfer of sentenced persons.

The Law on Criminal Procedure (Article 142), prescribes an obligation for the Ministry of the Interior to undertake necessary measures, when there is a ground for suspicion that terrorist activities are committed. Actually, the Ministry of the Interior has the duty to undertake the necessary measures to find the perpetrator and the accomplice of the terrorist activity, to find out and secure the traces and objects of the criminal offence, to collect information which may be useful for an efficient conduct of the criminal procedure.

The 2004 Amendments to the Law on Criminal Procedure regulated special investigative measures in Art.146-150 (communications interception; inspection and search of computer systems or their confiscation, completely or partially; secret observation, surveillance and audio-visual recording of persons and objects with technical devices; simulated purchase of objects, simulated receiving and giving a bribe; controlled delivery and transport of persons and objects; use of undercover agents for monitoring and collection of information; opening simulated bank account; registration of virtual legal entities or use of existent ones for data collecting), which, applied under conditions and in a manner established by law, can be used as an evidence in the criminal procedure.

The Ministry of the Interior may apply polygraph testing when there are reasonable suspicions that the person has perpetrated a crime, if the concerned person has given a written consent. Persons under influence of alcohol, narcotics and psychotropic substances, then persons with serious heart conditions, persons who have evident signs of mental disorder or a mental disability, pregnant women, or women immediately after delivery, may not be subjected to polygraph testing.

The Ministry of the Interior may not subject to polygraph test children below the age of 14. Younger and older juveniles may be subject to polygraph testing as an exception if there are reasonable grounds to suspect that they have perpetrated a crime and only based on a written consent of their parent or guardian.

Chapter XVIII-Investigative activities of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04), i.e. the new provisions (Articles 202, 203-a, 203-b, 203-d and 207), envisage a procedure for application of the measure of “temporary seizure of property or assets connected with a crime that refers to temporary freezing, seizure, confiscation of funds, bank accounts, financial transactions or proceeds from crime”.

The new Amendments of the criminal procedure have strengthened the status of the victims of the crime.
It is determined that the victim of the crime has a right to be compensated in the criminal procedure.The injured party (the victim) has the right, within the criminal procedure, to submit a property claim pursuant to the provisions of the Law on Criminal Procedure.

Pursuant to Article 96 of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02, 74/04), a property claim for a damage suffered because of a perpetrated crime is resolved within a criminal procedure, upon a proposal of an authorised person, but under the condition that the procedure is not significantly delayed if such a claim is decided upon.

When the accused was found guilty, the court decides on the property claim of the damaged party fully or partially, and if the evidence do not provide sufficient grounds for such decision, the court will, by a judgement, recognise only the grounds, whereas on the amount of the claim or the remainder of that amount it will bring an additional judgement. In case of a decision by which the accused is acquitted or the charges are refused or the procedure is terminated by a decision or the indictment is rejected, the court will instruct the damaged party to enforce the property claim through a dispute (Article 101).

Compensation is determined on the basis of the rules for compensation established in the Law on Obligations (“Official Gazette of the Republic of Macedonia” Nos. 18/01, 4/02 and 5/03).

Special cases of liability enumerated in the Civil Law on obligations are: responsibility for terrorist acts, public protests or events; responsibility for acts of corruption perpetrated by civil servants in execution of their offices and compensation of damage for violent criminal offences committed by an unknown perpetrator. In all of these cases, the responsibility for compensation of damage lies within the state (Articles 166, 167 and 168)

There are not state financed funds established for compensation of the victims of crime.

Also, the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, No 74/04) in the accordance with the accepted obligations from the aforementioned Conventions, and other international documents, including the Rec (97) 13 of the Committee of Ministers to member states concerning intimidation of witnesses and the rights of the defence, and Rec(2005)9 from 20.04.2005 introduces a new Chapter XIX – а, Protection of witnesses, collaborators of justice and victims. Namely, the public prosecutor, the investigating judge or the president of the court, in the course of the procedure undertake actions to ensure efficient protection of the witnesses, collaborators of justice, and of the victims if they appear as witnesses in the procedure, when there is a risk that they will be exposed to intimidation, threat with retaliation or risk to life, health or the physical integrity, or if their protection is needed. The protection is enforced by special way of interrogation and participation in the procedure. In these cases, the witness is interrogated only in the presence of the public prosecutor and the investigating judge, or the president of the court, and in a location which guarantees protection of the identity. Also, by consent of the victim, other their interrogation. The transcript of the minutes with the witness’ statement, without their signature, is submitted to the defendant and the defence attorney who can in writing, through the court, question the witness.

Protection can be also rendered through inclusion in the Witness Protection Programme. A request for inclusion in the Programme is submitted to the Public Prosecutor of the Republic of Macedonia, and is submitted by the competent public prosecutor, investigating judge or the president of the court council. If there are conditions for inclusion in the programme, the Public Prosecutor of the Republic of Macedonia submits a proposal to the competent body to bring a decision on inclusion into the Programme

The basical principles regarding the protection of the witnesses are foreseen in the newest amendments of the Code for criminal procedure as follow:

Article 142-c
(1)The data, statements, documents and objects, gathered trough use of the special investigative measures under Article 142-b of this Law, under conditions and in a way prescribed by this Law, can be used as an evidence in the criminal procedure. T
(2) The persons under Article 142-b paragraph (1) can be interrogated as witnesses regarding the execution of the special investigative measures.
(3) The Identity of the those persons mentioned in paragraph (2) of this article will be considered as official secret.

Article 223

(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.

Article 223-a

The witness may not give a statement related to data encompassed in article 223 paragraph (3) of this law, if there is a probability that by giving a statement or answering certain question, the witness will expose himself or another person close to him to a serious life threat, danger to his health or physical integrity.
If the witness does not provide the data of the paragraph (1) of this article and if the Public Prosecutor, Investigative Judge or the Presiding Judge assess that the existence of the danger of paragraph (1) of this article has been justified, they will stop the questioning and will undertake actions within 24 hours deadline in accordance with the article 270-b paragraph (3) of this law.

Protection of the Witness, Justice Collaborators and Victims

Article 270-a

(1) The public prosecutor, or the investigative judge or the president of the council during the procedure shall undertake measures and activities in order to secure the effective protection of witnesses justice collaborators and victims if in case they will appear as witnesses in the procedure, at any time when they are endanger of being frightened, threatened with revenge or there is danger upon their lives or physical integrity or when there is need of their protection.
(2) The protection of the persons mentioned in paragraph 1 of this article shall be carried out on special manner of questioning and attendance in the procedure.
(3) In the cases of paragraph (1) of this article, the witness will be questioned only in the presence of the public prosecutor and the investigative judge or the president of the council, on the place which can guarantee the protection of his identity, except in the cases when upon the decision of the, with consent of the witness, the council will decide to perform the hearing on different way trough the court or with use of other technical equipment for communication and other appropriate means for communication. Transcript of the minutes with the statement of the witness, without witness signature, shall be delivered to the accused and his lawyer, who make questions to the witness via court.

Article 270-b

Protection of the person mentioned in article 270a paragraph 1 of this Law can be performed also trough the inclusion of the Program for witness protection.
The request for inclusion in the Programme of paragraph 1 of this article may be submitted by the competent Public Prosecutor, investigative Judge or the President of the Council to the State Public Prosecutor.
If there are grounds for inclusion in the Programme from the paragraph 1 of this article, the State Public Prosecutor will submit a proposal to the competent state body which should bring a decision for inclusion in the Programme.
(4) The composition, the responsibilities of the state body mentioned in paragraph 3 of this article as well as the measures for protection and the manner of their implementation will be determined with the Law.

Article 295-a

The witness and the expert situated on the territory of another country might be examined trough telephone or video conference.
The examination of the witness and the expert will be conducted in accordance with the provisions of this law and the provisions of the Second Additional Protocol of the European Convention on Mutual Assistance in Criminal Matters.

Article 325 of the cited Code reads that (1) If the certification of a fact is based on a statement of a person, he is to be heard at the trial in person, except in the cases determined by Art.270 (the victims, witnesses and collaborators encompassed with the witness protection program)

As an lex specialis, the Law on protection of the witnesses has been enacted (Official gazette 38/2005 -26.05.2005and will start to be applied from January 1, 2006, so the protection of the witnesses in substantive and procedural manner is to be completed.

This law regulates the procedure and conditions for providing witness protection and assistance to the witnesses, defines the measures for protection and establishes Council for witness protection and Department for witness protection.

The provisions of this law are also applied to collaborators to justice, victims who appear in capacity of witnesses, as well as to close persons of the witnesses, collaborators to justice and victims who appear in capacity of witnesses.

This law is applied if the proving of the criminal act would have been accompanied with extreme difficulties or could not be conducted without a statement of a person, which, due to the possible danger of being exposed of intimidation, threatening with revenge or danger over life, health, freedom, physical integrity or property of bigger amount, does not agree in the capacity of witness, to provide statement in the following crimes:
against the state
against the humanity and the international law,
organized crime and
for which the Criminal Code stipulates sentence of at least 4 years’ imprisonment

Also, there is a new provision in the Law on criminal procedure (Art.156) which determines that the public prosecutor shall not be obliged to initiate criminal prosecution i.e. may abandon the prosecution, if the suspect as a member of a organized group gang or other criminal association voluntarily cooperates before or after disposal or during the criminal procedure and if that kind of cooperation and if the statement of that person is of an important matter for disposal of the criminal act and its perpetrator

The Draft Law on Interception of Communications which should establish the conditions, mannerand procedure for use of this measure, is in drafting procedure

The provisions of the Law on Asylum and Temporary Protection, prescribe that acting against the constitutional system of the Republic of Macedonia, committing a crime against humanity or international law, purposes and principles of the United Nations, represent a ground for cessation of the right to asylum, i.e. the refugee status (Article 6).
The provisions of the Law on Internal Affairs (Article 13) define the competence of the Ministry of the Interior (The Directorate for State Security and Counterintelligence) to perform activities related to suppression of terrorism.
The provisions of the Law on Intelligence Agency (Article 2), prescribe the responsibility of the Intelligence Agency in gathering data and information of significance for the security of the Republic of Macedonia.

. Amendments to the Law on Prevention of Money Laundering and Other Proceeds from Crime (”Official Gazette of the Republic of Macedonia”, No. 46/2004). These amendments ensure:

More efficient system of preventive measures and activities against money laundering and financing of terrorism;
Harmonisation of the national law with the provisions of the international documents (the UN Convention against Transnational Organised Crime, EU Council Directive 91/308/EEC of 10.06.1991 on Prevention of Use of the Financial System for the Purpose of Money Laundering, and the EU Directive 2001/97/ЕЕС of 2001, amending the Directive of 1991, as well as the FATF Forty Recommendations on Prevention of Money Laundering, and the FATF Eight Special Recommendations on Financing of Terrorism).
The Law on Prevention of Money Laundering and Other Proceeds from Crime stipulates the measures and activities for detection and prevention of laundering money and other proceeds from crime, as well as the organisation and control over their enforcement

In the Republic of Macedonia, there is no specialised body dealing with investigation of financing terrorism. The financing of any criminal activity is dealt with by the following institutions: the Directorate for Prevention of Money Laundering and the Financial Police. The other law-enforcement agencies investigate the financial aspect of criminal activities through their specialised units for financial crime, and in cooperation with other relevant administrative bodies: the Public Revenues Office, the State Foreign Exchange Inspectorate, the Securities and Exchange Commission and the National Bank of the Republic of Macedonia.

Within its responsibilities under the Law on Prevention of Laundering of Money and Other Proceeds from Crime, the Directorate for Prevention of Money Laundering monitors the suspicious transactions possibly related to terrorist activity. If the Directorate suspects that an offence of money laundering or financing terrorism is being committed, it is obliged by Law to submit an initiative to the corresponding Public Prosecutor, no latter than 24 hours of the moment of realisation of the suspcious transaction. The Public Prosecutor may under the Law suspend the transaction and temporary seize the money or the property.

The new Law on Public Prosecutor’s Office (”Official Gazette of the Republic of Macedonia”, No. 38/2004):
Introduced a separate unit (established in September 2004) for fight against organised crime and corruption within the Office of the Prosecutor General with prosecutors specialised for combating organised crime (in conformity with the recommendations of the Council of Europe, GRECO, the London Conference of the EU Troika for Justice and Home Affairs and other international organisations and institutions for combating corruption);
Enhanced the position and autonomy of the Public Prosecutor;
Established a council of prosecutors as an advisory body; and
Prescribed a possibility to put members from the Ministry of the Interior and other responsible institutions on disposal of the Public Prosecutor.

Pursuant to the current laws, the following bodies have competencies in the fight against terrorism:

The Unit for fight against orgianized crime within the Office of the Prosecutor General, carries out activities ex officio; in respect of crimes committed by an organised group of at least 3 persons that perform activity for a certain period of time in order to acquire direct or indirect financial benefit, or other type of material benefit and shall commit one or more criminal offences and; in respect of other crimes for which a legally prescribed penalty is at least four year prison sentence. Following the prescribed competencies, the Unit acts before all competent Courts in the Republic of Macedonia.

The Rulebook on the Organisation of the Unit stipulates that the Unit will be comprised of not more than 10 members (Public Prosecutors and Deputy Public Prosecutors). The concrete number of positions to be filled will depend on the volume of work of the Unit.

The staff of the Section is assigned by the Public Prosecutor of the Republic of Macedonia for a period of four years with an opportunity to be assigned again after the end of this period.

Department for Organised Crime

According to the Action Plan for Police reform, in January 2005, the Since January 2005, the newly Department for Organised Crime within the Ministry of the Interior has become operational and trainings on organizaed crime are on going.

TRAININGS OF THE LEA

Common Training of Judges and Public Prosecutors in the field of fight against organised crime
The Centre for Continuing Education organises training for judges in the Republic of Macedonia. In this respect, special attention is paid on training for fight against organised crime. In addition to judges, the Public Prosecutors too, actively participate in these programs. - There are no specialized judges assigned for conducting organized crime, but according the preparing text on the Law on courts, it is determined that High courts of first instance will be established, within a cases of organized crime will be conducted, so the training of judges on combating cases on organized crime is in procedure.

Training organised by the Police Academy

The Police Academy also provides training for staff involved in the fight against organised crime. Organised crime as a topic is elaborated in the programs for basic police training and in the programs for graduate and postgraduate studies.
The Police Academy, in cooperation with the Ministry of the Interior, has prepared special program for basic training in the field of organised crime
, The program for this training includes issues on organisational structure and competenceis of the newly established Department for Organised Crime, the latest amendments to the national legislation, the up to date methods of work and international documents and cooperation. The training provides for multidisciplinary approach with a special focus on inter-ministerial cooperation.blic Prosecutor’s Office of the Republic of Macedonia, established as a state body that prosecutes perpetrators of crimes, inclusive of the crime of Terrorism and the crimes related to terrorism (Law on Public Prosecutor’s Office, ”Official Gazette of the Republic of Macedonia”, No. 38/04);

OTHER ORGANS INCLUDED IN THE FIGHT AGAINST ORGANIZED CRIME,I.E.TERORISM
Intelligence Agency
Ministry of the Interior through -The Directorate for Security and Counterintelligence,-The Sector on Antiterrorism, and The Special Forces (Special Tasks Unit and the Rapid Deployment Unit), --Ministry of defence ,-Sector for Security and Intelligence;
Directorate on Money Laundering Prevention, which represents an administrative model of a financial intelligence unit, and acts as a mediator between the law-enforcement bodies and the private sector in preventing financing of terrorism (Law on Preventing of Laundering Money and other Proceeds of Crime, ”Official Gazette of the Republic of Macedonia”, No.46/04).

In line with the commitments stemming from the UN Resolution 1267 (1999), on 25.06.2002 the Government of the Republic of Macedonia established an Interdepartmental Coordinative Body, which is entrusted with the coordination of all the activities for fight against international terrorism, including the implementation of the Resolution 1373 from 2001. The body was established within the Ministry of Foreign Affairs and consists of representatives from: the Ministry of the Interior, the Ministry of Defence, the Ministry of Justice, the Ministry of Finance and the Intelligence Agency.

The provisions of Article 138 of Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04) prescribe that state authorities are obliged to provide necessary assistance to the Courts and other relevant bodies, which participate in the criminal procedure, especially with respect to detecting crimes and their perpetrators. In this view, particularly significant is the provision incorporated in Article 142-a of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04) which is establishing the responsibilities of the Customs Administration in the preliminary investigation procedure and in the investigation. Namely, the same powers which are given to the Ministry of the Interior are also given to the legally authorised officers from the Customs Administration in cases when they work on detecting crimes and their perpetrators and on collecting evidence for the purpose of criminal prosecution of perpetrators of criminal offences that are explicitly enumerated in this provision as well as other criminal offences related to export, import and transit of goods across the border line.

The co-operation of the Customs Administration with the Public Prosecutor’s Office and the investigative judge, as well as with state administration bodies, i.e. the Ministry of the Interior and the Financial Police, is elaborated in more details by other provisions from this Law, which regulate the preliminary investigation procedure and the investigation. This co-operation is regulated in particular with the provisions in Article 144-a of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04) and Article 22 of the Law on Public Prosecutor’s Office (“Official Gazette of the Republic of Macedonia”, No. 38/04).

In cases of perpetrated acts of terrorism, or activities related to terrorist acts (preparing, conspiring, etc), the competent Public Prosecutor coordinates the investigation, in accordance with his competencies prescribed by the Law on Public Prosecutor’s Office (”Official Gazette of the Republic of Macedonia” No.38/04), and undertakes necessary measures for collection of evidence for initiating a criminal procedure. The Public Prosecutor coordinates the work of all services involved in the detection of perpetrators of terrorist acts, especially of the Ministry of the Interior.
The connections and relations of the terrorist threats with the smuggling of arms, narcotics and trafficking in human beings, as well as smuggling of radioactive, chemical and biological substances suitable for construction of weapons of mass destruction, are also investigated.

BILATERAL AND INTERNATIONAL COOPERATION

On the 62nd INTERPOL General Assembly, which took place in Aruba in 1993, the Republic of Macedonia acceded to the International Criminal Police Organisation – INTERPOL. The Republic of Macedonia fulfils all obligations based on this membership and respects the statutary norms and regulations of INTERPOL.Still, Rof Macedonia is not a member of EU, the State has not signed an agreement for cooperation with the EUROPOL and do not exchange information, but the experts from EUROPOL has held several workshops on training the police staff.

Recognising the international dimension of terrorist activities, and the necessity for joint action in their suppression, the relevant agencies from R. of Macedonia develop the cooperation with other countries, international organisations and institutions. In this context, the Government of the Republic of Macedonia has, so far, concluded agreements for bilateral cooperation in the fight against terrorism with the Governments of: Turkey (1992); Slovenia (1995); Croatia (1997); Bulgaria (2002); Serbia (2003); Montenegro (2003); Romania (2003); Albania (2004).

Likewise, cooperation and direct contacts are established with competent representatives of Serbia and Montenegro, Slovakia, and the UN Mission in Kosovo- UNMIK.

Within the SECI Centre in Bucharest liaison officers are detached from the Ministry of the Interior and the Customs Administration. A representative from the Sector for Anti-terrorism of the Ministry of the Interior participates in the work of the “Working Group for anti-terrorism”, chaired by the Republic of Turkey.
The need for harmonisation of interests and establishing a joint strategy of the countries of South East Europe for prevention and suppression of threats stemming from international terrorism has resulted in establishing regional cooperation on multilateral level - the South East Europe Intelligence Conference-SEEIC.

In addition, the recommendations included in the reports on the Republic of Macedonia prepared by international organisations and institutions (the European Commission, GRECO, the Council of Europe Select Committee of Experts on the Evaluation of Anti-Money Laundering Measures PC-R-EV/MONEYVAL, the initiatives of the Stability Pact for SEE), were also taken into consideration when harmonizing the national legislation.

Numerous bilateral and multilateral agreements on cooperation in and strengthening of the fight against organised crime have been signed. The same was done in respect of mutual legal assistance in criminal matters, especially in the field of organised crime and severe forms of economic and financial crime, and on extradition of perpetrators of crimes. The representatives of the Ministries of Justice and Home Affairs of the countries of South East Europe, among which is the Republic of Macedonia, have signed a Joint Statement on Strengthening the Regional Cooperation in the field of Organised Crime and Corruption on 18.05.2004.
Bilateral agreements with several countries have been concluded as well. Such as :
Agreement between the Government of the Republic of Macedonia and the Government of the Republic of Slovenia on Cooperation against Terrorism and Organised Crime (1995);

Agreement between the Government of the Republic of Macedonia and the Government of the Republic of Croatia on Cooperation against International Trade in Drugs and Psychotropic Substances, International Terrorism and Organised Crime (1997);

Agreement between the Government of the Republic of Macedonia and the Government of the Republic of Bulgaria on Cooperation in the Fight Against Terrorism, Organised Crime, Illegal Traffic with Narcotic Drugs, Psychotropic Substances and Precursors, Illegal Migration and Other Criminal Offences (2003);

Agreement between the Government of the Republic of Macedonia and the Government of the Republic of Montenegro on Cooperation in the Fight Against Terrorism, Organised Crime, Illegal Traffic with Narcotic Drugs, Psychotropic Substances and Precursors, Illegal Migration and Other Criminal Offences (2003);

Agreement between the Government of the Republic of Macedonia and the Government of the Republic of Serbia on Cooperation in the Fight Against Terrorism, Organised Crime, Illegal Traffic with Narcotic Drugs, Psychotropic Substances and Precursors, Illegal Migration and Other Criminal Offences ;

Agreement between the Government of the Republic of Macedonia and the Government of Romania, on Cooperation in the Fight Against Terrorism, Organised Crime, Illegal Traffic with Narcotic drugs, Psychotropic Substances and Precursors, and Other Illegal Activities, and

Agreement between the Government of the Republic of Macedonia and the Council of Ministers of the Republic of Albania on Cooperation in the Fight Against Terrorism, Organised Crime, Illegal Traffic with Narcotic drugs, Psychotropic Substances and Precursors, Illegal Migration and Other Illegal Activities.

MUTUAL LEGAL ASSISTANCE

In the Republic of Macedonia, the procedure for providing legal assistance for fulfilling the obligations prescribed by international conventions for civil and criminal cases is regulated by national legislation, unless otherwise prescribed by international conventions.

Pursuant to Article 118 of the Constitution of the Republic of Macedonia, ratified international treaties are part of the national legislation and cannot be changed by domestic law. In accordance with Article 119 of the Constitution the President of the Republic of Macedonia concludes international conventions on behalf of the Republic of Macedonia. The Government of the Republic of Macedonia is also entitled to conclude international conventions in cases prescribed by law.

Pursuant to the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos 15/97, 44/02 and 74/04), international legal assistance in criminal cases is granted according to provisions of this Law unless otherwise regulated by the European Convention on Mutual Legal Assistance in Criminal Matters with Protocols, the United Nations Convention on Transnational Organised Crime and other international conventions ratified in accordance with the Constitution of the Republic of Macedonia.

The aforementioned provisions apply when the country, submitting a request, has not ratified the European Convention on Mutual Legal Assistance in Criminal Matters with the Additional Protocol, or when there are no bilateral agreements between the two countries. The principle of reciprocity in criminal matters in the Republic of Macedonia is abandoned, but not excluded, so it means that in certain cases it can be applied pursuant to Article 505 of the Law on Criminal Procedure. Domestic courts may accept a request of a foreign authority for enforcing a criminal verdict of a foreign court, if it is stipulated with an international convention, if there is reciprocity and if the offence is also punishable in accordance with the Criminal Code of the Republic of Macedonia.

Pursuant to Article 5 of the European Convention on Mutual Legal Assistance in Criminal Matters with the Additional Protocol (“Official Gazette of the Republic of Macedonia”, No 32/29), the Republic of Macedonia retains the right to forward the request for enforcement of search or seizure of items. Therefore, in case when the request for legal assistance relates to a crime for which the law prohibits extradition, the rule of reciprocity applies. Pursuant to the Law on Criminal Procedure, the procedure for transferring convicted persons is pursued according to the provisions of this Law, unless otherwise regulated by the European Convention on Transfer of Convicts with Additional Protocol and other international conventions ratified in accordance with the Constitution of the Republic of Macedonia.

In addition to the aforementioned European Convention on Mutual Legal Assistance in Criminal Matters with Additional Protocols, the following international conventions relating to this area are adhered to: the European Convention on Extradition with its Additional Protocol and the Second Additional Protocol; the European Convention on Transfer of Convicts with the Additional Protocol; the European Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime; the UN Convention against Corruption; the European Convention on Cyber Crime; the European Convention on Transfer of Proceedings in Criminal Matters; the United Nations Convention on Transnational Organised Crime with its Two Additional Protocols, as well as the Second Additional Protocol on Mutual Legal Assistance in Criminal Matters.

The Republic of Macedonia is a party to the European Convention on Mutual Legal Assistance in Criminal Matters with Additional Protocols from 1999, and the procedure for serving legal documents is completely in accordance with international practice.

Pursuant to Article 15 of the European Convention on Mutual Legal Assistance in Criminal Matters with Additional Protocols, the requests from foreign courts for taking evidence are transmitted from the Ministry of Justice of a requesting country to the Ministry of Justice of the requested country and are returned back in the same manner.

The provisions of the European Convention on Mutual Assistance in Criminal Matters, with the Additional Protocol, and the Second Additional Protocol to the European Convention of Mutual Assistance in Criminal Matters, are incorporated in the Articles 502 to 508 of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04) which regulate the procedure of rendering international legal assistance and enforcement of international agreements regarding criminal cases.

Article 502 of the Law on Criminal Procedure contains an explicit guarantee that the international assistance in criminal matters is rendered pursuant to the provisions of the Law on Criminal Procedure, unless specified otherwise by the provisions of the European Convention on Mutual Assistance in Criminal Matters with the protocols to it, the United Nations Convention on Transnational Organised Crime or other international documents ratified in accordance to the Constitution of the Republic of Macedonia.

Pursuant to Article 503 of the Law on Criminal Procedure, the requests of the domestic courts for international legal assistance in criminal cases are communicated to the foreign bodies through diplomatic channels. In the same way, the domestic courts are submitted the requests for legal assistance from the foreign bodies.

However, in emergency cases, if reciprocity is established, the requests for legal assistance can be submitted through the Ministry of the Interior.

The European Convention on Extradition, together with the Additional Protocol and the Second Additional Protocol, as well as the Convention on the Transfer of Sentenced Persons with the additional Protocol to the Convention are incorporated in the Articles 509- 525 of the Law on Criminal Procedure, which stipulate the extradition procedure for the accused and sentenced persons, and the procedure for transfer of the sentenced persons.

The Law on Asylum and Temporary Protection (“Official Gazette of the Republic of Macedonia”, No. 49/2003) governs the conditions and procedure for recognition and cancellation of the right to asylum to an alien and a stateless person, who request recognition of the right to asylum in the Republic of Macedonia, as well as the rights and the duties of the asylum-seekers and the persons who are recognised the right to asylum in the Republic of Macedonia. The Law provided for harmonisation of the domestic legislation to the Convention on the Status of Refugees of 1951 and the Protocol on the Status of Refugees of 1967. Implementing the provisions of the Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1894, the Law on Asylum and Temporary Protection guarantees the right to asylum, under conditions and within a procedure established by this law.

A new Law on Aliens is being drafted, which should align domestic legislation with European standards. In defining conditions under which the aliens can enter, reside and leave the territory of the Republic of Macedonia, the provisions from the following European legislation, as well as international instruments are being transposed: Convention Implementing the Schengen Agreement of 14.06.1985; the Common Consular Instructions (CCI) on Visas for the Diplomatic Missions and Consular Posts with the Annexes; Council Decision of 22 December 2003 amending the third subparagraph (Basic criteria for examining applications) of Part V of the Common Consular Instructions; Council Decision 2004/17/EC amending Part V, point 1.4., of the Common Consular Instructions and Part I, point 4.1.2, of the Common Manual as regards inclusion of the requirement to be in possession of travel medical insurance as one of the supporting documents for the grant of a uniform entry visa; the Council decision of 29 April 2004 to amend the General Consular Rules with the introduction of a provision on border control of the accompanied minors; the Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries; the Council Directive of 17.12.2003 on residence permits issued to third country nationals who are victims of trafficking in human beings or who are subjects of an action for facilitation of illegal migration who cooperate with the competent authorities; the Council Resolution of 04.03.1996 on the status of third country nationals residing on a long-term basis in the territory of the Member States; Council Resolution of 30.11.1994 on the admission of third-country nationals to the territory of the Member States for study purposes; the Council Directive of 28. 05.2001 on the mutual recognition of decisions on the expulsion of third country nationals; Council Directive of 22.09.2003 on the right of third country nationals residing lawfully in the territory of the Member States to family reunification; Council Directive of 25.11.2003 concerning the status of third-country nationals who are long-term residents; the Council Decision of 03.12.1998 on the common standards for filling in the uniform format for residence permits; Recommendations and Best Practices of February 2002 regarding controls and surveillance at external borders, expulsion and re-admission; and many others.

D.3 WHAT MEANS DOES YOUR COUNTRY USE TO RECONCILE THE DEMANDS OF SECURITY AND OF THE PROECTION OF HUMAN RIGHTS IN CASES WHERE SUSPICION ABOUT TERRORISM EXISTS? PLEASE INDICATE THE MEASURES TAKEN, IN PARTICULAR IN THE FIELDS OF CRIMINAL LAW, ADMINISTRATIVE LAW, ADMISSION, EXCLUSION AND DEPORTATION OF ALIENS, AND PREVENTIVE ACTIONS.

CAN YOU QUOTE SOME SPECIFIC CASES WHERE THE QUESTION ABOUT SUCH A RECONCILIATION WAS RAISED?

The accused in the criminal procedures for the crimes related to terrorism acts has the same constitutional and procedural rights as the accused in the procedures initiated for other criminal acts, with the exemptions and limitations prescribed by the law, which are incorporated because of the necessity to adopt specific measures for the sake of an effective state response to organized crime, including the terrorist acts.

PROTECTION OF THE RIGHTS OF THE ACCUSED ACCORDING NATIONAL LEGISLATURE AND INTERNATIONAL LEGAL STANDARDS AND THEIR RESTRICTIONS

Right to life has been guaranteed with Article 10 of the Constitution. It determines the inviolability of human life and prohibits the imposition of death penalty. The right to life may not be restricted even under state of war or emergency in the Republic of Macedonia. No one shall be deprived of the right to life on the basis of a court decision for having committed a serious punishable act. This constitutional provision is fully aligned with the provisions on abolition of the death penalty contained in the Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms (of 28.04.1983).

The right to life, however, is not absolute in any country, and this includes the Republic of Macedonia. Namely, a number of exceptions exist in relation to the general prohibition of deliberate deprivation of life. Thus, the Convention for the Protection of Human Rights and Fundamental Freedoms allows for deprivation of life in cases when the use of lethal force by authorised person is absolutely necessary: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or in an action lawfully taken for the purpose of suppressing a riot or insurrection. Similar stipulations concerning the deprivation of one's right to life exist in the Republic of Macedonia. These instances are enumerated in the Law on Internal Affairs (“Official Gazette of the Republic of Macedonia”, Nos. 19/95, 55/97, 38/02, 33/03 and 19/04).
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Prohibition of torture, inhuman or degrading treatment or punishment, slavery or forced labour, have been incorporated in Article 11 of the Constitution. It guarantees the irrevocability of the physical and moral integrity of a person.For that purpose, the Constitution forbids any form of torture, inhuman or degrading treatment or punishment, as well as any form of forced labour.

These Constitutional provisions prohibiting torture are identical with the provisions prohibiting torture in the Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, the Republic of Macedonia has fully accepted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment adopted in November 1987 by the Council of Europe. In that direction RM has successful and active cooperation with the Committee for prevention of Torture.(CTP) European Partnership Action Programme, in the part related to human rights, has given emphasis on the implementation of the Recommendations contained in the Reports of the CPT’s visits to the Republic of Macedonia, and before all the Recommendations on managing impunity and protection measures against harassment.

The main activities with regard to the impunity are the following: submitting annual Reports to the Government on Detected Cases of Exceeding of Authorities; submitting Annual Reports to the Government on the Disciplinary and Criminal Procedures Undertaken; improvement of the co-operation with the public prosecutor’s office and the courts of law for the resolution of such cases.The Implementation of the Convention, with regard to protection measures against harassment, envisages the following: improvement of procedures for arrest and detention in police stations and prisons; keeping records on cases of violated procedures during arrest and detention, full respect of persons deprived of freedom; and training of police officers to comply with legal rights of detainees during a 24 hour detention. It is important to note that the reports hitherto published by the European Committee for the Prevention of Torture have not detected forms of physical abuses of detainees by the prison staff.

Right to liberty and security of person has been included in Article 12 of the Constitution. Its provisions guarantee the inviolability of human freedom and determine the cases and conditions under which liberty of a person accused for a criminal offence may be restricted.Under the Constitution, this right can be restricted only by a court decision and in a procedure determined by law. Anyone who is arrested shall be brought before a judge immediately, and within a maximum of 24 hours. The judge shall decide on the legality of the deprivation of liberty. A person unlawfully or unjustifiably deprived of liberty has a right to legal redress and other rights determined by law. The Law Amending the Law on Criminal Procedure of September 2004 (“Official Gazette of the Republic of Macedonia”, No. 74/04) constitutes a serious legislative effort to define comprehensively the investigative police measures. Particular attention has been dedicated to the conduct with persons detained and apprehended in police station. They may only be apprehended in specially designed and equipped police stations; specially trained officers for reception shall be responsible for these persons, who shall not be involved in police investigation, but shall rather take care of the rights and interests of persons apprehended in police. Additional novelties have been incorporated in provisions stipulating efficient access to legal representative, notification of the family, medical examination, information on the rights, special detailed files and for other mechanisms aimed at prevention of abuses of suspects.

Although the right to a fair trial has not been explicitly mentioned in the Constitution, it has been guaranteed in a number of its provisions pertaining to the presumption of innocence of a person indicted for an offence (Article 13, paragraph 1); to the right to legal redress in case of unlawful conviction (Article 13, paragraph 2); to the right to a counsel of his own choosing and other rights of a person under suspicion that has committed a criminal offence.

The concept of a fair trial has been elaborated in detail in laws governing civil and criminal procedure which guarantee an adequate and fair opportunity to a person to present the arguments and evidence at a public hearing with a view to adversarial argument before an independent and impartial court.

The right to respect of private and family life and inviolability of home has been guaranteed by several articles of the Constitution. Article 25 provides general guarantees for the respect of privacy of a person’s personal and family life and his/her dignity and reputation. The freedom and privacy of correspondence and other forms of communication have been guaranteed in Article 17. It allows only for derogation of privacy of correspondence. In order to allow for introduction of certain special investigative measures required for the fight against organised crime, this Article of the Constitution has been amended. Pursuant to this Amendment to the Constitution, only a court decision may, under terms and by procedure prescribed by law, authorise non-application of the principle of inviolability of correspondence and other forms of communication, in cases where it is indispensable to prevent or reveal criminal acts, to carry out a criminal investigation or where required in the interests of security and defence of the Republic.( Articles 146-150 from the Law on criminal procedure, Draft Law on procedures for interception of communications

Article 26 guarantees the inviolability of the home. The right to the inviolability of the home may be restricted only by a court decision when a detection or prevention of criminal offences or protection of the health of citizens is concerned. For the realisation of these goals, the Constitution of the Republic of Macedonia, Article 18, guarantees the security and confidentiality of personal data.

Macedonia has recognised the right of individual petition before the competent United Nations bodies on alleged violations of rights as guaranteed by international conventions. In that sense, the Republic of Macedonia has, by a declaration, recognised the competence of the The Human Rights Committee - to receive and review complaints by individuals claiming to have been subject to violations of rights as guaranteed by the International Covenant on Civil and Political Rights, which has been taken over by succession from the former SFRY and of theThe Committee against Torture - to review individual complaints submitted on the basis of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which has been taken over by succession from the former SFRY.

The Republic оf Macedonia has signed and ratified the following international instruments: of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Official Gazette of the Republic of Macedonia”, No. 9/91); the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment – Council of Europe (“Official Gazette of the Republic of Macedonia”, No. 23/97); and the Convention for the Protection of Human Rights and Fundamental Freedom – Council of Europe (“Official Gazette of the Republic of Macedonia” No. 11/97).

The Criminal Code (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 42/2002, 43/2003 and 19/2004) in Chapter 15 titled “Crimes against Freedoms and Rights of Individuals and Citizens” contains a new Article 142, which reads:

An authorised official, a person induced by an official person, or a person who upon a consent by an official person, while performing his/her duty, applies force, threat or some other unacceptable means or in an unacceptable manner, with the intention of extorting a confession or some other statement from an accused, a witness, an expert or from some other person, or causes severe physical or mental pain in order to punish a person for a crime that he/she has perpetrated or been accused of, or with the intention to intimidate or force a person give up a right, or causes such pain due to any form of discrimination, shall be punished with imprisonment of one to five years.
When the injured party suffers serious body injuries or other sever consequences as a result of the foregoing crime, the perpetrator shall be punished with imprisonment from one to ten years.

Apart from this crime, the Criminal Code contains several incriminations: which all contain forms of torture or inhuman or degrading treatment by an official person.

Article 15 of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04) determines unconditional exclusion of all illegally obtained evidence, prescribing that evidence collected in an illegal mode by a violation of freedoms and rights as determined by the Constitution, laws and ratified international treaties, as well as evidence arising thereafter, may not be used in court. This law also determines the modes of interrogation of the accused; prescribing that in the course of interrogation his/her personality must be fully respected. At the same time the Law prohibits the use of force, threats or similar means used to obtain his/her confession. Article 251, Paragraph 2 explicitly prohibits the use of medical interventions and means against the accused or the witness that would influence their will upon giving statements. If these prohibitions are violated, the statement of the accused or the witness may not be subject to court decision i.e. it is an essential violation of the provisions of the criminal procedure against which an appeal may be filed.

Article 20, Paragraph 1, Subparagraph 5 of the Law on the Public Prosecutor’s Office (“Official Gazette of the Republic of Macedonia”, No. 38/04) determines that the public prosecutor is obliged to observe the consistent implementation of judgements passed for punishable acts and the protection of persons who have been detained.

At the same time, Article 39 of the Law on Movement and Residence of Aliens (“Official Gazette of the Republic of Macedonia”, Nos. 36/92, 26/93 and 45/02) - regulating the modes of enforcement security measures of expelling an alien, determines that an alien may not be forcibly expelled from the Republic of Macedonia into another country if such expulsion would result in torture or inhuman treatment.

The prohibition of torture or inhuman or degrading treatment or punishment has an absolute character and therefore the violation of this prohibition may not be justified by an execution of a superior’s order. In that respect Article 6 of the Law on Internal Affairs (“Official Gazette of the Republic of Macedonia”, Nos. 19/95, 55/97, 38/2002, 33/2003 and 19/2004) prescribes that an employee of the Ministry of the Interior is obliged to execute the orders of the Minister or of a person delegated by the Minister related to execution of the Ministry’s operations, unless such execution of orders is a criminal offence.

The Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, No. 37/96, 80/99, 04/02, 43/03 and 19/04) prescribes that a subordinate shall not be punished for a criminal act if it has been perpetrated upon the superior’s order in the line of duty, unless the order has been aimed at perpetrating a war crime or any other severe crime or if the subordinate had been aware that the execution would lead to a criminal offence.

The legislation of the Republic of Macedonia explicitly determines the conditions under which the police and security services may apply coercion methods. Pursuant to Article 34 of the Law on Internal Affairs, the authorised official person may use coercion methods for the purpose of: а) restoring law and order after a large-scale disorder; b) overpowering a person disturbing the public peace and order or a person upon arrest; c) rejecting an attack from another person or a defending a guarded facility; d) forcible removal of persons from a certain place, or a person not obeying orders of an official person. Authorised official persons carrying out official duties under direct supervision of a superior may use coercion means only upon the superior’s order. If the means of coercion or firearms are used within authorised limits, the responsibility of the authorised official person who used them shall be excluded as well as the responsibility of the person in charge who ordered such use.
Any case of use of firearms by an authorised officer shall be investigated and assessed by the Sector of Internal Control and Professional Standards. The manner of using firearms and coercion means by police officers has been regulated by an Instruction adopted by the Minister of the Interior.

The Law on Execution of Sanctions (“Official Gazette of the Republic of Macedonia”, Nos. 3/97, 23/99, 74/04) in Article 184 paragraph 1 and Article 185 determines the limits to using force. The conditions under which a convicted person may be subject to coercion means are: when it is necessary to prevent his/her escape from prison or during arrest, in case of physical attacks, inflicting injury, self-injuring, inflicting material damages, or when overpowering convicted persons upon the order of an official person. The Law also defines the means of coercion: separation from a crowd, handcuffing, use of truncheons, water cannons and chemical substances.
Article 19, paragraph 4 explicitly forbids collective punishment of convicted persons as well as use of coercion means as punishment.

The Law on Criminal Procedure in Article 251 stipulates that a person may be subject to physical examination without his/her consent if such examination is necessary for the establishment of facts important for the criminal procedure. Physical examination of other persons may be performed without their consent only if it has to be determined whether certain marks or consequences of a criminal act can be found on their bodies. Medical interventions or use of means to influence the will of accused persons or witnesses upon giving statements are prohibited.

Victims of torture and other forms of inhuman or degrading treatment or punishment may exercise their rights pursuant to Article 50 of the Constitution according to which every citizen may invoke the protection of freedoms and rights set forth in the Constitution, before the courts of law in a procedure based upon principles of priority and urgency.

In cases when torture and other forms of inhuman treatment have elements of a criminal offence, victims of crimes may file criminal charges to the public prosecutor, while acts subject to private lawsuit may be filed to the court of law. In cases of criminal acts subject to prosecution ex officio, if the public prosecutor drops the charges, the victim has a right to take over the prosecution as a subsidiary prosecutor. If as a result of a criminal act the person has been damaged, he/she has a right to file a damages claim, and if he/she is referred to a lawsuit the case shall be resolved in a civil suit in accordance with general provisions on indemnity.

In cases of torture or other forms of inhuman or degrading treatment or punishment by authorised official, the protection may be sought from the Ombudsman, Articles 24, 31, 32 from the Law on the Ombudsman (“Official Gazette of the Republic of Macedonia”, No. 60/03), who in accordance with the Constitution protects the freedoms and rights of citizens when they are violated by an act or activity of state administrative bodies or bodies and organisations with public mandates. If the Ombudsman detects violation, he/she may propose an initiation of a disciplinary measure against the official, or may file a request to the public prosecutor on initiation of criminal proceedings against that person.

Pursuant to the Law on the Ombudsman (“Official Gazette of the Republic of Macedonia”, No 60/03), the Ombudsman is an independent and autonomous body authorised to monitor the respect and protection of constitutional and legal rights of persons in institutions and organisations where their freedom of movement has been restricted. This especially refers to apprehended, detained and imprisoned persons serving a sentence or a correctional measure in penitentiary or correctional institution (Articles 31, paragraphs 1 and 2).

The Ombudsman may carry out visits and inspections anytime without prior announcement or approval; he/she may talk to persons placed in these institutions or organisations without the presence of official persons; and he/she may receive submissions from persons deprived of liberty in a closed envelope and send them answers that may not be inspected by official persons (Article 31, paragraphs 3 and 4).

In addition, pursuant to Article 195, paragraph 3 and 4, the Law Amending the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, No. 74/04), detained persons may be visited by members of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as well as members of the International Committee of the Red Cross. Upon the CPT’s request, the investigative judge is obliged to approve them a visit and communication with detained persons. These visits may not be supervised. Foreign citizens that have been detained following an approval of the investigative judge may be visited by heads of diplomatic and consular missions in the Republic of Macedonia without supervision.

In the context of protection of fundamental human rights and freedoms, Article 18 of the Constitution of the Republic of Macedonia guarantees security and privacy of personal information. The same Article guarantees citizens protection from violation of the personal integrity, deriving from the registering of personal information through data processing.

Aimed at ensuring privacy and confidentiality of personal information, which are subject to collection, processing, storing, using and exchange in the form of automated or hand kept databases, the Republic of Macedonia adopted a Law on Personal Data Protection in 1994 (amended in 2002).

The Constitution of the Republic of Macedonia in Article 26 guarantees the inviolability of the home. The right to inviolability of the home may by restricted only by a court decision in cases of detection or prevention of criminal offences or protection of people’s health. (Article 26, paragraph 2). The Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04) defines the cases in which the right, i.e., principle of inviolability of the home may be infringed upon. According to the Law on Criminal Procedure a search of the home or other facilities of the accused or of other person may be conducted if there are reasonable grounds to believe that the search will result in apprehension of the accused or that traces of the criminal offence shall be found or objects of importance for the criminal proceedings (Article 198). According to the provisions of the Law on Criminal Procedure, the search is ordered by the court in a written, elaborated order, which explicitly designates the place and the person to be searched, as well as the objects, which are searched for or confiscated from the person (Article 199, paragraph 1).However, the search may be conducted without prior presentation of a search warrant and without previous request for turning over the person or objects if an armed resistance is presumed or when suspecting that a severe crime is conducted by a group or organisation it is considered necessary to conduct the search suddenly or if the search is to be performed in public premises. (Article 199, paragraph 3).

During the search of premises or persons, two adult citizens will be present as witnesses.The Law on Criminal Procedure sets forth the possibility that the search is conducted without the presence of witnesses if their presence is not possible immediately to be provided and there is a danger of delay. The reasons for a search without the presence of witnesses must be written in the minutes (Article 200, paragraph 4).

Authorised officials of the police may, without a search warrant, and without the presence of witnesses, perform a search of a person while enforcing a court order for apprehension or while depriving a person from freedom if it is suspected that the person possesses arms or tools for attack or if it is suspected that he/she will throw away, hide or destroy the objects which are to be confiscated from him/her as evidence in the criminal procedure (Article 202, paragraph 2).

After the adoption of Amendment XIX of the Constitution of the Republic of Macedonia passed by the Assembly of the Republic of Macedonia on 26.12.2003 (“Official Gazette of the Republic of Macedonia”, No. 84/03) Article 17 of the Constitution of the Republic of Macedonia was amended. Until the latest constitutional amendment, the law and practice in the Republic of Macedonia there was a prohibition for all forms of eavesdropping and wiretapping and similar methods of infringing upon privacy by the state. The said constitutional Amendment ensured the grounds for precise legal regulation of the use of telephone tapping and other special investigative measures in the fight against organised crime and strict judicial control of such measures.

The right to inviolability of correspondence and all other forms of communication may be limited only based on a court decision, under conditions and in a procedure set forth in law, and if necessary for prevention or detection of crimes, for purposes of instituting criminal procedures or when this is required by the interests of the security and defence of the Republic of Macedonia.

In order to precisely regulate the conditions and procedure for communication interception, the manner of implementing, storage and utilisation of acquired information and data, as well as the manner of establishing control of the legality of communication interception, the Ministry of the Interior has drafted a Law on Communication Interception, which is now in the parliamentary procedure. The Draft Law incorporates the principle that no one shall intercept communication without an order of the competent court, unless such acquired information is intended for or if there is consent on the part of the person or persons involved in the communication. The Draft Law sanctions actions that might violate the privacy of communications stipulating that the production, offering for sale, sale and keeping of communication interception devices must be subject of an approval to be applied for at the Ministry of the Interior.In accordance with the proposed legal provisions, the court may order communication interception regarding a specific person when there are grounds to suspect that the person has committed a crime for which a prison sentence of at least four years is prescribed, or if it is a matter of a crime for which a five year prison sentence is prescribed and in respect of which there are grounds to suspect that it has been committed or is being committed by an organised group, gang, or other crime association. The communication interception order is issued for gathering information and evidence necessary for the successful processing of the case in a criminal procedure, which could not be gathered otherwise.

Criminal law protection of privacy is envisaged in the Criminal Code of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 37/96, 80/99, 04/02, 43/03 and 19/04) which contains incriminations of the following criminal offences: violation of the inviolability of the home (Article 145); illegal search (Article 146); violations of confidentially of letters and other parcels (Article 417); unauthorised publication of personal notes (Article 148); abuse of personal data (Article 149); preventing access to public information system (Article 149-a); unauthorised disclosure of a secret (Article 150); unauthorised wiretapping and audio recording (Article 151); unauthorised recording (152)

SPECIAL INVESTIGATIVE MAESURES

With the entry into force of the Law on amending the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, No. 74/04) the right to privacy may also be limited under the conditions and in the way determined with this Law by applying special investigative measures.

According to the regulations of the Law on Criminal Procedure, an order by the investigative judge, i.e. an order by the public prosecutor may authorise undertaking the following special investigative measures:
Communication interception and entry in the home and other premises or transportation vehicles for creating conditions for communication interception, under the conditions and according to the procedure established by law,
Inspection and search of the computer system, seizing a computer system or parts thereof or the base for storing computer data,
Secret surveillance, monitoring and audiovisual recording of persons and objects by technical means,
Simulated purchase of objects, as well as simulated bribing and simulated acceptance of bribe,
Controlled delivery and transport of persons and goods,
Using undercover agents for monitoring and collecting information or data,
Opening a simulated bank account, where proceeds of crime can be deposited, and
Registration of fictitious legal persons or using existing legal persons for data collection.

The application of the special investigative measures is foreseen only for providing data and evidence necessary for successfully conducting the criminal procedure that cannot be collected trough other methods or whose collection would involve substantial difficulty, for criminal offences for which imprisonment of at least four years is prescribed, for criminal offences for which imprisonment of up to five years is prescribed and for which there are grounds to believe that has been committed by an organised group, a gang or another criminal association.

In the event when there is no knowledge of the identity of the perpetrator of the crime, special investigative measures may be ordered concerning the subject of the criminal offence.

In cases determined by law, in the preliminary investigative procedure, special investigative measures are determined by an order of the public prosecutor or the investigative judge, and in the course of the investigation, only by an order by an investigative judge.

In the preliminary investigative procedure, particular investigative measures are determined by an order written and argued by the investigative judge, on the basis of a proposal written and argued by the public prosecutor. At this stage of the criminal procedure, the investigative judge decides with a written order on the application of all special investigative measures, except for the special investigative measure: communication interception and entry in a home and other premises or transportation vehicles for creating conditions for communication interception. If there is disagreement between the public prosecutor and the investigative judge as regards the application of the special investigative measures, the Chamber of the basic court, consisting of three judges, shall decide.

In the preliminary investigation procedure, when there is no knowledge of the identity of the perpetrator of the criminal offence, special investigative measures may be authorised with a written and argued order by the public prosecutor, and on the basis of a written and argued proposal by the Ministry of the Interior also. The public prosecutor in the above case may decide, with a written order, to apply special investigative measures, except for applying the special investigative measures: communication interception and entry in a home and other premises or transportation vehicles for creating conditions for communication interception, and inspection and search in computer systems, seizing computer systems or parts thereof, or the base for storing computer data.

The order for the application of special investigative measures is enforced by the Ministry of the Interior, the Customs Administration of the Republic of Macedonia and the Financial Police.

The order contains data about the individual against whom investigative measures are applied when the perpetrator is known, the grounds of suspicion for the committed crime, the facts wherefrom the application of special investigative measures emerges, as well as the manner, extent and duration of such measures.

The implementation of special investigative measures, except for the enforcement of the special investigative measure: communication interception and entry in a home and other premises or entry in transportation vehicles for creating conditions for communication interception, may last up to four months. However, upon a proposal of the public prosecutor, when the order is issued by the investigative judge, i.e. upon a proposal of the Ministry of the Interior, when the order is issued by the public prosecutor, the duration of the special investigative measures may be extended for at least three months for justifiable reasons.

If the special investigative measures are undertaken without an order of the investigative judge, i.e. without an order of the public prosecutor or are undertaken contrary to the regulations of the Law on Criminal Procedure, the evidence gathered through the use of such measures may not be used in the criminal procedure.

Nevertheless, the data, reports, documents and objects collected with the use of special investigative measures under the conditions and in the manner prescribed with the regulations of the Law on Criminal Procedure may be used as evidence in the criminal procedure.

MEASURES TAKEN IN THE FIELDS OF CRIMINAL, ADMINISTRATIVE LAW,ADMISSION EXCLUSION AND DEPORTATION OF ALIENS AND PREVENTIVE ACTIONS

Pursuant to Article 29 of the Constitution of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, Nos. 52/91, 01/92, 31/98, 91/01 and 84/03) aliens in the Republic of Macedonia enjoy freedoms and rights guaranteed by the Constitution, under conditions determined by law and international agreements. The Republic of Macedonia guarantees the right to asylum to foreign nationals and stateless persons who have been expelled because of their democratic and political conviction and activity. An alien may only be extradited pursuant to a ratified international treaty and upon the principle of reciprocity.
The Macedonian law does not permit an extradition of a Macedonian citizen for any criminal offence, inclusive of the criminal offence of terrorism (Article 4 from the Constitution of the Republic of Macedonia and Article 510 from the Law on Criminal Procedure). However, under certain pre-conditions, a foreigner-perpetrator of terrorist act can be extradited (Article 29 from the Constitution of the Republic of Macedonia and Article 510 from the Law on Criminal Procedure). Namely, in accordance with Article 29 of Constitution of the Republic of Macedonia, a foreigner may be extradited only on the basis of a ratified international agreement and on the principle of reciprocity. A foreigner can not be extradited for a political criminal offence. Pursuant to the explicit provision of the Constitution, the acts of terrorism are not considered as political criminal offences. Article 510 of the Law on Criminal Procedure prescribes the prerequisites for extradition. Namely, the person whose extradition is requested, must not be a citizen of the Republic of Macedonia; the crime for which the extradition is requested must not be committed on the territory of the Republic of Macedonia, against it or against its citizens; the crime for which the extradition is requested must be punishable, according to both domestic and the law of the country in which it has been committed. Additionally, the criminal prosecution and the execution of the punishment should not have expired the statute of limitations before the foreigner is detained or interrogated as an accused; the foreigner must not have a previous conviction by a domestic court for the same crime; or they must not have a previous acquittal by a final court judgement, regarding the same crime, by the domestic court; or the criminal procedure against them must not be interrupted or the prosecution act must not be irrevocably rejected, unless a guarantee is issued for realisation of the lawful property request of the injured party. Furhtermore, the provisions of the Law on Criminal Procedure require that the identity of the person whose extradition is requested must be determined and that there must be sufficient evidence for a founded suspicion that the foreigner whose extradition is requested has committed a criminal offence or the sentence is final.

An alien may not be extradited for a political criminal offence. Acts of terrorism are not considered as political criminal offences. Pursuant to Article 39 of the Law on Movement and Residence of Aliens (“Official Gazette of the Republic of Macedonia”, Nos. 36/92, 36/92, 66/92, 26/93 and 49/03) an alien may not be expelled from the Republic of Macedonia if his/her life would be in danger due to racial, religious or ethnic affiliation, political convictions or if he/she would be exposed to mistreatment or inhuman conduct.

Article 3 of the European Convention on Extradition with the Protocols (“Official Gazette of the Republic of Macedonia”, No. 32/99) specifies that extradition may not be approved for acts that fall within the category of political criminal offences or offences related with such criminal offences. The extradition may not be approved for prosecution of persons for their racial affiliation, religion, ethnicity or political convictions.

Article 11 of the European Convention on Extradition with the Protocols specifies that extradition may be approved only if the requesting state guarantees that the death penalty shall not be executed and that it shall be exchanged with another penalty.

Pursuant to the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/02 and 74/04), the criminal chamber of the competent court assesses whether the documentation submitted by a foreign state through the Ministry of Justice fulfils the legal prerequisites for the extradition, and adopts a decision. The competent court submits the decision to the Ministry of Justice of the Republic of Macedonia. The Minister of Justice shall not allow extradition of an alien that has been granted asylum in the Republic of Macedonia or if he/she has been accused of political or a war criminal offence. In addition, the Minister of Justice shall not allow extradition of an alien if there are serious grounds for suspicion that he/she may be exposed to torture and other form of cruel, inhuman or degrading treatment or be subject to death penalty.

The Government of the Republic of Macedonia upon the proposal of the Minister of Justice and following the detection of the foregoing facts may decide not to allow extradition, if it deems that especially justified interests of the state exist.

Obligations arising from the Convention against the Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment from 1984, ratified by the Republic of Macedonia, and especially Article 3 (the principle of non-refoulement) of the Convention are fully applied to the Law on Asylum and Temporary Protection that entered into force in August 2003.

According to Article 7 of this Law, an asylum seeker, recognised refugee or a person under humanitarian protection may not be extradited or forcibly expelled to a country where he/she may be subject to torture, inhuman or degrading treatment or punishment. These persons in accordance with article 30 of the Law on Asylum and Temporary Protection are guaranteed the right to asylum for humanitarian protection and have concrete rights and duties.

The Section of Asylum within the Ministry of the Interior is competent to determine the actual situation of those cases (Article 12 of the Law on Asylum and Temporary Protection). Currently in the Republic of Macedonia there are 809 persons whose rights to asylum due to humanitarian reasons have been recognized by the Department in 2003 and 2004, as it has determined in the course of the procedure that they would be subject to inhuman and degrading treatment upon their return to Kosovo – Serbia and Montenegro.

The prohibition of expulsion (the principle of non-refoulement) in the sense of Article 4 of the aforementioned Convention has an absolute effect. Namely, pursuant to the Law on Asylum and Temporary Protection this prohibition also refers to foreign citizens who are not entitled to the asylum right, i.e. who are subject to exclusion of this right pursuant to Article 6 of the Law.

In the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos.15/97, 44/02 and 74/04) where in certain criminal proceedings the defendant must be appointed a defence attorney. Thus, if the defendant does not appoint a defence attorney, the state shall provide legal assistance while the Court pays expenses

DETENTION AND DEFENCE

The police officer, by rule, has to provide a court order prior to arrest. Article 12, paragraph 2 of the Constitution of the Republic of Macedonia strongly favours existence of court order so as to allow that a person be deprived of liberty. The Constitutional Court of the Republic of Macedonia similarly insists on this condition in a number of its decisions. In that sense, no person may be deprived of liberty if legal guarantees have not been respected consistently. The person arrested by a court order shall be without delays brought before the competent investigative judge without delays.

Pursuant to Article 12 of the Constitution of the Republic of Macedonia and Article 188 of the Law on Criminal Procedure, the police may only by derogation deprive a person of liberty without a court order in cases when the person has been caught while perpetrating the offence (in flagranti) or in case of danger of delay (that has to be proved before court), if concurrently some of the reasons for arrest have been met.

The Law on Criminal Procedure specifically defines situations when the suspected may be put in custody in police station, over a maximum of 24 hours. Authorised officers of the Ministry of the Interior may place the person in police custody only when necessary in order to determine his/her identity, verify an alibi, collect necessary data for the procedure, and if simultaneously conditions for detention have been met. In all other cases, the suspect must be immediately brought before an investigative judge who shall decide on the lawfulness of the deprivation of liberty and shall order his/her release if no conditions for arrest exist (Article 188 of the Law on Criminal Procedure).

The detention may not exceed 24 hours from the moment the person has been detained. After this time, the detainee shall be either acquitted or brought before an investigative judge.

The person shall be detained in specialised police stations. The official person of the Ministry keeps records for every detainee, entering the following data: day and time of detention; reasons for deprivation of liberty; reasons for detention; the time when he/she has been legally advised; marks of visible injuries; illness; mental derangement; time when his/her family, attorney, doctor, and diplomatic-consular offices have been notified; data on interrogation; whether he/she has been transferred to another police station; acquittal or bringing before the court; and other relevant data.

When the detained person has been brought before an investigative judge, the judge shall ex officio examine the legality of detention for which he/she adopts a decision. If the detained person has not been brought before an investigative judge, he/she may request examination of the legality of detention within 30 days, for which the investigative judge adopts a decision. An appeal against the decision may be filed within 48 hours, and a decision on the appeal shall be adopted within three days.

The Law on Criminal Procedure in Article 185 stipulates that only the investigative judge of a competent court may order detention. In this manner, any other body apart from the court has been excluded from the possibility to decide upon detention.

The investigative judge may order a short-term detention of 48 hours of the detainee upon the proposal of the public prosecutor if there is reasonable doubt that the detainee has performed a crime and when the legal terms for detention have been met. This short-term detention is pronounced if the public prosecutor has not initiated an investigation or pressed charges against the person. If within 48 hours the public prosecutor does not request detention, the accused person shall be acquitted.

The overall duration of the detention in the course of investigation, including the deprivation of liberty prior to the detention decision, may not be longer than 180 days. After the expiry of this term, the detainee shall be immediately acquitted. (For less serious offences for which summary proceedings are prescribed, detention may last only until necessary to conduct certain investigative actions, but no longer than 8 days.)

The latest Amendments to the Law on Criminal Procedure introduced absolute time frames for duration of detention, after charges have been brought and until the completion of the main hearing. Namely, detention may last up to a year for criminal offences punishable by a prison sentence of up to 15 years, and up to two years for offences punishable with life imprisonment.
Pursuant to Article 142 paragraph 9 of the Law on Criminal Procedure (“Official Gazette of the Republic of Macedonia”, Nos. 15/97, 44/00 and 74/04) the person against whom actions are undertaken by the Ministry of the Interior can within 30 days from the date of undertaking the actions, request, from an investigative judge to examine their legality and the potential violation of rights, and the competent court has the duty to establish this by a ruling. The Ruling is delivered to the requesting party, to the Ministry of the Interior and to the competent public prosecutor. Pursuant to Article 22 paragraph (6) of this Law, an appeal is permitted against this ruling. The appeal should be submitted within 48 hours to the criminal council composed of three professional judges. The Chamber has the duty to act upon the appeal within three days.

Besides the aforementioned rights, pursuant to Article 530 of the Law on Criminal Procedure, the person who was, due to mistake or unlawful operation of the body, unfoundedly or unlawfully deprived of liberty, enjoys the right of compensation of damage.

The right to an attorney is a constitutionally guaranteed right. Pursuant to Article 12 of the Constitution of the Republic of Macedonia, the person summoned or detained has a right to an attorney in the police station or in court procedures.

This right has been implemented in Article 3, paragraph 2 of the Law on Criminal Procedure according to which the suspect or the defendant must first be clearly advised on his/her right to remain silent, his/her right to consult a lawyer and to acquire an attorney of his/her choosing during the examination. Pursuant to Article 63 of the Law on Criminal Procedure, the suspect in the preliminary proceedings, i.e. the defendant before the first examination must be advised that he/she has a right to an attorney of his/her choosing and that the attorney may attend his/her examination.

The defendant may defend him/herself alone and is free to choose and appoint an attorney. This right is not absolute as the defendant may only appoint a lawyer as an attorney, and Article 66 of the Law on Criminal Procedure stipulates the cases of mandatory defence. Hence, if the defendant is hearing or visually impaired, or incapable of defending himself/herself, or in case of a criminal procedure against him/her for a crime punishable with a life sentence, he/she must be represented by a defence attorney from the first hearing. In the event the defendant has been sentenced to detention, he/she shall have a defence attorney while detained. Following the indictment for a crime punishable with ten or more years of imprisonment, the defendant must have an attorney at the time of delivery of the bill of indictment against him/her. The defendant tried in absence must have an attorney upon the decision on his/her trial in absence.

If, in cases of mandatory defence the defendant has not appointed an attorney, the President of the Court shall appoint an ex officio attorney for the rest of the proceedings until the verdict comes into effect. The defendant shall be informed on the appointment of an ex officio attorney along with the issuance of the indictment.
The defendant may have the advice of defence attorney during the course of the entire proceedings. A defendant who has been detained may exchange letters and talk with the defence attorney freely and without supervision (Article 70). Only by derogation, this right may be subject to supervision in the course of the proceedings if the detention has been determined due to a risk of influence over the evidence (Article 184, paragraph 2). Such an order may only be given by the investigative judge, who is sole authorised to review the written correspondence and to be present during conversation.

PROTECTION OF THE VICTIMS AND WITNESSES OF ORGANIZED CRIME.

Furthermore, the Law on Criminal Procedure has been amended by a new Chapter XIX-a, "The Protection of Witnesses, Collaborators of Justice and Victims”. Namely, the public prosecutor, the investigative judge and the Chamber president shall undertake activities for securing efficient protection of witnesses, collaborators of justice, and victims in the course of the procedure, if they appear as witnesses, and if there is clear and present danger of their exposure to intimidation, threats to life, health or physical integrity or if their protection is required. The protection is carried out in a special mode of interrogation and participation into the procedure. In such cases witnesses shall only be heard in the presence of the public prosecutor and the investigative judge, or the Chamber president and in a location that guarantees the protection of witness's identity. In addition, other communication and telecommunication devices may be used upon the witness's consent. Transcripts from the minutes containing the witness’s testimonies without his/her signature shall be submitted to the defendant and his/her attorney, who may pose questions to the witness in writing through the court.

Protection may also be carried out through employing the Programme for the Protection of Witnesses. A request to participate into the Programme is filed to the Public Prosecutor of the Republic of Macedonia, and submitted by the competent public prosecutor, investigative judge or the Chamber president. If circumstances allow such participation, the Public Prosecutor of the Republic of Macedonia submits a proposal to a competent body to adopt a decision on participation in the Programme.

THE SPECIAL INVESTIGATIVE TEHNIQUES AND THE WITNESS PROTECTION PROGRAM AND THE ROLE OF JUDGES IN STRIKING BALANCE BETWEEN PROTECTING THE PUBLIC INTEREST AND HUNAM RIGHTS IN THE CONTEXT OF TERRORISM

In Macedonia, the special investigative techniques were implemented for the propose of effectively combating the organized crime. But, all the law enforcement agencies, when applying these measures, will have to take into consideration that these measures are not a quick-fix solution to all problems to the investigations.The States must take the necessary measures to allow for the appropriate use of these techniques because they severely intrude into rights of the defendants (also the victim’s ones) and particularly fall within the range of protection of Art.8 of ECHR (private life, correspondence) and therefore call for an effective control by the judiciary, as is clearly indicated by the case law of the ECHR (Case of Kopp v.Switzerland:Case of Venezuela Contreras v.Spain, Case of Halford v.U.K, When assessing the conformity of measures of surveliance with regard to Art.8 EHCR, and when deciding whether to apply these measures, the agencies authorised for applying these measures have to examine the conditions the way the ECHR do so. Namely, ECHR follows a highly complex and sophisticated pattern, which consists of the following steps: Applicability of Art.8 whether the contested measures in abstracto fall within the range of Art.8, Compliance with Art.8 , existance of an interference in the applicant rights, justification for the interference, existence of one or more legitimate aims reffered to a paragraph 2 and if it is necessary in a democratic society to achieve those aims, to be in accordance with the law, to have its legal basis in domestic law, to assess the quality of the law, the law in question has to enable a person concerned to foresee the consequences of the law, the need for sufficient clarity of the law, existence of measure of legal protection in domestic law against arbitrary interference by public authorities with the rights safeguared by paragraph 1., legitimate purpose of interference, existence of effective mechanism of control. So, adequate and effective guarantees have to be taken against the abuse of these techniques.The guarantees are strictly determined by the Law, by specifying the conditions for using of these measures, definition of the categories of people liable to have been taped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of taping, a procedure for drawing up the summary reports containing intercepted communication, precautions in order to communicate the recordings intact for possible inspection by the judge and by the defence and the circumstances in which recordings may or must be erased or destroyed, in particular when the accused has been discharged or acquitted by the court. This stresses the predominant functions of the judiciary.The main guarantee for preventing of abusing of these measures is that they should be undertaken only when other evidence can not be collected.Otherwise, the police authorities will always seek for them and will justify using of these measures, in order to hide their incapability and their inefficiancy to find another evidence, especially the material ones. Finally, it should be proscribed by the law, that other evidence should be collected, beside the evidences secured through these measures. Thus, a continous training on the applying, and supervising of these measures in relation to the human rights should be performed for all the state organs that are included in the fight against organized crime, including terrorism. Also, the decisions reffering the freezing or seizure of assets should be strictly prescribed by the law because of the possibility for the rights of privacy and property to be seriously refringed.

The judge has to make a balance between the need for the protection of the rights of the victims of the crime and the right of the defendant to a fair trial (Art.6 ECHR).This question arises in the case when the victims and witnesses of such serious crime for which a severe punishment is prescribed, are encompassed in the witness protection program.The witnesses proposed by the prosecutor, tend to avoid direct confrontation with the accused, but on the other hand it is a restriction of the defendant’ s right to an adversarial trial, where both prosecution and defence must be given the opportunity to confront and to comment on the evidence introduced by the other party, to examine the witnesses against him, (Doorsson Judgement)This also requires special training for judges and prosecutors.To ensure that the accused receives a fair trial any difficulty caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities.So, no conviction may be based either solely or to a decisive extent on the statement of witnesses the defendant was not able to confront, either as a consequence of the absence or the anonymity of the witness (Doorson v.the Nederlands).One of the guarantees for a fair trial is the defendend’s councelour to be present during the hearing of the witness who is not going to be present at the trial. In a case of applying of the measures that limitate the rights of defence, it must be examined whether the accused was provided with an adequate opportunity to exercise his defence rights within the meaning of Art.6 in respect of the evidence, including whether the way the evidence was obtained, was fair. Taking into consideration that these measures are recently implemented in the domestic legislative, they have not been yet applayed on Terrorism case. Also, The declaration of Basic principles of Justice for victims of crime and Abuse of power 40/34 of 29.11.1985 outlines a catalogue of basic principles for victims of crime regarding access to justice and fair treatment, compensation and assistance.Thus reflects the collective will of the international community to restore the balance between the fundamental rights of suspects and offenders and the rights and interests of victims.This legal provisions safeguarding the rights of victims of crime have been incorporated in UN law,e.g. in the Statute and the rules of the ICTY and in the Rome Statute of the ICC The ICTY in the Hague has established a special unit for witness reception and allows victims to give testimony through video links.In RM, fullfiling the obligations of the UN Convention against transnational organized crime, in the Trafficking in human beings, criminal cases, measures for the victims to be questionned through the video conferention from their domestic state, were undertaken. Also a Shelter for the foreign citizens-victims of trafficking in Skopje, have been established with appropriate medical, psyhologycal and legal assistance. This shelter can be used for the victim of other criminal offences, too.



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