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International cooperation in criminal matters legal framework and examples from practice Macedonian experiences Ohrid 12 -13. 09. 2013
Law on international cooperation in criminal matters Official Gazette of the Republic of Macedonia no. 124 of 20 September 2010
Types of international cooperation 1. INTERNATIONAL LEGAL ASSISTANCE; 2. TRANSFER OF CRIMINAL PROCEEDINGS; 3. EXTRADITION; 4. ENFORCEMENT OF JUDGMENTS AND TRANSFER OF SENTENCED PERSONS
Criminal Procedure Code Special Procedures Chapter XXX Procedure for international legal assistance Recognition of foreign judgments Transfer of criminal proceedings Chapter XXXI Procedure for extradition of prosecuted and sentenced persons and procedure for transfer of sentenced persons Articles 502 to 509 Articles 509 to 525 -b CPC
International agreements ratified in line with the Constitution of the Republic of Macedonia 1. EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS; - SECOND ADDITIONAL PROTOCOL; 2. UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME; 3. EUROPEAN CONVENTION ON THE TRANSFER OF PROCEEDINGS IN CRIMINAL MATTERS; 4. EUROPEAN CONVENTION ON EXTRADITION AND PROTOCOLS THERETO; 5. EUROPEAN CONVENTION ON THE TRANSFER OF SENTENCED PERSONS AND ADDITIONAL PROTOCOL THERETO;
1. International legal assistance • PURSUANT TO ARTICLE 502 CPC: REFERENCE TO PROVISION OF THE CODE; REFERENCE TO PROVISIONS OF THE EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS AND THE PROTOCOLS THERETO; UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (PALERMO CONVENTION).
Pursuant to Article 503 CPC: Reference to the procedure, governing that requests for ILA can be submitted: - through diplomatic channels - via the Ministry of Justice - directly to the competent court - in urgent cases, through INTERPOL PURSUANT TO ARTICLE 504 CPC: MINISTRY OF FOREIGN AFFAIRS ADDRESSES THE COMPETENT COURTS THROUGH THE MINISTRY OF JUSTICE
Article 505 -a CPC governs confiscation, seizure of objects and the temporary securing of property or assets in connection with a criminal offence. ARTICLE 506 CPC GOVERNS THE OBLIGATION OF THE COURT TO SUBMIT INFORMATION ON THE PROSECUTED PERSON AND ON THE CRIMINAL OFFENCE TO THE MINISTRY OF INTERNAL AFFAIRS IN CASES WHERE AN INTERNATIONAL AGREEMENT FORESEES DATA CENTRALISATION
New Law on international cooperation in criminal matters Article 15 International legal assistance shall comprise: 1. - procedural actions, such as submitting documentation, written evidence and objects in connection with the criminal proceedings in the requesting state; 2. - submitting information without prior request; 3. - exchanging certain information and notifications; 4. - temporary transfer of detained persons; 5. - cross-border surveillance; 6. - controlled delivery; 7. - use of persons with concealed identity; 8. - joint investigative teams; 9. - monitoring communications; 10. - interrogation via video-conferencing;
11 - interrogation via teleconferencing; 12 – search of premises and persons; 13 – temporarily securing objects, property or assets in connection with a criminal offence; 14 – temporarily freezing, seizing and blocking funds, bank accounts and financial transactions or proceeds of crime; 15 – confiscating assets; 16 – seizing objects; 17 – personal data protection; 18 – criminal and civil liability of office holders; 19 – submitting excerpts of criminal records.
Request form and content Article 16 (1) The request shall be submitted in writing. (2) The request shall contain: 1. name of the requesting authority and name of the requested authority; 2. legal basis for the international legal assistance; 3. description of actions and reasons for submission of the request; 4. designation of the criminal offence and brief description of the facts of the case; 5. personal data and nationality of the person subject to the request for international legal assistance; 6. the person’s capacity in the proceedings; 7. title of the document being submitted and recipient’s name and address, in the case of submission of judicial and other documents. (3) The request and documents must be furnished with a signature and stamp of the judicial or other competent authority submitting them. (4) If the data contained in the request and supporting documents are not sufficient, the submitting authority may be requested to provide additional information and documents within a reasonable period of time upon receipt of the request.
II. Transfer of proceedings in criminal matters ARTICLE 118 OF THE CRIMINAL CODE CRIMINAL LEGISLATION SHALL APPLY TO CITIZENS OF THE REPUBLIC OF MACEDONIA WHO HAVE PERPETRATED CRIMINAL OFFENCES ABROAD, IF THEY ARE FOUND ON THE TERRITORY OF THE REPUBLIC OF MACEDONIA OR ARE EXTRADITED.
Article 507 CPC governs cases where documents relating to criminal proceedings are transferred to another state for the purposes of criminal prosecution, and the other state does not object; The decision on the transfer is adopted by the competent public prosecutor before initiation of an investigation, by the investigative judge upon proposal of the public prosecutor thereafter, and by the council upon proposal of the public prosecutor before the beginning of the main hearing. ART. 508 CPC GOVERNS CASES WHERE A FOREIGN COUNTRY REQUEST THAT CRIMINAL PROCEEDINGS ARE TAKEN UP IN THE REPUBLIC OF MACEDONIA; THE DECISION TO ACCEPT DOCUMENTATION IS ADOPTED BY THE COMPETENT PUBLIC PROSECUTOR.
Chapter III of the new Law on International Cooperation in Criminal Matters governs: - Section One – taking up criminal proceedings in Macedonia, and Section Two – transferring criminal proceedings to other countries NOVELTIES: - INTRODUCTION AND DEFINITION OF CONDITIONS FOR TAKING UP CRIMINAL PROCEEDINGS; 1. THE ACT MUST BE A CRIMINAL OFFENCE IN THE REPUBLIC OF MACEDONIA. 2. PROCEEDINGS ARE CARRIED OUT ACCORDING TO NATIONAL LEGISLATION; 3. REGARDING THE TYPE AND SEVERITY OF CRIMINAL SANCTIONS, THE LAW OF THE FOREIGN COUNTRY SHALL APPLY IF IT IS MORE LENIENT TO THE PROSECUTED PERSON; 4. CRIMINAL PROCEEDINGS MAY NOT BE CARRIED OUT IN ABSENTIA.
Example of international legal assistance and transfer of criminal proceedings in the Republic of Macedonia CASE OF SEBASTIAN AHMED international cooperation with Belgium
Extradition n n Current legislation Remand in custody determined by investigative judge Investigative measure taken by the investigative judge No rule of speciality No shortened procedure n n n New law Remand in custody upon proposal of the public prosecutor Investigative measures carried out by the pretrial judge Definition of the rule of speciality, Article 51 Shortened procedure, Article 72
Art. 52 Legal requirements for extradition 1. THE PERSON MAY NOT BE A MACEDONIAN NATIONAL (EXCEPTION IN ART. 13 OF THE LAW ON COOPERATION WITH THE HAGUE TRIBUNAL); 2. DETERMINED IDENTITY; 3. THE CRIMINAL OFFENCE WAS NOT PERPETRATED ON THE TERRITORY OF THE REPUBLIC OF MACEDONIA OR AGAINST ITS CITIZENS; 4. THE ACT MUST BE DEFINED AS A CRIMINAL OFFENCE IN BOTH COUNTRIES; 5. THE PERSON HAS NOT BECOME IMMUNE TO PROSECUTION DUE TO LAPSE OF TIME; 6. NON BIS IN IDEM; 7. THERE MUST BE SUFFICIENT EVIDENCE TO SUPPORT REASONABLE SUSPICION;
New aspects of the law regarding the requirements for extradition 8) The person to be extradited perpetrated the criminal offence after becoming age 14 9) if the person to be extradited was sentenced in absentia, the requesting foreign country must guarantee that the person will be retried in his/ her presence (additional protocol)!
Rule of speciality Член 51 A person who has been extradited shall not be proceeded against, sentenced, restricted in his personal freedom for any other reason or extradited to another country for any offence committed prior to his surrender other than that for which he was extradited, except in the following cases: 1) when a competent authority consents to extradition and submits the documents mentioned in Article 58 of this Law and a legal record of any statement made by the extradited person; or 2) when that person, having had an opportunity to leave the territory of the state to which he has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it.
Rights of the person whose extradition is requested - Right not to comment on the extradition request, - Must not be detained in a police station for more than 24 hours, - Upon the person’s request, the diplomatic mission of the state, the nationality of which the person holds, must be informed of the fact that the person has been detained, - Right to a lawyer, - Information on the shortened extradition procedure, - Right to lodge an appeal against the decision that the legal requirements for extradition have been met.
Practical example of extradition from Macedonia The case of Saila Jandan Nerman
Chapter IV Enforcement of judgments in criminal cases and transfer of sentenced persons - GOAL OF THE ENFORCEMENT OF JUDGMENTS IN CRIMINAL CASES - PROCEDURE FOR RECOGNISING - MAKING JUDGMENTS - THE TEXT OF THE JUDGMENT AND THE NAME OF THE COURT ARE TAKEN FROM THE FOREIGN JUDGMENT - THE COUNCIL DECIDES ON THE SENTENCE ON THE BASIS OF NATIONAL LEGISLATION - PRESENCE OF A PUBLIC PROSECUTOR AND A DEFENSE LAWYER - THE TIME SPENT REMANDED IN CUSTODY AND SERVING THE SENTENCE SHALL BE TAKEN INTO ACCOUNT - RIGHT TO APPEAL BY THE SENTENCED PERSON, THE DEFENSE LAWYER AND THE PUBLIC PROSECUTOR - IF THE PERSON HAS BEEN THE SUBJECT OF AN AMNESTY OR PARDON BY THE FOREIGN COURT, THIS SHALL ALSO APPLY ON THE TERRITORY OF THE REPUBLIC OF MACEDONIA
Requirements for enforcement Article 86 A FOREIGN JUDGMENT IN A CRIMINAL CASE SHALL BE ENFORCED IF: 1) THE JUDGMENT IS FINAL AND ENFORCEABLE; 2) THE ACT MUST BE DEFINED AS A CRIMINAL OFFENCE ACCORDING TO NATIONAL LEGISLATION; 3) THE JUDGMENT MUST HAVE BEEN MADE IN THE PRESENCE OF THE SENTENCED PERSON; 4) THE SENTENCE HAS NOT BECOME UNENFORCEABLE BY REASON OF LAPSE OF TIME ACCORDING TO NATIONAL LEGISLATION.
The following documents must be submitted together with the request for enforcement of a judgment by a foreign competent authority in the Republic of Macedonia and vice versa: 1) ORIGINAL OR A CERTIFIED COPY OF THE JUDGMENT WITH A CLAUSE STATING THAT THE JUDGMENT IS FINAL AND ENFORCEABLE; 2) PERSONAL INFORMATION, NATIONALITY AND PLACE OF RESIDENCE OF THE SENTENCED PERSON; 3) TEXT OF THE LEGAL PROVISIONS THAT SERVE AS THE BASIS FOR THE JUDGMENT; AND 4) DOCUMENT ON THE PERIOD OF TIME SPENT BY THE PERSON REMANDED IN CUSTODY OR SERVING THE SENTENCE
- Transfer of sentenced persons Foreign nationals Nationals of the Republic of Macedonia THE TRANSFER PROCEDURE IS REGULATED - TRANSFER REQUEST - ADDRESSEE - APPROVAL OF THE TRANSFER OF THE SENTENCED PERSON - REQUIRED DOCUMENTS - A RECOGNISED JUDGMENT IS SUBMITTED TO THE SENTENCED PERSON; AFTER IT HAS BECOME FINAL, THE MINISTRY APPROVES THE TRANSFER.
Article 96 Transfer may only be carried out if: 1) the sentenced person is a national of the state, in which the rest of the sentence is to be served; 2) the judgment is final; 3) at least six months of the sentence remain at the moment of receipt of the transfer request; 4) the sentenced person or his legal representative or guardian appointed due to the person’s age or psychological or physical state agrees to the transfer; 5) the acts for which the person was sentenced constitute a criminal offence in the state, in which the sentence is to be served;