Extracts of the Criminal Procedural Code (2005)

ATTACHMENT 2
 
 
 
EXTRACTS
 
OF
 
THE CRIMINAL PROCEDURAL CODE OF THE REPUBLIC
 
OF MACEDONIA
 
(CLARIFIED TEXT)
 
(Official Gazette of The Republic of Macedonia No: 15/05)
 
 
 
DAMAGED AND PRIVATE PROSECUTOR
 
Article 48
 
(1) For crimes for which it is prosecuted on a proposal or on a private charge, the proposal or the private charge are submitted within a period of three months from the day when the authorised person for submitting the proposal or the private charge has learned of the crime and criminal.
 
(2) If there is a private charge against an offence, until the finishing of the trial and the period under paragraph 1 of this Article, the accused may issue a charge against the plaintiff, who has simultaneously returned the offence (counter charge). In this case the court gives a verdict.
 
 
Article 49
 
(1) The prosecution proposal is submitted to the competent prosecutor (Article 141) and the private charge to the competent court.
 
(2) If the damaged himself submits a criminal charge or suggests a realisation of a lawful property request in the criminal procedure, he will be considered to have made a prosecution proposal.
 
(3) When the damaged submitted a criminal charge or a prosecution proposal and during the procedure it is established that it is in question a crime on a private charge, then the charge i.e. proposal will be considered as a due private charge if it is submitted within the proscribed period for private charges. The private charge which is submitted in due time will be considered to be a due submitted proposal of the damaged if during the procedure it is established that it is in question a crime for which it is prosecuted on a proposal.
 
 
Article 50
 
(1) For minors and incapable persons a criminal prosecution proposal or a private charge is submitted by their defence attorney.
 
(2) Minors over sixteen years of age may submit proposals or private charges themselves.
 
 
 
Article 51
 
If the damaged or the private plaintiff dies during the period of submitting proposals or private charges or during the procedure, his marital i.e. illegitimate spouse, children, parents, adopted children, persons who have adopted, brothers and sisters, within a period of three mounts after his death may submit a proposal or a charge i.e. make a statement that they continue the procedure.
 
 
 
Article 52
 
If several persons are damaged by a crime, the prosecution will be initiated i.e. continued on a proposal or private charge of each damaged.
 
 
 
Article 53
 
With a statement to the court before which the procedure is conducted, the damaged and the private plaintiff may cancel the proposal i.e. private charge until the finishing of the trial. In that case they do not have the right to submit a proposal i.e. private charge again.
 
 
Article 54
 
(1) If the private plaintiff does not attend the trial although he has been summoned or the court summons could not have been handed because he has not announced his present address of his temporary or permanent residence to the court, then it will be considered that he has withdrawn from his charge, unless with this Code something else is defined (Article 428).
 
(2) The Chairman of the Chamber will allow the private plaintiff to restore his previous condition if, for justified reasons he could not have attended the trial or have informed the court of his present address in due time, if within a period of eight days after his impediment he submits an appeal to be restored in previous condition.
 
(3) After the period of three mounts a request to be restored in previous condition cannot be demanded.
 
(4) A special appeal against the decision which allows restoring in previous condition is not allowed.
 
 
Article 55
 
(1) During the investigation the damaged and the private plaintiff have a right to point out all the facts and suggest evidence which are important to detect the crime, to reveal the criminal and to establish their lawful property requests.
 
(2) At the trial, they have the right to suggest evidence, to question the accused, witnesses and experts, to object and explain in reference of their statements and to give other statements and suggestions.
 
(3) The damaged, the damaged as a plaintiff and the private prosecutor have a right to the records and cases which serve as evidence. The damaged may not have the right to the records until he is examined as a witness.
 
(4) The investigating judge and the Chairman of the Chamber will inform the damaged and the private plaintiff of their rights under paragraphs 1 to 3 of this Article.
 
 
Article 56
 
(1) When the public prosecutor realises that there is no ground for an ex officio criminal prosecution, or when he realises that there is no ground for taking over the prosecution against one of the denounced collaborators, it is his duty to inform the damaged within a period of eight days and to instruct him that he may take over the prosecution himself. The court will act in the same manner if it has made a decision for ceasing the procedure because the public prosecutor has withdrawn from the prosecution.
 
(2) The damaged has a right to take over i.e. continue the prosecution within a period of eight days from the time when he has been informed under paragraph 1 of this Article.
 
(3) If the public prosecutor has withdrawn from his prosecution act, by taking over the prosecution, the damaged may continue the initiated prosecution act or may initiate a new act.
 
(4) The damaged party who was not informed that the public prosecutor pass over the prosecution, or the investigative judge has stopped the procedure, or also when the public prosecutor withdraws the prosecution, the damaged party may give a statement for counting the procedure in front of the competent court within a period of three months from the day when the public prosecutor has rejected the application, or the investigation has been stopped.
 
(5) When the public prosecutor i.e. court informs the damaged that he may take over the prosecution, he i.e. it will instruct him which acts he may take over in order to exercise his right.
 
(6) If the damaged as a plaintiff dies during the period for taking over the prosecution or during the procedure, his marital spouse i.e. illegitimate spouse, children, parents, adopted children, persons who have adopted, brothers and sisters, within a period of three mounts from the day of his death may take over the prosecution i.e. give a statement that they continue the procedure.
 
 
Article 57
 
(1) When the public prosecutor cancels his prosecution act at the trial, the damaged is obliged immediately to state whether he wishes to continue the prosecution. If the damaged has not attended the trial although he was summoned or his court summons could not have been handed because the damaged did not announce his present address to the court, it will be considered that he does not wish to continue the prosecution.
 
(2) The Chairman of the Chamber of first degree court will allow the damaged restoring to previous condition who has not been summoned or has been, but for justified reasons could not have attended the trial where the verdict was brought with which the charge against the public prosecutor's cancelling his prosecution act is refused if the damaged, within a period of eight days from the pronounced verdict appeals to restore him in his previous condition and if he, in his application states that he continues the prosecution. In this case, a trial will be set again and with the verdict reached on the basis of the new trial, the previous verdict will be cancelled. If the summoned damaged does not attend the new trial, the previous verdict is legally valid. Provisions of Article 54, paragraphs 3 and 4 of the Code will be applied in this case.
 
 
Article 58
 
(1) If the damaged does not initiate or continue the prosecution within the proscribed period or if the damaged as a plaintiff does not attend the trial although he has been properly summoned or the court summons could not have been handed because the damaged did not announce his present address to the court, he will be considered to have withdrawn.
 
(2) In case the damaged does not attend the trial as a plaintiff where he has been summoned, provisions of Article 54, paragraphs 2 to 4 of this Code will be applied.
 
 
Article 59
 
(1) The damaged as a plaintiff has the same rights as the public prosecutor, except for the public prosecutor's rights as a state body.
 
(2) In the procedure conducted on the request of the damaged as a plaintiff, the public prosecutor has a right to take over the prosecution and defence until the finishing of the trial.
 
 
Article 60
 
(1) If the damaged is a minor or an incapable, his defence attorney is authorised to give statements and take over acts to which, according to this Code the damaged has a right.
 
(2) The damaged who is over sixteen years of age is authorised to give statements and take over acts in the procedure himself.
 
 
Article 61
 
(1) The private prosecutor, the damaged and the damaged as a plaintiff, as well as their defence attorneys can exercise their rights in the procedure by the assistance of their authorised representatives.
 
(2) To the damaged as a plaintiff, when the procedure is on his request for a crime for which there is a lawfully proscribed sentence to over five- year imprisonment, the court can, on his request assign an authorised representative if it is in favour of the procedure and if the damaged as a plaintiff, according to his property condition, cannot bear the expenses for authorisation. The investigating judge i.e. Chairman of the Chamber decides on the request and the President of the court from among the lawyers appoints the authorised representative.
 
Article 62
 
The private prosecutor, the damaged as a plaintiff and the damaged, as well as their defence attorneys and authorised representatives are obliged to inform the court of any change of their address of temporary or permanent residence.
 
LEGAL PROPERTY REQUESTS
 
Article 97
 
(1) A legal property request due to a crime will be raised on proposal of authorised persons in the criminal procedure if the procedure would not be further cancelled with it.
 
(2) A legal property request may refer to damage compensation, returning objects or annulling certain lawful issues.
 
(3) The legal property request mentioned in paragraph 2 of this article in case of insurance could be also raised towards the insurance company from the side of the damage party.
 
 
Article 98
 
A proposal for realisation of a legal property request in the criminal procedure may be submitted by a person who is authorised to realise such a request in a dispute.
 
 
Article 99
 
(1) A proposal for legal property request realisation in the criminal procedure is submitted to the body where the criminal application is also submitted or to the court before which the procedure is conducted.
 
(2) The proposal may be submitted until the completion of the trial before first degree court.
 
(3) The person authorised to submit the proposal is obliged to define his request and to submit evidence.
 
(4) If the authorised person does not submit a proposal for legal property request realisation in the criminal procedure until the opening of the charge, he will be informed that he may submit the proposal until the completion of the trial.
 
 
Article 100
 
(1) Authorised persons (Article 98) may until the completion of the trial withdraw from the proposal for legal property request realisation in the criminal procedure and may realise it through a dispute. In case of cancelling the proposal, such a proposal cannot be submitted again, unless something else is determined with the Code.
 
(2) If the legal property request after the submitted proposal before the completion of the trial has been past to another person according to the property law regulation, that person will be summoned to state whether he maintains the proposal. If the summoned does not answer, he will be considered to have cancelled the submitted proposal.
 
 
Article 101
 
(1) The court before which the procedure is conducted will examine the accused for the facts included in the proposal and will inspect the circumstances important to determine the legal property request. But even before the proposal is submitted, the court is obliged to collect evidence and to inspect all necessities for the decision on the request.
 
(2) If by realisation of the legal property request the criminal procedure would be significantly delayed, the court will limit itself only to collecting data whose determination would not be possible later and it would be significantly complicated.
 
 
Article 102
 
(1) The court decides on lawful property requests.
 
(2) Where an accused is found guilty as charge the court can decide on the level of any request full or partially damages. If the evidence in the criminal procedure does not give enough grounds for a full or partial verdict concerning the lawfulness of request for damages and there is a danger of an unjustified delay of the criminal procedure, the court will reach the verdict for the base amount, or the base and partially the amount of the lawful property request and for the amount of the lawful property request or the rest of that amount will reached in additional verdict. In case when lawful property request can not be ascertained with other evidence, or deriving such an evidence would lead to considerable extension of the procedure, the court with an additional verdict will decide about the amount of the lawful property request or a part of it determining fair compensation . The term for appeal against the additional verdict is eight days.
 
3) When the court reaches a verdict with which the accused is released from the charge or a verdict which rejects the charge or when with the decision it cancels the criminal procedure or rejects the prosecution act, the court will instruct the damaged that he may realise his lawful property request through a dispute. When the court is announced to be incompetent in the criminal procedure, it will instruct the damaged to initiate or continue a criminal procedure for his lawful property request before a competent court.
 
 
Article 103
 
If the lawful property request refers to returning of an object, and the court concludes that the object belongs to the damaged and is kept by the accused or by some other collaborator in the crime or by a person to whom the object has been kept by, the court will announce in the verdict the object to be returned to the damaged.
 
 
Article 104
 
If the lawful property request refers to an annulment of a certain lawful file and the court finds that the request is justified, it will announce in the verdict a full or a partial annulment of the lawful file, with all due consequences, without interference with the rights of non- concerned third parties.
 
 
Article 105
 
(1) The final legally valid verdict referring to a lawful property request can be altered by the court in the criminal procedure only to avoid repetition of the criminal procedure, protect the legality or requesting for extraordinary review of the legally valid verdict.
 
(2) Apart from this case, the convicted i.e. his successors only by a dispute may request for the final legally valid verdict of the criminal court which has decided the lawful property request to be altered, only if there are conditions for repetition according to provisions valid for the legal procedure.
 
 
Article 106
 
(1) In the procedure according to provisions valid for the performed procedure, by the request of the public prosecutor,, authorised persons (Article 98) may be set temporary measurements for security of a legal property request due to a committed crime..
 
(2) The investigating judge in the investigation reaches the decision under paragraph 1 of this Article. The Chairman of the Chamber brings the decision out of the trial after the initiated prosecution act, and the Chamber at the trial.
 
(3) A special appeal is not allowed against the decision of the Chamber for temporary measurement for security. In other cases the Chamber decides on the appeal (Article 22, paragraph 6). The appeal does not keep the decision from its execution.
 
 
Article 107
 
(1) If it is objects in question which undoubtedly belong to the damaged but do not serve as evidence in the criminal procedure, those objects will be given to the damaged before the procedure is completed.
 
(2) If several damaged are on a dispute for the property of objects, they will be directed to a dispute, and the court in the criminal procedure will decide on the guarding of the objects as a temporary measurement for security.
 
(3) Object serving as evidence will be temporarily deprived from the owner and after the procedure has been completed they will be returned to him. If the owner necessarily needs the object, it may be returned to him before the procedure is completed with an obligation to bring the object on a request.
 
 
 
 
Article 108
 
(1) If the damaged has a request from a third party for objects collected from the crime and kept by the third party or because due to the crime the third party has provided a property interest, in the criminal procedure on proposal of authorised persons (Article 98) and according to provisions valid for the performed procedure, the court may announce temporary measurements for security on behalf of the third party. Provisions of Article 106, paragraphs 2 and 3 of the Code are also valid in this case.
 
(2) In the verdict with which the accused is pronounced guilty the court will either terminate the measurements under paragraph 1 of this Article, if they are not terminated before, or will direct the damaged to a dispute by termination of these measurements if a dispute is not initiated within the period proscribed by the court.
 
 
 
Article 141
 
Certain notions used in this Code have the following meaning:
 
A s u s p e c t is a person against whom a pre- criminal procedure is conducted.
 
A n a c c u s e d is a person against whom an investigation is conducted or against whom it is initiated a prosecution act, a prosecution proposal or a private charge.
 
A c o n v i c t e d is a person for whom with a legally valid verdict it is stated that he is responsible for certain crime.
 
A d a m a g e d is a person whose certain private or property right is violated or endangered with a crime.
 
A p r o s e c u t o r is the public prosecutor, private prosecutor and damaged as a plaintiff.
 
A p a r t y is the prosecutor and the accused.