The national MLA structure in The Republic of North Macedonia resembles the structures of all the countries whose framework is based on the internationally ratified treaties in the field. The Ministry of Justice is the Central authority for the transmission of outgoing and incoming MLA requests and the decision in specifically indicated cases; the public prosecution and the Courts, and the supporting law enforcement agencies are referred as national authorities.
The Law on international cooperation in criminal matters and the Law on criminal procedure are the corestone of the national legal framework for mutual legal assistance (MLA) in criminal matters. The Republic of North Macedonia has ratified all the requiring international treaties and regional treaties of the CoE as to international legal assistance. Moreover, although not member of the EU, it has aligned in most parts its legislation to the EU relevant directives ruling the matter,However plenty are yet to be aligned as those are linked to the pending membership. On regional level there is a wide spectre of bilateral agreements signed whish spcificaly target issues of international legal cooperation in criminal matters. At the end of 2008 a cooperation agreement with Eurojust was signed. The Republic of North Macedonia has two contact points for Eurojust, one coming form the MoJ and one from the Prosecution service. Also, a cooperation agreement with of EUROPOL has been sigend. In addition, the country is a member of INTERPOL, ILECU, SELEC/SEEPAG and other regional networks and bodies like the Prosecutors Network of the Western Balkans, is also part of the PCC convention and the related regional body the RCC, etc.
Even if the possibility for direct communication and information exchange among the relevant authorities (e.g. investigative authorities) is existent, still copies of the documents have to be sent to MoJ for information purposes as MoJ is responsible for collecting information on international cases for statistical purposes. Winthin the MoJ, there is a Spearte Sector on International legal assistance in civil and criminal matters dedicated to process all these requests.
The Law on criminal procedure (LCP) (effective as of the end of 2013) changed the criminal/penal system. The reform altered the modus operandi and the nature of the work of the prosecutors and changed the interaction between the law enforcement institutions involved in the criminal procedure. The main change that occurred is the shift from the investigative judge to the public prosecutor regarding the responsibility as to the investigating procedure. Now the public prosecutor is solely leading the criminal investigation.
On the level of public prosecution, the hierarchy is the three level structure: Basic public prosecution offices (among them 12 have extended jurisidiction and also responsible for MLA), Highe prosecution offices (4) and Public prosecution on the top of this hierarcy. The Public prosecution has a special department for international cooperation. Within this department, the international legal assistance should be processed as well.
However, at this moment, this department is in a phase of reorganisation and enhancement, and is expected that it will become operational soon. Until then, the flow on MLA requests are done directly among prosecutors (national and foreign) and through the MoJ as the main hub for dissemination of incoming and outgoing requests. The PPO on organised crime and corrptuion (one office with jurisdiction over the whole terriroty) has the most dynamic international legal assistance practice which naturaly comes with the scope of work and types of cases they are working on.
The Courts. With the introduction of the accusatorial system in the LCP, the responsibilities for investigative actions were transferred to the public prosecutor including all investigative actions which are part of MLA requests. In investigations, the authorization of the judge of preliminary procedure foreseen with the LCP is limited to coercive measures related to personal liberties and privacy. The preliminary procedure judge is the guardian of freedoms related to the legal performance of the public prosecutor. Her/his main responsibilities are enscoped with the following: deprivation of liberty issues, searches, temporary seizures and freezing, special investigative measures (linked to interception of telecommunications, monitoring/surveillance, access to computer data etc.), plea agreements and most important the processing of cases of international cooperation in criminal matters according to the Law on international cooperation in criminal matters. International legal cooperation in criminal matters involving a judge includes the so called “small” legal assistance (i.e. the transfer of documents, hearing of accused, witness or damaged parties, etc.), extradition, transfer of convicts, and enforcement of foreign judgements in the scope of the imposed sanction.
The Courts accept requests for international legal assistance of foreign courts only if they are submitted through official channels. They themselves use exclusively the MoJ as communication link with foreign countries. The Courts are taking into consideration only those documents which are written in the official Macedonian language with Cyrillic alphabet. Also, legal assistance is provided only in the manner stipulated by national legislation. However, the actions a foreign court requests to perform, may also be executed in the manner requested by the foreign court, if such procedure does not conflict the national law.
Processing MLA requests/working methods
The main aim of mutual legal assistance in criminal matters is obtaining of evidence which exist in other countries for the purposes of national investigations and prosecutions.
-Exchange of information and obtaining evidence
The initial phase starts with the police, where the initial checks and information exchange are performed via the International police cooperation sector within the Ministry of Interior, where the channels of EUROPOL, INTERPOL and the ILECU Unit are residing. Within this phase the Border police can be involved, if particular information is needed, and if their involvement in information exchange is a prerequisite, having in mind their set up at the borders. Moreover, an inevitable link are the police liaison officers whose role cannot be underestimated as the usually facilitators in police work with foreign countries. In addition, the FIUs and the Custom Administration inspectors can also be involved as they have a mandate for information exchange in their field of work with their respective networks, namely the money laundering and financing of terrorism and the customs related offences applicable to this area.
At this level the information exchange goes between the law enforcement authorities and the judicial involvement is not necessary. However, as the investigation is led by public prosecutor, the practice is that the prosecutor is usually involved or promptly informed even in this phase. If a situation occurs that some information might be useful as evidence, then a MLA request is used as a tool for obtaining it.
- Judicial cooperation in criminal matters
The base for such cooperation are the international instruments, the regional and the bilateral agreements and memorandums for cooperation which Republic of North Macedonia had ratified or signed. If there is no agreement of any sort with a particular country to legally base the international cooperation, the foreign country should provide written guarantee for reciprocity.
Channels of communication
- Direct communication channel among the relevant authorities
- Urgent communication through INTERPOL
- Central authority (Ministry of Justice)
- Diplomatic channel (Ministry of Foreign Affairs)
It is important to note that even when direct communication or INTERPOL is used as a channel, the Central authority - the Ministry of Justice is promptly or subsequently informed and all the documents further are transmitted through the MoJ.
Identification of relevant authority
Ministry of Justice is the central authority for identification of appropriate authorities on national level and international as well. As a Central authority in majority of cases, the MoJ refers the cases to the appropriate national institutions. However, if there is a conflict in jurisdictions then the receiving institution sends the request where by its opinion is the relevant authority. This might cause delays and it is reflected in this report recommendations. Also a proper information has to be send to the requesting foreign authority. Relevant national authorities are the basic public prosecution offices, basic public prosecution offices with extended jurisdiction, including the basic public prosecution for combating organised crime and corruption, and the Courts.
Language in use
The Republic of North Macedonia sends MLA request abroad in Macedonian language with a translation to the appropriate language of the country at stake or translation into one of the official languages of Council of Europe. The analogy applies when foreign countries send requests to The Republic of North Macedonia, meaning the whole documentation should be send in original language with translation into Macedonian language. If this requirement is not met, the Ministry of Justice might ask the requesting state for a translation.
When receiving a request or a letter rogatory, the MoJ immediately refers it to the relevant authority except if the request or the letter rogatory should be rejected. If the request lacks documents, the MoJ would request the additional required documents to be submitted.
The relevant authority acts in accordance with the national law. If the foreign requesting authority has specific requirement as to the procedure that should be followed in Macedonia these can be net as long as they are not in conflict with the national law.
If the MLA request is sent directly to the relevant authority, the relevant national authority acts without delay on the manner indicated in the request, or if not possible it shell send an information to the foreign authority explaining the reasons of the same.
If there are obstacles due to the national investigation or other national proceeding and is lined to the foreign country request, the relevant authority shell inform the requesting authority regarding the postponement of the international cooperation.
Where the foreign authority has requested to participate, everything should be orgnaised for this to occur. If for some reason they cannot participate, they have the possibility to send questions in written form which would be used while undertaking the particular action.
Macedonian extradition law has been regulated in Articles 50-81 MLA FYROM.The Republic of North Macedonia refuses the extradition of its own nationals (Art. 52, par.1). The prohibition to extradite nationals can be found in Article 4 of the Constitution, although an exception has been made for extradition to the ICTY. Amendment 32 to the Constitution changes Article 4, paragraph 2 of the Constitution and now allows for extradition of nationals, on condition that the applicable convention provides it and with permission of the court. In practice these bilateral agreements now exist with Serbia, Montenegro, Italy, Bosnia and Herzegovina and Croatia. However, this is limited to some offences.
However, doubt as to whether this is the correct interpretation returns if we look at the declaration made by the Republic of North Macedonia to the European Convention on Extradition, ETS 24. This reads: “Taking into account Article 4 of the Constitution of the Republic of North Macedonia, which does not allow the extradition of the citizens of the Republic of North Macedonia, the provisions of this Convention shall only apply to the persons which are not citizens of the Republic of North Macedonia.” Literally taken, the reservation is formulated broadly and states that all provisions of the convention can only relate to nationals other than Macedonians. Is it intended to exclude the possibility that the Republic of North Macedonia may request the extradition of a Macedonian from another state?
The Minister of Justice is formally not bound by a decision of the court on granting or refusing extradition (Art. 66). However, in practice the court decision is followed.The Ministry of Justice is the central authority and therefore plays a key role, as the country is rather small and the department of international cooperation has to deal with both civil and criminal cooperation. Both court and ministry report that differences of opinion in practice do not take place. The problems reported with regard to extradition relate to the lengthy procedures. After 180 days in extradition detention the requested person must be released on the basis of Macedonian legislation.
Art. 52, par. 9 requires a new trial when the trial was conducted in absentia. Under Republic of North Macedonia's law the definition of in absentia as provided for by the European Court of Human Rights is leading here.
Article 55 MLAFYROM states “If in the foreign state a death sentences is prescribed for the criminal offence for which extradition is requested, the extradition may be granted if the foreign state provides sufficient guarantee that the death sentence won’t be imposed”. This is a guarantee significantly higher than what is required as a minimum standard imposed by the European Court of Human Rights. The ECtHR requires only the guarantee that a death penalty will not be executed, but does allow its imposition. It is therefore recommended to adjust the formulation to the extent that it will be guaranteed that the death sentence will never be executed.
Art. 72 must be interpreted in such a manner that the requested person may either consent to a simplified procedure or to waive the rule of speciality, or both.
Good practices and satisfaction are reported concerning the simplified extradition procedure. The regular practice is now around 100 days for the regular procedure. With the simplified extradition, extradition may take place as soon as after some 30 days. Problems are reported with Germany, taking with its federal structure more time, and with Serbia. In one case it was some 380 days. The Republic of North Macedonia performs around 50 extraditions per year.
In a reservation to Art. 12 European Convention on Extradition, ETS 24 the Republic of North Macedonia states: “Even in the cases where the final sentence or the arrest warrant are passed by the competent authorities in a country which is Party to this Convention, the Republic of North Macedonia reserves the right to refuse the requested surrender, if an examination of the case in question shows that the said sentence or arrest warrant are manifestly ill-founded.” The Republic of North Macedonia determines this in conjunction with an application of article 66. It does not mean that the degree of suspicion is being tested and that a kind of prima facie evidence test is being performed. It relates to situations in which it is clear right from the start that a refusal will take place. The example was given of an extradition request concerning a national, without the offer to accept transfer of proceedings. In such a case, the Republic of North Macedonia cannot be of assistance anyway.
Articles 74-81 MLAFYROM deal with Macedonian extradition requests to other states. In that context, par. 4 of Article 77 is difficult to understand. This Part III deals with criminal prosecutions in the Republic of North Macedonia. What is then the relevance of a sentence in absentia in a foreign state?
I read the agreement on extradition the Republic of North Macedonia has concluded with Kosovo*.This agreement has been formulated along the lines of ETS 24.
Transfer of proceedings
This form of international cooperation has been regulated in Articles 42-49 MLAFYROM. It is reported that there is practice, albeit not in great numbers.
Art. 43, par. 4 stipulates that in absentia proceedings will not be conducted after accepting the transfer of criminal proceedings. Art. 44 raises the question what is meant with “equalization of the investigative actions”. According to the contact point this means that all actions undertaken in one country are considered to be lawful in the Republic of North Macedonia. This is to be understood as a rule accepting foreign evidence already collected to be admissible in subsequent proceedings in the Republic of North Macedonia.
Art. 46, which deals with transfer of proceedings, refers to Art. 50, which deals with extradition. The expert raised the question of what is the relation of the two provisions. The Ministry of Justice stated that the translation is wrong.
Joint investigation teams
This has been regulated in Art. 38 MLAFYROM and some practice is being reported. The Ministry of Interior has issued Guidelines for criminal investigations. It is stated that the limited set of rules is sufficient for the practice to work with and that further national legislation is not necessary.
Confiscation (both provisional and final)
Does Article 27, par. 1 MLAFYROM give the legal basis for confiscation on request of another state? Does it relate to temporary confiscation or to final confiscation?
In a declaration to Art. 24, par. 3 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, ETS 198, the Republic of North Macedonia stated that the execution of confiscation decisions is subject to constitutional safeguards. Such a declaration has not been made with regard to the general convention on confiscation, ETS 141, to which the Republic of North Macedonia is also a party. Should this be understood that the constitutional principles and basic principles of the legal system relate to the fact that it concerns terrorism and not to the fact that it concerns confiscation?
Transfer of the execution of judgements
Enforcement of the execution of judgements and the transfer of sentenced persons has been regulated in Article 82-103 MLAFYROM. The Republic of North Macedonia will enforce foreign sentences only by making use of the continued enforcement procedure. There is no procedure foreseen under national law to deal with conversion, as the court is not involved in that. Does the choice between these two only relate to situations in which the transfer of the execution coincides with the transfer of the prisoner?
Art. 92 reads that a foreigner serving a sentence given by a Macedonian first instance court may request to serve the sentence in his state of nationality. It does not require that the proceedings have come to an end. Article 96 reads that Macedonian judgements can be transferred before they are final and irrevocable. However, Article 82, 85 and 86 use “final” and therefore opt for another direction. This maybe an issue of translation. It gives the wrong impression.
Art. 98, par. 1 seems to stipulate a rule that ought to be applied by foreign authorities. Is that also in the original? According to the answers received on 16 December 2013, this is in compliance with Article 8 of the 1983 Sentenced Prisoners Convention.
Special investigative techniques
It is reported that all special investigative measures operate very well in the relations with other states.
The provision on cross-border investigations can be found in Art. 37 MLAFYROM. Has it been regulated elsewhere or did I overlook it? Where in the national legislation has it been regulated?
Article 36 regulates controlled delivery. Erroneously, the provision received the title “controlled extradition” of persons and objects in the translation. From the information supplied by the contact point it is clear that controlled delivery was intended.
I did not find any provision on covert investigations. Has it been regulated elsewhere or did I overlook it? Where in the national legislation has it been regulated?
Interception of telecommunication
Article 252 of the Code of Criminal Procedure provides for the application of special investigative measures. Among others, inspection of telephone and other electronic communication systems has been provided, together with “secret access and search of computer systems”.