刑事程序法典， 北马其顿

CODE OF CRIMINAL PROCEDURE

Part One

GENERAL PROVISIONS

Chapter I

BASIC PRINCIPLES

Article 1 (1) This Code establishes the rules with which it is ensured that an innocent person is not convicted and the guilty person is pronounced a criminal sanction under the conditions which are proscribed by the Criminal Code and on the basis of a legally enforced procedure. (2) Before pronouncing a final legally valid verdict, the rights and freedoms of the accused and of other persons may be limited only to a necessary extent and under conditions proscribed by this Code.

Article 2 (1) Everyone charged with a criminal offence will be presumed innocent until proved guilty by a legally valid verdict. (2) The existence or not existence of facts which compose the characteristics of crime or upon which the implementation of a certain provision of the Criminal Code depends, is confirmed by the court in a favourable manner for the accused.

Article 3 (1) Anyone who is summoned, apprehended or arrested, must immediately be informed, in the language which he understands, of the reasons for his summoning, apprehension or arrest and of any charge against him, as well as about his rights and that he cannot be compelled to make a statement. (2) The suspect, i.e. the charged must at first and clearly be instructed on his right to remain silent; his right to consult and to have a counsel of his own choosing present at the questioning, as well as his right that a member of his family or a relative to be informed of his apprehension or arrest. (3) The arrested person must immediately or at the most 24 hours from his arrest be brought before court, where the court without any delay will decide on the legality of his arrest.

Article 4 (1) Everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time and before a competent, independent and impartial tribunal, established by law. (2) Every accused has the following minimum rights:

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

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

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

- not to be compelled to testify against himself or his relatives or to confess guilt; - to be present during the examination of the witnesses and to be able to ask questions himself.

Article 5 No one shall be liable to be tried or punished again for an offence for which he has already been tried and a final legally valid verdict has already been brought.

Article 6 The official language in the criminal procedure is the Macedonian language and its Cyrillic alphabet.

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Article 7 (1) A representative of the minorities- citizen of the Republic of Macedonia in the court procedure has the right to use the language of his nationality and his alphabet. The court provides the person a free assistance of an interpreter. (2) Other parties, witnesses and participants in the court procedure have the right to a free assistance of an interpreter if they do not understand or speak the language in which the procedure is performed. (3) The person will be instructed of his right to an interpreter. It will be notified in the record both about the given instruction and the statement of the person. (4) The interpretation is conducted by a legal interpreter.

Article 8 (1) Charges (prosecution acts, prosecution proposals, and private charges), appeals and other petition requests are directed to the court in the official language. (2) A representative of the minorities, citizen of the Republic of Macedonia has the right to direct the petition requests to the court in the language and alphabet of his or her nationality. In such an instance, the court translates the petition requests and so translated delivers them to the other parties in the procedure. (3) Everyone who does not speak or understand the Macedonian language and its Cyrillic alphabet may direct the petition requests to the court in his or her language and alphabet. In such instances, the court proceeds according to paragraph 2 of this Article. (4) An arrested foreign citizen has the right to direct his petition request in his native language to the court, and in other cases- under the condition of reciprocity.

Article 9 (1) Court summons, decisions and other writs are directed by the court in the official language. (2) To the representative of the minorities, citizen of the Republic of Macedonia the court summons which will be delivered to him or her will be written both in Macedonian language and Cyrillic alphabet and also in the language and alphabet of his or her nationality. (3) To the accused, representative of the minorities, citizen of the Republic of Macedonia, the writs will be delivered in the language which he or she used in the procedure.

Article 10 It is forbidden and punishable to extract a confession i.e. a statement from the accused or from other persons who have participated in the procedure.

Article 11 A person illegally arrested, detained or illegally convicted has a right to compensation for damage from the budget, has a right to be rehabilitated and has other rights established by law.

Article 12 If the accused or other persons who participates in the procedure and who ignorantly misses any act of the procedure, therefore not using his or her rights, he or she will be instructed by the court on his or her rights which he or she can lawfully exercise and on the consequences of not using the acts.

Article 13 The court is obliged to attempt the procedure to be enforced without delay.

Article 14 (1) The court and the state bodies participating in the criminal procedure are bound truly and fully to establish facts which are important for bringing the legal decision. (2) The court and the state bodies are obliged with equal attention to investigate and establish both facts on behalf of the accused and facts against him.

3 Article 15

(1) The right of the court and state bodies which participate in the criminal procedure to evaluate existence or not existence of facts is not bound nor limited by any special formal rules of evidence. (2) Evidence illegally obtained or obtained by violation of freedoms and rights established by the Constitution, the Code and ratified international treaties, as well as evidence derived from them cannot be used and a court decision cannot be based on them.

Article 16 (1) Criminal procedure is brought on request of an authorised prosecutor. (2) The authorised prosecutor is the public prosecutor for crimes prosecuted ex officio or on the request of a damaged person and the private prosecutor is the authorised prosecutor for crimes prosecuted on private charges. (3) If the public prosecutor finds no basis for initiation or continuing criminal procedure, the damaged may stand instead as a plaintiff under conditions establish by this Code.

Article 17 The public prosecutor is obliged to initiate a criminal investigation if there are evidence that a crime is committed which is initiated ex officio.

Article 18 (1) In the criminal procedure the courts prosecute within a Chamber. (2) In elementary courts an individual judge judges for lesser crimes.

Article 19

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

Article 20 (1) If the provisions of the Criminal Code implementation depends on a previous decision on a certain judicial issue for which a court in some other procedure or some other state body is competent, the court in the criminal case may itself decide on that issue according to provisions for substantiating in the criminal procedure. The decision on the judicial issue by the criminal court is legally valid only for the criminal case which is being prosecuted by this court. (2) If on such a previous issue the court or some other state body has already decided in another procedure, this decision does not bind the criminal court in regard of the evaluation whether a certain criminal crime has been committed.

Chapter II

COMPETENCE OF COURTS

1. Actual competence and composition of the court

Article 21 Courts in criminal cases judge in the limits of their actual competence determined by law.

Article 22 (1) In courts of first degree it is judged in Chambers consisted of two judges and three lay judges for crimes for which by law it is proscribed a sentence to a fifteen- year prison term or a sentence to life imprisonment, and in Chambers consisted of one judge and two lay judges- for crimes for which by law it

4 is proscribed a mitigated sentence. For crimes for which as a sentence it is proscribed a fine penalty or a sentence to a three- year prison term, an individual judge judges in the court of first degree. (2) In second degree courts it is judged in Chambers consisted of five judges for crimes for which by law it is proscribed a sentence to a fifteen- year prison term or a sentence to life imprisonment, and in Chambers consisted of three judges- for crimes for which a mitigated sentence is proscribed. When the Chamber judges in the second degree during a court proceeding, it is consisted of two judges and three lay judges. (3) Chambers consisted of five judges judge in the third degree court. (4) Investigation is performed by a judge from the first degree court (investigating judge). (5) The Court President and the Chamber Chairman decide on cases anticipated by this Code. (6) First degree courts organised in a Chamber consisted of three judges decide on appeals against investigating judge's decisions and against other decisions when it is determined by the Code, make decisions of first degree out of the trial, conduct a procedure, bring a verdict according to the provisions of Article 508, paragraphs 2 to 6 of this Code and make proposals in cases anticipated in this or another Code. (7) On the request for extraordinary mitigation of a sentence and on the request for extraordinary reinvestigation of a final legally valid sentence, the court decides in a Chamber consisted of five judges if it refers to a crime for which by law a life imprisonment sentence is proscribed, and in a Chamber consisted of three judges- if it refers to crime for which a lesser sentence is proscribed. (8) On the request for protection of legality the court decides in a Chamber consisted of five judges and if the request is against the decision of the Supreme Court of the Republic of Macedonia, on this request the Supreme Court of the Republic of Macedonia decides on a general session. (9) If with this Code it is not determined differently, courts of higher degree decide in a Chamber consisted of three judges on cases which are not anticipated with the previous paragraphs of this Article.

2. Local competence

Article 23 (1) In general locally competent is the court on which region a crime has been committed or attempted to be committed. (2) A private charge may also be submitted to the court on which region the accused has his permanent or temporary residence. (3) If the crime is committed or attempted on different court regions or on the borders of these regions or it is uncertain on which region it is committed or attempted, the court where the request of the authorised prosecutor has first initiated the procedure is competent, and if the procedure has not yet been initiated- the court where the request for a procedure has first been submitted.

Article 24 If a crime is committed on domestic ship or on domestic aircraft while it is on domestic port, the court in which region the port is located is competent. In other cases when a crime is committed on domestic ship or on domestic aircraft, it is that court which is competent in which region the home port of the ship, i.e. aircraft is or in the domestic port in which the ship i.e. aircraft has first arrived.

Article 25 (1) If a crime is committed by the press, it is the court in which region the article is printed that is competent. If the locality is not known, or if the article is printed in a foreign country, it is the court in which region the printed article is distributed that is competent. (2) If according to the Code, the author of the article is responsible, it is the court in which region the author resides that is competent, or the court in which region the event described in the article took place that is competent. (3) Provisions of previous paragraphs will accordingly be implemented if the article or the statement is announced by radio or television.

Article 26

5 (1) If the crime locality is not known or it is out of the territory of the Republic of Macedonia, then the court in which region the accused has his or her permanent or temporary residence is competent. (2) If the court, in which region the accused has his or her permanent or temporary residence that has initiated the procedure, continues to be competent despite the fact that the crime locality has been revealed. (3) If the crime locality is not known nor is the permanent or temporary residence of the accused or both of them are out of the territory of the Republic of Macedonia, then the court in which region the accused will be caught or will turn himself in is competent.

Article 27 If a person has committed crimes both in the Republic of Macedonia and abroad, then the court of the Republic of Macedonia is competent.

Article 28 If according to the provisions of the Code it cannot be established which court is locally competent, then the Supreme Court of the Republic of Macedonia is authorised to appoint one of the competent courts before which the procedure will be conducted.

3. Joining and separating of the procedure

Article 29 (1) If one has been accused of several crimes, it is the court where on the request of the authorised prosecutor the procedure has first been initiated, that is competent and if the procedure has not yet been initiated- the court where the request for a procedure has first been initiated. (2) According to provisions of paragraph 1 of this Article the competence is also distinguished in cases when the damaged has simultaneously committed crime against the accused. (3) The court which has first initiated the procedure for one of the collaborators is competent for all collaborators. (4) The court competent for the person who has committed crime is also competent for the collaborators, persons who have hidden the crime, ones who have helped the person to commit the crime, as well as ones who have not denounced the criminal, the crime preparation and the crime committing. (5) In all cases of paragraphs 1, 2, 3 and 4 of this Article, by regulation a unique procedure will be initiated and a unique verdict will be brought. (6) On the proposal of the public prosecutor, the court may decide to initiate a unique procedure and bring a unique verdict even in cases when there are several accused persons for a number of crimes, but only if there is a mutual relationship among the committed crimes and the same evidence. (7) The court may decide to conduct a unique procedure and to bring a unique verdict if before one court deferent procedures are engaged against one person for several crimes and against several persons for the same crime. (8) For procedure joining decides the court which is competent for the unique procedure. A special appeal against the decision is not allowed which refers to the procedure joining or when the joining proposal is refused.

Article 30 (1) The competent court under Article 29 of this Code may decide the procedure for separate crimes or against different accused to be separated and finished separately or to be directed to another competent court if there are important reasons or reasons for completion until the finishing of the trial. (2) The procedure separating decision is brought by a competent court after the hearing of the public prosecutor when the criminal procedure is engaged on his request. (3) A special appeal is not allowed against a procedure separating decision or against a refused separating proposal for the procedure.

4. Transferring local competence

6 Article 31

(1) If the competent court is prevented to proceed for lawful or real reasons, it is obliged to inform the immediate superior court, which after the hearing of the public prosecutor, when the procedure is conducted on the request of the public prosecutor will appoint another competent court on its region. (2) A special appeal against this decision is not allowed.

Article 32 (1) For this procedure, the immediate superior court may establish another competent court on its region if it is obvious that the procedure will be conducted with less complication or if there are other important reasons. (2) The court may bring the decision on reference of paragraph 1 of this Article on the proposal of the investigating judge, the individual judge or the Chairman of the Chamber, or on the proposal of the public prosecutor who proceeds before the court which decides on local competence transferring when the criminal procedure is on the request of the public prosecutor.

5. Consequences of competence and competence encounter

Article 33 (1) The court has a duty to consider its competence and when it has concluded that it is not competent, the court will be announced to be incompetent and according to the final legally valid decision it will direct the case to the competent court. (2) After prosecution act has been enforced, the court cannot be announced to be locally incompetent, nor can the parties object to its local incompetence. (3) The incompetent court is obliged to take over the acts in the procedure when there is a danger of cancelling.

Article 34 (1) If the court to which the case has been directed as competent considers that the court which directed the case to itself or some other court is competent, it will initiate a procedure for resolving the competence encounter. (2) When on the appeal against the decision of first degree court according to which it was announced incompetent and second degree court has made the decision, in reference of the competence, the court to which the case has been directed is bound to that decision if the second degree court is competent to resolve the competence encounter between these courts.

Article 35 (1) The competence encounter between courts is decided by the mutual immediate superior court. (2) Before resolving competence encounter, the court will ask for an opinion from the public prosecutor, who is competent before that court, when the criminal procedure is conducted on the request of the public prosecutor. A special appeal against this decision is not allowed. (3) While resolving competence encounter, the court may simultaneously ex officio bring a decision on transferring local competence, if the conditions under Article 32 of this Code are fulfilled. (4) Until the competence encounter between courts is resolved, each court is obliged to take over the acts in the procedure when there is a danger of cancelling.

Chapter III

EXCLUSION

Article 36

A judge or a lay judge must not exercise his obligations: 1) if he is damaged with a crime;

7 2) if the accused, his counsel, prosecutor, damaged, his defence attorney or authorised

representative is his marital i.e. illegitimate spouse or a blood relative according to law to whichever degree of kinship, a distant relative to the fourth degree and an in- law to the second

degree; 3) if with the accused, his counsel, prosecutor or with the damaged is in the relationship of a

guardian, a person under guardianship, one who adopts, an adopted child, one who fosters or a foster child; 4) if in the same criminal case he was investigating or he participated in the examination of the

accusation before the trial or participated in the procedure as a prosecutor, counsel, defence attorney or authorised representative for the damaged i.e. the plaintiff or was at the hearing as a witness or as an expert;

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

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

Article 37 (1) When he realises existence of reasons for exclusion under Article 36, paragraphs 1 and 5 of this Code, the judge or lay judge is obliged to interrupt any activity on that case and to inform the President of the court on that, who will provide him a substitute. If there is an exclusion of the President of the court, he will provide himself a substitute among judges of that court, and if it is not possible, he will address to the President of the immediate superior court to provide him a substitute. (2) If the judge or lay judge considers that there are other circumstances for his exclusion (Article 36, paragraph 6), he will inform the President of the court of that issue.

Article 38 (1) Parties can demand exclusion. (2) Parties may submit a request for exclusion until the beginning of the trial and if of the reasons for exclusion they are informed later, they submit the request for exclusion immediately after they have been informed. (3) Exclusion of a judge of the superior court can be demanded by the party in a form of an appeal or a reply to the appeal. (4) The party can demand exclusion only of an individual judge or a lay judge, who proceeds the case i.e. a judge from the superior court. (5) The party is obliged to cite the circumstances in its demand according to which it considers that there is a lawful ground for exclusion. In the demand, the reasons for the previous exclusion demand, which was refused, cannot be cited again.

Article 39 (1) The President of the court decides on the exclusion demand under Article 38 of this Code. (2) If there is an exclusion demand only for the President of the court, or for the President of the court and the judge or the lay judge, the exclusion decision is brought by the President of the immediate superior court, and if there is an exclusion demand for the President of the Supreme Court of the Republic of Macedonia, the exclusion decision is reached on a general session of that court. (3) Before bringing the exclusion decision it will be provided a statement from the judge, lay judge i.e. President of the court and if necessary other acts will be performed. (4) A special appeal against the decision on the approval of the exclusion demand is not allowed. A special appeal can refute the decision with which the exclusion demand is refused and if such a decision is brought after the reopened charge, then it can be refuted only by an appeal to the verdict. (5) If the exclusion demand under Article 36, paragraph 6 of the Code is initiated after the beginning of the trial and if it was proceeded against the provisions of Article 38, paragraphs 4 and 5 of this Code, the demand will be fully i.e. partially refused. A special appeal against the decision, with which the demand is refused is not allowed. The decision with which the demand is refused is brought by the President of the court, and on the trial- by the Chamber. The judge, whose exclusion is demanded may participate in the decision bringing.

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Article 40 When a judge, or lay judge learns of his exclusion demand, he is obliged to interrupt his work on the case immediately, and if his exclusion is under Article 36, paragraph 6 of this Code, until the decision bringing of the demand, he may take over only those acts for which there is the danger of cancelling.

Article 41 (1) The exclusion provisions for judges and lay judges will be accordingly implemented on public prosecutors and persons, which according to the public prosecution law are authorised to present the public prosecutor in the procedure, the court clerks, interpreters and specialised persons, as well as experts, if nothing else has been defined for them (Article 236). (2) The public prosecutor decides on exclusion of persons, who on the ground of public prosecution law are authorised to present him in the criminal procedure. The immediate superior public prosecutor decides on exclusion of a public prosecutor. The Board of secretaries of the Public Prosecution of the Republic of Macedonia decides on exclusion of the public prosecutor of the Republic of Macedonia. (3) The Chamber, the Chairman of the Chamber or the judge decides on exclusion of court clerks, interpreters, specialised persons and experts. (4) When authorised officials from the Ministry of Internal Affairs take over investigations on the ground of this Code, the investigating judge decides on their exclusion. If a court clerk participates in taking over the acts, the official who takes over the act decides on his exclusion.

Chapter IV

PUBLIC PROSECUTOR

Article 42 (1) The public prosecutor's general right and duty is to prosecute criminals. (2) Of crimes which are prosecuted ex officio, the public prosecutor is competent:

1) to take necessary measures in relation of revelation of crimes and criminals and to direct the preliminary procedure; 2) to demand investigation; 3) to enforce and present the prosecution act i.e. prosecution proposal before the competent court; 4) to appeal against court decisions which are not final and to propose extraordinary remedies

against final court decisions. (3) The public prosecutor conducts other activities determined by this Code.

Article 43 The local competence of the public prosecutor is determined by provisions valid for the court competence on that region to which the prosecutor is appointed.

Article 44 When there is a danger of cancelling, the procedure acts will be taken over by an incompetent public prosecutor on that region, but he must immediately inform the appointed competent public prosecutor.

Article 45 The public prosecutor takes over every procedure act to which he is authorised according to the Code, individually or by assistance of other persons, who on the grounds of the public prosecution code are authorised to present him in the criminal procedure.

Article 46 The competence encounter among public prosecutors is decided by a mutual immediate superior public prosecutor.

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Article 47 The public prosecutor may withdraw from the request for prosecution until the finishing of the trial before first degree court, and before the superior court- in cases established by this Code.

Chapter V

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 been offending him (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

10 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 who has not been informed that the public prosecutor did not take over the prosecution may give a statement that he continues the procedure before the competent court within a period of three mounts from the day when the public prosecutor withdrew from the application. (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,

11 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 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.

Chapter VI

COUNSEL Article 63

(1) Everyone has a right to a counsel in the pre-criminal and in the court procedure. (2) The person under suspicion in the pre-criminal procedure, i.e. the accused before the first questioning must be instructed that he has a right to have a counsel of his own choosing and that the counsel may attend his questioning. (3) His authorised representative, marital i.e. illegitimate spouse, a blood relative of first degree, a person who has adopted, an adopted child, a brother, a sister and a person who has sustained can provide a counsel for the accused. (4) Only a lawyer can be a counsel for the defence.

12 (5) The counsel is obliged to submit an authorisation to the body before which the procedure is conducted. The accused can allow the counsel an oral authorisation for the register before the body where the procedure is conducted.

Article 64 (1) Several defendants can have a mutual counsel only if it is not against the interest of their defence. (2) A defendant can have several counsels and the defence is considered to be provided when one of the counsels participates in the procedure.

Article 65 (1) The damaged, marital i.e. illegitimate spouse of the damaged or of the plaintiff, their blood relative of the first line to whichever degree, in family line to the fourth degree or an in- law to the second degree cannot be a counsel. (2) A counsel cannot be a person summoned as a witness in the procedure unless he is, according to the Code free from his duty to witness and has stated that he is not going to witness or if the counsel is being heard as a witness in the case under Article 218, item 2 of this Code. (3) A counsel cannot be a person who, in the same case has acted as a judge or as a public prosecutor.

Article 66 (1) If the accused is dumb, deaf or incapable to defend himself successfully or if a criminal procedure is conducted against him for a crime for which, according to the Code a sentence to life imprisonment is proscribed, then he must have a counsel during his first questioning. (2) The defendant must have a counsel if detention is defined against him during the detention period. (3) After the prosecution act due to a crime for which a sentence to ten years or more severe sentence is proscribed with the Code, the accused must have a counsel in the time of the prosecution act delivery. (4) As soon as decision for a trial in absence is brought, the accused who is tried in absence (Article 292) must have a counsel. (5) If the accused in cases of obligatory defence according to previous paragraphs of this Article does not provide a counsel himself, the President of the court will assign a counsel ex officio for the further duration of the criminal procedure until the final legally valid verdict. When the accused is being assigned a counsel ex officio after the prosecution act, he will be informed of this issue as well as of the delivery of the prosecution act.

Article 67 (1) When there are no conditions for obligatory defence and the procedure is conducted for a crime for which a sentence to over three years is proscribed according to the Code, on his request the accused can be assigned a counsel, if his property condition does not allow him to bear the defence expenses. (2) A request for a counsel assignment according to paragraph 1 of this Article can be submitted only after the prosecution act is brought. The Chairman of the Chamber decides on the request, and the President of the Court assigns the counsel.

Article 68 (1) Instead of the assigned counsel (Articles 66 and 67) the accused can supply himself another counsel. In that case, the assigned counsel will be dismissed. (2) The assigned counsel can only for justified reasons request to be dismissed. (3) For the counsel dismissal in cases under paragraphs 1 and 2 of this Article decides the investigating judge i.e. Chairman of the Chamber before the trial, the Chamber at the trial and the Chairman of first degree Chamber i.e. the competent Chamber for decisions in a procedure on an appeal at the appeal procedure. A special appeal is not allowed against this decision. (4) The President of the Court, on the request of the accused or on his agreement can dismiss the assigned counsel who has not exercised his duties competently. The President of the Court will assign another counsel instead. The Bar will be informed of the dismissal of the counsel.

13 Article 69

When the request of the authorised prosecutor for initiation of a criminal procedure is submitted, as well as when, before bringing the decision for investigation, the investigating judge has conducted necessary investigation, the counsel has a right to have an access to the records and other obtained material which serve as evidence.

Article 70 If the accused is detained, he can freely and without supervision correspond and communicate with his counsel. Exceptionally, during the investigation, the investigating judge may subdue this right to supervision, if the detention is determined under Article 184, paragraph 1, item 2, and there is a grounded suspicion that the accused might abuse the communication with his counsel.

Article 71 (1) The counsel is authorised to take over all proscribed acts which he can in favour of the accused. (2) The counsel's duties and obligations cease when the accused revokes the authorisation.

Chapter VII

PETITION REQUEST AND MINUTES

Article 72 (1) Private charges, prosecution acts and prosecution proposals of the damaged as a plaintiff, proposals, judicial remedies and other statements and announcements are submitted in a written form or are given orally for the minutes. (2) Petition requests under paragraph 1 of this Article must be comprehensible and consist everything necessary to be able to act accordingly. (3) If not stated otherwise in this Code, the court will summon the person who has submitted the petition request which is not comprehensible or does not consists of everything necessary to be able to act accordingly, to correct i.e. supplement the petition request and if he does not accomplish it in the proscribed period, the court will reject the petition request. (4) In the summons for correction i.e. supplement of the petition request, the receiver of the court summons will be warned of the consequences of not using his right.

Article 73 (1) Petition requests which according to this Code are submitted to the counter- party are to be submitted to the court in a sufficient number of copies for the court and for the other party. (2) If such petition requests are not submitted to the court in a sufficient number of copies, the court will summon the person to submit a sufficient number of copies in the proscribed period. If the person does not act according to the court order, the court will copy the necessary copies at his expense.

Article 74 (1) The court will issue a fine penalty of at least a half and at most a double amount of an average payment in the Republic, paid in the last month, announced by the Bureau of Statistics (in the further text- payments) for the counsel, authorised representative, defence attorney, damaged, private prosecutor or damaged as a plaintiff who, in the petition request orally offends either the court or the person who participates in the procedure. The penalty decision is brought by the investigating judge i.e. Chamber before which the statement is made and if the offence is in the petition request- the court which has to decide on the petition request. An appeal is allowed against this decision. If the public prosecutor or the person who represents the accused offends someone else, the competent public prosecutor will be informed of the issue. The bar will be informed of issuing penalties for the lawyer i.e. training lawyer. (2) Penalty issuing under paragraph 1 of this Article does not influence the prosecution and the sentence pronouncing for a crime committed with offence.

Article 75

14 (1) For each act in the criminal procedure a minutes will be constructed at the time when the act is being conducted, and if it is not possible then immediately after. (2) The minutes is written by the court clerk. Only when a search of a residence or a person is performed or when this act is conducted out of the office premises of the body and a court clerk cannot be provided, then the person who takes over the act can write the minutes. (3) The minutes which is written by the court clerk is constructed in manner that the person who takes over the act loudly instructs the court clerk what he will insert in the minutes. (4) The person being examined will be allowed to reply only for the minutes. In case of abusing he can be deprived from this right.

Article 76 (1) The following is inserted in the minutes: the name of the state body before which the act is being conducted, the locality of the act, the day and the hour when the act started and finished, the names of the present persons and in which function they are present, as well as notification of the criminal case according to which the act is being initiated. (2) The minutes should contain crucial data on the duration and the contents of the initiated act. In the minutes in form of reporting only the crucial content of the given statements and announcements are notified. Questions are written in the minutes only if it is necessary to comprehend the answer. If necessary the question and answer will be written in the minutes literary. If when initiating the act, certain material and records are taken over, that will be notified in the minutes, and the deprived material will be also included in the minutes or it will be stated where they are kept. (3) When initiating acts such are inspection, search of residences or persons or recognising persons or objects (Article 225) the data important due to the nature of such act or for confirming the identity of separate objects (description, measurements, size of objects or trails, marking the objects etc.) will be written in the minutes, and if sketches, drawings, plans, photographs, film shots and similar are made that will be included and enclosed to the minutes.

Article 77 (1) The minutes must be kept correctly, nothing can be erased, added or altered in it. Crossed out lines must remain legible. (2) All altered, corrected and added lines must be written at the end of the minutes and must be certified by the persons who sign the minutes.

Article 78 (1) The examined person, persons who are bound to participate in the acts of the procedure as well as parties, counsel and damaged if present have the right to read the minutes or to require it to be read to them. The person who initiates the act is obliged to warn him and it will be written in the minutes whether he was warned and whether the minutes was read. The minutes will be read if there is not a court clerk which will be also written in the minutes. (2) The minutes will be signed by the examined person. If the minutes consists of several sheets, the examined person will sign each sheet. (3) At the end of the minutes the interpreter will sign if present, as well as witnesses whose presence is compulsory when initiating the investigation and when searching the person or his residence which are being searched. If the minutes is not written by the court clerk (Article 75, paragraph 2) the minutes is signed by persons present at the act. If such persons are not present or are not able to comprehend the contents of the minutes, it is signed by two witnesses unless their presence is not possible to obtain. (4) Illiterate persons put a right hand fingerprint of their index fingers instead of a signature and under the fingerprints the court clerk will write their names. If it is not possible to put a right hand index fingerprint, a fingerprint of another finger or a left hand fingerprint is put and in the minutes it will be written which fingerprint from which finger and hand is taken. (5) If the examined is handless- the minutes will be read and if he is illiterate- the minutes will be read to him and that will be notified in it. If the examined refuses either to sign the minutes or to put his fingerprint, that and the reasons for his refusal will be notified in the minutes.

15 (6) If the act could not have been completed without an interruption, the day and hour of the interruption as well as the day and hour when the act continued will be written in the minutes. (7) If there is an objection in reference of the contents of the minutes, the objection will also be inserted in the minutes. (8) At the end the person who has taken over the act and the court clerk sign the minutes.

Article 79 (1) When according to the Code it is defined that on the grounds of the statement of the accused, witness or expert the court decision cannot be based, the investigating judge will ex officio or on the proposal of the parties bring a decision immediately to separate the minutes for these statements from the records and at the latest by the investigation completion, i.e. the investigating judge will agree that the prosecution act will be brought without conducting investigation (Article 153, paragraph 1). A special appeal is allowed against this decision. (2) After the final legally valid decision, the separate minutes are closed in special cases and are kept by the investigating judge apart from other records and cannot be available or used in the procedure. (3) After the investigation as well as after the agreement that the prosecution act can be brought without investigation (Article 153, paragraph 1), the investigating judge will act according to provisions of paragraphs 1 and 2 of this Article and in reference of all announcements which under Article 142 of this Code are given to the Ministry of Internal Affairs by the accused and persons included in Articles 218 and 219 and Article 236, paragraph 1 of this Code. When the public prosecutor initiates the prosecution act without investigation (Article 153, paragraph 6), he will submit records where there are such announcements of the investigating judge, who will act according to provisions of this Article.

Article 80 (1) The investigating judge may decide the investigation to be recorded with a device for audio or visual recording, but the person who is examined i.e. heard will be informed of that. (2) The recording must contain data under Article 76, paragraph 1 of this Code, necessary data to identify the person whose statement is recorded and data in which function the person gives the statement. When statements of several persons are recorded, it must be clearly recognised from the recording who has given the statement. (3) On request of the examined person, the recording will be multiplied immediately and the corrections or explanations by the person will be also recorded. (4) It will be written in the minutes that the investigation is conducted with a device for audio or visual recording, who has completed the recording, whether the person who is being examined was previously informed of the recording, that the recording is multiplied and where the recording is kept if it is not enclosed to other records of the case. (5) The investigating judge may order the audio recording to be fully or partially copied. The investigating judge will check the copy, will certify it and will include it to the minutes for initiating investigating act. (6) Audio and other recordings are kept by the court by the time within which the criminal record is kept. (7) The investigating judge may allow the persons who have justified interests to record the investigation with a device for audio or visual recording.

Article 81 Provisions from Articles 300 to 303 of the Code are valid for the minutes of the trial.

Article 82 (1) A special minutes will be constructed for advising deliberation and voting. (2) The advising and voting minutes contains the duration of voting and the reached decision. (3) This minutes is signed by all members of the Chamber and the court clerk. Dissenting opinions will be included in the advising and voting minutes if not included before. (4) The advising and voting minutes will be closed in a special case. Only the Superior Court has an access to this minutes when it decides on the judicial remedy and in that case it is obliged to close the minutes in a special case and to certify on the case that it had an access to the minutes.

16 Chapter VIII

PROSCRIBED PERIODS

Article 83 (1) The proscribed periods in the Code cannot be extended, unless the Code explicitly allows it. If the issue is about a period which is defined with the Code to protect the right of the defence and other procedure rights of the accused, the period can be shortened if the accused requires it in a written form or orally for the minutes before the court. (2) When a statement is tied to a specified period, it will be considered to be given within the period if it is given to the authorised person to accept it before the period expires. (3) When the statement is sent by post as a registered parcel or by telegraph, the day of the post delivery is considered as the day of delivery to the person to whom it is addressed. The delivery of army postage in places where there is not a regular post office, it is considered as a delivery of a registered parcel to a post office. (4) The pre- trial detained may make a statement tied to a period for the minutes in the court which conducts the procedure or may give his statement to the prison government and the person serving his sentence or a person in an institution for security or educational measurements may give his statement to the management of that institution. The day when such a minutes is constructed, i.e. when the statement is given to the institution management is considered as the day of submitting the statement to the competent body. (5) If a petition request tied to a period is submitted to the incompetent court within the period due to ignorance or an obvious error, therefore it arrives at the competent court after the period, it will be considered to be submitted on time.

Article 84 (1) Proscribed periods are calculated in hours, days, months and years. (2) The hour or day when the delivery or the announcement, i.e. when the event from which the beginning of the period is to be calculated is completed, is not calculated in the period but the next hour i.e. day is considered to be the beginning of the period. In a day there are 24 hours and a month is calculated in calendar time. (3) Periods in months i.e. years are completed when the day of the last month i.e. year expires, which according to the number is equivalent to the day when the period was set. If the day of the last month does not exist, the period is finished on the last day of that month. (4) If the last day of the period is on a bank holiday or on a Saturday or Sunday or on any other day when the state body does not work, the period expires on the first following working day.

Article 85 (1) If the accused, who for justified reasons omits the period for an appeal to the verdict or decision for security measurements implementation or educational measurements or property interest deprivation then the court will allow him restoring into previous condition with an appeal if in the period of eight days after the reason for which he has missed the period, he submits an appeal and an application for restoring into previous condition. (2) After the three month expiring from the day of his missing the period, an appeal for restoring into previous condition cannot be requested.

Article 86 (1) The Chairman of the Chamber who has reached the verdict or brought the decision which is annulled with the appeal decides on restoring into previous condition. (2) A special appeal is not allowed against decision which allows restoring into previous condition. (3) When the accused has submitted an appeal to the decision which does not allow restoring into previous condition, the court is obliged to submit the appeal to the Superior Court on a decision together with the

17 appeal on the verdict or on the decision for security measurements implementing or educational measurements or property interest deprivation, as well as with the reply to the appeal and with all records.

Article 87 The appeal for restoring into previous condition does not regularly keep from reaching the final verdict i.e. decision for security measurement application or educational measurement or property interest deprivation, but the competent court for deciding on the appeal may decide the procedure to be interrupted until the decision on the appeal is brought.

Chapter IX

CRIMINAL PROCEDURE EXPENSES

Article 88 (1) Criminal procedure expenses are expenses for the criminal procedure, from its initiation to its completion and expenses for the undertaken investigation acts before the investigation. (2) Criminal procedure expenses consist of:

1) expenses for witnesses, experts, interpreters and specialised persons, as well as inspection expenses;

2) transport expenses for the accused; 3) expenses for apprehension of the accused i.e. the arrested; 4) transport expenses for the officials; 5) medical treatment of the accused while he is pre- trial detained or detained due to a trial and

child- birth expenses; 6) gross amount; 7) recompense and necessary expenses for the counsel, necessary expenses for the private

prosecutor and for the damaged as a plaintiff and their legal authorities, as well as recompense and necessary expenses for their authorised representatives;

8) necessary expenses for the damaged and his legal authority, as well as recompense and necessary expenses for his authorised representative. (3) The gross amount is determined within frames of amounts determined with a regulation considering the duration and complexity of the procedure and the property condition of the person who is obliged to pay the amount. (4) Expenses from items 1 to 5, paragraph 2 of this Article as well as necessary expenses for the competent counsel and competent authorised representative of the damaged as a plaintiff (Articles 67 and 93), in procedure for crimes prosecuted ex officio are paid in advance from the budget of the body that conducts the criminal procedure and the persons which are obliged to compensate according to provisions of the Code are charged later. The body which conducts the criminal procedure is obliged to write all expenses paid in advance in the register, which will be enclosed in the records. (5) Expenses for interpretation under provisions of the Code referring to the right to a free assistance of an interpreter will not be charged to persons who according to the provisions of this Code are obliged to compensate the criminal procedure expenses.

Article 89 (1) In each verdict and decision which interrupts the criminal procedure or rejects the prosecution act it will be decided who will bear the procedure expenses and how high they are. (2) If there is no data on the extent of expenses, a special decision on the expense extent will be made by the investigating judge, individual judge or the Chairman of the Chamber when data are collected. The request with data for the expense extent may be submitted within a period of thirty days from the day of reaching the final legally valid verdict or decision for the person who has the right to submit such a request. (3) When it is decided with a special decision on an appeal for the criminal procedure expenses, the Chamber decides against that decision (Article 22, paragraph 6).

18 Article 90

(1) The accused, damaged, damaged as a plaintiff, private prosecutor, counsel, authorised representative, representing authority, witness, expert, interpreter and the specialised person (Article 161), without regard to the criminal procedure outcome, bear the expenses for their summoning, for cancelling investigation acts or trial or other procedure expenses, for which they are responsible, as well as the appropriate portion of the gross amount. (2) A special decision is brought on expenses under paragraph 1 of this Article, unless on expenses that the private prosecutor and the accused bear, is not decided in the decision on the main issue.

Article 91 (1) When the court finds the defendant guilty, it will state in the verdict that he is obliged to compensate the criminal procedure expenses. (2) A person accused of several crimes will not be convicted to pay the expenses for those crimes for which he was released from the accusation if it is possible these expenses to be excluded from the total amount of expenses. (3) In the verdict which convicts several accused, the court will decide on the separate amounts for each accused and if not possible, it will convict each accused equally to bear the expenses. Payment of gross amount will be determined for each accused individually. (4) In the decision on expenses, the court may release the accused from his duty to pay fully or partly the criminal procedure expenses under Article 88, paragraph 2, items 1 and 6 of this Code, if by his paying the expenses, his own supporting or supporting of the persons he is obliged to provide for would be threatened. If circumstances are distinguished after the expense decision, with a special decision the Chairman of the Chamber may release the accused from his duty to pay the criminal procedure expenses.

Article 92 (1) When the criminal procedure ends or when the verdict is reached where the accused is released from his charge or where the charge is rejected or when the prosecution act in the decision is rejected i.e. in the verdict it will be stated that criminal procedure expenses under Article 88, paragraph 2, items 1 to 5 of this Code, as well as necessary expenses of the accused and necessary expenses and recompense for the counsel fall on the budget, except for cases determined in the following paragraphs. (2) Any one fully aware of his false application will bear criminal procedure expenses. (3) The private prosecutor is obliged to pay for the criminal procedure expenses under Article 88, paragraph 2, items 1 to 6 of the Code, necessary expenses of the accused as well as necessary expenses for the recompense of his counsel, if the procedure is completed with a verdict which releases the accused from his charge or if the prosecution act is rejected by a verdict or if the prosecution act is rejected by a decision to end the procedure unless the procedure has ceased i.e. if the given verdict rejects his charge because of death of the accused, his permanent mental illness or because of an expired criminal prosecution due to cancelling the procedure which cannot be imputed as the private prosecutor's guilt. If the procedure is cancelled because of revoking the charges, the accused and the private prosecutor may equalise their mutual expenses. If there are several private prosecutors they will bear the expenses equally. (4) The damaged who has revoked the prosecution proposal, due to which the procedure has expired will bear the penal procedure expenses if the accused does not state that he will pay for them. (5) When the court rejects the accusation due to incompetence, the competent court will bring decision on expenses.

Article 93 (1) Recompenses and necessary expenses for the counsel and for the authorised representative of the private prosecutor or of the damaged must be paid by the person who is being represented, without respect to the fact who is obliged to bear the criminal procedure expenses according to the court decision, unless according to provisions of the Code recompense and necessary expenses for the counsel fall on the budged. If the accused had an appointed counsel and if by his paying of the recompense and the necessary expenses, his own supporting and supporting of persons he is obliged to provide for would be threatened,

19 then the recompense and the necessary expenses for the counsel will be paid from the budget. The same procedure will be conducted if the damaged as a plaintiff had an appointed authorised representative. (2) An authorised representative who is not a lawyer has no right to a recompense, but only to compensation of necessary expenses.

Article 94 The Superior Court decides on duties to pay expenses conducted before the very court according to provisions of Articles 88 to 93 of the Code.

Article 95 Detailed regulation for compensation of criminal procedure expenses before courts are brought by the Minister of justice.

Chapter X

LEGAL PROPERTY REQUESTS

Article 96 (1) A legal property request due to a crime will be proceeded 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.

Article 97 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 98 (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 99 (1) Authorised persons (Article 97) 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 100 (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.

20

Article 101 (1) The court decides on lawful property requests. (2) In the verdict in which the court convicts the accused, it may judge the damaged a full or partial lawful property request and for the extra amount it may direct him to a dispute. If the criminal procedure data do not give a safe ground for a full or a partial verdict, the court will instruct the damaged that he may realise his full lawful property request through a dispute. (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 102 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 103 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 104 (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 or because of a request to protect the legality or due to an 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 105 (1) In the procedure according to provisions valid for the performed procedure, on the request of authorised persons (Article 97), temporary measurements for security of a legal property request due to a committed crime may be set. (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 106 (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.

21 Article 107

(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 97) 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 105, 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 this measurements if a dispute is not initiated within the period proscribed by the court.

Chapter XI

REACHING AND PRONOUNCING RESOLUTIONS

Article 108 (1) In the criminal procedure resolutions are reached in forms of verdicts, decisions and orders. (2) Verdicts are brought only by the court and decisions and orders may be brought by other bodies which participate in the criminal procedure.

Article 109 (1) Chamber's resolutions are brought after oral advising and voting. A resolution is brought when the majority of the members of the Chamber vote for it. (2) The Chairman of the Chamber manages the advising and voting and he is the last to vote. He is obliged to consider all questions fully and completely. (3) When votes on a separate questions are divided and there is not a majority of votes, the questions will be separated and voting will be repeated until a majority of votes is accomplished. If the majority is not accomplished in this manner, the resolution will be reached in the way that votes which are the least favourable for the accused will be added to the votes which are less favourable until a majority is accomplished. (4) The members of the Chamber cannot refuse to vote on questions set by the Chairman of the Chamber, but a member of the Chamber who has voted for the accused to be released or for the verdict to be annulled but has been in the minority group is not obliged to vote for the sanction. If he does not vote, it will be comprehended as if he has agreed with the vote which is on behalf of the accused.

Article 110 (1) During the resolution, the first issue is whether the court is competent, whether it is necessary to complete the procedure, as well as other previous questions. When decision on previous questions is brought it is proceeded to decisions on the main issue. (2) During the bringing of the resolution on the main issue, first it will be voted whether the accused has committed crime and whether he is criminally responsible, and then it will be voted on the sentence, other criminal sanctions, criminal procedure expenses, legal property requests and other questions that need to be decided on. (3) If anyone is accused of several crimes, first it will be voted on his criminal responsibility and on the sentence of each of those crimes and then on the unique sentence for the crimes.

Article 111 (1) Advising and secret ballot are performed at a session. (2) Only the members of the Chamber and the court clerk can be present at the advising and secret ballot office and the results of the secret ballot must not be announced.

Article 112

22 (1) If by the Code it is not established differently, resolutions are announced orally to the interested persons if present, and by delivering certified transcript if absent. (2) If the resolution is orally announced it will be written in the minutes or registration list and the person being given the announcement will certify it with a signature. If the interested person states that he is not going to appeal, the certified transcript of the oral announcement of the resolution will not be delivered to him, if by this Code it is not established differently. (3) Transcripts of resolutions against which an appeal is allowed are delivered with instructions for the right to an appeal.

Chapter XII

DELIVERING WRITS AND ACCESS TO RECORDS

Article 113 (1) In general writs are delivered by post. Delivering can be conducted by the body in the community, an official of the body who has brought the decision or immediately at the body. (2) Court summons for the trial or other summons can be orally announced to the person before the court with an instruction of the consequences of not attending. Summoning performed in this manner will be notified in the minutes and signed by the summoned person unless the summoning is not notified in the minutes of the trial. Such a performance is considered to be a valid delivery.

Article 114 The writ for which with the Code it is proscribed to be delivered in person, is delivered directly to the person to whom it is addressed. If the person to whom the writ has to be delivered in person is not on the place of the delivery, the official will be informed when and where the person can be found and the official will leave at one of the persons' residences included in Article 115 of the Code a written announcement for the person to be at his own residence or his office at a certain day and hour. If the official does not find the person to whom the delivery has to be conducted, the official will act according the provision of Article 115, paragraph 1 of the Code and this will be considered an accomplished delivery.

Article 115 (1) Writs which according to the Code are not proscribed to be delivered in person are delivered in person, but such writs, if the receiver is not found at home or at work, may be handed to some of the adults of his family who are obliged to accept the writ. If they are not found at home, the writ will be handed to the superintendent or a neighbour if they agree to it. If the delivery is conducted at the receiver's office, and he is not there, the delivery may be passed to a person authorised for receiving post, i.e. obliged to receive the writ or to a person employed at the same office, if he agrees to accept the writ. (2) If it is certified that the person to whom the writ has to be delivered is absent and that the persons under paragraph 1 of this Article cannot give the writ to the receiver on time, the writ will be brought back with a notification where the absent is.

Article 116 (1) The court summons for the first examination in the investigation and the court summons for the trial will be delivered to the accused in person. (2) To the accused who has not a counsel the prosecution act, prosecution proposal or private charge, verdict and other decisions will be delivered to him in person and from this delivery the period for an appeal as well as an appeal by the opposite party submitted as a reply starts its expiring. On the request of the accused the verdict and other decisions will be delivered to the person he appoints. (3) If to the accused who has not a counsel a sentence to imprisonment has to be delivered, and the delivery cannot be accomplished to his current address, the court will appoint a counsel ex officio to the accused who will exercise his duty until the present address of the accused is found. A necessary period to be introduced with the records will be determined for the counsel after which the verdict will be delivered to the appointed counsel and the procedure will continue. If it is another decision in question from which delivery the period for an appeal or an appeal from the opposite party delivered for a reply starts, the

23 decision i.e. appeal will be announced on the notice board of the court and with the expiring of eight days since the day of its announcement on the notice board it will be considered to be a valid delivery. (4) If the accused has a counsel, the prosecution act, prosecution proposal, private charge and other decisions from which delivery the period for an appeal, as well as an appeal by the opposite party delivered for a reply starts, will be delivered both to the counsel and to the accused according to the provision of Article 115 of this Code. In that case the period for a judicial remedy i.e. reply to the appeal starts from the day of the last delivery in person. If the accused cannot be delivered the decision i.e. appeal because he has not notified his changed address, the decision i.e. appeal will be announced on the notice board of the court and after eight days from the day when it was announced, the delivery will be considered to be valid. (5) If the writ has to be delivered to the counsel of the accused and he has several counsels it will be sufficient the writ to be delivered to one of them.

Article 117 (1) A court summons to submit a charge or a prosecution act and a court summons for the trial is delivered to the private prosecutor and to the damaged as a plaintiff i.e. to the defence attorney in person (Article 114) and to the authorised representatives- according to Article 115 of the Code. The same process applies to delivering decisions for which from the day of the delivery starts the period for an appeal as well as an appeal by the opposite party delivered for a reply. (2) If to the persons under paragraph 1 of this Article or to the damaged the delivery to their current address cannot be performed, the court will announce the court summons i.e. decision or appeal on a notice board of the court and after eight days from the day of its announcement the delivery will be considered to be valid. (3) If the damaged, damaged as a plaintiff or the private prosecutor has a defence attorney or an authorised representative, the delivery will be performed to them, and if there are more, only to one of them.

Article 118 (1) The receipt for the accomplished delivery (the delivery receipt) is signed by the receiver and the official who delivers it. The receiver will notify the day of the receiving on the delivery receipt himself. (2) If the receiver is illiterate or not in condition to sign it, the official will sign it, will appoint the day of its receiving and will notify why he has signed it instead of the receiver. (3) If the receiver rejects to sign the receipt, the official will notify that in the receipt and will notify the delivery day and with it the delivery will be considered to be accomplished.

Article 119 When the receiver or an adult from his household rejects to accept the writ, the official will notify on the receipt the day, hour and reason for its rejection and he will leave the writ in his residence or office and with it the delivery is accomplished.

Article 120 (1) To army officials, guards in institutions where arrested persons are accommodated and employees in land, sea and air traffic the writ delivery is performed by their head quarters i.e. by their superior officer, and if necessary other writs can be delivered in this manner. (2) To arrested persons the delivery is performed in the court or by the management in the institution where they are accommodated. (3) To persons who have the right to immunity in the Republic of Macedonia, if International Treaties do not certify anything else, deliveries are performed by the Ministry of External Affairs. (4) Deliveries to citizens of the Republic of Macedonia abroad, if the procedure proscribed in Articles 503 and 504 of this Code is not applied, are performed by the diplomatic or consular office of the Republic of Macedonia in the foreign country, under the condition that the foreign country does not resist such manner of delivery and that the person to whom the delivery is performed voluntarily agrees to accept the writ. The authorised official of the diplomatic or consular office signs the delivery receipt as a delivery official- if

24 the writ is delivered at the very office and if the writ is delivered by post- it is certified in the delivery receipt.

Article 121 (1) Decisions and other writs are directed to the public prosecutor by a delivery to the office of the public prosecution. (2) When decisions tied to a proscribed period are delivered, the day of their delivery is considered to be the day of the delivery of the writ at the public prosecution office. (3) On the request of the public prosecutor the court will deliver to him the criminal record for observation. If the period for a regular judicial remedy runs or if it is in the interest of the procedure, the court may determine within which period the public prosecutor is to return the records.

Article 122 In cases not included in this Code deliveries are performed according to provisions valid for the process procedure.

Article 123 (1) Court summons and decisions which are delivered by the time when the trial is completed to persons who participate in the procedure, apart from the accused, may by handed to a participant in the procedure who agrees to hand them over to the person they are addressed to, but only if the body considers that their receiving are secured. (2) For court summons at a trial or for other court summons, as well as for decisions for cancelling trials or other appointed acts, persons included in paragraph 1 of this Article may be informed by a telegram or telephone, if according to the circumstances it may be presumed that the announcement performed in this way will be directed to the person who has to accept it. (3) For summoning and delivering decisions performed in manners included in paragraphs 1 and 2 of this Article, an official notification on the record will be written. (4) To anyone who according to paragraphs 1 or 2 of this Article has been informed i.e. has been delivered a decision, negative consequences proscribed for not replying can be applied if it is certified that he has accepted the summons i.e. decision on time and that he has been instructed on the negative consequences of not replying.

Article 124 The accused has the right to an access to the records and to the objects which serve as evidence, after he has been examined.

Chapter XIII

EXECUTION OF RESOLUTIONS

Article 125 (1) The verdict becomes legally valid when it cannot be further annulled with an appeal or when an appeal is not allowed. (2) The final legally valid verdict is executed when its delivery is completed and when for its execution there are not any lawful impediments. If an appeal is not submitted or if the parties have cancelled or withdrawn from the appeal, the verdict is executed after the period for the appeal i.e. since the day of the cancelling or withdrawing from the submitted appeal. (3) If the court which has reached the verdict is not competent of first degree for its execution, the court competent for the conducting will deliver a certified copy of the verdict with a certification for execution. (4) If an officer in reserve, officer or army officer is convicted with a penalty, the court will deliver a certified copy of the final legally valid verdict to the body competent for the defence.

Article 126

25 If the fine penalty proscribed with this Code cannot be forcefully charged, the court will charge it applying certain provisions proscribed by the Code.

Article 127 (1) The execution of the verdict with respect to criminal procedure expenses, deprivation property interest and lawful property requests is conducted by a competent court according to provisions valid for the execution procedure. (2) The forceful charge of the criminal procedure expenses, in favour of the budget is performed ex officio. The expenses of the forceful charge are previously charged from the budget. (3) If in the verdict there is a pronounced security measure to be deprived from the objects, the court which has pronounced the verdict will decide in first degree whether such objects will be sold according to provisions valid for the execution procedure or will be given to the state agencies, to the criminology museum or to other institutions or will be destroyed. The money gained after the sale of the objects are transferred into the budget. (4) The provision of paragraph 3 of this Article will accordingly be applied when a decision is reached for deprivation from objects on the basis of Article 485 of this Code. (5) The legally valid decision for deprivation from objects, apart from the case of repetition of the criminal procedure, i.e. a request for protecting of legality or request for extraordinary review of the legally valid verdict, may be altered in a dispute if the dispute for property owning of the deprived objects is initiated.

Article 128 (1) If with this Code it is not determined otherwise, the decisions are executed when they become legally valid. Orders are executed immediately if the body that has issued the order does not order differently. (2) The lawful validity of the decision is due when it cannot be annulled with an appeal or when a special appeal is not allowed. (3) If not stated differently, decisions and orders are executed by the bodies which have reached them. If the court has decided on the criminal procedure expenses, the charge of those expenses is performed according to provisions of Article 127, paragraphs 1 and 2 of this Code.

Article 129 (1) If there is a suspicion for the approval of the execution of the court decision or calculation of the sentence, or if in the final legally valid verdict the calculation of the detention, the detention due to trial or earlier served sentence is not decided, or the calculation is not righteously performed, the Chairman of the Chamber of the court of first degree i.e. individual judge will decide on the issue with a special decision. The appeal does not keep from execution of the decision, unless the court has decided differently. (2) If there is a suspicion for the interpretation of the court decision, the court which has reached the final legally valid decision decides on that.

Article 130 When the decision on the lawful property request has become legally valid, the damaged may require from the court that has decided of first degree the damaged to be issued a certified copy of the decision with a notification that the decision is to be executed.

Article 131 Regulation for penal files are brought by the Minister of Justice.

Chapter XIV

MEANING OF LEGAL NOTIONS AND OTHER PROVISIONS

Article 132

26 (1) When the criminal prosecution depends on the proposal of the damaged, the public prosecutor cannot demand investigation nor can he bring an immediate charge i.e. prosecution proposal until the damaged submits a proposal. (2) When by law it is proscribed that for certain criminal prosecution a previous approval from the competent state agency is necessary, the public prosecutor cannot demand investigation, nor can he initiate an immediate prosecution act, i.e. prosecution proposal if he does not submit evidence for its approval.

Article 133 (1) If the procedure is conducted due to a crime endangering traffic security, the investigating judge or the Chamber may confiscate the accused his driving licence during the procedure. Before the initiation of the criminal procedure due to a crime endangering traffic security, the competent body for inspection may confiscate the person his driving licence and keep it at the most for three days, because of justified suspicion that the person has committed the crime. (2) The driving licence can be returned to the accused before the criminal procedure is completed if it can be justly concluded that the reasons for driving licence confiscation has ceased. (3) An appeal which does not keep from execution of the decision against the decision reached according to paragraphs 1 and 2 of this Article is allowed. (4) The time when the driving licence is confiscated from the person who is not detained will be calculated with a pronounced security measure- prohibition for driving a motor vehicle.

Article 134 For detention, for the prosecution act to become legally valid, i.e. for the verdict for a crime prosecuted according to a prosecution proposal, within a time period of three days the court will inform the employer who is in a working relationship with a person to whom these decisions refer.

Article 135 When during the criminal procedure it has been stated that the accused died, the criminal procedure with a decision will be stopped.

Article 136 (1) During the procedure, the court may punish with a fine penalty determined under Article 74, paragraph 1 of this Code the counsel, the defence attorney or the authorised representative, the damaged, the damaged as a plaintiff or the private prosecutor if his acts are evidently focused on cancelling the criminal procedure. (2) The Bar will be informed of the punishment of the lawyer. (3) If the public prosecutor does not submit proposals to the court in time or if he undertakes other acts in the procedure with an immense delay, therefore causing a procedure cancelling, the superior public prosecutor will be informed.

Article 137 (1) In reference of exclusion from the criminal procedure of persons who have a right to immunity in the Republic of Macedonia, the International Law Regulations are valid. (2) In case there is a suspicion that it is those persons in question, the court will address for an explanation to the Ministry of External Affairs by the Ministry of Justice.

Article 138 All state agencies are obliged to provide necessary assistance for the courts and other bodies which participate in the criminal procedure, especially when the question is on revelation of crimes or detecting criminals.

Article 139 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.

27 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.

Part Two

COURSE OF PROCEDURE

A. Pre-criminal procedure

Chapter XV

CRIMINAL CHARGE

Article 140

(1) The state agencies and institutions which perform public authorisation are obliged to report crimes which are prosecuted ex officio, of which they are informed or of which they learn about in a different way. (2) When they report, the mentioned under paragraph 1 of this Article will state evidence which they are familiar with and will undertake measures to keep the traces of the crime, objects upon which or with which the crime has been committed and other evidence.

Article 141 (1) Everyone may report a crime which is prosecuted ex officio. (2) The criminal charge is submitted to the competent public prosecutor in written form or orally. (3) If the charge is submitted orally, the reporter will be warned about the consequences of false charges. Minutes will be completed for the oral charge, and if announced by telephone, an official note will be completed. (4) If the report is submitted to the court, to the Ministry of Internal Affairs or to the competent public prosecutor, they will accept the report and will deliver it to the competent public prosecutor immediately.

Article 142 (1) If there is a ground for suspicion that the crime is committed which is to be prosecuted ex officio, the Ministry of Internal Affairs is obliged to take over necessary measures to find the criminal, for the criminal or the collaborator not to hide or elope, for traces of the crime and objects which may serve as evidence to be found out and obtained, as well as all announcements to be provided which may be useful for the criminal procedure to be conducted successfully. (2) In order the tasks under paragraph 1 of this Article to be conducted, the Ministry of Internal Affairs may extract necessary information from the citizens, may conduct necessary inspection of the means of transport, passengers and luggage; during the necessary time may limit the movements to a certain area; may undertake necessary measures in reference of detecting the identity of persons and objects; may issue a pursuit for the person and objects which are being traced; in presence of responsible persons may inspect certain objects and premises of state agencies, institutions which perform public authorisations and other legal persons and may perform inspection in their documentation, and respectfully may undertake other necessary measures and acts. For facts and circumstances certified when undertaking certain acts and which may be useful for the criminal procedure, as well as for the objects found or confiscated, a minutes or official note will be completed.

28 (3) A person may forcefully be apprehended only with a court decision and only when he apparently avoids to respond to the correctly delivered court summons in which he is informed of the possibility of a forceful apprehension and when he does not justify why he would not attend. (4) Of the undertaken acts under paragraph 2 of this Article the citizens may request from the court to examine the legality, and the court is obliged to certify it with a decision. (5) With an allowance from the investigating judge i.e. Chairman of the Chamber, the Ministry of Internal Affairs may collect statements from persons who are in a pre- trial detention, if it is necessary to reveal other crimes of the same person, his collaborators or crimes of other criminals. These statements will be collected within the time determined by the investigating judge and at his presence or at the presence of the person determined by the investigating judge i.e. Chairman of the Chamber. (6) On the basis of collected facts the Ministry of Internal Affairs completes a criminal charge notifying all evidence which it has found out. In the criminal charge, the contents of the statements which certain citizens have given during the period when the statements were collected are not included. The following is also enclosed with the criminal charge: objects, schemes, photographs, reports, records for undertaken measures and acts, official notes, statements and other material which could be useful for a successful conduct of the procedure. If after the criminal charge, the police find out new facts, evidence or traces of the crime, they are obliged to collect necessary reports and to submit the report as supplement to the criminal charge to the public prosecutor. (7) The Ministry of Internal Affairs informs the public prosecutor even if according to the collected facts there is no ground for bringing a criminal charge.

Article 143 (1) The authorised officials of the Ministry of Internal Affairs have a right to direct the persons present at the place of the crime to the investigating judge or to keep them until he comes, if these persons could give data important for the criminal procedure or if it is likely that they cannot be examined later or if it would mean a delay or other difficulties. Keeping persons at the place of the crime cannot last longer than six hours. (2) The Ministry of Internal Affairs may take a photograph of the person for whom there is a ground for suspicion that he has committed a crime and may take his fingerprints. When it is necessary to detect his identity or when it is in favour of a successful conduct of the procedure, with the approval of the court the Ministry of Internal Affairs may published the photograph in public. (3) If it is necessary to be certified whose the fingerprints on certain objects are, the Ministry of Internal Affairs may take fingerprints from persons who are likely to have had the physical contact with the objects.

Article 144 (1) With the decision the public prosecutor will reject the criminal charge if from the charge it can be derived that it is not a crime prosecuted ex officio, if it is obsolete or it was pronounced amnesty or plead, if there are either circumstances excluding the prosecution or if there is not a suspicion that the charged has committed the crime. For the rejection of the charge and its reasons, the public prosecutor will inform the damaged within the period of eight days (Article 56) and if the charge is submitted by the Ministry of Internal Affairs, he will also inform it. (2) If the public prosecutor cannot evaluate from the charge whether the contents of the charge are likely or if the data of the charge are not a sufficient ground to be decided whether investigation is to be conducted or if the public prosecutor has only heard of the committed crime, especially if the criminal is unknown, if the public prosecutor cannot take it over alone or through other bodies, he will request from the Ministry of Internal Affairs to collect necessary statements and take over other measures to reveal the crime and the criminal (Articles 142 and 143). The public prosecutor may always request from the Ministry of Internal Affairs to be informed of the undertaken measures. (3) The public prosecutor may require necessary data from state agencies, institutions which perform public authorisations and from other legal persons, and he can also summon the person who has brought the criminal charge, the suspect and other persons whose statements he considers to be of help for evaluation of the validity of the contents in the charge.

29 (4) If after the undertaken acts from paragraphs 2 and 3 of this Article, some of the circumstances under paragraph 1 of this Article emerge, the public prosecutor will reject the charge. (5) The public prosecutor and other state agencies, institutions which perform public authorisations and other legal persons, when collecting reports i.e. giving data, are obliged to act cautiously, to consider that the person's honour and authority to whom these data refer are not damaged.

Article 145 (1) The public prosecutor with the agreement of the damaged may cancel the prosecution for the crime for which a fine penalty or a sentence to three years is proscribed if the suspect has agreed to act according to instructions of the public prosecutor and to fulfil certain commitments by which the harmful consequences of the crime will be reduced or annulled. The following may be the commitments:

1) annulment or compensation of the damage; 2) payment of certain contribution in favour of the budget or other institution which perform public

authorisation or with human purposes; 3) fulfilment of commitments in reference of the serving.

(2) If the criminal within a period that cannot be longer than six months fulfils his commitment, the public prosecutor will reject the criminal charge against the criminal of the crime under paragraph 1 of this Article.

Article 146 The public prosecutor is not obliged to take over criminal prosecution i.e. may withdraw from the prosecution if:

1) in the Criminal Code it is stated that the court may release the criminal from the punishment and the public prosecutor, considering actual circumstances in the case evaluates that a verdict without sanction is not necessary, and

2) in the Criminal Code it is proscribed a fine penalty or a sentence to three years for a crime, and since the suspect's repentance prevented the damaging consequences or he has compensated the damage, the public prosecutor considering certain circumstances evaluates that the criminal sanction was not based on sound grounds.

Article 147 (1) When there is a danger of cancelling before the investigation the Ministry of Internal Affairs may conduct temporary confiscation of objects according to provisions of Article 203 of this Code and may search premises and persons under conditions proscribed in Articles 198 to 202 of this Code. (2) If the investigating judge cannot appear on the very place, the Ministry of Internal Affairs may conduct inspection and necessary expertise itself, except for autopsy and exhumation of a body. If the investigating judge arrives on the very place during the inspection, he may take over these acts. The public prosecutor will be informed of everything which is undertaken.

Article 148 (1) When the criminal is unknown, the public prosecutor may request from the Ministry of Internal Affairs to undertake investigation, if according to the circumstances of the case, it would be better before the investigation such acts to be undertaken. If the public prosecutor considers that the investigation should be taken over by the investigating judge, or if autopsy or exhumation should be performed, the public prosecutor will suggest the investigating judge to take over those acts. If the investigating judge disagrees on the suggestion, he will ask the Chamber to decide (Article 22 paragraph 6). (2) The minutes for the undertaken investigation are submitted to the public prosecutor.

Article 149 (1) The investigating judge of the competent court, as well as the investigating judge of the court on which region the crime was committed, before the decision for investigation, may undertake certain investigation which is endangered to be cancelled, but of whatever undertaken the public prosecutor must be informed.

30 (2) In reference of apprehension and examination of the person suspected of crime, provisions for apprehension and examination are applied.

Chapter XVI

INVESTIGATION

Article 150 (1) Investigation is initiated against a person when there is justified suspicion that he has committed crime. (2) Within the investigation will be collected evidence and data necessary to be decided whether a prosecution act will be initiated or the procedure will be interrupted, evidence for which there is a danger not to be repeated at the trial or that their exhibition would be performed with difficulties, as well as other evidence which can be useful for the procedure for whose performance, considering the circumstances in the case is shown to be positive.

Article 151 (1) Investigation is conducted on the request of the public prosecutor. (2) The request for conducting investigation is submitted to the investigating judge of the competent court. (3) In the request the following must be noted: the person against whom investigation is requested, description of the crime from where lawful characteristics of a crime are derived, the lawful title of the crime, circumstances which point to the justified suspicion and existing evidence. (4) In the request for investigation, it may be suggested certain circumstances to be inspected, certain acts to be initiated, on certain questions certain persons to be examined, and it also may be suggested the person against whom the investigation is requested to be detained. (5) The public prosecutor will submit to the investigating judge the criminal charge and all records and minutes for the undertaken acts. Simultaneously the public prosecutor will submit to the investigating judge cases that may serve as evidence or the place where they are kept will be underlined.

Article 152 (1) When the investigating judge receives the request for investigation, he will review the records and if he agrees with the request, he will bring a decision for investigation which must contain data included in Article 151, paragraph 3 of this Code. The decision will be submitted to the public prosecutor and the accused. (2) Before reaching the decision, the investigating judge will examine the person against whom there is a request for investigation unless there is a danger of cancelling. (3) Before deciding on the request of the public prosecutor, the investigating judge may invite the public prosecutor and the person against whom investigation is requested to come to court on a specified day to explain the circumstances which may be important to be decided on the request or if for other reasons the investigating judge considers their oral explanation to be positive. The parties may give oral proposals and the public prosecutor may alter or supplement his request for investigation, and he may also suggest the procedure to be performed immediately on the basis of the prosecution act (Article 153). (4) In respect of summoning and examination of the person against whom investigation is requested, provisions of this Code for summoning and examination of the accused will be applied. The person summoned according to paragraph 3 of this Article will be instructed by the investigating judge on the contents of Article 3 and Article 210, paragraph 2 of this Code. (5) The accused may submit an appeal against the decision of the investigating judge for conducting investigation. If the decision is announced orally, the appeal may be stated for the minutes. (6) The investigating judge is obliged immediately to submit the appeal to the Chamber (Article 22, paragraph 6). The appeal does not keep from execution of the decision. (7) If the investigating judge does not agree with the request for investigation of the public prosecutor, he will ask the Chamber to decide (Article 22, paragraph 6). The accused and the public prosecutor have a right to an appeal against the decision of the Chamber, which does not keep from execution of the decision.

31 (8) In cases of paragraphs 6 and 7 of this Article the Chamber is obliged to reach a decision within 48 hours. (9) During the decision on the request for investigation, the Chamber is not bound to a judicial evaluation of the crime which was pointed out by the public prosecutor.

Article 153 (1) The investigating judge may agree with the proposal of the public prosecutor the investigation not to be conducted, if the collected data referring to the crime and criminal give a sound ground to initiate the prosecution act. (2) According to paragraph 1 of this Article, the investigating judge may agree only if previously he has examined the person against whom the prosecution act is to be initiated. In reference of the summoning and examination of that person, provisions for summoning and examination of the accused are applied. The investigating judge will submit the announcement of the agreement to the public prosecutor and to the person against whom the prosecution act is to be brought. (3) The period for initiation of the prosecution act is eight days, but on the request of the public prosecutor the Chamber (Article 22, paragraph 6) may prolong the period. (4) The public prosecutor may submit the proposal in paragraph 1 of this Article after the submitting of the request for investigation until the decision for the request is brought. (5) If the investigating judge considers that the conditions for initiation of the prosecution act are not fulfilled, without investigation he will act as if a request for investigation is submitted. (6) If for the crime a sentence to five- year imprisonment is proscribed, out of the conditions anticipated under paragraphs 1 to 5 of this Article, the public prosecutor may initiate a prosecution act without investigation if the collected data referring to the crime and criminal are a sufficient ground for accusation. (7) Provisions of paragraphs 1 to 6 of this Article are also applied when criminal prosecution is undertaken on the request of the damaged as a plaintiff, but in that case the period under paragraph 3 of this Article cannot be prolonged. (8) According to the proposal of paragraph 1 of this Article and according to the prosecution act initiated on the basis of paragraph 6 of this Article, the public prosecutor will submit a criminal charge and all records and minutes for the undertaken acts, as well as the objects which can serve as evidence or he will underline where they are kept.

Article 154 (1) The investigation is conducted by the investigating judge of the competent court. (2) By law, it may be determined one court in which the investigation is to be conducted, containing regions of several courts (investigation centre). (3) The investigating judge conducts investigation by rule only on the region of his court. If it is in the interest of the investigation, he may conduct investigation out of the region of this court, but he is obliged to inform the court on which region he conducts the investigation.

Article 155 (1) During the investigation the investigating judge may entrust the conduct of the investigation to the investigating judge of the court on whose region the investigation is to be initiated, and if for regions of several courts one court is determined for judicial assistance- in that court. (2) The public prosecutor acting before the court entrusted with the investigation may be present at the act if the competent public prosecutor announces that he will not be present. (3) The investigating judge may entrust the Ministry of Internal Affairs with the conduct of the order for a search of premises or persons or for temporary confiscation of objects in the manner proscribed by this Code. (4) On the request or approval of the investigating judge, the Ministry of Internal Affairs may take photographs of the accused or his fingerprints if it is necessary for the interest of the criminal procedure.

Article 156

32 While undertaking investigation, the Ministry of Internal Affairs acts according to appropriate provisions for investigation of this Code.

Article 157 (1) If necessary, the investigating judge will conduct other investigating acts connected or derived from these. (2) If the investigating judge who is entrusted with the conduct of certain investigating acts is not competent for them, he will send the case to the competent court and he will inform the investigating judge who has delivered him the case of that.

Article 158 (1) The investigation is conducted only in reference of that crime or against that accused to whom the decision on conducting investigation refers. (2) If during the investigation it is shown that the procedure should be expanded to some other crimes or against other person, the investigating judge will inform the public prosecutor. In that case, investigating acts which cannot be further delayed may be undertaken, but the public prosecutor must be informed of everything which is undertaken. (3) In respect of the expending of the investigation, provisions of Articles 151 and 152 of this Code are valid.

Article 159 After bringing the decision for conducting the investigation without proposals of the parties, the investigating judge takes over acts which he considers to be necessary for a successful conduct of the procedure.

Article 160 (1) The parties and the damaged during investigation may give proposals to the investigating judge that certain investigating acts should be conducted. If the investigating judge disagrees with the proposal of the parties a separate investigating act to be conducted, he will ask the Chamber to decided on that (Article 22, paragraph 6). (2) The parties and the damaged may give their proposals under paragraph 1 of this Article to the investigating judge to whom the conduct of separate investigating acts is entrusted. If the investigating judge disagrees with the proposal, he will inform the person who proposes of that, who may again give his proposal to the investigating judge of the competent court.

Article 161 (1) The prosecutor and the counsel have a right to be present at the examination of the accused. (2) The prosecutor, damaged, accused, and counsel have a right to be present at the inspection and at the hearing of the experts. (3) The prosecutor and the counsel have a right to be present at the search of premises. (4) At the hearing of the witness the prosecutor, the accused and the counsel have a right to be present when it is likely that the witness will not attend the trial, when the investigating judge finds it necessary or when one of the parties has requested to attend the hearing. The damaged may be present at the hearing of the witness only when it is probable that the witness will not attend the trial. (5) The investigating judge is obliged in an appropriate manner to inform the prosecutor, counsel, damaged and accused of the time, place of the conduct of the investigating acts to which they cannot be present, unless there is a danger of cancelling. If the accused has a counsel, by rule the investigating judge will inform only the counsel. (6) If the person to whom the announcement for the investigating act is addressed, is not present, the act may be conducted in his absence. (7) Persons present at the investigating acts may propose to the investigating judge the accused, the witness or the expert to be examined in order the issues to be clarified, and if the investigating judge allows it, the persons present at the investigating acts may ask questions themselves. These persons have a right to

33 request there notes to be included in the minutes considering the conduct of certain acts, and they may propose certain evidence to be presented. (8) Due to the explanation of certain technical and other professional questions in connection with the evidence or during the examination of the accused or initiation of other investigating acts, the investigating judge may ask the person with a certain specialisation to give necessary explanation on those questions. If during the explanation the parties are present, they can ask from that person to give closer and more detailed explanation. In case it is necessary, the investigating judge may request explanation from an appropriate specialised institution. (9) Provisions under paragraphs 1 to 8 of this Article are applied when the investigating act is initiated, before the decision for investigation is brought.

Article 162 (1) With a decision, the investigating judge will interrupt the investigation if the accused suffers from temporary mental disability or from other serious decease, therefore for a longer time he cannot participate in the procedure. (2) If the residence of the accused is unknown, the investigation may be interrupted, but if the accused is a fugitive or he is unavailable to the state agencies, the investigation will be interrupted only on the proposal of the public prosecutor, if the procedure is conducted on his request. (3) Before the interruption of the investigation, all evidence of the crime and of the criminal responsibility of the accused which are available will be collected. (4) When the impediments causing the interruption cease to exist, the investigating judge will continue the investigation.

Article 163 The investigating judge interrupts the investigation with the decision when, during the investigation or after it, the public prosecutor states that he withdraws from the prosecution. The investigating judge will inform the damaged of the interruption of the investigation within the period of eight days.

Article 164 (1) The investigation will be interrupted by the Chamber (Article 22, paragraph 6) with a decision when it decides on whatever question during the investigation in the following cases:

1) if the crime imposed on the accused is not a crime prosecuted ex officio; 2) if there are circumstances excluding the criminal responsibility of the accused, and there are no

conditions for application of security measures; 3) if the criminal prosecution becomes obsolete or the crime undergoes amnesty or plead, or if there

are other circumstances which exclude the prosecution, and 4) if there is no evidence that the accused has committed crime.

(2) If the investigating judge finds that there are reasons for interruption of the investigation under paragraph 1 of this Article, he will inform the public prosecutor. If the public prosecutor within the period of eight days does not inform the investigating judge that he withdraws from the prosecution, the investigating judge will request from the Chamber to decide on the interruption of the investigation. (3) The decision for interruption of the investigation is submitted to the public prosecutor, to the damaged and to the accused who will be immediately released if he is in a pre- trial detention. The public prosecutor and the damaged have a right to an appeal against this decision. (4) If against the decision for interruption of the investigation appeals only the damaged and the appeal is accepted, the damaged by his appealing will be considered to have taken over the prosecution.

Article 165 (1) The investigating judge before the investigation is completed will collect data for the accused included in Article 206, paragraph 1 of this Code, if they are omitted or should be checked out as well as data for previous convictions of the accused, and if the accused is still serving a sentence or other sanction connected to his arresting- data for his behaviour during the serving of the sentence or other sanctions. If necessary, the investigating judge will obtain data for the previous life of the accused and for his living

34 conditions, as well as for other circumstances referring to his personality. The investigating judge may determine medical examinations or psychological examinations for the accused when it is necessary the data for the personality of the accused to be completed. (2) If a unique punishment is to be pronounced, a punishment which encompasses his previous convictions, the investigating judge will request for relevant records.

Article 166 (1) If before the completed investigation, the investigating judge finds that it is on behalf of the defence, the accused and his council to be introduced to important evidence collected during the investigation, he will inform them within certain period that they can have an access to the material and records referring to the evidence and that they may give proposals for presentation of new evidence. (2) When the certain period expires or if the proposal for the presentation of evidence is not accepted, the investigating judge will act according to Article 167 of this Code.

Article 167 (1) The investigating judge completes the investigation when he finds that the conditions of the issues in the investigation are sufficiently explained. (2) After the completed investigation, the investigating judge submits the records to the public prosecutor who is obliged within the period of fifteen days to give a proposal for the investigation to be completed or to initiate a prosecution act or to state that he withdraws from the prosecution. This period may be prolonged by the Chamber (Article 22, paragraph 6) on the proposal of the public prosecutor. (3) If the investigating judge rejects the proposal of the public prosecutor for completion of the investigation, he will request from the Chamber to decide on that (Article 22, paragraph 6). If the Chamber reject the proposal of the public prosecutor, the period under paragraph 2 of this Article runs since the day when the decision of the Chamber is announced to the public prosecutor. (4) If the public prosecutor does not act within the period proscribed in paragraphs 2 and 3 of this Article, he is obliged to inform the superior public prosecutor of his reasons.

Article 168 (1) If the investigation is not completed within the period of ninety days, the investigating judge is obliged to inform the President of the Court of the reasons why the investigation is not completed. (2) The President of the Court will necessarily undertake measures for completion of the investigation.

Article 169 (1) The damaged as a plaintiff and the private prosecutor may submit to the investigating judge of the competent court a request for investigation i.e. a proposal to complete the investigation. During the investigation they may give the investigating judge other proposals. (2) In reference of the initiation, conduct, interruption and ceasing of the investigation, provisions of this Code are accordingly applied which refer to the initiation and conduct of the investigation on the request of the public prosecutor. (3) When the investigating judge finds that the investigation is completed, he will inform the damaged as a plaintiff or the private prosecutor and will instruct him that within a period of eight days he should initiate a prosecution act i.e. private charge, and if he does not do accordingly he will be considered to have withdrawn from the prosecution, therefore the procedure with a decision will cease. The investigating judge is obliged to give instruction of this kind when the Chamber (Article 22 paragraph 6) rejects the proposal of the damaged as a plaintiff or of the private prosecutor for completion of the investigation because he considers the condition of the issues to be sufficiently explained.

Article 170 If the investigating judge needs assistance from the police (criminological, technical and similar) or from other state agencies in connection with the conduct of the investigation, they are obliged to assist him on his request. The investigating judge may request assistance from legal persons, if it is necessary for the completion of the investigation which does not allow any cancelling.

35

Article 171 If it is on behalf of the interest of the criminal procedure, of concealing secrets, of the public order and ethical reasons, the official who initiates the investigation will order the persons who are heard or present at the investigation or have an access to the records of the investigation to conceal as secrets certain facts or data which they have learnt and will inform them that revealing secrets is crime. This order will be included in the minutes for the investigation i.e. will be noted on the records with a signature by the person who has been instructed.

Article 172 When the Chamber decides during the investigation, it may require necessary explanations from the investigating judge and parties and it may invite both parties to state their opinions orally at the session of the Chamber.

Article 173 (1) The investigating judge may issue a fine penalty under Article 74 paragraph 1 of this Code to any one who during the investigating act and after the warning disturbs the order. If the participation of that person is not necessary, he may be removed from the place of the act. (2) The accused cannot be punished with a fine penalty. (3) If the public prosecutor disturbs the order, the investigating judge will act according to the provision of Article 287 paragraph 5 of this Code.

Article 174 (1) The parties and the damaged may always address with an appeal to the President of the Court before whom is conducted a procedure due to prolonging the procedure and due to other anomalies during the investigation. (2) The President of the Court will inspect the contents of the appeal and will inform the applicant of what is undertaken.

Chapter XVII

MEASURES FOR SECURING PRESENCE OF THE ACCUSED AND FOR SUCCESSFUL PERFORMANCE OF THE CRIMINAL PROCEDURE

1. Mutual provision

Article 175 (1) The possible measures against the accused for securing his presence and for successful performance of the criminal procedure are: court summons, apprehension, promise by the accused that he will not leave his residence, guarantee and pre- trial detention. (2) When deciding which measure to be undertaken, the competent body will hold to the determined conditions to apply certain measures, keeping in consideration more severe measure not to be applied, if the same aim can be achieved with a more mitigated measure. (3) These measures will be revoked ex officio when the reasons for their provoking cease i.e. they will be altered with a more mitigated measure when there are conditions for it.

2. Court summons

Article 176 (1) The presence of the accused during the conducting of the acts in the criminal procedure is secured by his summoning. The court summons is addressed to the accused by the court. (2) The summoning is performed by a delivery of a closed court summons in a written form which contains: the name of the court which summons, the name of the accused, the title of the crime he is imposed on, the place where the accused is to come, the day and hour when he is to come, a notion that he

36 is summoned as an accused, a warning that if he does not come he will be forcefully apprehended, an official seal and a signature by the judge who summons. (3) When the accused is summoned for the first time, he will be instructed in the court summons on his right to have a counsel and that the counsel may be present at his examination. (4) The accused is obliged to inform the court immediately of his new address, as well as of his intention to change his residence. The accused will be informed of this at his first examination i.e. at the delivery of the prosecution act without investigation (Article 153 paragraph 6), prosecution proposal or private charge and he will be also warned of the consequences determined by this Code. (5) If the accused is not in a condition to respond to the court summons, due to an illness or some other indisputable impediment, he will be examined at the place where he is or his transport will be provided to the court premises or to another place where the act is undertaken.

3. Apprehension (Bringing to court)

Article 177 (1) An order the accused to be apprehended may be issued by the court if a decision is brought for a pre- trial detention or if the summoned does not come although he has been correctly summoned and he does not explain his absence or if the delivery of the court summons could not have been completed and according to the circumstances it can be concluded that the accused avoids the receiving of the court summons. (2) The order for apprehension is carried out by the Ministry of Internal Affairs. (3) The order for apprehension is issued in writing. The order has to contain: the name of the accused who is to be apprehended, the title of the imposed crime with the notification of the provision of the Criminal Code, the reasons for ordering apprehension, an official seal and signature of the judge who is ordering the apprehension. (4) The person entrusted with the order hands in the order to the accused and asks him to follow him. If the accused refuses it, he will apprehend him forcefully. (5) Against army officials, police officials or security officials of an institution for persons deprived from their freedom, an order for apprehension will not be issued but from their headquarters i.e. institution it will be demanded the person to be apprehended.

4. Promise by the accused not to leave his residence

Article 178 (1) If it is suspected that during the procedure the accused might hide or elope to an unknown place or abroad, the court may require from the accused a promise containing an obligation that he is not going to hide i.e. that without an approval of the court he is not going to leave his residence. The given promise is inserted in the minutes. (2) The passport of the accused may be temporarily confiscated from him or its issue may be prohibited. The appeal against the decision for confiscation of the passport or prohibition of its issue does not keep from execution of the decision. (3) When the accused gives his promise he will be warned that if he disrespects his obligation he may be pre- trial detained.

5. Guarantee

Article 179 If the accused who is to be detained or has already been detained is suspected that because of his fear he might escape, may be allowed his freedom i.e. may be let free if he personally or another person guarantees that he is not going to escape until the end of the criminal procedure, and the accused promises himself not to hide or without an approval not to leave his residence.

Article 180

37 (1) The amount of the guarantee is always determined according to the severity of the crime, personal and family circumstances of the accused and the property condition of the person who guarantees. (2) The guarantee consists of depositing cash, cheques, values and other movable objects of considerable value, which can easily be exchanged in money and kept, or of mortgaging real estate at the amount of the guarantee by the person who guarantees or of personal obligation by one or several citizens that in case the accused elopes they will pay the determined amount of guarantee. (3) If the accused elopes, the amount determined as guarantee with a decision will be contributed to the budget.

Article 181 (1) The accused will be detained despite the guarantee if he does not attend, although summoned and does not explain his absence, if he prepares for escape or if, when at loose, another lawful ground for detention emerges against him. (2) In case of paragraph 1 of this Article the guarantee is withdrawn. The deposited cash, cheques, values or other movable objects are returned and the mortgage is withdrawn. It will be acted in the same manner when the criminal procedure is completed in a legally valid manner with a decision for an interruption of the procedure or with a verdict. (3) If with the verdict, a sentence of imprisonment is pronounced, the guarantee is withdrawn when the convicted starts serving his sentence.

Article 182 (1) The investigating judge reaches a decision for guarantee during investigation. After the initiated prosecution act, a decision for guarantee is brought by the Chamber. (2) The decision which sets the guarantee and the decision which withdraws the guarantee is brought after the hearing of the public prosecutor if the procedure is conducted on his request.

6. Detention

Article 183 (1) Pre- trial detention may be determined only under conditions anticipated by this Code. (2) The duration of the pre- trial detention must be set to the shortest necessary time. It is a duty of all agencies participating in the criminal procedure and agencies which contribute with judicial assistance to act in most urgent manner if the accused is pre- trial detained. (3) During the procedure the pre- trial detention will be withdrawn as soon as the reasons on which basis it was determined cease to exist.

Article 184 (1) If there is a grounded suspicion that a person has committed crime, a pre- trial detention for the person may be determined:

1) if he hides, if his identity cannot be detected or if there are other circumstances emphasising danger of escape;

2) if there is justified fear that he will destroy the traces of the crime or if certain circumstances point out that he will inflict the investigation influencing the witnesses collaborators or conceivers;

3) if certain circumstances justify the fear that he will commit crime again, or he will complete the attempted crime or will commit crime with which he threatens. (2) In case of item 1, paragraph 1 of this Article the pre- trial detention determined due to the failure of detecting the identity of the person, lasts until his identity is revealed. In case of item 2, paragraph 1 of this Article the pre- trial detention will be interrupted as soon as the evidence for the pre- trial detention are determined.

Article 185 (1) The pre- trial detention is determined by the investigating judge of the competent court.

38 (2) The pre- trial detention is determined with a written decision which contains: the name of the person deprived from his freedom, the crime for which he is accused of, the legal ground for pre- trial detention, instruction of his right to an appeal and a brief explanation with a special elaboration on the grounds on which the pre- trial detention is determined, an official seal and a signature by the judge who has determined the pre- trial detention. (3) If the accused does not chose himself a counsel, with a decision he will be assigned a counsel ex officio (Article 66, paragraphs 2 and 5). In case the President of the Court is impeded, the investigating judge will assign a counsel. (4) The decision for pre- trial detention is delivered to the person to whom it refers at the moment of his depriving from freedom, and at the most within 24 hours from the hour of his arrest. For the record it must be notified the hour of the arrest and the hour of the delivery of the decision. (5) Against the decision for pre- trial detention, the detained may appeal to the Chamber (Article 22, paragraph 6) within 24 hours from the time of delivery of the decision. If the detained is examined for the first time after the expiring of this period, he may appeal at the examination. The appeal with a copy from the minutes for examination, if the detained has been examined, and the decision for the pre- trial detention, are submitted to the Chamber immediately. The appeal does not keep from execution of the decision. (6) In cases of paragraph 5 of this Article, the Chamber which decides on the appeal is obliged to reach the decision within 48 hours. The public prosecutor and the counsel may ask to be informed of the session of the Chamber and at the session orally to elaborate and explain their proposals; if they do not attend the session, does not keep from holding the session.

Article 186 (1) The investigating judge is obliged to the person deprived from his freedom who was apprehended, immediately to instruct him that he may have a counsel who may attend his examination and if necessary- to help him find a counsel. If within 24 hours from the time of the instruction, the arrested person does not provide a counsel to be present, the investigating judge is obliged to examine the person immediately. (2) If the arrested chooses not to have a counsel, the investigating judge is obliged to examine him without any delay. (3) In case of a compulsory defence (Article 66, paragraphs 1 and 2), the arrested does not have a counsel within 24 hours from the time when he was instructed on that right or if he states that he chooses not to have a counsel, a counsel will be appointed ex officio. (4) The investigating judge will decide whether the arrested person will be released immediately after the examination. If he considers that the arrested should be kept, the investigating judge will immediately inform the public prosecutor, if the public prosecutor has not already submitted a request for investigation. If the public prosecutor within 24 hours from the time when he was informed of the pre- trial detention does not request investigation, the investigating judge will release the arrested.

Article 187 (1) A pre- trial detention may be determined by the investigating judge of a court on whose region the crime was committed, when he was entrusted to conduct certain investigating acts or in cases under Article 149, paragraph 1 of this Code. In respect of determination of pre- trial detention, provisions of Article 185, paragraphs 2 to 5 of this Code are applied, with the difference that the decision under paragraph 5 of this Article on the appeal is brought by the competent court. (2) Immediately after the examination of the arrested, the investigating judge will decide whether to release him or whether he will order the arrested to be brought before the investigating judge of the competent court. In reference of the examination of the arrested, provisions of Article 186, paragraphs 1 to 3 of this Code are applied. (3) The investigating judge of a court on whose region the crime was committed may keep the detained for three days at the most, counting from the day of his apprehension and if it is necessary to undertake urgent investigating acts in connection of Article 149, paragraph 1 of this Code. After the decision for investigation, the pre- trial detention may last longer than three days, if within that period the investigating

39 judge receives a request from the investigating judge of the competent court to undertake certain investigating acts. After the investigation is conducted, the detained must be brought before the competent court, if the investigating judge of that court does not determine anything different.

Article 188 (1) The person caught committing a crime prosecuted ex officio may be deprived from his freedom by anyone. The person deprived from his freedom must immediately be brought before the investigating judge or the Ministry of Internal Affairs, and if it cannot be done, one of the agencies must immediately be informed. The Ministry of Internal Affairs will act according to the provisions of this Article. (2) The authorised officials of the Ministry of Internal Affairs, without a decision by the court, may arrest the person suspected of a crime prosecuted ex officio if there is a danger of cancelling and there are some of the reasons for pre- trial detention under Article 184, paragraph 1 of this Code, but are obliged to bring him immediately before the competent investigating judge. At the apprehension, the authorised official of the Ministry of Internal Affairs will inform the investigating judge of the reasons and of the time of the arrest. If not completed in writing, the investigating judge will include the information in the minutes. (3) The authorised officials of the Ministry of Internal Affairs may with exception detain the person under paragraphs 1 and 2 of this Article, if the detaining is necessary for the certification of the sameness, checking alibis or if for other reasons it is necessary certain data for the procedure against a person to be collected, and if there are other reasons for pre- trial detention under Article 184, paragraph 1, items 1 and 3 of this Code and in case of Article 184, paragraph 1, item 2 only if there is a justified fear that the person will destroy the traces of the crime. (4) The person deprived from his freedom must be instructed according to the provision of Article 3 of this Code. (5) In case of detention according to paragraph 3 of this Article if the person deprived from freedom requires assistance of a counsel, the authorised official of the Ministry of Internal Affairs will cancel the conduct of these acts until the counsel arrives, but not longer than two hours from the time when the detained was given the opportunity to inform his counsel. (6) The detention under paragraph 3 of this Article may last at most for 24 hours. After the expiring of this period, the authorised official of the Ministry of Internal Affairs is obliged to release the detained or to proceed according to paragraph 2 of this Article.

Article 189 (1) The pre- trial detention may last not more than 90 days on the decision of the court since the day of the detention. (2) On the basis of the decision of the investigating judge, the accused can be detained for 30 days at the most since the day of his arrest. After that period the accused can be further detained only on the basis of a decision for prolonging of the pre- trial detention. (3) On the decision of the Chamber (Article 22, paragraph 6), the pre- trial detention may be prolonged for at most 60 days. An appeal, which does not keep from execution of the decision is allowed against the decision of the Chamber.

Article 190 During the investigation the investigating judge may revoke the pre- trial detention with an agreement of the public prosecutor, when the procedure is conducted on his request, unless the pre- trial detention is withdrawn due to the expiring of the period for the duration of the pre- trial detention. If the investigating judge and the public prosecutor disagree, the investigating judge will require the Chamber to decide, who is obliged to reach a decision within 48 hours.

Article 191 (1) After the delivery of the prosecution act to the court until the trial is completed, the pre- trial detention may be determined or withdrawn only by the decision of the Chamber until the expiring of the period under Article 189, paragraph 1 after the hearing of the public prosecutor when the procedure is conducted on his request.

40 (2) The Chamber is obliged, after the expiry of 30 days of the legally valid final decision for pre- trial detention and without proposals of the parties, to examine whether there are still reasons for pre- trial detention and to bring a decision to prolong or withdraw the pre- trial detention. (3) The appeal against the decision of paragraphs 1 and 2 of this Article does not keep from execution of the decision. (4) A special appeal is not allowed against the decision of the Chamber which rejects the proposal for determination or withdraw from the pre- trial detention.

Article 192 Within 24 hours the court is obliged to inform the family of the detained for the detention, unless the person resists it. A competent agency for social issues will be informed of the pre- trial detention if it is necessary measures to be undertaken for providing for his children or other members of his family for whom the detained provides.

7. Procedure with the detained

Article 193 (1) During the detention, the personality and dignity of the accused must not be offended. (2) Against the detained must be applied only the limitations necessary to avoid escape and an agreement which could be harmful for a successful performance of the procedure. (3) Persons of opposite sex cannot be locked in the same room. It is determined with a regulation that persons who have participated in the same crime or persons which are serving sentence cannot be put in to the same room with detained persons. If it is possible, persons which committed crimes again will not be put into the same room with arrested persons on whom they might have bad influence. (4) The detained has a right to request to be detained in an individual room.

Article 194 (1) The detained persons have a right to an eight- hour continuous rest within 24 hours. Apart from that, they will be allowed to walk in an open area within the prison for at least two hours a day. (2) The detained have a right to be fed on their own expense, to wear their own clothes and to use their own bed linen, at their expense to provide books, newspapers, magazines and other things appropriate to their habits and needs, unless it is harmful for the successful conduct of the procedure. The body which conducts the investigation decides on that. (3) The detained may be used to cater for the maintenance of the hygiene of the room where he is settled. If the detained requests from the investigating judge i.e. Chairman of the Council, with the agreement of the management of the prison, it may be allowed for the detained to work within the prison on chores which suit his psychical and physical abilities, under the condition that it would not be harmful for the conduct of the procedure.

Article 195 (1) On the approval of the investigating judge who conducts the investigation and under his supervision or under the supervision of the person assigned by him, within the limits of the order in the institution, the detained may be visited by his close relatives, and on his request- physician and other persons. Certain visits may be forbidden if they might badly influence the conducting of the procedure. (2) The high officials of the diplomatic and consular agencies in the Republic of Macedonia, on the approval of the investigating judge conducting the investigation have a right to visit and to talk to the detained citizen of their country without supervision. The approval for the visit will be requested by the Ministry of Justice. (3) The detained may correspond to persons out of the prison with the knowledge and under supervision of the body conducting the investigation. This body may forbid sending and receiving letters and other parcels which are harmful for the conduct of the procedure. Sending applications, pleads and appeals can never be forbidden.

41 (4) After the prosecution act is brought until the verdict becomes legally valid, the authorisations under paragraphs 1 and 2 of this Article are performed by the Chairman of the Chamber.

Article 196 (1) Against disciplinary offences of the detained, the investigating judge i.e. the Chairman of the Chamber may pronounce disciplinary punishment- the detained to be limited his visits. This limitation does not refer to the communication between the detained and the counsel. (2) Against the decision for the punishment pronounced under paragraph 1 of this Article, an appeal is allowed to the Chamber (Article 22, paragraph 6) of the court competent for conducting the investigation if it is submitted within 24 hours from the reception of the decision. The appeal does not keep from execution of the decision.

Article 197 (1) Supervision over the detained is performed by the President of the competent court of first degree. (2) The President of the court under paragraph 1 of this Article or the judge appointed by him is obliged to visit the detained at least once a week and if necessary to be informed, without the presence of the supervisor and the guards how detained are fed, how they are provided with other necessities and how they are treated. The President i.e. the appointed judge is obliged to undertake necessary measures for the anomalies noticed during the visit of the prison to be excluded. The appointed judge cannot be the investigating judge. (3) During the visits under paragraph 2 of this Article, the public prosecutor may be present. (4) The President of the court and the investigating judge at any time may visit the detained, talk to them and receive complaints from them.

Chapter XVIII

INVESTIGATING ACTS

1. Search of residence and person

Article 198 (1) Search of residence and other premises of the accused or of other persons may be initiated if it is likely that with the search the accused will be caught or traces of the crime or objects significant for the criminal procedure will be found. (2) Search of persons may be undertaken when it is likely that traces or objects important for the criminal procedure will be found.

Article 199 (1) The search is ordered by the court with a written elaborated order which explicitly contains the place and the person to be searched as well as the objects which are searched for or confiscated from the person. (2) The search warrant is shown before the search to the person whose home or himself will be searched. Before the search, the person to whom the search warrant refers will be asked voluntarily to turn in the person i.e. give away objects which are searched for. (3) If an armed resistance is presumed or it is suspected that a severe crime is conducted by a group or organisation or if the search is to be performed in public premises, the search may be performed suddenly or it could be performed without previous showing of the search warrant or without a previous request for turning over of the person or giving away the objects. (4) The search is performed during the day. It may continue at night if it has started at daylight but has not been completed. With exception, the search may be conducted at night if there is a danger of cancelling.

Article 200

42 (1) The householder or the holder of other premises will be summoned to be present at the search, and if he is absent his authorised representative will be summoned or some of his adult members of the family or neighbours. (2) Locked premises, furniture and other objects will be opened forcefully only if their holder i.e. owner is absent or does not agree to open them voluntarily. While opening, unnecessary damage will be avoided. (3) During the search of premises or persons two adult citizens will be present as witnesses. The search of a female is performed only by a female officer, and the witnesses are also female. Before the beginning of the search the witnesses will be warned to pay attention to the performance of the search and they will be also reminded of their right, before signing the minutes for the search to write in their objections if they consider that the contents of the minutes is incorrect. (4) The search may be performed without the presence of witnesses if their presence is not possible immediately to be provided and there is a danger of cancelling. The reasons for a search without the presence of witnesses must be written in the minutes. (5) When the search is conducted in the premises of state agencies, institutions which perform authorisations or legal persons, their chiefs will be called to be present during the search. (6) Searches and inspections of army buildings will be performed on the approval of the competent army non- commissioned officer. (7) The search of premises and persons is to be performed carefully without disturbing the order of the residence. (8) During the performance of the search only those objects and identity cards i.e. documents will be temporarily confiscated which are in connection with the aim of the search in that particular case. (9) If during the search of premises and persons objects are found which have no connection with the crime for which the search is intended but which point to another crime which is to be prosecuted ex officio, the object will be confiscated and a receipt for the confiscation will be immediately issued. The public prosecutor will be immediately informed in order a criminal procedure to be initiated. These objects will be immediately returned if the public prosecutor finds that there are no grounds for initiation of a criminal procedure and there is no other lawful ground according to which those objects should be confiscated.

Article 201 (1) For each search of residences or persons a minutes will be constructed. The minutes is signed by the official conducting the search, the person at whose place or on whom the search is conducted and the persons whose presence is compulsory. (2) In the minutes there will be included and notified correctly the objects and documents which have been confiscated.

Article 202 (1) The authorised officials of the Ministry of Internal Affairs may without a search warrant enter a residence or other premises if the person who, according to the court order is to be detained or forcefully apprehended is there. (2) The authorised officials of the police may without a search warrant and without the presence of witnesses perform a search of a person while conducting the court order for apprehension or if while arresting him it is suspected that the person possesses guns or tools for attack or if it is suspected that he will throw away, hide or destroy the objects which are to be confiscated from him as evidence in the criminal procedure.

2. Temporary confiscation of objects

Article 203 (1) Objects which according to the Criminal Code are to be confiscated or may serve as evidence in the criminal procedure will be confiscated temporarily and entrusted to the court to guard or in another manner their guarding will be secured. (2) The person who holds such objects is obliged to give them to the court on its request. The person who refuses to give away the objects may be punished with a fine penalty encompassed within Article 74,

43 paragraph 1 of this Code and in case of further resistance he may be detained. The detention lasts until the objects are given away or until the criminal procedure is completed and it may last for at most 30 days. It will be proceeded in the same manner with the official or the responsible person of a state agency, institution which perform authorisations or other legal persons. (3) For an appeal against the decision according to which a fine penalty or detention is pronounced, the Chamber decides (Article 22, paragraph 6). The appeal against the decision for detention does not keep from execution of the decision. (4) The authorised officials of the Ministry of Internal Affairs may confiscate the objets listed in paragraph 1 of this Article when they act according to Articles 142 and 147 of this Code or when they execute a court order. (5) At the confiscation of the objects the locality where they are found will be notified and they will be described and if necessary the certifying of their identity will be secured in another way. A receipt will be issued about the confiscated objects.

Article 204 (1) The state agencies may disallow showing or issuing records or other documents if they consider that the issuing of their contents would be harmful for the interests of the state. If the showing or issuing records or other documents is not allowed, the Chamber reaches the final decision (Article 22, paragraph 6). (2) Legal persons may request the data which refer to their work not to be issued.

Article 205 (1) If it is performed a temporary confiscation of records which may serve as evidence they will be registered. If it is not possible, the records will be wrapped in a case and will be sealed. The owner of the records may put his seal on the case. (2) The person to whom the confiscated records belong will be invited to attend the opening of the case. If he does not reply the invitation or is absent the case will be opened, the records will be checked and signed in his absence. (3) During the checking of the records it must be secured that unauthorised persons would not have an access to their contents.

Article 206 (1) The investigating judge may give an order to the legal persons in the field of post, telegraph and other traffic, with the receipt for the received to keep and to give to the investigating judge the letters, telegrams and other parcels addressed to the accused or which he addresses if there are circumstances according to which it could be expected that these parcels may serve as evidence in the procedure. (2) The letters and other parcels are opened by the investigating judge in presence of two witnesses. While opening it will be considered the seals not to be damaged and the case and address will be kept. A minutes will be constructed for the opening. (3) If the interest of the procedure allows, the contents of the parcel may be announced fully or partially to the accused i.e. the person to whom it is addressed and it may be handed over to him. If the accused is absent the parcel will be announced or given to some of his relatives and if not, it will be handed to the expediter if that does not inflict the interests of the procedure.

Article 207 The objects which during the procedure are temporarily confiscated will be returned to the owner i.e. holder if the procedure ceases and there are no reasons for their confiscation (Article 485).

3. Processing with suspicious objects

Article 208 (1) If a strange object is found with the accused, and the person who owns it is not known, the body conducting the procedure will describe the object and the description will be announced on the board at the body of that municipality in which region the accused lives or the crime was committed. In the

44 announcement, the owner of the object will be invited to reply within one year from the day of the announcement and if not, the object will be sold. The money from the sale of the object are contributed to the budget. (2) If they are objets of considerable value the announcement may be performed in the daily newspapers. (3) If the object is liable to damaging or its keeping is connected with significant expenses, it will be sold according to provisions valid for the executing procedure and the money will be kept as a court deposit. (4) According to the provision of paragraph 3 of this Article it will be proceeded in the same manner when the object belongs to an escaped person or to an unknown criminal.

Article 209 (1) If within a year no one replies for the object or for the money gained from the sold object, a decision will be brought the object to become a state property i.e. the money to be contributed to the budget. (2) The owner of the object has a right through a dispute to request for the return of the object or of the money gained with the sale of the object. The obsolescence of this right runs since the day of the announcement.

4. Examination of the accused

Article 210 (1) When the accused is questioned for the first time, he will be asked for his name, nickname if he has so, names of his parents, maiden name of his mother, his address, his date of birth, his nationality and citizenship, his occupation, his family status, if he is literate, which schools he finished, if he has and where and when he served the army, i.e. if he has a rank a reserve junior officer, officer or army officer, if he is registered in the army register and in which competent body of defence, if he was decorated, what is his property condition, if he has been where and why he was convicted, if he has or when he served the verdict, if there is a procedure for another crime against him, and if he is a minor who his legal representative is. The accused will be instructed that he is obliged to answer the summons and to announce each alternation of his address or intention to alter his residence immediately and he will be warned of the consequences if he does not act so. (2) Afterwards the accused will be informed of his accusation and for the grounds of suspicion against him and he will be asked what he has to state in his defence and he will be informed that he is not obliged to speak for his defence nor answer the questions. (3) The accused is examined orally. During the examination the accused may be allowed to use his own notes. (4) During the examination the accused is to be allowed to continue his elaboration in order to clarify all circumstances which are impose on him and to state all facts which serve on behalf of his defence. (5) When the accused has finished his statement, if necessary he will be asked questions in order the gaps to be supplemented and the oppositions or any unclearness in his statement to be eliminated. (6) The examination must be conducted in the manner that the personality of the accused is fully respected. (7) Against the accused must not be used force, threats or other similar means (Article 251, paragraph 2) in order to extort his statement or confession. (8) The accused may be examined in absence of a counsel only if he has explicitly denied his right, and his defence is not compulsory or if within 24 hours from the moment he has been instructed of his right (Article 63, paragraph 2) he does not provide himself a counsel unless in case of a compulsory defence. (9) If it has been proceeded contrary to the provisions of paragraphs 7 and 8 of this Article or if the statement of the accused under paragraph 8 of this Article for the presence of a counsel is not notified in the minutes, upon the statement of the accused a court decision cannot be based.

Article 211 (1) The questions for the accused are to be set clearly and comprehensibly for him to understand them fully. In the examination, it must not be approached as if the accused has confessed something which he has not, nor any questions may be set in the way that the answers are already contained in them. Deceit must not be used against the accused in order to extort his statement or confession.

45 (2) If the latter statements of the accused differ from the former ones, especially if the accused revokes his confession, he will be asked to state his reasons for the different statements i.e. why he revokes his confession.

Article 212 (1) The accused may be confronted with a witness or another accused if their statements disagree in respect of significant facts. (2) The confronted accused will be examined separately for each circumstance in which their statements does not mutually agree and their answer will be included in the minutes.

Article 213 The objects which are in connection with the crime or serve as evidence will be shown to the accused for recognition after he has previously described them. If these objects cannot be brought on the very place, the accused may be escorted to the place where they are.

Article 214 (1) The statement of the accused is inserted in the minutes in a narrative form and the questions and answers will be inserted in the minutes only if it is necessary. (2) It will be allowed the accused to pronounce his statement himself for the minutes.

Article 215 The court is obliged apart from the confession of the accused to collect other evidence. If the confession is clear and completed with evidence, the further collection of evidence will be undertaken only on the proposal of the prosecutor.

Article 216 (1) The examination of the accused will be performed by an assistance of an interpreter in cases proscribed in this Code. (2) If the accused is deaf, he will receive his questions in writing, and if he is dumb, he will answer in writing. If the examination cannot be performed in this manner, a person who can communicate with the accused functioning as an interpreter will be called. (3) If the interpreter is not under oath, he will take an oath that he will translate originally and faithfully the questions directed to the accused and his statements. (4) Provisions of this Code referring to the experts are accordingly applied to the interpreters.

5. Hearing of witnesses

Article 217 (1) As witnesses are summoned the persons who are likely to make statements for the crime and criminal and for other important circumstances. (2) The damaged, the damaged as a plaintiff and the private prosecutor may be heard as witnesses. (3) Anyone summoned as a witness is obliged to answer the court summons, and if it is not proscribed differently with this Code, the person is obliged to act as a witness.

Article 218 The following persons cannot be heard as witnesses:

1) the person who with the statement would violate his duty of keeping an official or military secret until his competent body releases him from his duty, and

2) the counsel of the accused for what he has been entrusted with by the accused as his counsel, unless the accused himself requires it.

Article 219 (1) The following persons are released from their duty to be witnesses:

46 1) marital and illegitimate spouse of the accused; 2) blood relatives of the accused of first line, relatives of further line to the third degree as well as

in- laws to the second degree; 3) an adopted child or parent who has adopted of the accused; 4) religious confessor to whom the accused or other persons has confessed; 5) a lawyer, physician, social worker, psychologist or other person for facts which they learned

executing their duty in reference of their duty to keep it as a classified secret while executing their professional duties. (2) The court which conducts the procedure is obliged to warn the persons that they need not be witnesses, i.e. persons mentioned in paragraph 1 of this Article before their hearing or as soon as it learns about their relationship to the accused. The warning and the answer are included in the minutes. (3) Considering his age and mental development the minor who is not capable to understand the meaning of his right that he need not be a witness cannot be heard as a witness. (4) The person who is allowed not to be a witness to one of the accused is released from his duty of witnessing to the other accused persons if his statement according to the nature of the circumstances cannot be limited only to the other accused.

Article 220 If a person was heard as a witness but who could not have been heard as a witness (Article 215) or the person who need not be a witness (Article 216) and he was not warned or has not explicitly denied his right or if the warning and the denial are not notified in the minutes, or if a minor was heard who could have not understood the meaning of his right that he need not witness or if the statement of the witness is extorted by force, by threat or by other similar forbidden means (Article 251, paragraph 2), a court decision cannot be based upon the statements of the above mentioned witnesses.

Article 221 The witness is not obliged to answer particular questions if he is likely to expose himself or his close relatives (Article 219, paragraph 1, items 1 to 3) to severe embarrassment, significant material damage or criminal prosecution.

Article 222 (1) The summoning of the witness is performed by a delivery of a written court summons in which the following will be notified: the name and occupation of the summoned, time and place of arrival, criminal case upon which he is summoned, notification that he is summoned as a witness and warning on the consequences of his unjustified absence (Article 228). (2) The summoning for witnessing of a minor who is not sixteen yet is performed by his parents i.e. authorised representatives, unless it is impossible due to the necessity to act urgently or due to other circumstances. (3) The witnesses who due to their old age, illness or severe physical handicaps cannot answer the court summons may be examined in their residence.

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.

47 (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 224 (1) After the general questions, the witness is called to state everything familiar to him on the case, after which he will be asked questions in order the statements to be checked, supplemented and clarified. During the hearing of the witness it is not allowed to be used deceit, nor asking questions in which the answer is included. (2) The witness will be always asked how he is familiar with the issues he is witnessing of. (3) Witnesses may be confronted if their statements do not agree in respect of significant facts. The confronted witnesses will be examined separately for each circumstance for which their statement mutually disagree and their answer will be inserted in the minutes. Only two witnesses can be confronted at the same time. (4) The damaged heard as a witness will be asked whether he chooses to realise his lawful property request in the criminal procedure.

Article 225 If it is necessary to be certified whether the witness is familiar with the person or objects, first he will be asked to describe the signs in which he i.e. they are different from the other persons or objects, then he will be shown for recognition the suspect together with other persons not familiar to the witness i.e. the object, if possible together with objects of the same kind.

Article 226 If the hearing of the witness is performed by an assistance of an interpreter or if he is deaf or dumb, his hearing is performed in the manner included in Article 216 of this Code.

Article 227 It may be asked from the witness to take an oath. Before the trial the witness may take an oath only if there is a possibility that due to an illness or for other reasons he could not attend the trial. The reason for the oath is included in the minutes. The oath is taken in the manner proscribed in Article 317 of this Code.

Article 228 The following persons must not take an oath:

1) who are not adults at the moment of the hearing; and 2) for whom it has been proved or there is a justified suspicion that they committed crime or

participated in the crime for which they are heard.

Article 229 (1) If the witness who was summoned does not come and does not justify his absence or without an approval or justified reason leaves the place where he is to be heard, it may be ordered the witness to be apprehended forcefully and he may be punished with a fine penalty according to Article 74, paragraph 1 of this Code. (2) If the witness comes and after he has been warned of the consequences without a lawful reason does not choose to witness, he may be punished with a fine penalty under Article 74, paragraph 1 of this Code and if he refuses to witness after the fine, he may be detained. The detention lasts until the witness agrees to act as a witness or until his hearing becomes unnecessary or until the criminal procedure is completed, but at most for one month. (3) On the appeal against the decision with which fine penalty or detention is pronounced, the Chamber decides (Article 22, paragraph 6). The appeal against the decision for detention does not keep from the execution of the decision. (4) Army and police officers cannot be detained, but on their refusal to witness their competent headquarters will be informed for an appropriate punishment.

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6. Inspection

Article 230 An inspection is undertaken when for certification or clarification of certain important fact in the procedure, an immediate notification is necessary.

Article 231 (1) In order to check out the presented evidence or to certify the facts which are important the issue to be clarified, the body which conducts the procedure may determine reconstruction of the event which is performed in the manner that the acts or circumstances are repeated in the conditions under which according to the presented evidence the event happened. If according to the statements of different witnesses or accused persons, the acts or circumstances are differently presented, the reconstruction of the event will be performed with each of them separately. (2) The reconstruction must not be performed in the manner in which the public order and ethics are violated or in which the lives or health of people are endangered. (3) If necessary during the reconstruction certain evidence may be presented again.

Article 232 (1) The body which inspects or reconstructs may require assistance by a specialised person in the field of criminal- technological- traffic and other professions, who if necessary will undertake and provide securing or describing traces, will perform necessary measures and recordings, will draw schemes or will collect other data. (2) An expert may be called on the inspection or reconstruction, if his presence would be useful for stating diagnosis and opinions.

7. Expertise

Article 233 An expertise is determined when it is necessary to be provided diagnosis and opinions by persons who has necessary specialised knowledge in order a certain evaluation or important fact to be certified.

Article 234 (1) Expertise is determined in a written order by the body which conducts the procedure. In the order it will be included for which facts the expertise is performed and to whom it is entrusted. The order is also delivered to the parties. (2) If for a certain kind of expertise there is a special institution or if the expertise may be performed within the frames of a state agency, such expertise, especially the more complex ones, will be entrusted to such institutions i.e. agencies. The institution or the agency assigns one or several experts who will perform the expertise. (3) When the expert is assigned by the body which conducts the procedure, then that body will assign an expert and if the expertise is complex- two or more experts. (4) If within the court for certain kinds of expertise there are assigned experts, other experts may be assigned only if there is a danger of cancelling or if the assigned experts are impeded or if other circumstances require it.

Article 235 (1) The person summoned as an expert is obliged to answer the summons and to give his diagnosis and opinion. (2) If the summoned expert does not come and does not justify his absence or if he refuses to act as an expert he may be punished with a fine penalty under Article 74, paragraph 1 of this Code, and in case of unjustified absence he may be brought forcefully. (3) On the appeal against the decision with which fine penalty is proscribed, decides the Chamber (Article 22, paragraph 6).

49

Article 236 (1) As an expert cannot be taken a person who cannot be heard as a witness (Article 218) or a person who is released from his duty to be a witness (Article 219) as well as a person to whom the crime was committed, and if he is taken as an expert, the court decision cannot be based on his diagnosis and opinion. (2) A reason for exclusion of the expert (Article 41) also exists in respect of the person who is in a working relationship with the accused or the damaged in the same agency or with another legal person and in respect of the person who is in a working relationship at the damaged or accused. (3) It is by rule that as an expert a person who is heard as a witness cannot be taken. (4) When a special appeal is allowed against the decision with which a request for exclusion of the expert is refused (Article 39, paragraph 4), the appeal cancels the execution of the expertise, if there is no danger of cancelling.

Article 237 (1) Before the expertise, the expert will be brought to look at the object carefully, correctly to note everything which he notices and finds and to present his opinion impartially and in accordance with science and expertness. He will be particularly warned that a false statement is a crime. (2) It may be required from the expert to take an oath before the expertise. Before the trial the expert may take an oath only if there is a danger that he might be impeded to attend the trial. The reason for the taken oath will be included in the minutes. The assigned expert under oath will be warned on his taken oath only before the expertise. The oath will be taken in the manner according to Article 317 of this Code. (3) The body before which the procedure is conducted guides the expertise, shows the experts the objects he is to review, questions him and if necessary requires explanation in reference of his diagnosis and opinion. (4) The expert may be given explanations and may also be allowed an access to the records. The expert may suggest evidence to be presented or objects and data significant for the diagnosis and opinion to be obtained. If he is present at the inspection, reconstruction or another investigating act, the expert may propose certain circumstances to be clarified or the person who is heard to be questioned.

Article 238 (1) The expert reviews the objects of expertise in presence of the body which conducts the procedure and the court clerk only if for the expertise are necessary longer examinations and if the examinations are performed in institutions of a state agency or if the ethics implies it. (2) If for the aims of expertise it is necessary to be conducted an analyses of certain material, if it is possible only a part of that material will be available for the expert, and the rest will be provided in the necessary quantity in case of supplement analyses.

Article 239 The diagnosis and the opinion of the expert is immediately inserted in the minutes. It may be allowed the expert to submit a written diagnosis i.e. opinion supplementary within a period proscribed by the body before which the procedure is conducted.

Article 240 (1) If expertise is entrusted to a specialised institution or a state body, the body which conducts the procedure will give a warning that in the diagnoses or opinion cannot participate a person under Article 236 of this Code or a person for whom there are reasons for exclusion from expertise determined by this Code as well as the consequences of the false diagnoses and opinion. (2) The material necessary for the expertise will be available to the specialised institution i.e. state body and if necessary it will be proceeded according the provisions of Article 237, paragraph 4 of this Code. (3) The specialised institution i.e. the state body submits the written diagnoses and opinion signed by the persons who have performed the expertise. (4) The parties may require from the director of the specialised institution or the state body to have an access to the names of the experts who have performed the expertise.

50 (5) Provisions of Article 237, paragraphs 1 and 2 of this Code are not applied when the expertise is entrusted to specialised institutions or state bodies. The body before which the procedure is conducted may require from the specialised institution or the state body explanations in view of the diagnoses and opinion.

Article 241 (1) In the minutes for expertise or in the written diagnoses and opinion it will be notified who has performed the expertise, his occupation, his training in the specialisation and the speciality of the expert. (2) After the expertise where the parties were not present, the parties will be informed that the expertise was completed and that they have an access to the minutes for expertise i.e. written diagnoses and opinion.

Article 242 If the data in the diagnoses of the experts crucially differ or if their diagnoses is not clear, not complete or full of contradictions within itself or with the inspected circumstances and these defects cannot be eliminated with a repeated hearing of the experts, the expertise will be performed again with the same or different experts.

Article 243 If in the opinion in the expertise there are contradictions or defects or if there is a justified suspicion in the exactness of the given opinion, and those defects or suspicions cannot be eliminated with another hearing of experts, opinion of other experts will be required.

Article 244 (1) Examination and if necessary autopsy of a corpse will be undertaken when it is suspected or it is obvious that the death was caused by a crime or can be connected with the committing of the crime. If the body has been buried, exhumation for examination and autopsy will be determined. (2) During the autopsy of the corpse necessary measures will be undertaken in order the identity of the corpse to be detected and description data for outside and inside bodily features of the corpse will be obtained.

Article 245 (1) When the expertise is not conducted in a specialised institution, the examination and autopsy of the corpse is conducted by one, if necessary two or more physicians who if possible are to be from the field of forensic medicine. The expertise is guided by the investigating judge and in the minutes he includes the diagnoses and the opinion of the expert. (2) An expert cannot be the physician who treated the deceased. During the autopsy of the corpse, in order the course and the conditions of the illness to be clarified, the physician who treated the deceased may be heard as a witness.

Article 246 (1) In their opinion the experts will particularly point out the immediate cause of death, what caused it and when the death attacked. (2) If there is an injury found on the corpse it will be certified whether the injury was inflicted by another person, and if it was, with what, in which manner, how long before the death and whether the death was caused by this injury. If there are several injuries on the corpse, it will be detected whether each injury was inflicted by the same means and which injury caused the death and if more of the injuries were lethal, which of them, within their mutual inflict, was the cause of death. (3) In case of paragraph 2 of this Article it will be particularly certified whether the death was caused by the same kind and general nature of the injury or due to the individual feature or particular condition of the organism of the injured or due to accidental circumstances or conditions under which the injury was inflicted. (4) Apart from that, it will be certified whether help on time could have eliminated the death.

Article 247

51 (1) During examination and autopsy of the embryo it is particularly necessary to be certified its age, ability for a tubal pregnancy and the reason for the death. (2) During examination and autopsy of a corpse of a new-born child it will be especially certified whether it was born alive or dead, whether it was able to live, how long it lived, as well as the time and reason for death.

Article 248 (1) If there is a suspicion for poisoning, the suspicious materials found in the corpse or elsewhere will be directed to an expertise at the institution which performs toxicological examinations. (2) During examination of suspicious materials the experts will detect the kind, quantity and infliction of the found poison and if there is an examination of materials taken of the corpse, if it is possible the quantity of the used poison will be also certified.

Article 249 (1) Expertise of bodily injuries is regularly performed by an examination of the injured, and if it is not possible or not necessary on the basis of the medical documentation or of other data in the records. (2) After the injuries are correctly described, the expert will give his opinion particularly on the kind and weight of each separate injury and on their total impact with respect to their nature or special circumstances of the case, what kind of consequences these injuries usually produce and the kind of consequences in the actual case the injuries produced and with what and in which way are this injuries inflicted.

Article 250 (1) If there is a suspicion that the common sense of the accused is eliminated or reduced due to a durable or temporary mental illness, temporary mental disorder or retarded mental development, an expertise will be determined with psychiatric examination of the accused. (2) If according to the opinion of the expert a longer examination is necessary, the accused will be sent to examination in an appropriate mental institution. The investigating judge brings the decision on that. The examination may be prolonged for over two mounts only on the elaborated proposal of the director of the mental institution after a previous provided opinion from the experts, but in no case may it last longer than the detention period. (3) If the experts conclude that the mental condition of the accused is disordered, the following facts will be determined: the nature, the kind, the extent, the duration of the disorder and the experts will give their opinions on how much the mental condition has inflicted him and how much it inflicts him now in respect of his attitude and behaviour of the accused as well as whether and in which extent there was a disorder of his mental condition during the committing of the crime. (4) If the detained is directed to a mental institution, the investigating judge will inform the institution of the reasons for detention in order necessary measures to be undertaken with the aim the detention to be secured. (5) The time spent in the mental institution will be calculated for the accused within his detention i.e. sentence if pronounced.

Article 251 (1) An examination of the body of the accused will be undertaken even if he does not agree if it is necessary significant facts for the criminal procedure to be certified. Examination of the bodies of other persons may be undertaken contrary to their agreement only if it must be certified whether on their bodies there is a particular trace or consequence of the crime. (2) Blood tests and other medical acts which according to the rules of the medical science are undertaken due to an analyses and certification of other facts important for the criminal procedure may be undertaken without an agreement of the person who is to be examined if that would not inflict his health. It is not allowed against the accused or the witness to be applied medical treatment or such medicaments which would inflict their will during the giving of their statements.

Article 252

52 (1) When it is necessary to be undertaken an expertise of business register books, the body before which the procedure is conducted is obliged to point out to the experts in which way and to which extent they are to perform their expertise and which facts and circumstances are to be certified. (2) If an expertise is to be undertaken for business register books of the legal person, it is necessary his accountancy previously to be put in order, then the expenses on the accountancy are imposed on the legal person. (3) A decision for performing accountancy is brought by the body which conducts the procedure on the bases of an elaborate written report by the experts who are competent to conduct expertise on the business register books. In the decision it will be appointed the amount which the legal person is obliged to pay to the court as an advance payment for the expenses for the performance of his accountancy. An appeal is not allowed against this decision. (4) After the completed performance of the accountancy, the body which conducts the criminal procedure reaches a decision on the basis of the report of the experts which certifies the amount of the expenses due to the performance of the accountancy and which determines that the amount is to be born by the legal person. The legal person may appeal in reference of the justification of the decision for the compensation of the expenses and the amount of the expenses. The Chamber of first degree court decides on the appeal (Article 22, paragraph 6). (5) The charge of the expenses, unless their amount was not paid in advance is performed in favour of the body which paid the expenses and the recompense of the experts in advance.

Chapter XIX PROSECUTION ACT AND OBJECTION AGAINST PROSECUTION ACT

Article 253 (1) After the investigation is completed and when according to this Code prosecution may be initiated without performance of prosecution (Article 153), the procedure before the court may be conducted only on the bases of the prosecution act of the public prosecutor i.e. the damaged as a plaintiff. (2) The provisions of the prosecution act and of the objection against the prosecution act will be applied accordingly on a private charge, unless it is initiated for crimes for which a brief procedure is conducted.

Article 254 (1) The prosecution act consists of:

1) name of the accused with personal data (Article 210) and with data on the facts whether and since when he is in a pre- trial detention or at loose, and if he is released before the prosecution act is initiated, then how long he was in pre- trial detention;

2) description of the event from which the lawful characteristic of the crime are derived, time and place of crime, object to which and means by which the crime was committed as well as other circumstances which are necessary in order the crime to be determined more precisely and correctly;

3) the lawful title of the crime pointing out the provisions of the Criminal Code which are to be applied on the proposal of the prosecutor;

4) appointing of the court before which the trial is to be conducted; 5) proposal on evidence which are to be exhibited at the trial pointing out the names of the

witnesses and experts, records which are to be read and objects which serve as evidence; 6) elaboration in which according to the result of the investigation the condition of issues will be

described pointing out evidence with which the facts for the decision are certified, the defence of the accused will be presented and the attitude of the prosecutor for the quotations of the defence. (2) If the accused is released, in the prosecution act it may be proposed to be determined a pre- trial detention, and if he is in pre- trial detention it may be proposed the accused to be released. (3) Within one prosecution act several crimes or several accused may be encompassed only if according to the provisions of Article 29 of this Code a unique procedure may be initiated and a unique verdict may be reached.

Article 255

53 (1) The prosecution act is directed to the competent court in as many copies as there are accused persons and counsels and one copy for the court. (2) Immediately after the reception of the prosecution act, the Chairman of the Chamber before which the trial is to be conducted will examine whether the prosecution act is properly constructed (Article 254) and if he finds that it is not, he will return it to the prosecutor to correct the errors within three days. For justified reasons on the request of the prosecutor the Chamber may prolong the period. If the damaged as a plaintiff or the private prosecutor misses the above mentioned period it will be considered that he has withdrawn from the prosecution, herewith the procedure will cease.

Article 256 (1) If the damaged as a plaintiff initiates a prosecution act without investigation (Article 153, paragraph 6) or if there is a private charge for a crime for which investigation was not conducted, unless the private charge is submitted for a crime for which a brief procedure is conducted, the Chairman of first degree Chamber, if he considers that prosecution is not necessary due to the existence of circumstances under Article 262, items 1 to 3 of this Code, he will require a decision by the Chamber (Article 22, paragraph 6). (2) If the damaged as a plaintiff, contrary to the provisions of Article 153, paragraphs 1 and 2 of this Code, initiates a prosecution act without an investigation for a crime for which a sentence to over five- year prison term is proscribed, he will be considered to have requested initiation of investigation. (3) Against the decision of the Chamber, the damaged as a plaintiff i.e. private prosecutor has a right to an appeal.

Article 257 (1) If within the prosecution act there is a proposal against the accused to be determined pre- trial detention or to be released, the Chamber decides on that (Article 22, paragraph 6) immediately and at the latest within 48 hours. (2) If the accused is detained and in the prosecution act there is not a proposal the accused to be released, according to paragraph 1 of this Article the Chamber within three days from the day when the prosecution act was received will ex officio examine whether there are further reasons for pre- trial detention and will bring a decision for prolonging or termination of the pre- trial detention. The appeal against this decision does not keep from execution of the decision.

Article 258 (1) The prosecution act is submitted to the released accused without any delay and if he is detained- within 24 hours after the reception. (2) If against the accused is determined pre- trial detention decided by the Chamber (Article 257), the prosecution act is handed to the accused when he is detained together with the decision which determines the pre- trial detention. (3) If the released accused is not detained within the premises of the court where the trial is to be conducted, the Chairman of the Chamber will order the accused to be immediately apprehended in that detention where the prosecution act will be handed to him.

Article 259 (1) The accused has a right to an objection to the prosecution act within 8 days from the day of its delivery. When the prosecution act is handed over to the accused, the court will instruct the accused on this right. (2) Objection against the prosecution act may be submitted by the counsel without a special authorisation by the accused but not contrary to his will. (3) The accused may withdraw from his right to object against the prosecution act.

Article 260 (1) An objection submitted not in time and an objection by an unauthorised person will be rejected with a decision by the Chairman of the Chamber before whom the trial is to be conducted. The Chamber decides on the appeal against this decision (Article 22, paragraph 6).

54 (2) If according to the provision of paragraph 1 of this Article the Chairman of the Chamber does not reject the objection, he will direct the objection with the records to the Chamber (Article 22, paragraph 6) which decides on a session on the objection. If it is a crime prosecuted on the request of the public prosecutor, after the hearing of the public prosecutor is decided on the objection.

Article 261 (1) If the Chamber does not reject the objection as not submitted on time or as not allowed, it will proceed to the examination of the prosecution act. (2) The Chamber which decides against the objection of the prosecution act at a session will summon the accused, his counsel and the public prosecutor and they will orally present and elaborate their proposals. (3) If due to the objection the Chamber finds that there are errors or defects in the prosecution act (Article 254) or in the procedure itself, or that there is a necessity of a more detailed explanation of the conditions of issues in order the justification of the prosecution act to be examined, the prosecution act will be returned for the noticed errors to be eliminated, or the investigation to be supplemented i.e. conducted. The prosecutor is obliged within three days from the day when the decision of the Chamber was announced to submit the corrected prosecution act or to submit a request for supplementing i.e. performance of investigation. For justified reasons on the request of the prosecutor, the Chamber may prolong this period. If the damaged as a plaintiff or the private prosecutor misses the mentioned period, he will be considered to have withdrawn from the prosecution, herewith the procedure will cease. If the public prosecutor misses the period, he is obliged to inform the supreme public prosecutor of the reasons for that. (4) If the Chamber finds that for the crime which is the case of the prosecution another court is competent, it will appoint the court where the prosecution act is submitted to be competent and according to the legal validity of the decision it will direct the case to the competent court. (5) If the Chamber concludes that in the records there are minutes or announcements under Article 79 of this Code, it will bring a decision on their separation from the records. A special appeal is allowed against this decision. After the decision becomes legally valid and before he directs the case to the Chairman of the Chamber for an assignment of the trial, the Chairman of the Chamber under Article 22, paragraph 6 of this Code will secure that the separated minutes and announcements are closed in a special case and are handed to the investigating judge to guard them separately from the other records. The separated minutes and announcements cannot be allowed an access to, nor they can be used in the procedure.

Article 262 While deciding on the objection against the prosecution act, the Chamber will decide that prosecution is not necessary and that the criminal procedure ceases, if the Chamber concludes that:

1) the deed which is the case of the prosecution is not a crime; 2) there are circumstances which exclude criminal responsibility, and application of security

measures is out of the question; 3) there is no request by the authorised prosecutor, proposal by the damaged or approval by the

competent state agency if it is necessary according to the Code, or there are circumstances which exclude the prosecution;

4) there are not sufficient evidence against the accused that on justified grounds he is suspected of the crime which is the case of the prosecution.

Article 263 (1) When it decides on the objection against the prosecution act by the public prosecutor submitted on the bases of Article 153, paragraph 6 of this Code, or on the request of the Chairman of the Chamber on that prosecution act (Article 269) or when it decides on the disagreement of the Chairman of first degree Chamber on the prosecution act by the damaged as a plaintiff or on the private charge in cases under Article 253, paragraph 1 of this Code, with a decision the Chamber will reject the prosecution act i.e. private charge if it finds that the reasons under Article 262, items 1 to 3 of this Code exist, and if investigating acts are conducted and for reasons under item 4 of that Article. (2) If in reference of the objection against the prosecution act by the public prosecutor under paragraph 1 of this Article or of the request by the Chairman of the Chamber in view of that prosecution act (Article 269)

55 an investigation is conducted (Article 261, paragraph 2) and if the Chamber after the investigation finds that there are reasons (Article 262) of this Code, it will decide by a decision that there is no basis for prosecution and that the criminal procedure ceases.

Article 264 While bringing the decision under Article 261, paragraph 3, Article 262 and Article 263 of this Code, the Chamber is not bound to a judicial evaluation of the crime which is included in the prosecution act by the prosecutor.

Article 265 (1) If the Chamber does not bring any of the decisions under Articles 261, 262 and 263 of this Code, it will reject the objection as unjustified. (2) Within the same decision the Chamber will also decide on the proposals for joining or separating of the procedure.

Article 266 If from among several accused only part of them has submitted an objection against the prosecution act and the reasons for which the court has found there is no basis for prosecution are in their favour and in favour of some of the accused who have not submitted an objection, the Chamber will proceed as if they have submitted those objections.

Article 267 All decisions by the Chamber brought in reference of the objection against the prosecution act, must be elaborated in the manner that in advance it will not influence the decision on those questions which will be issues of a dispute at the trial.

Article 268 Against the decision by the Chamber under Article 261, paragraph 3 of this Code an appeal is allowed, and against decisions under Articles 262 and 263 of this Code an appeal may be announced by the prosecutor. Against other decisions of the Chamber brought in reference of the objection against the prosecution act, an appeal is not allowed.

Article 269 (1) If the objection against the prosecution act is not submitted or is rejected, on the request of the Chairman of the Chamber before whom the trial is to be conducted, the Chamber (Article 22, paragraph 6) may decide on each issue on which on the bases of the Code it is decided in reference of the objection. (2) The request under paragraph 1 of this Article may be required by the Chairman of the Chamber until the appointing of the trial and at the latest within two months from the day of the reception of the prosecution act in the court. (3) The provisions of Article 260, paragraph 2, Articles 261 to 264, and Articles 267 and 268 of this Code will accordingly be applied when deciding in reference of the request under paragraph 1 of this Article.

Article 270 The prosecution act becomes legally valid when the objection is rejected and if the objection is not submitted or is rejected- on the day when reviewing the request of the Chairman of the Chamber, (Article 269) the Chamber has agreed with the prosecution act, and if such request did not exist- on the day when the Chairman of the Chamber determined the trial i.e. when the period expires under Article 29, paragraph 2 of this Code.

B. Trial and verdict

Chapter XX

56 PREPARATIONS FOR TRIAL

Article 271 (1) The Chairman of the Chamber with an order determines the day, hour and place of the trial. (2) The Chairman of the Chamber will determine the trial at the latest within 30 days from the day of the reception of the prosecution act at the court and if there is a request under Article 269 of this Code- as soon as in reference of the decision of the Chamber, the trial can be determined. If he does not determine the trial within this period, the Chairman of the Chamber will inform the President of the Court of the reasons for which the trial is not determined. If necessary the President of the Court will undertake measures the trial to be appointed. (3) If the Chairman of the Chamber certifies that in the records there are minutes or announcements under Article 79 of this Code, he will bring a decision on their separation before the trial and after the decision becomes legally valid, he will separate them in different cases and will give them to the investigating judge to be separately guarded from the other records.

Article 272 (1) The trial is held in the court room and in the court building. (2) If in certain circumstances the premises of the court building are not appropriate for the holding of the trial, the President of the Court may determine the trial to be held in another building. (3) The trial may be held at another place within the region of the competent court if it is allowed by the President of the Supreme Court on the elaborate proposal by the President of the Court.

Article 273 (1) At the trial will be summoned the accused and his counsel, the prosecutor and the damaged and their defence attorneys and legal authorities and an interpreter. At the trial will be also summoned witnesses and experts who are suggested by the prosecutor in the prosecution act and the accused in the objection against the prosecution act, except for those for whose hearing at the trail the Chairman of the Chamber considers not to be necessary. At the trial the prosecutor and the accused may again request for their proposals which the Chairman of the Chamber did not accept. (2) In reference of the contents of the court summons for the accused and for the witnesses the provisions of Article 176 and 222 of this Code will be applied. When the defence is not compulsory the accused will be instructed in the court summons that he has a right to a counsel but that the trial would not be cancelled for a reason that the counsel did not attend the trial or that the accused had a counsel only before the trial. (3) The court summons to the accused must be delivered in the manner that between the court summons delivery and the day of the trial there is a sufficient time for the preparation of the defence and. at least eight days. On the request of the accused or of the prosecutor and with the agreement of the accused this period may be shortened. (4) The damaged who is not summoned as a witness will be informed by the court in the court summons that the trial will be held without him and that his statement for a legal property request will be read. The damaged will be also warned that if he does not attend the trial he will be considered to have withdrawn from the prosecution if the public prosecutor also withdraws from the prosecution. (5) The damaged as a plaintiff and the private prosecutor will be warned in the court summons that they will be considered to have withdrawn from the prosecution if they do not attend the trial or if they fail to send a legal representative. (6) The accused, witness and expert will be warned in their court summons about the consequences of not attending the trial (Articles 292 and 295).

Article 274 (1) The parties and the damaged may after the appointing of the trial require at the trial to be summoned new witnesses or experts or new evidence to be provided. In their elaborate request the parties may underline which facts should be proved and by which of the proposed evidence. (2) If the Chairman of the Chamber rejects the proposal for providing new evidence, that proposal may be repeated at the course of the trial.

57 (3) The Chairman of the Chamber may without the proposal of the parties order providing of new evidence for the trial. (4) Of the decision with which providing new evidence is ordered will be informed the parties before the beginning of the trial.

Article 275 If it is likely that the trial will last for a longer period, the Chairman of the Chamber may require from the President of the Court to determine one or two judges, i.e. lay judges to be present at the trial in order to stand for the members of the Chamber in case they are impeded.

Article 276 (1) If it is found out that a witnesses or an experts who is summoned at the trial but not heard yet will not be able to attend the trial due to a durable illness or other impediments, he may be heard at the place where he is. (2) A witness i.e. an expert will be heard and if necessary will take an oath by the Chairman of the Chamber or the judge- member of the Chamber or his hearing will be performed by the investigating judge of the court on which region is the witness i.e. the expert. (3) Of the time and place of the hearing will be informed the parties, the counsel and the damaged if possible in view of the urgency of the procedure. If the accused is in pre- trial detention, on the necessity of his presence at the hearing decides the Chairman of the Chamber. When the parties and the damaged are present at the hearing they have the rights under Article 161, paragraph 7 of this Code.

Article 277 The Chairman of the Chamber may with an order for significant reasons, on the proposal of the parties or ex officio postpone the day of the trial.

Article 278 If the prosecutor withdraws from the prosecution act before the beginning of the trial, the Chairman of the Chamber will interrupt with a decision the criminal procedure and will have the decision to be delivered to the parties and the damaged and will inform the persons summoned at the trial of that, if the trial is determined. The Chairman of the Chamber will particularly warn the damaged of his right to continue the prosecution (Articles 56 and 58).

Chapter XXI

TRIAL

1. Publicity of trial

Article 279 (1) The trial is public. (2) Adults may be present at the trial. (3) Persons who are present at the trial must not carry guns or dangerous tools, except for the guard of the accused who may be armed.

Article 280 From the beginning to the end of the trial the Chamber may at any time ex officio or on the proposal on the parties but always after their hearing exclude the public from the trial or from a part of it if it is necessary a secret to be kept, the public order to be restored, the morality to be protected, the personal and private life of the accused to be protected, the witness or the damaged to be protected and the interests of the minor to be also protected.

Article 281

58 (1) The exclusion of the public does not refer to the parties, the damaged, their representatives and the counsel. (2) The Chamber may allow at the trial where the public is excluded to be present certain officials, scientific and public workers, and on the request of the accused may also be present his marital i.e. illegitimate spouse and his close relatives under Article 351, paragraph 2 of this Code. (3) The Chairman of the Chamber will warn the persons who attend the trial where the public is excluded that they are obliged to keep as a secret everything that they learn at the trial and he will underline that any revealing of a secret is a crime.

Article 282 (1) A resolution for exclusion of the public is brought by the Chamber with a decision which must be elaborated and announced in public. (2) The decision for exclusion of the public may be denied only with an appeal on the verdict.

2. Managing the trial

Article 283 (1) The Chairman of the Chamber, the members of the Chamber, the court clerk and the judges and lay judges (Article 275) must continuously be present at the trial. (2) The Chairman of the Chamber is obliged to certify whether the Chamber is constructed according to the Code and if there are reasons for which the members of that Chamber and the court clerk must be excluded (Article 36, items 1 to 5).

Article 284 (1) The Chairman of the Chamber manages the trial, examines the accused, hears the witnesses and experts and gives the right to speak to the members of the Chamber, parties, damaged, defence attorneys, legal representatives, counsel and experts. (2) It is the duty of the Chairman of the Chamber to have in consideration the trial to undergo versatile inspection, the truth to be revealed and to be eliminated everything which delays the procedure and does not serve the issues to be clarified. (3) The Chairman of the Chamber decides on the proposals of the parties if the Chamber does not decide on them. (4) On the proposal on which the parties do not agree and on the agreed proposals of the parties which the Chairman of the Chamber does not accept, decides the Chamber. The Chamber also decides on the objections against the measures undertaken by the Chairman of the Chamber which are in reference of the management of the trial. (5) The Chamber's decisions are always announced and with a brief elaboration are included in the minutes of the trial.

Article 285 The trial proceeds in the course determined by this Code but the Chamber may determine the regular course of the trial to be interrupted due to special circumstances and particularly due to the number of the accused persons, number of crimes and the volume of the evidence.

Article 286 (1) The duty of the Chairman of the Chamber is to take care the order in the court room and the dignity of the court to be maintained. Immediately after the beginning of the trial he may warn the participants in the trial to behave appropriately and not to disturb the proceeding at the court. The Chairman of the Chamber may determine the participants at the trial to be searched. (2) The Chamber may order the persons who observe the trial to be removed from the trial and if with the measures for maintenance of the order encompassed within this Code a continuous course of the trial cannot be achieved.

59 (3) Film and television recordings cannot be performed in the court room. With exception, the President of the Supreme Court of the Republic of Macedonia may allow such recordings at a certain trial. Even if a recording is allowed, the Chamber may for justified reasons decide particular parts of the trial not to be recorded.

Article 287 (1) If the accused, counsel, damaged, defence attorney, legal representative, witness, expert, interpreter or another person who participates at the trial, but disturbs the order or does not obey the orders of the Chairman of the Chamber for maintenance the order in the court room, the Chairman of the Chamber will warn him. If the person does not respond to the warning, the Chamber may order the accused to be removed from the court room, but if this concerns the other above mentioned persons, he may not only remove them from the court room but may also issue a fine penalty under Article 74, paragraph 1 of this Code. (2) After the decision of the Chamber, the accused may be removed from the court room for a period of time, and if he has already been examined at the trial, then he may be removed for as long as the evidence procedure lasts. Before the evidence procedure is completed, the Chairman of the Chamber will call the accused and inform him of the course of the trial. If the accused keeps on disturbing the order and violating the dignity of the court, the Chamber may remove him from the trial again. In that case the trial will be completed without the presence of the accused, and the verdict will be announced to him by the Chairman of the Chamber or the judge- member of the Chamber in presence of a court clerk. (3) The counsel or defence attorney who after the punishment continues disturbing the order, the Chamber may exclude him from the further defence i.e. representation of the accused at the trial and in that case the party will be instructed to have another counsel i.e. defence attorney. If it is impossible for the accused or the damaged to achieve it immediately without harming their own interests, or if in case of a compulsory defence a new counsel or defence attorney may not be assigned immediately, the trial will be interrupted and postponed, and to the counsel i.e. defence attorney it will be ordered to pay for the expenses caused by the interruption or postponing. (4) If the court removes from the court room the damaged as a plaintiff or the private prosecutor or their legal representative, the trial will be continued in their absence but the court will warn them that they may have a defence attorney. (5) If the public prosecutor or the person who stands for him disturbs the order, the Chairman of the Chamber will inform the competent public prosecutor of that, and he may also cease the trial and from the competent public prosecutor may require another person to be assigned to represent the prosecution act. (6) When the court punishes a lawyer who disturbs the order, the Bar will be informed of that.

Article 288 (1) An appeal is allowed against the decision for a punishment but the Chamber may revoke the decision. (2) A special appeal is not allowed against other decisions concerning the maintenance of the order and management of the trial.

Article 289 (1) If the accused commits a crime at the trial it will be proceeded according to provisions of Article 330 of this Code. (2) If another person commits a crime during the trial, the Chamber may interrupt the trial and after an oral accusation by the prosecutor, may judge the committed crime immediately and may judge that crime after the completion of the initiated trial. (3) If there are grounds for suspicion that the witness or the expert has given false statement at the trial, that crime cannot be judged immediately. In that case the Chairman of the Chamber may order for the statement of the witness i.e. expert a special minutes to be constructed which will be delivered to the public prosecutor. The minutes will be signed by the heard witness i.e. expert. (4) If the criminal cannot be judged immediately who is prosecuted ex officio, the competent public prosecutor will be informed of that due to the further procedure.

60 3. Presumptions for holding the trial

Article 290 The Chairman of the Chamber opens the session and announces the case at the trial and the composition of the Chamber. Than he certifies whether all summoned persons have come and if they have not he checks whether they were given court summons and whether they justified their absence.

Article 291 (1) If at the trial appointed on the bases of the prosecution act by the public prosecutor, the public prosecutor or the person who stands for him does not come, the trial will be postponed. (2) If at the trial does not come the damaged as a plaintiff or the private prosecutor or their defence attorney although they were summoned, the Chamber will interrupt the procedure with a decision.

Article 292 (1) If the accused was summoned but does not attend the trial nor he justifies his absence, the Chamber will order the accused to be apprehended forcefully. If the apprehension could not be performed immediately, the Chamber will decide the trial not to be held and will order the accused to be apprehended forcefully at the next trial. If by the time of his apprehension the accused justifies his absence, the Chairman of the Chamber will revoke the order for a forceful apprehension. (2) If the summoned accused has obviously been avoiding the attending of the trial, and there are no reasons for pre- trial detention under Article 184 of this Code, the Chamber may determine a pre- trial detention in order the presence of the accused at the trial to be secured. The appeal does not keep from execution of the decision for a pre- trial detention. For a pre- trial detention determined for this reason accordingly are applied provisions from Articles 183 to 197 of this Code. If not revoked before, the pre- trial detention lasts until the pronouncement of the verdict and for at most one month. (3) The accused may be judged in absence only if he is a fugitive or not available to the state agencies and there are particularly significant reasons to be prosecuted although absent. (4) A decision for prosecution in absence of the accused is brought by the Chamber on the proposal of the prosecutor. The appeal does not keep from the execution of the decision.

Article 293 If at the trial the summoned counsel does not come or if the counsel leaves the trial without an approval, and if there are no possibilities another counsel to come immediately, without inflicting the defence, the trial will be postponed. In such a case with a decision the Chamber will decide the counsel to bear the expenses due to the postponing but only if that may be prescribed against him.

Article 294 If according to provisions from Articles 287, 292 and 293 of this Code there are conditions for postponing the trial due to not attendance of the accused i.e. due to the absence of the counsel, the Chamber may decide the trial to be held if according to the evidence in the records it is obvious that a verdict which denies the accusation must be brought.

Article 295 (1) If the summoned witness or expert is absent without justified reasons, the Chamber may order him to be immediately forcefully apprehended. (2) The trial may begin without the presence of the summoned witness or expert and in that case the Chamber will decide during the trial whether due to the absence of the witness or expert the trial should be interrupted or postponed. (3) The summoned witness or expert without justified reasons for his absence may be charged with a fine penalty according to Article 74, paragraph 1 of this Code by the Chamber and it may also order him to be forcefully apprehended at the new trial. The Chamber due to justified circumstances may revoke the decision for the punishment.

4. Postponing and interruption of the trial

61

Article 296 (1) Apart from the cases particularly encompassed with this Code, the trial will be held on the decision of the Chamber if new evidence are to be obtained or if during the trial it is evident that after the committed crime the accused suffers from a temporary mental illness or a temporary mental disorder or if there are other impediments the trial to be conducted successfully. (2) In the decision which postpones the trial it will be determined if possible the day and the hour when the trial is to be continued. With the same decision the Chamber may determine evidence to be collected which could be lost with the time. (3) A special appeal is not allowed against the decision under paragraph 2 of this Article.

Article 297 (1) The postponed trial must start from the beginning if the composition of the Chamber has changed, but after the hearing of the parties, the Chamber may decide in that case the witnesses and experts not to be heard again and new inspection not to be performed but the statements of the witnesses and experts made on the previous trial to be read i.e. the minutes for the inspection to be read. (2) If the postponed trial is held before the same Chamber it will continue and the Chairman of the Chamber will briefly present the course of the previous trial but even in this case the Chamber may determine the trial to start from the beginning. (3) If the postponing lasted for more than a month or if the trial is held before another Chairman of the Chamber, the trial must start from the beginning and all evidence must be presented again.

Article 298 (1) Apart from the cases particularly encompassed within this Code, the Chairman of the Chamber may interrupt the trial for a rest or due to the expiry of the working hours or due to providing certain evidence within short time or due to the preparation of the accusation or the defence. (2) The interrupted trial always continues before the same Chamber. (3) If the trial cannot be continued before the same Chamber or if the interruption of the trial lasted for more than eight days, it will be proceeded according to the provisions of Article 297 of this Code.

Article 299 If during the trial before the Chamber consisted of one judge and two lay judges it turns out that the facts on which the accusation is based, point out to a crime for which the competent Chamber is a Chamber consisted of two judges and three lay judges, then the Chamber will be supplemented and the trial will begin again.

5. Minutes for the trial

Article 300 (1) A minute is constructed for the work of the trial in which it must be inserted the crucial issues of the course of the trial. (2) The Chairman of the Chamber may order the whole course of the trial or certain parts of it to be taken by short hand typing. Within 48 hours the short hand notes will be translated, checked and inserted in the minutes. (3) Provisions of Article 80 of this Code are accordingly applied on the tape recording of the course of the trial. An approval for tape recording is given by the Chairman of the Chamber. (4) On the proposal of the party or ex officio, the Chairman of the Chamber may order the statements which are considered to be significantly important to be literally written in the minutes. (5) If it is necessary and especially if in the minutes are literally inserted the statements of a person, the Chairman of the Chamber may order the part from the minutes immediately to be read and it will always be read again whenever the party, the counsel or the person whose statement is inserted in the minutes requires that.

62 Article 301

(1) The minutes must be completed with the completion of the session. The minutes is signed by the Chairman of the Chamber and the court clerk. (2) The parties have a right to review the completed minutes and its supplements, to state notes in view of its contents and to require corrections of the minutes. (3) Corrections of written names, numbers and other obvious errors in the writing may be ordered by the Chairman of the Chamber on the proposal of the parties or of the examined person or ex officio. Other corrections and additions of the minutes may order only the Chamber. (4) Notes and proposals by the parties in view of the minutes, as well as corrections and additions performed in the minutes may be inserted after the completed minutes in continuation. There in the minutes will be also noted the reasons for which certain proposals and notes are not approved of. The Chairman of the Chamber and the court clerk also sign the parts in the minutes which are in continuation.

Article 302 (1) In the introduction of the minutes the following must be pointed out: the court before which the trial is held, the place and time of the session, the name of the Chairman of the Chamber, the names of the members of the Chamber, of the court clerk, of the prosecutor, of the accused, the counsel, the damaged and his defence attorney or legal authority, of the interpreter, the crime which is the case of the trial as well as whether the trial is public or the public is excluded. (2) The minutes must particularly contain data on the fact on which prosecution act is read i.e. orally presented at the trial and whether the prosecutor has altered and expanded the charge, what proposals are submitted by the parties and what decisions are brought by the Chairman of the Chamber or the Chamber, which evidence are presented, whether certain minutes or other writs are read, whether audio or other recordings are reproduced and what notes the parties have made in view of the read minutes, writs or reproduced recordings. If during the trial the public is excluded from the trial it must be pointed out in the minutes that the Chairman of the Chamber has warned the present persons about the consequences if they reveal without authorisation anything that they have learnt as a secret at the trial. (3) Statements of the accused, witnesses and experts are inserted in the minutes in the manner that their crucial contents is presented. This statements are inserted in the minutes only if they contain anomalies or additions in their previous statements. On the request of the party, the Chairman of the Chamber will order the minutes for its previous statement to be read fully or partially. (4) On the request of the party the question i.e. answer which the Chamber has rejected as not allowed will be inserted in the minutes.

Article 303 (1) In the minutes of the trial the full pronouncement of the verdict is inserted (Article 348, paragraphs 3 to 5) with a note whether the verdict is pronounced in public. The pronouncement of the verdict contained in the minutes of the trial is authentic. (2) If there is a brought decision for a pre- trial detention (Article 345) it must also be included in the minutes of the trial.

6. Beginning of the trial and examination of the defendant

Article 304 After the Chairman of the Chamber has certified that all summoned persons are at the trial, or when the Chamber has decided the trial to be held in absence of some of the summoned persons or has left those issues to be decided later, the Chairman of the Chamber will call the defendant to give his personal details (Article 210) in order his identity to be certified.

Article 305 (1) After the identity of the defendant is certified the Chairman of the Chamber will direct the witnesses and experts to the places determined for them where they will wait until they are called for the hearing. In case it is necessary the Chairman of the Chamber may keep the experts to follow the course of the trial.

63 (2) If the damaged is present and he still has not requested for his legal property right, the Chairman of the Chamber will instruct him that he may propose for the realisation of the request in the criminal procedure and will instruct him on his rights under Article 55 of this Code. (3) If the damaged as a plaintiff or the private prosecutor are to be heard as witnesses they will not be removed from the session. (4) The Chairman of the Chamber may undertake necessary measures the agreements among the witnesses, experts and parties to be avoided.

Article 306 The Chairman of the Chamber will point out the defendant to follow the course of the trial carefully and will instruct him that he may expose facts and propose evidence in his defence, that he may question the other defendants, witnesses and experts, make notes and give explanations in view of their statements.

Article 307 (1) The trial begins by an oral reading of the prosecution act or the private charge. (2) The prosecution act and the private charge are regularly read by the prosecutor but if it is a prosecution act of the damaged as a plaintiff or a private charge, the Chairman of the Chamber may orally present its contents instead. It will be allowed to the prosecutor to supplement the presentation of the Chairman of the Chamber. (3) If the damaged is present, he may elaborate his legal property request and if not, his proposal will be read by the Chairman of the Chamber.

Article 308 (1) After the prosecution act or the private charge has been read or its contents orally presented, the Chairman of the Chamber approaches toward the examination of the defendant. (2) The other defendants who are not examined yet cannot be present during the examination of the defendant. (3) The Chairman of the Chamber will ask the defendant if he understands the charge. If the Chairman of the Chamber is certain that the defendant does not understand the charge, he will present the contents of the charge in such a manner that the defendant can easily understand the charge. (4) Afterwards the Chairman of the Chamber will instruct the defendant on his right not to give answers or to give statements at his defence.

Article 309 (1) During the examination of the accused at the trial, the provisions valid for the examination of the accused in the investigation will be accordingly applied. (2) If the accused chooses not to answer a certain question, his previous statement or part of it may be read. (3) During the examination at the trial when the defendant deviates from his previous statement, the Chairman of the Chamber will underline his deviation and will ask him why he states differently, and if necessary he will read his previous statement or part of it. (4) After the completed examination, the Chairman of the Chamber is obliged to ask the defendant whether he has anything else to state at his defence.

Article 310 (1) When the Chairman of the Chamber finishes the examination of the defendant, the members of the Chamber may ask the accused immediate questions. The prosecutor, counsel, damaged, defence attorney, authorised representative, other defendants and experts may immediately question the accused on the approval of the Chairman of the Chamber. (2) The Chairman of the Chamber will prohibit questions or an answer to an already set question if it is not allowed (Article 211) or does not concern the case. If the Chairman of the Chamber prohibits certain question or answering the question, the parties may request the Chamber to decide on that.

Article 311

64 (1) When the examination of the first defendant is completed, it will be approached, according to a certain order, towards examinations of other defendants, if there are any. After each examination, the Chairman of the Chamber will introduce the examined with the statements of the other defendants which were previously examined and will ask if he has anything to state. The Chairman of the Chamber will ask the formerly examined defendant if he has anything to add to the statement of the latter examined defendant. Each defendant has a right to question the other examined defendants. (2) If the statements of separate defendants differ in the same circumstance, the Chairman of the Chamber may confront the defendants.

Article 312 The Chamber may with exception decide the accused to be temporarily removed from the court room if the other defendant or witness refuses to make a statement at his presence or if the circumstances point out that at his presence he is not going to speak the truth. After the returning of the accused at the session he will be read the statement of the other defendant i.e. witness. The accused has a right to question the other defendant i.e. witness and the Chairman of the Chamber will ask if he has anything to add or state to the statements. If necessary, they may be confronted.

Article 313 During the trial the defendant may consult his counsel, but on the fact how he will answer the question he cannot consult neither his counsel nor any one else.

7. Presentation of evidence

Article 314 (1) After the defendant has been examined the procedure continues with presentation of evidence. (2) Proving with evidence encompasses all facts which the court considers to be valid for a righteous conviction. (3) Evidence are presented in an order which is certified by the Chairman of the Chamber. If the damaged who is present is to be heard as a witness, his hearing will be performed immediately after the examination of the accused. (4) Evidence on certain fact cannot be rejected because it is written in the language of the nationality of the party or other participants in the procedure- citizens of the Republic of Macedonia. (5) The parties and the damaged until the completion of the trial may suggest new facts to be presented or new evidence to be collected and may request again for the proposals which the Chairman of the Chamber or the Chamber rejected before. (6) The Chamber may decide to be presented evidence which are not suggested before or from which the one who suggests has withdrawn. (7) The proposal new evidence to be obtained may be rejected if:

1) it refers to an illegal manner of obtaining evidence, to an evidence whose presentation is according to law not allowed or to the fact which according to law cannot be proved (not allowed proposan( �

2) the fact which according to the proposal should be certified is already certified or is not significant for the decision, i.e. there is not a connection between the facts which are to be certified and the deciding facts, or that connection due to legal reasons cannot be established (insignificant proposan( �

3) there are reasons for suspicion that with the proposed evidence a significant fact cannot be certified at all or it could be done with immense difficulties, i.e. if that evidence in the previous

course of the procedure could not have been obtained and it is highly likely that it cannot be obtained in the primary period (inadequate proposal) and

4) is not clear, complete or according to the current condition of the acts in the procedure which the one who proposes has undertaken them, it is obvious that the proposal is focused on a considerable delay of the procedure. (8) The decision with which is rejected the proposal for presentation of new evidence must be elaborated. The Chamber may alter or revoke them in the further course of the procedure.

65

Article 315 The confession by the defendant at the trial, however complete and full, does not release the court from its duty to present other evidence.

Article 316 (1) During the hearing of witnesses and experts at the trial accordingly will be applied the provisions which are valid for their hearing in the investigation. (2) The witness who is not heard, according to the rules will not be present during the presentation of evidence and the expert who has not given his diagnosis and opinion will not be present at the trial until the other expert gives his statement on the same case. (3) If a person younger than 14 is heard as a witness, the Chamber may decide during his hearing the public to be excluded. (4) If a minor is present at the trial as a witness or as a damaged, he will be removed from the court room as soon as his presence is no longer necessary.

Article 317 (1) Before hearing of the witness, the Chairman of the Chamber will warn him on his duty to state before the court everything he is familiar with about the case and will warn him that false witnessing is a crime. (2) The Chamber may decide the witness who has not taken an oath in the investigation to take an oath for his statement. (3) The oath is taken orally. (4) The contents of the oath is as follows: "I swear on my honour that of everything I have been asked by the court I have told the truth and that I have not suppressed anything I have known which concerns this issue". (5) The Chamber may decide the witness to take an oath before his hearing. (6) Dumb witnesses who can read and write take an oath by signing the text of the oath, deaf witnesses will read the text of the oath. If deaf or dumb witnesses cannot read nor write they will take an oath by the assistance of an interpreter. (7) If the witness has already taken an oath during the investigation, he will be warned and reminded of his already taken oath.

Article 318 (1) Before the hearing of the expert, the Chairman of the Chamber will warn him on his duty that he is to state his diagnosis and opinion according to his best knowledge and that false diagnosis and opinion are crime. (2) The Chamber may decide the expert to take an oath before the expertise. (3) The oath is taken orally. (4) The contents of the oath is as follows: "I swear on my honour that I shall perform the expertise conscientiously and according to my best knowledge and that I shall present my diagnosis and opinion fully and correctly". (5) The regularly appointed sworn expert instead of taking an oath will be warned on his already taken oath. (6) The expert presents orally his diagnosis and opinion at the trial. If before the trial the expert has prepared in writing his diagnosis and opinion, he may be allowed to read it in which case his elaboration in writing will be enclosed to the minutes. (7) If the expertise is completed in a specialised institution i.e. a state agency, it may be decided the experts of the institution i.e. agency who were entrusted with the expertise not to be summoned if according to the nature of the completed expertise a complete explanation of the written diagnosis and opinion cannot be expected. In that case at the trial the Chamber may decide the diagnosis and the opinion of the specialised institution i.e. state agency only to be read. If it is found necessary in view of the other presented evidence and notes by the parties (Article 327) the Chamber may in addition decide the experts who has performed the expertise immediately to be examined.

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Article 319 (1) When the Chairman of the Chamber completes the hearing of a witness or expert, the members of the Chamber may immediately question the witness i.e. expert. The prosecutor, defendant, counsel, damaged, defence attorney, authorised representatives and experts, on the approval of the Chairman of the Chamber may immediately question the witnesses and experts. (2) The Chairman of the Chamber will prohibit a question or will reject an answer to be given to an already set question if it is not allowed (Article 211) or it does not concern the case. If the Chairman of the Chamber prohibits certain question or answer, the parties may request the Chamber to decide on that.

Article 320 If at the previous hearing the witness or expert has stated facts which he cannot remember any further or if he deviates from his statement, he will be reminded of his previous statement i.e. his deviation and will be asked of the reasons for his different statement and if necessary his previous statement or part of it will be read.

Article 321 (1) The heard witnesses and experts remain in the court room if after the hearing of the parties the Chairman of the Chamber does not release them or if he does not order for them to be temporarily removed from the court room. (2) On the proposal of the parties or ex officio the Chairman of the Chamber may order the heard witnesses and experts to be removed from the court room and to be summoned later again and again to be examined in the presence or absence of other witnesses and experts.

Article 322 (1) If it is found at the trial that the witness or expert cannot come before the court or that his arrival is significantly burdened, if the Chamber considers his statement to be of an importance, the Chamber may order him to be heard out of the trial by the Chairman of the Chamber or a judge- member of the Chamber or the hearing to be performed by the investigating judge of the court on which region is the witness i.e. expert. (2) If it is necessary the inspection or reconstruction to be performed out of the trial, it will be performed by the Chairman of the Chamber or by the judge who is a member of the Chamber. (3) The parties and the damaged will be always informed when and where the witness will be heard i.e. the inspection or reconstruction will be performed with a warning that they may be present. If the defendant is in a pre- trial detention, the Chamber decides on the necessity of his presence at these acts. When the parties and the damaged are present at these acts they have the right according to Article 161, paragraph 8 of this Code.

Article 323 At the trial, after the hearing of the parties, the Chamber may decide the investigating judge to undertake certain acts in order certain facts to be clarified, if the undertaking of this acts at the trial would be connected to a significant delay of the procedure or with other significant difficulties. When the investigating judge proceeds according to such a request by the Chamber, provisions concerning undertaking investigating acts are applied.

Article 324 (1) Minutes for inspection out of the trial, for search of a residence or a person and for confiscation of objects, as well as corrections, books, records and other writs which serve as evidence will be read at the trial in order their contents to be certified and if the Chamber evaluates so, their contents may be briefly orally presented. The writs which have the meaning of an evidence if possible are submitted in original. (2) The objects which serve the issues to be clarified, during the trial may be shown to the accused and if necessary also to the witnesses and experts.

67 Article 325

(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. The hearing cannot be altered by reading his previous statement from the minutes nor by his statement in writing. (2) Apart from the cases which are particularly anticipated by this Code, the minutes for the statements of the witnesses, other defendants or already convicted collaborators in the crime, as well as minutes or other writs for the diagnosis and opinions of the experts may be read on the decision of the Chamber only in the following cases:

1) if the examined persons are deceased, are mentally ill or cannot be found, or if their apprehension before the court is not possible or is significantly difficult due to their old age, illness or other important reasons;

2) if the witnesses or experts for illegal reasons chose not to give statements at the trial. (3) On the agreement with the parties, the Chamber may decide the minutes for the previous hearing of the witness or expert i.e. his written diagnosis and opinion to be read, although the witness i.e. expert is not present, regardless of the fact that he was summoned at the trial. With exception, without the agreement of the parties but after their hearing, the Chamber may decide the minutes for hearing of the witness or expert at the previous trial which was before the same Chairman of the Chamber to be read, although the period under Article 297, paragraph 3 of this Code has expired, or the Chamber may decide the following to be read: the written diagnosis and the opinion by the specialised institution or the state agency, when the summoned expert from the institution or agency who has performed the expertise does not attend the trial or if in view of other presented evidence the Chamber evaluates that it is necessary the participants to be introduced with the contents of the minutes or with the written diagnosis and the opinion. When the minutes i.e. the written diagnosis and the opinion are read and when the notes of the parties are heard (Article 327), having in consideration the other presented evidence, the Chamber will decide whether the witness or expert will be immediately heard. (4) The minutes of the previous hearings of persons who are released from their duty to act as witnesses (Article 219) cannot be read if the persons are not summoned at the trial at all or if they stated at the trial that they do not wish to witness. After the completed presentation of evidence, the Chamber will decide these minutes to be separated from the records and to be kept separately (Article 79). The Chamber will proceed in the same manner also in view of other minutes and announcements under Article 79 of this Code, if a decision for their separation has not previously been brought. A special appeal is allowed against the decision for separation of the minutes and announcements. After the decision has become legally valid, the separated minutes and announcements are closed in special cases and entrusted to the investigating judge for a separate guarding from the other records and cannot be accessed nor used in the procedure. The separation of the minutes and the announcements must be performed before the records are submitted to the superior court due to the appeal against the verdict. (5) The reasons the minutes to be read will be inserted in the minutes of the trial, and during the reading it will be announced whether the witness or the expert has taken an oath.

Article 326 In cases of Articles 309, 320 and 329 of this Code, as well as in cases when it is necessary, apart from the reading of the minutes, the Chamber may decide at the trial the recording from the examination i.e. hearing to be reproduced (Article 80).

Article 327 After the completed hearing of each witness or expert and after the reading of each minutes and other writs, the Chairman of the Chamber will ask the parties and the damaged whether they have anything to add.

Article 328 (1) After the completed presentation of evidence, the Chairman of the Chamber will ask the parties and the damaged whether they have certain proposals as an addition to the procedure of presentation of evidence. (2) If no one proposes as an addition to the procedure of presentation of evidence or if the proposal is rejected and the Chamber finds that the issue is inspected, the Chairman of the Chamber will announce that the procedure of presentation of evidence is completed.

68

8. Alternation and expansion of the prosecution

Article 329 (1) If during the trial the prosecutor finds that the presented evidence point to the altered factual situation included in the prosecution act, he may orally alter the prosecution act at the trial and may propose the trial to be interrupted due to the preparation of the prosecution act. (2) In that case the court may interrupt the trial due to the preparation of the defence. (3) If the Chamber allows interruption of the trial due to the preparation of a new prosecution act, it will determine a period in which the prosecutor has to submit the prosecution act. A copy of the new prosecution act will be submitted to the defendant, but an objection against this prosecution act is not allowed. If the prosecutor does not submit the prosecution act in the proscribed period, the Chamber will continue the trial on the bases of the previous prosecution act.

Article 330 (1) If the defendant during the trial at the session commits crime or if during the trial a previously committed crime of the defendant is revealed, in a regular manner on the prosecution of the authorised prosecutor which may be orally presented, the Chamber will expand the trial as well as for that crime. An objection is not allowed against this prosecution. (2) In order the defence to prepare in such a case the court may interrupt the trial, and may after the hearing of the parties decide on that crime under paragraph 1 of this Article to be prosecuted separately.

9. Final words of the parties

Article 331 (1) After the completed presentation of evidence the Chairman of the Chamber allows the parties, the damaged and the counsel to have their final word. (2) The final word first has the prosecutor, then the damaged, the counsel and the last is the defendant.

Article 332 In his final word the prosecutor will present his evaluation of the presented evidence at the trial, then he will present his conclusions about the important facts for the decision and will elaborate his proposal for the criminal responsibility of the defendant, provisions of the Criminal Code which are to be applied, as well as the circumstances on the behalf and against the defendant which are to be taken in consideration at the act of deciding on the punishment. The prosecutor cannot propose on the severity of the punishment but may propose a court reprimand or a conditional conviction to be pronounced.

Article 333 The damaged or his legal representative may in his final word elaborate his legal property request and may point to the evidence for the criminal responsibility of the defendant.

Article 334 (1) The counsel or the defendant himself may in his final word present the defence and may focus on the quotations of the prosecutor and the damaged. (2) After the counsel, the defendant has a right to speak for himself, to state whether he accepts the defence of the counsel and to supplement it. (3) The prosecutor and the damaged have a right to answer the defence and the counsel i.e. defendant to regard those answers. (4) The defendant always has the last word.

Article 335 (1) The word of the parties cannot be limited to a specified time.

69 (2) After a previous reprimand the Chairman of the Chamber may interrupt the person who within his word offends the public order and morality or another person or who indulges in repetitions or presentations which apparently have no connection to the case. In the minutes of the trial it must be noted that the word was interrupted and the reasons for its interruption. (3) When the prosecution is presented by several persons or the defence by several counsels, the presentations cannot be repeated. The representatives of the prosecution i.e. defence after a mutual agreement will choose questions on which they will speak. (4) After each and every final word has been completed, the Chairman of the Chamber is obliged to ask if anyone wishes to state anything.

Article 336 (1) If after the words of the parties the Chamber does not find that more evidence are to be presented, the Chairman of the Chamber will announce that the trial is completed. (2) Then the Chamber will withdraw for deliberation and voting in order a verdict to be brought.

Chapter XXII

VERDICT

1. Pronouncement of the verdict

Article 337 (1) If during the deliberation the court does not find that the trial should be opened again due to supplementing of the procedure or enlightenment of certain issues, it will pronounce a verdict. (2) The verdict is pronounced and publicly announced in the name of the citizens of the Republic of Macedonia.

Article 338 (1) The verdict may refer only to the person who is accused and the crime which is the case of the prosecution contained in the submitted prosecution act i.e. at the trial altered or expended prosecution act. (2) The court is not bound to the proposals of the prosecutor in view of the judicial evaluation of the crime.

Article 339 (1) The court finds the verdict only on the basis of the facts and evidence which are presented at the trial. (2) The court is obliged conscientiously to evaluate each evidence separately and in connection to other evidence and on the grounds of such an evaluation to derive a conclusion whether a certain fact is proved.

2. Types of verdicts

Article 340 (1) With the verdict, the charge is either rejected or the defendant is released from his charge or he is found guilty. (2) If the prosecution encompasses several crimes in the verdict it will be pronounced whether and for which crime the charge is rejected or the defendant is released from his charge or he is found guilty.

Article 341 The court will pronounce a verdict which rejects the charge:

1) if for the verdict the court is not competent; 2) if the procedure is conducted without a request of an authorised prosecutor; 3) if from the beginning to the end of the trial the prosecutor withdraws from the prosecution; 4) if there is no necessary proposal, approval or if the competent state agency withdraws from the

proposal i.e. approval or if the damaged withdraws from the proposal;

70 5) if the accused for the same crime is already convicted with a legally valid verdict, released

from the charge or the procedure against him is interrupted with a legally valid decision, and 6) if the accused with an act of amnesty or plead is released from the prosecution or the criminal

prosecution cannot be undertaken due to obsolescence or if there are other circumstances which exclude the criminal prosecution.

Article 342 The court will pronounce a verdict which releases the accused from his charge:

1) if the crime he is charged with is not a crime according to law; 2) if there are circumstances which exclude the criminal responsibility, and 3) if it is not proved that the accused has committed the crime he is charged with.

Article 343 (1) In the verdict in which the defendant is found guilty the court will pronounce:

1) for a crime for which he is found guilty, underlining the facts and circumstances which are characteristics of a crime as well as facts and circumstances on which depend the application of a certain provision of the Criminal Code;

2) legal title of the crime and which provisions of the Criminal Code are applied; 3) which punishments the accused is convicted of or released according to provisions of the

Criminal Code; 4) decision for a conditional conviction; 5) decision for security measures and for deprivation of property interest; 6) decision for calculation of the pre- trial detention or of already served sentence, and 7) decision on the criminal procedure expenses, on the legal property request as well as whether the

legally valid verdict is to be announced by the press, radio or television. (2) If the defendant is convicted to a fine penalty, it will be noted in the verdict the period within which the fine penalty is to be paid and alternatives by which the fine penalty will be charged in case the fine cannot even be forcefully charged.

3. Announcement of the verdict

Article 344 (1) After the court has pronounced the verdict, the Chairman of the Chamber announces the verdict immediately. If the court cannot pronounce the verdict on the same day when the trial is completed, it will postpone the pronouncement of the verdict at most for three days and will determine the time and place of the pronouncement of the verdict. (2) The Chairman of the Chamber in presence of the parties, their defence attorneys, the authorised representatives and counsel will publicly pronounce the verdict and will briefly announce the reasons for the verdict. (3) The announcement will be performed even when the party, the defence attorney, the authorised representative or the counsel is not present. The Chamber may order the accused, who is absent, the verdict to be announced orally by the Chairman of the Chamber or the verdict to be delivered to him. (4) If the public was excluded from the trial, the pronouncement of the verdict will always be read at a public session. The Chamber will decide whether and to which extent the public will be excluded during the announcement of the reasons for the verdict. (5) The present persons will hear the reading of the pronouncement of the verdict standing.

Article 345 (1) When it pronounces a verdict for the defendant to five or more years imprisonment, the Chamber will determine detention if the accused was not detained before. (2) When it pronounces a lesser sentence imprisonment under paragraph 1 of this Article, the Chamber may determine a detention under conditions of Article 184, paragraph 1, items 1 and 3 of this Code, and

71 will terminate the detention if the accused is already detained, and the reasons for which it was determined do not longer exist. (3) The Chamber will always terminate the detention and will order the accused to be released if he has been released from the charge or has been announced to be guilty but released from the punishment or has been charged only to a fine penalty, or has been pronounced a court reprimand or a conditional conviction, or due to the calculation of the detention, he has already served the sentence or if the prosecution is denied unless it has been revoked due to the incompetence of the court. (4) On the determination or termination of the detention, after the announcement of the verdict until it becomes legally valid, the provision of paragraph 2 of this Article will be applied. The decision is brought by the Chamber of first degree court (Article 22, paragraph 6). (5) Before the decision is brought which determines or terminates the detention in case of paragraphs 2 and 4 of this Article, the public prosecutor will be heard when the procedure is conducted on his request. (6) If the accused is already detained and the Chamber finds that there are still reasons for which it was determined or there are reasons under paragraphs 1 and 2 of this Article, the Chamber will bring a special decision for the prolonging of the detention. A special decision is also brought by the Chamber when the detention has to be determined or terminated. The appeal against this decision does not keep from execution of the decision. (7) The detention which is determined or prolonged according to the provisions of the previous paragraphs may last, but no longer than the period proscribed in Article 189, paragraph 1 of this Code. (8) When the court pronounces a sentence of imprisonment, the accused who is detained, with the decision by the Chairman of the Chamber may be directed to the institution for serving sentences before the verdict becomes legally valid, if he requests it.

Article 346 (1) After the announcement of the verdict the Chairman of the Chamber will instruct the parties on their right to an appeal as well as on their right to reply on the appeal. (2) If the accused is pronounced a conditional conviction, he will be warned by the Chairman of the Chamber about the significance of the conditional conviction and about the conditions which he must fulfil. (3) The Chairman of the Chamber will warn the parties to inform the court of each changing of their addresses until the final concluding and legal validity of the procedure.

4. Written elaboration and delivery of the verdict Article 347

(1) The verdict which is announced has to be elaborated in writing within eight days after the announcement and with exception when it refers to complex issues, within fifteen days. If the verdict is not elaborated in these periods, the Chairman of the Chamber is obliged to inform the President of the Court of the reasons for which it has not been completed. The President of the Court if necessary will undertake measures the verdict to be elaborated sooner. (2) The verdict is signed by the Chairman of the Chamber and the court clerk. (3) The certified copy of the verdict will be delivered to the prosecutor, and to the accused and the counsel it will be delivered according to Article 116 of this Code. If the accused is detained, the certified copies of the verdict have to be delivered within the periods proscribed in paragraph 1 of this Article. (4) To the accused, to the private prosecutor and to the damaged as a plaintiff an instruction will also be delivered for their right to an appeal. (5) A certified copy of the verdict with instruction for the right to an appeal will be delivered to the damaged by the court if he has a right to an appeal, to the person whose object was confiscated with the verdict as well as to the legal person to whom deprivation of the property interest is pronounced. To the damaged who has no right to an appeal it will be delivered a copy of the verdict in case of Article 57, paragraph 2 of this Code with the instruction on his right to request for a restoring into previous condition. The legally valid verdict will be delivered to the damaged if he requires it.

72 (6) If the court, applying the provisions for a deliberation of a unique punishment for a series of crimes has pronounced a verdict, taking into consideration the verdicts which were brought by other courts, a certified copy of the legally valid verdict will be delivered to those courts.

Article 348 (1) The written verdict must be fully adequate to the verdict which is pronounced. The verdict must have an introduction, pronouncement and an elaboration. (2) The introduction of the verdict consists of: a notification that the verdict is pronounced in the name of the citizens of the Republic of Macedonia, the name of the court, the names of the Chairman of the Chamber, the members of the Chamber and the court clerk, the name of the accused, the crime he is accused of, whether he was present at the trial, the day of the trial and whether it was public, the names of the prosecutor, counsel, defence attorney and the authorised representative who were present at the trial and the day of the announcement of the pronounced verdict. (3) The pronouncement of the verdict consists of the personal details of the accused (Article 205, paragraph 1) and the decision with which the accused is found guilty of the crime he is accused of or with which he is released of his charge of that crime or with which the prosecution is rejected. (4) If the defendant is found guilty, the pronouncement of the verdict has to encompass the necessary data noted in Article 343 of this Code and if the accused is released of his charge or if the accusation is rejected, the pronouncement of the verdict must encompass the description of the crime he is accused of and the decision on the expenses of the criminal procedure and the legal property request, if it has been requested. (5) In case of a series of crimes, in the pronouncement of the verdict the court will insert the certified punishments for each separate crime and then the punishment which is pronounced for the serial crimes. (6) In the elaboration of the verdict the court will present the reasons for each item of the verdict. (7) The court will fully and completely present which facts and for which reasons are considered to be proved or not, giving a special evaluation of the adequacy of the dissenting evidence, for which reasons it has not approved of certain proposals of the parties, for which reasons it has decided the witness or the expert, whose statement i.e. written diagnosis and opinion was read without the agreement of the parties, not to be immediately heard (Article 325, paragraph 2), for which reasons it has decided on the lawful issues and especially on the determination whether there is a crime and a criminal responsibility of the accused and on the application of certain provisions of the Criminal Code on the accused and his crime. (8) If the accused is convicted with a punishment, it will be noted in the elaboration which circumstances the court has taken in consideration during the deliberation of the punishment. The court will particularly elaborate the reasons when it has found that a more severe punishment than the proscribed one is to be pronounced or when it has found that the punishment is to be mitigated or the accused to be released from the punishment or a conditional conviction to be pronounced or that it has to pronounce a security measure or deprivation from a property interest. (9) If the accused is released from his charge in the elaboration will be particularly noted for which reasons under Article 342 of this Code it has been decided. (10) In the elaboration of the verdict which rejects the accusation, the court will not indulge into evaluation of the main issue, but it will limit itself to the reasons for the rejection of the accusation.

Article 349 (1) The errors in the names and numbers, as well as other obvious errors in writing and calculating, the defects in the form and inadequacies in the written verdict with the original will be corrected with a special decision by the Chairman of the Chamber on the request of the parties or ex officio. (2) If there is an inadequacy between the written verdict and its original in view of the data under Article 343, paragraph 1, items 1 to 5 and item 7 of this Code, the decision for correction will be delivered to the persons enlisted in Article 347 of this Code. In that case the period for an appeal against the verdict starts expiring from the day of the delivery of that decision against which a special decision is not allowed.

B. Procedure for judicial remedies

Chapter XXIII

73

REGULAR JUDICIAL REMEDIES

1. Appeal on the verdict of first degree court

a) A right to an appeal

Article 350 (1) Against the first degree verdict the authorised persons may submit an appeal within fifteen days from the day of the delivery of the certified copy of the verdict. (2) An appeal which is submitted in time by the authorised person postpones the execution of the verdict.

Article 351 (1) An appeal may be submitted by the parties, the counsel, the authorised representative of the accused and of the damaged. (2) In favour of the accused an appeal may be also submitted by his marital i.e. illegitimate spouse, his blood relative in first line, his adopted child, the one who has adopted him, his brother, sister and one who has sustained. In that case the period for the appeal starts from the day when to the accused i.e. his counsel is delivered the copy of the verdict. (3) The public prosecutor may appeal on behalf of or against the accused. (4) The damaged may dispute the verdict due to the decision of the court for the criminal procedure expenses, but if the public prosecutor has undertaken the prosecution of the damaged as a plaintiff (Article 59, paragraph 2), the damaged may submit an appeal on the basis of all grounds according to which a verdict can be disputed (Article 354). (5) An appeal may be submitted by the person whose object was confiscated or by the person who was deprived from his property interest gained with the crime, as well as by the legal person who was pronounced deprivation of property interest. (6) The counsel and the persons under paragraph 2 of this Article may submit an appeal without any special authorisation by the accused, but not against his will.

Article 352 (1) The accused may withdraw from his right to an appeal only after the verdict has been delivered to him. The accused may withdraw from his right to an appeal before, but only if the prosecutor and the damaged, when he has the right to an appeal on the basis of all grounds (Article 347, paragraph 4), have withdrawn from the right to an appeal unless according to the verdict the accused should serve a sentence of imprisonment. Until the bringing of the decision of second degree court, the accused may withdraw from the already submitted appeal. The accused may also withdraw from the appeal submitted by his counsel or by the persons included in Article 351, paragraph 2 of this Code. (2) The prosecutor and the damaged may withdraw from the right to an appeal from the moment of the announcement of the verdict to the expiry of the period for an appeal, and they may withdraw from the already submitted appeal until the bringing of the decision of second degree court. (3) The withdraw and the revocation from the appeal cannot be revoked.

b) Contents of the appeal

Article 353 (1) The appeal has to contain:

1) a notification of the verdict against which an appeal is submitted; 2) the grounds for the annulment of the verdict (Article 354); 3) elaboration of the appeal; 4) a proposal the revoked verdict to be fully or partially cancelled or reformulated, and 5) at the end, a signature by the person who submits the appeal.

74 (2) If the appeal is submitted by the accused or by another person under Article 351, paragraph 2 of this Code, and the accused does not have a counsel or if the appeal is submitted by the damaged, the damaged as a plaintiff or the private prosecutor who does not have an authorised representative, and the appeal is not constructed according to provisions of paragraph 1 of this Article, the first degree court will summon the applicant to supplement the appeal within the proscribed period with a written petition request or for the minutes at the court. If the applicant does not reply on the court summons, the court will reject the appeal if it does not contain the data under items 2, 3 and 5, paragraph 1 of this Article and if the appeal does not contain the data under item 1, paragraph 1 of this Article, if it cannot be certified to which verdict it refers, it will be rejected. If the appeal is submitted on behalf on the accused, the court will deliver it to the second degree court, if it can be certified to which verdict it refers, and if it cannot be certified, the court will reject the appeal. (3) If the appeal is submitted by the damaged, damaged as a plaintiff or private prosecutor who has an authorised representative or by the public prosecutor, and the appeal does not contain data under items 2, 3 and 5, paragraph 1 of this Article or the appeal does not contain the data under item 1, paragraph 1 of this Article and it cannot be certified to which verdict it refers, the court will reject the appeal. An appeal with this insufficiencies submitted on behalf of the accused who has a counsel, will be delivered by the court to the second degree court if it can be certified to which verdict it refers and if that cannot be certified, the court will reject the appeal. (4) In the appeal it may be presented new facts and evidence, but the applicant is also obliged to present the reasons for not presenting them before. Recalling to the new facts, the applicant is obliged to present evidence which will prove those facts, and recalling the new evidence he is obliged to present the facts which he wishes to prove with the evidence.

c) Grounds according to which a verdict may be disputed

Article 354 The verdict may be disputed:

1) due to crucial violation of the provisions of the criminal procedure; 2) due to violation of the Criminal Code; 3) due to an incorrect or incomplete factual situation; 4) due to a decision for criminal sanctions, deprivation property interest, criminal procedure

expenses, lawful property requests as well as due to a decision for an announcement of the verdict by the press, radio or television.

Article 355 (1) There is a significant violation of the provisions of the criminal procedure:

1) if the court was improperly constructed or if at the pronouncement of the verdict participated a judge or a lay judge who did not attend the trial or who was by a legally valid decision excluded from the trial;

2) if at the trial participated a judge or a lay judge who had to be excluded (Article 36, items 1 to 5); 3) if the trial is held without the person whose presence at the trial is compulsory according to law; 4) if the public was excluded from the trial against the law; 5) if the court violated the regulations of the criminal procedure on the question whether there is

prosecution by the authorised prosecutor or proposal by the damaged i.e. an approval by the competent body;

6) if the verdict was brought by the court which due to the actual competence could not prosecute the case or if the court rejected the prosecution improperly due to actual incompetence;

7) if the court with its verdict did not resolve the case of the prosecution completely; 8) if the verdict is based on evidence according to which due to the provisions of this Code the

verdict cannot be based unless in view of other evidence it is obvious that even without that evidence the same verdict would be brought;

9) if the prosecution is exceeded (Article 338, paragraph 1); 10) if with the verdict the provision of Article 369 of this Code is violated, and

75 11) if the pronouncement of the verdict is incomprehensible, full of contradiction or contradicted

to the reasons for the verdict or there are no reasons for the verdict or if in the verdict the reasons for the deciding facts are not noted or that reasons are extremely incomprehensible or significantly dissenting or if for the deciding facts there is a significant contradiction between what is noted in the reasons of the verdict for the contents of the corrections or for the minutes of the statements given in the procedure and between the corrections or the minutes themselves. (2) There is a significant violation of the provisions of the criminal procedure if the court during the preparation of the trial or at the course of the trial or during the deliberation of the verdict did not apply or applied improperly a provision of the Code or if at the trial violated the right to the defence which inflicted or could have inflicted the righteous bringing of the verdict.

Article 356 There is a violation of the Criminal Code if the Criminal Code is violated in the following matters:

1) whether the issue for which the accused is prosecuted is a crime; 2) whether there are circumstances which exclude the criminal responsibility; 3) whether there are circumstances which exclude the criminal prosecution and particularly whether

the criminal prosecution has become obsolete or the prosecution is excluded due to amnesty or plead or it has already undergone a legally valid verdict;

4) whether in view of the crime which is the case of the prosecution is applied any law which cannot be applied;

5) whether with a decision for the punishment, probation or court reprimand, i.e. with a decision for the security measurements or for deprivation of private property interest the authorisation of the court according to the law is exceeded, and

6) whether the provisions are violated for calculation of the detention as well as for any deprivation from freedom in connection with the crime and the served sentence.

Article 357 (1) The verdict may be revoked due to an incorrect or incomplete certified factual situation when the court has incorrectly certified or not a deciding fact. (2) There is an incomplete certified factual situation when new facts or new evidence point out to it.

Article 358 (1) The verdict i.e. the decision for a court reprimand may be revoked due to the decision for the punishment, probation and court reprimand when with the decision the lawful authorisation (Article 356, item 5) is not exceeded, but the court has not righteously brought the punishment in view of the circumstances which influence the punishment to be more severe or lesser and due to the fact that the court has applied or has not applied the provisions for mitigation of the punishment, for releasing from the punishment, for probation or for court reprimand, although there have been lawful conditions for that. (2) The decision for the security measure or for deprivation property interest may be revoked if there is not any violation of the law according to Article 356, item 5 of this Code, but the court has improperly brought this decision or has not pronounced a security measure i.e. deprivation property interest, although there are lawful conditions for that. For the same reasons the decision for criminal procedure expenses may be revoked. (3) The decision for lawful property requests as well as the decision for announcement of the verdict by the press, radio or television may be revoked when the court on this questions has brought a decision contrary to the lawful provisions.

d) Procedure on the appeal

Article 359 (1) The appeal is submitted to the court which has pronounced the final legally valid verdict in a sufficient number of copies for the court, for the opposite party and for the counsel for a reply.

76 (2) The appeal which is not due in time (Article 373) and the appeal which is not allowed (Article 374) will be rejected with the decision by the Chairman of the Chamber of first degree court.

Article 360 The first degree court will submit a copy of the appeal to the opposite party (Articles 116 and 117), which within eight days from the day when the party has received the appeal may submit a reply to the appeal to the court. The first degree court will submit to the second degree court the appeal and the reply on the appeal with all records.

Article 361 (1) When the records on the appeal are submitted to the second degree court, the Chairman of the Appeal Chamber appoints a judge- reporter. If it is a crime to be prosecuted on the request of the public prosecutor, the judge- reporter will submit the records to the competent public prosecutor who is obliged to review the records and without delay to return them to the court. (2) Returning the records, the public prosecutor may propose or state that he will make his proposal at the session of the Chamber. (3) When the public prosecutor returns the records, the Chairman of the Chamber will appoint the session of the Chamber. The public prosecutor will be informed of the session of the Chamber. (4) The judge- reporter, if necessary may from the first degree court obtain a report for the violation of the provisions of the criminal procedure, and may by that court or by the investigating judge of the court on whose region the act has to be accomplished or in another way, check the quotations in the appeal in view of the new evidence and new facts, or from other bodies or legal persons obtain necessary reports or records. (5) If the judge who reports certifies that in the records there are minutes and announcements under Article 79 of this Code, he will submit the records to the first degree court before the holding of the session of the Second Degree Chamber, in order the Chairman of the First Degree Chamber to bring a decision for the separation of the records and after the decision has become legally valid, to submit the records in a closed case to the investigating judge for guarding separately from the other records.

Article 362 (1) Of the session of the Chamber will be informed the defendant and his counsel, damaged as a plaintiff or private prosecutor who within the period proscribed for the appeal or reply to the appeal have requested to be informed of the session or have proposed for a trial before the second degree court (Articles 364 to 366). The Chairman of the Chamber or the Chamber may decide, of the session of the Chamber to be also informed the parties when they have not requested it or of the session to be informed the party which has not requested it, if their presence would be useful for the matters to be clarified. (2) If the defendant is detained or is serving his sentence and he has a counsel, the presence of the defendant will be secured only if the Chairman of the Chamber or the Chamber finds it necessary. (3) The session of the Chamber starts with the report by the judge- reporter on the condition of the matter. The Chamber may request from the parties who are present at the session to give necessary explanations in view of the quotations in the appeal. The parties may suggest in order the report to be supplemented certain records to be read and if the Chairman of the Chamber allows it, they may give necessary explanations on their attitudes of the appeal i.e. reply to the appeal, without repetition of the contents of the report. (4) If the parties who are informed do not attend, it does not keep the session of the Chamber to be held. If the defendant has not informed the court of his new address, the session of the Chamber may be held although the defendant has not been informed of the session. (5) On the session of the Chamber where the parties are present, the public may be excluded only under certain conditions in this Code (Articles 280 to 282). (6) The minutes for the session of the Chamber is attached to the records of the first degree and second degree court. (7) The decisions under Articles 373 and 374 of this Code may be brought without the parties to be informed of the session of the Chamber.

77 Article 363

(1) The second degree court brings a decision at the session of the Chamber or on the basis of a held trial. (2) Whether the trial will be held decides the second degree court at the session of the Chamber.

Article 364 (1) The trial before the second degree court will be held only if it is necessary new evidence to be presented due to an incorrect or incomplete certified factual situation or evidence to be presented although presented before although there are justified reasons the case not to be returned to the first degree court for a re- trial. (2) At the trial before the second degree court are summoned the defendant and his counsel, the prosecutor, the damaged, the defence attorneys and legal representatives of the damaged, damaged as a plaintiff and private prosecutor, as well as the witnesses and experts for whom the court will decide to be heard. (3) If the defendant is detained, the Chairman of the Chamber of the second degree court will undertake everything necessary the defendant to be brought at the trial. (4) If the damaged as a plaintiff or the private prosecutor does not attend the trial before the second degree court, it will not be applied the provision of Article 282, paragraph 2 of this Code.

Article 365 (1) The trial before the second degree court is initiated by the report of the reporter, who presents the situation of the matters, without giving his own opinion whether the appeal is justified. (2) The verdict or part of it to which the appeal refers and if necessary the minutes for the trial will be read on a proposal or ex officio. (3) Afterwards the applicant will be called to elaborate the appeal which will be followed by his opponent to reply. The defendant and his counsel are always the last who have the final word. (4) The parties at the trial may present new evidence and facts. (5) In view of the outcome of the trial, the prosecutor may withdraw from the prosecution act fully or partly or may alter the prosecution act on behalf of the accused. If the public prosecutor has fully withdrawn from the prosecution act, the damaged has the rights under Article 57 of this Code.

Article 366 If it is not certified otherwise in the previous Articles, the provisions for the trial before the first degree court will be accordingly applied in the procedure before the second degree court.

e) Limits on the review of the first degree verdict

Article 367 (1) The second degree court reviews the verdict in the part in which it has been revoked by the appeal, but it must always ex officio examine:

1) whether there is any violation of the provisions of the criminal procedure under Article 355, paragraph 1, items 1, 5, 6, 8 to 11 of this Code and whether contrary to the provisions of this Code the trial has been held in absence of the defendant and in case of a compulsory defence in absence of the counsel of the defendant, and

2) whether the Criminal Code is violated (Article 356) against the defendant. (2) If the appeal on behalf of the defendant does not consist the data under Article 353, paragraph 1, items 2 and 3 of this Code, the second degree court will limit the review on the violations of items 1 and 2, paragraph 1 of this Article, as well as on the review of the decision for the punishment, the security measures and the deprivation property interest (Article 358).

Article 368 On violation of the Code in Article 355, paragraph 1, item 2 of this Code, the applicant may refer in the appeal only if he could not have presented the violation at the course of the trial or he has presented it, but the first degree court has not taken it in consideration.

78 Article 369

If an appeal is submitted only on behalf of the defendant, the verdict must not be altered against him in reference of the judicial evaluation of the crime and of the criminal sanction.

Article 370 The appeal due to an incorrect or incomplete certified factual situation or due to violation of the Criminal Code announced on behalf of the accused contains in itself an appeal due to the decision for the criminal sanction and for the deprivation property interest (Article 358).

Article 371 If the second degree court in reference of the appeal of whoever of the defendants, certifies that the reasons for which it has brought the decision on behalf of the defendant are also on behalf of some of the other defendants who has not appealed or has not appealed on the same matter, the court will ex officio proceed as if there is such an appeal.

f) Decisions of the second degree court on an appeal

Article 372 (1) The second degree court may at the session of the Chamber or on the basis of a held trial reject the appeal as undue or as not allowed or reject the appeal as unjustified and certify the verdict of the court of first degree, or terminate the verdict and direct the case to the first degree court for a re- trial and for another decision or alter the first degree verdict. (2) On all appeals against the same verdict, the second degree court decides with one decision.

Article 373 The appeal will be rejected with a decision as undue if it is certified that it has been submitted after the proscribed period.

Article 374 The appeal will be rejected with a decision as not allowed if it is certified that the appeal has been submitted by a person who is not authorised to submit an appeal or by a person who has withdrawn from the appeal or if the withdraw from the appeal is certified or if after the withdraw an appeal is submitted again or if according to the law the appeal is not allowed.

Article 375 The second degree court with the verdict will reject the appeal as unjustified and will confirm the verdict of the court of first degree when the court certifies that there are no reasons the verdict to be rejected nor violations of the Code under Article 367, paragraph 1 of this Code.

Article 376 (1) The second degree court, approving of the appeal will either ex officio with a decision cancel the first degree verdict and return the case to a re- trial if it certifies that there is a crucial violation of the provisions of the criminal procedure apart from the cases in Article 377, paragraph 1 of this Code, or if the court considers that due to an incorrect or incomplete certified factual situation a new trial before the first degree court is to be ordered. (2) The second degree court may order a new trial before the first degree court to be held before a completely altered Chamber. (3) The second degree court may also partially cancel the first degree verdict if certain parts of the verdict may be separated without any harm to the righteous bringing of the verdict. (4) If the accused is detained, the second degree court will examine whether there are still reasons for detention and will bring a decision for prolonging or termination of the detention. Against the decision an appeal is not allowed.

79 Article 377

(1) The second degree court accepting the appeal or ex officio with the verdict will alter the first degree verdict if it certifies that the deciding facts in the first degree verdict are righteously determined and that in view of the certified factual situation after the righteous application of the Code, a different verdict is to be brought, and according to the situations of the matters also in case of violations of Article 355, paragraph 1, items 5, 9 and 10 of this Code. (2) If the second degree court finds that there are lawful conditions a court reprimand to be pronounced, the first degree verdict will be altered with a decision and a court reprimand will be pronounced. (3) If due to the alternation of the first degree verdict new conditions have been derived a detention to be determined i.e. terminated on the basis of Article 345, paragraphs 1, 3 and 7 of this Code, the second degree court will bring a special decision for that against which an appeal is not allowed.

Article 378 (1) In the elaboration of the verdict i.e. decision, the second degree court is to evaluate the quotations of the appeal and present the violations of the Code which it has taken into consideration ex officio. (2) When the first degree verdict is terminated due to crucial violations of the provisions of criminal procedure, in the elaboration it is necessary to be stated which provisions have been violated and what have the violations been composed of (Article 355). (3) When the first degree verdict is terminated due to an incorrect or incomplete certified factual situation, it will be noted what the shortcomings are composed of in the certification of the factual situation i.e. why the new evidence and facts are important and significant for a righteous decision to be brought.

Article 379 (1) The second degree court will return all records to the first degree court with a sufficient number of certified copies of its decision to be submitted to the parties and to the other interested persons. (2) If the accused is detained, the second degree court is obliged to submit its decision with the records to the first degree court at the latest within 45 days from the day when it has received the records from that court.

Article 380 (1) The first degree court to which the case is directed will take into consideration the previous prosecution act. If the verdict of the first degree court is partially terminated, the first degree court will take in consideration only that part of the prosecution which refers to the terminated part of the verdict. (2) At the new trial the parties may underline new facts and present new evidence. (3) The first degree court is obliged to accomplish all procedural acts and to deal with all disputing matters to which the second degree court has pointed out in its decision. (4) At the pronouncement of the new verdict, the first degree court is bound with the prohibition proscribed in Article 369 of this Code. (5) If the defendant is detained, the Chamber of the first degree court is obliged to proceed according to Article 189, paragraph 2 of this Code.

2. Appeal to the verdict of second degree court Article 381

(1) Against the verdict of the second degree court is allowed an appeal to the court which decides in third degree only in the following cases:

1) if the second degree court has pronounced a sentence to life imprisonment, or if it has confirmed the verdict of the first degree court with which such a sentence is pronounced;

2) if the second degree court on the basis of the held trial has confirmed the factual situation differently than the first degree court and on the basis of such confirmed factual situation has based its verdict, and

3) if the second degree court has altered the verdict of the first degree court with which the defendant is released from the charge and has pronounced a verdict with which the defendant is found guilty.

80 (2) On the appeal against the second degree verdict decides the court of third degree at the session of the Chamber according to the provisions valid for the procedure in the second degree. Before this court a trial cannot be held. (3) The provisions of Article 371 of this Code will be also applied on the other defendant who has not had the right to an appeal against the second degree verdict.

3. Appeal on the decision

Article 382 (1) Against the decision of the investigating judge and against the other decisions of the court brought in first degree, the parties and the persons whose rights are violated may submit an appeal always when with this Code it is not exclusively determined that a special appeal is not allowed. (2) Against the decision of the Chamber brought before and during the investigation, a special appeal is not allowed, if with this Code it is not determined differently. When with this Code it is determined that a special appeal is not allowed, the decision may be revoked with an appeal on the verdict. (3) The decisions brought due to the preparation of the trial and the verdicts may be revoked only with an appeal on the verdict.

Article 383 (1) An appeal is submitted to the court which has brought the decision. (2) If it is not determined differently with this Code, an appeal on the decision is submitted within three days from the day of the delivery of the decision.

Article 384 If it is not determined differently with this Code, by submitting the appeal on the decision the execution of the decision is cancelled against which the appeal has been submitted.

Article 385 (1) On the appeal against the decision of the first degree court decides the second degree court at the session of the Chamber, if it is not determined differently with this Code. (2) If it is not determined differently with this Code, on the appeal against the decision of the investigating judge decides the Chamber of the same court (Article 22, paragraph 6). (3) Deciding on the appeal, with a decision the court may reject the appeal as not submitted on time or as not allowed, may reject it as unjustified or may accept the appeal and alter the decision or cancel it, if it is necessary the case to be directed to be decided again. (4) Reviewing the appeal the court will ex officio consider whether for the reaching of the decision the first degree court has been actually competent i.e. whether the decision has been reached by an authorised body.

Article 386 (1) On the bases of the procedure on the appeal to the decision will be accordingly applied the provisions of Articles 351, 353, 359, 361, paragraphs 1, 4 and 5, Articles 369 and 371 of this Code. (2) If an appeal is submitted against the decision under Article 478 of this Code, of the session of the Chamber is informed the public prosecutor and the other persons under the conditions in Article 362 of this Code.

Article 387 If it is not determined differently with this Code, the provisions of Articles 382 and 386 of this Code will also be accordingly applied on the other decisions which are brought according to this Code.

Chapter XXIV

EXTRAORDINARY JUDICIAL REMEDIES

81

1. Repetition of the criminal procedure

Article 388 The criminal procedure which is finished with a legally valid decision or with a legally valid verdict may be repeated on the request of the authorised person only in cases and under conditions anticipated with this Code.

Article 389 (1) The legally valid verdict may be altered without repetition of the criminal procedure:

1) if in two or more verdicts against the same convict are pronounced several legally valid sentences and the provisions for deliberation of a unique sentence for serial crimes are not applied;

2) if during the pronouncement of the unique sentence by application of the provisions for serial crimes is considered as a certified sentence which is already encompassed within the sentence pronounced according to the provisions for serial crimes in a previous verdict, and

3) if the legally valid verdict with which for several crimes it is pronounced a unique sentence could not be executed in one part due to amnesty, plead or for other reasons. (2) In case of item 1, paragraph 1 of this Article the court with the new verdict alters the previous verdict in view of the decisions for the sentence and pronounces a unique sentence. To bring the new verdict is competent the first degree court which prosecutes the case which has been pronounced the most severe sentence and for similar sentences- the court which pronounces the most severe sentence, and if the sentences are equivalent- the court which is the last to pronounce the sentence. (3) In case of item 2, paragraph 1 of this Article the court will alter its verdict which has incorrectly pronounced a unique sentence which was already encompassed in a previous verdict. (4) In case of item 3, paragraph 1 of this Article the first degree court will alter the previous verdict in view of the sentence and will pronounce a new sentence or will certify how much of the sentence is to be executed, which has been pronounced with the previous verdict. (5) The new verdict is brought by the court at the session of the Chamber on the proposal of the public prosecutor or the convict and after the hearing of the opposite party. (6) If in case of items 1 and 2, paragraph 1 of this Article at the pronouncement of the sentence are also considered the verdicts of the other courts, a certified copy of the new legally valid verdict will be submitted to those courts.

Article 390 If the request for investigation is refused with a legally valid decision because there has not been a request by the authorised prosecutor or because there has not been a necessary proposal or approval or for the same reasons the criminal procedure with a legally valid decision is interrupted, or the prosecution is rejected or with a legally valid decision the prosecution is rejected or if the procedure with a legally valid decision is interrupted because the criminal after the crime has become liable to a permanent mental illness, on the request of the authorised prosecutor the procedure will continue as soon as the reasons for which the above mentioned decisions have been brought, cease to exist.

Article 391 (1) If apart from the cases under Article 390 of this Code the request for investigation is rejected with a legally valid decision or if the criminal procedure is interrupted with a legally valid decision during the investigation or before the trial or if the prosecution is rejected, on the request of the authorised prosecutor, repetition of the criminal procedure may be allowed (Article 395, paragraph 3) if new evidence are submitted on the basis of which the court may be convinced that there are new conditions for re- initiation of the criminal procedure. (2) The criminal procedure interrupted by a legally valid decision until the beginning of the trial may be repeated when the public prosecutor has withdrawn from the prosecution and the damaged has not undertaken the prosecution, if it may be confirmed that the reasons for the withdraw is a crime abuse of the

82 official post by the public prosecutor. In view of the proving of the crime by the public prosecutor will be applied the provisions of Article 392, paragraph 2 of this Code. (3) If the procedure is interrupted because of the fact that the damaged as a plaintiff has withdrawn from the prosecution or because according to the law he is considered to have withdrawn, the damaged as a plaintiff cannot request repetition of the procedure.

Article 392 (1) The criminal procedure followed by a legally valid verdict may be repeated on behalf of the convict:

1) if it is proved that the verdict is based on false identification or on false statement by the witness, expert or interpreter;

2) if it is proved that the verdict has been pronounced due to a crime by the judge, lay judge or the person who has conducted the investigating acts;

3) if the verdict with which the charge is rejected is brought due to the fact that the public prosecutor has withdrawn from the prosecution, and it is proved that the withdrawal is a result of a crime- abuse of the official post of the public prosecutor;

4) if new facts or new evidence are submitted which for themselves or in connection with the previous evidence are liable to cause the person, who has been convicted before to be released or to cause conviction on basis of a milder Criminal Code;

5) if a person of the same crime is convicted several times or if several persons are convicted of the same crime which could have been committed only by one of the persons or some of them, and

6) if in case of a conviction for a extended crime or for another crime which according to the law encompasses several same or several various acts are presented new facts or new evidence which point out that the convict did not commit the crime which was encompassed with the verdict, and the existence of this facts would be crucial for the deliberation of the punishment. (2) In cases of items 1 and 2, paragraph 1 of this Article it must be proved with a legally valid verdict that the mentioned persons are found guilty of the referring crimes. If the procedure against these persons cannot be carried out due to the fact that they are deceased or the fact that there are circumstances which exclude the criminal prosecution, the facts of items 1 to 3, paragraph 1 of this Article may be certified with other evidence.

Article 393 (1) A request for a repetition of the criminal procedure may be submitted by the parties and the counsel, and after the death of the convict a request may be submitted by the public prosecutor if the procedure has been conducted on his request or the persons under Article 351, paragraph 2 of this Code. (2) A request for repetition of the criminal procedure may be also submitted after the convict has served the punishment without regard on obsolescence, amnesty or plead. (3) If the court which would be competent for the decision for repetition of the criminal procedure (Article 394) learns that there are reasons for repetition of the criminal procedure will inform the convict of that, i.e. the person who is authorised to submit the request.

Article 394 (1) On the request for repetition of the criminal procedure decides the Chamber (Article 22, paragraph 6) of the court which has judged in the first degree in the previous procedure. (2) In the request it must be noted on which lawful ground it is requested for repetition and with which evidence the facts on which the request are based are proved. If the request does not contain these data, the court will call the person who submits the request within the proscribed period to supplement the request. (3) During the decision for the request at the Chamber will not participate the judge who has participated in the reaching of the verdict in the previous procedure.

Article 395 (1) The court with a decision will reject the request if on the bases of the request itself and the records of the previous procedure certifies that the request has been submitted by an unauthorised person or that there are no lawful reasons for repetition of the procedure, or that the facts and evidence upon which the request

83 is based have been already presented in the previous request for repetition of the procedure which has been rejected with a legally valid decision by the court, or that the facts and evidence are obviously not liable on their basis to be allowed repetition or that the one who submits has not acted according to Article 394, paragraph 2 of this Code. (2) If the court does not reject the request, it will be submitted a copy of the request to the opposite party which has a right within eight days to reply to the request. When the court receives the reply on the request or when the period for a reply expires, the Chairman of the Chamber will determine facts to be reviewed and evidence to be obtained which are noted in the request and in the reply on the request. (3) After the inspections the court with a decision will immediately decide on the request for repetition of the procedure according to Article 390 of this Code. In other cases when crimes are prosecuted ex officio, the Chairman of the Chamber will determine the records to be sent to the public prosecutor who will return the records with his opinion without any delay.

Article 396 (1) When the public prosecutor returns the records, if the court does not determine the inspection to be supplemented on basis of the results from it, it will accept the request and will allow repetition of the criminal procedure or it will reject the request if the new evidence are not sufficient for the repetition of the criminal procedure. (2) If the court finds that the reasons for which it has allowed repetition of the procedure also exist for someone else of the other accused persons who has not requested for a repetition of the procedure, it will proceed ex officio as if such a request exists. (3) In the decision which allows repetition of the criminal procedure, the court will immediately determine a new trial or the case to be restored in the condition of investigation, i.e. an investigation to be conducted if it has not been conducted before. (4) In view of the presented evidence, if the court considers that the convict in the repeated procedure may be convicted of such a punishment that with the calculation of the already served sentence he should be released or that he may be released of the charge or that the charge may be rejected, it will determine the execution of the verdict to be postponed i.e. interrupted. (5) When the decision which allows repetition of the criminal procedure becomes legally valid, the execution of the punishment will be interrupted, but on the request of the public prosecutor the court will determine detention if there are conditions under Article 184 of this Code.

Article 397 (1) For the new procedure conducted on the basis of the decision which allows repetition of the criminal procedure are valid the same provisions which have been valid for the first procedure. In the new procedure the court is not bound to the decisions brought in the previous procedure. (2) If the new procedure is interrupted to the beginning of the trial, the court with a decision for interruption of the procedure will also terminate the previous verdict. (3) When in the new procedure the court brings the verdict, it will pronounce that the previous verdict is partially or fully no longer legally valid or is still legally valid. In the sentence determined with the new verdict, the court will calculate the served sentence for the accused, and if the repetition is determined only for one of the crimes of which the accused was convicted, the court will pronounce a new unique sentence according to the provisions of the Criminal Code. (4) In the new procedure the court is bound to the prohibition proscribed in Article 364 of this Code.

Article 398 (1) The criminal procedure in which anyone is convicted in his absence (Article 292), and there is an opportunity to be judged in his presence again, it will be repeated out of the conditions in Article 392 of this Code, if the convict or his counsel submits a request for repetition of the procedure within the period of one year from the day when the convict was pronounced the verdict of which he was pronounced in his absence. (2) In the decision which allows repetition of the criminal procedure according to provision of paragraph 1 of this Article, the court will determine the convict to be delivered the prosecution act if it has not been

84 delivered before and may also determine the case to be restored in the condition of investigation, i.e. investigation to be conducted if it has not been conducted before.

2. Extraordinary mitigation of the sentence

Article 399 Mitigation of the legally valid pronounced sentence is allowed when after the legally valid verdict appear circumstances which have not been present during the pronouncement of the verdict or the court has not been aware of the existing circumstances and they would have obviously pointed to a lesser sentence.

Article 400 (1) A request for extraordinary mitigation of the sentence may submit the public prosecutor if the procedure has been conducted on his request, the convict and his counsel, as well as the persons who are authorised to submit an appeal against the verdict on behalf of the accused (Article 351). (2) The request for extraordinary mitigation of the sentence does not keep from execution of the sentence.

Article 401 (1) On the request for extraordinary mitigation of the sentence decides the Supreme Court of the Republic of Macedonia. (2) The request for extraordinary mitigation of the sentence is submitted to the court which has brought the verdict in first degree. (3) The Chairman of the Chamber of the first degree court will reject the request which is submitted by a person who is not authorised to submit the request. (4) The first degree court will inspect whether there are reasons for mitigation and after the hearing of the public prosecutor, if the procedure has been conducted on his request, the records with its elaborate proposal will be directed by the first degree court to the Supreme Court of the Republic of Macedonia. (5) If the crime in question for which the procedure has been conducted on the request of the public prosecutor, before the bringing of the decision, the Supreme Court of the Republic of Macedonia will submit the records to the Public Prosecutor of the Republic of Macedonia. The Public Prosecutor of the Republic of Macedonia may submit a written proposal to the Supreme Court of the Republic of Macedonia. (6) The Supreme Court of the Republic of Macedonia will reject the request if it finds that the lawful conditions for extraordinary mitigation of the sentence are not fulfilled. If it accepts the request, the Supreme Court of the Republic of Macedonia with a decision will alter the legally valid verdict in view of the decision for the sentence.

Article 402 The court will revoke the decision with which it has adopted the request for extraordinary mitigation of the sentence, if it is proved (Article 392, paragraph 1) that the decision is based on false identification or false statement by the witness or the expert.

3. Request for protection of legality

Article 403 Against the legally valid decisions by the court and against the court procedure before the legally valid decisions, the Public Prosecutor of the Republic of Macedonia may initiate a request for protection of legality, if the Code has been violated.

Article 404 On the request for protection of the legality decides the Supreme Court of the Republic of Macedonia.

Article 405 (1) For the request for protection of the legality decides the court at a session.

85 (2) Before the case is presented for a decision, the judge assigned to be the reporter, if it is necessary may obtain announcements for the violations of the law. (3) The public prosecutor will always be informed of the session.

Article 406 (1) At the course of the decision for the request for protection of legality, the court will limit itself only to the inspections of the violations of the Code to which the one who submits the request refers. (2) If the court finds that the reasons for which it has brought the decision on behalf of the convict also exist for some of the other accused persons in view of the person who has not submitted the request for protection of the legality, then the court will act ex officio as if such a request exists. (3) If the request for protection of legality is initiated on behalf of the convict, while bringing the decision the court is bound to the prohibition under Article 369 of this Code.

Article 407 The court with the verdict will reject the request for protection of legality as unjustified if it certifies that there is not any violation of the Code to which the public prosecutor refers in his request.

Article 408 (1) When the court confirms that the request for protection of legality is justified, it will bring a verdict with which, according to the nature of the violation will either alter the legally valid decision or will cancel fully or partially the decisions of the first degree court and of the superior court or only the decision of the superior court and will return the case for another decision or trial to the first degree court or superior court, or will only limit itself to determine the violation of the Code. (2) If the request for protection of the legality is initiated against the accused and the court will find it to be justified, it will only certify that there is violation of the Code, not considering the legally valid decision. (3) According to the provisions of this Code if the second degree court was not competent to eliminate the violation of the Code, which is carried out in the first degree decision or in the procedure before it and if the court decides on the request for protection of the legality initiated on behalf of the accused, will find that the request is justified and that due to the elimination of the committed violation of the Code, the first degree decision should be either cancelled or altered, the court will either cancel or alter the second degree decision although with it the Code is not violated.

Article 409 If during the decision for the request for protection of the legality appears significant suspicion for the truthfulness of the deciding facts certified in the decision against which a request is initiated and because of which it is not possible to be decided on the request for protection of legality, with the verdict with which it decides on the request for protection of legality, the court will cancel that decision and will order a new trial to be held before the same or before another competent first degree court.

Article 410 (1) If the legally valid verdict is terminated and the case is restored to a repeated trial, for its basis it will be considered the previous prosecution act or the part which refers to the terminated part of the verdict. (2) The court is obliged to carry out all procedural acts and to dispute the matters which were pointed out by the Supreme Court of the Republic of Macedonia in its decision. (3) Before the first degree, i.e. the second degree court the parties may present new facts and submit new evidence. (4) During the reaching of the new decision, the court is bound to the prohibition proscribed in Article 369 of this Code. (5) If apart from the decision of the lower court is also cancelled the decision of the higher court, the case is directed to the lower court by the higher court.

4. Request for extraordinary review of the legally valid verdict

Article 411

86 (1) The accused who is convicted with a legally valid sentence of imprisonment or juvenile detention may submit a request for extraordinary review of the legally valid verdict due to violation of the Code in cases anticipated with this Code. (2) A request for extraordinary review of the legally valid verdict is submitted within one month from the day when the accused has received the legally valid verdict. (3) The accused who has not used a regular judicial remedy against the verdict cannot submit a request for extraordinary review of the legally valid verdict unless with the verdict of the second degree court instead of releasing from the sentence, court reprimand, probation or fine penalty is pronounced sentence of imprisonment, i.e. instead of an educational measurement- a sentence of juvenile detention. (4) A request for extraordinary review of the legally valid verdict cannot be submitted against the verdict of the Supreme Court of the Republic of Macedonia.

Article 412 On the request for extraordinary review of the legally valid verdict decides the Supreme Court of the Republic of Macedonia.

Article 413 The request for extraordinary review of the legally valid verdict may be submitted:

1) due to violation of the Criminal Code against the accused under Article 356, items 1 to 4 of this Code or due to violation of item 5 of this Article if the exceeding of the authorisation refers to the decision for the sentence, security measure or deprivation property interest;

2) due to violation of the provisions of the criminal procedure under Article 355, paragraph 1, items 1, 5, 8, 9 or 10 of this Code, and

3) due to violation of the right of the accused to a defence at the trial or due to violation of the provisions of criminal procedure in the appealing procedure, if the violation has influenced the reaching of the legally valid verdict.

Article 414 (1) A request for extraordinary review of the legally valid verdict may be submitted by the convict and his counsel. (2) The request for extraordinary review of the legally valid verdict is submitted to the court which has brought the verdict of first degree. (3) The request which is not submitted on time or is submitted by an unauthorised person or is submitted in case of a conviction of a criminal sanction on which a request cannot be submitted (Article 411, paragraph 1) or according to the law is not allowed (Article 411, paragraphs 3 and 4), will be rejected with a decision by the Chairman of the Chamber of the first degree court or by the court competent for the decision on the request. (4) The competent court for decision on the request which has delivered a copy of the request with the records to the prosecutor who proceeds before that court, may within the period of 15 days from the day of the reception of the delivery reply to the request. (5) The first degree court or the court competent for the decision on the request, in view of the contents of the request may determine to be postponed i.e. interrupted the execution of the legally valid verdict.

Article 415 In view of the request for extraordinary review of the legally valid verdict will be accordingly applied the provisions of Article 405, paragraphs 1 and 2, Articles 406, 407, 408, paragraphs 1 and 2 and Articles 409 and 411 of this Code. During the application of Article 411, paragraph 1 of this Code the court cannot limit itself only to certify the violation of the Code and the provision under paragraph 2 of this Article will be applied only for the part for the pronouncement of the sentence.

D. Special provisions for a brief procedure for pronouncement of court reprimand and for the procedure against minors

87 Chapter XXV

BRIEF PROCEDURE

Article 416 In the procedure before the court which prosecutes in first degree for crimes for which as a main punishment it is proscribed a fine penalty or a sentence to three years, the provisions of Articles 417 to 430 of this Code will be applied, and if with this provisions it is not determined differently, the other provisions of this Code will be accordingly applied.

88 Article 417

(1) A criminal procedure is initiated on the basis of the prosecution proposal by the public prosecutor i.e. the damaged as a plaintiff or on the basis of a private charge. (2) The public prosecutor may submit a prosecution proposal on the basis of the criminal charge itself. (3) The prosecution proposal and the private charge are submitted in the necessary number of copies to the court and to the accused.

Article 418 (1) Before submitting the prosecution proposal, the public prosecutor may propose the judge to initiate particular investigating acts. If the judge agrees with the proposal, he will initiate the investigating acts and then he will direct all the records to the prosecutor. The investigating acts are conducted in the shortest and briefest possible time. (2) If the judge does not agree with the proposal for initiation of the investigating acts, he will inform the public prosecutor of that. (3) When in cases under paragraphs 1 and 2 of this Article the public prosecutor receives the records i.e. announcement by the judge, he may decide to submit a prosecution proposal or decide to reject the criminal charge.

Article 419 (1) Detention may be determined against a person for whom there is a justified suspicion that he has committed crime:

1) if he is a fugitive or if his identity cannot be detected or if there are other circumstances which obviously point out to the danger of absconding, and 2) if it is a crime against the public order or morality for which a sentence of three years may be

pronounced, and there are special circumstances which justify the fear that the accused will repeat the crime or that he will commit the crime with which he threatens. (2) Before the prosecution proposal is submitted, the detention may last only for as long as it is necessary the investigating acts to be conducted, but no longer than eight days. On the appeal against this decision for detention decides the Chamber (Article 22, paragraph 6). (3) In view of the detention from the submitting of the prosecution proposal to the adjourning of the trial are accordingly applied the provisions of Article 191 of this Code with the difference that the Chamber is obliged to check each month whether there are reasons for detention. (4) When the accused is detained, the court is obliged to proceed with special urgency.

Article 420 (1) If the criminal charge is brought by the damaged, and within one month after the reception of the charge the public prosecutor does not submit a prosecution proposal nor he informs the damaged that he has rejected the charge, the damaged has a right as a prosecutor to undertake the prosecution by submitting the prosecution proposal to the court. (2) If in case of paragraph 1 of this Article the damaged withdraws from the prosecution or by the law he is considered to have withdrawn from the prosecution, without reference to the conditions proscribed for the repetition of the procedure, the public prosecutor may initiate the procedure again if he has not rejected the charge of the damaged.

Article 421 (1) The prosecution proposal i.e. private charge has to contain: the name of the accused with personal details if they are known, a brief description of the crime, the assignment of the court before which the trial is to be held, a proposal which evidence are to be presented at the trial and a proposal the accused to be found guilty and convicted according to the law. (2) In the prosecution proposal it may be proposed the accused to be detained. If the accused is already detained or was detained during the initiation of the investigating acts, it will be notified in the prosecution proposal how long he has been or was detained.

89 Article 422

(1) When the court receives the prosecution proposal or the private charge, the judge will previously certify whether the court is competent, whether particular investigating acts are to be initiated or the already conducted investigating acts to be supplemented and whether there are conditions the prosecution proposal i.e. the private charge to be rejected. (2) If the judge does not bring any of the decisions under paragraph 1 of this Article, he will immediately assign a trial. (3) If the judge considers that certain investigating acts are to be conducted, he will conduct them himself.

Article 423 (1) If the judge finds that another court is competent for the prosecution, he will leave the case to that court after the decision becomes legally valid. (2) After the assigning of the trial, the court may not ex officio be announced incompetent.

Article 424 (1) The judge will reject the prosecution proposal or the private charge if he finds that there are reasons for interruption of the procedure under Article 262, items 1 to 3 of this Code, and if certain investigating acts are conducted- for the reason under item 4 of the same Article. (2) The decision, with a brief elaboration is delivered to the public prosecutor, to the damaged as a plaintiff or to the private prosecutor, as well as to the accused.

Article 425 (1) The judge summons at the trial the defendant and his counsel, the prosecutor, the damaged and their defence attorneys and legal representatives, the witnesses, the experts and the interpreter and if necessary he will obtain the material which is to serve as evidence at the trial. (2) In the court summons for the accused it will be noted that he may attend the trial with evidence at his defence, or that he may announce the evidence in time to the court so as the court may obtain them at the trial. In the court summons the accused will be warned that the trial will be held at his absence if there are lawful conditions for that (Article 428, paragraph 4). Within the court summons to the accused it will be also delivered a copy of the prosecution proposal i.e. the private charge and he will be instructed that he has a right to a counsel, but he will be also instructed that in case when the defence is not compulsory, due to the fact that the counsel does not attend the trial or obtaining the counsel at the trial, the trial does not necessarily have to be postponed. (3) The court summons to the accused has to be delivered so as between the delivery of the court summons and the day of the trial there is a sufficient time for preparation of the defence which is at least three days. By the agreement of the accused this period may be shortened.

Article 426 The trial is held at the premises of the court. In emergencies, particularly when inspection is to be conducted or when it is in the interest of an easier conduct of the procedure for evidence, on the approval of the President of the Court the trial may also be determined to be held at the place where the crime has been committed or where the inspection is to be conducted, if these localities are on the region of that court.

Article 427 An objection to the local competence may be submitted at the latest by the beginning of the trial.

Article 428 (1) The trial will be also held if the summoned public prosecutor does not come. In that case the damaged has a right to represent the prosecution in the limitations of the prosecution proposal at the trial. (2) The trial will be held if the summoned damaged as a plaintiff does not come. (3) The trial may be held if the private prosecutor does not come whose residence is out of the region of the court by which the private charge is submitted, if he has proposed the trial to be held in his absence.

90 (4) If the accused does not attend the trial although he has been summoned or the court summons could not have been handed to him because the accused has not informed the court of his new address or residence, the court may decide the trial to be held in his absence but only under the condition that his presence is not necessary and that he has been examined before.

Article 429 (1) The trial begins with the announcement of the main contents of the prosecution proposal or of the private charge. The initiated trial will adjourn without interruptions, if it is possible. (2) If during the trial the judge finds that the facts upon which the prosecution is based point out to the crime for whose prosecution a Chamber is competent, the Chamber will be founded and the trial will commence from the beginning. (3) After the trial is adjourned, the court will immediately pronounce the verdict and will announce it with its crucial reasons. The verdict must be constructed in a written form within a period of eight days from the day of its announcement. (4) Against the verdict an appeal may be submitted within eight days from the day of the delivery of the copy of the verdict. (5) The parties and the damaged may withdraw from their right to an appeal immediately after the announcement of the verdict. In such a case, the copy of the verdict will be delivered to the party and to the damaged only if they request it. If both parties and the damaged, after the announcement of the verdict have withdrawn from the right to an appeal and if no one of them has requested a delivery of the verdict, the written verdict needs not contain an elaboration. (6) The provisions of Article 345 of this Code will be also accordingly applied in view of the termination of the detention after the pronouncement of the verdict. (7) When in the verdict the court pronounces a sentence of imprisonment, it may determine the accused to be detained i.e. to remain in detention, if there are reasons under Article 419, paragraph 1 of this Code. In such a case, the detention may last until the verdict becomes legally valid, but at the latest until the sentence pronounced by the first degree court for the accused expires. (8) If the public prosecutor did not attend the trial (Article 428, paragraph 1), the damaged has a right as a prosecutor to submit an appeal against the verdict without reference whether the public prosecutor has appealed.

Article 430 (1) Before the assignment of the trial for crimes in the competence of an individual judge for which they are prosecuted on a private charge, the individual judge may call only the private prosecutor and the accused on a certain day to come to the court due to previous clarification of the matters, if he considers that it would be appropriate for a faster completion of the procedure. For the accused with the court summons is also enclosed a copy of the private charge. (2) If the parties do not reconcile until the withdrawal of the private charge, the judge will obtain statements from the parties and will summon them to make their own proposals in view of the collection of evidence. (3) If the individual judge does not find that there are reasons for rejection of the charge, he will bring a decision which evidence will be presented at the trial and according to the regulation, will immediately assign the trial and he will announce it to the parties. (4) If the individual judge considers that collecting evidence is not important and there are no other reasons for a special assignment of a trial, he may immediately open the trial and upon the presented evidence before the court, bring a decision on a private charge. Of this will particularly be warned the private prosecutor and the accused at the delivery of the summons. (5) If the private prosecutor does not reply to the summons under paragraph 1 of this Article is valid and applicable the provision of Article 54 of this Code. (6) In case the accused does not attend the trial and if the judge decides to open the trial, the provision of Article 428, paragraph 4 of this Code will be applied.

Article 431

91 (1) When the second degree court decides on an appeal against the verdict of the first degree court brought in a brief procedure, of the session of the Chamber of the second degree court will be informed both parties only if the Chairman of the Chamber or the Chamber finds that the presence of the parties would be useful for the clarification of the matters. (2) If it is a crime when the procedure is conducted on the request of the public prosecutor, before the session of the Chamber the Chairman of the Chamber will deliver the records to the public prosecutor who may submit a written proposal in the period of eight days.

Chapter XXVI

SPECIAL PROVISIONS FOR PRONOUNCEMENT OF COURT REPRIMAND

Article 432 (1) A court reprimand is pronounced with a decision. (2) If in this Chapter it is not determined differently, the provisions of this Code which refer to the verdict with which the accused is found guilty are applied accordingly on the decision for the court reprimand.

Article 433 (1) The decision for a court reprimand is announced immediately after the completion of the trial with the crucial reasons. During the announcement the Chairman of the Chamber will warn the accused that for the crime that he has committed he is not pronounced a verdict, because it is expected that the court reprimand will sufficiently influence him not to commit crimes further on. If the decision for the court reprimand is announced in the absence of the accused, this warning will be inserted by the court in the elaboration of the decision. For the withdrawal from the right to an appeal or for the written elaboration of the decision is accordingly applied the provision of Article 429, paragraph 5 of this Code. (2) In the pronouncement of the decision for a court reprimand apart from the personal details of the accused, it will be only inserted that the accused is pronounced a court reprimand for the crime which is the case of the prosecution and the lawful title of the crime. The pronouncement of the decision for a court reprimand encompasses the necessary data under Article 343, paragraph 1, items 5 and 7 of this Code. (3) In the elaboration of the decision the court will present the reasons for the pronouncement of the court reprimand.

Article 434 (1) The decision for the court reprimand may be cancelled due to the grounds noted in Article 354, items 1 to 3 of this Code, as well as due to the fact that there have not been any circumstances which justify the pronouncement of the court reprimand. (2) If the decision for the court reprimand contains a resolution for security measures, for deprivation property interest, for criminal procedure expenses or for a lawful property request, this resolution may be cancelled for the reason that the court has not regularly applied the security measure or the measure for deprivation property interest, i.e. that the resolution for the criminal procedure expenses or the lawful property request has been brought contrary to the lawful provisions.

Article 435 There is a violation of the Criminal Code in case of pronouncement of the court reprimand except for the matters noted in Article 356, items 1 to 6 of this Code and when with the decision for the court reprimand, for the security measure or for the deprivation property interest, the authorisation is exceeded which the court has had according to the Code.

Article 436 (1) If the appeal against the decision for the court reprimand is submitted by the prosecutor against the accused, the second degree court may reach a verdict with which the accused is found guilty and is convicted with a sentence or with which a probation is pronounced, if it finds that the first degree court has

92 regularly certified the deciding facts, but that after the regular application of the Code the pronouncement of the sentence is acceptable. (2) On the basis of whoever appeals against the decision for the court reprimand, the second degree court may reach a verdict with which the prosecution is rejected or the accused is released from the prosecution, if it finds that the first degree court has regularly certified the deciding facts and that after the regular application of the Code is considered only one of this verdicts. (3) When there are conditions under Article 375 of this Code, the second degree court will reach a decision with which the appeal is rejected as unjustified and the decision by the first degree court for the court reprimand is confirmed.

Chapter XXVII

PROCEDURE AGAINST MINORS

1. General provisions

Article 437 (1) The provisions of this Chapter are applied in the procedure against persons who have committed crimes as minors, and at the time of the initiation of the procedure, i.e. at the trial they have not been 21 years of age. The other provisions of this Code are applied if they are not contrary to the provisions of this Chapter. (2) Provisions of Articles 439, 440 and 441, 444 to 447, 456, 458, 460, paragraphs 1 and 2 and Article 468 of this Code are applied in the procedure against a younger adult if by the beginning of the trial it is established that this person is to be pronounced an educational measure and by that time the person is not 21 years of age.

Article 438 When during the procedure it is certified that the minor at the time of the crime was not 14 years of age, the criminal procedure will be ceased and the institution for guardianship will be informed of that.

Article 439 (1) The minor cannot be judged in his absence. (2) During the initiation of the acts at which the minor is present, particularly at his examination, the agencies which participate in the procedure are obliged to act carefully, taking into consideration the mental development, emotional life and personal features of the minor so as the criminal procedure does not inflict the development of the minor. (3) At the same time with appropriate measures these agencies will prevent any kind of non- disciplinary behaviour of the minor.

Article 440 (1) The minor has to have a counsel from the beginning of the preparatory procedure if the procedure is for a crime for which it is proscribed a sentence to over five years, and for other crimes for which it is proscribed a mitigated sentence- if the judge for minors evaluates that the minor needs a counsel. (2) If in cases of paragraph 2 of this Article, the minor himself, his legal representative or his relative does not choose a counsel, the judge for minors will ex officio assign him a counsel.

Article 441 None can be released from his duty to witness for the circumstances which are necessary the mental development of the minor to be evaluated and his personality and environment to be introduced (Article 456).

Article 442 (1) When a minor has participated in the conducting of a crime together with an adult, the procedure against him will be separated and conducted according to the provisions of this Chapter.

93 (2) The procedure against the minor may be joined with the procedure against the adult and proceed according to the general provisions of this Code only if the joining of the procedure is necessary for complete clarification of the matters. This decision is brought by the Chamber for minors of the competent court on the elaborated proposal by the public prosecutor. Against this decision an appeal is not allowed. (3) When a unique procedure is conducted for a minor and for an adult, in view of the minor will always be applied the provisions of Articles 439, 440 and 441, 444 to 447, 456, 458, 460, paragraphs 1 and 2 and Article 467 of this Code when at the trial are clarified the matters which refer to the minor, as well as Articles 468, 474 and 475 of this Code and the other provisions of this Chapter if their application is not contrary to the conducting of the joined procedure.

Article 443 When a person has committed a crime as a minor, and another person as an adult a unique procedure will be conducted according to Article 29 of this Code before the Chamber for adults.

Article 444 (1) In the procedure against minors, apart from the authorisations which are explicitly anticipated in the provisions of this Chapter, the institution for guardianship has a right to be introduced to the course of the procedure, during the procedure to make proposals and to underline facts and evidence which are significant a righteous decision to be brought. (2) For every initiated procedure against the minor the public prosecutor will inform the competent institution for guardianship.

Article 445 (1) The minor is summoned by his parents, i.e. his legal representative, unless it is not possible due to the necessity of urgent proceeding or other circumstances. (2) The delivery of the decisions and other writs to the minor is conducted according to the provisions of Article 116 of this Code, with the difference that to the minor the writs are not delivered by announcement on the board of the court, nor the provision of Article 112, paragraph 2 of this Code are applied.

Article 446 (1) Without a permission of the court the course of the criminal procedure for the minor must not be announced nor the decision brought in that procedure. (2) It may be announced only the part of the procedure, i.e. only the part of the decision for which there is an approval, but in that case cannot be noted the name of the minor or other data on which grounds it could be concluded which minor is in question.

Article 447 The agencies which participate in the procedure against minor, as well as other institutions and agencies which provide announcements, reports or opinions are obliged to proceed most urgently the procedure to be completed as soon as possible.

2. Composition of the court

Article 448 (1) In the courts there are Chambers for minors. In the first degree courts there are one or more judges for minors. (2) The Chamber for minors of the first degree court and the Chamber for minors of the second degree court are consisted of a judge for minors and two lay judges. The judge for minors is the Chairman of the Chamber. (3) The lay judges are elected among the professors, teachers, educators and other persons who have experience in the education of minors. (4) The Chambers for minors of the higher courts in the composition anticipated in paragraphs 2 and 3 of this Article decide on the appeals, as well as in other cases determined in this Code.

94 (5) The judge for minors of the first degree court conducts the preparatory procedure and performs other issues in the procedure against the minors.

Article 449 The competent court of the second degree decides on the appeals against the resolutions of the Chamber for minors of the first degree court and on the appeals against the decisions of the public prosecutor and of the judge for minors in the cases anticipated in this Code, as well as in cases when with this Code it is determined that the Chamber for minors of the higher court decides.

Article 450 For the procedure against the minor, regularly is locally competent the court where his residence is. If the minor has no permanent residence or it is not known to the court then the court where the temporary residence of the minor is, is locally competent. The procedure may be conducted before the court of the temporary residence of the minor who has permanent residence, or before the court of the scene of the crime, if it is obvious that the court itself may more easily conduct the procedure.

Article 451 By law a court may be assigned which will be competent of first degree for all crimes of minors for the regions of several courts.

3. Initiation of the procedure

Article 452 (1) Criminal procedure against minors is initiated for all crimes only on the request of the public prosecutor. (2) For crimes which are prosecuted on a proposal or on a private charge, a procedure may be initiated if the damaged made a proposal for initiation of a procedure to the competent public prosecutor within the period proscribed in Article 48 of this Code. (3) If the public prosecutor does not request for initiation of a procedure against a minor, he will inform the damaged of that. The damaged cannot undertake the procedure i.e. cannot bring a private charge to the court, but he may, within eight days from the reception of the announcement by the public prosecutor request the Chamber for minors of the competent court to decide on initiation of the procedure.

Article 453 (1) For crimes for which it is proscribed a sentence to three years or a fine penalty, the public prosecutor may decide not to request for an initiation of the criminal procedure although there are evidence that the crime has been committed by the minor, if he considers that it would not be useful to conduct a procedure against the minor in view of the nature of the crime and of the circumstances under which it has been committed, of the previous life of the minor and of his personal character. In order this circumstances to be certified, the public prosecutor may request reports by his parents, i.e. the guardian of the minor, other persons and institutions, and when it is necessary he may summon this persons and the minor to the public prosecution for an immediate report. He may request for an opinion by the institution for guardianship for the initiation of the procedure against the minor. (2) If in order a decision to be brought under paragraph 1 of this Article, the personal character of the minor is to be examined, with the agreement of the institution for guardianship, the public prosecutor may direct the minor to a temporary shelter or to an institution for examination or education but at most for one month. (3) When the serving of the sentence or of the educational measure is at its course, the public prosecutor may decide not to request for initiation of a criminal procedure for another crime of the minor, if in view of the severity of that crime, as well as of the sentence, i.e. of the educational measure which is being carried out, it would not be useful a procedure to be conducted and a criminal sanction to be pronounced for that crime.

95 (4) When the public prosecutor in cases of paragraphs 1 and 3 of this Article finds that the initiation of the procedure against the minor is not useful, he will inform of that by notification of the reasons the institution for guardianship and the damaged who may within eight days request from the Chamber for minors to decide on the initiation of the procedure.

Article 454 (1) In cases of Article 452, paragraph 3 and Article 453, paragraph 4 of this Code, the Chamber for minors decides at a session when it previously obtains the records from the public prosecutor. The public prosecutor is called at the session. (2) The Chamber for minors may decide the procedure not to be initiated or against the minor a procedure to be initiated before the judge for minors. Against the decision of the Chamber for minors an appeal is not allowed. (3) When the Chamber decides against the minor to be initiated a procedure before the judge for minors, the public prosecutor may participate in this procedure and have all authorisations which according to this Code he is entitled with in the procedure.

4. Preparatory procedure

Article 455 (1) The public prosecutor submits a request for initiation of a preparatory procedure to the judge for minors of the competent court. If the judge for minors does not agree with this request, he will request the Chamber for minors of the higher court to decide. (2) The judge for minors may entrust the Ministry of Internal Affairs to conduct the order for search of residence or for a temporary deprivation of an object, in the manner proscribed with this Code, and he may also entrust the Ministry of Internal Affairs to undertake certain acts in cases of Article 155, paragraph 4 of this Code.

Article 456 (1) In the preparatory procedure against the minor beside the facts which refer to the crime, will be particularly determined the age of the minor, the necessary circumstances for the evaluation of his mental development, will be examined the environment in which the minor lives and other circumstances which refer to his personality. (2) In order the circumstances to be certified, the parents of the minor will be heard, his guardian and other persons who may give necessary data. If necessary for this circumstances will be requested a report by the institution for guardianship, and if against the minor an educational measure has been applied, a report for the application of the measure will be obtained. (3) The information for the personality of the minor are collected by the judge for minors through the institution for guardianship. (4) When for determination of the health condition of the minor, his mental development, his emotional features or affinities it is necessary the minor to be examined by experts, for these examinations will be appointed physicians, psychologists or pedagogues. Such examinations of the minor may be performed in a mental or a similar institution.

Article 457 (1) The judge for minors determines the manner of performance of certain acts by himself, respecting the provisions of this Code, to the necessary extent which secures the rights of the accused, at the defence, the rights of the damaged and the collection of necessary evidence for the decision. (2) At the acts in the preparatory procedure may be present the public prosecutor and the counsel. When it is necessary, the examination of the minors will be carried out by the assistance of a pedagogue or another professional. The judge for minors may approve at the acts in the preparatory procedure to be present the representative of the institution for guardianship and the parent, i.e. the guardian of the minor. When the mentioned persons are present at the acts, they may make proposals and question the person who is being examined i.e. heard.

96 Article 458

(1) The judge for minors may order during the preparatory procedure the minor to be accommodated in a temporary shelter, in an educational or a similar institution, to be put under the supervision of the institution for guardianship or to be entrusted to another family, if it is necessary for separation of the minor from the environment where he lived or for providing help, protection or accommodation of the minor. (2) The expenses for the accommodation of the minor are paid in advance from the budget and are included within the criminal procedure expenses.

Article 459 (1) With exception, the judge for minors may determine the minor to be detained when there are reasons under Article 184, paragraph 1 of this Code. (2) On the basis of the decision for detention brought by the judge for minors, the detention may last for at most 30 days. The Chamber for minors of the same court may for justified reasons prolong the detention for another 60 days at most.

Article 460 (1) Regularly, the minor is in detention separated from the adults. (2) The judge for minors may determine the minor to be detained together with adults if the detention of the minor is determined for a longer period, and there is a possibility the minor to be in a cell with an adult who would not inflict any harm on the minor. (3) The judge for minors against the detained minors has the same authorisations which according to this Code has the investigating judge in reference of the detained persons.

Article 461 (1) After he has examined all circumstances which refer to the crime and to the personality of the minor, the judge for minors delivers the records to the competent public prosecutor who, within eight days may request the preparatory procedure to be supplemented or an elaborate proposal to be submitted to the Chamber for minors for an appropriate punishment i.e. for application of an educational measure. (2) The proposal of the public prosecutor has to contain the name of the minor, his age, the description of the crime, evidence from which it can be derived that the minor has committed the crime, an elaboration which has to contain an evaluation of the mental development of the minor and a proposal the minor to be punished i.e. against him to be applied an educational measure.

Article 462 (1) If during the preparatory procedure, the public prosecutor finds that there is no ground for a conduct of a procedure against the minor or that there are reasons under Article 453, paragraph 3 of this Code, he will propose to the judge for minors to interrupt the procedure. Of the proposal for interruption of the procedure, the public prosecutor will also inform the institution for guardianship which is obliged, if it disagrees with the proposal of the public prosecutor, to inform the judge for minors of that in a period of eight days from the day of the reception of the announcement of the public prosecutor. (2) If the judge for minors disagrees with the proposal of the public prosecutor, he will request the Chamber for minors of the higher court to decide. The Chamber for minors reaches a decision after the hearing of the public prosecutor. The judge for minors will also proceed in the same manner when only the institution for guardianship disagrees with the proposal of the public prosecutor. (3) The provision of Article 453, paragraph 3 of this Code is also valid when the Chamber for minors does not accept the proposal of the public prosecutor for interruption of the procedure.

Article 463 If the public prosecutor, in cases under Articles 452 and 462 of this Code does not participate in the procedure against the minor, after the completed preparatory procedure, the judge for minors will present the case before the Chamber for minors for a trial.

97 Article 464

Every month the judge for minors informs the President of the Court which cases for minors are not completed and the reasons for which the procedure of certain cases is still at its course. If it is necessary, the President of the Court will undertake measures the procedure to be accelerated.

5. Procedure before the Chamber for minors

Article 465 (1) When he receives the proposal of the public prosecutor, as well as when the procedure against the minor is conducted without a proposal of the public prosecutor, the judge for minors appoints a session of the Chamber or a trial. (2) When the procedure against the minor is conducted without a proposal of the public prosecutor, the judge for minors at the beginning of the session, i.e. the trial will present which crime is the minor imposed on. (3) Punishments and institutional measures may be pronounced only after the held trial. Other educational measures may be also pronounced at the session of the Chamber. (4) At the session of the Chamber it may be decided the trial to be held. (5) Of the session of the Chamber are informed and at the session may be present the public prosecutor, the counsel and the representative of the institution for guardianship and when it is necessary- the minor and his parents i.e. guardian. (6) The judge for minors will inform the minor of the educational measure, which is pronounced against him at the session of the Chamber.

Article 466 (1) When the Chamber for minors decides on the grounds of the trial, accordingly will be applied the provisions of this Code for the preparations of the trial, for the management of the trial, for the cancelling and interruption of the trial, for the minutes and for the course of the trial, but the court may deviate from this regulations if it considers that their application in this actual case would not be appropriate. (2) Apart from the persons mentioned in Article 273 of this Code, at the trial will be called the parents of the minor i.e. the guardian and the institution for guardianship. The fact that the parents do not attend the trial, the guardian or the representative of the institution for guardianship does not keep the court from holding the trial. (3) Apart from the minor, at the trial must be present the public prosecutor who has proposed in reference of Article 461 of this Code, and in cases of compulsory defence- the counsel. (4) The provisions of this Code for alternation and expansion of the charge will be also applied in the procedure against the minor, with the deference that the Chamber for minors, without the proposal of the public prosecutor is authorised to bring a decision on the basis of the factual situation which is being at the trial.

Article 467 (1) When a minor is prosecuted, the public will always be excluded. (2) The Chamber may allow at the trial to be present persons specialised in protection and education of minors or in repression of criminality of minors, as well as scientific workers. (3) At the trial the Chamber may order apart from the public prosecutor, the counsel and the representative of the institution for guardianship, from the trial to be excluded all or certain persons. (4) At the presentation of certain evidence or while the parties have their final words, the Chamber may order the minor to be excluded from the session of the trial.

Article 468 During the procedure before the court, the judge for minors or the Chamber for minors may bring a decision for temporary accommodation of the minor (Article 458), and may cancel the decision brought before on the same issue.

98 Article 469

(1) The judge for minors is obliged to assign a trial or a session of the Chamber within eight days from the day of the reception of the proposal by the public prosecutor or from the day of the completion of the preparatory procedure (Article 463), or from the day when at the session of the Chamber it is decided a trial to be held. For each prolonging of this period the judge for minors has to have an approval by the President of the Court. (2) Cancelling or interruption of the trial is performed only by an exception. For each cancelling or interruption of the trial the judge for minors will inform the President of the Court and will present the reasons for the cancelling i.e. interruption. (3) The judge for minors is obliged within three days from the day of the announcement, to submit the verdict i.e. decision in a written form.

Article 470 (1) The Chamber for minors is not bound to the proposal of the public prosecutor when deciding whether against the minor it will be pronounced a punishment or whether it will be applied an educational measure, but if the procedure against the minor is conducted without the proposal of the public prosecutor or if the public prosecutor has withdrawn from the proposal, the Chamber cannot pronounce the punishment to the minor but only an educational measure. (2) The Chamber with a decision will interrupt the procedure in cases when on the basis of Article 341, items 4 to 6 of this Code, when the court brings a verdict with which the charge is rejected or with which the accused is released from the charge (Article 342), as well as when the Chamber finds that it is not appropriate for the minor to be pronounced either a punishment or an educational measure. (3) The Chamber also brings a decision when the minor is pronounced an educational measure. In the pronouncement of this decision is noted only which measure is pronounced but the minor will not be found guilty of the crime he is accused of. In the elaboration of the decision will be noted the description of the crime and the circumstances which justify the application of the pronounced educational measure. (4) The verdict with which the minor is pronounce a punishment is brought in the form anticipated in Article 343 of this Code.

Article 471 The court may convict the minor to pay for the expenses for the criminal procedure and for the realisation of the lawful property request only if the minor is pronounced a punishment. If an educational measure is applied against the minor, the expenses for the procedure fall on the budget and the damaged due to the realisation of lawful property request is directed to a dispute.

6. Judicial remedies

Article 472 (1) Against the verdict with which the minor is pronounced a punishment, against the decision with which the minor is pronounced an educational measure and against the decision for interruption of the procedure (Article 470, paragraph 2) may submit an appeal all persons who have the right to an appeal against the verdict (Article 351) within the period of eight days from the reception of the verdict i.e. decision. (2) The counsel, the public prosecutor, the marital i.e. illegitimate spouse, the blood relative in first line, the one who adopts, the guardian, the brother, sister and the one who sustains may submit an appeal on behalf of the minor even it is against his will. (3) The appeal against the decision with which it is pronounced an educational measure which is to be served in an institution keeps from the execution of the decision if with the agreement of the parents of the minor and after the examination of the minor the court does not decide differently. (4) At the session of the second degree Chamber (Article 362) the minor will be summoned only if the Chairman of the Chamber or the Chamber finds that his presence would be useful.

Article 473 (1) The second degree Chamber may alter the decision for educational measure by pronouncing a more severe measure against the minor only if it is proposed in the appeal.

99 (2) If with the first degree decision it is not pronounced a punishment to a juvenile detention or an institutional measure, the second degree Chamber may pronounce the punishment i.e. measure only if it is holding a trial. The juvenile detention which lasts for a longer period or a more severe institutional measure than the one pronounced with the first degree decision may be also pronounced at the session of the second degree Chamber.

Article 474 A request for protection of legality may be initiated in the case when with the court decision the Code is violated and in the case when against the minor is applied a punishment or an educational measure inappropriately.

Article 475 The provisions for repetition of the criminal procedure completed with a legally valid verdict will be accordingly applied on the repetition of the procedure completed with a legally valid decision for application of an educational measure or for interruption of the procedure against the minor.

7. Supervision of the court on application of measures

Article 476 (1) The management of the institution in which the educational measure is carried out against the minors is obliged every six months to submit to the court, which has pronounced the educational measure a report for the behaviour of the minor. The judge for minors of that court may himself visit the minors in the institution. (2) Through the institution for guardianship the judge for minors may obtain a report on the performance of the other educational measures and he may assign another specialised worker to accomplish it (a social worker, a teacher of handicapped, etc.), if he is available in the court.

8. Interruption of the execution and alternation of the decision for educational measures

Article 477 (1) When the conditions are fulfilled which are anticipated in the Code for alternation of the decision for the pronounced educational measure, a resolution for that is brought by the court which has brought the decision for educational measure of first degree if it finds that it is necessary, either on the proposal of the public prosecutor, director of the institution or institution for guardianship to which the supervision of the minor is entrusted. (2) Before bringing the decision the court will hear the public prosecutor, the minor, the parent or the guardian of the minor and other persons and will obtain necessary reports from the institution in which the minor is serving the institutional measure, from the institution for guardianship or from other agencies and institutions. (3) According to the provisions of paragraphs 1 and 2 of this Article is also brought the decision for interruption of the execution of educational measure. (4) The decision for interruption or for alternation of the educational measure is brought by the Chamber for minors.

Part Three

SPECIAL PROCEDURES

Chapter XXVIII

PROCEDURE FOR APPLICATION OF SECURITY MEASURES FOR CONFISCATION OF PROPERTY INTEREST AND FOR REVOKING OF PROBATION

100 Article 478

(1) If the accused has committed crime in a state of mental disorder, the public prosecutor will submit to the court a proposal to pronounce a security measure- compulsory psychiatric treatment and keeping the person in a mental institution i.e. a proposal for a compulsory psychiatric treatment of the person who is not detained if for the pronouncement of such a measure there are conditions proscribed with the Criminal Code. (2) In this case the accused who is detained will not be released but by the completion of the procedure for application of security measures he will be temporarily accommodated in an appropriate mental institution or in an appropriate room. (3) After the submission of the proposal under paragraph 1 of this Article, the accused must have a counsel.

Article 479 (1) On the application of security measures- compulsory psychiatric treatment and keeping in mental institution or compulsory psychiatric treatment of the person who is not detained, after the trial, decides the court which is competent of first degree. (2) Apart from the persons which must be summoned at the trial will be also called experts and physicians- psychiatrists from the mental institution to which the expertise has been entrusted in view of the mental capability of the accused. The accused will be summoned if his state allows him to be present at the trial. Of the trial will be informed the marital i.e. illegitimate spouse of the accused and his parents i.e. guardian and according to the circumstances other close relatives. (3) If the court on the basis of the presented evidence certifies that the accused has committed a certain crime and that during the committing of the crime he was in a state of mental disorder, it will decide on the basis of the hearing of the summoned persons and the diagnosis and opinions of the experts, whether the accused will be pronounced a security measure- compulsory psychiatric treatment and keeping the person in a mental institution i.e. compulsory psychiatric treatment of the person who is not detained. During the decision which of these security measures to be pronounced, the court is not bound to the proposal of the public prosecutor. (4) If the court finds that the accused was not mentally capable, it will interrupt the procedure for application of security measures. (5) Against the decision of the court within eight days from the day of the reception of the decision may appeal all persons who have the right to appeal against the verdict (Article 351), except for the damaged.

Article 480 The security measures under Article 478, paragraph 1 of this Code may be also pronounced when the public prosecutor at the trial alters the brought prosecution act i.e. prosecution proposal by submitting a proposal for pronouncing the measures.

Article 481 When the court pronounces the punishment for the person who has committed a crime in a state of a significantly reduced mental capability, with the same verdict it will pronounce a security measure- compulsory psychiatric treatment and keeping in a mental institution, if it certifies that there are lawful conditions for that.

Article 482 The legally valid decision with which is pronounced a security measure- compulsory psychiatric treatment and keeping in a mental institution, i.e. compulsory psychiatric treatment of the person who is not detained (Articles 479 and 481) will be delivered to the court which is competent to decide on the deprivation from professional capability. The institution for guardianship will be informed of the decision.

Article 483 (1) On the proposal of the mental institution or of the institution for guardianship or ex officio and after the hearing of the public prosecutor, the first degree court which has pronounced a security measure- compulsory psychiatric treatment and keeping in a mental institution will interrupt this measure and will

101 determine the person to be released from the mental institution, if on the basis of the opinion of the physician it certifies that the need for treatment and guarding of the person in the institution has ceased to exist and may determine a compulsory psychiatric treatment for him as a person who is not detained. (2) When from the mental institution is released the criminal whose mental capability was significantly reduced, and he has spent less time in the institution than his sentence of imprisonment he was convicted of is, with a decision for releasing the court will decide whether the person will serve the rest of the sentence or will be released on probation. The person on probation may be pronounced a security measure- compulsory psychiatric treatment of a person who is not detained, if there are lawful conditions for that. (3) On the proposal of the management of the mental institution in which the person was treated or was to be treated or ex officio and after the hearing of the public prosecutor, against the person on whom were applied the security measures- compulsory psychiatric treatment of the person who is not detained, the court may pronounce a security measure- compulsory psychiatric treatment and keeping in a mental institution, if the court concludes that the person has not been treated or has voluntarily left the treatment or that despite the treatment he has remained dangerous for the environment and his keeping and treating in a mental institution is necessary. Before reaching the decision, if it is necessary the court will obtain an opinion from a physician and the accused will be examined if his mental state allows it.

Article 484 (1) On the application of the security measure- compulsory treatment of alcohol and drug addicts decides the court after it has obtained diagnosis and opinion from the expert. The expert also has to elaborate the possibilities for the treatment of the accused. (2) If during the pronouncement of the probation the person who has committed the crime is imposed on a treatment as the one who is not detained, and he has not attended the treatments or has voluntarily left them, on the proposal of the institution where the person has been treated or should have been treated or ex officio and after the hearing of the public prosecutor and of the person, the court may determine a revoking of the probation or forceful execution of the pronounced measure- compulsory treatment of alcohol and drug addicts in a mental institution or in another specialised institution. Before the bringing of the decision, if necessary the court will obtain an opinion from a physician.

Article 485 (1) The objects which according to the Criminal Code have to be confiscated, will be also confiscated when the criminal procedure is not completed with a verdict yet with which the accused is found guilty, if it is in the interest of the general security or for ethical reasons. (2) A special decision for that is brought by the body before which the procedure was being conducted at the moment when the procedure was completed i.e. interrupted. (3) The decision for confiscation of objects under paragraph 1 of this Article is also brought by the court when in the verdict with which the accused is found guilty it was failed such a decision to be brought. (4) A certified copy of the decision for confiscation of objects will be delivered to the owner of the objects if he is known. (5) Against the decision under paragraphs 2 and 3 of this Article the owner of the objects has a right to an appeal due to the non- existence of a lawful ground for confiscation of objects. If the decision under paragraph 2 of this Article has not been brought by the court, on the appeal decides the Chamber (Article 22, paragraph 6) of the court which has been competent of first degree.

Article 486 (1) The property interest achieved by the committing of the crime is certified in a criminal procedure ex officio. (2) The court and the other bodies before which the criminal procedure is conducted are obliged during the procedure to collect evidence and to inspect circumstances which are important for the certification of the property interest. (3) If the damaged has submitted a lawful property request in view of the returning of the objects gained with the crime, i.e. in view of the amount which is equivalent to the value of the objects, the property interest will be certified only in that part which is not encompassed with the lawful property request.

102

Article 487 (1) When confiscation of property interest is an alternative gained with a crime, the person to whom the property interest is transferred as well as the representative of the legal person will be summoned for hearing at the previous procedure and at the trial. In the summons they will be warned that the procedure will be conducted without their presence. (2) The representative of the legal person will be heard at the trial after the defendant. It will be proceeded in the same manner in reference of the person to whom the property interest is transferred, if he is not summoned as a witness. (3) The person to whom the property interest is transferred as well as the representative of the legal person are authorised in reference of the certification of property interest to present evidence and on the authorisation of the Chairman of the Chamber to question the defendant, the witnesses and the experts. (4) The exclusion of the public from the trial does not refer to the person to whom the property interest is transferred and to the representative of the legal person. (5) If during the trial the court certifies that confiscation of property interest is possible, it will interrupt the trial and will call the person to whom the property interest is transferred and the representative of the legal person.

Article 488 The court will approximately estimate the amount of the property interest if the certification of the amount would mean immense difficulties or delay for the procedure.

Article 489 When confiscation of property interest is possible, according to the provisions which are valid for the execution procedure, the court will ex officio determine temporary security measures. In that case are accordingly valid the provisions of Article 105, paragraphs 2 and 3 of this Code.

Article 490 (1) The court may pronounce confiscation of property interest in the verdict with which the accused is found guilty, in the decision for court reprimand or in the decision for application of an educational measure, respectively in the decision with which is pronounced the security measure. (2) In the pronouncement of the verdict or the decision, the court will note which object i.e. amount of money is confiscated. (3) A certified copy of the verdict i.e. the decision is also submitted to the person to whom the property interest is transferred and to the representative of the legal person, if the court has pronounced confiscation of property interest from that person i.e. from the legal person.

Article 491 The person under Article 487 of this Code may submit a request for repetition of the criminal procedure in view of the decision for confiscation of property interest.

Article 492 The provisions of Article 352, paragraphs 2 and 3 and Articles 360 and 364 of this Code will be accordingly applied in view of the appeal against the decision for confiscation of property interest.

Article 493 If with the provisions of this Chapter it is not determined differently in view of the procedure for application of security measures or for confiscation of property interest, the other provisions of this Code will be accordingly applied.

Article 494 (1) When in the probation it is determined that the sentence will be executed if the convicted person does not return the property interest, does not compensate the damage or does not fulfil other obligations, and if

103 the convicted person in the proscribed period does not fulfil these obligations, the first degree court will initiate a procedure for revoking of the probation on the proposal of the authorised prosecutor or ex officio. (2) The assigned judge will hear the convicted person if he is available and he will conduct necessary inspections due to certification of facts and collecting evidence important for the decision. (3) Afterwards, the Chairman of the Chamber will assign a session of the Chamber of which will be informed the prosecutor, the convicted and also the damaged. If the parties and the damaged do not attend, although informed, that does not keep from holding the session of the Chamber. (4) If the court certifies that the convicted has not fulfilled the obligation which was determined with the verdict, it will bring a verdict with which the probation will be revoked and it will determine the sentence to be executed or will determine a new period for realisation of the obligation or will terminate the condition. If the court finds that there is no ground one of these resolutions to be brought, it will interrupt the procedure with the decision for revoking of the probation.

Chapter XXIX

PROCEDURE FOR BRINGING DECISION FOR REVOCATION OF THE CONVICTION OR FOR INTERRUPTION OF THE SECURITY MEASURES AND FOR JUDICIAL

CONSEQUENCES OF THE CONVICTION

Article 495 (1) When according to the Code, the revocation of the conviction comes with the expiring of the proscribed period and under the condition within that period the convicted not to commit another crime, a decision for revocation of the conviction is brought ex officio by the court as a competent body for managing the penalty register. (2) Before reaching the decision for revocation of the conviction will be conducted necessary review and will be particularly collected data whether against the convicted there is a criminal procedure at its course for another crime committed before the expiring of the proscribed period for revocation of the conviction.

Article 496 (1) If the court does not bring a decision for revocation of the conviction, the convicted person may request to be certified that according to the Code the revocation of the conviction has already started. (2) On this request decides the court after the hearing of the public prosecutor if the procedure has been conducted on his request.

Article 497 If the probation is not revoked even after one year from the day of the completion of the period for review, the first degree court will reach a decision which certifies revocation of the probation. This decision will be delivered to the convicted and to the public prosecutor, if the procedure has been conducted on his request.

Article 498 (1) The procedure for revocation of the conviction on the basis of a court decision is initiated on the appeal of the convicted. (2) The appeal is submitted to the court which has prosecuted in first degree. (3) The previously assigned judge will check whether the period according to the Code has expired and then he will conduct the necessary inspections, will certify the facts to which the one who appeals refer and will collect evidence for all circumstances which are valid for the decision. (4) On the behaviour of the convicted the court may request a report from the courts on which regions the convicted has resided after the served sentence and it also may request a report from the management of the institution where the convicted served his sentence. (5) After the conducted inspections and the hearing of the public prosecutor if the procedure has been conducted on his request, the judge will deliver the records with the elaborate proposal to the Chamber of the court of first degree.

104 (6) Against the decision of the court on the application for revocation of the conviction, an appeal may submit the applicant and the public prosecutor. (7) If the court rejects the application because the convicted with his behaviour does not deserve revocation of the conviction, the convicted may apply again after two years from the day when the decision has become legally valid for rejection of the application.

Article 499 In the certificate which is issued to the citizens on the basis of the penalty register, in order their rights to be realised abroad, the revoked conviction must not be mentioned.

Article 500 (1) The application for cancelling security measures- prohibition for professional performance, act or duty, prohibition for public misdemeanour or prohibition for driving a motor vehicle or the application for cancelling judicial consequence of the conviction which refers to prohibition for gaining a certain right is submitted to the court of first degree. (2) The assigned judge will previously check whether the necessary period according to the Code has expired and then he will conduct the necessary inspections, will certify the facts to which the applicant refers and will collect evidence for all circumstances which are valid for the decision. (3) On the behaviour of the convicted the judge may request for a report from the courts on which region the convicted has resided after the served sentence, pardoned sentence or the obsolete sentence and he may also request for a report from the institution where the convict served his sentence. (4) After the conducted inspections and the hearing of the public prosecutor if the procedure has been conducted on his request, the judge will deliver the records with the elaborate proposal to the competent court for reaching the decision on the application for cancelling security measures i.e. the judicial consequence of the conviction. (5) Under paragraph 4 of this Article, the court will previously obtain opinion from the public prosecutor if the procedure has been conducted on his request who proceeds before the court.

Article 501 In case of rejection of the application, another application may not be submitted before the expiry of one year from the day when the decision for rejection of the previous application has become legally valid.

Chapter XXX

PROCEDURE FOR APPROVAL OF INTERNATIONAL JUDICIAL ASSISTANCE AND EXECUTION OF INTERNATIONAL TREATIES IN JUDICIAL CRIMINAL CASES

Article 502 International judicial criminal assistance is performed according to the provisions of this Code, if with an international treaty it is not determined otherwise.

Article 503 (1) The applications of the domestic courts for judicial assistance in the criminal cases are delivered to the foreign agencies in a diplomatic course. In the same manner to the domestic courts are delivered the applications of the foreign agencies for judicial assistance. (2) In emergencies, if there is mutuality, the applications for judicial assistance may be delivered by the Ministry of internal affairs. (3) By law it will be determined which courts will be competent for giving international judicial criminal assistance and one court may be assigned to perform the work for all the courts on a certain region.

Article 504 (1) The Ministry of External Affairs will direct the application of the foreign agency for judicial assistance to the Ministry of Justice which will direct it for a procedure to the court on which region the person

105 resides, who has to be handed a writ or who has to be examined or confronted or on which region another investigating act has to be conducted. (2) In cases under Article 503, paragraph 2 of this Code, the Ministry of Internal Affairs directs the application to the court by the Ministry of Justice. (3) On the permission and manner of the conducting of the act, which is the case in the application of the foreign agency, decides the court according to the domestic regulations. (4) When the application refers to a crime for which according to the domestic regulations extradition is not allowed, the court will request an instruction from the Ministry of Justice.

Article 505 (1) The domestic courts may accept the application of the foreign agency with which it is requested execution of the criminal sentence by the foreign court if it is determined with an international treaty, if there is reciprocity and if the sanction is also pronounced by the domestic court according to the Criminal Code. (2) The competent court reaches the verdict at the Chamber under Article 22, paragraph 6 of this Code. The public prosecutor and the counsel will be informed of the session of the Chamber. (3) The local competence of the court is determined according to the last residence of the convicted person in the Republic of Macedonia- according to his place of birth. If the convicted person has not a residence nor was born in the Republic of Macedonia, the Supreme Court of the Republic of Macedonia will determine one of the courts to be competent before which the procedure will be conducted. (4) The competent court is the court which is determined by law. (5) In the pronouncement of the verdict under paragraph 2 of this Article, the court will insert the complete pronouncement and the title of the court with the foreign verdict and will pronounce a sanction. In the elaboration of the verdict will be presented the reasons for which the court has pronounced the sanction. (6) Against the verdict may appeal the public prosecutor and the convicted person or his counsel. (7) If the foreign citizen convicted by a domestic court or if the person authorised with an agreement submits an application to the first degree court the convicted person to serve the sentence in his country, the first degree court will act according to the international treaty.

Article 506 For the crimes- making and releasing counterfeit bank notes, unauthorised production, reproduction and selling narcotics and poisons, white slavery trade, production and delivery of pornographic papers as well as other crimes in view of which with the international treaties it is determined centralisation of data, the court before which the criminal procedure is conducted, without delay, is obliged to deliver to the Ministry of Internal Affairs the data for the crime, the criminal and the legally valid verdict.

Article 507 (1) If on the territory of the Republic of Macedonia a crime has been committed by a foreigner who has a residence in a foreign country, out of the circumstances under Article 510 of this Code, to that country may be transferred all criminal records for the criminal prosecution and trial, if the foreign country is not against it. (2) Before the decision for investigation is brought, the decision for transferring is brought by the competent public prosecutor. During the investigation, the decision on the proposal of the public prosecutor is brought by the investigating judge, and by the beginning of the trial, the Chamber (Article 22, paragraph 6). (3) Transferring may be allowed for crimes for which a sentence to ten years is anticipated, as well as for the crimes- endangering the public traffic. (4) If the damaged is a citizen of the Republic of Macedonia, transferring is not allowed if he resists it, unless it is allowed security for realisation of his lawful property request. (5) If the accused is detained, from the foreign country it will be requested in the briefest possible way within 15 days to state whether it undertakes the prosecution.

106 Article 508

(1) The request by the foreign country in the Republic of Macedonia to be undertaken prosecution of a citizen of the Republic of Macedonia or of a person who has a residence in the Republic of Macedonia for a crime committed abroad, is directed with the records to the competent public prosecutor on whose region the person has his residence. (2) If to the competent agency of the foreign country is submitted the lawful property request, it will be proceeded as if the request is submitted to the competent court. (3) Of the refusal the criminal prosecution to be undertaken as well as whether the decision is legally valid, which has been brought in the criminal procedure, will be informed the foreign country which has submitted the request.

Chapter XXXI

PROCEDURE FOR EXTRADITION OF ACCUSED AND CONVICTED PERSONS

Article 509 Extradition of accused or convicted persons will be requested and conducted according to the provisions of this Code, unless with an international treaty it is not determined differently.

Article 510 (1) Presumptions for extradition are:

1) the person whose extradition is requested not to be a citizen of the Republic of Macedonia; 2) the crime for which there is a request for extradition not to be committed on the territory of the

Republic of Macedonia, against it or against its citizen; 3) the crime for which there is a request for extradition to be a crime both according to the domestic

law and the law of the country in which it has been committed; 4) according to the domestic law the criminal prosecution not to be obsolete or the execution of the

punishment not to be obsolete before the foreigner is detained or examined as an accused; 5) the foreigner whose extradition is requested not to be convicted before by the domestic court for

the same crime, or for the same crime by the domestic court not to be released with a legally valid decision, or against him the criminal procedure not to be interrupted or the prosecution not to be rejected with a legally valid decision, or for the same crime procedure not to be initiated in the Republic of Macedonia or against it or against a citizen of the Republic of Macedonia, unless a guarantee is not issued for realisation of the lawful property request of the damaged;

6) the identity of the person, whose extradition is requested to be determined, and 7) there to be sufficient evidence for a grounded suspicion that the foreigner, whose extradition is

requested, committed certain crime or that there is a legally valid verdict.

Article 511 (1) Procedure for extradition of accused or convicted foreigners is initiated on the application of the foreign country. (2) The application for extradition is submitted in a diplomatic course. (3) To the application for extradition must be enclosed:

1) means for determination of the identity of the accused i.e. the convicted person (exact description, photographs, fingerprints and similar);

2) certificate or other data for the citizenship of the foreigner; 3) the prosecution act or the verdict or the decision for detention or another act which is equivalent

to this decision, in original or in a certified copy in which has to be noted the name of the person whose extradition is requested and other necessary data for determination of his identity, description of the crime, lawful title of the crime and evidence for the grounded suspicion, and

4) an extract from the text of the Criminal Code of the foreign country which is to be applied or has been applied against the accused for the crime for which there is a request for extradition, and if the crime

107 has been committed on the territory of a third country, also an extract from the text of the Criminal Code of that country. (4) If the application and the enclosed documents are in a foreign language, it also has to be enclosed a certified translation in Macedonian language.

Article 512 (1) The Ministry of External Affairs delivers the application for extradition of a foreigner by the Ministry of Justice to the investigating judge of the court on whose region the foreigner has resided or on whose region he will be caught. (2) If the permanent or temporary residence of the foreigner whose extradition is requested is not known, it will be previously determined by the assistance of the police. (3) If the application is appropriate to the conditions in Article 511 of this Code, the investigating judge will issue an order the foreigner to be detained if there are reasons under Article 184 of this Code, i.e. will undertake other security measures his presence to be secured, unless from the application itself it is obvious that there is no question for extradition. (4) After he has determined the identity of the foreigner, without any delay the investigating judge will inform the foreigner why and on the basis of which evidence his extradition is requested and he will call him to make a statement at his defence. (5) For the examination and the defence will be constructed a minutes. The investigating judge will instruct the foreigner that he may choose a counsel or he will assign him a counsel ex officio, if it is a crime for which defence is compulsory according to this Code.

Article 513 (1) In emergencies, when there is a danger that the foreigner might abscond or hide, the Ministry of Internal Affairs may arrest the foreigner to be delivered to the investigating judge of the competent court on the basis of the application of the competent foreign agency, without reference how it is directed. In the application have to be included the data for the certification of the identity of the foreigner, the nature and the title of the crime, the number of the decision, the date, place and title of the foreign agency which has determined the detention and a statement that the extradition will be requested regularly. (2) When detention is determined in reference of paragraph 1 of this Article, after the examination, the investigating judge will inform of the detention the Ministry of External Affairs by the Ministry of Justice. (3) The investigating judge will release the foreigner when the reasons for detention cease to exist, or if the application for extradition is not submitted within the period which he has determined, taking into consideration the distance of the country which requests for extradition, but which cannot be longer than 90 days from the day when the foreigner was detained. The foreign country will be informed of the period. (4) When the proscribed application is submitted within the determined period, the investigating judge will proceed according to Article 512, paragraphs 3 and 4 of this Code.

Article 514 (1) After the hearing of the public prosecutor and the counsel, if necessary the investigating judge will conduct other inspections in order to be certified whether there are conditions for the extradition of the foreigner i.e. for delivery of the objects on which or with which assistance the crime has been committed if the objects have been confiscated from the foreigner. (2) After the conducted inspections, the investigating judge will submit to the Chamber the inspection records and his opinion. (3) If against the foreigner whose extradition is requested there is a criminal procedure at the domestic court due to the same or another crime, the investigating judge will notify that in the records.

Article 515 (1) If the Chamber of the competent court finds that the lawful presumptions for extradition are not fulfilled, it will bring a decision that the application for extradition is denied. The decision will be directed ex officio by that court to the Supreme Court of the Republic of Macedonia, which after the hearing of the public prosecutor will either confirm, cancel or alter the decision.

108 (2) If the foreigner is detained, the Chamber may decide the foreigner to remain in detention until the legally valid decision is reached for the rejection of the extradition. (3) The legally valid decision with which the extradition is rejected will be directed by the Ministry of Justice to the Ministry of External Affairs, which will inform the foreign country of that.

Article 516 If the Chamber of the competent court finds that the lawful presumptions for extradition of the foreigner are fulfilled (Article 510), it will certify it with a decision. Against the decision the foreigner has a right to an appeal to the competent court.

Article 517 If the court on the appeal finds that the lawful conditions for extradition of the foreigner are fulfilled, i.e. if against that decision of the first degree court an appeal is not submitted, the case is directed to the Ministry of Justice, which will decide on the extradition.

Article 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.

Article 519 (1) In the decision with which it is allowed extradition of a foreigner, the Minister of Justice will note:

1) that the foreigner cannot be prosecuted for another crime committed before the extradition; 2) that against him cannot be executed a sentence for another crime committed before the

extradition; 3) that against him cannot be applied a more severe punishment than the one he is convicted of, and 4) that he cannot be extradited to a third country due to prosecution for a crime committed before

the allowed extradition. (2) Apart from the noted conditions, the Minister of Justice may set other conditions for extradition.

Article 520 (1) Of the decision with which it is decided on the extradition will be informed the foreign country in a diplomatic course. (2) The decision with which the extradition is allowed will be directed to the Ministry of Internal Affairs which orders the foreigner to be apprehended to the border where on the agreed place he will be extradited to the agencies of the foreign country which has requested the extradition.

Article 521 (1) If extradition of the same person is requested by several foreign countries for the same crime, the primacy will be given to the application of the country whose citizen the person is, and if that country does not request the extradition- to the application of the country on which territory the crime has been committed, and if the crime has been committed on the territory of several countries or if it is not known where it is committed- to the application of the country which has first requested for extradition. (2) If extradition of the same person is requested by several countries for different crimes, the primacy will be given to the application of that country whose citizen the person is, and if that country does not request extradition- to the application of the country on whose region is committed the most severe crime, and if the crimes are equally severe- to the application of the country which has first requested for extradition.

109 Article 522

(1) If against the person who is in a foreign country, there is a criminal procedure in the Republic of Macedonia or if the person who is in a foreign country is convicted by the domestic court, the Minister of Justice may submit an application for extradition. (2) The application is submitted to the foreign country in a diplomatic course and with it are enclosed the documents and data under Article 511 of this Code.

Article 523 (1) When there is a danger that the person whose extradition is requested might either abscond or hide, before it is proceeded according to Article 522 of this Code, the Minister of Justice may request against that person to be undertaken necessary measures for his detention. (2) In the application for temporary detention will be particularly noted the data on the identity of the requested person, the nature and title of the crime, the number of the decision, the date, place and title of the body which has determined the detention, i.e. data on the verdict which is legally valid as well as the statement that the extradition will be requested regularly. (3) The time spent in detention which is determined by the foreign court, is not calculated in the period determined under Article 189, paragraph 1 of this Code.

Article 524 (1) If the requested person is extradited, he may be criminally prosecuted, i.e. against him a sentence executed only for the crime for which the extradition has been allowed. (2) If that person has also been convicted with a legally valid verdict by the domestic court for other crimes committed before the extradition for which the extradition is not allowed, the provisions of Article 330 of this Code will be accordingly applied. (3) If extradition is allowed under particular conditions in view of the type or severity of the sentence which may be pronounced i.e. be executed and under these conditions is accepted, during the pronouncement of the sentence, the court is bound to those conditions, and if it is in question an execution of an already pronounced sentence, the court which has proceeded in last degree will alter the verdict and will accord the pronounced sentence to the conditions for extradition. (4) If the extradited person was detained in a foreign country for a crime for which he is extradited, the time which he spent in detention will be calculated in the sentence.

Article 525 (1) If extradition is requested by a foreign country from another foreign country and the requested person has to be extradited through the territory of the Republic of Macedonia, the extradition on the application of the interested country may be allowed by the Minister of Justice under condition that he is not a citizen of the Republic of Macedonia and the extradition not to be performed for a political or military crime. (2) The application for extradition of the person through the territory of the Republic of Macedonia has to contain all data under Article 511 of this Code.

Chapter XXXII

PROCEDURE FOR COMPENSATION OF DAMAGE, REHABILITATION AND FOR REALISATION OF OTHER RIGHTS OF PERSONS WHO ARE CONVICTED AND ARRESTED

ON UNJUSTIFIED GROUNDS

Article 526 (1) The right to compensation of the damage due to an unjustified conviction has the person against whom has been pronounced a legally valid criminal sanction or who has been found guilty but released from the punishment and afterwards due to an extraordinary judicial remedy the new procedure has been interrupted with a legally valid decision or with a legally valid verdict has been released from the charge or the prosecution has been rejected, unless in question are the following cases:

110 1) if the interruption of the procedure or the verdict with which the prosecution has been

rejected is due to the fact that in the new procedure the damaged as a plaintiff i.e. the private prosecutor has withdrawn from the prosecution or the damaged has withdrawn from the proposal and the withdrawal has been a consequence of the agreement with the accused, and

2) if with the decision in the new procedure the prosecution act has been rejected due to the incompetence of the court and the authorised prosecutor has initiated the prosecution before the competent court. (2) The convicted person has not the right to compensation of damage if by his false confession or in another manner he has caused his conviction on purpose, unless he has been forced to it. (3) In case of a conviction for a serial crime, the right to compensation of damage may also refer to particular crimes in view of which the conditions for allowing compensation are fulfilled.

Article 527 (1) The right to compensation of damage becomes obsolete in three years from the day when the verdict becomes legally valid with which the accused is released from the charge or with which the prosecution is rejected, i.e. within a period of three years from the legally valid decision with which the prosecution act has been rejected or the procedure has been interrupted and if on the appeal has decided the higher court within the period of three years from the day of the reception of the higher court decision. (2) Before submission of the charge for compensation of damage to the court, the damaged is obliged with his request to address to the Ministry of Justice in order an agreement to be made for the existence of the damage and for the type and amount of the compensation. (3) In case of Article 526, paragraph 1, item 2 of this Code, on the request it may be decided only if the authorised prosecutor has not undertaken prosecution before the competent court within three mounts from the day of the reception of the legally valid decision. If after the expiry of this period the authorised prosecutor undertakes the prosecution before the competent court, the procedure for compensation of damage will be interrupted until the completion of the criminal procedure.

Article 528 (1) If the request for compensation of damage is not accepted or if after it the Ministry of Justice does not reach a decision within three mounts from the day of the submission of the request, the damaged may bring a charge for compensation of damage at the competent court. If an agreement is made only in view of part of the request, the damaged may bring a charge in view of the rest of the request. (2) While the procedure under paragraph 1 of this Article lasts, the obsolescence under Article 527, paragraph 1 of this Code does not run. (3) The charge for compensation of damage is submitted against the Republic of Macedonia.

Article 529 (1) The successors inherit only the right of the damaged to compensation of property damage. If the damaged has already submitted a request, the successors may continue the procedure only within the limits of the already submitted request for compensation of property damage. (2) The successors of the damaged may after his death continue the procedure for compensation of damage i.e. may initiate a procedure if the convicted person died before the expiry of the period for obsolescence and did not withdraw from the request.

Article 530 (1) The right to compensation of damage also has the person:

1) who was detained and the criminal procedure was not initiated or the procedure has been interrupted with a legally valid decision or with the legally valid verdict has been released from the charge or the charge has been rejected;

2) who served a sentence of imprisonment, and due to the repetition of the criminal procedure, the request for protection of legality or the request for extraordinary re-examination of the legally valid verdict he is pronounced a sentence of imprisonment for a shorter period than the sentence he served, or he is

111 pronounced a criminal sanction which does not consist of depriving from his freedom or is found guilty and released from the punishment;

3) who due to an error or unlawful matter of the body, he has been deprived from his freedom on unjustified grounds or has longer been kept in detention or in the institution for execution of the sentence or the measure, and

4) who has been detained longer than the sentence of imprisonment he was convicted of. (2) The person who under Article 188 of this Code is deprived from his freedom, without any lawful ground, has the right to compensation of damage if against him detention has not been determined or if the time of his detention is not calculated in the pronounced sentence for a crime or for an offence. (3) The person who has caused his own deprivation from his freedom by unacceptable behaviour does not have the right to compensation of damage. In cases of item 1, paragraph 1 of this Article the right to compensation of damage is excluded although the circumstances under Article 526, paragraph 1, items 1 and 2 exist or if the procedure is interrupted on the basis of Article 135 of this Code. (4) In the procedure for compensation of damage in cases of paragraphs 1 and 2 of this Article will be accordingly applied the provisions of this Chapter.

Article 531 (1) If the case to which refers the unjustified conviction or the unjustified arrest of a person is presented by any mean of public information therefore the reputation of the person is degraded, on his request the court will announce in the newspapers or in another mean of public information an announcement for the decision with which it may be derived that the previous conviction or the arrest is unjustified. If the case is not presented in any mean of public information, on the request of that person such an announcement will be delivered to his employer. After the death of the convicted person, the right to such a request have his marital i.e. illegitimate spouse, his children, parents, brothers and sisters. (2) The request under paragraph 1 of this Article may be also submitted if the request for compensation of damage has not been submitted. (3) Without reference to the conditions under Article 526 of this Code, the request under paragraph 1 of this Article may be also submitted when due to an extraordinary judicial remedy the judicial qualification of the crime is altered, if due to the judicial qualification in the previous verdict the reputation of the convicted person has more severely been degraded. (4) The request under paragraphs 1 to 3 of this Article is submitted within six mounts (Article 527, paragraph 1) to the court which proceeded in first degree in the criminal procedure. On the request decides the Chamber (Article 22, paragraph 6). During the decision for the request are accordingly applied the provisions of Article 526, paragraphs 2 and 3 and Article 530, paragraph 3 of this Code.

Article 532 The court which proceeds in first degree in the criminal procedure, will ex officio bring a decision with which the notification of the unjustified conviction in the penalty register is revoked. The decision is delivered to the Ministry of Justice. For the revoked notification no one can have an access to the data from the penalty register.

Article 533 The person who is allowed an access to the records and copying them (Article 124) which refer to the unjustified conviction or unjustified arrest, cannot use the data of the records in the manner that might damage the rehabilitation of the person against whom the criminal procedure is conducted. The President of the Court is obliged to warn the person, who has the access to the records of that and it will be notified in the record, with the signature of the person.

Article 534 (1) The person, due to the unjustified conviction or unjustified arrest who has been denied his further employment or his social insurance, is granted his length of service, i.e. his insurance period as if he was working at the time of the unjustified conviction or unjustified arrest. In the length of service is also

112 calculated the period of unemployment due to the unjustified conviction or unjustified arrest which was not his fault. (2) During each decision for the right upon which influences the length of service or the insurance period, the competent body or the legal person will take into consideration the length of service recognised with the provision of paragraph 1 of this Article. (3) If the body or the legal person under paragraph 2 of this Article does not take into consideration the length of service recognised with the provision of paragraph 1 of this Article, the damaged may request from the court, noted in Article 528, paragraph 1 of this Code to certify that the recognition of this period according to the law has begun. The charge is submitted against the body or the legal person which disputes the recognised length of service and against the Republic of Macedonia (Article 528, paragraph 3). (4) On the request of the body i.e. legal person for which the right under paragraph 2 of this Article is realised will be charged from the budget (Article 528, paragraph 3) the proscribed amount for the time for which, with the provision of paragraph 1 of this Article the length of service is recognised. (5) The insurance period recognised with the provision of paragraph 1 of this Article is fully calculated within the period for pension.

Chapter XXXIII

PROCEDURE FOR ISSUE OF PURSUIT AND ANNOUNCEMENT

Article 535 If the temporary or permanent residence of the accused is not known, when it is necessary according to the provisions of this Code, the court will request from the Ministry of Internal Affairs to search for the accused and to inform the court of his address.

Article 536 (1) The issue of a pursuit may be ordered when the accused against whom is initiated a criminal procedure which is prosecuted ex officio and for which by law may be pronounced a sentence to three years of imprisonment or a more severe sentence, is a fugitive and there is an order for his apprehension or a decision for detention. (2) The issue of a pursuit is ordered by the court before which is conducted the criminal procedure. (3) The issue of a pursuit will be also ordered in case the accused has absconded from the institution where he is serving the sentence without reference to the severity of the sentence or in case he has absconded from the institution, where he is serving the institutional measure in reference of his deprivation from his freedom. In such a case, the order is issued by the director of the institution. (4) The order of the court or of the director of the institution for issuing a pursuit is directed to the Ministry of Internal Affairs for its execution. (5) The Ministry of Internal Affairs keeps a record for the issued pursuits. The data for the persons against whom is issued a pursuit are revoked from the record when the competent body revokes the pursuit.

Article 537 (1) If data are necessary for certain objects which are connected to a crime or objects which are to be found and particularly if it is necessary for determination of the identity of an unknown corpse, the issue of the announcement will be ordered in which it will be requested the data or the announcements to be delivered to the body which performs the procedure. (2) The Ministry of Internal Affairs may also announce photographs of corpses and of missing persons if there are grounds for suspicion that a crime caused the death i.e. the missing of the persons.

Article 538 The body which has ordered the issue of the pursuit or the announcement is obliged immediately to withdraw it when the person or the object is found or when the criminal prosecution or the execution of the

113 sentence becomes obsolete or for other reasons for which the pursuit or announcement are not further necessary.

Article 539 (1) Pursuits and announcements are posted by the Ministry of Internal Affairs. (2) In order the public to be announced of the pursuit or of the announcement, the means of public information may be used. (3) If it is likely that the person for whom there is a pursuit is abroad, the Ministry of Internal Affairs may post an international pursuit. (4) On the request of a foreign agency, the Ministry of Internal Affairs may post a pursuit for the person who is suspected to be in the Republic of Macedonia, if in the request there is a statement that in case of finding the person, his extradition will be requested.

Chapter XXXIV

TRANSITIONAL AND FINAL PROVISIONS

Article 540 The judge of the first degree court brings a decision on a request for repetition of the procedure (Article 394, paragraph 1) and makes a proposal on the request for extraordinary mitigation of the sentence (Article 401, paragraph 4).

Article 541 The provisions of this Code for repetition of the procedure, compensation of damage, rehabilitation and realisation of other rights of the persons who are convicted and arrested on unjustified grounds will be also applied to the cases which are completed with a legally valid decision before the enforcement of this Code.

Article 542 For the persons who were born abroad, as well as for the ones whose place of birth is unknown, the penalty register is managed by the Elementary Court Skopje II in Skopje.

Article 543 For minors who were born abroad or are with an unknown place of birth is established a central register managed by the Elementary Court Skopje II in Skopje.

Article 544 From the day of the enforcement of this Code the criminal procedures which are not completed according to the provisions of the Code for Criminal Procedure ("Yugoslav Official Gazette" number 4/77, 14/85, 74/87, 57/89 and 4/90) will be completed according to the provisions of this Code, if they are more appropriate for the accused person.

Article 545 From the day of the enforcement of this Code, the Code of Criminal Procedure is no longer valid ("Yugoslav Official Gazette" number 4/77, 14/85, 74/87, 57/89 and 4/90).

Article 546 This Code is enforced on the eighth day from the day of the announcement in the "Gazette of the Republic of Macedonia".