SENTENCING IN ABSENCE OF THE DEFENDANT

The Criminal Procedure Act provides in article 150/1 that investigation is conducted against a certain person because of a reasonable doubt that a crime is committed. In paragraph 2 of the same article provides that in the investigation all the evidence will be collected and data that are needed to decide to submit prosecution act or to stop the proceedings. The investigation is conducted on a request of the Public Prosecutor provided in article 151/1 of The Criminal Procedure Act.

Article 152/2 provides that the investigative judge will review the request to conduct an investigating and the documents in it and if he/she agrees he/she will bring a decision to conduct investigation. In the next paragraph 2 it is said that before the decision to conduct investigation the investigative judge will interrogate the suspect, except if there is a danger of postpounment.

What are the provisions of the criminal procedure that refer to the investigation in a case of absence of the defendant? In a case like this in article 162/2: " If the residence of the defendant is unknown, the investigation may be interrupted, but if the defendant has escaped or in a other way can not be reached by the bodies of prosecution, the investigation will be interrupted only on a proposal of the public prosecutor, if the proceedings are taken on his/her request. Paragraph 3 of the article: "before interruption of the investigation, all the evidence of the crime committed and the criminal responsibility will be collected".

After the collection of all the evidence in the investigation the defendant that is not available to the court, or has escaped or in an other way can not be reached by the bodies of prosecution is left to be interrogated. This fact is confirmed by a decision of interruption of the investigation and a request for a search to the bodies of the Ministry of Interior. This decision of the investigative judge is of a formal nature and it only states a fact of unavailability of the defendant and that is not an obstacle for a further procedure of submitting a prosecution acts by the public prosecutor before the court so a trial can be conducted.

The investigative judge should examine the existing of a reasonable doubt that crime is committed, that the law demands, but not to examine the evidence of guilt of the defendant. The investigation of the reasonable doubt that the defendant committed a crime should be based on existing evidence that link the defendant to the crime to provide the subjective and the objective identity and the connection between the event and the prosecution act.

For the defendant the law provides obligatory defense in article 66/1: " If the defendant is dumb, deaf or incapable to defend himself successfully or if a criminal procedure is conducted against him for a crime of which, according to the Code a sentence to life imprisonment is proscribed, then he must have a counsel during his first questioning".

Paragraph 2: "The defendant must have a counsel if detention is defined against him during the detention period".

Paragraph 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."

Paragraph 4: "AS soon as decision for trial in absence is brought, the accused who is tried in absence (article 292) must have a counsel." The provisions of this article are providing the obligatory defense in different levels of the proceedings:

• In the first questioning in the investigation;
• In the time of delivery of the prosecution act;
• When a decision for a trial in absence of the defendant is brought.

The defense attorney has an active role during the whole investigation. He has procedural rights for example to propose to the investigative judge to take some investigative actions, has a right to be present in the insight and the questioning of the experts, to be present in the search of a home, to be present when is obvious that the witness will not come to the trial and he should be informed by the investigative judge. The defense attorney in article 160 and article161 of The Criminal Procedure Act provides the defense.

Consequently the rights of the defendant provided by article 4/2 of the Code and article 12/3 of the Constitution, are secured. The prosecutor in the prosecution act besides the data about the defendant may include the fact that the defendant has escaped or it is not available to the state bodies of prosecution, and in this way it is possible for the court to appoint him/her a defense attorney.

On this fact are pointing the necessary conditions to hold a trial. L 292/3 says:" 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.

The proceedings of a person who has been judged in absence can be repeated according to article 398 of The Criminal Procedure Act. According to this article paragraph 2 it is possible to allow an extraordinary legal remedy Repeating of the criminal procedure. According to the decision that allows the repetition of the criminal procedure the court will order delivery of the prosecution act tot he accused if this was no t already done or returning the procedure in a phase of investigation and interrogation of the suspect.

This means that there are no legal obstacles and violations if against the accused a proceeding of this kind is conducted where the accused is not interrogated in the investigation and after the bringing of the verdict he has a legal possibility to defend himself as one of the basic rights guarantied by the Constitution, the right of a fair trial.

The defendant was not questioned by the court not because of the ignorance or the absence of a will of the prosecutor or the investigative judge but because of the escape of the defendant who run from the law.

The prosecutors and the judges in the criminal procedure should always think of the legal provisions that refer to the victims of the crime and their protection. The victims of the crime may be the citizens, their freedom and property guarantied by articles 9,10, 11 of the Constitution but also the state and its institutions. A victim may be the state itself, its institutions and its representatives. The verdict brought in absence of the defendant is a moral and social sentence of the criminals and the crime committed and has a concrete influence on the punishment, confiscation, extradition etc. The verdict may be a condition of exercising of a right of the victim or a relief in the exercising of this right.

If this kind of cases are not proceeded or sentenced the victims of these crimes are put in a more difficult position to be passive in the protection of their rights and to wait for years legal conclusion and a verdict. By this type of actions the citizens will loose trust in the judicial system: the prosecution and the courts, which according to the Constitution are obligated to efficiently protect them from the criminals and their crime.

PUBLIC PROSECUTION OF THE REPUBLIC OF MACEDONIA