ABOUT THE PRACTICAL USAGE OF THE PROVISIONS FROM ARTICLES 145 AND 146 OF THE CRIMINAL PROCEDURE ACT

One of the basic principles of the criminal procedure is the principle of legality. That, in the article 17 of the Criminal Procedure Act, means that the Public Prosecutor is obligated to prosecute if there are evidence of a crime committed that is prosecuted ex officio. Exemption of this rule till 1997 existed only in the criminal proceedings against a minor (article 453) for crimes that are punishable to three years of imprisonment or a fee, if the Public Prosecutor considers that it is not necessary to take proceedings against the minor.

The Criminal Procedure Act that was empowered on April 11th 1997, provides two new institutes by which the principle of opportunity is practiced in the actions of the Public Prosecutor towards persons over 18 years of age, but in certain circumstances. These new institutes are expressed in the articles 145 and 146 of the Criminal Procedure Act.

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 favor of the budget or other institution which performs public authorization or with human purposes;
3/ fulfillment of commitments in reference of the serving.

2/ If the criminal within a period that can not be longer than six months fulfils his commitments, the public prosecutor will reject the criminal charge against the criminal of the crime under paragraph 1 of this Article.

This means that the cancellation of the prosecution is allowed only for the crimes in the short proceedings, agreement of the damaged is needed and consideration of the Public Prosecutor that the suspect will act according to the directions of the Prosecutor and he/she will fulfil the commitments provided in the points 1, 2, 3 of this article. The period of tolerance for cancellation of the prosecution is six months.

In a case of fulfillment of these condition grounds that exclude the criminal prosecution reject the criminal charges. If this is not a case the Public Prosecutor will undertake proceedings like in any other criminal charge.

For the right use of this institute on one side and its practicing, and on the other side for avoiding its misusage, it is necessary that the Public Prosecutor is organized operatively to be able to practice this complicated, social, criminal - politics measure, and to co-operate with the centers for social work.

Article 146 of the Criminal Procedure Act:

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 state 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.

This means that by this provision usage of the principle of opportunity is allowed, without period conditions, without other fulfillment of obligations by the suspect and without agreement of the damaged.

The usage of this institute is possible in the phase of decision making about the criminal charge, but also in the phase of prosecution act (he is not obligated to undertake prosecution, or he can renounce from criminal prosecution).

According to point one of this article renouncing from criminal prosecution, as this institute is popularly called is allowed for crimes no matter the punishment, when the Criminal Code provides a possibility to relief the convicted from punishment. This means that in any criminal situation provided by the general provision of the Criminal Code where it is possible to relief the convicted from a punishment, for example necessary defense or final need - article 9/3 and article 10/3 of the Criminal Code, unsuitable attempt - article 20 of the Criminal Code, willing renouncement - article 21, relief of punishment - article 42, special ground for relief if punishment - article 43 of the Criminal Code. And in any situation in the special provisions of the Criminal Code for a certain form of a crime where relief of punishment is provided, for example "Kidnapping" from article 141/3, " Taking a minor" article 198/4, " meaningful repentance" article 262, "Emission of a check and misusage of a credit card" article 274/4, and the articles 310/2, 324/4, 341/5, 358/3, 363/3, 364/2, 365/5367/5, 370/4, 382/5, 383/4 of the Criminal Code.

In all of these cases relief from punishment is allowed to stimulate the criminal not to finish the crime that he attempted or to repair the damage, that is a lesser damage, then punishing by all cost.

But in all of these cases the Public Prosecutor should make the real assessment if the criminal prosecution is not necessary because the criminal sanction is not needed. For this high professionally is needed and especially honesty of the Public Prosecutor.

The point two of this article is restrictive for the Public Prosecutor by the provided punishment for a crime of which he/she is not obligated to undertake criminal prosecution, or he/she has a possibility to renounce prosecution, and for this crime a fee is provided or a punishment of three years of imprisonment. But here the Public Prosecutor according to the attitude of the suspect and the shown real remorse decides that it is not necessary to prosecute. So, once again circumstances that should be carefully and conceously considered by the Public Prosecutor are being set.

PUBLIC PROSECUTION OF THE REPUBLIC OF MACEDONIA