Dear Mr. Pendarovski,
The Blueprint group for reforms in the judiciary asks you, as the President of the Republic, to use your constitutional authority and not to sign the decree for the promulgation of the Law on Amendments and Supplements to the Criminal Code, adopted on September 6 by the Assembly of the Republic of North Macedonia on 125th session. The amendments, among other things, intervened in the legal regulation of three criminal acts, Abuse of official position and authority, Malpractice in the service and Criminal association, in such a way that, among other things, the legally prescribed punishments for these crimes were reduced.
We believe and are convinced that the procedure in which these amendments were adopted and especially their content in relation to the above-mentioned crimes are in complete contradiction to the rule of law as a fundamental value of the constitutional order and completely undermine it. Their application in practice, in the case of their entry into force, will cause unforeseeable and irreparable consequences in terms of the fight against organized crime and corruption and the continuation of the chronic impunity of high officials.
First of all, the very procedure in which the Government proposed the changes was completely non-transparent, unethical and contrary to the regulations governing the processes for impact assessment of the regulation. Any intervention in penal legislation and especially in relation to penal policy, requires a comprehensive and detailed analysis and expert debate. Such a thing was absent in this case. Although there is a working group within the Ministry of Justice working on a new Criminal Code, it was bypassed. In addition, the proposal of the new Criminal Code was published on ENER in 2022, and these changes regarding these three crimes were not foreseen. There was no debate with experts, nor is it explained in the rationale for the need to amend the law why the penalties for the mentioned crimes are reduced.
Furthermore, the procedure itself was contrary to the principles of good governance. It was obvious the attempt to cover up the controversial changes within the framework of broader changes, which introduce new crimes that are undeniably necessary and necessary (eg crimes against the environment). The abuse of the so-called European flag despite most of the remarks from the European Commission and this time it was the case. The controversial changes are neither foreseen in the European law nor the penal policy and the amount of the fines justifies the introduction of laws in such a procedure. From the available correspondence tables, which provide an overview of the relevant EU documents with which the regulation complies, the two contested provisions are not mentioned and evaluated.
Regarding the content of the amendments, if they come into force, they will decriminalize the entire high crime committed by public officials in the last two decades. Without justification, the punishment for the different forms of the crime of Article 353 “Abuse of official position and authority” was significantly reduced by reducing the punishment from at least 3 years of imprisonment to a punishment of 1 to 4 years of imprisonment. Furthermore, for Article 394 “Criminal Association”, the penalty of up to 10 years was reduced to a maximum of 3 years. With regard to the crime of “Misconduct in the service”, if the perpetrator obtains a significant property benefit or causes significant damage, the maximum penalty is limited to 5 years, unlike the current arrangement where the maximum penalty is 20 years.
We remind you that also in 2018, in the procedure for harmonizing the Criminal Code with the Istanbul Convention, the punishments for certain crimes were reduced, which made it possible to impose lesser punishments, including suspended sentences, in some of the cases initiated by the SPO, such as in the matter of “Trust”. Some of the civil society organizations reacted publicly during that period and demanded that the proposal be withdrawn from the parliamentary procedure, but this did not happen, and immediately after the adoption of the specific changes, they already had an effective impact in the above-mentioned case.
The consequences if these proposals are passed into law will be particularly devastating for the fight against crime and corruption. In addition to sending a message that this crime is no less socially harmful than before (which is done by reducing the penalty), it will also have an impact through the reduction of the absolute limitation period. This is because the calculation of the statute of limitations is directly related and depends on the type and amount of the prescribed penalty for a separate crime, regardless of whether it is a statute of limitations for the criminal prosecution or the execution of the sentence.
Consequently, the proposed amendments to the Criminal Code will undoubtedly have an impact on the fate of the court proceedings initiated by the Special Public Prosecutor’s Office, and in which there is a danger of the occurrence of absolute obsolescence, i.e. the cases with the working title: Titanic, Target/Fortress , TNT, Titanic 2, Tresor, Thalir, Spanish Steps and Trajectory.
Although the Constitution of the RNM prohibits the retroactive application of regulations, it makes an exception if the later regulation is more favorable for the citizens. The Criminal Code regulates the same in Article 3. In other words, the persons who have committed these crimes in the last 10 to 15 years will benefit immediately and avoid criminal liability. This policy will increase the mistrust of the citizens, since the effect of it is even greater impunity for the perpetrators of crimes affecting the public interest (corruption, organized crime, etc.).
Finally, no less important, if these changes come into force, and as the Criminal Code itself provides, in addition to the realization of justice, the existence of the criminal justice system also aims at prevention, which means that the punishment should also enable the realization of special and general prevention. With this reduction of the prescribed punishments, and taking into account the extremely difficult and serious current situation in the country in terms of dealing with organized crime and corruption, it is really debatable whether in the future it will be possible to achieve first the special, and then of course the general prevention. All the more so that the achievement of the preventive goal with the punishment, whether it is about one or the other type of prevention, primarily depends on the type and amount of the prescribed punishment, that is, its proportionality with the gravity of the committed crime.
Without going into the reasons for these changes, we would like to emphasize that twisting and abusing the law and the legal system for the purpose of achieving any short-term political goals is always a bad approach that will have unforeseeable consequences on our society. Therefore, we hope that you will implement your statements and advocacy on the necessity of eradicating and ending the culture of impunity of high officials, as well as practical training for dealing with severe forms of organized crime and corruption. We ask you, as the President of the Republic, to stand behind the rule of law as a fundamental value of the constitutional order and to refuse to sign the decree for the promulgation of this law.
With respect,
Justice Reform Blueprint Group