U.no.28/2008

U.no.28/2008

Вовед

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 71 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 23 April 2008, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

Текст

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of the provisions in Article 35 paragraphs 2, 3 and 4, Article 123 paragraphs 2 and 3, Article 237 paragraph 4, Article 238 paragraph 4, Article 302 paragraph 3, Article 303 paragraph 3, Article 306, Article 309, Article 327 paragraphs 2 and 3, Article 330 paragraph 5, Article 333 paragraph 4, Article 403, Article 404 paragraphs 1 and 2, Article 405, Article 406, Article 407 paragraph 3, Article 409 paragraph 2, Article 419 paragraph 3, Article 420 paragraph 3, Article 421 paragraph 3 of the Criminal Code (“Official Gazette of the Republic of Macedonia”, nos. 37/1996, 80/1999, 4/2002, 43/2003, 19/2004, 81/2005, 60/2006, 73/2006, and 7/2008).

2. This resolution shall be published in the “Official Gazette of the Republic of Macedonia”.

3. Vasil Velkovski from Skopje submitted an initiative to the Constitutional Court of the Republic of Macedonia to instigate a procedure for the appraisal of the constitutionality of the provisions in the Law noted in item 1 of the present resolution.

The submitter of the initiative finds it disputable whether the life sentence is a type of the prison term or is a special type of sentence, in addition to the prison term and the fine. If the life sentence is a prison term, it could not be longer than 15 years, as the prison term could not be longer than 15 years. In such case the life sentence lost its sense, aim and justification if equalised with the maximum prison term. If the life sentence is a separate type of punishment, then it should be envisaged as such in Article 33 of the Criminal Code.

Quoting the constitutional provisions relating to the prohibition of death sentence, the inviolability of physical and moral integrity, the prohibition against torture, inhuman or degrading treatment and punishment, the inviolability of human freedom, the submitter of the initiative raises the question whether the sentence life imprisonment restricted the freedom, that is whether it restricted freedom temporarily.

According to the submitter of the initiative, the sentence life imprisonment was a sentence with which the perpetrator of a criminal offence was deprived of his liberty to the end of his life. According to him, the Constitution allowed restriction of human freedom, but that restriction was temporarily restricted and had to be the same, that is, equal for every individual. The court decision restricting the freedom had to set the time during which it was restricted. The determination that the freedom is restricted until the end of life time, that is, for life, meant that different perpetrators, depending on their age, would have different length of restriction of their freedom in case of a sentence to life imprisonment.

The sentence to life imprisonment without any limits restricted the freedom, which was in contradiction with the Constitution which allowed limited restriction of freedom. The sentence to life imprisonment ruled out the possibility for the individual to become free, and freedom was inviolable and could not be excluded until the end of life time of the individual. Each perpetrator, each individual for the same criminal offence, conditionally speaking, should be pronounced the same sentence, that is, the same temporal restriction of his freedom.

Hence, given that the Constitution did not render pronouncement of a life imprisonment for perpetrators of serious criminal offences, and prescribed that the freedom of the individual may be restricted for a definite time, the sentence life imprisonment was not in accordance with the Constitution, as a result of which the initiative requests that the Court instigate a procedure for appraising the constitutionality of all the provisions in the Criminal Code in which the sentence life imprisonment is envisaged.

In the specification of the initiative the submitter specifically notes the contested provisions of the Criminal Code.

4. At its session the Court found that under Article 35 paragraph 2 of the Criminal Code, if a prison term of 15 years is prescribed for a premeditated criminal offence, a sentence of life imprisonment may be prescribed for serious forms of that offence. Pursuant to paragraph 3 of the same article of the Code, the sentence life imprisonment may not be prescribed as a single principal punishment. Paragraph 4 of this article of the Code envisages that the sentence life imprisonment may not be pronounced against a perpetrator who at the time of committing the criminal offence did not turn 21 years of age.

Furthermore, the Court found that the other challenged provisions refer to the provisions from the Special Part of the Criminal Code, in which the sentence life imprisonment for separate criminal offences is laid down.

Under Article 123 paragraph 2, a person who:
1) takes the life of another in a cruel or treacherous manner;
2) takes the life of another while performing family violence;
3) takes the life of another and thereby, with intent, endangers the life of another person;
4) takes the life of another for self-interest, for the purposes of committing or covering up some other criminal offence, for ruthless revenge or for other low motives;
5) takes the life of another upon order;
6) takes the life of a female person, knowing that she is pregnant, or a minor; and
7) takes the life of a judge, public prosecutor or lawyer, while he is performing his office, that is, activity, or an official or military officer while carrying out the duties of public or state security or on duty maintaining public order, capturing a perpetrator of a criminal offence, or guarding a person deprived of his liberty;
shall be punished with a prison term of at least ten years or with life imprisonment.

Under paragraph 3 of this article of the Code, a person who premeditatedly takes the life of two or more persons, for whom he has not been tried previously, except if they are criminal offences under Article 9 paragraph 3, Article 10 paragraph 3 and Articles 124, 125 and 127, shall be punished with a prison term of at least ten years or with life imprisonment.

At its session, the Court also found that the other contested provisions envisage the penalty life imprisonment for the following criminal offences: robbery (Article 237 paragraph 4), armed robbery (Article 238 paragraph 4), kidnapping an aircraft or ship (Article 302 paragraph 3), endangering air traffic safety (Article 303 paragraph 3), acknowledging occupation (Article 306), murder of representatives of the highest state authorities (Article 309), punishment for the most severe criminal offences (Article 327 paragraphs 2 and 3), opposing a superior (Article 330 paragraph 5), attack on a military officer while performing his office (Article 333 paragraph 4), genocide (Article 403), war crime against civil population (Article 404 paragraphs 1 and 2), war crime against wounded and ill (Article 405), war crime against prisoners of war (Article 406), use of non-allowed combat means (Article 407 paragraph 3), unlawful killing and wounding of an enemy (Article 409 paragraph 2), international terrorism (Article 419 paragraph 3), endangering persons under international protection (Article 420 paragraph 3), taking hostages (Article 421 paragraph 3).

5. Under Article 8 paragraph 1 lines 1 and 3 of the Constitution of the Republic of Macedonia, the basic freedoms and rights of the individual recognised in international law and set down in the Constitution, and the rule of law, are the fundamental values of the constitutional order of the Republic of Macedonia.

Under Article 10 of the Constitution, the human right to life is irrevocable. The death penalty shall not be imposed on any grounds whatsoever in the Republic of Macedonia.

Pursuant to Article 11 of the Constitution, the human physical and moral integrity is irrevocable. Any form of torture, inhuman or degrading treatment and punishment is prohibited.

Article 12, paragraph 1 of the Constitution envisages that human right to freedom is irrevocable, while paragraph 2 envisages that no person’s freedom may be restricted except by a court decision and in cases and in a procedure defined by law.

Pursuant to Article 14 paragraph 1 of the Constitution, no person may be punished for an offence which had not been declared an offence punishable by law or by other regulation, prior to its being committed, and for which no punishment had been prescribed.

Under Article 51 paragraph 1 of the Constitution, in the Republic of Macedonia the laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and laws.

Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms sets forth that no one may be subjected to torture, inhuman or degrading treatment or punishment.

Under Article 5 paragraph 1 of this Convention, everyone has the right to liberty and security of person and no one shall be deprived of his liberty save in accordance with the law, inter alia, if serving a prison term upon a judgment by a competent court.

From the constitutional provisions noted, it arises that the principle of legality in the Republic of Macedonia has been raised to the rank of a constitutional principle. In the penal law this principle is expressed through the principle of legal determination of punishable offences and of penalties and serves as a guarantor for the rights and freedoms of the citizens on the one hand, and as a guarantor for the realisation of the penal policy of the country, integrated in its penal laws, on the other hand.

The principle of legality in the penal law contains the following elements: the state to proclaim as punishable offences the conduct of the person violating or endangering the freedoms and rights of the individual, the state to determine in an extremely specified way the essences of punishable offences, to prescribe a corresponding penalty for each punishable offence which is necessary and just and to specifically determine the limits of the penalty and of other sanctions, the state to determine precisely the powers of the court and of other authorities in the application of the penal-legal norms, nobody to be punished for an offence which prior to being committed had not been prescribed as a punishable offence, that is nobody to be pronounced a penalty that is not set down by law.

Thereby, the types of penalties and their severity are not determined by the Constitution, but they are left to be defined by law, taking account of Article 54 paragraph 4 of the Constitution under which the restriction of freedoms and rights may not refer to the legal determination of punishable offences and penalties.

In this sense, the Criminal Code (“Official Gazette of The Republic of Macedonia”, nos. 37/1996, 80/1999, 4/2002, 43/2003, 19/2004, 73/2006, and 7/2008) defines the basic principles and general institutes of material-legal character, which determine the general notion of the criminal offence, define the presuppositions and conditions of criminal liability and define the bases for their exclusion, stipulate the system of sanctions and more specifically define the conditions for the application of the sanctions, as well as prescribe the concrete criminal offences and sanctions that may be pronounced for each criminal offence.

Article 1 of the Criminal Code defines that nobody may be pronounced a penalty or another criminal sanction for an offence which, prior to being committed, had not been defined by law as a criminal offence and for which no penalty had been prescribed by law.

Pursuant to Article 4 of the same Code, criminal sanctions are: penalties, alternative measures, security measures and correctional measures.

Under Article 32 of the Criminal Code, in addition to exercising justice, the goals of punishment are: to prevent the perpetrator from committing criminal offences and his correction so that he will have an educational impact on the others not to commit criminal offences.

The types of penalties are prescribed in Article 33 paragraph 1 of the Criminal Code, under which the criminally liable perpetrators may be pronounced the following penalties for criminal offences: prison term, fine, prohibition to perform a profession, activity or duty, prohibition to drive a motor vehicle, and expulsion of a foreigner out of the country. Under paragraph 2 of this article of the Code, the prison term may be pronounced only as a principal penalty.

Under Article 35 paragraph 1 of the Code, the prison term may not be shorter than 30 days or longer than 15 years. A prison term of 20 years may be pronounced for criminal offences for which a life sentence is also prescribed.

Paragraph 2 of this article in the Code envisages that if a prison term of 15 years is stipulated for a premeditated criminal offence, a life imprisonment may also be prescribed for severe forms of that offence.

Pursuant to paragraph 3 of this article in the Code, the life sentence may not be pronounced against a perpetrator who at the time of committing the criminal offence did not turn 21 years of age.

Under Article 36 paragraph 4 of the Code, the person sentenced to life imprisonment may not be released on parole prior to serving at least 15 years of the prison term.

The Law on the Execution of Sanctions (“Official Gazette of the Republic of Macedonia”, no.2/2006) defines, inter alia, the aims of the execution of penalties. Under Article 37 of this Law, the aim of the execution of the prison term is to enable the sentenced persons to include into the society with the best prospects for an independent life in accordance with law. For the purposes of achieving the goal of the execution of the prison term what is developed with the sentenced persons is the feeling of responsibility and they are incited to accept and take an active part in the treatment during the execution of the sentence, motivated and directed at the correction and development of positive character features and abilities which accelerates the successful resocialisation.

Pursuant to Article 38, while executing the prison term what must be protected is the psycho-physical and moral integrity of the sentenced person and the human personality and dignity must be respected. Any form of torture, inhuman or degrading treatment and punishment is prohibited. What must be ensured is the right to personal security of the sentenced person and the self-respect of his personality.

Under Article 49 paragraph 2 of the Law, persons sentenced to life imprisonment, shall serve the sentence in accordance with the provisions for the execution of the prison term and shall enjoy all the rights and privileges, except those restricted with the house rules of the institution.

From the noted provisions of the Criminal Code, it arises that from a legal-technical point of view the legislator envisaged the life sentence within the frameworks of the provisions in the Code relating to the prison term. Hence, it derives that the Criminal Code of the Republic of Macedonia differentiates a timely limited prison sentence and a life sentence. Accordingly, life imprisonment is one type of the prison sentence, which is an exceptional sentence, given that it is prescribed for severe forms of premeditated punishable offences for which a prison term of 15 years is stipulated. From the provisions noted, it also stems that this punishment may not be prescribed as a single principal penalty, that is, it may be prescribed alternatively with the prison term of 15 years. An alternative for life imprisonment is also the prison term of twenty years.

The life sentence, as well as its alternative – the prison term of 20 years –, are absolutely defined sentences. The only corrective of the absolute nature of this sentence is the possibility for the person sentenced to life imprisonment to be released on parole, but not prior to serving at least 15 years in prison.

The life sentence was integrated into the criminal legislation with the adoption of the Criminal Code in 1996, with a view to filling in the gap that occurred with the repeal of the death sentence.

6. From the analysis of the international standards from the field of human rights and criminal law, it arises that the only agreement from the field of human rights which explicitly points to the life sentence refers to the pronouncement of life imprisonment without the possibility for release. That is Article 37 of the Convention for the Rights of the Child, under which member states shall provide: a) no child to be subjected to torture or other cruel, inhuman or degrading treatments or punishment. Death sentence and life imprisonment without the possibility for release may not be pronounced for criminal offences that have been committed by persons younger than 18 years of age.

That means that this provision prohibits the pronouncement of a life sentence without the possibility for parole or pardon, against minors.

Although there are no universal provisions prohibiting the pronouncement of the life sentence without the possibility for release against adult perpetrators of criminal offences, the Rome Statute of the International Criminal Court envisages that all punishments for the most severe forms of crimes – war crimes, crimes against humanity and genocide – should be revised after the expiration of 25 years. Thus, under Article 110 paragraph 3 of the Rome Statute, when the sentenced person serves two thirds of the sentence or 25 years of the life sentence, the Court shall review the sentence to decide whether it should be reduced or not. That procedure must not be conducted prior to the expiration of this time limit.

The Statute itself explicitly provides for a sentence life imprisonment for the most serious violations of the international humanitarian law (genocide, war crimes and crimes against humanity). Pursuant to Article 77 paragraph 1 item b) of the Rome Statute, to the person who has been sentenced for some of the noted criminal offences the court may pronounce a prison term to a definite number of years, which may not be longer than 30 years, or life imprisonment, when that is justified given the seriousness of the crime and the special circumstances of the defendant.

The other international agreements, such as, for instance, the International Covenant for Civil and Political Rights, the Standard Minimum Rules for the Treatment of Sentenced Persons, envisage standards for the treatment of persons sentenced to a prison term, without thereby making a distinction of the sentence prison term with restricted length and the sentence life imprisonment, with a view to ensuring that the execution of these sentences be humane and respect the human personality and dignity.

The question about the treatment of prisoners sentenced to long-term prison sentences is the subject of Recommendation (76) 2 of the Council of Europe Committee of Ministers adopted in 1976, in which, inter alia, the member states are recommended to examine the cases of these prisoners at certain time intervals with a view to determining whether they may be released on parole; in view of those sentenced to life imprisonment these reviews should be made after 8 to 14 years spent in prison and they should be repeated at regular intervals; these convicts to be released on parole pursuant to the legal conditions connected with a certain time period of a served sentence, immediately after a positive prognosis may be given, whereby it is advised that the general prevention is not used as the only justification for rejecting the requests for release on parole; to apply the same principles that refer to convicts to long-term sentences to convicts to life imprisonment.

These principles are further worked out in Recommendation 2003(22) of the Committee of Ministers to member states for release on parole and Recommendation 2003(23) for the management of the sentence life imprisonment and those sentenced to long-term punishments by prison administrations.

7. The comparative analysis of criminal legislations in a number of European countries demonstrates that in many Council of Europe member states there is a life sentence. The life sentence does not necessarily mean imprisonment until the end of the life of the individual. A number of countries envisage a kind of control of the pronounced life sentences with the possibility for release from further serving of the sentence. Some countries envisage a very long period of compulsory incarceration of life prisoners, for instance, 30 years in Estonia, 26 years in Latvia, 25 years in Poland, Slovakia and Moldova, 20 years in the Czech Republic, Albania, Romania and Turkey, while in others release is possible after 10 years, such as in Belgium, or 15 years in France, Germany, Luxembourg and Switzerland.

The most comprehensive provisions for the implementation of life imprisonment are found in England and Wales. There, the life sentence is compulsory for murder, while discretionary prison term may be pronounced for other severe offences against the personality. With the mandatory, that is, obligatory life sentence a so-called tariff is stipulated, that is, the earliest date when there may be release on parole. That tariff is 25 years. In addition, since 1997, the perpetrator who commits for the second time a severe sexual or violent offence is automatically rendered life imprisonment, except in case of extraordinary circumstances (automatic life sentence).

In a small number of European countries in which a life sentence may not be pronounced, there are penalties of longer-term deprivation of liberty (penalties of 25, 30 or 40 years). Thus, for instance, in Croatia, the most severe punishment is prison term of 20 to 40 years, which is pronounced as an exception. A release on parole is possible after serving one half, and as an exception one third, of the sentence. In Norway, the most severe sentence is a prison term of 21 years. Release on parole is possible after serving 12 years in prison. In Portugal, the maximum prison term is 25 years, and 30 years as an exception. The legislation in Slovenia envisages a maximum prison term of up to 30 years. Persons serving sentences longer than 15 years may be released on parole after serving three fourths of the sentence. However, in Slovenia there is an ongoing procedure for changes in the Criminal Code which propose the introduction of the life sentence, with an explanation that it is done for the purposes of harmonising the Slovenian legislation with the Rome Statute of the International Criminal Court. In Spain, the maximum sentence is 30 years in prison. In Island, the legislation stipulates a life sentence which, however, has never been pronounced since 1940.

8. The analysis of the more recent case law of the European Court for Human Rights in view of life sentence (Leger v. France, Judgment of 11 April 2006, Kafkaris v. Cyprus, Judgment of the Grand Court Chamber of 12 February 2008), demonstrates that the European Court does not find disputable the life sentence itself, in case the criminal legislation provides for the possibility for release on parole of the convict.

Thus, in the case of Leger v. France, the Court in Strasbourg did not find a violation of Article 5 paragraph 1, or Article 3 of the Convention. Namely, with regard to Article 5 the Court pointed that given the extremely severe offence committed by the applicant, the life sentence was not arbitrary for the purposes of Article 5 and it was not an obstacle for the applicant to be released given that he was released on parole, whereby his permanent exclusion from society was prevented.

In view of life sentence, the Court noted that as soon as the punitive element of the sentence was met, the further withholding of the sentenced person in prison should be based on the assessment of the risk and danger of the perpetrator. With the very fact that the applicant could request release on parole after 15 years in prison, which he did on a number of occasions, the Court found that he was not deprived of any hope whatsoever for reduction of the sentence, which was not restricted legally or factually. The Court concluded that the extended imprisonment as such, although long-term was not inhuman or degrading treatment.

In the case of Kafkaris v. Cyprus, the Grand Court Chamber pointed that the pronouncement of the life sentence against an adult perpetrator of a criminal offence in itself is neither prohibited nor in disagreement with Article 3 or any other article of the Convention. Concomitantly, the Court pointed that the pronouncement of the life sentence which cannot be reduced, that is there is no possibility for release, may raise a question under Article 3 (cases Nivette v. France, no.44190/98, Einhorn v. France, no.71555/01, Stanford v. the U.K., no.73299/01, Wynne v. the U.K., no.67385/01).

When determining whether life sentence cannot be reduced, the European Court was striving to establish whether the person sentenced to this penalty has prospects for release. The analysis of the case law of the European Court regarding this issue demonstrates that where the national law envisaged the possibility for revision of life sentence in order to reduce it, replace it, terminate it, or release the prisoner on parole, this is sufficient to satisfy Article 3. The Court in Strasbourg in a number of cases found that in case when incarceration was the subject of revision for the purposes of release on parole after the expiration of a minimum period of a sentence served, one cannot say that the sentenced persons are deprived of any hope of release whatsoever. (cases Stanford v. the U.K., Hill v. the U.K., no.19365/02, Wynne v. the U.K.) The Court indicated that this is the case even when no minimum period of effective imprisonment is required, as well as when the possibility for release on parole of sentenced persons serving a life sentence was restricted. Hence, it arises that life sentence does not become “non-reductive” with the fact that in practice it may be served completely. For the purposes of Article 3 it is sufficient for life sentence to be de jure and de facto possible to be reduced.

Hence, although the Convention generally does not provide for the right to release on parole or the right to have the sentence revised by the national authorities (judicial or administrative) in order to reduce or terminate it, from the case law it clearly derives that the existence of a system which envisages the consideration of the possibility for release is an important factor that should be taken into account when assessing the compatibility of the individual life sentence with Article 3 of the Convention. In this context, the European Court points that the choice of the separate criminal-legal system by the country, including the revision of the sentences and the regulation of release, in principle is not within the scope of the Court in Strasbourg, on a condition that the system thus chosen is not in contradiction with the principles contained in the Convention.

Thus, the Court in Strasbourg finds the stipulation of life sentence against an adult perpetrator of a criminal offence in itself as not prohibited, nor contrary to Article 3 or to any article of the Convention. However, the pronouncement of life sentence which is non-reductive, that is, which cannot be reduced, may raise the question of concordance with Article 3 of the Convention which prohibits torture and inhuman or degrading treatment or punishment. When assessing whether life sentence in a concrete case may be regarded as non-restricting, the Court established whether the person sentenced to this punishment has any prospects whatsoever for release from serving the sentence. Where the domestic legislation envisaged a possibility for revision of the sentence for the purposes of its reduction, replacement, termination or release on parole, the Court found that it was sufficient to satisfy Article 3 of the Convention.

9. From the statements in the initiative it arises that the submitter of the initiative essentially contests the life sentence from the aspect of Article 12 paragraphs 1 and 2 of the Constitution. From the very contents of this article of the Constitution, in the opinion of the Court, it does not derive at all that this article provides for some additional condition whether the restriction of human liberty, that is, the deprivation of liberty is temporarily restricted or unrestricted, from where it could be concluded that the legislator, in principle, is free to prescribe a prison term which is temporarily unrestricted, that is, which lasts until the end of the life of the convict.

However, given the importance of human dignity as a fundamental human value that is universally protected, the Court found that such additional condition, which prohibits deprivation of liberty till the end of the life of the individual, should be looked for in the provisions of the Constitution that refer to the inviolability of physical and moral integrity of the individual and the prohibition of any form of torture, inhuman or degrading treatment and punishment (Article 11 of the Constitution), which in certain way obliges the legislator to provide for mechanisms enabling the person sentenced to life imprisonment to regain his freedom again.

In the assessment of the Court, the long-term incarceration, that is, life sentence may not realise its criminal-political aims unless it is accompanied with measures that have as their aim to enable the sentence person to resocialise at a certain moment. In this context, of special importance is the institute of release on parole. As a matter of fact, the policy of criminal prevention which admits further withholding in prison of a sentenced person who has served a prison term for a certain time period that matches the seriousness of the committed offence and is not a danger for the society, is in contradiction with the recognised minimum rules for the treatment of sentenced persons and with the aims for social rehabilitation, which are an international standard integrated in international documents for human rights. Thus, for instance, Article 10 of the International Pact for Civil and Political Rights defines that all persons deprived of their liberty shall be treated in a humane manner and respecting the dignity of the human personality. The penitentiary system shall include treatment of sentenced persons the basic aim of which will be their correction and social rehabilitation.

The correction and preparation of the perpetrator to return in society should be the basic aim also of the execution of the life sentence, and thereby the competent authorities should act in the same manner as with the persons sentenced to a prison term, fully respecting their psycho-physical and moral integrity and dignity of personality and without any discrimination whatsoever.

Not only is human dignity one of the subjective rights guaranteed by Article 11 of the Constitution, but it is also a fundamental value of the democratic society that enjoys universal protection. The respect for moral integrity and dignity of the citizen in itself incorporates also the role of the state which should guarantee the protection of integrity and dignity in a manner with which it shall provide protection in case when these values are threatened. According to the Court, this role of the state is especially important in the criminal-legal sphere and in the system for the execution of prison sentences, for a reason that it is the state that incarcerates, but is also obliged to resocialise the perpetrators of criminal offences through an appropriate treatment.

A guarantee for this are the provisions in the Law on the Execution of Sanctions which proclaim humane treatment of the persons serving a prison term, respect for their personality and dignity without thereby differentiating between persons sentenced to a prison term and those sentenced to life imprisonment in terms of the enjoyment of their rights and privileges.

Hence, according to the Court, when assessing the constitutionality of the life sentence from the aspect of the statements in the initiative, one should take as a starting point the fact that this sentence, as it is governed in the Criminal Code of the Republic of Macedonia, is not unrestricted, that is, there is no life restriction of human liberty, as the submitter of the initiative believes. With the very fact that the person sentenced to this punishment may ask for release on parole, under the conditions specifically defined in the Criminal Code, that is, after serving 15 years in prison, it follows that the person sentenced to this punishment is not upfront deprived of any possibility whatsoever, that is, of a chance to be released from further serving the sentence. From the explanation of the proposer of the Criminal Code, it arises that this corrective is envisaged for humane reasons, as well as owing to the need to respect the resocialisation aim of the punishment. Namely, the long-term continued loss of liberty is an extraordinary physical and psychological burden that may result in a significant disturbance of the personality of the sentenced person, which is one of the reasons to introduce the release on parole. In this sense, the life sentence cannot be carried out in a humane way if the sentenced person upfront a priori is taken away any chance and possibility to restore his liberty. The equalisation of the life sentence with incarceration until the natural human life, to which the statements in the initiative come to, means negation of one of the aims of punishment – resocialisation of the perpetrator, that is, his correction and preparation for socially acceptable conduct when set free.

As a result of the abovementioned, the Court found that there may not be a founded question raised as to the concordance of the provisions in the Criminal Code relating to life sentence with the provisions of the Constitution.

10. On the basis of what has been stated, the Court decided as in item 1 of the present Resolution.

11. The Court passed the present resolution in the following composition: the President of the Court Dr Trendafil Ivanovski, and the judges: Mrs Vera Markova, Mr Branko Numoski, Mr Igor Spirovski, and Dr Zoran Sulejmanov. (U.no.28/2008)

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