Resolution U.no.100/2019

U.no.100/2019

On the basis of Article 110 of the Constitution of the Republic of North Macedonia and and Article 71 of the Rules of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of Macedonia” no.70/1992 and “Official Gazette of the Republic of North Macedonia” no.202/2019) at its session held on 4 December 2019, the Constitutional Court of the Republic of North Macedonia took the following

R E S O L U T I O N

1. THERE SHALL NOT BE INITIATED proceedings for assessing the constitutionality of Articles 1 and 2 of the Law on Amnesty (“Official Gazette of the Republic of Macedonia” no.233/2018).

2. Mitko Chavkov from Skopje lodged an application with the Constitutional Court of the Republic of North Macedonia to assess the constitutionality of Article 1 and Article 2 of the Law on Amnesty (“Official Gazette of the Republic of Macedonia” no.233/2018).

According to the allegations in the application, the contested provisions of Articles 1 and 2 of the Law on Amnesty violated the following provisions of the Constitution: Article 8 under which the basic constitutional values are the basic freedoms and rights of the individual and citizen, recognised in international law and laid down by the Constitution, and the rule of law, then Article 9 under which citizens of the Republic of North Macedonia are equal in their freedoms and rights before the Constitution regardless of sex, race, colour of skin, national or social origin, political and religious beliefs, property and social status and laws must be consistent with the Constitution, and all other regulations with the Constitution and law.

The application states that the provisions of Article 1 of the Law on Amnesty were contrary to the said constitutional norms as they restricted the validity of the Law to certain crimes and certain individuals only, as it was stipulated in paragraph 3 of this article of the Law, under which amnesty did not apply to the individuals and the crimes specifically listed in this paragraph of Article 1 of the Law.

The application also states that the provisions of Article 2 of the Law on Amnesty did not comply with the above provisions of the Constitution, because it was envisaged the court which decided in the course of the proceedings, and after obtaining the opinion of the public prosecutor, to decide to whom the application for amnesty would be granted, and thus the amnesty gained the status of “judicial amnesty” instead of legal amnesty as an act of pardon and clemency of the state against the perpetrators of crimes not to initiate criminal prosecution or already convicted persons to have the punishment pardoned or mitigated.

The application suggests that based on the specific amnesty under this Law during the court proceedings for the events of 27 April 2017 amnesty was granted to only 20 defendants, out of a bigger number of defendants, and based on an independent assessment of the court, upon previously obtained opinion by a public prosecutor, which was totally unconstitutional and discriminatory.

For these reasons, the application proposes that the Court initiate proceedings to assess the constitutionality of Articles 1 and 2 of the Law on Amnesty and annul the same.

3. At its session, the Court found that the Law on Amnesty foresees:

Article 1

(1) This Law shall exempt from criminal prosecution, stop initiated criminal proceedings and completely exempt from serving the prison sentence (hereinafter referred to as “amnesty”) the persons who are reasonably suspected of having committed a criminal offence related to the events in the Assembly of the Republic of Macedonia on 27 April 2017.
(2) The amnesty under paragraph (1) of this Article shall:
-exempt from criminal prosecution under the Criminal Code and other laws of the Republic of Macedonia the persons who are reasonably suspected of having committed a criminal offence related to the events in the Assembly of 27 April 2017,
-stop the criminal proceedings for criminal offences under the Criminal Code and other laws of the Republic of Macedonia against suspects and defendants, in connection with the events in the Assembly of the Republic of Macedonia of 27 April 2017 for whom there is reasonable suspicion of having committed a criminal offence until the day of entry into force of this Law,
-exempt from execution of the suspended sentence and exempt from serving the prison sentence the persons who committed criminal offences under the Criminal Code and other laws of the Republic of Macedonia, and in connection with the events in the Assembly of the Republic of Macedonia of 27 April 2017, and who until the date of entry into force of this Law started serving a suspended sentence or serving a prison sentence in penitentiary institutions in the Republic of Macedonia.
(3) The provisions of paragraph (2) lines 1, 2 and 3 of this Article shall not apply to suspects, accused, effectively convicted and persons serving a prison sentence for related events and in connection with the events in the Assembly of the Republic of Macedonia of 27 April 2017 for whom there is reasonable suspicion to have participated in the preparation or organisation of the events in the Assembly of the Republic of Macedonia or who were convicted effectively, and who until the date of entry into force of this Law committed the criminal offence of “Association for hostile activity” under Article 324 paragraph 1 of the Criminal Code, undercover agents who used physical force, persons who committed violence, persons who carried weapons or explosive materials without authorisation and persons who acted against the official authorisations in committing the criminal offence of “Terrorist endangerment of the constitutional order and security” under Article 313 of the Criminal Code, the criminal offence of “Murder” under Article 123 of the Criminal Code, the criminal offence of “Violence” under Article 386 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 , 7/2008, 139/2008, 114/2009, 51/11, 135/11, 185/11, 142/12, 166/12, 55/13, 82/13, 14/14, 27/14, 28/14, 41/14, 115/14, 132/14, 160/14, 199/14, 196/15, 226/15 and 97/17).
(4) This exception does not apply to perpetrators of the criminal offence of “Violence” under Article 386 of the Criminal Code as well as perpetrators of the criminal offence of “Association for hostile activity” under Article 324 of the Criminal Code in conjunction with Articles 18, 19, 23 and 24 of the Criminal Code.
(5) The conviction shall be deleted and the legal consequence from the sentence shall be repealed from the date of entry into force of this Law.

Article 2

(1) The procedure for applying this Law to persons against whom there is ongoing criminal proceedings shall be initiated at the request of the suspected, accused and sentenced person.
(2) The application under paragraph (1) of this Article shall be lodged within 5 (five) days from the date of entry into force of this Law with the first instance court conducting the proceedings, which brings a ruling within 5 (five) days after receiving the application if the requirements of this Law are met, and after obtaining the opinion of the competent public prosecutor.
(3) The procedure for applying this Law to persons who are effectively convicted, and have not started to serve the prison term, shall be instigated ex officio by the competent first instance court that took the judgment, at the request of the competent public prosecutor, at the request of the sentenced person or a person who for the account of the defendant may lodge an appeal.
(4) The procedure for applying this Law to persons effectively convicted and serving a prison term shall be ex officio instigated by the penitentiary where the sentenced person is serving the prison term.
(5) The ruling on amnesty under the provisions of this Law shall be passed by the court which took the first instance decision, within 5 (five) days from the date the application was received.

4. Under Article 8 paragraph 1 line 3 of the Constitution of the Republic of North Macedonia, the rule of law is a fundamental value of the constitutional order of the Republic.

Article 9 of the Constitution stipulates that citizens of the Republic of North Macedonia are equal in their freedoms and rights regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. Citizens are equal before the Constitution and the laws.

Under Article 51 of the Constitution, in the Republic of North Macedonia laws must be in accordance with the Constitution and all other regulations with the Constitution and law. Everyone is obliged to observe the Constitution and the laws.

Article 68 paragraph 1 line 18 of the Constitution stipulates that the Assembly of the Republic of North Macedonia grants amnesty.

Amnesty is the right to forgiveness (clemency) of the state towards perpetrators of criminal offences which in the legal systems is known as the power of the state, under the conditions prescribed by law, not to initiate criminal prosecution against offenders or to pardon or mitigate the penalty of already sentenced persons. The institute amnesty finds its basis in the inviolable right of the state to punish, from where also derives the right of the perpetrator of the criminal offence to be pardoned.

Pursuant to the Constitution of the Republic of North Macedonia, in our state the Assembly of the Republic is the authority authorised to grant amnesty.

In view of amnesty, the Constitution only establishes the power of the legislator to grant amnesty, but does not determine the type of amnesty or for which offenses and offenders it would apply, thus leaving these matters to be more closely regulated by the legislator as the authorised granter of the amnesty with the act of amnesty.

In Article 113 (amnesty) 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, 7/2008, 139/2008, 114/2009, 51/2011, 135/2011, 185/2011, 142/2012, 166/2012, 55/2013, 82/2013, 14/2014, 27/2014, 28/2014, 115/2014, 132/2014, 160/2014, 199/2014, 196/2015, 226/2015 and 97/2017), the legislator has determined the types of amnesty, that is, that the persons covered by the act of amnesty are granted immunity from prosecution, or complete or partial exemption from the execution of the sentence, have the imposed sentence replaced with a more lenient punishment, have the conviction deleted or have certain legal consequence from the conviction repealed.

Since the adoption of the Constitution of the Republic to date, the legislator has used the right to grant amnesty several times, where it has defined the type of amnesty, the criminal offences and the persons to which the amnesty will apply, bearing in mind that there is no constitutional limit thereto.

Considering that the Constitution has no restriction for the legislator as to the way of determining the amnesty, nor in terms of the category of criminal offences, nor with regard to the category of offenders or sentenced persons to be covered by the amnesty, nor in terms of certain penalties or restrictions on the extent and scope of exemption from the execution of an imposed prison term, it is indisputable that the legislator is entitled with a specific amnesty law to designate the persons to whom the amnesty shall apply and those to whom it shall not apply.

The need for adoption of a specific act of amnesty may be different and depending on the need and purpose that the legislator wishes to achieve with the amnesty, it may apply to certain criminal offences, certain categories of offenders or sentenced persons, or certain penalties, which is defined by the legislator in each specific act of amnesty.

In the present case, using its constitutional right and authority to grant amnesty the Assembly of the Republic again used its right to pardon the perpetrators of criminal offences, adopting the Law on Amnesty in question in December 2018.

The Assembly of the Republic, as an authorised granter of amnesty, adopted the Law on Amnesty (“Official Gazette of the Republic of Macedonia” no.233/2018), which in Article 1 paragraph 1 defines that the persons who are reasonably suspected of having committed a criminal offence related to the events in the Assembly of the Republic of Macedonia of 27 April 2017 shall be exempted from criminal prosecution, criminal proceedings initiated against them shall be stopped and they shall be completely exempted from serving the prison term.

Proceeding from the provisions of Article 1 of the Law on Amnesty, which is cited in the content of the contested act, it is apparent that paragraph (2) of this Article provides for the conditions relating to the persons connected with the events of 27 April 2017, for exemption from criminal prosecution, stop of the initiated criminal proceedings and exemption from serving a prison term. In paragraphs (3) and (4) of Article 1 of this Law, the legislator has applied a negative clause in the standardisation and has defined:

“The provisions of paragraph (2) lines 1, 2 and 3 of this Article shall not apply to suspects, accused, effectively sentenced and persons serving prison terms for the events related to and in connection with the events in the Assembly of the Republic of Macedonia of 27 April 2017 for whom there is reasonable suspicion of having participated in the preparation or organisation of the events in the Assembly of the Republic of Macedonia or who have been imposed an effective sentence, and who after the entry into force of this Law committed the criminal offence of “Association for hostile activity” under Article 324 paragraph 1 of the Criminal Code, undercover agents who used physical force, persons who committed violence, persons carrying weapons or explosive materials without authorisation and persons who acted against the official authorisations in committing the criminal offence of “Terrorist endangerment of the constitutional order and security” under Article 313 of the Criminal Code, the criminal offence of “Murder” under Article 123 of the Criminal Code, the criminal offence of “Violence” under Article 386 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, 7/2008, 139/2008, 114/2009, 51/2011, 135/2011, 185/2011, 142/2012, 166/2012, 55/2013, 82/2013, 14/2014, 27/2014, 28/2014, 41/2014, 115/2014, 132/2014, 160/2014, 199/2014, 196/2015, 226/2015 and 97/2017) – (paragraph 3).

This exemption does not apply to perpetrators of the criminal offence of “Violence” under Article 386 of the Criminal Code, as well as to perpetrators of the criminal offence of “Association for hostile activity” under Article 324 of the Criminal Code in conjunction with Articles 18, 19, 23 and 24 of the Criminal Code (paragraph 4)”.
(preparation-Article 18, attempt-Article 19, incitement-Article 23, aiding and abetting-Article 24)

Paragraph 5 of Article 1 of this Law stipulates that the sentence shall be removed up to the date of entry into force of this Law (20 December 2018).

According to the provisions of Article 1 of the Law on Amnesty, first paragraph 1 defines the subject-matter of its regulation, which is granting amnesty and the subjects to whom amnesty applies, and then in paragraph 2 lines 1, 2 and 3 the legislator precisely regulates the conditions for the amnesty.

However, paragraph 3 in this Article of the Law defines an exception in which cases the amnesty does not apply, that is, regulates when amnesty does not cover the clearly identified criminal offences and persons who are suspects, accused, sentenced with an effective sentence and persons serving a prison term for the events related to and in connection with the events in the Assembly of the Republic of Macedonia of 27 April 2017.

The provisions of Article 2 of the Amnesty Law provide for that the procedure for applying this Law to persons against whom there is pending criminal proceedings is initiated at the request of the suspect, the accused and the sentenced person (paragraph 1).

The request under paragraph (1) of this Article shall be submitted within 5 (five) days from the date of entry into force of this Law, with the first instance court before which the proceedings is conducted, which brings a resolution within 5 (five) days from the date when the request was received if the requirements of this Law are met, and after obtaining the opinion of a competent public prosecutor (paragraph 2).

The procedure for applying this Law to persons against who effective sentences have been imposed, and who have not begun to serve the prison sentence, shall be initiated ex officio by the competent first instance court that rendered the judgment, at the request of the competent public prosecutor, at the request of the sentenced person or person who may file an appeal on behalf of the defendant (paragraph 3).

The procedure for applying this Law to persons who have been sentenced with an effective sentence and are serving the prison term, shall be instigated ex officio by the penitentiary institution in which the sentenced person is serving the prison term (paragraph 4).

The resolution on amnesty under the provisions of this Law is passed by the court which took the first instance decision, within five (5) days from the date the request was received (paragraph 5).

The application challenges the provisions of Article1 and Article 2 of the Law on Amnesty from the aspect that the legislator has made a division with the amnesty without any grounds by prescribing a different and selective approach to the persons connected with the events of 27 April 2017, into those to whom the amnesty applies and others who are exempted from the amnesty, and thus the amnesty lost the degree of generality in terms of the inclusion of the persons to whom it will be applied and the procedure for implementing this Law, contrary to the constitutional norms of respect for fundamental rights and freedoms of the individual and citizen recognised in international law and laid down in the Constitution, the rule of law and equality of citizens before the Constitution and laws.

From the analysis of the challenged provisions of the Law on Amnesty it appears that the legislator clearly and precisely defines the subject-matter of the amnesty, that the persons who are reasonably suspected of having committed a criminal offence related to the events in the Assembly of the Republic of Macedonia of 27 April 2017 are exempted from criminal prosecution, the criminal proceedings initiated against them are stopped and are completely exempted from serving a prison term, as described in detail in paragraph 2 of Article 1 of the Law on Amnesty. Paragraph 3 prescribes the exemption for the persons and criminal offences described in detail that the legislator does not include with the amnesty and are excluded from this right, which is the legislator’s constitutional power and freedom to define the elements and the limits of the amnesty. This is because there is no constitutional requirement that amnesty must be general in the sense to apply to all criminal offences as actually the application requests, but the legislator has the constitutional power to determine the criminal offences for which amnesty will be granted because the legislator defines the framework of the amnesty.

Thereby, it should be borne in mind that the determination of the amnesty depending on the type of criminal offences puts the perpetrators of certain criminal offences in the same legal position, regardless of gender, race, colour of skin, national and social origin, political and religious beliefs, property and social status, thus observing the principle of equality of the citizens before the Constitution and laws.

In the Law on Amnesty the legislator defines the type of amnesty, and the question from the aspect of the Constitution is not whether the Constitutional Court or anyone else holds that the persons covered by the Law should or should not be granted amnesty or others should also be granted amnesty (the Constitutional Court cannot put itself in the position of the Assembly and exercise its role), but whether the Assembly had constitutional power or not for what it did. Hence, according to the Court the question that disputes why some perpetrator of criminal offences are not entitled to amnesty and others are is unfounded, because there is no right to amnesty for the citizens to be put in the context of equality, but there is a prerogative of granting amnesty.

Given the aforementioned, the constitutional power of the Assembly to grant amnesty, which at the same time implies its right to determine to which offences the amnesty applies or not in the context of the requirements set down in the Law and to determine the category of persons to be covered by the amnesty or persons to whom the amnesty will not apply, there may not be raised a question before the Court with regard to the conformity of the challenged provisions of the Law on Amnesty with the provisions of the Constitution referred to by the applicant.

Regarding the procedure for the application of this Law, Article 2 stipulates how the procedure is initiated, whereby the procedure for persons against whom there is ongoing criminal proceedings is instituted at the request of those persons, which is filed within 5 days from the date of entry into force of this Law, with the first instance court before which the proceedings is conducted and which makes a decision on amnesty if the requirements of this Law are met, and after previously obtained opinion from the competent public prosecutor. Persons against whom an final sentence was imposed, and who have not begun to serve the prison sentence, the proceedings is instigated ex officio by the competent first instance court that rendered the judgment, at the request of a competent public prosecutor, at the request of a sentenced person or a person who may lodge an appeal on behalf of the defendant, and the proceedings for the persons against whom an effective sentence has been imposed and are serving the prison sentence is initiated ex officio by the penitentiary institution where the sentenced person is serving the prison sentence.

The provisions of the Law that concern the manner of initiating a procedure for granting amnesty depending on the position of the persons in the criminal proceedings, by treating a competent court, public prosecutor and the penitentiary institution where the sentenced person is serving the prison sentence, and in the context of the Law as a whole, do not prescribe lesser rights compared to each other to those persons who qualify for amnesty, and on the other hand the aim of these provisions is undoubtedly fast and efficient conduct of the proceedings.

Thus, the provisions of the Law on Amnesty ensure efficiency and economy in achieving amnesty for the persons for whom the Law is passed, and the cases of any potential unequal treatment of any or some of the persons belonging to the category covered by the Law on Amnesty is factual issue, that is, issue related to the application of the Law which at the same time regulates the legal avenues to protect the legal interests of being granted amnesty.

Given the aforementioned and the provisions of Article 2 of the Law on Amnesty that relate to the procedure for the application of this Law, the Court holds that the question raised with regard to inconsistency with the Constitution, in terms of the allegations in the application, is not founded.

5. Based on the above, the Court decides as in item 1 of this Resolution.

6. The Court passed this Resolution by a majority vote, in the following composition: Sali Murati, the President of the Court, and the judges: Naser Ajdari, Elena Gosheva, Nikola Ivanovski, Jovan Josifovski, Dr Osman Kadriu, Dr Darko Kostadinovski, Vangelina Markudova and Vladimir Stojanoski.

U.br.100/2019
04.12.2019
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of North Macedonia
Sali Murati