U.br.168/2012

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 25 September 2013, the Constitutional Court of the Republic of Macedonia passed the following

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of Article 193 paragraph 1 of the Criminal Procedure Code (“Official Gazette of the Republic of Macedonia”, nos.150/2010, 51/2011 and 100/2012).

2. Pavle Trajanov from Skopje, in the capacity of President of the Democratic Union, filed an application to the Constitutional Court for instigation of proceedings to appraise the constitutionality of Article 193 of the Code noted in item 1 of this Resolution.

The applicant cites the contested Article 193 of the Code and notes that the provision was not in accordance with Article 26 of the Constitution, which explicitly guaranteed the right to inviolability of the home and envisaged in which cases that right could be restricted.

3. At its session the Court established that the contested Article 193 of the Code is titled: “Entry into home on the basis of consent or order for taking in”.

Under the contested Article 193 paragraph 1 of the Code, a house may be entered without a search warrant:

–     if the house owner agrees to that;
–     if there is a person who upon court order should be detained or brought in by force;
–     for the purposes of deprivation of liberty of a perpetrator caught in the act of committing a criminal offence prosecuted ex officio; or
–     in a place where a criminal offence was committed in order to conduct an inspection.

Under paragraph 2 of Article 193 of the Code, in the cases referred to in paragraph 1 of this Article minutes shall not be drafted, but the house owner shall be issued a receipt immediately, in which the reason for entering the house and all observations of the owner are noted. If the house was searched as well, minutes shall be drafted in accordance with Article 192 of this Code which must contain the reasons for a search without a warrant.
Under paragraph 3 of Article 193 of the Code, when a search was conducted without a search warrant, the executor of the search must immediately inform the public prosecutor thereof.

4. Article 26 of the Constitution guarantees the inviolability of the home. The right to the inviolability of the home may be restricted only by a court decision in cases of the detection or prevention of criminal offences or protection of people’s health.

Given the importance of the home as a condition for the life and work of the individual, the inviolability of the home is guaranteed by the Constitution in a manner that it may be restricted only by a court decision and in case when detection and prevention of a criminal offence of protection of the health is at issue.

From the analysis of the statements noted in the initiative, the Court established that the subject-matter of contestation is not the wholeness of Article 193 of the Criminal Procedure Code, but only paragraph 1 of this provision, which part was the subject-matter of appraisal of the Constitutional Court.

Article 193 of the Code, which contains the contested paragraph 1, is titled: “Entry into a home on the basis of consent or order for taking in”. according to the content of the challenged provision, a home may be entered without a search warrant in four different situations, as follows:

–     if the house owner agrees to that;
–     if there is a person who upon court order should be detained or brought in by force;
–     for the purposes of deprivation of liberty of a perpetrator caught in the act of committing a criminal offence prosecuted ex officio; or
–     in a place where a criminal offence was committed in order to conduct an inspection.

From the analysis of the remaining provisions of the Criminal Procedure Code it arises that the search is usually conducted on the basis of a written request for search (Article 186 of the CPC) or a verbal request for search (when there is a danger of delay – Article 187 of the CPC), but in both cases there is a written trace of the sustained and approved process actions by the judge in the preliminary proceedings. Namely, in the first case the judge in the preliminary proceedings issues an order in a written form, and in the second case upon the obtained information by phone, radio connection or other means of electronic communication the judge notes down the conversation in the minutes, signs it, makes a certified transcript of the minutes and submits both copies (original minutes and transcript) to the court within 24 hours from issuing the order. Accordingly, in both cases (based on written and on verbal request for search) there is a court order in writing for taking the process action of a house search, for the purposes of detecting or preventing a criminal offence.

Unlike what is noted, in the challenged paragraph 1 of Article 193 of the Code there is no written order or court decision on the basis of which the inviolability of the home may be restricted under Article 26 of the Constitution, and the question raised before the court is whether in the stipulated four situations the constitutionally guaranteed inviolability of the home is violated or not.

Under Article 22 item 17 of the Code, the term search implies a detailed search of a person, means of transportation or home under conditions defined by law.

As regards the first situation (Article 193 paragraph 1 line 1) which envisages conducting search of a home when the home owner agrees to that, the Court found that Article 26 of the Constitution is not violated. This for a reason that the entry into the home, that is, the violation of the privacy of the citizen takes place with his/her consent. Thereby, minutes are made for the search thus conducted in accordance with Article 192 of the Code, which, inter alia, must contain the reasons for the search without a warrant and the signature of the person where the search was conducted.

In the second situation (Article 193 paragraph 1 line 2) the entry into the home is for the purposes of taking in a person who, upon court order, should be detained or brought in by force, that is, the judicial police in this case acts upon the court order for taking in, which order contains all the data and the warrant for search of a home. The accent is on the taking in of the person, and not on the home search. At the same time, the taking in order contains also a search warrant, in case the taking in should be carried out in the home of the persons it refers to. Hence, in this legal situation the Court found that Article 26 of the Constitution is not violated.

Article 193 paragraph 1 line 3 of the Code envisages entry into the home without a court warrant for conducting search when it is required to deprive of liberty an offender who is caught committing a criminal offence that is prosecuted ex officio. The Court assesses that this possibility to infringe upon the privacy of the home does not violate Article 26 of the Constitution for a reason that it is an incidental situation when the judicial police finds the perpetrator of an offence prosecuted ex officio in his/her or in another person’s home in flagranti and when due to the taking of the action and the danger for the offender to escape from the prosecution authorities it is not possible to request at the same time a court order for taking an action – house search.

With the determination of the legislator in Article 193 paragraph 4 of the Code to be able to enter a home without a search warrant in order to have an inspection on a site where a criminal offence was committed, there is no violation of the constitutional provision that is invoked by the applicant.

On the basis of what has been noted the Court found that Article 193 paragraph 1 of the Criminal Procedure Code is in accordance with Article 26 of the Constitution.

5. On the basis of what has been stated, the Court decided as in item 1 of this Resolution.
          
6. The Court passed this Resolution with a majority vote in the following composition: the President of the Court Mr Branko Naumoski, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Elena Gosheva, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

U.br.168/2012                             
25 September 2013               
S k o p j e                             
                                      

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Branko Naumoski

On the basis of Article 25 paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon the voting against the non-initiation of a procedure in the Resolution U.br.168/2012 of 6 November 2013, for the part related to Article 193 paragraph 1 line 4 of the Criminal Procedure Code (“Official Gazette of the Republic of Macedonia”, nos.150/2010, 51/2011 and 100/2012), we separate and explain in writing the following

S E P A R A T E   O P I N I O N

With the said Resolution, with a majority vote the Constitutional Court did not initiate proceedings for the appraisal of the constitutionality of Article 193 paragraph 1 of the Criminal Procedure Code (“Official Gazette of the Republic of Macedonia”, nos.150/2010, 51/2011 and 100/2012).

The heading of the contested Article 193 is: “Entry into a home on the basis of consent or order for taking in” and contains four lines which set forth the situations in which a home may be entered without a search warrant: if the house owner agrees to that (line 1); if there is a person who upon court order should be detained or brought in by force (line 2); for the purposes of deprivation of liberty of a perpetrator caught in the act of committing a criminal offence prosecuted ex officio (line 3); or in a place where a criminal offence was committed in order to conduct an inspection (line 4). It is evident that the heading of the Article indicates that the cases encompassed therewith should refer to an entry into a home on the basis of consent or if there is an already issued warrant for taking in, which situations are set forth in the first, second and third lines, and actually neither do they include nor directly subsummarise the inspection on the scene where a criminal offence was committed.

Initially, it should be emphasised that Article 26 of the Constitution is very concrete and express: “The inviolability of the home is guaranteed. The right to the inviolability of the home may be restricted only by a court decision in cases of the detection or prevention of criminal offences or protection of people’s health.”

The so far constitutional-court case-law of the Constitutional Court of the Republic of Macedonia regarding this legal matter has experience with contested provisions (Article 199 paragraph 3 and Article 202 paragraph 1 of U.br.25/2000) of the former Criminal Procedure Code (“Official Gazette of the Republic of Macedonia”, no.15/97) for which no procedure was initiated for the appraisal of the constitutionality, but in its reasoning the Court is utterly careful and precise in the interpretation of these articles, with a view not to be in contradiction with Article 26 of the Constitution. Namely, in the Resolution U.br.25/2000 it is noted that: “…the right to inviolability of the home may be restricted only by a court decision in cases of the detection or prevention of criminal offences or protection of people’s health, for a reason that irrespective of the fact that the legislator envisages a possibility for conducting a search without prior handover of a warrant, it is undisputed that the court issued the warrant previously but the same is not handed over in cases when an armed resistance is assumed or if there is a suspicion of a serious criminal offence committed by a group or organisation.

As regards Article 202 paragraph 1 of the Criminal Procedure Code under which authorised officials of the Ministry of the Interior may even without an order enter into a home and other premises if there is a person who based on the order of the court should be detained or brought in by force, the Court found that this Article actually governs a situation when there is a court order to detain or bring in a person by force, but no warrant was issued to search his home and when the legislator provides a possibility for the authorised officials of the Ministry of the Interior even without a search warrant to enter his home and other premises if there is the person that should be taken in.
…….

Taking into consideration what has been noted, the Court found that the challenged provision referred to in Article 202 paragraph 1 of the Code differs from the aforementioned provisions in the sense that in it the accent is on detainment or taking in the person by force, as a primary action of the internal affairs authorities, whereby the simultaneous search of his home and other premises, as a secondary action of these authorities, is included in the court order for detainment or bringing in by force. Therefore, the Court found that in such cases not only is the existence of a separate court warrant not obligatory but it is also not necessary.

In favour of the opinion of the Court is also the fact that in the order for detainment or forced bringing in that person is identified in the sense that, in addition to his full name the address of his home and other premises where he is staying are noted, and the lack of existence of a separate search warrant, in such a case, could not be qualified as an unauthorised entry in another person’s home”.

Following the same logic, in the case U.br.191/2004 of 4 May 2005 the Court, inter alia, did not initiate proceedings for the appraisal of the constitutionality of Article 142-b paragraph 1 item 1 of the former Criminal Procedure Code (“Official Gazette of the Republic of Macedonia”, nos.15/1997, 44/2002 and 74/2004) under which the public prosecutor is authorised in the preliminary investigative procedure to order the application of special investigative measures.

In the reasoning of this case the Court notes that “it is an exception in the determination of special investigative measures, whereby the public prosecutor issues the order elaborated in writing on the basis of a proposal elaborated in writing by the Ministry of the Interior, only in the cases of an unknown offender. Following the moment of establishing the identity of the offender, the issuance of the order for the application of special investigative measures falls within the competence of the investigating judge. Also, the Resolution sets forth that one should take into consideration that the order, whether issued by the investigating judge or by the public prosecutor, is not issued for all criminal offences envisaged by law, but only for criminal offences for which a prison sentence of at least four years is stipulated or criminal offences committed by an organise d group, gang or another criminal association for which a prison sentence of up to five years is envisaged. Thereby, one should take into consideration that the order is issued to enable collection of data and evidence for the conduct of a criminal procedure which would not be possible to be collected otherwise, or their collection would be connected with major difficulties.”
…..

“From the content of Article 108 of the Criminal Procedure Code it arises that the public prosecutor may issue orders in the criminal procedure. Namely, based on this provision in the criminal procedure decisions are taken in the form of judgment, resolution and order. A judgment is passed only by the court, and resolutions and orders are also made by other authorities taking part in the criminal procedure”.

“In favour of the constitutionality of the challenged provisions is the fact that it is an order with strictly defined elements. Namely, pursuant to Article 142-e paragraph 2 of the Code, the order contains: data about the person against whom special investigative measures are applied when the offender is known, the grounds for suspicion for the committed criminal offence, the facts from which the application of the special investigative measures arise, and the manner, scope and duration of the measures. That means that arbitrariness in the issuance of the order regarding its elements is not allowed, irrespective of who issues it. “ ……

….. “Accordingly, this is an exception in the application of the special investigative measures in a preliminary investigative procedure, in which the public prosecutor, as the holder of the office for prosecution of offenders, may with an order elaborated in writing, which has limited validity of four months at the most, render the application of the measures defined in Article 142-b paragraph 1 items 3 through 8 regarding a concrete type of criminal offences. Thereby, the said measures are applied in cases when the offender is unknown, that is, when there is no available knowledge about the identity of the offender and when data and evidence for the successful conduct of the criminal procedure may not be collected in another way or when their collection would be linked with major difficulties and when the offender is identified the issuance of the order for application of the measures becomes the competence of the investigating judge. The contested provisions contain protective mechanisms against possible misuse when taking the measures and establish a just balance between the general interest of the state and the interests of the individual, which is in accordance with the ratified international treaties which are part of the internal legal order”.

The current Criminal Procedure Code governs that the search is generally conducted on the basis of a written (Article 186 of the CPC) or verbal request for search (when there is a danger of delay – Article 187 of the CPC), but in both cases there is a written trace of the sustained and approved process action by the judge in the preliminary proceedings. In the first case the judge in the preliminary proceedings issues an order in a written form, and in the second case after obtaining information by telephone, radio, or other means of electronic communication the judge writes down the conversation in the minutes, signs it, makes a certified transcript of the minutes and submits both copies (original minutes and a transcript) to the court within 24 hours from the time the order was issued. Accordingly, in both cases (written or verbal request for search) there is court warrant in writing to take the process action of search of a home, certainly for the purposes of detecting or preventing a criminal offence.

Unlike what has been noted the contested Article 193 paragraph 1 line 4 of the Code lacks the link with a written order or decision by court on the basis of which the inviolability of the home may be restricted pursuant to Article 26 of the Constitution, since without a court order a home may be entered to inspect the site where a criminal offence has been committed. It is contestable since for this action there is no court order to infringe upon the privacy of the home, whether in writing or verbal, prior to or following the taking of the action. This for a reason that Article 26 of the Constitution expressly guarantees the inviolability of the home, which may be restricted only by a decision of a court and only in the cases of detection or prevention of a criminal offence or protection of people’s health, which is not the case in Article 193 paragraph 1 line 4 in the Code.

Pursuant to Article 233 of the Code, the inspection is taken by the public prosecutor, and upon his/her authorisation the judicial police as well, and under the so far concept of the Criminal Procedure Code the judge in the preliminary procedure does not conduct an inspection. The need for urgent taking of the inspection is undisputed, although in this case the provision does not stress the urgency or danger of delay as the case is with Article 187 paragraph 1 of the Code.

Taking into consideration the concept of Article 187 of the Code (verbal request for a search warrant) where additionally minutes is drafted for the action taken, remains unclear what were the reasons that the legislator in this case (home search for inspection in a site where a criminal offence was committed) did not foresee a tolerant time frame and issuance of an order (written or verbal) for the action taken or to inform additionally the judge of the preliminary procedure in order to take a corresponding decision and note down the action taken in a legally envisaged manner neither prior nor following the action.

From a terminological point of view, under Article 22 item 17 of the Code the notion search implies a detailed search of a person, means of transport or home under conditions defined by law. Unlike that, inspection as a special process action is not specifically defined in the Code, although Article 233 states a “need for direct observation”. Legal theory on its side defines it as an action taken by the authorised authorities to secure the scene the criminal offence was committed on, collect traces, evidence an items connected with the criminal offence, collect information and find the offender. Inspection on the scene may be conducted upon obtained tip soon after committing the offence, but in certain situations inspection is conducted after a longer time distance from the time the offence was committed. When conducting the inspection in a home, the offender may (or may not) be there, or it may be conducted in the offender’s home, but also in somebody else’s home.

For the reasons noted above, assessing Article 193 of the new Criminal Procedure Code which is already in force and shall commence to be implemented as of 1 December 2013, we believe that the Court should have maintained the so far cautious stance on this matter, that is, to initiate proceedings for the appraisal of the constitutionality of line 4, given that it is quite problematic and is not in accordance with Article 26 of the Constitution and may result in unwished consequences in its application. The current legal construction enables a disposition in conducting the process action of insp0ection, conceals in itself a danger of misuses, that is, under the pretext of a need to conduct inspection to infringe upon the privacy of the home of the offender or another person’s home. In addition, this provision does not enable the judge in the preliminary proceedings, in case of a misuse, to exercise the legal obligation for decision-making on the freedoms and rights of the defendant in a case stipulated by the Constitution, law and an international agreement ratified in accordance with the Constitution. 

Branko Naumovski
Judge
at the Constitutional Court of the Republic of Macedonia

Dr Natasha Gaber – Damjanovska
Judge
at the Constitutional Court of the Republic of Macedonia