Accelerated Proceedings under the New CPC of Macedonia

The new CPC of Macedonia provides for several forms of accelerated proceedings whose pur-pose is to simplify procedure and release judges from the duty to take extensive procedural acti-ons. Simplification of criminal justice is an imperative recommended by the Council of Europe in its Recommendation R(87)18 which aims at increasing the awareness of legislature with re-gard to expediting proceedings, changes in how defendant’s guilty plea is treated from the point of view of sentencing, increasing the scope of powers of prosecutors who should assume some powers of judges.²⁹

Accelerated proceedings may be possible in three cases:

• in terms of less serious criminal offences – summary proceedings,

• in case when an offender and the injured party agree to settle their case with a help from a neutral third party – mediation, or

• in cases when a decision may be made even without holding a main hearing based on co-llected evidence – penal order.

3.1. Summary Proceedings

Summary proceedings have been traditionally used in all criminal systems for resolving the cases of less serious offences. The new CPC has introduced some minor changes. In terms of the CoE Recommendation Rec (2003)23, according to which more than five years’ imprisonment is con-sidered long-term incarceration, Macedonia legislators have broadened the scope of jurisdiction of single judges to the effect that summary proceedings may apply to all criminal offences punis-hable with a fine or imprisonment of maximum five years.³⁰ Thereby, the Court has been released from the duty of taking extensive actions in cases of less serious offences and judges are given eno-ugh time to devote their attention to more serious offences. The new position of public

prosecu-29 Recommendationno.R(87)18concerningthesimplificationofcriminaljustice,17September1987.

30 Definitionoflifesentenceandlong-termprisoners,AppendixtoRecommendationRec(2003)23oftheCommitteeofMinistersto

memberstatesonthemanagementbyprisonadministrationsoflifesentenceandotherlong-termprisoners,9October2003.

tors in the course of criminal proceedings and their duty to argue in favour of the indictment in person have resulted in abandoning the possibility of holding main trails in their absence. Namely, the prosecutor’s role at the main hearing and in the course of summary proceedings can be fulfi-lled only if he plays an active part in all the activities which make up a main hearing. The new CPC has extended the deadline which must be given to a defendant to prepare his defence. Namely, a summons to a main hearing should be served on a defendant providing sufficient amount of time is given to him to prepare his defence from the date of the service of summons to the date of the main hearing, but not less than eight days and not minimum 3 days which used to be the case until now. This change was brought about by guarantees provided under Article 6(3) (b) of the European Convention on Human Rights. Everyone charged with a criminal offence must be given adequate time and the facilities for the preparation of his defence. At the same time, judges are obligated to advise defendants that a main hearing may be conducted in their absence if statutory requirements have been met – this applies to offences punishable with a fine or imprisonment of up to three ye-ars in cases when a defendant fails to appear at the main hearing although he was dully summoned thereto or it was not possible to serve him with the summons because it was obvious that he was trying to avoid being served. Along with the summons to the main hearing, the defence should be served with a list of evidence submitted by the prosecutor, at the same time advising them that they have a deadline for submitting their list of evidence.

The main hearing is preceded by a conciliation hearing. It is an innovation introduced in the CPC which entails the possibility of proposing the prosecutor and the injured party to settle the case through the mediation in cases of private prosecutions. With regard to this, it should be mentioned that the CPC of Macedonia does not lay down that it is mandatory for a judge to make an attempt at mediation, but it leaves is to his discretion to direct the parties to mediati-on when he deems it opportune. At the same time, each party is entitled to cmediati-onsent to settling its case through mediation. If either party withholds its consent, the judge proceeds to act pur-suant to provisions which govern summary proceedings. Macedonia lawmakers have provided for an alternative method of resolving criminal cases which are tried in summary proceedings.

In addition to out of court settlement when charges are brought by a private prosecutor, a po-ssibility of negotiations in summary proceedings is neither excluded when charges are brou-ght by a public prosecutor. Namely, the CPC does not prescribe any limitations with regard to how serious an offence must be in order for the parties to be allowed to negotiate on it, so if it is possible in cases of more serious crimes, negotiations should be initiated even more in ca-ses of less serious offences. Defendants are given an opportunity to plead guilty in the cour-se of summary proceedings and provisions which govern entry of guilty pleas at the main he-aring apply to such situations. Judges have a duty to ascertain such pleas and assess if they can be accepted or not, after which they undertake evidentiary actions in connection with senten-cing. Namely, a guilty plea results in a more efficient main hearing and evidentiary proceedin-gs which are to a substantial degree devoted to the establishment of guilt, the extent of crimi-nal liability, and facts of the case.

Within the framework of summary proceedings, changes have been made in respect of the ma-nner in which investigative actions are taken. Namely, in current summary proceedings, a pu-blic prosecutor will propose a single judge that investigative actions should be undertaken and if his proposal is granted, the judge is obligated to take those actions. In the new CPC, given the new powers granted to the public prosecutor who is the dominus litis of criminal charges,

investigative actions are undertaken independently by the prosecutor prior to the filing of a mo-tion to indict. Before filing the momo-tion, the prosecutor should inform the defence about the evi-dence he has gathered and investigative actions he has undertaken, which are the so-called disc-losure obligations provided for in Article 302, para. 5 of the CPC. Thereafter, the defence should be given a period of time to prepare a defence in terms of their own investigation. It depends on the prosecutor when he will initiate negotiations on criminal offences which are the subject ma-tter of summary proceedings. By analogy, it is also possible that a single judge, when he deems it necessary, summons the parties to the court to clarify their motions or objections, all for the pur-pose of preparing the main hearing in terms of Article 347, para. 2 of the CPC.

3.2. Mediation

Mediation was widely adopted by national legislatures following the Recommendation R(99)19³¹ of the Council of Europe which stressed the flexibility and comprehensiveness of the mediation procedure which could be used complementary or as an alternative to common criminal procee-dings. In this respect, the views of those who believe that mediation should be treated as going back to the source of a conflict³² and that the parties involved should have the power to settle the conflict themselves are accurately qualified as being radically non-interventionalist.³³ Mediation activities allow the victim to feel as he has equal standing under criminal law.³⁴ Benefits obtai-ned from mediation include the acknowledgement of the victim’s interests and promoting the role of private individuals within the framework of settlement of disputes arising out of crimi-nal offences. Mediation is based on the following principles: voluntary participation by the par-ties involved, its availability, active participation of the parpar-ties involved, an interactive approach with a view of finding a common and mutually acceptable solution, as well as the confidentiality of the mediation procedure.³⁵ Introduction of mediation into criminal procedure laws is the re-sult of restorative justice.³⁶ Restorative justice is focused on the interests of victims and the wider community since it facilitates the restoration of disrupted relations following a crime. The con-cerned parties are much more interested in resolving a dispute and overcoming all the disagree-ments. One should not believe that resolving a dispute is only beneficial to the state.³⁷ Mediation has an advantage and that is the possibility of overcoming a criminal matter through active

par-31 Recommendationno.R(99)19onMediationinPenalMatters,15.09.1999.

within the Framework of Mediation and Compensation Programmes”, 20th Criminological Research Conference:“Psychosocial

InterventionsintheCriminalJusticeSystem”,1993,p.60.

ticipation of the parties involved, creating a new balance in their relations, their mutual encoun-ters which are managed by a neutral third party – the mediator. Mediation entails negotiations between an offender and his victim or the injured party whose aim is to bring about reconcilia-tion between them, create an opportunity for the offender to extend his apologies or express his willingness to compensate for the damage. Such a form of proceedings is acceptable only in cases of first offenders who have committed a less serious offence.

As regards its elements, the mediation process includes mediation and conciliation. By mediating between a victim and an offender, the mediator endeavours to arrange for their joint meeting. This is possible if both parties consent to it. Mediators need to be very skilful in order to succeed in convincing the parties that a jo-int meeting would be very beneficial to overcoming their conflict which ensued following a less serious cri-minal offence. Comparative experiences show that it is not that easy to get consent from the parties invol-ved to organize a joint meeting since each party has a psychological burden – the offender is trying to avoid facing the consequences of his crime,³⁸ whereas the victim is in fear of his safety and coming face to face with the offender.³⁹ It is of paramount importance that the mediator convinces the parties that it would be helpful if the victim could have an opportunity to express the pain and suffering he experienced during a criminal offence, as well as to request that the offender accounts for the reasons for committing the offence,⁴⁰ and if the offender could pluck up the courage and face his victim whom he did not take into account when he committed his crime, who in principle is not aware of the situation in which the victim was during the criminalised act and after the crime. Meetings which take place in the course of a mediation process deve-lop a sense of personal responsibility in an offender.⁴¹ In cases when mediators do not succeed in convin-cing the parties to have a joint meeting, a mediation process can also take place through separate meetings.

The primary goal of mediation is that the parties arrive at a mutually acceptable solution or to agree on how they will resolve the conflict. In many cases, mediation ends with an agreement on compensation for dama-ge, but it is not to be excluded that a meeting ends with offender’s apology to his victim.⁴²

Considering the said characteristics of mediation, Macedonian lawmakers decided to allow mediati-on in respect of criminal offences which are prosecuted by private prosecutors in cases of criminal of-fences which are within the jurisdiction of single judges. Namely, in the course of a conciliation hea-ring which is part of summary proceedings, a single judge is entitled to put forward a motion to the prosecutor and the injured party to consider mediation. By opting for such a solution, Macedonian lawmakers did not accept a mandatory attempt at mediation, but they left it to judge’s discretion to de-cide whether or not he will suggest mediation to the private prosecutor and the suspect. In the context of the principle of voluntariness, the consent of interested parties is a precondition for the mediation procedure. Namely, consent needs to be obtained in writing within three days after the judge referred the parties to mediation. If either party does not submit its written consent, the judge will make a ru-ling stating that his motion to attempt mediation was unsuccessful and setting the date of the main hearing pursuant to the provision which govern summary proceedings. Upon receiving the written consent, the judge will make a ruling referring the case to mediation and giving the parties three days to select by mutual agreement the person who will act as a mediator in their dispute. The CPC allows

38 Hans-JörgAlbrecht,“SanctionsandTheirImplementation”,Twenty-firstCriminologicalResearchConference(PC-CRC),Strasbourg,

1996,37.

39 MartinWright,“Victims,MediationandCriminalJustice”,CriminalLawReview,1995,p.192.RichardYoung,“ReparationasMitigation”,

CriminalLawReview,July,1989,p.465

40 TonyMarshall,“Mediation&CriminalJustice-TheUKExpiriance”,Pan-EuropeanSeminaronVictim-OffenderMediation”,Barcelona,13

july1995

41 JamesA.Inciardi,“CriminalJustice”,HarcourtBraceJovanovichInc.,1987,str.637.

42 Marshall,op.cit.,p.4.Sometimes,evenanapologyrevealsthetherapeuticsignificanceofmediation,Young,op.cit.,p.69.

that the parties select one or more persons as their mediator. In Macedonia, mediators have their own association, the Chamber of Mediators, and there is also a Directory of Mediators according to the fi-led in which they are trained to participate. Mediators have a duty to conduct the mediation procedu-re in accordance with the provisions contained in the Law on Mediation – arrange for joint meetings, and if that cannot be accomplished, they will arrange meetings separately with each party. The medi-ation process must be concluded within 45 days from the date of the written consent by the parties.

The CPC provides that mediators have a duty to inform the parties of the principles, rules, and costs of mediation, but considering the fact that the parties give their consent prior to getting into contact with a mediator it is essential that prior to suggesting mediation, the judge should briefly explain to the interested parties the advantages of mediation and its possibilities.

A mediation process may be ended in several ways: 1) based on the principle according to whi-ch a mediator must be objective and ethical and must ensure that a dispute does not escala-te during the mediation, the process ends when the mediator informs the Court by his wri-tten statement that further attempts at amicable settlement of the dispute are not justified; b) under provisions of the Law on Mediation, a mediation procedure may not last more than 45 days and given that it begins on the day the parties submit their consent to a judge, the 45-day time limit starts to expire on that day; c) due to the principle of voluntary participation of in-terested parties in the mediation process, the process will be discontinued in cases when either party withdraws from the mediation; and d) given the principle of legality of the final outco-me of the outco-mediation procedure, a outco-mediator may terminate the procedure if he finds that a set-tlement which was reached was either illegal or unfit to be implemented. In any event, after the mediation procedure is concluded, the judge is promptly notified thereof and he must set the date of a court hearing as soon as possible.

Mediation is considered to be successful when the parties reach a settlement and commence si-gning an agreement made in writing. The CPC lays down the elements of a written agreement:

a) information about the parties; b) particulars of the incident and legal classification of the cri-minal offence; c) date on which the mediation procedure commenced; d) information about the meetings between the parties and a mediator; e) subject matter of the agreement – compensation of damage, fulfilment of certain obligations to the benefit of the injured party, an apology which the offender should extend to the injured party, return of appropriated items or other reasons for settling; f) deadline for fulfilment of the obligation which may not be longer than three months;

g) decision on the defrayment of costs; h) date of the settlement; i) parties’ signatures; j) signatu-re and seal of the mediator verifying the agsignatu-reement.

A settlement agreement which has been signed and sealed is submitted to a judge immediately.

Considering it is easy to take on obligations which are never fulfilled, the signed agreement does not result in the termination of criminal proceedings. Namely, the CPC provides that a defen-dant shall within the statutory limit of three months submit evidence to the judge that he has met his obligations and defrayed the costs of the proceedings. The judge will issue a ruling termina-ting the proceedings once the defendant has submitted evidence which proves that he fulfilled his obligations and not when a written agreement has been signed. Otherwise, if a defendant fa-ils to prove that he has met his obligations within the statutory time limit, a judge shall order the date for the main hearing following the rules of summary proceedings, regardless of the fact that the settlement agreement has been signed and sealed.

3.3. Penal/Criminal Order

The Council of Europe recommends that a penal/criminal order should be provided for in nati-onal statutes if the following conditions have been satisfied: that evidence is clear and that it con-clusively indicates that a defendant is guilty; that proceedings are initiated by a prosecutor; that a sentence is imposed without having conducted criminal proceedings; that the defendant is fu-lly advised of all the consequences which arise from his acceptance of a penal order; that the de-fendant shall have an available legal remedy to challenge the penal order; that sentences which may be pronounced by the Court without conducting criminal proceedings are limited and de-fined by the law and that imprisonment may not be one of them; if the defence does not challen-ge a penal/criminal order, it will have the status of a judgment to which the principles ne bis in idem and res Judicata apply and that challenging of a penal order shall result in criminal procee-dings being conducted without the prohibition of reformation in peius being applied to the sen-tence cited in the penal order which has been contested and vacated.

Macedonian legislators renamed the previous procedure “Rendering a Judgment without Holding a Main Hearing” which could be found in the 2004 CPC to the “Procedure for Issuing a Penal Order” in the new CPC.⁴³ This refers to an accelerated proceeding in which a prosecutor takes considerable initiative with regard to the evaluation of evidence and imposition of

Macedonian legislators renamed the previous procedure “Rendering a Judgment without Holding a Main Hearing” which could be found in the 2004 CPC to the “Procedure for Issuing a Penal Order” in the new CPC.⁴³ This refers to an accelerated proceeding in which a prosecutor takes considerable initiative with regard to the evaluation of evidence and imposition of