27 Apr REACTION REGARDING THE DRAFT LAW ON REVIEW OF FACTS AND EVIDENCE USED IN COURT PROCEEDINGS

Blueprint: We demand the withdrawal of the Draft Law on review of facts and evidence used in court proceedings because it creates legal uncertainty and violates the rule of law principle   Today, on April 27, 2021, the Draft Law on review of facts and evidence used in court proceedings proposed by a group of MPs, is put for consideration before the Political System and Inter-Community Relations Commission of the Assembly of the Republic of North Macedonia in the first reading. The draft law creates opportunities for repeating the procedure, if the court decision made in that procedure is based on a violation of the principle of presumption of innocence, conversations from the illegal interception of communication systems were used, abuse of the special investigative measure protected witness, abuse of the court case allocation system (AKMIS) and in other cases of fabrication or installation of facts and evidence. The Blueprint Group for Judiciary, which is following the current situation in the field of the judiciary, would like to highlight its concerns regarding this draft law and based on the arguments attached, we request its withdrawal from the parliamentary procedure for the following reasons. First of all, the part in which the proponent gives an assessment of the situation in the area that should be regulated by the law and in which it is claimed that there is a massive occurrence of gross violations of fundamental and natural human rights, is not supported by adequate evidence, while on the other hand, existing legal mechanisms in the national acts for the protection of these rights are not taken into account (Constitution, laws, ECHR, etc.). The proponent cites, as reasons for the need for this law, the merger of the party with the state, the existence of politically mounted or motivated processes, as well as, the existence of political detainees or prisoners, but these are issues that will not be resolved by this or any draft law if there is no political will to do so. It is more than necessary to keep in mind that the existence of theoretical law is insufficient and ineffective, and that its practical application is necessary. Rule of law, democracy, independence and impartiality of the judiciary, application of numerous standards for fair trial, taking into account already existing national mechanisms and instruments, will not be realized only by adopting this law. On the contrary, this law could complicate and further lengthen the already long procedure. We must mention that the law discourages the adoption of ex-post facto laws, that is, laws that would apply retroactively and would refer to cases and facts that took place before the law was passed, and especially those that regulate parts of the criminal matter. Of course, this does not mean that such laws are not passed in any country (they are generally represented in the form of amnesty), but in that direction, an appropriate explanation is necessary for the need to which the law should respond, as well as the overall consequences that that law could have on the legal system in its entirety, especially if it can be used practically non-discriminatingly to reach any concluded court dispute and cancel or annul all the consequences and rights that resulted from the final judgment. In that direction, this Draft Law on review of facts and evidence used in court proceedings could not be applied retroactively, that is, it could not be applied to persons who have already been legally convicted before the Law enters into force as it entails, which means that it could only be applied to persons who would be legally convicted after its entry into force. On the other hand, we can note in the section Assessment of the situation in the area that should be regulated by the law and reasons for its adoption, the proponent claims that “by adopting such a law, a situation of overlap with the Law on Criminal Procedure is not created, because this law regulates the right to repeat the procedure of completed procedures, but only on the basis of additionally discovered evidence that is the basis for establishing a different factual situation than that established in the judgment”. If the provisions of the Law on Criminal Procedure are analyzed, it is noted that essentially, the Draft Law completely overlaps with the provisions of the LCP. In particular, Article 449 of the LCP provides for the repetition of the procedure in favor of the convicted, whereby three of the basic reasons for which the criminal procedure ended with a final judgment can be repeated with an extraordinary legal remedy, are as follows: – if it is proven that the judgment is based on false evidence or a false testimony of a witness, expert, interpreter or translator, – if it is proven that the verdict was reached due to a criminal act of the judge, of the judge – juror or a person who performed investigative actions; or – if new facts are presented or new evidence is submitted, which either by itself or in connection with the former evidence are eligible to cause the release of the person who was convicted or his lighter sentence. The proponent of the Law does not provide an answer to the question why the existing institute “repetition of the procedure” foreseen in the LCP cannot solve the presented problems in such cases and what is the added value of the draft law in that direction. Hence, we would not be able to agree with the statement that such a matter is not regulated in domestic law and the provisions of this Draft law will not be in conflict with the LCP and we would like to point out two possible situations: – the laws regulate the same matter in parallel, which is why this Draft Law is unnecessary, or – the laws are conflicted because they provide for different actions in the same situation. The proponent does not even consider the issue of the possibility of repeating the procedure before national courts when the ECtHR finds a violation of Article 6 of the ECHR (related to existing evidence, non-acceptance of evidence of the accused and a decision made only on the basis of evidence from the prosecution). The stated violations in art. 2 of the Draft Law can always be subject to evaluation both before national and international courts (appeals based on incomplete and incorrectly determined factual situation where the state of the evidence and similar applications before the ECtHR will be evaluated). In this regard, an additional problem are the different definitions offered in the Draft Law, which are more general than those offered in the LCP, so they can be subject to different and broad interpretations, especially when determining whether a certain factual situation corresponds to the given definition in articles 1 and 2 of the Draft Law (example “violation of the right to inviolability of physical and moral integrity”). On the other hand, in Article 2 of the Draft Law, where the situations according to which the procedure can be repeated are exhaustively listed, it can be noted that a certain part of them do not represent an essential violation of the criminal procedure according to the definitions in Article 415 of the LCP (for example ” abuse of the system for the distribution of court cases (AKMIS)”). In this direction, the European Court of Human Rights in several cases has accepted the position that violations of the procedure must have an effect on the overall fairness of the process, as it would be considered that it is a question of essential violations due to which the procedure could be repeated and the initial decision of the domestic courts could be overturned, that is, the existence of any violation of a certain right of defense cannot be considered a substantial violation that has an effect on the final outcome and the overall fairness of the process. According to the Draft law, the court collects facts and evidence in order to investigate them independently, but according to the LCP of 2010, the court no longer has the legal possibility, nor the operational capability in terms of resources, to gather evidence and facts and independently conduct an investigation. In addition, this kind of investigative power, i.e. competence, rights and duty to conduct an investigation and gather evidence and facts, is held only by the public prosecution and the judicial police, which is subordinate to the public prosecutor who conducts the investigation. Throughout this process, according to the LCP, the court is only a passive controller over the actions of the parties and it ensures that all procedural guarantees and rights of the participants are observed, without actively engaging in any participation in the procedure, regardless of what stage it is in. is happening. In this way, the Draft law not only introduces provisions that contradict the LCP, it also introduces an obligation for the courts that they will not be able to fulfil due to legal (LCP) and factual obstacles (research capacities were transferred from the court to the public prosecution a long time ago). In this direction, the Draft law does not offer other provisions and rules of the new procedure, procedural guarantees for the participation of the affected persons, the court’s actions, etc. In the draft law, it is indicated that the problems from the criminal matter will be treated, and in the same time it also refers to other court proceedings, but there are still many elements that make the proponent’s commitments unclear and contradictory. According to the Draft law, the repetition means the annulment of final judgments and actions of other state authorities taken on the basis of those judgments and the return to the original state of the rights and property of the convicted persons. It is not clear before which state authority and how the procedure will be repeated for their actions that have been abolished. No answer is even offered to the question whether the judgments of the Supreme Court remain untreated when final judgments are annulled (judgment becomes final when it was decided on appeal) and what about the decisions on extraordinary legal remedies where the Supreme Court decides. There is no justification why a judge who participated in a previous procedure cannot participate in the repeated procedure. The provisions of the Law provide for a period of one year as the deadline for using the right to repeat the procedure in accordance with this Law, counting from the day of its entry into force. This validity of the Law of 1 year is questioning legal certainty and occurrence of discriminatory attitude in access to justice. The insufficient assessment of the impact of the regulation is also reflected in the claim that this Law would not cause financial implications for the budget, but it has not been taken into account who would reimburse the costs of the procedure and of the lawyers of the persons who chose them or were appointed to them on official duty. Taking into account all of the above, the Blueprint Group for Judiciary appeals to propose in the future quality laws created exclusively on the basis of a previously conducted extensive analysis, assessment of the impact of the regulation and in an inclusive process of all relevant stakeholders. Draft laws need to be consistent and aligned with the legal framework in the area and related areas and be clear and understandable for everyone, in order to avoid collisions of laws that create legal uncertainty and violate the rule of law principle.

Contact person: Aleksandra Cvetanovska, Macedonian Young Lawyers Association acvetanovska@myla.org.mk, 075/427-73