Following yesterday’s consultative meeting of the group on the Law on Public Prosecutor’s Office (LPPO), the Blueprint Group reaffirms its categorical view that the SPO as an institution must continue to function and maintain a degree of autonomy in its actions, while being properly integrated within the framework of the Public Prosecutor’s Office of RSM.
Along the same line are our comments on the proposed amendments to the Law on Public Prosecutor’s Office, which we submitted to the Ministry of Justice, which we believe should be informed to the general public.
Regarding the organizational set-up of SPO it is important to bear in mind the overall investment in the SPO’s capacities, as well as the efficiency of this prosecution in investigating high-profile corruption-related offenses committed by senior civil servants, despite the low workload with such cases by the Public Prosecutor’s Office for the Prosecution of Organized Crime and Corruption (PPO), which proposes to assimilate the SPO (with more than 50% of the crimes covered by SPO are in regard to Article 353 of the Criminal Code, while less than 5% of the cases of PPO relate exactly to this Article). It is for these reasons that the Blueprint group has repeatedly emphasized the need for the SPO as an institution to be integrated rather than assimilated into the public prosecutor’s system.
Having in mind the fact that the Government proposal and the amendments of the opposition party VMRO DPMNE envisage diametrically opposite attitudes – transformation and fusion of the SPO with PPO, and the establishment of a separate unit within the PPO, we consider that none of the proposed solutions would fulfil the purpose – existence of an institution within the public prosecutor’s system that will independently and to a limited extent prosecute high crime and corruption with clues from the acquired audio materials (bombs), and this competence will extend to cases dealing with high crime and corruption committed by public officials.
We consider it extremely important that the competences of the prosecution offices be regulated as precisely as possible in order to avoid a conflict of jurisdiction in dealing with, and in particular, taking over the ongoing cases of the SPO. Such defined definitions of the competences of the prosecution offices will enable to establish legal criteria according to which the current cases would be appropriately classified in accordance with the legally established jurisdiction of the prosecution offices.
One of the key points in this law that the Blueprint Group identifies as something that should not be derogated from is the application of evidence. This matter must be left to the Law on Criminal Procedure, as well as to the principle of the free evaluation of evidence by judges, which is also the case in the case-law of the European Court of Human Rights. The fact that the legal solutions go in the direction of limiting the possibility of the “bombs” being used as audio material evidence further raises the doubt and justification for the essence of SPO existence.
Regarding the conditions and procedure for the election of both the Public Prosecutor of the Republic of North Macedonia and the other public prosecutors, we reiterate the need for high and strict criteria for election and promotion to a higher public prosecutor’s office. In this regard, it is acceptable the solution in the proposal of the Government of the Republic of North Macedonia for public prosecutors in the Public Prosecutor’s Office of the Republic of North Macedonia to be elected exclusively from the prosecution staff, which will “close” the possibility of electing persons without prosecutorial experience.
Detailed comments on the proposed amendments follow.
COMMENTS ON THE AMENDMENTS AND THE FINAL PROVISIONS OF THE LAW
- The organizational structure of the SPO
The amendments of VMRO-DPMNE contain provisions stipulating the existence of a separate unit within the PPO, which would be competent to deal with crimes where the perpetrator is selected or appointed as a public official at the time of the commission of the crime and the crime is related to the function he/she performed or is performing. Although such a solution offers greater autonomy in the handling of the new department than the Government proposes, it still carries the potential danger of being treated as a department created in accordance with the provisions of Article 15 of the Law on Public Prosecutor’s Office (“In PPO with a larger volume of similar cases, for the purpose of better efficiency and specialization in the work of the Public Prosecutor’s Office, units within internal competence may be formed within a narrower area of its competence. The work of the unit is managed by the Public Prosecutor determined by the annual working schedule of the Public Prosecutor’s Office on the basis of the closer specialization and expertise of the Public Prosecutor who is appointed as Head of the Unit. “), as well as the overlapping of the mandates of PPO and the new department (whose mandates overlap to some extent), and the only solution to this conflict of jurisdiction is foreseen in the LCP, and more precisely specified in the Law on Public Prosecutor’s Office for the Prosecution of Criminal Offenses Related to and Deriving from the Content of Illegal Interception of Communications, which shall cease to be effective on 15 September, 2020.
Based on the above-mentioned, we believe that the establishment of a Public Prosecutor’s Office that would be in a hierarchical subordination of the Public Prosecutor’s Office of the Republic of North Macedonia and would be on an equal level with PPO would achieve the long-awaited goal – a fully functioning and independent prosecution whose close specialities would be high crime and corruption. Therefore, it would be necessary to identify all situations where there would be an overlap of responsibilities of the already existing unit for the prosecution of organized crime with the newly proposed prosecution office to replace the SPO, in order to avoid problems in practical handling.
It is, therefore, necessary to make a clear and precise distinction between the competences of these two specialized prosecution offices (PPO and the unit which should be the new SPO).
It is for this reason that it is particularly important that the jurisdiction of the prosecution offices be regulated as precisely as possible in order to avoid a conflict of jurisdiction in the proceedings, and in particular in the handling of ongoing SPO cases. Such posed definitions of the competences of the prosecution offices will enable to establish legal criteria according to which the current cases would be appropriately classified in accordance with the legally established jurisdiction of the prosecution offices.
In the context of the solution proposed by the main opposition party, the Public Prosecutor decides which prosecution will take the current cases, we believe that it goes beyond the legality of the Public Prosecutor’s action, since in this way, without legal criteria according to which the distribution of current cases will be carried out, and the PPO will be entrusted with the power to determine the jurisdiction of the prosecution, which can only be regulated by law. On the other hand, such a legal solution presupposes that in the distribution of cases now handled by the SPO, there will be a conflict of jurisdiction between the other prosecution offices, but even in this situation, the immediate superior public prosecutor, rather than the public prosecutor, is competent to decide the dispute and not only the Public Prosecutor of RSM. Therefore, in this respect, it is necessary to consider the compliance of these decisions with the ways of resolving the conflict of jurisdiction between the public prosecutors already provided for in Article 40 of the LCP. This Article of the LCP provides for the conflict of jurisdiction to be decided by the immediate superior prosecutor, which is in conflict with the proposed legal decision of the Government which provides for the conflict of jurisdiction between two or more prosecution offices to be decided by the Public Prosecutor of the Republic of North Macedonia, but also in collision with the opposition party’s proposal for such a conflict of jurisdiction to be decided directly by the PPO of RNM.
- Competences and evidence
This is one of the key points in this law that should not be derogated from. This matter must be left to the Law on Criminal Procedure, as well as to the principle of free evaluation of evidence by judges, in line with the practice of the European Court of Human Rights. Namely, in the context of the proposed solutions, the question arises as to whether the use of certain types of evidence for which the domestic and European Court of Human Rights practices have established by law that the purpose for which such evidence was obtained is legitimate, justifies their use (national courts in the cases “Spy”, “Babysitter” cases and judgments of the European Court of Human Rights). But the question of whether the legislator can order the court in proceedings already commenced not to value certain already accepted evidence (i.e. “bombs”) and whether it does not directly interfere with the independence of the judiciary and limit the principle of free judicial evaluation of evidence. The fact that the legal solutions go in the direction of limiting the possibility that the “bombs” as audio material were used as evidence further raises the doubt and justification for the essence of the SPO existence.
The amendment of VMRO-DPMNE stipulates that the Public Prosecutor of the Republic of North Macedonia is obliged to act in accordance with the opinion of the Supreme Court of RNM on the proceedings commenced after 30 June 2017 by the SPO, and is obliged to act in accordance with Article 12 with all the evidence material in accordance with Paragraph 2 of the Law on Criminal Procedure. The LCP, on the other hand, provides that only a judge-court can determine whether or not certain evidence will be applied (or eventually set aside) in a single proceeding. In this regard and in this respect, the existing legal solution provides that on the basis of the principle of free evaluation of evidence, the court shall be the only one able to decide on the illegality of a piece of evidence, which in turn leaves the possibility of having the same issue raised later before the ECHR. However, what is most problematic about this solution is that it leaves room for legitimate amnesty for suspects in the proceedings initiated. The continuation of the SPO proceedings that show indications and grounds for suspicion of a serious crime is necessary but also is a red line that could not be crossed. This is further compounded by the fate and handling of ongoing court cases.
- Election and appointment of prosecutors (Article 106)
(Article 2) The VMRO-DPMNE parliamentary group in its amendments proposes that the election of the public prosecutor in PPO be carried out by the PP Council, but on the proposal of the largest parliamentary opposition party. This is certainly a political solution which, as in the past, with the appointment of the Head of SPO, will prove to be a very wrong step. In the absence of strong and convincing argumentation, this proposal should be immediately rejected and the choice allowed to proceed according to the hierarchical set-up and conception of the public prosecutor’s system.
(Article 4) This part of the amendment provides that prosecutors who have worked with the SPO shall, upon completion of their term of office, return to the prosecution offices from which they were taken. On the one hand, this decision is also accepted in the applicable SPO law, which may justify the decision to some extent, but education and increased human resources capacities must be taken into account when prosecutors work on such cases. These prosecutors have additional training to advance their knowledge of conducting financial investigations, so we believe that they would be the necessary staff who could only contribute to the improved efficiency of PPO.
Regarding the conditions and procedure for the election of both the Public Prosecutor of the Republic of North Macedonia and the other public prosecutors, we reiterate the need for high and strict criteria for election and promotion to a higher public prosecutor’s office. In this regard, it is acceptable the solution in the proposal of the Government for public prosecutors in the Public Prosecutor’s Office of the Republic of North Macedonia to be selected exclusively persons from the prosecution staff, which will “close” the possibility of electing persons without prosecutorial experience to be part of this prosecution. The procedures for the election of public prosecutors at all levels need to be fully public and transparent with clearly reasoned and substantiated decisions ensuring that only persons with proven expertise and personal integrity will be selected or promoted in the public prosecution system.
The BLUEPRINT Judicial Reform Group consists of Foundation Open Society – Macedonia, Coalition “All for Fair Trials”, Helsinki Committee for Human Rights of the Republic of Macedonia, Human Rights Institute, European Policy Institute, Macedonian Young Lawyers Association and Center for Legal Research and Analysis.
—————————————————10 September 2019