Reaction regarding the Draft-Law on the review of facts and evidence used in court proceedings

Blueprint: We request the withdrawal of the Draft-Law on the review of facts and evidence used in court proceedings because it creates legal uncertainty and violates the principle of the rule of law

Skopje, April 26, 2021

On April 27, 2021, the first reading is the Draft Law on the review of facts and evidence used in court proceedings proposed by a group of deputies is on the agenda for consideration before the Committee for Political System and Relations between Communities of the Assembly of the Republic of Macedonia. The draft law creates opportunities for repeating the deed, if the court decision from the procedure is based on a violation of the principle of presumption of innocence, conversations from the illegal interception of communication systems are used, abuse of the special investigative measure protected witness, abuse of the system for distribution of court cases (AKMIS) and in other cases of fabrication or editing of facts and evidence.

The Blueprint group for Judicial Reforms, following the current situation in the field of justice, would like to highlight the concern regarding this proposed law and based on the arguments attached, we request its withdrawal from the parliamentary procedure for the reasons listed below.

First of all, the part in which the proponent gives an assessment of the situation in the area that should be regulated by law and in which it is claimed that there is a mass occurrence of gross violations of basic and natural human rights, is not supported by adequate evidence, and on the other hand, the 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 merging 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 proposed 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 needed. The rule of law, democracy, independence and impartiality of the judiciary, the application of numerous standards for a fair trial, taking into account the already existing national mechanisms and instruments, will not be realized only by passing this law. On the contrary, this law can complicate and drag out the already long procedure.

We must mention that the law discourages the adoption of ex-post-facto laws, that is, laws that will apply retroactively and will 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 which the law should meet, as well as the overall consequences that that law can have on the legal system as a whole. Especially if it can be used practically non-discriminatingly to reach any legally 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 the 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 same Law enters into force, which means that it could only be applied to persons who will 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 petitioner 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 legally completed procedures, but only on the basis of additional 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 in essence, the proposed Law completely overlaps with the provisions of the Criminal Procedure Code. In particular, Article 449 of the Criminal Code 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 verdict can be repeated with an extraordinary legal remedy are precisely the following:

• if it is proven that the verdict is based on false evidence or a false statement of the witness, expert, interpreter or translator;
• if it is proven that the verdict was reached due to a criminal act of the judge, the jury judge or a person who performed the investigative actions; or
• if new facts are presented or new evidence is presented which by itself or in connection with the former evidence is eligible to cause the release of the person who was convicted or their less severe sentencing.

The proposer of the Law does not provide an answer to the question of why the existing institute “repetition of the procedure” foreseen in the LCP cannot solve the presented problems in possible such cases and what is the added value of the proposed law in that direction. Hence, we could not agree with the claim that such a matter is not regulated in domestic law and the provisions of this draft law will not be in conflict with the Civil Code, and we would like to point out two possible situations:

• laws to regulate the same matter in parallel, which is why this draft law is unnecessary, or
• laws to be in conflict because they provide for different actions in the same situation.

The proposer does not even consider the issue of the possibility of repeating the procedure before the national courts when the ECtHR determines a violation of Article 6 of the ECHR (related to the existing evidence, non-acceptance of evidence of the accused and a decision was 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 established factual situation where the state of the evidence and similar applications before the ECtHR will be evaluated).

An additional problem in this sense are the different definitions offered in the Draft Law, which are more general than those offered in the Civil Code, 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 Criminal Procedure Code (for example ” abuse of the system for the allocation of court cases (AKMIS)”). In this direction, the European Court of Human Rights in several cases has accepted the position that the 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 overturned the initial decision of the domestic courts, that is, the existence of any violation of a certain right of defence 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 independently investigate the facts, but according to the 2010 LCP, the court no longer has either the legal possibility or the operational possibility in terms of resources, to collect evidence and facts and independently conduct an investigation. In addition, only the public prosecutor’s office and the judicial police hold this kind of investigative power, that is, competence, rights and duty to conduct an investigation and collect evidence and facts, which is subordinate to the public prosecutor who conducts the investigation. In this process, according to the Civil Procedure Code, 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. 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 fulfill due to legal (LCP) and factual obstacles (research capacities have long been transferred from the court to the public prosecutor’s office ). In this regard, 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 proposal, it is indicated that the problems from the criminal matter will be treated, and at the same time it calls for other court procedures, but there are still many elements present that make the petitioner’s commitments unclear and contradictory. According to the draft law, repetition means the cancellation of the final judgments and actions of other state authorities taken based on 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 his actions that have been abolished. No answer is offered to the question of whether the judgments of the Supreme Court of RNM remain untreated when the final judgments are abolished (a judgment becomes final when it is decided on appeal) and what about the decisions on extraordinary legal remedies where the Supreme Court of RNM decides. There is no justification why a judge who participated in a previous procedure cannot participate in the repeated procedure.

In the provisions of the law, a period of one year is foreseen as the deadline for exercising the right to repeat the procedure in accordance with this law, counted from the day of its entry into force. This validity of the law from 1 year calls into question the legal certainty and the appearance of a discriminatory attitude in access to justice.

The insufficient assessment of the impact of the regulation is also reflected in the claim that this law will not cause financial implications for the budget, but it has not been taken into account who would reimburse the costs of the procedure and the lawyers of the persons who determined them themselves or were appointed to them ex officio.

Taking into account all of the above, the Blueprint group for monitoring reforms in the judiciary appeals the proposal of quality laws created exclusively on the basis of a previously conducted extensive analysis, regulatory impact assessment and in an inclusive process of all stakeholders. Draft laws need to be consistent and aligned with the legal framework in the area and related areas and be clear and understandable to everyone, in order to avoid collisions of laws that create legal uncertainty and violate the rule of law.

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