The Blueprint group for judicial reforms expresses serious concern about the amount of the sentence imposed on the defendant Zoran Mileski – Kičeec for the crime “Serious crimes against the safety of people and property in traffic”. According to the information from the Gostivar Basic Public Prosecutor’s Office, an agreement was reached with the accused, which was accepted by the Gostivar Basic Court. With the agreement, the defendant admits to the crime of Serious crimes against the safety of people and property in traffic according to Article 300 paragraph 4 and paragraph 3 in connection with Article 297 paragraph 3 in connection with paragraph 1 of the Criminal Code and is sentenced to an effective prison term of six months.
We believe that the sentence imposed in this way is inappropriate considering the consequences of the crime, the death of one person, serious bodily injuries to four persons and bodily injuries to two persons. The amount of the imposed penalty cannot achieve the objectives of the punishment. It neither contributes to the realization of justice for the victims, does not prevent the perpetrator from committing crimes in the future, nor can it be educational to influence others not to commit crimes.
The possibility of mitigating the sentence below the legal minimum undoubtedly exists when a verdict is passed based on an agreement between the public prosecutor and the suspect. However, the judge of the preliminary procedure who evaluates the proposed settlement has the right to reject it if they find that the obtained evidence of the facts important for the selection and assessment of the criminal sanction does not justify the imposition of the proposed criminal sanction. In the specific case, the judge was obliged to reject the settlement proposal.
In this regard, we believe that the newly established legal qualification of the crime, as a crime committed by negligence, instead of the original one – a crime committed with possible intent, is a qualification that would only enable the imposition of a lighter sanction. We would like to mention that the object of protection in this type of crime is the safety of public traffic, so whether the crime was committed intentionally or through negligence should be evaluated in the direction of whether the perpetrator knowingly and intentionally violated the safety rules on public traffic, and not in the direction of whether he consciously and intentionally wanted to cause death or serious bodily injury to another person (for which he would be prosecuted for a completely different crime). Because of this, the Criminal Code itself prescribes a prison sentence of at least four years for this type of crime committed with intent, and one to five years for crimes committed through negligence.
In the information shared with the public, PPO Gostivar did not offer sufficiently convincing reasons justifying the mitigation of the sentence below the legal minimum. It was shared that there were no traces of alcohol and that the accused did not exceed the speed limit on the road. The only fault identified by the traffic expert is the overtaking in a full lane, for which the suspect admitted guilt and expressed regret and remorse for the crime committed. In that regard, this crime could have been committed due to negligence only if the defendant (now a convicted person) negligently crossed into the opposite lane, or if the overtaking was on a dotted line, but the defendant was not careful enough to miss the vehicles coming from the opposite side, and not if the defendant was knowingly overtaking vehicles in a full lane.
The characterization of overtaking on a full lane as a single offence gives the impression that the public prosecutor’s office and the court do not consider such an offence to be serious enough, and also no arguments and evidence were offered as to why the prosecutor and the court consider that the offence was committed due to negligence. This is all the more so since the competent court also confirmed the agreement, hence it took as relevant the facts that the suspect had no traces of alcohol or opiates and did not exceed the speed limit, as well as the admission of guilt and statement of regret and remorse, and these are the basis for a proposal – the agreement, which we consider to be completely inappropriate considering the consequences of the crime, that is, the occurrence of the death of a person and the conscious and volitional action of the accused.
In the specific case, the court only took into account the mitigating circumstances, according to the proposal of the Basic Public Prosecutor’s Office, but when determining the sentence, it did not take into account the aggravating circumstances at all, especially considering that the perpetrator committed the crime during the suspension of serving prison sentence because of treatment.
This case, given the media coverage, is a case that the public is aware of, but there are many cases in practice, where the punishment is inappropriate and does not correspond to the gravity of the committed crimes and their consequences. The measurement of punishments should be appropriate to the crimes committed, their consequences, as well as other relevant facts that should be taken into account, with the aim of uniform treatment and appropriate punishment, especially when it comes to crimes where the consequence is death to one or more persons. One gets the impression that the judicial authorities consider that a prison sentence of six months is sufficient for the lost human life, which is not at all in the spirit of the penal policy, and it cannot be considered that such a sentence will fulfill the purpose of the punishment.
Therefore, we present the following requests to the judicial authorities:
- Public prosecutors and judges should take into account the decision of the European Court of Human Rights in the case of Smiljanikj v. Croatia (No. 35983/14) when dealing with this type of criminal case, which refers identically to a sentence of imprisonment for serious traffic offences with fatal consequences. In the ECtHR decision, it is stated that in cases where they impose a prison sentence below the legal minimum, they have the obligation to carefully consider all, and not only the mitigating circumstances but also a satisfactory public debate regarding the achievement of the purpose of punishment with the imposed sanction;
- The Public Prosecutor of the RNM as well as the Supreme Court of the RNM, within the framework of their legal competencies, should carry out all the necessary measures to ensure that the penal policy for this type of crime is adequate to achieve the goals of the punishment, such as the satisfaction of justice and special and general prevention; and
- The Council of Public Prosecutors and the Judicial Council of the RNM, which are responsible for monitoring and evaluating the work of public prosecutors and judges, should consider with particular attention the complaints and petitions submitted by victims of this type of crime and if they find irregularities in their work to take appropriate measures.
Blueprint Group for Judiciary Reforms:
- Macedonian Association of Young Lawyers (MZMP)
- European Policy Institute (EPI)
- Institute for Human Rights (IHR)
- Coalition “All for fair trials” (KSPS)
- Helsinki Committee for Human Rights
- Center for Legal Research and Analysis (CPIA)
- Foundation Open Society – Macedonia (FOSM)
—————————————————15 November 2021