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Natasha Todorovska UDK:343.2/.7.047(497.7)
Stefan Budzakoski
Faculty of Law at First Private University FON
TENDENCIES IN THE REFORM OF THE SUBSTANTIVE CRIMINAL
LEGISLATION IN THE REPUBLIC OF MACEDONIA
Abstract
Macedonian reformed criminal legislation, conceptually, is the result of adaptation to the
development of the social system that was originally created more than a century ago. In the course of the
long history, the penal system is more or less successfully accommodated to the major historical political and
social changes. The starting point of the criminal law reform, is the adjustment to the international standards
of human rights and constitutionalism, on one hand, and the increase of crime and corruption on the other.
The development of international human rights law also has a great impact on the strengthening of the
criminal law protection which resulted in the harmonization of our legislation with the incorporation of
international human rights norms. European Convention on Human Rights had particular impact on the law
and practice, which is considered to be the main moving force for reforming the criminal proceedings in the
last ten years.
Invoking a clearly defined and consistent conception of reform, supported by solid empirical, comparative
research and comparative reviews of foreign experience, it was approached to successful reform of the
criminal justice system in Macedonia. Comprehensive reform of the penal system must be planned and
carried out solely on the basis of rational and verifiable means and methods in the removal of the
dysfunctional elements in the organization and operation of the public prosecution, the police and the
judiciary.
Keywords: reform, substantive criminal law, Penal Code, integral text.
1.
INTRODUCTORY NOTES
The reform of the Macedonian criminal legislation is facing a great challenge imposed in parallel with
the need for European integration through the harmonization of the economic, political and legal system of
the country. The Republic of Macedonia undertakes numerous responsibilities in the area of justice and
home affairs with the acquisition of the status of candidate for membership in the European Union. Hence,
the reform of the criminal justice system is a priority along with the overall reform of the legal, political,
economic and other social systems of the Republic of Macedonia. In this reform, despite the differences in
the methods and instruments of reform of the criminal law, comparative analysis, in-depth research and
monitoring of legislative changes, as well as the exchange of scientific information and practical experience,
more procedures are referenced in the preparation of new legislation and institutional assumptions.
The judicial system in the past eighteen years, unfortunately, has not shown results in dealing with
certain developing and civilisational situations and problems such as organized crime, terrorism, corruption,
providing effective legal security and protection of human rights and freedoms, which imposed the need of
the criminal justice system reform as a branch of the entire legal system. The Macedonian reform of the
criminal law is a result of the implementation of the Strategy for the reform of criminal legislation, adopted
by the Government in 2007, which brings forward changes in the general and special part of criminal law as
a material and substantial change in the model system of criminal procedure. This reform is
assigned in order
to perform systematic harmonization of the national criminal law with the European law, to make it
compatible and to be able to successfully meet the challenges in the fight against corruption, terrorism,
organized crime.
The basic hypothesis which is the starting point in the preparation of this paper is "strengthening and
improving the criminal law framework is the main prerequisite for efficiency in the work of the institutions
responsible
for
the
protection
of
rights
and
freedoms
in
a
democratic
legal
state."
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2.
REASONS FOR THE REFORM OF THE MACEDONIAN CRIMINAL LEGISLATION
There are several reasons that led to the Macedonian criminal legislation reform. Among others, two
reasons stand out as essential, and these are: change of the political system and the independence (transition)
of the Republic of Macedonia.
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Besides the two main reasons stated, the reform has been imposed by at least three or four factors.
First, uncritically taken laws that were created in a different socio - political relations, channelled in terms of
the existing national political conventions, under the influence by the current state and the ideological - legal
views. Despite the emphasis on the humanistic and democratic principles, in the laws authoritarian and
collectivistic conceptions dominated in these laws by suppressing the already scanty individual rights and
freedoms. Second, since it came to a radical change from the former political system and social structure, the
criminal law had to be reformed in the direction of postulates (foundations, basic principles) of state law, no
abuse of the criminal law by the current government, complete independence of the courts and other criminal
prosecution, without political or police repression and absolute guarantees for respect of human rights and
freedoms. Third, we live in a time of constant reform of criminal law throughout the entire world. They are
in line with the present international norms and standards, which are increasingly becoming mandatory in
order to create a contemporary criminal law of universal kind. It is conditioned, as the emergence of new
forms of crime, such as organized, environmental and other, and the audacity of the perpetrators of new
forms of crime such as genocide, war crimes, terrorism and others. It must be said that the majority of the
former socialist countries reformed their penal legislation embracing the new criminal-political tendencies.
These new trends consist of strengthening the principle of legality, absolute guarantees of human rights and
freedoms, abandoning the unproductive process of socialization as a measure of treatment, by reaffirmation
of guilt and equitable sentence, further humanization of imprisonment by requiring its alternatives, releasing
the criminal law from moralizing and similar features and tightening the protection in the field of
environment and human security.
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Fourth, the need for codification of the Macedonian Criminal Law. All
modern states have accepted the principle of codification of the criminal law. The principle of codification
consists of systematizing the whole matter in the area of criminal law and creating harmonious system of
norms without internal contradictions. That means regulating the overall subject matter of the substantive
criminal law in a single systematic (codified) law. Recent experience with the existence of two penal laws in
the country, led to absurd condition which has clearly imposed the necessity of immediate codification of the
Macedonian criminal law. Particularly due to the fact that the Republic of Macedonia is a country of unitary
type, because the majority of countries with federal state structures of various, even the most rational type,
have gone to a single federal legislation.
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2.1
Main directions of the reform of the criminal - substantive law
The crisis of criminal law in the 21st century, i.e. the crisis of the society in which the criminal law
should exercise its functions, above all the protective function, derives from the inefficiency of prevention
and repression and the radical changes in the crime image. According to the realist conception, the criminal
law‟s duty is to keep under control and on a tolerable level the crime, which in reality is impossible to be
eliminated. The two leading criminal political conceptions: liberal conception, i.e. the conception of human
rights and fundamental postulates of a democratic legal state raised the question of the legitimacy of the
laws.
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The adoption of CCM in 1996 represented the first stage of the reform of the Macedonian substantive
criminal legislation whose aim was its conceptualizing over a new system of values based on democratic
gains, the rule of law and protection of human rights and freedoms.
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In fact, by this, the first phase of the
reform of criminal legislation has been wrapped up, which is aimed at seceding with the remains of the
socialist system and its criminal law and providing effective criminal-law protection of the new democratic
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Branko Sekulovski, “The new and old Macedonian legislation - comparative analysis, Master thesis University “St. Cyril and
Methodius” Faculty of Law Justinianus Primus (1997):5
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Vlado Kambovski: Foundations and directions for reform of the Macedonian criminal legislation Macedonian Review of Criminal
Law and Criminology, year 1, no. 1 (1994): 20
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Vlado Kambovski: Criminal Code - the first step towards a major reform of the Macedonian criminal legislation. Macedonian
Review of Criminal Law and Criminology, 1-2, (1995): 117-151
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Strategy for Reform of the Criminal Law, the Ministry of Justice (2007): 70
94
Vlado Kambovski: Second Stage of the Reform of the Criminal Law. Macedonian Review of Criminal Law and Criminology year.
No. 11. 3 (2004): 138