Macedonia: Penalty for failure to appear for military service; effect of the July 2003 implementation of the Amnesty Law; Law of Courts; court of jurisdiction in evasion matters; Basic Appeal Court of Skopje
|Publisher||Immigration and Refugee Board of Canada|
|Author||Research Directorate, Immigration and Refugee Board, Canada|
|Publication Date||26 September 2003|
|Citation / Document Symbol||MCD41952.E|
|Cite as||Immigration and Refugee Board of Canada, Macedonia: Penalty for failure to appear for military service; effect of the July 2003 implementation of the Amnesty Law; Law of Courts; court of jurisdiction in evasion matters; Basic Appeal Court of Skopje, 26 September 2003, MCD41952.E, available at: http://www.refworld.org/docid/403dd2028.html [accessed 8 December 2013]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Failure to Appear
Conscription in Macedonia is defined under Chapters II and V of the May 2001 Macedonian Defence Law (MDL) (Macedonia 30 May 2001) and was discussed in MCD40320.E of 12 May 2003.
Failure to appear for military service is criminalized under Articles 341 and 342 of the 1996 Macedonian Criminal Code (MCC) (Macedonia 1 Nov. 1996). According to Article 341, failure to appear without justified reason is punished with a fine or imprisonment of up to one year (ibid., Art. 341.1); however, if the subject should evade authorities in Macedonia or flee abroad, they are liable to terms of imprisonment of either three months to three years or one to five years, respectively (ibid., Art. 341.2, 341.3). Charges may be ameliorated or acquitted if the alleged offender reports himself to the authorities on his own volition (ibid. Art. 341.5). The MCC also outlaws the use of deceit to avoid military service, such as temporarily or permanently wounding or incapacitating one's self (imprisonment for three months to five years), feigning illness and/or using false documentations to prove illness (imprisonment of three months to three years) (ibid., Art. 342.1-342.3). Please consult the texts of Articles 341-342 of the MCC in the electronic attachment below.
Additionally, Article 168.4 of the MDL stipulates that a person who does not respond to a call by an authorized military organ may be fined between 5,000 and 30,000 denars or sentenced to imprisonment (ibid. 30 May 2001).
The June 2003 Amnesty Law
A revised version of the Macedonian Defence Ministry's Amnesty Law of 2002 (Fakti 8 July 2003), previously the subject of MCD41427.E of 17 June 2003 and MCD41646.E of 20 June 2003, was accepted in draft format by the Macedonian parliament on 10 July 2003 (SET 11 July 2003). Presented by the Government as the decree For Proclaiming the Law on Amnesty of Citizens of the Republic of Macedonia Who Did Not Completed [sic] Their Military Obligation on 18 July 2003, it entered into force upon publication in the Official Gazette of the Republic of Macedonia on 25 July 2003. (Macedonia 25 July 2003, Art. 7).
According to newspaper reports, the decree exonerates individuals who avoided the call for military service after 1 January 1992 (SET 10 June 2003; Fakti 8 July 2003; KosovaLive 9 June 2003) and applies to over 15,000 persons (ibid.) of various ethnic profiles, including Albanian, Macedonian, Turkish, Roma, Vlach, Bosnian, Serb and others (MIA 18 July 2003). Specifically, 2,773 individuals over the age of 30 years (ibid.) who had been criminally charged with evading military service on or before 25 July 2003 became exempt from prosecution and investigation with the decree (Macedonia 25 July 2003, Art. 1). Another 12,369 persons aged between 27 and 30 years (MIA 18 July 2003) who did not respond for military service on or before 25 July 2003 were to be transferred to the Macedonian reserve forces (Macedonia 25 July 2003, Art. 2). The Amnesty Law makes no mention of individuals aged younger than 27 years who failed to appear for military service; however, Articles 3 and 4 concern the procedures to appeal ongoing or completed criminal proceedings as well as other appeals for amnesty (ibid., Art. 3-4). Please consult the decree attached below.
Individuals eligible for amnesty may apply in person or have the public prosecutor (in ex officio capacity) or a judge apply on their behalf (OSCE 5 Sept. 2003). On 4 August 2003, the Macedonian Defence Ministry adopted procedures to begin the transfer of the amnestied into the Macedonian Army reserve corps and requested that those affected by the law on amnesty report to local units of the Defence Ministry for medical checks prior to their transfer (MIA 4 Aug. 2003).
The Amnesty Law did not specify whether individuals granted amnesty for military evasion could be called to return to military service at a latter date among the sources consulted. Similarly, reports discussing this situation were not found by the Research Directorate.
The Research Directorate was unable to find a copy of the Law on Courts, or find a detailed explanation of the legal competencies ascribed to the various courts of Macedonia among the sources consulted. The United States Agency for International Development (USAID) referred to the Law on Courts, which entered into force on 1 July 1996 (MILS 1 July 1996), as one of the three documents governing the judicial system (US 25 Jan. 2002, C-2). At the time of its implementation, the Macedonian Information and Liaison Service (MILS), a non-profit, non-governmental information service, hailed it as one step toward the development of a "legal government" in Macedonia (2 July 1996) and the last phase in establishing an independent judiciary (MILS 1 July 1996).
The Law on Courts divided Macedonian courts into 27 Courts of Original Jurisdiction, 3 Appellate and 1 Supreme Court (MILS 1 July 1996; USAID 25 Jan. 2002, C-2). The Website of the Macedonian Public Prosecution Office indicates that the three appellate courts are located in Skopje, Bitola and Stip (Macedonia n.d.). In addition, Skopje also has a Municipal Court (COE 17 May 2001). While reports refer to a police unit among the military's support forces (Macedonia 24 Apr. 2003; Dnevnik 14 Apr. 2000; ibid. 23 Mar. 2001), and the Ministry of Defence investigating and pressing charges against soldiers (MIA 15 Oct. 2001), the Research Directorate did not find mention of a military court or military penal system in Macedonia.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.
Council of Europe (COE). 17 May 2001. European Court of Human Rights. "Press Release Issued by the Registrar: May 22-31, 2001 Hearings."
Dnevnik [Skopje, In Macedonian]. 23 March 2001. "Two Terrorists Killed with Bombs in Hand." Unofficial Translation
_____. 14 April 2000. Katerina Blazevska. "Kidnappers Explained to Soldiers that They Would Be Exchanged for a KLA Member." Unofficial Translation.
Fakti [Skopje, in Albanian]. 8 July 2003. Besnik Ismaili. "Macedonian Police Continue to Jail Draft Dodgers Despite Amnesty Decision." (BBC Monitoring 9 July 2003/Dialog)
KosovaLive [Pristina]. 9 June 2003. "Macedonian Albanian Minister Praises Bill Amnestying 15,000 Young People." (BBC Monitoring 10 June 2003/Dialog)
Macedonia. 25 July 2003. Official Gazette of the Republic of Macedonia. No.49. Decree for Proclaiming the Law on Amnesty of Citizens of the Republic of Macedonia Who Did Not Completed Their Military Obligation. Unofficial Translation by the United Nations High Commissioner for Refugees forwarded by the Organization of Security and Co-Operation in Europe's Office in Skopje.
_____. 24 April 2003. Ministry of Defence. "Army of Republic of Macedonia."
_____. 1 November 1996. Criminal Code. (Public Prosecution Office of Republic of Macedonia )
_____. 30 May 2001. Defence Law of the Republic of Macedonia. (Ministry of Defence)
_____. n.d. Public Prosecution Office of Republic of Macedonia. "Structure and Organization."
Macedonian Information Agency (MIA) [Skopje]. 4 August 2003. "FYROM Army Draft Dodgers to Join ARM Reserve." (FBIS-EEU-2003-0804 5 Aug. 2003/Dialog)
_____. 18 July 2003. "FYROM Assembly Adopts Amnesty Law for Draft Dodgers." (FBIS-EEU-2003-0718 21 July 2003/Dialog)
_____. 15 October 2001. "Defense Ministry Denounces Destroying of Property on Popova Sapka." (Reality Macedonia)
Macedonian Information and Liaison Service (MILS) [Skopje]. 2 July 1996. MILS-News. "Legal Government Definitely Constituted." (Hellenic Resources Network)
_____. 1 July 1996. MILS-News. "VMRO-DPMNE: 'Judiciary Under Influence of Parties.'" (Hellenic Resources Network)
Organization for Security and Co-operation in Europe (OSCE). 5 September 2003. Spillover Monitor Mission to Skopje, Rule of Law Unit, Skopje. Correspondence received from an officer.
Southeast European Times (SET). 11 July 2003. "Macedonia's Parliamentary Commission Approves Military Service Amnesty Bill."
_____. 10 June 2003. "Skopje Grants Amnesty to Recruits Avoiding Military Service." (MIA
United States. 25 January 2002. United States Agency for International Development. "Macedonia Legal Reform Support Project (LRSP)."
Additional Sources Consulted
Internet sites, including:
Center for SouthEast European Studies
Constitution of the Republic of Macedonia
East European Constitutional Review
Helsinki Committee for Human Rights in Macedonia
Law on Criminal Procedure
Macedonian Bar Association
Macedonian Business Lawyers' Association
Macedonian Legal Resource Center
Macedonia. 25 July 2003. Official Gazette of the Republic of Macedonia. No.49. Decree for Proclaiming the Law on Amnesty of Citizens of the Republic of Macedonia Who Did Not Completed Their Military Obligation. Unofficial translation by the United Nations High Commissioner for Refugees. Received from the Organization of Security and Co-Operation in Europe's (OSCE) Office in Tirana, Albania.
Pursuant to Article 75 paragraphs 1 and 2 of the Constitution of the Republic of Macedonia, the President of the Republic of Macedonia and the President of the Assembly of the Republic of Macedonia, issue the:
FOR PROCLAIMING THE LAW ON AMNESTY OF CITIZENS OF THE REPUBLIC OF MACEDONIA WHO DID NOT COMPLETED THEIR MILITARY OBLIGATION
The Law on Amnesty of citizens of the Republic of Macedonia who did not completed their military obligation which the Assembly of the Republic of Macedonia adopted at its session held on 18th July, 2003 is hereby proclaimed.
No. 07-3691/1 President of
18th July 2003 the Republic of Macedonia
Skopje Boris Trajkovski
Vice- President of the Assembly of the Republic of Macedonia
LAW ON AMNESTY OF CITIZENS OF THE REPUBLIC OF MACEDONIA WHO DID NOT COMPLETED THEIR MILITARY OBLIGATION
This law exempts from prosecution, discontinues the criminal proceedings and fully exempts from execution of the sentence to imprisonment (hereinafter: amnesty), citizens of the Republic of Macedonia, who are above 30 years of age (hereinafter: persons), for whom there is a well founded suspicion that until the day when this law entered into force have committed criminal acts pursuant to Article 214-Not-responding to an invitation and evading the military service and 217-Arbitrary departure and flight from the armed forces according to the Criminal Code (Official Gazette of the SFRY number 44/76, 36/77, 56/77, 34/84, 37/84, 74/84, 57/89, 3/90, 38/90 and 45/90 and Official Gazette of the Republic of Macedonia number 25/92 and 32/93) and pursuant to Article 341-Not-responding to an invitation and evading the military service and 344-Arbitrary departure and flight from the armed forces according to the Criminal Code (Official Gazette of the Republic of Macedonia number 37/96, 80/99 and 43/03).
The persons who on the day of this law's entry into force are between 27 and 30 years of age, as well as the persons who were not in the military register for whatever reason and are between 27 and 30 years of age, and who did not responded to an invitation and evaded the military service, arbitrarily departed or fled from the armed forces of the Republic of Macedonia during the time period prescribed in Article 1 of this Law, shall be transferred in the reserve forces.
The Minister of Defence will adopt the Guidelines for the implementation of paragraph 1 of this Article within seven days following the day of entry into force of this Law.
The procedure of application of this Law to the persons against whom criminal proceedings are ongoing, is initiated ex officio by the competent public prosecutor, respectively, the competent first instance court or the person to whom the amnesty applies, respectively the person who may lodge an appeal to the benefit of the defendant.
The procedure of application of this Law to the persons for whom the criminal proceedings are effectively completed shall be initiated ex officio by the penitentiary institution where the convicted person serves the sentence of imprisonment, and for the persons that have not yet started to serve the sentence of imprisonment, the procedure is initiated ex officio by the court which has passed the first instance verdict or upon the request of the public prosecutor or the convicted person.
The competent body pursuant to the Law on Criminal Proceedings, respectively the Law on Execution of Sanctions, reaches the decision on amnesty of the persons of paragraphs 1 and 2 of this Article within eight days from the day of adoption of this Law.
The Public Prosecutor, the persons to whom the amnesty applies, and the persons who may lodge an appeal to their benefit, may lodge an appeal against the decisions of Article 3 of this Law.
The immediate higher court decides upon the appeal against the decision of the first instance court, while the Ministry of Justice decides upon the appeal against the decision of the penitentiary institution.
The provisions of the Law on Criminal Proceedings and Law on Execution of Sanctions apply in the procedure of implementation of this Law, if not regulated otherwise by this Law.
The Minister of Justice will adopt Guidelines for the Implementation of this Law within three days from the day of the entry into force of this Law.
This Law enters into force on the day of its publication in the "Official Gazette of the Republic of Macedonia".
Macedonia. 1 November 1996. Criminal Code.
Criminal Code Provisions
Not responding to a summons and avoiding military service
(1) A person who without justified reason does not come at the determined time for recruitment, for notification on the military disposition or acceptance of arms, or for serving the military service, a military exercise or some other military service, even though he was summoned with an individual or with a general summons, shall be punished with a fine, or with imprisonment of up to one year.
(2) A person who hides in order to avoid the obligation from item 1, even though he was summoned with an individual or with a general summons, shall be punished with imprisonment of three months to three years.
(3) A person who leaves the country, or remains abroad, in order to avoid recruitment or serving the military service, military exercise or some other military service, shall be punished with imprisonment of one to five years.
(4) A person who calls out or instigates several people to commit the crimes from items 1, 2 and 3, shall be punished for the crime from item 1 with a fine or with imprisonment of up to three years; and for the crime from items 2 and 3, with imprisonment of one to ten years.
(5) The offender of the crime from items 2 and 3, who of own volition reports himself to the competent state authority, may be punished more leniently or may be acquitted from punishment.
Avoiding military service by incapacitating or deceit
(1) A person who, with the intention of avoiding military service or to be dispositioned to an easier duty, wounds himself or in some other manner incapacitates himself for military service temporarily, or who permits another to incapacitate him temporarily, as well as a person who, with or without his permission, incapacitates temporarily another with the same intention, shall be punished with imprisonment of three months to five years.
(2) If by committing the crime from item 1 a permanent disability for military service was caused, the offender shall be punished with imprisonment of one to five years.
(3) A person who, with the intention from item 1, simulates an illness, or for himself or for another uses a false document, or acts in some other deceitful manner, shall be punished with imprisonment of three months to three years.