Janeva demands key legal amendments for more rapid justice
Трите законски измени кои ги бара Јанева од Собранието се клучни за побрза и поефиканса правда и казнување на криминалот и корупцијата во Македонија. Оттука и отпорот, барем од овој состав на Собранието, кој ја тривијализира расправата во парламентот со прашања од типот за „капацитетот на Јанева“
The three legal amendments that Janeva demands from the Parliament are the key for rapid and more efficient justice and for prosecution of the crime and corruption in Macedonia. Thereupon the resistance, at least from the current configuration of the Parliament, which trivializes the session in the Parliament with issues such as “Janeva’s capacity”
Author: Teofil Blazhevski
The Special Prosecutor Katica Janeva has been answering the MPs’ questions in the Parliament for several days already, allegedly about the points of her new six-month report, but in the essence, her presence there is connected with the legal amendments she demands from the Parliament and which were not welcomed by the ruling majority.
Janeva first requested those three amendments in the press conference on 15 September 2016, when she announced the first two bills of indictment of this prosecution office, and they are: dismissing the deadline for the investigations and for lodging indictments; amending the Law on the Protection of Witnesses and adopting the Recommendations of the Venice Commission on the Law on the Protection of Privacy and Protection of Whistleblowers.
In fact, everything that Janeva demands on behalf of the Special Prosecution Office (SPO) is already firmly agreed on by the leaders of the four largest political parties, not only in the beginning of the Przhino Agreement, but in its third “installment” as well, in the so called Agreement from July (this year):
Special Prosecutor shall be supported
a. In case Constitutional Court decides SP legislation or its part is unconstitutional, four parties commit to align the legislation with the decision of the Court and to re-establish the office according to decision within five days. The effectiveness, scope and objectives of the SP should be maintained.
b. Four parties call on the Constitutional Court to decide on SP law as soon as possible on the next possible session.
The inclusiveness of the process on reforms and their implementation will be conducted in a working group in the parliament including civil society and experts.
a. Prioritised adoption of Urgent Reform Priorities and Priebe Recommendations.
b. Amend whistleblower law according to Venice Commission within 6 months.
d. Euro-Atlantic integration.
The underlined provisions are actually the elements of the support for Janeva and SPO agreed on by the leaders, which is now being withdrawn.
DISMISSING THE DEADLINES FOR THE INVESTIGATIONS
Couple of days after the Law on SPO was passed, plenty of experts noticed the problem in the Article 22 of this Law, which is the 18-month deadline for completing the entire criminal proceedings – from pre-investigations and investigations to lodging bills of indictments. It remains unknown how this Article appeared there, but the experts’ unanimity is unambiguous. In fact, the situation is tough – it is a matter of complicated pre-investigation proceedings (for instance: listening to more than 500.000 audio records and reading more than 100.000 shorthand writings from SMS communications or conversations) or for investigation proceedings (requests for obtaining evidence from foreign countries, banks, monitoring sessions, searching…) in order to secure quality evidence for a bill of indictment.
Hence, Janeva’s demand for complete dismissal of this limiting deadline in the law is not an issue that could be neglected or left to the new MPs after the elections, because, let’s repeat, the accord for forming the SPO and investigating the phenomenon of the mass wiretapping and offences stated in those materials, was reached by the main political actors in the Przhino Agreement.
AUTONOMY IN THE PROTECTION OF WITNESSES
What is also essential for the work of the SPO is its autonomy, which should comprise autonomy for protection of witnesses that want to cooperate with the SPO. At the beginning of April this year, the prosecutor submitted an initiative to the Parliament for Amending the Law on the Protection of Witnesses, but after seven days the Parliament has dissolved, and when it was back in session, the initiative was gone into thin air. Now, Janeva puts it back in the game, although the Parliament will be dissolved again in just several weeks.
The essence of the Amendments that Janeva demands is thus:
- SPO should suggest new inclusions of people in the Witness Protection Program.
- SPO requests written validation from the person considered for inclusion into the Program.
- SPO requests autonomy to decide whether it is necessary to extend the provisions of the Program, even with the precedent of autonomy after its expiration when and only when there is immediate danger for the witness.
- SPO requests urgent implementation of these amendments and ofthe measures of protection – secrecy of identity, physical protection and change of place of residency.
Namely, the provisions from the Law, passed back in 2005, state that the public prosecutor, police or judge can submit a request for activating the Program. Now, in accordance with SPO’s prerogatives, Janeva demands the same ability for the SPO to submit such request equally and individually, by amending the Article 15 from the Law.
The indispensability of such amendments of the law is more than obvious, and it was significantly augmented after the unclear death of Kosta Krpach, confirmed witness of the SPO.
In addition, the amendments that SPO demands, as stated in the explanation, are found in the need for constant promotion of the legal possibilities of this measure as one of the key measures in the fight against crime, which is RM’s obligation, which arises from international documents:
…Besides operationalization of the obligations from the United Nations Convention Against Transnational Organized Crime and the Recommendation of Council of Europe’s Committee of Ministers, this Law ought to represent a regulative for one of the most powerful means for fight against organized crime; it should reach the international standards for utilization, exchange and use of evidence; to reach greater efficiency of the legal proceedings… – states SPO’s explanation.
THE LAW ON PRIVACY KEY FOR ACCEPTING THE RECORDINGS
In the Parliament, Janeva also requested acceptance of the opinion of the Venice Commission related to the Law on Privacy and the Law on the Protection of Whistleblowers.
The essence of Janeva’s demand actually lies in the assistance she expects from the amended law, primarily from the first law, as the Venice Commission suggests, which would allow the “public to become familiar with part of the recordings that are not published yet, but are of public interest”.
Let’s remind, this law was passed by the Parliament at the end of last year, after the initiative of the ruling parties VMRO-DPMNE and DUI (DUI is the proposer), and the formal explanation was to protect the privacy of public persons, officials from the numerous leaked intercepted phone conversations, but in fact – to prohibit the media to republish the already published “bombs” by the opposition. Fortunately, due to the immense pressure of the domestic and international public, the second suggestion was not passed, albeit the law was passed and it prohibits any sort of private and public publishing of the intercepted phone materials.
The Venice Commission recommended, and the leaders of the four political parties agreed:
The Venice Commission concludes that the Privacy Law requires an in-depth revision. First, the scope of application of the Privacy Law and its relation to other laws should be clarified. The principal aim it pursues – to protect the privacy of speakers and protagonists – is legitimate. However, it establishes a very rigid rule, prohibiting all publications of all intercepted materials. Given the context in which the interceptions were made and in which this law will operate, Article 4 – both in cases of private disclosure and public disclosure (pp. 1 and 2 correspondingly) – should allow for publication of materials touching upon matters of public interest…
The thorough analysis and the opinion of the Venice Commission point out to the rules considered as standard in the European countries, which are imposed by the Convention on Human Rights, by the rights of the citizens to be informed, by the interpretation of the meaning of the term public person, all the way to their greater subjection as public interest.
When it comes to the SPO and Janeva, an important opinion from the conclusion is “its relation to other laws”, in regards to the next (Item 12 from the Analysis of the Law) opinion of the Venice Commission:
The authorities are invited to revise the formula used by the Privacy Law to define the material scope of its application, in order to specify it in more clear terms and harmonise it with the law on the Special Prosecutor.
The thing, in fact, is to define the materials covered by this law- should all of them will be considered as illegally obtained, thus making them unavailable in a court proceeding? Having in mind the objective and the spirit of this Law, and seeing it entirely as a realization of the Przhino Agreement, the Venice Commission calls on clarification of this part of the law, meaning that the recordings Janeva has, could play principle and key role in some bills of indictment, alongside with other obtained evidence.
As a matter of fact, only a few people paid attention to Janeva’s last press release, when she openly pointed out, especially to the judges:
By passing the law on SPO, the intercepted recordings and their content gained the same legal form. They are evidence and they became part of RM’s legal system as such. In other words, the law is implementing the world standard that the public interest is beyond the personal interest, especially beyond the interest of those who exercise power.
The acceptance of the amendments of the Law on Privacy in the direction given by the Venice Commission will facilitate Janeva’s and SPO’s way during the trials. And, in order to remind you, we repeat – the leaders of the political parties signed and therefore agreed to accept the amendments, suggested by the Venice Commission, and the harmonization of the two laws – the Law on Protection of Privacy and the Law on Protection of Whistleblowers.