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LEGAL AND PRACTICAL CHALLENGES OF THE REPUBLIC OF MACEDONIA IN APPLYING THE CONSTITUTIONAL PRINCIPLE OF PRESUMPTION OF INNOCENCE
Abstract
In this paper the author deals with the legal and practical analysis of the constitutional principle of presumption of innocence in the Republic of Macedonia. The presumption of innocence is a universally accepted human right that prohibits guilty plea to the accused. The presumption of innocence enables the accused to have an active role in the judicial process. It is the obligation of the public prosecutor to prove the guilty of the accused, not the obligation of the accused to prove his/her innocence. Only the court is the body that on the basis of fair trial can say whether the citizen is guilty or not. The obligation of the accused to prove his innocence is contrary to the spirit of a democratic order and in this case the presumption of innocence constitutes a central basis for the recognition and preservation of human dignity over the arbitrariness of the state power. The social stigma and the psychological harm suffered by a person accused in criminal proceedings made the presumption of innocence to be decisive for a society devoted to justice. Disrespecting this principle can lead to chaotic injustice. If we put things back, everyone would be guilty until proven innocence. In this paper, the author also reflects the scientific discussion on this principle that is currently being conducted in the Republic of Macedonia, because, although, at first glance, this constitutional principle can be perceived as easily applicable, but within, it includes one set of elements, the cause that, the conceptualization of this principle within the constitutional legal order, its harmonization with international legal instruments and its practical and effective observance are one of the main challenges of RM. The constitution of the country regulates this principle in the following way: a person indicted for an offence shall be considered innocent until his/her guilt is established by a legally valid court verdict. A person unlawfully detained, apprehended or convicted has a right to legal redress and other rights determined by law. No person may be punished for an offence which had not been declared an offence punishable by law, or by other acts, prior to its being committed, and for which no punishment had been prescribed. No person may be tried in a court of law for an offence for which he/she has already been tried and for which a legally valid court verdict has already been brought. Therefore, here lies the importance of this paper, since, according to the application and respect of this principle, the rule of law and democracy in one state can be legitimized.
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References9
Ćirić, Jovan; Presumption of Innocence and the European Court on Human Rights, Institute of Comparative Law: The Serbian Law and the International Judicial Institutions, pp. 321-322, 2009, Belgrade. (In Serbian Language).
Shasivari, Jeton; Constitutional Law, Book One, First Edition, pp. 205, 2015, Skopje. (In Albanian Language).
European Convention on Human Rights as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4, 6, 7, 12 and 13, pp. 9. Available at: <https://www.echr.coe.int/Documents/Convention_ENG.pdf>.
The Universal Declaration of Human Rights, Articles 10 and 11. Available at: <http://www.un.org/en/universal-declaration-human-rights/>.
The Law on Criminal Procedure, Official gazette of RM, no. 150 from 18 November 2010, Article 2.
T. Vasiljevič; M. Grubač; Commentary on the Law on Criminal Procedure, Third edition, pp. 7-8, 1987, Belgrade.
Nedelkova, Lidija; Saiti, Xhemali; Devaja, Shpend; “Normative and Practical Challenges of the Republic of Macedonia in the Application of the Right to a Fair Trial Principle”, SEEU REVIEW, Special Edition, Magna Carta 800th, Volume 11, Issue 1, pp. 21-22, 2015, Skopje; The Law on Criminal Procedure, Official gazette of RM, no. 150 from 18 November 2010, Articles 70, 165. 166, 168 and 171.
Ibid, pp. 22-24.
See more on: The Case Law of the European Court of Human Rights with Respect to Macedonia up until the end of 2015, Prepared by the AIRE Centre in cooperation with the Government Agent and the Bureau for Representation of the Republic of Macedonia before the European Court of Human Rights, pp. 55-64.
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