The PACTIS Association published an analysis of the Law on Determining the Type and Duration of Penalties. According to the analysis of the Law, it is concluded that its application leads to the destruction of the entire penal system.
According to PACTIS’ analysis, "the law completely violates the principle of individualization of the sentence. With the existence of legally objective criteria, given horizontal and vertical categories, the judge cannot determine the type of sanction and measure a sentence that he considers appropriate for the perpetrator of the crime and which will satisfy justice and the purpose of the punishment”.
The research analyses several court rulings, including the attitudes of judges, prosecutors and lawyers from Prilep, Bitola and Ohrid, who were examined through questionnaires.
Attached are some of the conclusions of the analysis:
- This law completely violates the right of the judge guaranteed by law to decide with free judicial conviction.
- It can be concluded that the purpose for which the equalization of the penal policy was adopted was to be realized within the sphere of the judiciary, more precisely the Supreme Court, which would take positions and opinions regarding criminal law.
- By no means can the determination of the sentence fall within the framework of the legislature, or pass a law setting fixed limits that the judge should only apply. Moreover, it is the very formation and operation of the Commission on the Equalization of Penal Policy, whose members are elected by the Assembly of the Republic of Macedonia that will follow the penal policy of the courts, which is absurd in light of the strict separation of powers according to the Constitution.
- This law also questions the judge's role in the administration of justice, putting the judge in a position only to say what is included in the tables and worksheets attached to the law.
- The consistent application of the law leads to illogical outcomes in the process of justice in the sense that it imposes more severe penalties on minor offenses and vice versa.
- The basic goal of equalizing penal policy is not achieved.
- This law works at the expense of the perpetrators of minor crimes who have been repeatedly convicted and does not solve the problem of re-socialization of these perpetrators, who instead of turning away from petty crime, they are sentenced to three, four years imprisonment where there is high probability of "prison infection".
- The law encourages the recognition of guilt, since in practice the perpetrators of more serious crimes are sentenced with less effective prison sentences because they plead guilty and decide with the public prosecutor on the degree of the sentence.
The Constitutional Court abolished this law on 16 November 2017, acting on the initiative of the lawyer Hristijan Georgievski.
The analysis of the PACTIS Association was made as part of the project "Network 23+", funded by the European Union.