Written by Caitlyn Olson
Introduction
Shortly after North Macedonia gained its independence from the former Yugoslavia in 1991, the Balkan state sought to rapidly establish its international legitimacy by becoming a member of the United Nations and signing the Stabilization and Association Agreement with the European Union (EU).[1] In 2004, the Agreement entered into force, and North Macedonia became a candidate for accession into the EU.[2] However, for nearly 20 years, the state has repeatedly failed to meet EU member state requirements. One of the EU’s primary concerns was public official corruption. However, on Wednesday, September 13, 2023, the North Macedonian Parliament passed a law that would dramatically weaken the state prosecutor’s ability to combat public official corruption and would reduce sentences for officials charged with corruption. This piece of legislation, if signed by the President, will not only alter North Macedonia’s corruption law but will further impede the state’s decades long EU ascension goals.
Proposed Changes
The legislation passed by North Macedonia’s Parliament contains two modifications to the state’s criminal code including changes to: 1) Section 30, Article 353, and 2) Section 33, Article 394.
- Section 30 pertains to Crimes Against Official Duty, and Article 353 pertains to the misuse of official position and authorization. The article makes it illegal for public officials to use their position to acquire a personal benefit. Paragraph (5) applies a five-year minimum prison sentence for any public official who causes damage to the finances of the state through personal use of public funds.[3] Parliament’s proposed legislation would remove paragraph (5) in its entirety, decreasing punishment for crimes committed under Article 353 to a sentencing range of six months to five years, as opposed to the original five year minimum sentence.[4]
- Section 33 pertains to Crimes Against the Public Order and Article 394 pertains to terrorist organizations. The article makes it illegal to organize a criminal enterprise. Paragraph (2) applies a 4-year minimum and 10-year maximum sentence for being a member of, or assisting, a criminal enterprise.[5] The Parliament has proposed to reduce the prescribed maximum sentence for this crime from 10 years to 3 years. This chance would reduce the minimum sentence to below the original 4-year minimum.[6]
Consequences
If the legislation is signed by the President and the proposed changes are made to Article 353 and Article 394, several potential consequences will materialize.
- If Article 353, paragraph (5) is removed, active proceedings under this paragraph will halt and inactive proceedings will expire.[7] The Prosecution will be forced to drop charges against any official being charged under this paragraph, resulting in a number of high-ranking public officials being absolved of responsibility. This change will affect prosecutorial, investigative, and judicial bodies alike, by lessening accountability measures for public officials. Consequently, removing paragraph (5) will weaken public trust in the state’s legal and prosecutorial institutions. This change will also undermine the efforts of anti-corruption institutions, as it will make it easier for public officials to circumvent related criminal offenses.[8]
- If Article 394, paragraph (2) is changed, the prescribed sentences of those charged under this crime will be lowered, and future officials charged with this crime will likely see increasingly reduced sentences below the new three-year maximum. This change will affect prosecutorial and judicial sentencing mechanisms, as it drastically lowers prescribed sentences and thus reduces the prosecution’s accountability measures and weakens the law’s deterrent effects.[9]
Criminal Code Effects on EU Ascension
The Parliament reasons that the changes are necessary in order to align the Code with EU ascension requirements. However, it is unclear how discarding a law that seeks to curb official corruption (Article 353, paragraph (5)) and reducing a sentence that would potentially serve as a deterrent for official corruption (Article 394, paragraph (2)) aligns with EU recommendations for North Macedonia’s ascension. The EU’s North Macedonia 2022 Report emphasizes that the EU values “an effective (independent, high quality and efficient) judicial system” that effectively “fights against corruption.”[10] In its report, the EU commends North Macedonia’s progress in fighting against corruption and highlights the Special Prosecutor’s Office (SPO) initiation of public official corruption cases. The report specifically notes cases such as the Gruevski illegal wiretapping case, Titanic 1, Toplik, Tariff, Vodno Construction Land, and Talir 2 to show North Macedonia’s improving track record on combating corruption.[11] Should the proposed legislation pass, many of the cases highlighted by the EU Report as notable progress on confronting corruption will expire. This result directly contradicts EU commendation on North Macedonia’s anti-corruption policy and should be avoided in order to comply with EU recommendations.
Additionally, in its Report, the EU recommends that the state “continue action to fight corruption by increasing support to the bodies responsible for implementing the national strategy for the prevention of corruption and conflict of interests.”[12] However, by altering Article 353 and 394, the state is effectively stripping the SPO and judicial bodies, those responsible for the prevention of corruption, of vital enforcement power of anti-corruption in the state. The EU also recommends that the state “continue to increase the number of final convictions in high-level corruption.”[13] However, the passing of this legislation will effectively decrease high-level corruption convictions.
The European Commission’s 2023 North Macedonian Screening Report, Chapter 23 on Judiciary and Fundamental rights states: “Successfully preventing and fighting corruption is essential both to safeguard EU values and interests, as well as the effectiveness of public policies, and to maintain the rule of law and trust in those who govern and public institutions.”[14] Removing Article 353, paragraph (5) and altering Article 394’s maximum sentence will neither prevent nor fight corruption, and will actively cause a distrust in North Macedonian public institutions. Further, the Screening Report cites Article 325 TFEU which obliges EU member states “to protect the EU’s budget from fraud and any other illegal activities affecting the EU’s financial interests.” By removing Article 353, paragraph (5), a law that effectively safeguard’s the state’s public funds from corrupted officials, the North Macedonia parliament will call into question its ability to protect the EU budget, should it ever be admitted as an EU member state.
Conclusion
If the North Macedonian Parliament’s legislation passes with the President’s signature, it will not only weaken anti-corruption measures in North Macedonia but will also threaten North Macedonia’s EU ascension goals. As two key pieces of North Macedonia’s anti-corruption Criminal Law, the removal of Article 353, paragraph (5) and the change of Article 394, paragraph (2) will weaken prosecutorial and judicial ability to prosecute and adequately sentence corruption cases. Further, these changes will have an adverse effect on public trust in public institutions. As a result, the EU will likely view this piece of legislation as contradictory to their recommendations and EU values, thus decelerating North Macedonia’s EU ascension aspirations, if not bringing them to a halt altogether.
Works Cited
[1] Centre d’Information sur les Institutions Européennes, North Macedonia, Europe Direct Strasbourg, https://www.strasbourg-europe.eu/macedonia/.
[2] Id.
[3] Equipa Nizkor, Criminal Code of the Republic of Macedonia, Derechos, https://www.derechos.org/intlaw/doc/mkd1.html (1996).
[4] Vasko Magleshov & Sinisa Jakov Marusic, North Macedonia’s President Urged to Block Sudden Criminal Law Changes, Balkan Insight, https://balkaninsight.com/2023/09/07/north-macedonias-president-urged-to-block-sudden-criminal-law-changes/ (September 7, 2023).
[5] Equipa Nizkor, supra note 1.
[6] Magleshov & Marusic, supra note 2.
[7] Id.
[8] Id.
[9] Id.
[10] Commission Staff Working Document North Macedonia 2022 Report, European Commission, https://neighbourhood-enlargement.ec.europa.eu/system/files/2022-10/North%20Macedonia%20Report%202022.pdf (December 10, 2022).
[11] Id.
[12] Id.
[13] Id.
[14] Screening Report North Macedonia, European Commission, https://neighbourhood-enlargement.ec.europa.eu/system/files/2023-07/MK%20Cluster_1%20Draft%20screening%20report_external%20version.pdf (July 20, 2023).