Acting on the request for an extraordinary review of the first and second instance verdict filed by the counsels of the defendants K.P., Z.P. and M.Z., each sentenced to eight years’ imprisonment by the Basic Court in Skopje – Specialized Department for Investigation and Prosecution of Organized Crime and Corruption Offences for the criminal offence of Smuggling of migrants under Art 418b paragraph 4 in relation to paragraph 2 of the Criminal Code (KOK no. 60/14), and the ruling of the Appellate Court in Skopje which reversed the first-instance ruling in as much as it pronounced the sentences of four years’ imprisonment (KOKH no. 6/15), the Supreme Court of Macedonia refused the motion as unfounded.
When deciding on the penalty for the convicted K.P., Z.P., and M.Z., the Appellate Court obviously applied the provisions on penalty mitigation contained in the Criminal Code (Art 40 and 41) and reduced the sentences to the lowest possible limit (for a criminal offence punishable by at least eight years’ imprisonment, the sentence can be reduced to four years’ imprisonment – Art. 41 paragraph 1 item 2 of the RM CC).
The request submitted by the counsel of the convicted M.Z. alleged that there had been substantive violations of criminal procedure given that the final ruling is incomprehensible, that it is contradictory in itself and that the court did not give reasons for the crucial facts. It also stated that migrants had no personal documents, so that the convicts could not have known that they were transporting migrants (and the transportation of minors was an aggravating circumstance i.e. the ground for incriminating the offenders as per Art 418b para 4 publishable by a minimum of eight years of imprisonment).
The counsel of the convicted K.P. and Z.P. also pointed out that the ruling was based on assumptions rather than proven facts. This particularly applied to the manner in which the court had established the identity of migrants, especially minors, for whom the convicted K.P. stated that they looked like adults. As regards the convicted Z.P., the counsel emphasized that the court had not established the existence of evidence of his involvement in criminal activity, as there was no mention of a third person in the statements of interviewed witnesses nor had a phone or any other means of communication been taken away from him.
Evaluating the claims in the submitted requests, the Supreme Court of Macedonia concluded that they were unfounded and without any influence on the judicial decision. Another reason was the fact that violation of the criminal procedure under Art 415 paragraph 1 item 11 of the Criminal Procedure Code is not envisaged as the basis for filing a request for an extraordinary review of the final verdict. In addition to this, the procedure had been conducted within the legal competence of the court, all the evidence presented and evaluated in a lawful way, both before the public prosecutor (hearing of seven migrants) and the Basic Court in Skopje (hearing the police officers).
From the testimony of the migrants, the court concluded that they had illegally crossed the Macedonian-Greek border on foot and that then two persons met them and transported them in two vehicles. Although no personal documents were found for the migrants, the court concluded - based on the testimony of witnesses T.S. and Z.K. given before the Public Prosecutor’s Office for Organized Crime and Corruption on 4 March 2014, in the presence of the representative of the guardianship authority and R.A., the mother of the minor T.S. - that T.S. and Z.K. were minors of 15 and 16 years of age. This claim is supported by the data included in the decision on temporary detention of foreigners in the Reception Center of the Ministry of the Interior no. 25-584/2 of 13/02/2014 and no. 25-587/2 of 13/02/2014, especially in the photo documentation from which the court obtained a clear idea of the physical appearance of the minors.
Police officers Z.M., F.I., I.M. and M.B. had given detailed and concurring statements from which the court established the time, place and manner of the event, as well as the activities of the persons involved. Following operative information on the movement of three vehicles, one of which (BMW 530 with licence plates issued in the town of Strumica) failed to stop, continuing instead further at a high speed, the police managed to intercept the other two vehicles, driven by K.P. and M.Z., wherein they found the underage migrants. The data obtained on the ‘runaway’ vehicle along with those obtained after monitoring the activities of K.P., Z.P. and M.Z. for several days, allowed for identifying and tracking down Z.P., the runaway driver of the third vehicle involved in the co-perpetration of criminal activity. The Supreme Court found the allegation that there was no evidence to prove that the convicted Z.P. had committed the criminal offence with which he was charged was unfounded.
Acting on the request for an extraordinary review of the first and second instance verdict filed by the counsels of the defendants K.P., Z.P. and M.Z., each sentenced to eight years’ imprisonment by the Basic Court in Skopje – Specialized Department for Investigation and Prosecution of Organized Crime and Corruption Offences for the criminal offence of Smuggling of migrants under Art 418b paragraph 4 in relation to paragraph 2 of the Criminal Code (KOK no. 60/14), and the ruling of the Appellate Court in Skopje which reversed the first-instance ruling in as much as it pronounced the sentences of four years’ imprisonment (KOKH no. 6/15), the Supreme Court of Macedonia refused the motion as unfounded.
When deciding on the penalty for the convicted K.P., Z.P., and M.Z., the Appellate Court obviously applied the provisions on penalty mitigation contained in the Criminal Code (Art 40 and 41) and reduced the sentences to the lowest possible limit (for a criminal offence punishable by at least eight years’ imprisonment, the sentence can be reduced to four years’ imprisonment – Art. 41 paragraph 1 item 2 of the RM CC).
The request submitted by the counsel of the convicted M.Z. alleged that there had been substantive violations of criminal procedure given that the final ruling is incomprehensible, that it is contradictory in itself and that the court did not give reasons for the crucial facts. It also stated that migrants had no personal documents, so that the convicts could not have known that they were transporting migrants (and the transportation of minors was an aggravating circumstance i.e. the ground for incriminating the offenders as per Art 418b para 4 publishable by a minimum of eight years of imprisonment).
The counsel of the convicted K.P. and Z.P. also pointed out that the ruling was based on assumptions rather than proven facts. This particularly applied to the manner in which the court had established the identity of migrants, especially minors, for whom the convicted K.P. stated that they looked like adults. As regards the convicted Z.P., the counsel emphasized that the court had not established the existence of evidence of his involvement in criminal activity, as there was no mention of a third person in the statements of interviewed witnesses nor had a phone or any other means of communication been taken away from him.
Evaluating the claims in the submitted requests, the Supreme Court of Macedonia concluded that they were unfounded and without any influence on the judicial decision. Another reason was the fact that violation of the criminal procedure under Art 415 paragraph 1 item 11 of the Criminal Procedure Code is not envisaged as the basis for filing a request for an extraordinary review of the final verdict. In addition to this, the procedure had been conducted within the legal competence of the court, all the evidence presented and evaluated in a lawful way, both before the public prosecutor (hearing of seven migrants) and the Basic Court in Skopje (hearing the police officers).
From the testimony of the migrants, the court concluded that they had illegally crossed the Macedonian-Greek border on foot and that then two persons met them and transported them in two vehicles. Although no personal documents were found for the migrants, the court concluded - based on the testimony of witnesses T.S. and Z.K. given before the Public Prosecutor’s Office for Organized Crime and Corruption on 4 March 2014, in the presence of the representative of the guardianship authority and R.A., the mother of the minor T.S. - that T.S. and Z.K. were minors of 15 and 16 years of age. This claim is supported by the data included in the decision on temporary detention of foreigners in the Reception Center of the Ministry of the Interior no. 25-584/2 of 13/02/2014 and no. 25-587/2 of 13/02/2014, especially in the photo documentation from which the court obtained a clear idea of the physical appearance of the minors.
Police officers Z.M., F.I., I.M. and M.B. had given detailed and concurring statements from which the court established the time, place and manner of the event, as well as the activities of the persons involved. Following operative information on the movement of three vehicles, one of which (BMW 530 with licence plates issued in the town of Strumica) failed to stop, continuing instead further at a high speed, the police managed to intercept the other two vehicles, driven by K.P. and M.Z., wherein they found the underage migrants. The data obtained on the ‘runaway’ vehicle along with those obtained after monitoring the activities of K.P., Z.P. and M.Z. for several days, allowed for identifying and tracking down Z.P., the runaway driver of the third vehicle involved in the co-perpetration of criminal activity. The Supreme Court found the allegation that there was no evidence to prove that the convicted Z.P. had committed the criminal offence with which he was charged was unfounded.