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Republic of Macedonia

CRIMINAL CODE

Enacted 23 July 1996

Entry into force: 1 November 1996

(with implemented amendments from March 2004)

(relevant provisions only)

Legislationline : see in particular article 418a.

7. CONFISCATION OF PROPERTY AND MATERIAL PROFITS AND CONFISCATION OF OBJECTS

1. Confiscation of property and material profits

Grounds for confiscation property gain

Article 97

(1) No one may retain the direct or indirect property gain gained through a crime.

(2) The benefit from item 1 shall be confiscated with the court decision with which the execution of the crime was determined, under the conditions foreseen by this Code.

(3) The decision to confiscate shall be passed by the court in a procedure specified by law also in the case when, due to factual or legal reasons, it is impossible to conduct the criminal procedure with respect to the perpetrator of the crime.

(4) In accordance with the conditions specified in a ratified international agreement, the confiscated property may be returned to another country.

Manner of confiscating

Article 98

(1) The material profit acquired to a criminal activity comprising money, movable and immovable objects of value, as well as any other assets, property or equity, material or immaterial rights shall be confiscated from the perpetrator, and if this confiscation is not possible, other items shall be confiscated from the perpetrator which correspond to the acquired profits.

(2) The material profits shall also be confiscated from third parties to whom it has been transferred without an appropriate compensation, if they did not know, and could know and were obligated to know that it had been acquired through a criminal activity.

(3) The objects which have been declared as cultural heritage and natural rarities, as well as those to which the damaged party is personally attached, shall be confiscated from third persons, regardless of the fact that they did not know, could not have known and were not obligated to know that these objects have acquired through a criminal activity and regardless of whether these objects have been transferred to the third parties with or without an appropriate compensation.

(4) The goods that are confiscated are returned to the damaged person, and if there is no damaged person, they become the property of the state.

(5) If during the criminal proceeding, the damaged person is adjudged a property and legal claim, the court shall pronounce a taking away of property gain, if this exceeds the amount of the claim.

Protection of the damaged person

Article 99

(1) The damaged person who was referred to a litigation in the criminal procedure in regard to his property and legal claim, may demand that this be settled from the confiscated value, if he starts a litigation within six months after the day the decision with which he was referred to a litigation comes into effect, and if within three months from the day of coming into effect of the decision with which his claim was determined, he claims the settling of the taken away value.

(2) The damaged person who has not reported a legal and property claim in the criminal procedure, may demand the settling from the confiscated value if he has started a litigation for determining his claim within a time frame of three months from the day he finds out about the sentence with which the property gain is confiscated, and at the latest within two years after the decision for confiscating the property gain comes into effect, and if within three months from the day the decision with which his claim was determined comes into effect, he requests the settling of the taken away value.

Confiscating from a legal entity

Article 100

If a legal entity gains property gain from the crime of the offender, this gain shall be confiscated from it.

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Penal records

Article 106

(1)     The penal records are maintained by the court of first instance, competent according to the birthplace.

(2)     For persons born abroad, or those whose birthplace is unknown as well as legal entities, the penal records are maintained in the court which is determined by the law.

(3)     The data from the penal records may be given to the court and to the public prosecutor's office, in connection with a criminal procedure which is carried out against the earlier condemned person, and to the responsible agencies that participate in the procedure for granting an amnesty or a pardon.

(4)     Data from the penal records may also be given upon justified request to state agencies, legal entities and physical persons, if certain legal consequences from the sentence or sanctions involving bans are still in effect, or if there is a justified interest for this, based on the law.

(5)     No one has the right to demand from the citizens to submit proof of whether they have or they have not been sentenced.

(6)     Upon their request, the citizens may be given data about whether they have or have not been sentenced, only if they need this data because of realizing their rights abroad.

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15. CRIMES AGAINST THE FREEDOMS AND RIGHTS OF HUMANS AND CITIZENS

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Coercion

Article 139

(1) A person, who by force or with a serious threat forces another to commit, not to commit, or to endure something, shall be punished with a fine, or with imprisonment of up to one year.

(2) If the crime stipulated in paragraph 1 is committed while performing family violence, the perpetrator shall be sentenced to imprisonment from six months to three years.

(3) If the crime from item 1 is committed by an official person while performing his duty, he shall be punished with imprisonment of six months to five years.

(4) Prosecution for the crime stipulated in paragraph (1) is undertaken upon a private suit.

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Kidnapping

Article 141

(1) A person that commits a kidnapping of another, with the intention to force him or someone else to commit, not to commit or to endure something, shall be punished with imprisonment of one to ten years.

(2) A person that commits the crime from item 1 against a juvenile, or the person who in order to achieve the aim of the kidnapping from item 1 threatens to kill the kidnapped person, or to inflict grave body injury, shall be punished with imprisonment of at least four years.

(3) The offender of the crime from items 1 and 2, who of own volition frees the kidnapped person before the demand is realized because of which he committed the kidnapping, may be acquitted from punishment.

Torture and other cruel, inhuman or humiliating activities and punishments

Article 142

(1) A person who while performing his duty, as well as a person instructed by an official person or based on an agreement of the official person, shall apply force, threat or some other illicit instrument or an illicit manner with the intention to force a confession or some other statement from a defendant, a witness, an expert witness or from some other person, or will inflict on another person severe bodily or mental suffering in order to punish the other person for a crime which the other person has committed or for which the other person or some other person is under suspicion, or to intimidate him/her or to force him/her to forfeit some of his\her rights, or shall cause such suffering due to any kind of discrimination,  shall be punished with imprisonment of one to five years.

(2) If, due to the activities stipulated in paragraph 1, the damaged party has come to severe bodily harm or other especially severe consequences, the perpetrator shall be punished with imprisonment of one to ten years.

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Violation of the right to submit a legal means

Article 153

(1) A person who prevents another in using his right to defense, to submit a complaint or some other legal means, by force or by serious threat, shall be punished with a fine, or with imprisonment of up to one year.

(2) If the crime from item 1 is committed by an official person by misusing his official position or authorization, he shall be punished with imprisonment of three months to three years.

(3) The prosecution of the crime from item 1 is undertaken upon private suit.

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19. CRIMES AGAINST SEXUAL FREEDOM AND SEXUAL MORALITY

Rape

Article 186

(1) A person who by the use of force or threat to directly attack upon the life or body of another or upon the life or body of someone close to that person, forces him to intercourse, shall be punished with imprisonment of one to ten years.

(2) If because of the crime from item 1 a severe body injury, death or other severe consequences were caused, or the crime was perpetrated by several persons or in an especially cruel and degrading manner, the offender shall be punished with imprisonment of at least four years.

(3) A person that forces another to intercourse with a serious threat that he shall disclose something about this person or about another close to this person, that would harm his honor and reputation, or which would cause some other big evil, shall be punished with imprisonment of six months to five years.

(4) The person who in the cases from items 1, 2 and 3 commits only some other sexual act, shall be punished for the crime from item 1 - with imprisonment of six months to five years, for the crime from item 2 – with imprisonment of one to ten years, and for the crime from item 3 – with imprisonment of three months to three years.

Statutory rape of a helpless person

Article 187

(1) A person, who commits statutory rape over another, misusing the mental illness, mental disorder, helplessness, retarded mental development, or some other state because of which this person is unable to resist, shall be punished with imprisonment of three months to five years.

(2) If because of the crime from item 1 a severe body injury, death or some other severe consequence was caused, or if the crime was perpetrated by several persons in an especially cruel or degrading manner, the offender shall be punished with imprisonment of at least three year.

(3) The person who in the cases from items 1 and 2 commits only some other sexual act, shall be punished for the crime from item 1 - with imprisonment of three months to three years, and for the crime from item 2 – with imprisonment of one to ten years.

Sexual attack upon a child

Article 188

(1) A person who commits statutory rape or some other sexual act upon a child shall be punished with imprisonment of six months to five years.

(2) For the rape of a child or for some other sexual act upon a child, by misusing his mental illness, mental disorder, helplessness, retarded mental development or some other state, because of which the child is incapable of resistance, the offender shall be punished with imprisonment of at least four years.

(3) If the crime from items 1 and 2 is committed by a teacher, educator, adoptive parent, guardian, stepfather, doctor or some other person, by misusing his position or while performing family violence, he shall be punished with imprisonment of at least five years.

(4) If because of the crimes from items 1 and 2 a severe body injury, death or some other severe consequences were caused, or the crime was perpetrated by several persons, or in an especially cruel and degrading manner, the offender shall be punished with imprisonment of at least five years.

Statutory rape with misuse of position

Article 189

(1) A person who by misusing his position induces another, who is subordinated or dependent or with the same objective abuses, intimidates or acts in a way that humiliated the human dignity and the human person in relation to him, to intercourse or to some other sexual, act shall be punished with imprisonment of three months to three years.

(2) A teacher, educator, adoptive parent, guardian, stepfather, doctor or some other person who by misusing his position commits statutory rape or some other sexual act upon a juvenile older than fourteen years of age, who was entrusted to him for study, education, custody or care, shall be punished with imprisonment of one to five years.

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Mediation in conducting prostitution

Article 191

(1) A person who recruits, instigates, stimulates or entices another to prostitution, or a person who in any kind of way participates in handing over another to someone for performing prostitution, shall be punished with imprisonment of six months to five years.

(2) A person who because of profit enables another to use sexual services shall be punished with a fine, or with imprisonment of up to one year.

(3) A person who because of profit, by using force or by serious threat to use force, forces or by deceit induces another to give sexual services, shall be punished with imprisonment of six months to five years.

(4) If the crime from items 1, 2 and 3 is committed with a juvenile, the offender shall be punished with imprisonment of six months to five years.

(5) If the crime from items 1, 2 and 3 is committed with a child, the offender shall be punished with imprisonment of one to five years.

(6) A person who organizes the crimes from items 1 to 5 or the activities that this person will commit while performing family violence shall be punished with imprisonment of one to ten years.

Procuring and enabling sexual acts

Article 192

(1) A person who procures a juvenile to sexual acts shall be punished with imprisonment of three months to five years.

(2) A person who enables the performing of sexual acts with a juvenile shall be punished with imprisonment of three months to three years.

Showing pornographic materials to a child

Article 193

(1) A person who sells, shows or by public presentation in some other way makes available pictures, audio-visual or other objects with a pornographic content to a child, or shows him a pornographic performance, shall be punished with a fine, or with imprisonment of up to one year.

(2) If the crime was performed through the public media, the offender shall be punished with a fine, or with imprisonment of up to three years.

(3) The punishment from item 2 shall be applied to a person who abuses a juvenile in the production of audio-visual pictures or other objects with a pornographic content or for pornographic presentations.

(4) The objects from items 1, 2 and 3 shall be confiscated.

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34. CRIMES AGAINST HUMANITY AND INTERNATIONAL LAW

Trafficking in Human Beings

Article 418-a

(1) The one that by force, serious threats, delusions or other forms of coercion, by kidnapping, by deceit and abuse of his/her own position and abusing the pregnancy or the position of weakness of somebody else, or the physical or mental disability of another, or, by giving or receiving money or other benefits in order to obtain agreement of the person that has control over another person, recruits, transports, transfers, buys and sells persons, harbors or accepts persons for the purpose of exploitation through prostitution or other forms of sexual exploitation, pornography, forced labor or servitude, slavery, forced marriages, forced fertilization, unlawful adoption, or similar relationship it or illicit transplantation of human organs, shall be punished with imprisonment of at least four years”.

(2) The one that buys, sells, keeps and takes children or minors in purpose of exploitation shall be punished with imprisonment of at least eight years.

(3) The one that takes away or destroys the ID, passport or other identification document in order to commit the crime from paragraphs (1) and (2) of this article, shall be punished with imprisonment of at least four years.

(4) The one who uses or makes it available for another to use sexual services from persons, with the knowledge that they are victims of human trafficking shall be punished with imprisonment from six months to five years.

(5) If the crime of paragraph (4) is performed with a child or minor, the offender shall be punished with imprisonment of at least eight years.

(6) If the action in the paragraph (1) is committed by a legal entity, this shall be punished with a fine.

(7) The items and vehicles used for committing the crime shall be confiscated.

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Organizing a group and abetment in performing crimes of trafficking in humans and smuggling of migrants

Article 418-c

(1) The one who organizes a group, gang or other association for performing the crimes from Articles 418-a and 418-b shall be punished with imprisonment of at least eight years.

(2) The one who becomes member of the group, gang or other association from paragraph (1), or in some other way helps the group, the gang or the association, shall be punished with imprisonment of at least one year.

(3) The member of the group from paragraph (1), who informs against the group before it commits the crime shall be released from punishment.

(4) The one who invokes, abets or supports the perpetration of the crimes from Articles 418-a and 418-b shall be punished with imprisonment of one to ten years.

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