Bearing in mind the primary function of the police, which is protection and respect of human rights and freedoms, and simultaneously prevention and tracing punishable crimes, as well as prosecution of perpetrators, there exists a “slippery terrain” and consequently frequent dilemmas among drug users on the limitations of police authorizations and possible overstepping of these (Article 3 of the Law on Police, “Official Gazette of the Republic of Macedonia, no. 114/2006, 6/2009, 145/2012, 41/2014, 33/2015, 31/2016, 106/2016, 120/2016, 21/2018 and 64/2018). Decision of the Constitutional Court of the Republic of Macedonia, C. no. 211/2006 from 05.11.2008, published in “Official Gazette of the Republic of Macedonia” no. 148/2008. Law on Internal Affairs “Official Gazette of the Republic of Macedonia” no. 92/2009).
In an attempt to protect the citizens, and simultaneously trace perpetrators of punishable crimes, the police is authorized to undertake measures sometimes involving a serious encroachment on human rights and freedoms. However, undertaking such measures is applied only in extraordinary circumstances and must be previously determined by law. Knowing the law can be useful to drug users during police contact, particularly when they are accused of drug-related offences, because in such cases oftentimes the punitive law isn’t properly applied by the prosecution authorities and the police.
The practices of prosecution authorities related to Article 215 (unauthorized production and trafficking of narcotic drugs, psychotropic substances and precursors) of the Criminal Code indicate to insufficient understanding of the quoted provision and its essence, i.e. the value/good this provision aims to protect. The provision incriminates several drug-related actions but with the purpose to sell/buy, in other words traffic drugs, and not possess drugs for personal use. Personal use of drugs is not a criminal offence. If the drugs are consumed in a public place, there is a possibility of determining a misdemeanour against the public peace and order and being issued a fine: “Whosoever uses narcotic drugs, psychotropic substances and precursors, shall be imposed a fine in the amount of 200 to 500 euros in MKD equal value.” (Law on Misdemeanours against the Public Peace and Order, “Official Gazette of RM, no. 66/2007 and 152/2015).
The practice of the prosecution authorities established on the grounds of the internal guidelines issued by the Public Prosecutor’s Office indicates that possession of up to 5 grams of marihuana, 2 grams of cocaine or 2 grams of heroin is considered as possession of drugs in a small quantity, and any quantity above these shall be considered as possession of drugs in a larger quantity, and in both cases, pursuant to past practice, the intention for trafficking is presumed. Starting with the presumption that there is intention, possession of drugs is quite incorrectly connected to the criminal offence regulated with Article 215 of the Criminal Code, which is punishable by law with three to ten years of imprisonment (for a smaller quantity – six months to three years and a suspended sentence). The individuals apprehended with drugs for personal use should base their defence on lacking intention for trafficking and instead planning to use the drugs personally, although, in practice here, considering police treatment, it is extremely difficult to prove lack of such intention.
In fact, the provision from Article 215 of the Criminal Code contains more incriminating actions, however all directly or indirectly related to releasing for trade:
(1) Whosoever without authorization organizes, produces, processes, sells or offers for sale, or who for the purpose of selling, buys, keeps or transports or mediates in the selling or buying, or in some other way, without authorization releases for trade narcotic drugs, psychotropic substances and precursors, shall be sentenced to imprisonment of three to ten years.
(2) If the crime referred to in paragraph 1 is committed with narcotic drugs, psychotropic substances and precursors of less amount, the offender shall be sentenced to imprisonment of six months to three years. The first police contact with a drug user discloses the incorrect approach of the entire system (prosecutors, court) to this provision, with simultaneous numerous abuses of competences.
I was sitting with a friend on a bench in the park on Sunday afternoon. I saw an unknown woman and a man approaching us from behind. The woman grabbed my arm and twisted it, forcing me to drop the “joint”, after which she started yelling at me and threatening me. She was wearing civilian clothes and did not provide any identification documents. If I hadn’t presumed that she was an officer immediately, I would have thought that she wanted to rob me and would have hit her in self-defence. – I.P., Skopje, December 2019.
A police officer wearing a uniform is obliged to provide their identification papers when practicing police authorizations. When a police officer practices police authorizations in civilian clothes, they are obliged to first provide identification documents (Article 33, ibid.). Consequently, the first action a police officer wearing civilian clothes must do is show identification documents. An exception from this obligation would be only when the real circumstances indicate that the intention of the operation could be threatened, however, even in such circumstances the police officer must introduce their presence with the word “POLICE”. Otherwise, as was described in the above testimony, there is the possibility of a misunderstanding the person approaching the drug user, and the latter could act in self-defence against a presumed criminal act, which could additionally complicate the case. The possibility of self-defence against a presumed attacker might lead to an accusation of attacking a police officer. However, the delusion of the person attacking is considered legally relevant and pardons them from criminal responsibility for attacking a police officer who had failed to provide any identification documents (the person was wrong to believe there were circumstances according to which, presuming these really existed, the attack was allowed).
Pursuant to the provisions of the Law on Police, the police is authorized to summon citizens with a written invitation for the purposes of gathering the necessary notifications for conducting police affairs (Article 43). However, the citizens are not obliged to offer any information, i.e. can refuse cooperation with the police. If the citizen who has answered the invitation refuses to give notifications, then this citizen cannot be summoned again for the same reasons. The police will trespass on its competences if it insists on summoning the person for the same matter several times despite the person’s refusal to come.
Summoning citizens who the police believes could offer information regarding a punitive act in practice is often conducted over the telephone without any explanation as to the reasons for the summoning. Most often, citizens in this situation are scared, feel pressured and decide to immediately go to the police station and give a statement. However, should the citizen decide to cooperate with the police it is necessary to know that after the conversation, the police has to issue an official document to serve in future procedures.
“An inspector called me on the telephone at 6:00 p.m. He was very polite, introduced himself, informed me how he found my number and told me to be at the police station for a conversation in one hour. He didn’t say why. I went there, but I couldn’t even imagine why they had summoned me. I didn’t know whether I needed a lawyer, though I even didn’t have time to seek counsel.” A.M., October, 2019, Skopje. Pursuant to the Law on Police, a police officer is authorized to summon a person orally, whereupon the officer is obliged to inform the reasons for the summoning, and with the person’s consent, the officer can transport him/her to the official premises (Article 45). In our case, the officer never informed the person of the reasons for the summoning and thus violated the obligations of a police officer but also violated the citizen’s right to be informed timely on the reasons for the summoning. Apprehension of citizens to the police or another competent body Apprehension is conducted on the basis of a written order issued by a competent court or a warrant pursuant to law for the purpose of escorting a person to the police, another competent state body or the place determined with the order. The police officer has an obligation to deliver a written order on the basis of which apprehension is conducted to the person being detained before detention. The only exception to this obligation is when the police officers believe the person might resist apprehension.
Apprehension between the hours of 10:00 p.m. and 6:00 a.m. is conducted only in extraordinary circumstances, i.e. when deemed necessary for actions that cannot be postponed and the person can be apprehended only between those hours. However, there is a possibility for a police officer to apprehend a person who has been caught while committing a crime without an order issued by a competent court, in cases when the person’s identity cannot be determined, or the person does not have permanent residence or when a trip abroad might lead to avoiding undertaking responsibility for the crime committed, or in circumstances justifying the assessment that the perpetrator could continue committing the crime or repeat the crime. If the perpetrator is caught while committing the crime (including use of narcotic drugs, psychotropic substances and precursors) during hours when the courts are closed or if there are circumstances indicating to the possibility of an escape or that the perpetrator would continue committing the crime or that the crime would be repeated, the police officer is allowed to apprehend the perpetrator. The perpetrator would be apprehended until escorted to the competent body, but not longer than 12 hours. By apprehending the perpetrator for longer than 12 hours, the police is violating its authorizations determined by law.
Detention of citizens If the police has a reasonable doubt that a drug user has committed a criminal offence prosecuted ex officio, this person then can be detained. We should stress that possession of drugs for personal use is treated by the police (and the prosecutor’s office and the courts) as a criminal offence. Therefore, all measures undertaken by the prosecution authorities regarding an act which doesn’t have the characteristics of a criminal offence but is incorrectly considered as such, are violation of human rights. A police officer can detain a person deprived of freedom caught while committing an offence, as well as a person deprived of freedom who is disturbing or endangering the public peace and order if the public peace and order cannot be restored or the danger cannot be removed in another manner. In such cases, detention is no longer than 12 hours. In addition, a police officer can detain a person deprived of freedom who is under the influence of alcohol or other psychotropic substances, and in such cases detention is no longer than 12 hours.
A police officer can escort the person caught while conducting a criminal offence to the public prosecutor or detain the person until the prosecutor arrives, in cases when this person can offer important information on the criminal procedure and it is possible that the interrogation cannot be conducted later or would mean a significant postponement or other difficulties, in which case detention must not be longer than six hours. What happens when the police oversteps its competences? If the person who has been the recipient of police authorization believes that the police officer violated their freedoms and rights, this person has the right to submit a petition to the police. The police is obliged to investigate the allegations in the petition and notify the petitioner in a written form on the actions taken no later than 30 days. A body competent to act on petitions is the Unit for Internal Control, Criminal Investigation and Professional Standards within the Ministry of Interior, a control mechanism for monitoring police work. The petition can be submitted online, on the web site mvr.gov.mk.
In addition, the Ombudsman, as a protector of human rights and freedoms, as well as civil society organizations (Helsinki Committee for Human Rights, HOPS, Coalition MARGINS and others) working in this field can offer legal aid in cases of human rights violations committed by police officers.
Author: Rosana Bogatinova Rosana Bogatinova received her Bachelor and Master’s degree at the Faculty of Law Iustianus Primus in Skopje in the field of criminal law and criminology. Since 2015 she has been working actively on marginalized communities’ human rights promotion.