Calculation of the legal deadline for appeal in a situation when the defendant defending from liberty has received the appeal before his defendant

Introduction

This legal opinion analyzes Conviction KŽ 924/21 of 08.06.2022 of the Court of Appeal of Skopje in the part by which the Appeal of the defendant, stated through his defense attorney, submitted on 16.07.2021, is rejected as untimely. The Conviction of the Court of Appeal is analyzed from the perspective of considering the legal deadlines for submitting an Appeal against a Conviction when the defendant received it before his defense attorney.

Facts of the case

By Conviction 6 Kno. 707/19 of 15.12.2020 of the Basic Criminal Court of Skopje, the defendant pleads guilty to the crime of theft under Art. 235 paragraph 1 of the Criminal Code and the defendant is sentenced to an alternative measure of suspended sentence, which determines his prison sentence of 6 months and at the same time determines that the prison sentence determined in this way will not be carried out if the defendant does not, within two years considered from the finality of the conviction, commit a new crime. In the legal instruction of the first-instance conviction, it is stated that an appeal against this conviction is allowed within 15 days from the receipt of it through this court to the Court of Appeal of Skopje. The unsatisfied defendant, through his defense attorney, filed two appeals against the Conviction, from which one on 21.04.2021 and one on 16.07.2021. By Conviction KŽ 924/21 of 08.06.2022 of the Court of Appeal of Skopje, the appeal of the defendant through his defense attorney is rejected as unfounded and the first-instance conviction is confirmed, and the appeal submitted on 16.07.2021 through his defense attorney is dismissed as untimely with a Decision. The subject of this analysis is the part of the rejection of the appeal submitted on 16.07.2021.
In the explanation of the Conviction, the Court of Appeal emphasized that according to the provisions of Article 130 paragraph 3 of the Law on Criminal Procedure, if the defendant has a defense attorney, the indictment, the indictment proposal, the private lawsuit and all the decisions from the delivery of which the deadline for appeal runs, as well as the appeal of the opposite party which is submitted for the purpose of an answer, they will be submitted to the defense attorney and the defendant according to the Article 127 of the same Law. In that case, the deadline for declaring a legal remedy runs from the day of delivery to the defendant. If the defendant has been sentenced to detention or is serving a prison sentence, the deadline begins to run from the day of delivery to the defense attorney.

Furthermore, the Court of Appeal of Skopje points out that in this particular case, as can be seen from the files of the case, the defendant, who defended himself from freedom, duly received the first-instance conviction on 14.04.2021, as can be seen from the return returned to the court, which means that the deadline for filing an appeal has begun to run from 15.04.2021, and the defendant's defense attorney filed an appeal against the conviction on 16.07.2021, i.e. after the deadline for filing an appeal, which is why it is untimely. That is, the appeal filed by the defense attorney is outside the legal deadline.
LAW
When passing Conviction KŽ 924/21 of 08.06.2022 in the part in which the Appeal of the defendant stated through his defense attorney submitted on 16.07.2021 is rejected as untimely, the Court of Appeal applied the provisions of Article 130 paragraph 3 and 462 of the Law on Criminal Procedure.
Pursuant to Article 130 paragraph 3 of the Law on Criminal Procedure, which refers to the delivery of the defendant: "If the defendant has a defense attorney, the indictment, the indictment proposal, the private lawsuit and all decisions from the submission of which the deadline for appeal runs, as well as the appeal of the opposing party which is submitted for the purpose of an answer, they will be submitted to both the defense attorney and the defendant, according to Article 127 of this law. In that case, the deadline for declaring a legal remedy, that is, answering the appeal, runs from the day of delivery to the defendant. If the defendant has been sentenced to detention or is serving a prison sentence, the deadline runs from the day of delivery to the defense attorney.

Pursuant to Article 432 of the Law on Criminal Procedure: "The appeal will be rejected with a decision as untimely if it is determined that it was not submitted within the legal deadline."

ANALYSIS OF THE CONVICTION

With the Conviction KŽ 924/21 of 08.06.2022, the Court of Appeal of Skopje establishes the practice that if the defendant defends himself from freedom, that the legal deadline for filing an appeal against the first-instance conviction, which is delivered to both the defense attorney and the defendant, the legal deadline for filing an appeal runs from the day of receipt of the conviction by the prosecutor. In other words, if the defendant receives the first-instance conviction before the defense attorney, as in this case, the defense attorney on behalf of the defendant has the right to file an appeal from the day of receipt of the conviction by the defendant, regardless of when the first-instance conviction was actually received by the defense attorney.

Acting in this way, the Court of Appeal enters into an extensive formalism that negatively affects the right of the defendant to reach the court, the right to an effective legal remedy, and in general the legal certainty is threatened.

First of all, the Appellate Court neglected the fact that the legal instruction of the first-instance conviction states that an appeal against this conviction is allowed within 15 days from its receipt. Nowhere in the legal instruction is it stated that the deadline is 15 days from the receipt by the defendant, which means that the first-instance conviction itself gives the defense attorney the right to file an appeal from the day of receipt without other time limits. It follows that with the first-instance conviction as a single legal act, the defense attorney acquires the right to file an appeal within the legal deadline after receiving it, but the second-instance court then denies him that right when deciding, referring to legal provisions, which creates enormous confusion and uncertainty.

On the other hand, the Article 430 paragraph 1 of the Law on Criminal Procedure, which is a lex specialis provision regarding the right to appeal and the deadline for filing, reads: "Against the conviction passed in the first instance, the authorized persons can file an appeal within 15 days from the day of the delivery of the transcript of the conviction". While Article 48 paragraph of the same Law reads: "The defense attorney is authorized to take all the actions that the defendant can take in favor of the defendant." Unfortunately, the indicated legal provisions were not applied in the conviction of the Court of Appeal of Skopje, which completely bypassed them.

Pursuant to the above, with the passing of Conviction KŽ 924/21 of 08.06.2022 of the Court of Appeal of Skopje in the part by which the Appeal of the defendant stated through his defense attorney submitted on 16.07.2021 is rejected as untimely, the legal certainty of the defendant defending himself from freedom and receiving the first-instance conviction before his defense attorney, is seriously called into question. Because regardless of when his defense attorney received the Conviction, the deadline for appeal is calculated from the day the defendant receives the Conviction. On the other hand, such application of the Law on Criminal Procedure places a disproportionate burden on the defendant, and especially on his relationship and communication with his defense attorney. In such a way, the right to defense is violated because the role of the defense attorney in the criminal proceedings and his rights and obligations are not given adequate importance.