Criminal Code adds offence for public procurement abuse with penalties up to 15 years

The draft of North Macedonia's new Criminal Code introduces a separate offence titled "Abuse in public procurement or public–private partnership agreements," positioned directly after the articles on abuse of official position and abuse of authorization.

Under the previous law in force before the controversial 2023 amendments, the provision on procurement-related abuse carried a maximum sentence of 20 years' imprisonment. The new text reduces the top penalty to up to 15 years when a significant property benefit or loss has been obtained or caused. As with the January amendments earlier this year, the new Code enumerates specific procurement procedures that will qualify as abuse.

Proposed wording of Article 461

"The official or responsible person who, contrary to law, concludes a public–private partnership agreement or a concession agreement, or in the public procurement procedure procures goods, services or works without conducting a public procurement procedure when it was obliged to do so, makes changes to the contract or framework agreement during their validity contrary to law or beyond the legally established value threshold, contrary to legal conditions makes changes to the contract or framework agreement during their validity, determines the conditions and other elements of the public procurement contrary to the legal provisions for determining technical specifications with the intent to favour some participant in the procurement procedure and thereby to obtain some benefit for himself or another or cause damage to another," the draft Article 461 of the new Criminal Code proposes.

The European Commission observed in its latest report that, while the January changes reintroduced a provision on procurement abuse, the new wording has a much narrower scope than the pre-2023 law — covering only two grounds — which the Commission judged too limited to capture other serious procedural manipulations during tendering.

Darko Kostadinovski, president of the Constitutional Court, said he has not yet seen the new Criminal Code but expressed hope that the errors made a few years ago will be corrected. He warned: "How can impunity reign in our country; there must not be untouchables."

The new Code also creates a separate offence titled "Endangering the stability of the banking system." The new Criminal Code and the new Criminal Procedure Code were published today on ENER, where citizens and stakeholders can submit remarks and comments, and the texts are simultaneously under review by the European Commission, which is expected to provide an opinion as part of the Reform Agenda.

Photo: press material from the event