II EXTRADITION OF DEFENDANDANTS OR CONVICTS
1. EXTRADITION OF DEFENDANTS OR CONVICTS TO A FOREIGN STATE
1) Basic provisions
Subject of extradition
Article 13
Extradition of defendants or convicts to a foreign state shall be allowed:
1) by reason of criminal proceedings for a criminal offence that is punishable by imprisonment for a maximum of more than one year under the law of the Republic of Serbia and the law of the requesting state;
2) by reason of the execution of a punishment of minimum duration of four months imposed by a court of the requesting party for the criminal offence under sub-paragraph 1 of this paragraph.
Should the letter rogatory relate to several criminal offences, of which some do not meet the conditions set forth paragraph 1 of this Article, extradition may be granted for these criminal offences as well.
Rule of speciality
Article 14
Should extradition be granted the extradited person may not be prosecuted, subjected to the execution of a criminal sanction or extradited to a third party for the criminal offence committed before the extradition took place, the offence not being the subject of extradition.
Terms under paragraph 1 of this Article shall not apply:
1) the extradited person has explicitly waived the guarantee under paragraph 1 of this Article;
2) if the extradited person did not leave the territory of the state which he/she was extradited to, even though he/she had an opportunity to do so, within 45 days as of the day he/she was paroled or the day when a criminal sanction was fully served or if he/she returned to the territory concerned.
Supporting documents
Article 15
The following supporting documents shall accompany the letter rogatory:
1) means to establish proper identity of an accused or a convicted person (an accurate description, a photograph, finger prints, etc.);
2) a certificate or other data on the citizenship of an accused or a convicted person;
3) a decision on the instigation of criminal proceedings, the indictment, the decision on detention or the judgement;
4) evidence presented on the existence of the reasonable doubt.
Preconditions to extradition
Article 16
In addition to the preconditions provided for by virtue of Article 7 of this law, the preconditions to extradition shall include:
1) the person, in respect of whom extradition is requested, is not a national of the Republic of Serbia;
2) the offence, in respect of which extradition is requested, was not committed in the territory of the Republic of Serbia, and not committed against it or against its citizen;
3) the same person is not prosecuted in the Republic of Serbia for the offence in respect of which extradition is requested;
4) in accordance with the national legislation conditions exist for reopening the criminal case for the criminal offence in respect of which extradition is requested;
5) proper identity of the person in respect of whom extradition is requested is established;
6) there is sufficient evidence to support the reasonable doubt, that is, an enforceable court decision is in place demonstrating that the person in respect of whom extradition is requested has committed the offence in respect of which extradition is requested;
7) the requesting party guarantees that in case of conviction in absentia the proceeding will be repeated in presence of the extradited person;
8) the requesting party guarantees that the capital offence provided for the criminal offence in respect of which extradition is requested will not be imposed, that is, executed.
Concurrence of letters rogatory
Article 17
If several requesting states have concurrently submitted letters rogatory relating to the same or different criminal offences, the decision on extradition shall be passed taking into account the circumstances of the concrete case, in particular the territory in which the criminal offence was committed, gravity of the criminal offence, order of submission of requests, citizenship of the extraditable person and the possibility of extradition to a third party.
The decision under paragraph 1 of this Article shall be explained.
2) Extradition procedure
a?) Proceeding before the Judge
Procedure including the letter rogatory
Article 18
The Ministry of Justice shall transmit the letter rogatory to the court in the territory of which the person sought for extradition resides or finds himself/herself in.
Should the place concerned be unknown, the police authority shall identify where the person sought for extradition is.
If the letter rogatory was submitted in compliance with Articles 5 and 15 of this law, the judge shall issue an order for bringing the person requested for extradition. The order shall be executed by the police authority who shall bring the person concerned before the judge.
Search of persons and premises and the confiscation of objects
Article 19
Upon request of the requesting state, the judge may order the search of the person sought for extradition as well as the premises the person concerned resides in.
The objects obtained by means of the commission of a criminal offence and the proceeds from crime shall be provisionally seized from the person sought for extradition.
The provisional seizure under paragraph 2 of this Article shall be in force until the decision on detention of the person sought for extradition is passed or on another measure to secure the presence of the person in respect of whom extradition is requested, but not longer than 48 hours as of the moment of arrest.
If the measure of seizure mentioned in paragraph 2 of this Article is mandatory under the law of the Republic of Serbia, the judge may temporarily hand the objects over to the requesting state on condition that they be returned within the timeframe specified by the judge.
Should extradition be granted, the objects and proceeds from crime mentioned in paragraph 2 of this Article shall be handed over to the requesting state.
Legal advice
Article 20
Once he/she has established proper identity of the person sought for extradition, the judge shall notify him/her on the reasons for arrest, the evidence upon which the request for extradition is based, and advise him/her on his/her rights:
1) he/she is not obliged to give any statement;
2) he/she may have a defence attorney;
3) the defence attorney shall be present at the examination;
4) he/she may give his/her consent that he/she may be extradited under a simplified procedure.
Should the person sought for extradition waive his/her right to a defence attorney or should he/she fail to retain the services of one within 24 hours as of the time when he/she was advised on his/her rights, an ex-officio lawyer shall be designated.
The judge shall notify the public prosecutor of the arrest of the person sought for extradition.
Interrogation
Article 21
The judge shall interview the person sought for extradition on all relevant circumstances to establish the existence of preconditions to extradition, particularly on personal circumstances, the citizenship, the relation to the requesting state and the request for extradition.
The examination shall be attended by the public prosecutor and the defence attorney who can direct questions to the person sought for extradition.
Records on the interrogation shall be kept.
Detention
Article 22
Following the interrogation the judge may order detention:
1) if such circumstances exist which indicate that the person sought for extradition will hide or escape with a view to hindering the decision making process on the letter rogatory or the carrying out of extradition;
2) if such circumstances exist which indicate that the person sought for extradition will hinder the collecting of evidence in the extradition procedure or in criminal proceedings before the judge of the requesting state.
Detention may not last longer than the moment of the execution of the decision on extradition, that is, not longer than a year since the day when the person sought for extradition detained. After each two months have elapsed since the final judgement on detention, the court may ex-officio examine whether or not there are reasons for the extension of detention or for its revocation.
If justified by special reasons, the judge may, instead of detention, order another measure to secure the presence of the person sought for extradition.
Examination of preconditions to extradition
Article 23
The judge shall take appropriate steps to identify whether or not there are preconditions to extradition, that is, to the handing over of objects mentioned in Article 19, paragraph 2 of this law.
If the requesting party did not provide guarantees to the effect of Article 16, subparagraphs 7 and 8 of this Article, the judge shall request from it to do so within the timeline that can exceed 30 days.
After the steps mentioned in paragraph 1 have been taken, the judge shall transmit the documents to the Chamber consisting of three judges (Pre-trial Chamber).
If criminal proceedings are in progress before the national court against the person sought for extradition for the same or some other criminal offence or the person concerned is serving the prison sentence, the judge shall note it in the legal documents.
Detention order prior to the submission of the letter rogatory
Article 24
In cases of urgency the competent authority of the requesting party may submit the request for detention prior to the submission of the letter rogatory.
The request shall comprise of:
1) information required for establishing proper identity of the person to be sought for extradition;
2) factual description and legal qualification of the offence;
3) statement by the competent authority of the requesting party regarding the existence of a court decision or an act of indictment mentioned in Article 15, sub-paragraph 3 of this law;
4) statement indicating that the letter rogatory will be submitted.
The request may be submitted to the national judicial authority or the police directly, through the Ministry of Justice or through the International Criminal Police Organisation (Interpol).
Subject to reciprocity, an issued international arrest warrant shall be deemed a request.
Action upon request
Article 25
The police shall arrest the person the request stipulated in Article 24 is related to and bring him/her to the judge without delay.
Having established the identity of the arrested person, the judge shall inform him/her of the reasons for the arrest, and on the rights under Article 20, paragraph 1, subparagraph 1 to 4 of this law.
Should the person sought for extradition waive his/her right to a defence attorney or he/she fail to retain the services of one within 24 hours since he/she was informed about it, he/she will be assigned an ex-officio lawyer.
Detention
Article 26
Following the interview of the arrested person, the judge may order detention.
A detention order and the legal advice document on the timeframe for submitting the letter rogatory shall be transmitted by the judge to the competent authority of the requesting state without delay in accordance with Article 24, paragraph 3 of this law, in respect of which the public prosecutor shall be notified. If the service was effected directly or through the International Criminal Police Organisation (Interpol), it will be communicated to the Ministry of Justice as well.
The judge will revoke a detention order:
1) should the competent authorities of the requesting state fail to submit the letter rogatory within 18 days since the day as of detention;
2) should the reasons for ordering detention cease to exist.
Upon request of a competent authority of the requesting party the judge may extend the timeframe mentioned in sub-paragraph 1 of paragraph 2 of this Article to the maximum of 40 days. If the letter rogatory was not submitted within said timeframe, the person concerned may be detained solely on the grounds of Article 22 of this law.
b) The proceeding before the Pre-trial Chamber
Decisions of the Pre-trial Chamber
Article 27
After the legal documents mentioned in Article 23, paragraph 3 of this law have been examined, the Pre-trial Chamber shall pass a decision on refusing extradition or on the fulfilment of the preconditions to extradition.
Decision to refuse extradition
Article 28
Should the Pre-trial Chamber establish that the preconditions under Article 7 and 16 of this law are not fulfilled it will pass a decision to refuse extradition, transmitting it to a next instance higher court without delay.
After hearing the public prosecutor and the defence attorney of the person sought for extradition, the next instance higher court shall ratify, revoke or revise the decision mentioned in paragraph 1 of this Article.
An enforceable decision on refusing detention shall be transmitted to the Ministry of Justice which will notify the requesting party thereafter.
Decision on fulfilment of preconditions to extradition
Article 29
If the Pre-trial Chamber establishes that the preconditions mentioned in Article 7
and 16 of this law are fulfilled, it shall pass a decision thereon.
The decision mentioned in paragraph 1 of this Article may be appealed to the next
instance higher court within three days as of the day of receipt of the decision.
After hearing the public prosecutor, the person sought for extradition and the
defence attorney thereof, the next instance higher court shall revoke or revise the decision
mentioned in paragraph 1 of this Article.
Simplified extradition procedure
Article 30
The person requested for extradition may be surrendered in a simplified procedure in line with the provisions of this law.
Should the person mentioned in paragraph 1 of this Article consent to the simplified procedure the judge shall present to him/her the consequences of such statement and ask him/her if such consent was expressed voluntarily. Records shall be kept on it.
The consent mentioned in paragraph 2 of this Article is irrevocable.
The records mentioned in paragraph 2 of this Article and the legal documents shall be addressed by the judge to the Pre-trial Chamber without delay which will pass a decision mentioned in Article 29 of this law. The decision may not be appealed.
The decision mentioned in paragraph 4 of this Article shall be transmitted to the Minister of Justice without delay, who will proceed in accordance with Articles 31-35 of this law.
c) The procedure before the Minster
Decisions of the Minister of Justice
Article 31
An enforceable decision on the fulfilment of preconditions to extradition accompanied with supporting documents shall be transmitted to the Minister of Justice.
The Minister of Justice shall pass a decision granting or refusing extradition. The decision shall be sent to the competent court, the person sought for extradition, the Ministry of Internal Affairs and the requesting party.
The decision granting extradition
Article 32
Within the decision granting extradition the Minister of Justice may:
1) impose conditions on extradition in terms of Article 14, paragraph 1 of this law, except if the person sought for extradition has waived these guarantees;
2) impose other conditions for extradition.
The decision which does not permit extradition
Article 33
The decision which does not permit extradition shall be passed by the Minister of Justice:
1) if the preconditions mentioned in Article 7, paragraph 1, sub-paragraph 4 and 5 of this law, are not fulfilled;
2) if the guarantees of a fair trial were not exercised within the trial process conducted in absence of the person sought for extradition.
Deferral of extradition
Article 34
The Minister of Justice may defer the enforcement of the decision mentioned in Article 32 of this law:
1) until the criminal proceedings conducted against the person sought for extradition for some other offence before the national court are finally completed;
2) until the person, in respect of whom extradition was granted, has served the prison sentence or the sentence constituting deprivation of liberty.
Provisional extradition
Article 35
The Minister of Justice may, in the case mentioned in Article 34 of this law, decide to permit provisional extradition of the person concerned to the requesting state:
1) should it be without prejudice to the criminal proceeding conducted before the national court;
2) should the requesting state provide guarantees that the provisionally extradited person will be detained and that he/she will be transferred back to the Republic of Serbia upon request of the Minister of Justice.
Inclusion of the time spent in detention
Article 36
When pronouncing the prison sentence the national court shall include the time spent in prison by the provisionally extradited person in the requesting state, that is, the duration part of the sentence not served shall be reduced by that amount of time.
Taking into account the circumstance mentioned in paragraph 1 of this Article, the Minister of Justice may decide not to request the provisionally extradited person be transferred back.
Surrender procedure of the defendant or the convicted person
Article 37
The Ministry of Internal Affairs shall enforce the decision permitting extradition.
The Ministry mentioned in paragraph 1 of this Article shall agree with the competent authority of the requesting state the place, the time and the manner of surrender of the defendant or the convicted person. The surrender shall be effected within 30 days as of the day of the passing of the decision mentioned in Article 32 of this law.
Should the requesting party, without any justified reason, fail to take over the defendant or the convicted person on day previously agreed, he/she shall be released.
Another day for surrender may be specified upon justified request of the requesting state.
2. EXTRADITION OF THE DEFENDANT OR THE CONVICTED PERSON TO THE REPUBLIC OF SERBIA
Preconditions to extradition to the Republic of Serbia
Article 38
If criminal proceedings are conducted before the national court against the person residing in a foreign state or the national court has pronounced, by virtue of an enforceable decision, a criminal sanction to the person concerned, the Minister of Justice may submit the letter rogatory upon request of the competent court.
If the person mentioned in paragraph 1 of this Article is extradited, he/she may face criminal proceedings or the execution of a criminal sanction only for the offence in respect of which extradition was granted, except if he/she has waived the right and the foreign party has not set forth such condition.
The letter rogatory shall be accompanied with the supporting documents mentioned in Article 15 of this law.
Conditions for pronouncing criminal sanctions
Article 39
If the foreign party has granted extradition on certain conditions relating to the type or the gravity of the criminal sanction that may be pronounced, that is, executed, the national court shall be bound to such conditions when pronouncing a punishment. On the other hand if the subject is the execution of a criminal sanction already pronounced, the court that adjudicated in the first instance shall revise the decision on the punishment in line with the legislation of the Republic of Serbia on this mater.
If the extradited person is detained in a foreign state by reason of a criminal offence he/she was extradited for, the time he/she has spent in custody shall be included in the criminal sanction constituting deprivation of liberty.
Transit through the territory of the Republic of Serbia
Article 40
Should the foreign party request extradition from another foreign party, whereas the extradited person has to be transferred through the territory of the Republic of Serbia, the Minister of Justice may grant to the requesting party the transfer of the person concerned in accordance with the preconditions mentioned in Articles 7 and 16 of this law.
The letter rogatory shall be accompanied by the supporting documents submitted in compliance with Article 15 of this law.
The costs incurred for the transit through the territory of the Republic of Serbia shall be borne by the requesting state.
