Case Law Database

Participation in an organized criminal group

Offences

• Participation in criminal activities of organized criminal group

Smuggling of migrants

Offences

• Enabling illegal entry
• Enabling illegal stay
• Financial or other material benefit (to smuggler)

Mode

• land

Related Conduct

• Organizing and directing other persons

Trafficking in persons

Offences

• Trafficking in persons (adults)
• Trafficking in children (under 18 years)

Kok. no. 113/15

Fact Summary

The accused N.S. together with N.F., M.S. and U.N. formed organized criminal group (D.I., D.G., B.A., A.T., B.S., S.D., LJ.LJ., K.LJ., T.B., M.Z., N.S., M.M. and I.S.) that operated on the previously determine assignments, and with an intent to obtain a material gain, on several occasions during 2012 enabled reception, transport and shelter to 60 migrants from Afghanistan, Pakistan, Sudan, Somalia and other countries for the amount of 140 to 160 euros per vehicle, and those whose task consisted in informing others about the presence of the police on the road, for the amount of 100 euros per vehicle.

 

Organized criminal group opereted in a way that the convicted N.F. was in constant telephone communication with the NN persons-guides who informed him about when and where migrants were transferred from Greece to Macedonia, then he hired the convicted M.S. who organized reception and transport of migrants from Gevgelia to highway Rajkova Kuka in Lipkovskiot region with a help of the convicted: D.I., D.G., B.A., A.T., B.S,S.D.,LJ.LJ.,K.LJ., T.B.,M.Z., and the accused N.S., M.M., I.S.., . In villages Rečica and Vaksince in the Lipkovskiot region, the convicted N.F. and M.S. organized shelter to migrants and then their crossing of Macedonian-Serbian border.

 

-On 21.10.2012., the accused N.F. and M.S. organized the acceptance and illegal transportation of five migrants (J. A. G., A. DŽ. G., H. E. G., A. M. G. and H. A. M.) to the border of the Republic of Serbia, in a way that convicted N.F. was in telephone contact with the NN persons who had role of guides of migrants during their crossing of the state border between Greece and Macedonia,

and with M.S who was later responsible for the organization of their transportation. The convicted M.S. hired the witness UC 600 to transport migrants from village Romanovce to village Dobršane for the amount of 150 euros, and the accused N.S. and D.I. to drive in front the UC 600 and informed him about the presence of the police on the road for the amount of 60 euros.

 

The witness UC 600 acting upon instruction of the accused M.S. and with an intent to obtain a material gain in certain amount, transported migrants on three occasions to the border passage Tabanovce, village Rečica, whereas during first time he transported 5 migrants and third time 4 migrants.

 

The witness UC 601, on 24.11.2011 transported 6 migrants from village Bogorodica to village Rečica with an intent to obtain a material gain in certain amount.

Commentary and Significant Features

From the elaborated description of the act of offence, it is not possible to clearly see on the basis of what evidences, did the court found that the defendant had the role of an organizer of organized criminal group, for what he was condemned. According to the reasoning of the judgment and determined facts of the case the task of the defendant consisted only in informing others about the presence of the police on the road.

 

When determining the type and duration of the penalty, the court took into consideration all relevant circumstances according to the art. 39 of the Criminal Law, and especially, as aggravating circumstances, it had reflected to the public danger of this type of offence, which was not the case in any other examined judgment of the court.

 

When accessing evidences produced during the investigation, and how they determine factual situation, it is important to note that the testimony of one of the participants of the offence whose identity was protected (UC 600), had a crucial role in determining the facts of the case. It is questionable why his identity was concealed, bearing in mind that the content of his statement clearly shows his individual role and connection with other convicted persons.

 

It is interesting to note that, according to the information from the judgment, Ministry of Justice of the Republic of Macedonia had issued a document (RМ no.13/2-1121/2012-2 from 28.11.2012) stating that there are no certified, official court translators for the languages of smuggled migrants in order for them to be heard in front of the court as witnesses in the proceedings. Nevertheless, statements of migrants given in preliminary proceeding on 07.12.2012., were read on the trial hearing as evidences on the basis of which certain facts of the case were determined.

Sentence Date:
2016-02-24

Keywords

Organized Crime Convention:
Article 5 UNTOC

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)
• participant, facilitator, accessory
• organiser/director

Offending

Details

• involved an organized criminal group (Article 2(a) CTOC)
• occurred across one (or more) international borders (transnationally)

Involved Countries

Serbia

North Macedonia

Greece

Investigation Procedure

Involved Agencies

• Ministry of Interior
• Public Prosecutor's Office
• Ministry of Justice
• Property Management Agency

Confiscation and Seizure

Seized Money:
650 Euro

Seized Property

Mobile phones, Vehicles

-         From the accused Z.M. the authorities had confiscated: mobile phone.

-         From the accused D.I. the authorities had confiscated: mobile phone with sim card.

-         From the accused LJ.LJ. the authorities had confiscated: vehicle brand ‘’ Škoda Fabia’’ and 2 mobile phones.

-         From the accused S.D. the authorities had confiscated: vehicle brand ‘’Opel Vectra’’ and mobile phone with sim card.

-         From the accused LJ.K. the authorities had confiscated: vehicle brand ‘’ Dacia Logan’’ and mobile phone.

-         From the accused D.G. the authorities had confiscated: vehicle brand ‘’Golf’’ and 2 mobile phones.

-         From the accused A.B. the authorities had confiscated: vehicle brand ‘’Golf’’and mobile phone.

-         From the accused T.B. the authorities had confiscated: vehicle brand ‘’Skoda Felicia’’ and mobile phone.

-         From the accused A.T. the authorities had confiscated: mobile phone.

 

Legal Basis

Objects in relation to which the offense has been committed
 

Comments

Temporary seizure of objects
 

Special investigative techniques

• Special investigative techniques
• Electronic or other forms of surveillance

Comments

Evidences produced in the proceedings: witness testimonies of smuggled migrants and protected witness. Special evidentiary actions taken: Covert Interception of Communications and Covert Surveillance and Audio and Video Recording.
 

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:
Criminal
 
 
Proceeding #1:
  • Stage:
    first trial
  • Official Case Reference:
    КОК br. 113/15
  • Decision Date:
    24 February 2016

    Court

    Court Title

    The Basic Court in Skopje
    (MKE: ОСНОВНИОТ СУД СКОПЈЕ I)
     

    Location

  • City/Town:
    Skopje
  • • Criminal

    Description

    The Public Prosecutor's issued an indictment against Accused N.S. on suspicion of committing a criminal offense Organizing the group and encouraging the perpetration of a criminal offense of trafficking in persons, trafficking in children and smuggling of migrants according to the art. 418 (v) para. 2 and smuggling of migrants according to the art. 418 (b) para. 2 of the Criminal Law.

     

    Based on evidence of witness testimonies, material evidence (such as reports of the special evidentiary actions) and partial recognition of the defendant, the Basic Court in Skopje declared the defendant guilty for Organizing the group and encouraging the perpetration of a criminal offense of trafficking in persons, trafficking in children and smuggling of migrants and sentence him to imprisonment in duration of 1 year and 2 months, as well as for Smuggling of migrants and sentence him to imprisonment in duration of 1 year. Thus, the court pronounced a single sentence, convicting the defendant to imprisonment in duration of 2 years.

    With regard to the fate of objects used for committing the offence, the court referred to judgment KOK no. 12/13 from 27.12.2013.
     

    Outcome

  • Verdict:
    Guilty
  • Migrants

    Migrant:
    60 persons (including children)
    Nationality:
    Afghan
    /
    Pakistani
    /
    Sudanese
    Somali
    During the investigation the smuggled migrants testified as witnesses in the proceedings initiated against the organized criminal group.

    Migrants are in detention in a reception center

    Witness Protection:
    - Video testimony or other measures to protect identity of witness

    Defendants / Respondents in the first instance

    Defendant:
    N.S.
    Gender:
    Male

    Previously convicted by a judgment of the Basic Court in Kumanovo from 19.11.2001 to a suspended sentence of 1 year for a offence from art. 197 of the Criminal Law.,

     

    -       during 2006 criminal charges were filed for offence according to art. 157 para 1 of the Criminal Law and in 2009 for offence from art. 236 para. 1.

    -       no information has been provided as whether criminal proceedings were initiated against the defendant on the basis of criminal charges filled in 2006 and 2009.

    in custody from 24.09.2015..to 24.02.2016.

    Charges / Claims / Decisions

    Defendant:
    N.S.
    Statute:
    Criminal Code of the Republic of MacedoniaArticle 418v Paragraph 2
    Charge details:
    Organizing the group and encouraging the perpetration of a criminal offense of trafficking in persons, trafficking in children and  smuggling of migrants
    Verdict:
    Guilty
    Charge:
    Smuggling of migrants
    [One who recruits, transports, transfers, buys, sells, shelters or accepts migrants, shall be punished with imprisonment of one to five years.]
    Statute:
    Criminal Code of the Republic of MacedoniaArticle 418-b Paragraph 2
    Verdict:
    Guilty
    Term of Imprisonment:
    2 years

    Court

    The Basic Court in Skopje

    Attachments