Although not so stated in the final order, it is obvious that the basis for a more serious qualification of the criminal offence, for which at the time of commission stipulated punishment, was the sentence of imprisonment ranging from one to ten years, is in connection with the fact that the defendants’ actions enabled illegal stay, i.e. smuggling of a large number of persons (the stand of court practice is that it refers to a group of five or more persons).
Having searched the flat of the accused A.H. where the police found illegal migrants, the defendants confessed the offence and revealed the important details for determining their intent to obtain material advantage by allowing the foreign citizens, for whom they knew that they did not have permission to reside in the Republic of Serbia, to illegally stay in the flat of the accused A.H. (from 20 May 2012 until 24 May 2012 when they were found during the search conducted by the police officers of the Ministry of Internal Affairs of the Republic of Serbia, the Police Department of Subotica, which is evident from the report on the search of the flat and enclosed forensic documentation). Although, while being interrogated by the police in the presence of their legal counsels they confessed the offence, both defendants A.H. and K.R., negated the commission of the offence, i.e. the intent to obtain material advantage by enabling the migrants to illegally stay in the H.A.’s flat.
While being interviewed as witnesses, both migrants found in the flat of the accused A.H., confirmed the changed statements of the defendants. The Court assessed the witnesses’ statements that the accused A.H. agreed to put up a sister, brother-in-law and their underage children on the request of one of the migrants as illogical since the defendants were living in poor conditions (barely earning to support themselves) and therefore it was unlikely that they accepted to provide accommodation and food to five total strangers. The Court concluded that the witnesses’ statements were given with the aim of protecting the persons who gave them accommodation. The Court established that the statements were not consistent with the statement of the defendant K.R. given during the interrogation in the presence of his counsel in which he described the circumstances of the committed offence in detail and which the Court accepted in its entirety (although the defendant K.R. changed his statement later).
While determining sentence to the accused A.H., the Court imposed the shortest possible sentence of imprisonment stipulated for this form of criminal offence – Illegal Crossing of State Border and Human Trafficking, i.e. the sentence of imprisonment for a period of one year because it established the existence of several extenuating circumstances (she had never been convicted before, she was unemployed mother of an underage child for whose support she was responsible). The Court did not establish any aggravating circumstances relating to the accused A.H. As far as the defendant K.R. is concerned, as mitigating circumstances the Court established the fact that he was unemployed father of seven underage children for whose support he was responsible. The defendant’s previous convictions were taken into account as aggravating circumstance. Accordingly, he was sentenced to imprisonment for a period of one year and three months. Since the Court did not specify that the time spent in custody would be deducted from the imposed prison term, it could be concluded that the Court did not order detention to the defendants A.H. and K.R.
The presiding judge made an official annotation in the written final order that the convicted A.H in accordance with Art 45, paragraph 5 of the Criminal Code of the Republic of Serbia would serve the sentence at the place of her residence.
The criminal procedure was over with the Court’s ruling of final order thirteen months after the offence had been disclosed and the charges pressed against A.H. and K.R. Taking into account that paying legal expenses would aggravate living conditions of the defendants, the court ruled that they would be excused from paying any fees. As for the officially established attorney’s fee, the Court decided that it would fall on the budget of the Republic of Serbia.