On December 07, 2006. the accused, in the state of accountability and with an intent to obtain for themselves a material gain, have smuggled 4 citizens of the Republic of Albania who had previously entered at the territory of Serbia illegally-without entry stamp and visas, in a way that, on the basis of prior arrangements, the accused S.A. had brought them to the accused D.M. at the restaurant ‘’Rozafa’’ in Bujanovac, who then transferred them in the direction towards Belgrade in order to enable them illegal transit trough Serbia in his vehicle brand ‘’ Mazda’’, licence plate BP 354-59 for the sum of 250. According to the allegations from the indictment of the Public prosecutor office in Bujanovac, beside accused S.A. and D.M. in the illegal transit of Albanian citizen, also participated another accused. Accused 3 with his vehicle ‘’Toyota’’ license plate BP xxx-93 and accused 4 with his vehicle ‘’Passat’’ license plate BP-xxx-43, with an intent of obtaining the material benefit in the amount of 250 euros each.
The accused D.M. was stopped by the police patrol at the village Davidovac, municipality of Vranje and smuggled migrants, citizens of Albania were identified in his vehicle. The accused 3 and 4 were also caught by the police in the village Davidovac but Albanian citizens were not found in their vehicles. The accused were aware of the unlawfulness of their acts and wanted its implications.
Serbia- From the accused 1. the police confiscated: vehicle brand ‘’Mazda’’ with the key, licence plate BP xxx-59, vehicle registration card, mobile phone brand ‘’ Siemens MC 60’’ with sim cards, two tolls from highway Belgrade-Niš from 04.12.2006.
- From the accused 3. the police confiscated: vehicle brand ‘’Toyota’’ type Karina with the key, license plate BP xxx-93, mobile phone brand ‘’Nokia’’ with sim cards and business card ‘’DIG taxi’’.
- From the accused 4. the police confiscated: vehicle brand ‘’VW’’ with a key, license plate BP xxx-43, vehicle registration card, and mobile phone brand ‘’Sony Erikson’’ with a sim card.
Acting on a motion to impose criminal sanction and on the basis of evidence produced in the proceeding, the Basic court in Bujanovac found the defendant S.A. and D.M. guilty for Illegal Crossing of State Border and Smuggling of Persons from art. 350 para. 2 in relation to art 33 of the Criminal Code of the Republic of Serbia, and the defendant 3 and 4 not guilty for the charges from the indictment of the Public prosecutor office in Bujanovac.
The court has determined the facts of the case on the basis of written evidence and testimonies of the police officers who intercepted the defendant D.M., and two Albanian citizens who were smuggled. Legally assessing the determined circumstances of the case, the court has found that in the acts of defendants S.A. and D.M. all objective and subjective elements of the offence of Illegal Crossing of State Border and Smuggling of Persons from art. 350 para. 2 in relation to art 33 of the Criminal Code of the Republic of Serbia, have been meet and that there are no circumstances which would exclude their criminal liability. When assessing the type and the length of the penalty which is to be issued the court took into consideration as mitigating circumstances the defendants family life and their poor financial situation, and as aggravating circumstances their criminal record, especially in the case of S.A, who was sentenced for the same offence.
In the case of the defendants 3 and 4, the court argued that in the proceedings it was not proven that they committed the crime for which they were accused.The accused was previously convicted in the cases:
- K. No. 28/07 from 27.03.2008. by the Municipal court in Bujanovac for Unlawful Possession of Weapons and Explosive Materials from art. 348 of the Criminal Code of the Republic of Serbia and was sentence to imprisonment in duration of 60 days.
- KIO1.272/10 from 21.12.2012. by the Higher court in Belgrade for Illegal Crossing of State Border and Smuggling of Persons from art. 350 para. 4 in relation to para. 3 and 2. And was sentence to imprisonment in duration of 5 years and 6 months.
He was in custody from the period of 08.12.2006. to 28.12.2006.
Other relevant information about the accused: unemployed, married, father of two underaged daughters, with finished secondary school.
The accused was previously convicted in the cases:
- K No. 372/05 from 17.06.2005. of the Fifth Municipal court in Belgrade for Violation of the Right to Strike from art. 166 para. 1 of the Criminal Code of the Republic of Serbia, and was issued a suspended sentence.
He was in custody from the period of 08.12.2006. to 28.12.2006.
Other relevant information about the accused: unemployed, married, father of two underaged child, with finished primary school.
The accused was previously convicted in the cases:
- K No. 628/95 from 06.03.1996. of the Municipal court in Vranje for Violation of the Right to Strike from art. 166 para. 1(1) of the Criminal Code of the Republic of Serbia, and was issued a suspended sentence.
He was in custody from the period of 08.12.2006. to 28.12.2006.
Other relevant information about the accused: working as a taxi driver, married, father of two underaged child, with finished secondary school.The accused was previously convicted in the cases:
- K. No. 576/06 from 30.01.2008. from the Municipal court in Vranje for Light Body Injury from art. 122 of the Criminal Code of the Republic of Serbia and was issued a fine.
- K. No. 287/06 from 21.11.2007. from the Municipal court in Vranje for Endangering Road Traffic from art. 289 para.3 of the Criminal Code of the Republic of Serbia and was issued a suspended sentence.
He was in custody from the period of 08.12.2006. to 28.12.2006.
Other relevant information about the accused: working as a taxi driver, married, father of one underaged child, with finished secondary school.Higher court in Vranje
The Higher Court in Vranje, acting as an appellate court (a second-instance court) upon appeals of the defence counsels of the convicts S.A. and D.M., partly accepted the appeals and altered the decision of the Basic Court in Bujanovac by pronouncing the sentence of four months’ imprisonment for both convicts. At the same time, the Court ruled that S. A. and D.M. would serve the term of imprisonment in the premises of their abode without the measures of electronic surveillance. The time that the convicts had spent in detention (from 08/12/2006 to 28/12/2006) was included into the pronounced sentence.
The appellate court found that the facts that 9 years and 3 months had passed from the arrest of one of the perpetrators in the act of commission on 07/12/2006 to the passing the first-instance decision of the Basic Court in Bujanovac on 27/03/2015 and that additional seven months had passed before the decision of the appellate court (29/10/2015), together with the facts that the convicts were family men, both fathers of three underaged children, of poor financial status, constituted the grounds for establishing the existence of particularly extenuating circumstances. The Court found that the only aggravating circumstance were the previous convictions of the convicts.
Acting upon the appeals of the counsels of the convicted S.A. and D.M., the appellate court held a session at which all documents of the case were discussed, together with the verdict against which the appeal was lodged, and based on the allegations in the appeal and the proposal of the Higher Public Prosecutor in Vranje ruled that the appeals which pointed out to major infractions of the provisions on criminal proceedings, wrongly and incompletely established facts, violations against the criminal code and the disputed decision on the criminal sanction were all unfounded because the trying court had correctly and completely established the facts of the case on the basis of the presented and properly evaluated evidence, including the defence of the convicts. In keeping with the aforementioned, the court established that the convicts, S.A. and D.M., based on the previous agreement, had secured transit through the Republic of Serbia for four citizens of Albania who had entered Serbia illegally.
It is important to point out that the court applied the provisions of the law that came into force in 2009 to the defendants who had committed the criminal offence in 2006, finding that the new statute treated the perpetrators more leniently, because the provisions of the Criminal Code valid at the time of commission of crime (2006) contained in Art 350 paragraph 2 envisaged the sentence of imprisonment ranging from three months to six years for the criminal offence of Illegal Crossing of State Border and Smuggling of Persons. Amending the Criminal Code in 2009, the legislator extended the minimum prescribed punishment for the said criminal offence from three to six months, but at the same time lowered the maximum sentence from six to five years. In accordance with the aforementioned, the Higher Court in Vranje, in the rationale of the decision on the term of imprisonment of four months for each convict specifically elaborated on the reasons for pronouncing the sentence shorter than the legal minimum of six months, i.e. for mitigating the punishment.
The contents of the decision is inconclusive as to the reasons why the Basic Public Prosecutor in Bujanovac or the Higher Public Prosecutor in Vranje did not opt for charging the accused S.A. and D.M. with the perpetration of the criminal offence of Illegal Crossing of State Border and Smuggling of Persons provided for in Art 350 paragraph 3 with reference to paragraph 2, especially because the accused D.M. - in the testimony which the court accepted as truthful - stated that he had, in agreement with S.A., transferred the total number of eight persons on two occasions. Since both the provisions of the Criminal Code of Serbia valid at the time of the perpetration of the criminal offence, as well as the ones valid after the amendments to the Criminal Code of Serbia in 2009 prescribed the sentence of imprisonment within the range between one and ten years (since 2009 there has been prohibition against mitigating the sentence for this type of criminal offence), this would imply new restrictions upon the judicial assessment or mitigation of the sentence.