A Bulgarian citizen was charged with committing the offence of Illegal Crossing of State Border and Smuggling of Persons which the Court qualified as a more serious offence without specifying the circumstances which were regularly taken into account in previous cases with the same legal qualification. The Court established that the defendant smuggled a large number of persons (32 citizens of Iraq and Afghanistan) thus committing the offence of Illegal Crossing of State Border and Smuggling of Persons for which the legally specified punishment ranges from one to ten years of imprisonment.
When qualifying the offence and sentencing the defendant, the Court, although it had grounds for it, did not take into consideration the fact that in an 8-passenger minivan there were 32 persons. The Court should have taken this evidence into account since driving a vehicle with three times more passengers than legally allowed is an offence as per the Law on Road Traffic Safety (“The Official Gazette of the Republic of Serbia” no. 41/2009, 53/2010, 101/2011, 32/2013 – decision US, 55/2014, 96/2015 – other laws 9/2016 – decision US, stipulated as a less serious offence in Art 332, paragraph 1, item 57 in relation to Art 116, paragraph 1 for which specified fine ranges from 6000 to 20000 RSD). Moreover, a driver committing this offence endangers the lives and health of the persons illegally crossing the state border of Serbia, their stay and transit pursuant to Art 350, paragraph 3 stipulating the above mentioned as qualifying circumstance. Thus, the Court failed to comply with Art 6, paragraph 3(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime which provide that each State Party shall adopt such legislative and other measures as may be necessary to establish as aggravating circumstances: (a) that endanger, or are likely to endanger, the lives or safety of the migrants concerned; or (b) that entail inhuman or degrading treatment of such migrants.
Similarly, the Court did not take into account that there were other two unknown persons, citizens of the Republic of Bulgaria who were involved in the smuggling of migrants on the territory of the Republic of Serbia. The third person, whose name the defendant revealed and whose role in the joint criminal activity he explained, was probably in Bulgaria at the time of the commission of the offence. Since Art 112, paragraph 1, item 22 of the Criminal Code of the Republic of Serbia defines that an organized group is a group comprising minimum three persons acting in conspiracy to permanently or occasionally commit criminal offences whose members may not have defined roles or continuance in it and which may not have a developed organizational structure, the Court failed to establish the qualifying circumstance as regards the fact that the offence was committed by a group (as per Art 350, paragraph 3 of the Criminal Code of the Republic of Serbia).
As none of the qualifying circumstances provided by the Criminal Code was taken into consideration by the Court, the defendant was sentenced to the punishment defined as specified minimum for the offence of Illegal Crossing of State Border and Human Trafficking, i.e. one year of imprisonment (specified maximum being ten years). When giving grounds for its judgment, the Court specified mitigating circumstances stating that no aggravating circumstances were established.
In a way the final order was partly contradictory since the Court stated that when deciding on the security measure of expulsion of foreigners from the country, it took into account the nature and seriousness of the committed offence and ordered expulsion for a period of ten years, i.e. specified maximum (pursuant to Art 88, paragraph 1 of the Criminal Code of the Republic of Serbia which stipulates that the court may order expulsion from the territory of Serbia of a foreigner who committed a criminal offence for a period of one to ten years).
Bulgaria
A Bulgarian citizen was charged with committing the offence of Illegal Crossing of State Border and Smuggling of Persons which the Court qualified as a more serious offence without specifying the circumstances which were regularly taken into account in previous cases with the same legal qualification. The Court established that the defendant smuggled a large number of persons (32 citizens of Iraq and Afghanistan) thus committing the offence of Illegal Crossing of State Border and Smuggling of Persons for which the legally specified punishment ranges from one to ten years of imprisonment.
When qualifying the offence and sentencing the defendant, the Court, although it had grounds for it, did not take into consideration the fact that in an 8-passenger minivan there were 32 persons. The Court should have taken this evidence into account since driving a vehicle with three times more passengers than legally allowed is an offence as per the Law on Road Traffic Safety (“The Official Gazette of the Republic of Serbia” no. 41/2009, 53/2010, 101/2011, 32/2013 – decision US, 55/2014, 96/2015 – other laws 9/2016 – decision US, stipulated as a less serious offence in Art 332, paragraph 1, item 57 in relation to Art 116, paragraph 1 for which specified fine ranges from 6000 to 20000 RSD). Moreover, a driver committing this offence endangers the lives and health of the persons illegally crossing the state border of Serbia, their stay and transit pursuant to Art 350, paragraph 3 stipulating the above mentioned as qualifying circumstance. Thus, the Court failed to comply with Art 6, paragraph 3(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime which provide that each State Party shall adopt such legislative and other measures as may be necessary to establish as aggravating circumstances: (a) that endanger, or are likely to endanger, the lives or safety of the migrants concerned; or (b) that entail inhuman or degrading treatment of such migrants.
Similarly, the Court did not take into account that there were other two unknown persons, citizens of the Republic of Bulgaria who were involved in the smuggling of migrants on the territory of the Republic of Serbia. The third person, whose name the defendant revealed and whose role in the joint criminal activity he explained, was probably in Bulgaria at the time of the commission of the offence. Since Art 112, paragraph 1, item 22 of the Criminal Code of the Republic of Serbia defines that an organized group is a group comprising minimum three persons acting in conspiracy to permanently or occasionally commit criminal offences whose members may not have defined roles or continuance in it and which may not have a developed organizational structure, the Court failed to establish the qualifying circumstance as regards the fact that the offence was committed by a group (as per Art 350, paragraph 3 of the Criminal Code of the Republic of Serbia).
As none of the qualifying circumstances provided by the Criminal Code was taken into consideration by the Court, the defendant was sentenced to the punishment defined as specified minimum for the offence of Illegal Crossing of State Border and Human Trafficking, i.e. one year of imprisonment (specified maximum being ten years). When giving grounds for its judgment, the Court specified mitigating circumstances stating that no aggravating circumstances were established.
In a way the final order was partly contradictory since the Court stated that when deciding on the security measure of expulsion of foreigners from the country, it took into account the nature and seriousness of the committed offence and ordered expulsion for a period of ten years, i.e. specified maximum (pursuant to Art 88, paragraph 1 of the Criminal Code of the Republic of Serbia which stipulates that the court may order expulsion from the territory of Serbia of a foreigner who committed a criminal offence for a period of one to ten years).