Case Law Database

Smuggling of migrants

Offences

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

Related Conduct

• Participating as an accomplice

Kž1 836/15

Fact Summary

Acting on the basis of previously reached agreement with a person called Ali, on 11 September 2013 the accused picked up a group of 40 illegal migrants near gas station on highway at Leskovac with his van brand ‘’Citroen Jumper’’, and acted with the intention to transport migrants from that place to Subotica for the amount of 500 euros. The accused was stopped by the police at Bubanj Potok toll booth.

Commentary and Significant Features

Although during the first hearing of V.D. which took place in the police premises in the presence of a court appointed defence counsel, the defendant described in detail all relevant circumstances of the committed offence with which he was charged, after he was sentenced by the Second Basic Court in Belgrade to imprisonment of one year and five months, the defence council of the defendant filed an appeal with the Court of Appeal in Belgrade asking the court to set aside the first-degree decision and order a new trial or to change the said decision by sentencing the defendant to a more lenient criminal sanction on the grounds of substantive violations of the provisions on criminal procedure, inaccurately and incompletely established facts of the case and decision on the criminal sanction.

The appellate court paid special attention to the allegations in the appeal claiming that the statement given by the accused V.D. to the police was obtained in an unlawful manner and that, due to this, it had to be excluded from the file and ruled that the appeal was unfounded in this part. The ruling was justified for the following reasons: the accused V.D. had given his statement in the presence of the court appointed defence council, LJ.S., with whom he had previously had a confidential conversation; the minutes of the questioning were taken down by police officer B.A.; the interview was conducted by police officer B.I. in keeping with provisions of the Criminal Procedure Code. In the testimony that the two police officers of the Aliens’ Department had given as in their capacity as witnesses, they stated that the defendant V.D. was interviewed in perfect agreement with the law, i.e. in the presence of the court appointed defence counsel LJ.S., that the defendant V.D. had previously had a confidential conversation with the counsel, that he had listened to the minutes being dictated, that once the minutes were printed, he read and signed them, and that neither the defendant nor his counsel had any objections to the contents of the minutes. A conclusion can be drawn from the witnesses’ testimony that no suggestion of any kind was made to the accused V.D. that would induce him to admit the commission of the criminal act in exchange for cancelling detention, and the witnesses emphasized in particular that no coercive force of any kind was used against the defendant.

Among the allegations in the appeal a particularly prominent place belongs to those alleging that no evidence was submitted to prove that the defendant V.D. knew that the persons he was transporting were illegal migrants, that he had no right or obligation to control them, that he did not transport them across the border, that he had encountered the persons whom he believed to be workers at a disused petrol station on the highway near Leskovac, as well as that he immediately stopped when signalled to do so by the police upon entering Belgrade, i.e. at Bubanj Potok. In evidence of these allegations, the defendant’s defence counsel referred to the statements of the transported persons which confirmed that the defendant V.D. had not asked them who they were or where they were from, and that none of the migrants had given the defendant any money for the transportation.

The court ruled that these allegations were unfounded and contrary to the defendant’s statement given to the police of 11/07/2013 in which he claimed, among other things, that twenty days before the case in question, acting upon a previous agreement with a person whom he knew only as ‘Ali’, he had transported illegal migrants from Presevo to Belgrade, and then to Subotica, for a compensation in money amounting to €500, as well as that on 11/09/2013 he was supposed to transfer migrants from Leskovac to Subotica for the same fee, as agreed with John Doe (Ali).

One of the allegations in the appeal related to the failure of the first-instance court to perform psychiatric evaluation of the defendant V.D. and an expert analysis of his phone. It was submitted that in this way the court would have been able to establish facts relevant to the case: since the defendant was accused of having communicated by phone with a person referred to as ‘Ali’, the evidentiary proceedings would have allowed establishing whether the said phone communication had taken place on the critical day. The defence counsel’s allegations were deemed to be unfounded as psychiatric expert examination in terms of Article 131 of the Criminal Procedure Code is ordered if “suspicion appears that the defendant’s mental competency is non-existent or diminished, that the defendant committed a criminal offence because of alcohol or drug addiction, or that mental problems make him incapable of participating in the proceedings”, and the relevant files did not indicate that there were any suspicions regarding these facts. The allegations in the appeal regarding the expert analysis of the phone were also unfounded, as the record of the case, both his defence presented to the police and at the trial, clearly indicate that the defendant had communicated with an ‘Ali’, given that he elaborated on the manner in which the communication was established and in which the agreement on the cost of transportation was reached, so that this evidence would not significantly contribute to shedding light on the facts relevant to the case.

The second-instance court found that the first-degree court had properly established all statutory circumstances relevant for rendering a sentence, that it had properly taken into account that the defendant had previously been convicted of a number of criminal offences of property crime with a prominent feature of illegitimate property gain, which makes them equivalent to the criminal offence under Art 350 para 3 in relation to para 2, while at the same time the court could not find any mitigating circumstances for the defendant.

Having analyzed the above circumstances and the fact that the legislator allowed for specific features of the offence of Illegal Crossing of State Border and Human Trafficking (as well as the provisions under Art 6 para 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 stipulates that each State Party shall adopt such legislative and other measures  as may be necessary to establish that aggravating circumstances include those: (a) That endanger, or are likely to endanger, the lives or safety of the migrants concerned; or (b) That entail inhuman or degrading treatment, including for exploitation, of such migrants) under Art 350 para 3 in relation to para 2 and prescribed stricter sanctions, both in the case of smuggling a larger number of persons and in the case when the illicit crossing of the Serbian border, stay or transit is facilitated in a manner that endangers the lives or health of the smuggled persons, prescribing the punishment of imprisonment from one to ten years for this form of criminal offence, a question may be asked why the first-instance court, when determining the criminal sanction, failed to take into consideration the fact that 40 migrants were transported in the vehicle intended for 8 passengers. There is no doubt that driving a vehicle in which there are four times more passengers than allowed by regulations, in addition to constituting infraction of the Law on Road Traffic Security (Official Gazette of the RS, nos. 41/2009, 53/2010, 101/2011, 32/2013 – Constitutional Court decision, 55/2014, 96/2015 - statutes 9/2016 - Constitutional Court decision, constitutes violation under Art 332 para 1 item 57 in relation to Art 116 para 1, punishable by a fine of 6,000 to 20,000 dinars) also involves endangering the lives and health of the persons whose illegal crossing of the Serbian border is facilitated, and this is exactly what Art 350 para 3 defines as an aggravating circumstance.

Sentence Date:
2015-10-13

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Offending

Details

• occurred across one (or more) international borders (transnationally)

Involved Countries

Serbia

Investigation Procedure

Involved Agencies

• Ministry of Interior of the Republic of Serbia
• Basic prosecutor's office in Belgrade

Confiscation and Seizure

Seized Property

Vehicle brand ‘’ Citroen Jumper’’ german license plates GP-HE… with keys, vehicle registration card and green card, mobile phone Nokia 2330C IMEI.. with Telenor sim card and mobile phone Nokia M97 IMEI.. with Telenor sim card.

These objects were permanently confiscated.

 

Legal Basis

These objects were used as means to commit the offense.
 

Comments

Vehicle control; During usual activity of the police patrol at the Bubanj Potok toll booth, the police found 40 migrants in the van of the accused.
 

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 
Proceeding #1:
  • Stage:
    first trial
  • Official Case Reference:
    8K. br. 7629/13
  • Decision Date:
    Tue Jun 02 00:00:00 CEST 2015

    Court

    Court Title

    Second basic court in Belgrade
    Drugi osnovni sud u Beogradu
     
    • Criminal

    Description

    Acting on the indictment of the Basic Public Prosecutor, and on the basis of the defence of the accused, who added that 20 days prior to this situation had also transported foreign migrants from Presevo to Belgrade and then to Subotica for the amount of 500 euros and on the basis of prior arrangement with same individual (Ali), and other evidence produced in the proceedings, the court found the defendant guilty of Illegal Crossing of State Border and Smuggling of Persons from art. 350 para.3 in relation to para. 2 and according to art. 33 of the Criminal Code of the Republic of Serbia and sentenced him to the imprisonment for 1 year and 5 months, whereas the time spent in detention is counted within the imposed imprisonment, and issued a security measure confiscation of objects (Vehicle brand ‘’ Citroen Jumper’’ german license plates GP-HE… with keys, vehicle registration card and green card, mobile phone Nokia 2330C IMEI.. with Telenor sim card and mobile phone Nokia M97 IMEI.. with Telenor sim card) that they have used to commit criminal offence.

     

    Outcome

  • Verdict:
    Guilty
  • Proceeding #2:
  • Stage:
    appeal
  • Official Case Reference:
    Kž1 836/15
  • Decision Date:
    Tue Oct 13 00:00:00 CEST 2015

    Court

    Court Title

    Appeal court in Belgrade
    Apelacioni sud u Beogradu
     
    • Criminal

    Description

    Acting on the appeal of the defendant, who argued that the first-instance judgment should be set aside on the grounds of the substantive violations of the provisions of criminal procedure, incompletely determine facts of the case and decision about penalty, the Appeal court in Belgrade rejected the allegations of the defendant and upheld the first-instance judgment finding that first instance court has properly found that in the acts of the defendant all elements of the criminal offence have been met.
     

    Outcome

  • Verdict:
    Guilty
  • Migrants

    Migrant:
    40 persons
    Nationality:
    Afghan
    /
    Bangladeshi
    /
    Malian
    Nigerian
    Pakistani
    Syrian

    In the first instance the court heard smuggled migrants from Pakistan, Syria, Mali, Afghanistan, Bangladesh, and Nigeria as witnesses. They confirmed that they have entered at the territory of Serbia by foot, illegally, that defendant picked them up with his van in a place near Macedonian-Serbian border, that there were around 40 of them in the vehicle and that they were stopped by the police near Belgrade and that they had an intention to come to Western European countries.

    Defendants / Respondents in the first instance

    Number of other accused:
    1
    Defendant:
    V.D.
    Gender:
    Male
    No previous convictions. According to the decision of the judge for the preliminary proceedings in the First basic court in Belgrade, case Kri.D.br. 352/13 from 13.09.2013, the accused was kept in custody in the period from 11.09.2013. up to 15.10.2013. The time spent in detention was counted within the imposed imprisonment.

    Charges / Claims / Decisions

    Defendant:
    V.D.
    Charge:
    Illegal Crossing of State Border and Smuggling of Persons
    Statute:
    Criminal Code of the Republic of Serbiaart. 350 para. 3 in relation to para. 2 and according to art. 33
    Term of Imprisonment:
    1 year 5 Months
    Security Measure, confiscation of objects; Vehicle brand ‘’Citroen Jumper’’ German license plates GP-HE… with keys, vehicle registration card and green card, mobile phone Nokia 2330C with Telenor sim card and mobile phone Nokia M97 with Telenor sim card.

    Court

    Appeal court in Belgrade

    Attachments