Criminal proceedings were conducted against two underage boys (aged 17.5) accused of having – with a prior arrangement with another person– taken over a group of ten migrants in the area of the village Miratovac (800 meters away from the Serbian-Macedonian border) at 8:00 p.m. on 26/02/2015. They had undertaken to escort the migrants across ploughed land and fields, going on foot, to the suburb of Zeleznicka stanica in Presevo (8 km away from the take-over point) and leave them there.
Having been spotted by a border police surveillance system operator, the two perpetrators and the group of ten migrants were intercepted by a patrol of the Border Police Department, the Regional Center of Border Police towards the Republic of Macedonia. Police officers apprehended the two minors along with two citizens of Afghanistan. The smuggled migrants were charged with the misdemeanour offence provided for by the Law on Protection of the State Border under Art 65 para 1 and the Law on Foreigners under Art 84 para 1.
In their defence, the smugglers denied that they had allowed the migrants’ transit with intent of obtaining material gains for themselves in the form of the promised financial compensation amounting to the total of €100, claiming that they only wished to help people whom they had met by accident, and that no money was found on them when they were searched. They justified avoiding road by the enhanced risk of traffic accidents in the night conditions. In an attempt to refute the existence of the criminal offence of Illegal Crossing of State Border and Smuggling of Persons as per Art 350 para 2 of the Criminal Code of the Republic of Serbia, the defence counsels pointed out that enabling transit as a mode of perpetration involved the use of motor vehicles.
Although the case was in the jurisdiction of the basic court (Art 22 para 1 Law on the Organization of Courts, Official Gazette of the RS, nos. 116/2008, 104/2009, 101/2010, 31/2011 – statute, 78/2011 - statute, 101/2011, 101/2013, 106/2015, 40/2015 - statute, 13/2016 and 108/2016, according to the provisions of the Criminal Code valid at the time, which provided for the criminal offence of Illegal Crossing of the State Border and Smuggling of Persons in Art 350 para 3 in relation to para 2, punishable by imprisonment of one to ten years) the fact that the defendants were underage persons (persons older than 14 and younger than 18) called for applying Art 3 of the Law of the Organization of Courts which stipulates that a higher court tries the cases in the first instance in criminal proceedings against underage perpetrators of criminal offences.
Although both accused had come of age by the time of passing the first-instance sentence, the court adhered to the provision under Art 40 para 2 of the Law on Underage Perpetrators of Criminal Offences and Criminal Procedural Protection of Underage Persons (Official Gazette of the RS no. 85/2005) which stipulates that an adult who had committed a criminal offence as a juvenile offender, and who is younger than 21 at the time of trial, can be subject to educational measure, and imposed the non-institutional educational measure of increased supervision the guardianship authority in the period of six months on both defendants (educational measure of increased supervision is imposed where the upbringing and development of underage persons require more lasting measures with adequate expert supervision and assistance, but there is no need to completely isolate the minors from their surroundings).
The court did not opt for sanctioning the underage offenders by imposing the sentence of (juvenile) prison terms although at the time of commission both perpetrators were older than 16 and younger than 18, and although the law stipulates that the criminal offence in question is punishable by imprisonment of more than five years (Art 28 Law on Minor Perpetrators of Criminal Offences and Criminal Procedure Protection of Underage Persons). The reason for this is that the court did not find that the third condition for imposing juvenile imprisonment was met in the specific case, i.e. that it would not be justified to impose corrective measure for reasons of high degree of culpability, nature and gravity of the criminal offence.
Since the provision of Art 57 para 2 of the Criminal Code of the Republic of Serbia rules out the possibility of mitigating the prescribed sanction to the perpetrators of the criminal offence of Illegal Crossing of the State Border and Smuggling of Persons under Art 350 para 3 and para 4, when applying the law and other legal regulations, the court significantly departed from the statutory resolve to prohibit sentencing to imprisonment of less than one year of those who, with intent to obtain gain for themselves or others, enable illegal crossing of the Serbian border or illegal stay or transit through Serbia, to a larger number of persons.
The court decision simply noted the existence of agreement between the juvenile offenders and the other person on taking over the group of migrants, without providing details of his identity, i.e. about his citizenship, gender, language that he spoke, on which territory he was at the time of commission of the criminal offence, whether this person facilitated the crossing of the state border, in which way he communicated with the minors, if he was aware of the fact that the persons with whom he arranged the transit to the suburb of Zeleznicka stanica were underage, whether he had undertaken to make the €100 payment or the smuggled migrants were supposed to pay the money to the juvenile offenders upon arrival to the appointed location, in keeping with the agreement.
Upon rendering the decision (a sentence is pronounced only in case of juvenile imprisonment Art 78 para 4 Law on Juvenile Delinquents and Criminal Law Protection of Underage Persons) the court of first instance (Higher Court in Vranje) relied on the evidence produced during the examination of the juvenile defendants by the police in the presence of their parents, representatives of the guardianship authority and court appointed defence councils appointed, i.e. on the admission given on this occasion. The second instance court (Appellate Court in Nis) also assessed the admission as being clear, complete and supported by testimonies of witnesses (police officers who caught the juvenile offenders in the act of committing the crime).
The first-instance decision was made eleven months after the detections of the criminal offence and instituting criminal proceedings against the two juveniles, and the second-instance decision (which confirmed the original decision) was made four months subsequent to the passing of the first-instance decision.
Criminal proceedings were conducted against two underage boys (aged 17.5) accused of having – with a prior arrangement with another person– taken over a group of ten migrants in the area of the village Miratovac (800 meters away from the Serbian-Macedonian border) at 8:00 p.m. on 26/02/2015. They had undertaken to escort the migrants across ploughed land and fields, going on foot, to the suburb of Zeleznicka stanica in Presevo (8 km away from the take-over point) and leave them there.
Having been spotted by a border police surveillance system operator, the two perpetrators and the group of ten migrants were intercepted by a patrol of the Border Police Department, the Regional Center of Border Police towards the Republic of Macedonia. Police officers apprehended the two minors along with two citizens of Afghanistan. The smuggled migrants were charged with the misdemeanour offence provided for by the Law on Protection of the State Border under Art 65 para 1 and the Law on Foreigners under Art 84 para 1.
In their defence, the smugglers denied that they had allowed the migrants’ transit with intent of obtaining material gains for themselves in the form of the promised financial compensation amounting to the total of €100, claiming that they only wished to help people whom they had met by accident, and that no money was found on them when they were searched. They justified avoiding road by the enhanced risk of traffic accidents in the night conditions. In an attempt to refute the existence of the criminal offence of Illegal Crossing of State Border and Smuggling of Persons as per Art 350 para 2 of the Criminal Code of the Republic of Serbia, the defence counsels pointed out that enabling transit as a mode of perpetration involved the use of motor vehicles.
Although the case was in the jurisdiction of the basic court (Art 22 para 1 Law on the Organization of Courts, Official Gazette of the RS, nos. 116/2008, 104/2009, 101/2010, 31/2011 – statute, 78/2011 - statute, 101/2011, 101/2013, 106/2015, 40/2015 - statute, 13/2016 and 108/2016, according to the provisions of the Criminal Code valid at the time, which provided for the criminal offence of Illegal Crossing of the State Border and Smuggling of Persons in Art 350 para 3 in relation to para 2, punishable by imprisonment of one to ten years) the fact that the defendants were underage persons (persons older than 14 and younger than 18) called for applying Art 3 of the Law of the Organization of Courts which stipulates that a higher court tries the cases in the first instance in criminal proceedings against underage perpetrators of criminal offences.
Although both accused had come of age by the time of passing the first-instance sentence, the court adhered to the provision under Art 40 para 2 of the Law on Underage Perpetrators of Criminal Offences and Criminal Procedural Protection of Underage Persons (Official Gazette of the RS no. 85/2005) which stipulates that an adult who had committed a criminal offence as a juvenile offender, and who is younger than 21 at the time of trial, can be subject to educational measure, and imposed the non-institutional educational measure of increased supervision the guardianship authority in the period of six months on both defendants (educational measure of increased supervision is imposed where the upbringing and development of underage persons require more lasting measures with adequate expert supervision and assistance, but there is no need to completely isolate the minors from their surroundings).
The court did not opt for sanctioning the underage offenders by imposing the sentence of (juvenile) prison terms although at the time of commission both perpetrators were older than 16 and younger than 18, and although the law stipulates that the criminal offence in question is punishable by imprisonment of more than five years (Art 28 Law on Minor Perpetrators of Criminal Offences and Criminal Procedure Protection of Underage Persons). The reason for this is that the court did not find that the third condition for imposing juvenile imprisonment was met in the specific case, i.e. that it would not be justified to impose corrective measure for reasons of high degree of culpability, nature and gravity of the criminal offence.
Since the provision of Art 57 para 2 of the Criminal Code of the Republic of Serbia rules out the possibility of mitigating the prescribed sanction to the perpetrators of the criminal offence of Illegal Crossing of the State Border and Smuggling of Persons under Art 350 para 3 and para 4, when applying the law and other legal regulations, the court significantly departed from the statutory resolve to prohibit sentencing to imprisonment of less than one year of those who, with intent to obtain gain for themselves or others, enable illegal crossing of the Serbian border or illegal stay or transit through Serbia, to a larger number of persons.
The court decision simply noted the existence of agreement between the juvenile offenders and the other person on taking over the group of migrants, without providing details of his identity, i.e. about his citizenship, gender, language that he spoke, on which territory he was at the time of commission of the criminal offence, whether this person facilitated the crossing of the state border, in which way he communicated with the minors, if he was aware of the fact that the persons with whom he arranged the transit to the suburb of Zeleznicka stanica were underage, whether he had undertaken to make the €100 payment or the smuggled migrants were supposed to pay the money to the juvenile offenders upon arrival to the appointed location, in keeping with the agreement.
Upon rendering the decision (a sentence is pronounced only in case of juvenile imprisonment Art 78 para 4 Law on Juvenile Delinquents and Criminal Law Protection of Underage Persons) the court of first instance (Higher Court in Vranje) relied on the evidence produced during the examination of the juvenile defendants by the police in the presence of their parents, representatives of the guardianship authority and court appointed defence councils appointed, i.e. on the admission given on this occasion. The second instance court (Appellate Court in Nis) also assessed the admission as being clear, complete and supported by testimonies of witnesses (police officers who caught the juvenile offenders in the act of committing the crime).
The first-instance decision was made eleven months after the detections of the criminal offence and instituting criminal proceedings against the two juveniles, and the second-instance decision (which confirmed the original decision) was made four months subsequent to the passing of the first-instance decision.