Case Law Database

Smuggling of migrants

Offences

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

Mode

• land

K. br. 105/16

Fact Summary

On April 26, 2015, around 1.30 AM, at the “Santos” motel, in Presevo, and with the intent to obtain material benefit in an undetermined amount that will be paid after transportation to the final destination is finished, the defendant enabled for five foreign citizens transport/ illegal transit through the Republic of Serbia, for the purpose of their further departure to the EU countries – Germany. The illegal transit through the Republic of Serbia was enabled to a larger number of foreign nationals, all from Syria, who previously illegally crossed the border between Republic of Serbia and Republic of Macedonia. The defendant came to Presevo, at the motel "Santos", where foreign citizens were waiting. After foreign citizens entered in vehicle, he started a pre-arranged drive, towards bus station in Bujanovac. The plan was that foreign citizens from Bujanovac travel by bus to Belgrade for the purpose of further departure to EU countries - Germany. When he came to Bujanovac , around 1:45 AM, he stopped his vehicle on the highway and ordered foreign citizens to leave the vehicle, showing them the direction to the bus station in Bujanovac. At that moment, police patrols from the border police station Bujanovac came across, stopped the foreign nationals and the defendant, and prevented further transit and the illegal transport through Serbia.

Commentary and Significant Features

Proceeding the concrete case, both the prosecutor and court qualified it as a more serious form of the offence defined in Art 350, paragraph 2 thus declaring jurisdiction of the Basic Court in Bujanovac (at the time of the commission, stipulated punishment for this offence was imprisonment ranging from six months to five years).

If the competent authorities, when qualifying the offence committed by the defendant Z.A had taken into account the fact that the defendant by transporting five persons who had illegally entered the territory of the Republic of Serbia fulfilled the elements of the offence stipulated in Art 350, paragraph 3 in relation to paragraph 2 (since he had smuggled a large number of persons), then the Higher Public Prosecutor and the Higher Court would have had jurisdiction in the first instance proceedings.

Consequently, the defendant Z.A. could not have been sentenced to imprisonment for a period shorter than three years for thus qualified criminal offence of Illegal Crossing of State Border and Human Trafficking.

Having declared jurisdiction in this case, the Court imposed the sentence of imprisonment to the defendant Z.A. specifying that he would serve the sentence at the place of his residence without electronic surveillance. The Court also pointed out that while deciding on the form and amount of punishment, it took into account mitigating circumstances – the defendant was a senior juvenile who just turned 20, living in poor conditions and had not been convicted before.

Sentence Date:
2016-05-31

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Investigation Procedure

Involved Agencies

• Ministry of Interior of the Republic of Serbia
• Basic Prosecutors Office

Confiscation and Seizure

Seized Property

Vehicle "Volkswagen" type 2, registration plates VR xxxLZ, with start key and driving licence serial no. 2225497 ( name in driving licence : Z. A).
Objects are temporally confiscated.
 

Legal Basis

Objects were used for committing a crime
 

Comments

vehicle control; Police patrol -  Border police station in Bujanovac stopped the vehicle where accused and the migrants were located, preventing the accused from further illegal transiting and transporting migrants through Serbia.
 

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Court of 1st Instance
Type of Proceeding:
Criminal
 
Proceeding #1:
  • Stage:
    first trial
  • Official Case Reference:
    K. br. 105/16
  • Court

    Court Title

    Basic Court of Bujanovac
    Osnovni sud u Bujanovcu
     
    • Criminal

    Description

    Based on indictment of the Public Prosecutor's Office in Vranje, and confession of the defendant that he had enabled the illegal border crossing and smuggling of persons from Art. 350. para 3. in relation to paragraph 2 of the CC of RS, the Basic Court in Bujanovac sentenced the defendant based on the testimony of police officers M.S. and  N.N., and  testimony of the witnesses.

     

    Outcome

  • Verdict:
    Guilty
  • Migrants

    Migrant:
    5 persons
    Gender:
    Male
    Nationality:
    Syrian

    Defendants / Respondents in the first instance

    Defendant:
    Z.A.
    Gender:
    Male
    Nationality:
    Serbian
    Age:
    20
    Born:
    1995
    Not convicted. No other criminal proceedings are conducted for another criminal offense.

    Charges / Claims / Decisions

    Defendant:
    Z.A.
    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
    Verdict:
    Guilty
    Term of Imprisonment:
    1 year
    Security Measure – confiscation of objects vehicle Golf  type “2”

    Court

    Basic Court of Bujanovac

    Attachments