Database of Legislation

Corruption

    UNTOC Articles

    • Organized Crime Convention

    • Article 18: Mutual legal assistance
    • Article 17: Transfer of sentenced persons
    • Article 16: Extradition
    • Trafficking in Persons Protocol

    • Smuggling of Migrants Protocol

    • Firearms Protocol

       

      UNCAC article

      • Article 44. Extradition - Paragraph 13 of article 44
      • Article 46. Mutual legal assistance - Paragraph 12 of article 46
       

      Original Text

      IV. EXECUTION OF CRIMINAL JUDGEMENT

      1. EXECUTION OF FOREIGN CRIMINAL JUDGEMENT

      Subject of execution

      Article 56

      Criminal sanction ordered by a final decision of a competent court from the requesting party can be executed in the Republic of Serbia in accordance with the provisions of this law.

      Supporting documents

      Article 57

      A letter rogatory shall be accompanied by a certified transcript of the foreign court’s criminal judgement.

      Conditions for execution

      Article 58

      In addition to conditions listed in Article 7 of this law, criminal sanction issued by the competent court of the requesting party can be executed if one of the following conditions is met:

      1) if the convict is a citizen of Serbia;

      2) if the convict is a resident of or possesses a resident permit in the Republic of Serbia;

      3) if the convict is serving a criminal sanction in form of a prison sentence for a prior conviction.

      Court jurisdiction

      Article 59

      The court with a territorial jurisdiction according to the latest known address or residence of the convict, or according to the location of execution of the criminal sanction, is competent to conduct proceedings relating to letter rogatory.

      Request for detention prior to submission of the letter rogatory

      Article 60

      In case of urgency, a competent authority of the requesting party may submit a request for detention before the submission of a letter rogatory.

      The request shall include:

      1) information required to establish proper identity of the person subject of the request;

      2) factual description and legal qualification of the act;

      3) statement regarding the existence of a court decision;

      4) statement that a letter rogatory shall be submitted.

      The request may be addressed to the national judicial authority or the police directly, through the Ministry of Justice, or through the International Criminal Police Organization (INTERPOL), or in any other manner deemed appropriate.

      Subject to reciprocity, an issued international arrest warrant shall be deemed a request.

      Proceeding on the request will be in accordance and pursuant with the provisions of Article 25 and 26 paragraphs 1 to 4 of this law.

      Actions upon receiving the letter rogatory

      Article 61

      The Ministry of Justice shall forward to the competent court a letter rogatory and a certified transcript of the criminal judgement, as well as the opinion about the existence of conditions referred to in Article 7, paragraph 1, sub-paragraphs 4 and 5 and Article 63, sub-paragraph 4 of this law.

      The Pre-trial Chamber of the competent court shall decide on the letter rogatory at the session of the Chamber. The public prosecutor and the lawyer provided by the court ex officio shall be notified about the Chamber session.

      Prior to passing the decision, the court shall examine the convict about the fulfilment of conditions for execution.

      After the termination of the Chamber session, the court shall reach a decision whether to adopt or refuse the execution of the letter rogatory. During the decision making process, the court must observe the factual description of the criminal offence from the foreign criminal judgement.

      Judgement to recognise a foreign criminal judgement

      Article 62

      If the court accepts a letter rogatory, the court shall, by a decision to recognise a foreign criminal judgement, pronounce a criminal sanction in accordance with the criminal legislation of the Republic of Serbia. The issued sanction may not be stricter than the sanction pronounced in the foreign criminal judgement.

      In its judgement from Paragraph 1 of this Article, the court shall include the decision to accept a letter rogatory, name of the competent court from the requesting party, the complete text of the foreign criminal judgement; and the court’s criminal sanction. In the explanation of the judgement, the court shall present reasons that guided it towards the issued criminal sanction.

      The public prosecutor, the convict, and the defence attorney have the right to appeal the decision from paragraph 1 of this Article.

      The execution of the judgement from paragraph 1 of this Article, as well as the decision regarding parole, shall be conducted in accordance with the law of the Republic of Serbia.

      Decision to refuse the execution of the letter rogatory

      Article 63

      A decision to refuse the execution of the letter rogatory shall be passed when:

      1) conditions required for the execution of a foreign criminal judgement are not present;

      2) if it can be concluded that the person was convicted because of his/her race, religion, nationality, or political convictions;

      3) if the judgement was reached in the absence of the convicted person;

      4) if there was no fair trial.

      Legal means

      Article 64

      The court of the requesting party that issued a criminal judgement executed in the Republic of Serbia shall decide on extraordinary legal remedies filed against the judgement.

      Competent authorities of the requesting party and competent authorities of the Republic of Serba shall decide on commuting the adjudicated sentence, on amnesty, and pardon.

      The Ministry of Justice shall, without delay, notify the court of the requesting party about the decision of the national court or other state authority that leads to the discontinuation of the execution of the foreign criminal judgement.

      2. EXECUTION OF A FOREIGN CRIMINAL JUDGEMENT WITH TRANSFER

      Execution with transfer

      Article 65

      A citizen of the Republic of Serbia who is serving a criminal prison sanction in a foreign country may be transferred to the Republic of Serbia for the purpose of serving the sanction.

      Minister with the Justice Portfolio shall grant permission for the transfer of the convict. Agreement shall not be granted if, at the moment of submission of request, the convict has less than six months until the completion of his/her prison sanction.

      Rule of speciality

      Article 66

      If the convict is transferred to the Republic of Serbia, he/she can not be detained, criminally prosecuted, or subjected to execution of a criminal sanction for the criminal offence committed prior to his/her transfer, except for the offence for which he/she was transferred.

      Provision from paragraph 1 of this Article shall not be applied:

      1) if the convict explicitly waives the guarantee from paragraph 1 of this Article;

      2) if the convict, though given the opportunity, fails to leave the territory of the

      Republic of Serbia within 45 days from the day of parole or completed prison sentence, or if he/she returns to the territory of the Republic of Serbia.

      Supporting documents

      Article 67

      A letter rogatory shall be accompanied by a certified transcript of the foreign criminal judgement and a statement of consent to transfer provided by the convict.

      Conditions for transfer

      Article 68

      In addition to conditions referred to in Article 7 of this Law, transfer of the convict to the Republic of Serbia for the purpose of execution of criminal judgement may be performed if one of the following conditions is present:

      1) the execution of criminal sanction in the Republic of Serbia shall improve the chances for social rehabilitation of the convict;

      2) the convict consents to a transfer.

      Procedure

      Article 69

      Provisions of Article 61, paragraphs 1, 2, and 4, and Articles 62-64 of this law shall be applicable accordingly to the execution of foreign criminal judgement with transfer.

      A decision allowing the execution of foreign criminal judgement with transfer shall be accompanied by a decision providing permission to transfer the convict.

      3. EXECUTION OF NATIONAL CIMINAL JUDGEMENT

      Subject of execution

      Article 70

      Execution of a criminal sanction issued by a national court may be requested from a foreign country, in accordance with the provisions contained in this law.

      Supporting documents

      Article 71

      A letter rogatory shall be accompanied by the original or a certified copy of the national criminal judgement with a finality clause.

      Conditions for the submission of request

      Article 72

      A national court may request the execution of a criminal judgement in a foreign country if one of the following conditions is satisfied:

      1) if the convict is a foreign national;

      2) if the convict has a residence or a resident permit in a foreign country;

      3) if the convict is serving, based on a previous judgement, a criminal sanction or other sanction that involves a prison sentence in a foreign country.

      Decision on transfer of execution of a national criminal judgement

      Article 73

      A decision to instigate proceedings for execution of a national criminal judgement abroad shall be passed by the Pre-trial Chamber of the court that issued a first instance judgement, upon the acquisition of the opinion of the public prosecutor.

      Request for detention prior to submission of the letter rogatory

      Article 74

      In case of urgency, the competent authority of the requesting party may submit a request for detention before the submission of a letter rogatory.

      The request shall include:

      1) information required for to establish proper identity of the person subject of the request;

      2) factual description and legal qualification of the offence;

      3) statement regarding the existence of a court decision or an act of indictment from Article 15, paragraph 3 of this law;

      4) statement that a letter rogatory shall be submitted.

      The request may be addressed to the competent authority of the requested party directly, through the Ministry of Justice, or through the International Criminal Police Organization (INTERPOL).

      Action upon receipt of the letter rogatory

      Article 75

      A letter rogatory and the accompanying documents shall be forwarded to the requested party along with a request for prompt information about the related decision.

      If the convicted person is at large, a foreign country may be asked to take the person into custody.

      Consequences of acceptance of execution of a national criminal judgement

      Article 76

      If the requested country accepts the execution of a national criminal judgement, the execution of the criminal sanction in the Republic of Serbia shall be terminated.

      If the requesting party does not assume the execution of a criminal judgment or the convict manages to avoid execution of criminal sanctions in the requested country, a competent court in the Republic of Serbia shall proceed with the execution of judgement.

      The Ministry of Justice shall notify the foreign authority about any and all court decisions or decisions of other state authorities that may influence the execution of the national criminal judgement.

      4. EXECUTION OF A NATIONAL CRIMINAL JUDGEMENT WITH TRANSFER

      Subject of execution

      Article 77

      A convict who is serving a criminal sanction in the Republic of Serbia may be transferred to the country of its origin, domicile or residence for the purpose of serving the sanction in accordance with provisions of this Law.

      Information about the possibility of transfer

      Article 78

      The court that issued the first instance judgement, or the management of the correctional facility in which the convict is serving a criminal sanction, shall inform the convict about the possibility of execution of a national criminal judgement with transfer to a country of the person’s origin or residence.

      Request for transfer

      Article 79

      A convict may submit a request for execution of a national criminal judgement with transfer to the country of the person’s origin or residence to the management of the correctional facility or to the court referred to in Article 78 of this Law.

      Request from paragraph 1 of this Article may be submitted by the convict’s country of origin or residence as well, with the approval of the convict.

      Decisions regarding requests for transfer

      Article 80

      Having obtained the opinion of the public prosecutor, the Pre-trial Chamber of the court that provided the first instance judgement shall decide upon the request for transfer.

      The court shall decide to refuse the execution of the request for transfer if the convict has, at the moment of the submission of request, less than six months remaining until the completion of his/her prison sanction.

      If it does not reach a decision from paragraph 2 of this Article, the court shall decide to either accept or refuse to execute the request for transfer. The decision is subject to appeal.

      Actions related to decision to accept the request

      Article 81

      The final decision to accept the request for transfer, the national criminal judgement, the text of the corresponding provision of the Criminal Code, the convict’s transfer request, and the report of the correctional facility on the amount of time the convict spent serving a prison sanction shall be submitted to the Ministry of Justice. The Ministry of Justice shall forward the said documents to the foreign authority.

      Execution of decision to transfer a convict

      Article 82

      On the basis of the final decision of the foreign authority to accept the transfer of the convict, the Ministry of Justice shall issue an order to the management of the correctional facility, referred to in Article 78 of this Law, to hand the convict over to police authorities. They, in turn, shall escort the convict to a foreign country.

      The order referred to in paragraph 1 of this Article shall be accompanied by a decision to accept the request for transfer.

       
       

      Cross-Cutting Issues

      • International Cooperation

        • Extradition

          • Legal Basis

            • • UNCAC
          • Dual Criminality Requirement

            • Based on the conduct underlying the offence
          • Details

            • • Extension to accessory offences
              • Offences not complying with the minimum penalty requirement
              • Extradition for the purpose of enforcement of foreign sentence
              • International cooperation involving civil and administrative measures related to corruption
        • Mutual Legal Assistance

          • Legal Basis

            • • UNCAC
              • Treaty or other agreement or arrangement (multilateral, regional or bilateral)
          • Assistance Types

            • • On asset recovery cases
              • Assistance that does not involve coercive measures, in absence of dual criminality