The accused S.R. was deemed to be member of an organised criminal group dedicated to smuggling migrants. The organised criminal group facilitated the illegal entry, border with Macedonia and transit of migrants in Serbia with the purpose of obtaining profit. The accused S.R. had the role of driver and the person in charge of taking over the money received by Western Union. Authorities were able to confirm at least 3 migrant smuggling cases in which accused S.R. participated, with the following dates: (i) 31.8.2014 (ii) 9.9.2014, (iii) 12.10.2014,
In establishing the fact, authorities relied much on surveillance techniques, testimonial evidence (notably declarations of smuggled migrants and defendants) and reports and information gathered from other public institutions such as Ministry of Finance/ Administration for the Prevention of Money Laundering.
The defendant M.F and L.S., as the organizers, managed direct contacts with other members of organized criminal group with the purpose of organising illegal crossing of border between Macedonia and Serbia, and illegal transit within territory of the Republic of Serbia, with the intent to obtain financial benefit, in an amount 1200-880 euros per group of migrants. Organizers and members of the organized criminal group shared among themselves the acquired material gain, based on their individual role in each individual case. Accused S.R. received tasks directly from M.F. and L.S, and his role was to accept migrants in the area of municipality Presevo and to transport migrants to northern and central part of Republic of Serbia, and to receive money via “Western Union”. On the territory of Macedonia NN A was the contact point, with the task of “finding interesting migrants”, enabling their illegal crossing and sending money via “Western Union”. The facts related to the place, the time and the modus of entry on the territory were not subject of determination in Court's proceedings.
Macedonia del NorteSerbiaActing on the indictment of the Higher Prosecutor’s office for organized crime KT. O No.28/15 and on the basis of the evidence produced in the proceedings, the court has found the defendant guilty of the offence of illegal crossing of state border and smuggling of persons in co-perpetration, article 350 para.4 in relation to the para. 2, in relation with Article 33 and 61 para 1 of Criminal Code. Defendant was sentenced to imprisonment of 4 years and 6 months. Court took into consideration the decision of Basic Court in Kikinda 1.K. 68/14 from 16.06.2014. where he was sentenced to imprisonment of 4 months, and decision of Basic Court in Kikinda 1.K. 312/15 from 25.01.2016., where he was sentenced to imprisonment of 3 months. Additionally, a security measure of confiscation was imposed, including the obligation to pay 500 euros.
High Court in Belgrade
Special evidentiary actions such as interception and recording of communications conducted by telephone (Covert Interception of Communications), coverts surveillance, bank transaction reports, etc. played a crucial role in the establishment of the facts. There were thereby links to members operating within this organized criminal group and their specific roles were ascertained.
Elaborating the analysis of the evidences, the court showed in a sufficiently clear and transparent manner the link between evidences produced and its reasoning when evaluated the evidences. For example, on the basis of audio records of the intercepted communication between the defendant and other members of organized criminal group, the court upheld the defendant’s confession in regard to how the act of the offence was committed. Furthermore, the court found that the act of offence of the accused, according to his confession, can be confirmed, inter alia, from: findings of the dactylopic fingertips identification which showed that defendants fingertips were in the vehicle in which migrants were transported; from testimonies of smuggled migrants and from judgments of misdemeanour courts, in which smuggled migrants were declared guilty for illegal entry into the Serbian territory, according to Law on Foreigners of the Republic of Serbia.
It is important to note that the court, contrary to defendant’s claims, had undoubtable determination that defendant participated in organized criminal group on the basis of the evidences produced in the proceedings. Thus, the court had determined this circumstance from number of evidences produced during public hearing, but mostly from defence of, now convicted, other members of organized criminal group and from the content, amount and intensity of mutual telephone communication. Further, the defendant allegations that he was not familiar with the entire plan of operation and was not in direct contact with all other members of organized criminal group, the court regarded as proof that all members had certain roles in previously arranged plan of illegal transit of foreign citizens and that they undoubtedly had to be aware that the transit and the crossing of the state border could be carried out only if each of them undertake certain actions in order to achieve final goal.
When deciding on the type and duration/amount of imposed punishment the court did not further elaborate, nor did it reflect in it’s reasoning on the conditions in which a group of 45 and 55 illegal migrants was smuggled. Namely, on August 31, and October 12, 2014 the accused S.R. had picked up and drove a group of 45 and then 55 migrants, in the same van that, in regard to capacities, is not determined to carry that many passengers. However, the court had considered other aggravating (previous conviction) and mitigating (his sincere and correct his behaviour during the hearing) circumstances when deciding on the type of punishment, and most interesting, it noted that for this type of offence (illegal crossing of the state border and smuggling of migrants committed by organized criminal group) the prescribed incrimination is imprisonment in duration between 3 to 12 years, and thus its minimum penalty may not be mitigated.