Base de données Jurisprudence

Trafic illicite de migrants

Délit(s) / Infranction(s)

• Fait de permettre le séjour illégal
• Avantage financier ou autre avantage matériel (au profit du passeur)

Comportement connexe

• Le fait de se rendre complice d’infractions

1 K 852/2012

Résumé des faits

In the period from May 20, to May 24, 2012, in Subotica, the defendants, able to understand the significance of their acts, aware of their acting, whose execution they wanted, and in intent to obtain material benefit in amount of 200 EUR, enabled illegal stay in territory of the Republic of Serbia for citizens of Afghanistan. After being contacted and asked by Afghan citizens, if he could find accommodation for them for amount of 200 euros, the first accused K.R. took them to the house of the second accused A.H., where they were accommodated, although they knew that migrants did not have a residence permit in the territory of the Republic of Serbia and thus enabled them to stay illegally, until May 24, 2012 when they were discovered by PD in Subotica, Ministry of Interior of the Republic of Serbia.

Commentaire / Faits marquants

Although not so stated in the final order, it is obvious that the basis for a more serious qualification of the criminal offence, for which at the time of commission stipulated punishment, was the sentence of imprisonment ranging from one to ten years, is in connection with the fact that the defendants’ actions enabled illegal stay, i.e. smuggling of a large number of persons (the stand of court practice is that it refers to a group of five or more persons).

Having searched the flat of the accused A.H. where the police found illegal migrants, the defendants confessed the offence and revealed the important details for determining their intent to obtain material advantage by allowing the foreign citizens, for whom they knew that they did not have permission to reside in the Republic of Serbia, to illegally stay in the flat of the accused A.H. (from 20 May 2012 until 24 May 2012 when they were found during the search conducted by the police officers of the Ministry of Internal Affairs of the Republic of Serbia, the Police Department of Subotica, which is evident from the report on the search of the flat and enclosed forensic documentation). Although, while being interrogated by the police in the presence of their legal counsels they confessed the offence, both defendants A.H. and K.R., negated the commission of the offence, i.e. the intent to obtain material advantage by enabling the migrants to illegally stay in the H.A.’s flat.

While being interviewed as witnesses, both migrants found in the flat of the accused A.H., confirmed the changed statements of the defendants. The Court assessed the witnesses’ statements that the accused A.H. agreed to put up a sister, brother-in-law and their underage children on the request of one of the migrants as illogical since the defendants were living in poor conditions (barely earning to support themselves) and therefore it was unlikely that they accepted to provide accommodation and food to five total strangers. The Court concluded that the witnesses’ statements were given with the aim of protecting the persons who gave them accommodation. The Court established that the statements were not consistent with the statement of the defendant K.R. given during the interrogation in the presence of his counsel in which he described the circumstances of the committed offence in detail and which the Court accepted in its entirety (although the defendant K.R. changed his statement later).

While determining sentence to the accused A.H., the Court imposed the shortest possible sentence of imprisonment stipulated for this form of criminal offence – Illegal Crossing of State Border and Human Trafficking, i.e. the sentence of imprisonment for a period of one year because it established the existence of several extenuating circumstances (she had never been convicted before, she was unemployed mother of an underage child for whose support she was responsible). The Court did not establish any aggravating circumstances relating to the accused A.H. As far as the defendant K.R. is concerned, as mitigating circumstances the Court established the fact that he was unemployed father of seven underage children for whose support he was responsible. The defendant’s previous convictions were taken into account as aggravating circumstance. Accordingly, he was sentenced to imprisonment for a period of one year and three months. Since the Court did not specify that the time spent in custody would be deducted from the imposed prison term, it could be concluded that the Court did not order detention to the defendants A.H. and K.R.

The presiding judge made an official annotation in the written final order that the convicted A.H in accordance with Art 45, paragraph 5 of the Criminal Code of the Republic of Serbia would serve the sentence at the place of her residence.

The criminal procedure was over with the Court’s ruling of final order thirteen months after the offence had been disclosed and the charges pressed against A.H. and K.R. Taking into account that paying legal expenses would aggravate living conditions of the defendants, the court ruled that they would be excused from paying any fees. As for the officially established attorney’s fee, the Court decided that it would fall on the budget of the Republic of Serbia.

Date de la peine:
2013-06-24

Questions transversales

Responsabilité

Responsabilité pour

• Infraction consommée

Responsabilité fondée sur

• Intention criminelle

Responsabilité impliquant

• Auteur principal (d’une infraction)

enquête

Organismes concernés

• Basic Prosecutor's Office in Subotica and Ministry of Interior of the Republic of Serbia (PD in Subotica)

Techniques spéciales d'enquête

• Techniques spéciales d'enquête

Observations

Search and control of the apartment.
Migrants were found in the house by police officers from PD in Subotica.
 

Considérations liées à l'égalité des genres

Détails

• Questions relatives à la problématique femmes-hommes
• Auteur principal féminin

Informations sur la procédure

Système juridique:
Droit civil
Décision judiciaire la plus récente:
Tribunal de première instance
Type d'Action Juridique:
Criminel / pénal
Les accusés ont été jugés:
ensemble (procès unique)
 
 
Procédure #1:
  • Étape:
    premier jugement
  • Numéro de dossier officiel:
    1.K. 852/12
  • Date de décisions:
    Mon Jun 24 00:00:00 CEST 2013

    Tribunal

    Titre

    Osnovni sud u Subotici
    Basic Court of Subotica
     

    Location

  • Ville:
    Subotica
  • Province:
    Serbia
  • • Criminel / pénal

    Description

    Based on indictment of the Public Prosecutor's Office in Subotica no. Kt. 1124/2012 from June 14, 2012, that they have committed the criminal offence of Illegal Crossing of state Border and Smuggling of Person of Art. 350. para 3. in relation to paragraph 2 in accordance with Art. 33. Of CC of RS, the Basic Court of Subotica, based on the testimony of witness N.F., A.F., V.S., D.Z., D.J., and the testimony of police officers V.S., G.M., J.R., T.Z. who searched the apartment, found the accused guilty and sentenced them to prison.
     

    Résultat

  • Verdict:
    Coupable
  • Condamnations

    Condamnation

    Peine de prison:
    1 an
     

    Condamnation

    Peine de prison:
    1 an 3 Mois
     

    Migrants

    Migrant:
    2 persons
    Sexe:
    Homme
    Nationalité:
    Afghan
    Migrant:
    1 person
    Sexe:
    Femme
    Nationalité:
    Afghan
    Migrant:
    2 persons
    Sexe:
    Enfant
    Nationalité:
    Afghan

    Défendeurs / Répondants de la première instance

    Nombre d'autres accusés:
    2
    Prévenu:
    A.H.
    Sexe:
    Femme
    Nationalité:
    Serbe
    Ancienneté:
    47
    Né/naissance:
    1965
    Prévenu:
    K.R.
    Sexe:
    Homme
    Nationalité:
    Serbe
    Ancienneté:
    45
    Né/naissance:
    1967

    Accusations / Demandes d’indemnité / Décisions

    Prévenu:
    A.H.
    Charge:
    Illegal Crossing of State Border and Smuggling of Persons
    Statut:
    Criminal Code of the Republic of SerbiaArt. 350 Para. 3 in relation to Para. 2 and according to Art. 33
    Verdict:
    Guilty
    Peine de prison:
    1 an
    Prévenu:
    K.R.
    Charge:
    Illegal Crossing of State Border and Smuggling of Persons
    Statut:
    Criminal Code of the Republic of SerbiaArt. 350 Para. 3 in relation to para. 2 and according to Art. 33
    Verdict:
    Guilty
    Peine de prison:
    1 an 3 Mois

    Tribunal

    Basic Court of Subotica

    Pièces jointes/annexes