Criminal procedure was conducted before the Higher Court in Vranje whose jurisdiction was primarily based on the fact that the person indicted for the perpetration of the criminal offence of Illegal Crossing of State Border and Smuggling of Persons was a juvenile offender A.F. (a 15-year-old youth). The court acted in compliance with the provision from Art 23 para 1 item 3 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) which stipulates that a higher court should try the cases in the first instance when proceedings are instituted against juvenile offenders. Due to the fact that the perpetrator had facilitated the crossing of the state border for a larger number of persons (ten), the perpetrated offence was qualified as aggravated (under Art 350 para 3 in relation to para 2 RS CC), for which the provisions of the Criminal Code applicable at the time of commission stipulated the sentence of imprisonment ranging from one to ten years.

The contents of the decision closing the first-instance case and the appeal filed by the defendant’s defence counsel remain inconclusive as to whether the intent of A.F. to obtain some gain for himself or another by transferring the migrants across the state border was established in the course of the proceedings and how it was established, which is a major issue of relevance for establishing the very existence of the criminal offence.

The defendant A.F. pointed out in his statement that on 15/1/2016, after his school was finished for the day, he had taken a taxi from Presevo to Miratovac and then set off on foot towards the the former Yugoslav Republic of Macedonia; he claimed that he had crossed the state border illegally, because he wanted to visit his relatives living in the place of Kumanovo in the former Yugoslav Republic of Macedonia, but could not find his passport at home. He also stated that he tried to get a taxi in the settlement of Lojane (the territory of the former Yugoslav Republic of Macedonia) in order to reach Kumanovo but, having waited for an hour, gave up on this idea and decided to return to the Republic of Serbia the same way he had arrived there. Around 5 p.m., while walking back, still in the territory of the former Yugoslav Republic of Macedonia, he encountered a group of foreigners who asked him for assistance in crossing the border. The defendant A.F. stated that, although the migrants had offered him €20 per person in compensation for this favour, he refused to be paid because he himself had to return to the Republic of Serbia illegally and he wanted to help the migrants. In support of his claim that he neither asked for nor received any money, the defendant pointed out that no money was found on him when he was searched by the police.

On the other hand, the three migrants apprehended together with the juvenile defendant A.F. in the territory of the Republic of Serbia, while being examined as witnesses in criminal proceedings (in the proceedings for misdemeanours, the said persons were accused and examined, and the ruling of the misdemeanours’ court were used as evidence in the criminal proceedings) against the juvenile defendant A.F., that A.F. had approached them and offered to help them cross the border for a compensation of €20 per person, but that they did not give him the agreed sum of money because they were intercepted by the Serbian police.

The Appellate Court in Nis ordered rehearing of the case against A.F. before the Higher Court in Vranje because it remained unclear why the trying court ruled that A.F. committed the offence with intent to obtain material gain for himself although it had previously assessed the defendant’s admission, in which he denied demanding money from the migrants, as being sincere. The Higher Court in Vranje issued a new decision, explaining that the minor, while giving his testimony at a later stage of the proceedings (upon trial), expanded his original admission, given in the course of defence during the preliminary proceedings, in the manner stated in the pronounced criminal sanction – the education measure of increased supervision by parents for a period of minimum six months to the maximum of two years.

The fact is that the first instance court could, when establishing the elements of the criminal offence, rely on the part of the statement in which the juvenile defendant stated that he had agreed, even without asking for money, to accompany a group of ten migrants across the border, after which they would reach a refugee camp. Namely, it is not necessary to establish the offender’s intent to obtain some material gain for himself in order to prove the commission of the offence under Art 350 para 2.  This offence exists if someone takes the actions which enable another illegal crossing of the Serbian border or illegal stay or transit through Serbia with intent to quire a benefit for himself or another. Hence it is not necessary to establish the perpetrator’s intent to acquire a benefit for himself nor does the court have to establish that it was a material benefit.  According to a commentary on the Criminal Code (Prof. Stojanovic, LLD, 2016, p. 973), the term ‘a benefit’ should be understood broader than just referring to property. The offence from Art 350 para 2 would have been substantiated even if  A.F. had only acted upon the migrants’ request to accompany him, i.e. to follow him and cross the state border in violation of the statutory regulations.