The Higher Court in Vranje, acting as an appellate court (a second-instance court) upon appeals of the defence counsels of the convicts S.A. and D.M., partly accepted the appeals and altered the decision of the Basic Court in Bujanovac by pronouncing the sentence of four months’ imprisonment for both convicts.  At the same time, the Court ruled that S. A. and D.M. would serve the term of imprisonment in the premises of their abode without the measures of electronic surveillance. The time that the convicts had spent in detention (from 08/12/2006 to 28/12/2006) was included into the pronounced sentence.

The appellate court found that the facts that 9 years and 3 months had passed from the arrest of one of the perpetrators in the act of commission on 07/12/2006 to the passing the first-instance decision of the Basic Court in Bujanovac on 27/03/2015 and that additional seven months had passed before the decision of the appellate court (29/10/2015), together with the facts that the convicts were family men, both fathers of three underaged children, of poor financial status, constituted the grounds for establishing the existence of particularly extenuating circumstances. The Court found that the only aggravating circumstance were the previous convictions of the convicts.

Acting upon the appeals of the counsels of the convicted S.A. and D.M., the appellate court held a session at which all documents of the case were discussed, together with the verdict against which the appeal was lodged, and based on the allegations in the appeal and the proposal of the Higher Public Prosecutor in Vranje ruled that the appeals which pointed out to major infractions of the provisions on criminal proceedings, wrongly and incompletely established facts, violations against the criminal code and the disputed decision on the criminal sanction were all unfounded because the trying court had correctly and completely established the facts of the case on the basis of the presented and properly evaluated evidence, including the defence of the convicts. In keeping with the aforementioned, the court established that the convicts, S.A. and D.M., based on the previous agreement, had secured transit through the Republic of Serbia for four citizens of Albania who had entered Serbia illegally.

It is important to point out that the court applied the provisions of the law that came into force in 2009 to the defendants who had committed the criminal offence in 2006, finding that the new statute treated the perpetrators more leniently, because the provisions of the Criminal Code valid at the time of commission of crime (2006) contained in Art 350 paragraph 2 envisaged the sentence of imprisonment ranging from three months to six years for the criminal offence of Illegal Crossing of State Border and Smuggling of Persons. Amending the Criminal Code in 2009, the legislator extended the minimum prescribed punishment for the said criminal offence from three to six months, but at the same time lowered the maximum sentence from six to five years. In accordance with the aforementioned, the Higher Court in Vranje, in the rationale of the decision on the term of imprisonment of four months for each convict specifically elaborated on the reasons for pronouncing the sentence shorter than the legal minimum of six months, i.e. for mitigating the punishment.

The contents of the decision is inconclusive as to the reasons why the Basic Public Prosecutor in Bujanovac or the Higher Public Prosecutor in Vranje did not opt for charging the accused S.A. and D.M. with the perpetration of the criminal offence of Illegal Crossing of State Border and Smuggling of Persons provided for in Art 350 paragraph 3 with reference to paragraph 2, especially because the accused D.M. - in the testimony which the court accepted as truthful - stated that he had, in agreement with S.A., transferred the total number of eight persons on two occasions. Since both the provisions of the Criminal Code of Serbia valid at the time of the perpetration of the criminal offence, as well as the ones valid after the amendments to the Criminal Code of Serbia in 2009 prescribed the sentence of imprisonment within the range between one and ten years (since 2009 there has been prohibition against mitigating the sentence for this type of criminal offence), this would imply new restrictions upon the judicial assessment or mitigation of the sentence.