III ASSUMPTION AND TRANSFER OF CRIMINAL PROSECUTION
1. ASSUMPTION OF CRIMINAL PROSECUITON BY A FOREIGN STATE
1) Basic provisions
Assumption of criminal prosecution
Article 41
Under conditions provided for by this law the competent public prosecutor may assume criminal prosecution of a suspect or a defendant for the criminal offence falling under the jurisdiction of the requesting state.
Crime related documents
Article 42
The letter rogatory shall be accompanied by the original or a certified copy of crime related documents.
Preconditions to assumption of criminal prosecution
Article 43
In addition to the preconditions set forth in Article 7 of this law, criminal prosecution of a person may be assumed if one of the following preconditions is fulfilled:
1) the person concerned has domicile or resides in the Republic of Serbia;
2) the person concerned is serving the prison sentence in the Republic of Serbia;
2) Procedure regarding the letter rogatory
Submission of the letter rogatory and crime related documents to the public prosecutor
Article 44
The Ministry of Justice shall submit the letter rogatory and crime related documents to the competent public prosecutor in whose territory the person, in respect of whom criminal prosecution is requested to be assumed, has domicile or resides, is serving the prison sentence or to the public prosecutor participating in criminal proceedings conducted against the person concerned for the same offence or another crime.
The Ministry of Justice shall also submit to the competent public prosecutor the opinion on the fulfilment of the preconditions mentioned in Article 7, paragraph 1, subparagraphs 4 and 5 of this law.
Decision making on assumption of prosecution
Article 45
The competent public prosecutor may decide to assume prosecution if the preconditions provided for in Article 7 and Article 43 of this law are fulfilled.
Notification by the requesting party and the returning of crime related documents
Article 46
A decision of the competent public prosecutor regarding the request for assumption of criminal prosecution, as well as an enforceable decision made in the course of the assumed criminal proceedings, shall be communicated to the requesting party.
Should assumption of criminal prosecution be refused, a notification containing a rationale and documents supporting the letter rogatory shall be transmitted to the foreign state concerned.
Rules of assumed criminal proceedings
Article 47
Assumption of criminal proceedings shall be implemented in compliance with the legislation of the Republic of Serbia.
Without prejudice to the provision of paragraph 1 of this Article, the provisions relating to a trial in absentia shall not apply in the assumed criminal proceedings.
A procedural action taken in accordance with the legislation of the requesting state shall be equated with the procedural action taken in accordance with the legislation of the Republic of Serbia, except if it is contrary to basic principles of the national legal system and international standards on the protection of human rights and fundamental freedoms.
A criminal sanction pronounced in the assumed criminal proceeding may not be more severe than a criminal sanction that may be pronounced under the legislation of the requesting state.
Request for detention before submission of the letter rogatory
Article 48
In case of urgency, the competent authority of the requesting party may submit a request for detention before the submission of the letter rogatory.
The request shall include:
1) information required for the establishment of proper identity of the person subject of the request;
2) factual description and legal qualification of act;
3) statement of the foreign judicial authority regarding the existence of a court decision or an act of indictment from Article 15, paragraph 3 of this law;
4) statement indicating that a letter rogatory shall be submitted.
The request may be addressed to the competent public prosecutor or the police directly, through the Ministry of Justice, or through the International Criminal Police Organization (INTERPOL).
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.
2. TRANSFER OF CRIMINAL PROSECUTION TO A FOREIGN COUNTRY
Transfer of criminal prosecution
Article 49
Under conditions foreseen in this Law, a national judicial authority can transfer to a foreign country criminal prosecution of the person suspected or accused of a criminal offence that falls with the jurisdiction of a national court.
Crime related documents
Article 50
A letter rogatory shall be accompanied by original crime related documents or a certified copy thereof.
Conditions for transfer of criminal prosecution
Article 51
A national judicial authority may transfer criminal prosecution of a person to a requested party if the presumptions stipulated by Article 7 paragraph 1, sub-paragraph 4 and 5 of this law are met and one of the following conditions:
1) if a person is a resident of or has residence permit in the requested party;
2) if a person is serving a prison sentence or other criminal sanction which consists of deprivation of liberty;
3) if it is clear that it would be easier to conduct proceedings in the requested party.
If the party injured by the criminal offence is the Republic of Serbia, its citizen, or a legal entity with headquarters in its territory, consideration shall be given during the decision making process relating to transfer of criminal prosecution, to the possibility of securing the property request as well as other interests of the injured party.
Decision on transfer of prosecution
Article 52
A decision to institute the proceedings for the transfer of criminal prosecution shall be passed by:
1) The Public Prosecutor, prior to the initiation of criminal proceedings;
2) The Judge, upon the recommendation of the Public Prosecutor until the indictment comes into force;
3) The Pre-trial Chamber having obtained the opinion of the Public Prosecutor prior to the main hearing;
4) The Chamber, having obtained the opinion of the Public Prosecutor before the conclusion of the main hearing.
The suspect has the right to complain to the immediately higher prosecutor against the decision from paragraph 1, sub-paragraph 1 of this Article within a period of three days.
The accused and the public prosecutor have the right to appeal to a higher Court against the decision from paragraph 1, sub-paragraphs 2-4 within a period of three days.
Actions related to the letter rogatory
Article 53
A letter rogatory and crime related documents shall be transmitted to the requested party accompanied by a request for prompt information about the decision.
If the requested party fails to transmit information about its decision within a period of six months from the date of reception of the letter rogatory and documents from paragraph 1 of this Article, national judicial authorities shall proceed with criminal prosecution.
Consequences of initiation of proceedings for transfer of criminal prosecution
Article 54
After the decision referred to in Article 52, paragraph 1 of this Law, a national judicial authority shall undertake only such procedural activities that cannot be postponed.
A national judicial authority shall proceed with criminal prosecution, that is, with criminal proceedings:
1) if the requested party communicates a decision stating that it does not agree to assume the criminal prosecution;
2) if the requested party rescinds the decision to assume the criminal prosecution;
3) if a national judicial authority revises its decision on transfer of criminal prosecution before the requested party transmits a decision on the letter rogatory.
Request for detention before submission of letter rogatory
Article 55
In case of urgency, a national judicial authority may submit a request for detention to the requested party prior to the submission of a letter rogatory.
The request shall include:
1) information required for the establishment of proper identity of the person whose extradition shall be requested;
2) factual description and legal qualification of the act;
3) statement about the existence of a court decision or act of indictment referred to in Article 15, sub-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).
