LAWON MISDEMEANOURS("Off. Herald of the RS", Nos. 65/2013, 13/2016, 98/2016 - decision of the CC, 91/2019, 91/2019 - other law and 112/2022 - decision of the CC) |
SUBSTANTIVE LEGAL PROVISIONS
BASIC PROVISIONS
Article 1
This Law shall regulate: the notion of a misdemeanour, conditions for misdemeanour liability, conditions for prescribing and enforcement of misdemeanour sanctions, the system of sanctions, misdemeanour proceedings, issuing of penalty notice, the procedure of decision enforcement, register of sanctions and register of unpaid fines and other monetary amounts.
Article 2
A misdemeanour shall be an unlawful act stipulated as a misdemeanour by a law or other regulation of a competent authority for which a misdemeanour sanction is prescribed.
Legality in Prescribing Misdemeanours and Misdemeanour Sanctions
Article 3
No one may be punished for a misdemeanour or may other misdemeanour sanctions may be enforced against him/her, if such an act, prior to being committed, was not stipulated, by a law or by a regulation based on a law, as a misdemeanour, and for which the type and degree of sanction by which the misdemeanour offender may be sanctioned has not been prescribed by a law or another regulation based on a law.
Article 4
Misdemeanours can be prescribed by a law or a regulation i.e. by a decision of the Assembly of the Autonomous Province, municipal assembly, a city assembly and by the Assembly of the City of Belgrade.
Authorities authorized to pass the regulations on misdemeanours may prescribe only the sanctions provided for in this Law and within the limits determined by this Law.
The authorities authorized to pass the regulations referred to in paragraph 1 of this Law may prescribe misdemeanour sanctions only for the infringements of regulations that they pass within their respective competencies laid down by the Constitution and a law, under conditions determined by this Law.
The authority authorized to prescribe misdemeanour sanctions may not transfer this right to other authorities.
Purpose of Misdemeanour Sanctions
Article 5
Sanctions prescribed by this Law can be imposed for a misdemeanour.
The purpose of prescribing, imposing and enforcement of misdemeanour sanctions is that the citizens abide the legal system and that misdemeanours are not committed in the future.
Applicability of Regulations in respect to Time
Article 6
A law, i.e. a regulation that was in force at the time when the misdemeanour was committed shall apply to the misdemeanour offender.
If, following a committed misdemeanour, a regulation has been amended once or several times, the regulation that is the most lenient for the offender shall be applied.
Applicability of Regulations in respect to Territory
Article 7
Provisions on misdemeanours shall apply in the territory of the Republic of Serbia if they are prescribed by a law or a regulation, i.e. in the territory of territorial autonomy units and local self-government units if they are prescribed by a decision of the Assembly of the Autonomous Province, municipal assembly, city assembly or the Assembly of the City of Belgrade.
An offender shall be sanctioned for a misdemeanour stipulated by the regulations of the Republic of Serbia if the misdemeanour has been committed in the territory of the Republic of Serbia or if it has been committed on board of a domestic ship or aircraft while being outside of the territory of the Republic of Serbia.
A misdemeanour offender shall be sanctioned for a misdemeanour committed abroad only where that is laid down by a law or a regulation.
In the case referred to in paragraph 2 of this Article, under the condition of reciprocity, prosecution for a misdemeanour may be assigned to a foreign state in which the misdemeanour offender who is a foreign citizen has his/her domicile.
Prohibition of Repeated Trial in the Same Legal Matter
Article 8
No one can be tried again and a misdemeanour sanction cannot be imposed again for the misdemeanour on which a final decision has been passed in compliance with the law.
The prohibition referred to in paragraph 1 of this Article shall not preclude a repeated misdemeanour proceeding in compliance with this Law.
No proceeding can be initiated for a misdemeanour against a misdemeanour offender who has been finally pronounced as guilty in a criminal proceeding for a criminal offence which includes the characteristics of such misdemeanour, and where such proceeding has been initiated or is in progress, it may not continue or be completed.
No proceeding can be initiated for a misdemeanour against a misdemeanour offender who has been finally pronounced as guilty in an economic offence proceeding for an economic offence which includes the characteristics of such misdemeanour, and where such proceeding has been initiated or is in progress, it may not continue or be completed.
Article 9
No misdemeanour proceeding shall be conducted or a misdemeanour sanction shall be pronounced against persons enjoying diplomatic immunity, in cases where there is reciprocity.
COMMITTING A MISDEMEANOUR
The Act of Committing a Misdemeanour
Article 10
A misdemeanour can be committed by action or non-action.
A misdemeanour shall be committed by non-action where the omission to undertake an action is provided for by a regulation as a misdemeanour.
The Time of Committing a Misdemeanour
Article 11
A misdemeanour shall be committed at the time when the offender acted or was obliged to act, irrespective of the time when the consequence has occurred.
The Place of Committing a Misdemeanour
Article 12
A misdemeanour shall be committed both in the place where the offender acted or was obliged to act and in the place where the consequence occurred.
Article 13
There shall be no misdemeanour if the action prescribed ас misdemeanour was committed as legitimate self-defence.
Legitimate self-defence shall be the defence that is indispensable for the offender to repel a concurrent unlawful attack off his/her goods or off the goods of another.
The offender who exceeded the limits of legitimate self-defence may be punished more leniently. Where such limits were exceeded under some particularly extenuating circumstances, the offender may be relieved from the penalty.
Article 14
There shall be no misdemeanour where an act prescribed as a misdemeanour was committed in extreme necessity.
Extreme necessity shall exist where a misdemeanour was committed so that the offender could remove from his goods or from the goods of another a concurrent unprovoked danger which could not have been eliminated in any other manner and if the harm thus done is not greater than the harm that was threatening.
The offender that exceeded the limits of extreme necessity can be punished more leniently. Where such limits were exceeded under some particularly extenuating circumstances, the offender may be relieved from the penalty.
Article 15
There shall be no misdemeanour where the offender acted under the influence of an irresistible force.
The offender that committed a misdemeanour under the influence of a force that could have been resisted or under the influence of a threat may be punished more leniently, providing that the force and threat cannot be considered as unprovoked danger within the meaning of Article 14 of this Law.
Article 16
An offender shall be punished for an attempted misdemeanour only where that is specifically prescribed.
MISDEMEANOUR LIABILITY
Article 17
A natural person, a sole trader, a legal person and a responsible person with a legal person may be liable for a misdemeanour.
The Republic of Serbia, territorial autonomies and local self-government units and their bodies cannot be liable for a misdemeanour, but it can be legally prescribed that a responsible person in a state authority, authority of the territorial autonomy or authority of the local self- government unit may be liable for a misdemeanour under the conditions referred to in Article 18, paragraph 1 of this Law.
Article 18
A natural person shall be liable for a misdemeanour for which the fault is attributable to him/her because he/she was mentally competent and the misdemeanour was committed with premeditation or negligently, despite being aware or being obliged to be aware and could have been aware that such an act is prohibited.
Unless specified otherwise by this Law, the provision from paragraph 1 of this Article shall additionally apply to a sole trader, responsible persons with a legal person, state authority, an authority of the territorial autonomy and a local self-government unit or with a sole trader.
Mental Incompetence, Unprovoked Incompetence and Significantly Reduced Competence
Article 19
A mentally incompetent offender shall not be responsible for a misdemeanour.
A mentally incompetent offender shall be the offender who could not comprehend the significance of his/her act or could not control his/her actions due to a mental illness, temporary mental aberration, developmental disorder or another serious mental disturbance.
The punishment may be made more lenient for a misdemeanour offender whose capacity to understand the significance of his/her act or the capacity to control his/her actions was significantly reduced due to a state referred to in paragraph 2 of this Article (the significantly reduced competence).
A misdemeanour offender shall not be considered as incompetent if he/she led himself/herself, through the use of alcohol or in some other manner, in a state in which he/she could not comprehend the significance of his act or could not control his/her actions, if at the time when he/she led himself/herself to such a state was aware or was obliged to be and could have been aware that in such a state he/she could commit a misdemeanour.
Article 20
Negligence of the offender shall be sufficient for liability to exist providing that the regulation on misdemeanour does not specify that the misdemeanour shall be punished for only if committed with premeditation.
A misdemeanour is committed negligently where the offender was aware that a prohibited consequence could arise from his action or non-action, but he carelessly maintained that he could prevent it or that it would not occur, or where he was not aware of the possibility of occurrence of the prohibited consequence, despite being obliged to be aware and could have been aware of such a possibility, judging by the circumstances and his own personal characteristics.
A misdemeanour is committed with premeditation when the offender was aware of his act and wanted its execution or when he was aware that due to his action or non-action a prohibited consequence could occur and he accepted its occurrence.
Article 21
An offender who, at the time of the misdemeanour committed, made a mistake of fact that could not have been removed, shall not be liable for misdemeanour.
A mistake of fact shall be irremovable where the offender was not obliged to avoid and could not have avoided the mistake of fact in respect of an actual circumstance that constitutes the notion of a misdemeanour or in respect of an actual circumstance that, had it actually exited, would make the offender’s act permissible.
Article 22
An offender who, at the time of the misdemeanour committed, made a mistake of law that could not have been removed, shall not be liable for misdemeanour.
A mistake of law shall be irremovable where the offender was not obliged to and could not have been aware that such an act was prohibited.
If the mistake was removable, the offender may be punished more leniently for the misdemeanour committed.
Article 23
If several persons, by participating in an act of committing a misdemeanour, jointly commit a misdemeanour or, by realizing a joint decision, have significantly contributed to committing a misdemeanour by some other act, each of them shall be sanctioned with the punishment prescribed for such misdemeanour.
Article 24
Whoever incites another with premeditation to commit a misdemeanour shall be punished as if he/she has committed it himself/herself.
Article 25
Whoever aids another with premeditation in committing a misdemeanour shall be punished as if he/she has committed it himself/herself.
Limits of Liability of the Accomplices
Article 26
An instigator and an accessory shall be liable within the limits of their premeditation, while the co-offender shall be liable for the misdemeanour within the limits of his/her premeditation or negligence.
In regard to the nature of the misdemeanour, the manner and circumstances under which assistance was provided, the accessory can be punished more leniently.
Article 27
A legal person shall be liable for a misdemeanour committed by an action or omission of due supervision of the management body or a responsible person or by an action of another person that, at the time when the misdemeanour was committed, was authorized to act on behalf of the legal person.
A legal person shall additionally be liable for a misdemeanour when:
1) The management body passes an unlawful decision or an order whereby committing misdemeanour is enabled or when the responsible person orders a person to commit a misdemeanour;
2) A natural person commits a misdemeanour due to an omission by the responsible person to supervise or control him/her.
Under conditions referred to in paragraph 2 of this Article, a legal person may additionally be liable for a misdemeanour when:
1) The misdemeanour proceeding against the responsible person has been discontinued or when such person has been relieved from liability in compliance with the provisions of Article 250 of this Law;
2) There are legal or actual obstacles for determining liability of the responsible person with the legal person or where it cannot be determined who the responsible person is.
The liability of a natural or responsible person with a legal person for a committed misdemeanour, criminal offence or economic offence shall not preclude the legal person’s liability for the misdemeanour.
Article 28
If the existence of a legal person ends during a misdemeanour proceeding, its liability for the misdemeanour shall cease, except in the case where there is a legal successor, in which case the legal successor shall be liable for the misdemeanour.
Where the legal person ceases to exist following a finally concluded misdemeanour proceeding, the sanction imposed shall be enforced against the legal successor.
A legal person that is in bankruptcy may be liable for a misdemeanour committed prior to the commencement or during the bankruptcy procedure, but no sanction can be imposed on it, but only a protective measure that includes seizing of an object and confiscation of proceeds.
Article 29
A sole trader shall be liable for a misdemeanour committed in the course of his/her business activity.
Liability of a Responsible Person
Article 30
A responsible person, within the meaning of this Law, shall be considered to be the person with the legal person entrusted with certain tasks which pertain to management, operation or work process, as well as the person which, in a state authority, authority of a territorial autonomy and in a local self-government unit, performs certain duties.
The responsible person, who acted based on orders of another responsible person or a management body and if he/she took all the actions that he/she was obliged to take based on the law, other regulation or act in order to prevent the commitment of a misdemeanour, shall not be responsible for the misdemeanour.
Liability of the responsible person shall not cease on account of the termination of his/her employment with the legal person, state authority or an authority of the local self-government unit, or due to the occurrence of impossibility to pronounce the legal person responsible due to its termination of existence.
Responsibility of Foreign Persons
Article 31
A foreign natural person, foreign legal person and responsible person shall be liable for misdemeanours equally as a domestic natural, legal and responsible person.
A foreign legal person and responsible person shall be punished for a misdemeanour committed in the territory of the Republic of Serbia if the legal person has a business unit or a representative office in the Republic of Serbia or if the misdemeanour is committed by means of its means of transport, unless stipulated otherwise by the regulation governing the misdemeanour.
MISDEMEANOUR SANCTIONS
Article 32
Misdemeanour sanctions shall be:
1) Penalties;
2) Penalty points;
3) Warning;
4) Protective measures;
5) Corrective measures.
Article 33
A prison sentence, fine and community service can be imposed for a misdemeanour.
Within the general purpose of misdemeanour sanctions (Article 5, paragraph 2), the purpose of punishment shall be to express public reprimand to the offender because of the misdemeanour committed and to deter him/her and all other persons from committing misdemeanours in the future.
Method of Prescribing Penalties
Article 34
Both a prison sentence and a fine can be prescribed for a single misdemeanour and both can be imposed simultaneously.
Only a fine can be prescribed for a misdemeanour of a legal person.
Competence for Prescribing Penalties
Article 35
A prison sentence can only be prescribed by a law.
A fine and community service can be prescribed by a law or a regulation i.e. by a decision of the Assembly of the Autonomous Province, municipal assembly, city assembly or the Assembly of the City of Belgrade.
Article 36
A prison sentence may only be imposed as a principal penalty.
A fine and community service can be imposed both as principal and as a secondary penalty.
Where a fine and a prison sentence are prescribed alternatively, the prison sentence shall only be imposed for a misdemeanour whereby graver consequences have been caused or for misdemeanours indicative of a higher degree of the offender’s guilt in compliance with Article 18, paragraph 1 of this Law.
Article 37
A prison sentence cannot be prescribed for a term shorter than one or longer than sixty days.
A prison sentence may not be imposed against a pregnant woman, following the first trimester of pregnancy, or against a mother until her child turns one year of age, and if the child was stillborn or died after delivery until expiry of six months from the date of such delivery.
Article 38
Community service shall be unpaid work benefitting the society that is not performed under coercion, which does not insult human dignity and does not yield profit.
Community service may not last less than 20 hours or longer than 360 hours.
On the occasion of imposing community service, the court shall bear in mind the type of misdemeanour committed, the age, physical capacity and ability to work, mental characteristics, education, preferences and other specific circumstances relating to the personality of the offender.
If the person punished fails to perform a part or all the hours comprising the imposed community service penalty, the court shall replace this penalty with a prison sentence, by determining one day of imprisonment for the beginning of each eight hours’ period of work of community service.
Article 39
A fine can be prescribed by a law or a regulation to range:
1) From RSD 5,000 to RSD 150,000 for a natural person or a responsible person;
2) From RSD 50,000 to RSD 2,000,000 for a legal person;
3) From RSD 10,000 to RSD 500,000 for a sole trader.
By way of exception from the provisions of paragraph 1 of this Article, a fine can be prescribed as a fixed amount for a natural person and a responsible person from RSD 1,000 to RSD 50,000, for a sole trader from RSD 5,000 to RSD 150,000 and for a legal person from RSD 10,000 to RSD 300,000.
The decisions of an Assembly of an Autonomous Province, municipal assembly, city assembly or the Assembly of the City of Belgrade can only prescribe fines in fixed amounts and specifically, from the minimum to a half of the maximum fixed amount prescribed in paragraph 2 of this Article.
By way of exception from the provisions of paragraph 1 of this Article, for the misdemeanours in the field of public revenues, public information, customs, foreign trade and foreign currency operations, environment, transactions in goods and services and transactions in securities, fines proportionate to the amount of damage incurred or unsettled liabilities, the value of goods or another object comprising the scope of the misdemeanour can be prescribed by the law, which, but not exceeding the twentyfold amount of these values, providing that the fivefold amount of the maximum fines imposable pursuant to the provision of paragraph 1 of this Article is not exceeded.
Time Limit for Payment of a Fine
Article 40
A time limit for payment of a fine shall be specified in the judgement and in the penalty notice, which may not exceed 15 days from the date of finality of the judgement, and where the appeal has been filed, from the date of delivery of the second instance sentence i.e. eight days from the date of serving of the penalty notice.
The court may, by means of a resolution, permit payment of a fine in instalments in some duly justified cases, where it shall specify the method and time limit for payment, which may not exceed six months, on condition that the costs of the proceedings have been paid.
No appeal shall be permitted against the resolution referred to in paragraph 2 of this Article.
If the person punished which has been permitted to pay the fine in instalments fails to regularly effectuate such payments, the court may revoke its decision on payment in instalments by means of a resolution.
No appeal shall be permitted against the resolution referred to in paragraph 4 of this Article.
Substitution for an Unpaid Fine
Article 41
A fine that the punished natural person, sole trader or responsible person with a legal person has failed to settle (in its entirety or in a part thereof) can be substituted by the court with a prison sentence by determining one day of imprisonment per each starting amount of RSD 1,000, where such prison sentence may not last shorter than one day or longer than sixty days.
Where a prison sentence has been imposed in addition to the fine against the person punished, the imprisonment substituting the unpaid fine and the imposed prison sentence may not last longer than ninety days.
Where the court assesses it to be justified, in view of the gravity of the misdemeanour, the unpaid fine amount and financial standing of the sentenced person, the court may, instead of the prison sentence, determine that the unpaid fine is to be substituted by community service, where eight hours of work shall substitute one day of imprisonment, i.e. RSD 1,000 of the fine and such work may not exceed 360 hours.
The portion of unpaid fine which could not be substituted by the prison sentence or community service shall be collected by enforcement.
If, following the court decision on substitution of an unpaid fine, the sentenced natural person pays the fine, the prison sentence or the community service shall not be executed. Where the execution of a sentence has commenced, and the person punished pays the remaining amount of the fine imposed, the execution of the prison sentence and community service shall be discontinued.
No substitution of an unpaid fine with a prison sentence can be imposed for fines imposed against minors and legal persons.
An unpaid fine imposed against a minor shall be collected through enforcement against the property of the minor, his/her parent or another person in charge of taking care of him/her.
Provisions of the law prescribing execution of criminal sanctions shall apply mutatis mutandis to substitution of an unpaid fine.
Determining the Amount of Penalty
Article 42
A penalty for a misdemeanour shall be determined within the limits prescribed for such misdemeanour, while taking into account all the circumstances impacting the penalty to be more severe or lighter, and in particular: the gravity and the consequences of the misdemeanour, circumstances under which the misdemeanour was committed, degree of the offender’s responsibility, previous convictions, personal circumstances of the offender and comportment of the offender following the committed misdemeanour.
No misdemeanour sanction previously imposed against an offender can be taken into account as an aggravating circumstance where more than four years have passed from the date of the finality of the decision until the date of handing down of the new decision.
In determining the fine amount, the financial standing of the offender shall additionally be taken into account.
Article 43
If, while determining a penalty, it is established that no graver consequences have been caused by the misdemeanour, and where there are mitigating circumstances indicating that even a lighter penalty may achieve the purpose of the punishment, the prescribed penalty may be mitigated by optionally:
1) Imposing a punishment below the minimum measure of a penalty prescribed for such misdemeanour, which may not however be below the minimum statutory measure for such type of penalty;
2) Imposing a fine or community service instead of the prescribed prison sentence, but not below the minimum statutory measure for such type of penalty;
3) Instead of the prescribed prison sentence and a fine, imposing only one of those penalties.
Article 44
The court may pronounce a misdemeanour offender to be responsible and release him/her from punishment under conditions referred to in Articles 13 and 14 of this Law.
The court may also release from punishment an offender of a misdemeanour for which a fine is prescribed if, after having committed such misdemeanour and prior to finding out that he/she became the accused, he/she has removed the consequences of the act or has compensated the damage caused by the misdemeanour.
Additionally, the court may release from punishment an offender of a misdemeanour committed negligently where the consequences of the act are affecting the offender so severely that the imposition of penalty in such a case would obviously not suit the purpose of punishment.
Article 45
If by one act or by several acts an offender has committed a number of misdemeanours for which he/she is simultaneously tried, firstly a penalty shall be determined for each of those misdemeanours, and secondly a joint penalty shall be imposed for all these misdemeanours.
The joint penalty shall be imposed according to the following rules:
1) If for all the multiplied misdemeanours a prison sentence is determined, a joint prison sentence shall be imposed, which may not exceed ninety days;
2) If for all the multiplied misdemeanours a fine is determined, a joint fine shall be imposed which shall be the sum of the fines determined, providing that the joint fine may not be higher than the double amount of the highest fine stipulated by this Law;
3) If for all the multiplied misdemeanours community service is determined, a single punishment of community service shall be imposed which may not be longer than 360 hours;
4) If a prison sentence is determined for the multiplied misdemeanours and a fine for other misdemeanours, a joint prison sentence and a joint fine shall be imposed in the manner prescribed in items 1) and 2) of this paragraph.
Misdemeanour of Extended Duration
Article 46
A misdemeanour of extended duration shall exist where the offender, with a single premeditation, commits a number of identical, coinciding misdemeanours, which comprise a whole due to two of the following circumstances at least: the identical aggrieved party, same kind of the misdemeanour subject matter, exploitation of the same situation or lasting relationship, uniformity of place or space where the misdemeanour is committed.
Provision of paragraph 1 of this Article may apply only to misdemeanours whose nature allows for their consolidation.
A misdemeanour whereby damage is incurred to intangible goods of a natural or legal person may be committed in extended duration only where it has been committed against the same person.
A misdemeanour which the final court decision does not include in the misdemeanour of extended duration shall represent a separate misdemeanour, i.e. it shall be included in a separate misdemeanour of extended duration.
The misdemeanour referred to in paragraph 1 of this Article A penalty can be sanctioned by a stricter penalty than the prescribed one, but it may not exceed the double measure of the prescribed penalty or the maximum measure of the penalty provided for in Article 45, paragraph 2 of this Law governing the determination of the penalties in case of multiplied misdemeanours.
Taking Jail Time into Account while Sentencing
Article 47
The time during which an offender of the misdemeanour has been detained in jail prior to handing down of the judgement shall be calculated into the imposed penalty.
Any detention lasting longer than 12 and shorter than 24 shall be calculated as one day of imprisonment i.e. as RSD 1,000 of a fine i.e. eight hours of community service.
Article 48
Penalty points ranging from 1 to 25 can be prescribed by law for misdemeanours against road traffic safety.
The sanction referred to in paragraph 1 of this Article shall be imposed with the penalty or warning under the conditions stipulated by this Law unless other law prescribes otherwise.
Supplemental obligations can be imposed against the offender in addition to the sanction referred to in paragraph 1 of this Law with the aim of educating the driver or monitoring his/her behaviour in traffic. The types of supplemental obligations and the conditions for the imposition thereof shall be laid down by a separate law.
Penalty points can be imposed against a driver who is in the possession of a driver’s licence issued in the Republic of Serbia at the time the misdemeanour is committed, or against a driver who has been disqualified from driving a motor-driven vehicle by means of a final decision.
Article 49
If penalty points have been determined for multiplied misdemeanours, joint penalty points shall be imposed, which shall correspond to the sum of all the individually determined penal points, which may not exceed 25 points.
Article 50
Instead of a fine for a misdemeanour, a warning may be issued if there are circumstances mitigating to a significant degree the offender’s responsibility, so that it can be expected that he/she shall avoid committing misdemeanours in the future even without imposition of a penalty.
A warning can also be issued if the misdemeanour is a consequence of a failure to comply with a prescribed obligation or where damage is incurred through the misdemeanour, and the offender has fulfilled the obligation prescribed i.e. removed or compensated damage incurred following the institution of the proceedings and prior to handing down of a judgement.
Article 51
Within the general purpose of the misdemeanour sanctions (Article 5, paragraph 2), the purpose of a protective measure shall be to eliminate conditions that are enabling or instigating the offender to commit a new misdemeanour.
A protective measure can be laid down by a law and by a regulation.
Article 52
The following protective measures can be laid down for misdemeanours:
1) Seizure of objects;
2) Ban on performing certain activities;
3) Ban for a legal person on performing certain activities;
4) Ban for a responsible person on performing certain tasks;
5) Disqualification from driving a motor-driven vehicle;
6) Mandatory medical treatment of alcohol and psychoactive substances addicts;
7) Mandatory psychiatric treatment;
8) Order restraining access to the aggrieved party, facilities or place where the misdemeanour was committed;
9) Ban on attending certain sporting events;
10) Publication of a judgement;
11) Removal of foreigners from the territory of the Republic of Serbia;
12) Seizure of animals and ban on keeping animals;
13) Ban on participating in public procurement procedures.
The protective measures of seizing objects, mandatory treatment of alcohol and psychoactive substances addicts, mandatory psychiatric treatment, order restraining access to the aggrieved party, facilities or place of misdemeanour committing and removal of foreigners from the territory of the Republic of Serbia can be imposed under conditions prescribed by this Law even where they are not laid down by the regulation prescribing the misdemeanour.
The protective measures of the ban on performing certain activities and publication of a judgement may not be imposed against a minor.
Imposition of Protective measures
Article 53
When there are conditions for imposition of protective measures laid down by this Law or by another law, one or a number of protective measures can be imposed against the misdemeanour offender.
The protective measures shall be imposed in addition to the imposed penalty, warning or corrective measure.
By way of exception from paragraph 2 of this Article, the protective measures can be imposed independently, if that such an option has been prescribed.
Article 54
The objects that were used in or intended for committing misdemeanours or those that originated from committing misdemeanours can be seized from the misdemeanour offender.
The court that handed down the judgement shall determine, in compliance with separate regulations, whether the seized object shall be destroyed, sold or handed over to an interested authority, i.e. organisation.
If the offender has arbitrarily alienated or destroyed the objects or has otherwise thwarted their seizure, the judgement shall determine that he/she shall pay the monetary amount corresponding to the value of the objects.
A regulation stipulating a misdemeanour may provide for mandatory imposition of a protective measure of seizure of objects.
The objects referred to in paragraph 1 of this Article may also be seized when the misdemeanour proceedings do not result in a judgement whereby the defendant is pronounced guilty if the interests of general security or moral reasons demand so, as well as in other cases laid down by a separate law. A separate resolution shall be handed down thereon against which the defendant shall be entitled to file an appeal.
The seizure of objects shall not interfere with the right of the third parties to seek damages from the offender.
Ban on Performing Certain Activities
Article 55
The ban on performing certain activities shall consist of a temporary ban on the misdemeanour offender from performing a certain business or other activity for which permission is regularly issued by a competent authority or which is regularly entered in a relevant register.
If the regulation stipulating the misdemeanour has not specifically laid down conditions for imposing a protective measure referred to in paragraph 1 of this Article, the measure can be imposed if the misdemeanour offender abuses the activity to commit the misdemeanour or if it can be reasonably expected that any further performance of such activity would present a threat to human life or health or to other legally protected interests.
The ban on performing a certain activity can be imposed for a term of six months up to three years, counting from the date of the enforceability of the judgement.
The time spent serving a prison sentence shall not be calculated into the term of the measure imposed.
Ban on a Legal Person to Perform Certain Activities
Article 56
A ban on a legal person to performing certain activity shall comprise of a prohibition on manufacturing certain products or conducting certain tasks in the fields of transactions in goods, finances and services, or of a prohibition on performing other specified tasks.
If the regulation laying down the misdemeanour has not specifically stipulated conditions for imposition of a protective measure, the measure can be imposed if further performance of a certain activity would present a threat to human lives or health, detriment to business or financial operation of other legal persons or to the economy as a whole.
The ban on performing certain activity can be imposed on a legal person for a term of six months to three years, counting from the date of enforceability of judgement.
Ban on Responsible Person to Perform Certain Tasks
Article 57
A ban on a responsible person to perform certain tasks shall comprise of a prohibition to a misdemeanour offender on performing tasks that he/she was performing at the time when the misdemeanour was committed or alternatively on performing a management duty in business or financial operations, or on performing a specified type of tasks or all or certain duties relating to disposal, use, management or handling of entrusted assets.
If the regulation laying down the misdemeanour does not specify otherwise, the ban on performing certain tasks shall be imposed on a responsible person when the responsible person abuses his job for the purpose of committing the misdemeanour.
A ban on performing certain tasks can be imposed on a responsible person for a term of six months to three years, counting from the date of enforceability of judgement.
The time spent serving a prison sentence shall not be computed in the duration of the measure imposed.
Disqualification from Driving a Motor-Driven Vehicle
Article 58
The disqualification from driving a motor-driven vehicle shall comprise of a temporary ban to the offender from driving a motor-driven vehicle of a certain type or category.
If the regulation laying down the misdemeanour has not specifically stipulated conditions for imposing a protective measure, the measure can be imposed on the misdemeanour offender who committed a misdemeanour against traffic safety where there is a threat that he/she shall, when driving a motor-driven vehicle, commit the misdemeanour again or because his/her previous infringement of these regulations is indicative of the danger of his/her driving the motor-driven vehicle of a certain type or category.
The protective measure referred to in paragraph 1 of this Article can be imposed for a term of 30 days to one year.
The time spent serving a prison sentence shall not be computed in the measure’s term.
Mandatory Treatment of an Alcohol and Psychoactive Substances Addict
Article 59
Mandatory treatment of an alcohol and psychoactive substances addict can be imposed on a person who committed a misdemeanour due to his/her addiction on continuous use of alcohol or psychoactive substances and concerning whom there is a threat that due to such addiction he/she shall continue to commit misdemeanours.
Prior to imposing the measure referred to in paragraph 1 of this Article, the court shall acquire the opinion from an expert witness, i.e. from the competent medical organisation.
When imposing the measure referred to in paragraph 1 of this Article, mandatory treatment in a relevant medical or another specialized institution shall be ordered to the misdemeanour offender. If the misdemeanour offender refuses the treatment without some duly justified reasons, the measure shall be carried out through enforcement.
The maximum duration of the protective measure referred to in paragraph 1 of this Article may not exceed one year and implementation of the measure imposed shall be discontinued even before the expiry of the term specified in the judgement where the medical organisation determines that the treatment is completed.
Mandatory Psychiatric Treatment
Article 60
The court shall impose mandatory psychiatric treatment on the misdemeanour offender who committed a misdemeanour in a state of insanity, if it determines that there is a serious threat that the offender shall repeat the misdemeanour and where his/her psychiatric treatment is necessary for the purpose of eliminating the threat.
Mandatory psychiatric treatment shall be the only misdemeanour sanction that can be imposed independently on an insane misdemeanour offender.
Under conditions referred to in paragraph 1 of this Article, the court may impose mandatory psychiatric treatment on a misdemeanour offender whose sanity was significantly reduced, if he/she is imposed with a fine, community service, warning or is released from punishment.
Mandatory psychiatric treatment shall be of an outpatient type and it shall last until there is a need for the treatment, but not longer than one year.
For the purpose of a more successful treatment, it can be imposed that the treatment is to be carried out periodically in a medical institution, provided that the continuous treatment in an institution may not last longer than 15 days, and that it can be undertaken two times a year at the maximum.
If in the case referred to in paragraphs 1 and 3 of this Article the offender fails to subject himself/herself to the outpatient treatment or if he/she arbitrarily abandons it, the court may rule that the protective measure is to be carried out in a medical institution under the conditions referred to in paragraph 4 of this Article.
Restraint on Access to the Aggrieved Party, Facilities or Place of Committing Misdemeanour
Article 61
The restraint on access to the aggrieved party, facilities or place of committing misdemeanour shall be imposed for the purpose of preventing the offender from committing the misdemeanour again or from continuing to endanger the aggrieved party.
The measure referred to in paragraph 1 of this Article shall be imposable upon a written proposal by the person that filed the motion to institute the misdemeanour proceedings, or upon an oral request of the aggrieved party made while being heard by the court during the misdemeanour proceedings.
The court decision ordering the restraint of access shall include: the time period of its enforcement, information on persons who the offender is restrained to access, an indication of the facilities to which access shall be restrained and at what time, the places or locations in which access by the offender shall be restrained.
The imposed measure of restraining access to the aggrieved party shall include the measure ordering the restraint of access to the joint apartment or household for a period during which the restraining order is in effect.
The protective measure of restraining access can be imposed for a term of up to one year, counting from the enforceability of judgement.
The aggrieved party, a police directorate in charge of enforcement of the measure and the competent guardianship authority if the measure pertains to restraining the offender from accessing children, his/her spouse or family members shall be notified of the court decision whereby the restraining order is imposed.
Violation of Restraining of Access to the Aggrieved Party, Facilities or Place of Committing Misdemeanour
Article 62
The convicted on whom a restraining order has been imposed by means of a final judgement and who approaches the aggrieved party, facilities or place of committing misdemeanour during the term of the measure or makes a contact with the aggrieved party in the prohibited manner or at a prohibited time shall be sanctioned in accordance with the regulation laying down the misdemeanour for which this measure has been imposed.
Ban on Attending Certain Sporting Events
Article 63
The ban on attending certain sporting events shall comprise of the obligation of the misdemeanour offender to, immediately prior to the time of commencement of certain sporting events, report in person to an official in the regional police directorate, i.e. police station in the territory in which the misdemeanour offender happens to be and to remain in their premises during the sporting event.
The protective measure referred to in paragraph 1 of this Article can be imposed for duration of one to eight years.
The time spent serving a prison sentence shall not be computed in the term of the measure imposed.
The convicted on whom the measure of ban on attending certain sporting events has been imposed by means of a final judgement, who fails to comply with the obligation referred to in paragraph 1 of this Article, shall be punished by imprisonment from thirty to sixty days.
The court shall notify the regional police directorate according to the place of domicile of the convicted person of the imposed protective measure referred to in paragraph 1 of this Article.
The regulation laying down the misdemeanour may stipulate mandatory imposition of the protective measure of ban on attending certain sporting events.
Article 64
The court shall impose the protective measure of publication of judgement where it deems that it would be useful to inform the general public of the judgement, and in particular if the publication of judgement would contribute to eliminating the threat for human lives or health or to protect the security of transactions in goods and services or the economy.
Subject to the significance of the misdemeanour, the court shall decide whether the judgement will be published in press, on radio or television or in a number of the specified mass media, as well as whether the reasoning of the judgement will be published in its entirety or as an excerpt, by taking care that the method of publication provides that all those in whose interest is the publication of such judgement are duly informed.
A judgement can be published no later than 30 days from the date of the finality of the judgement.
The regulation laying down the misdemeanour may provide for mandatory imposition of a protective measure of publication of the judgement.
The costs of publication of judgement shall be borne by the convicted.
Removal of a Foreigner from the Territory of the Republic of Serbia
Article 65
Removal of a foreigner from the territory of the Republic of Serbia can be imposed on a foreigner who has committed a misdemeanour due to which his/her further stay in the country is undesired.
The protective measure referred to in paragraph 1 of this Article can be imposed for the duration ranging from six months to five years.
The term of the imposed measure shall run from the date of the finality of the judgement, and the time spent serving a prison sentence shall not be computed in the term of the measure.
A separate law can prescribe conditions under which the enforcement of the protective measure referred to in paragraph 1 of this Article can be delayed for a definite period of time.
Seizing Animals and Ban on Keeping Animals
Article 66
Seizing animals from the owner or keeper who has been pronounced responsible for a misdemeanour in the field of protection of animal wellbeing shall be imposed for the purpose of preventing the misdemeanour offender from repeating the misdemeanour, i.e. from continuing jeopardizing the wellbeing of the animals in some other manner.
The court that has passed the judgement shall determine, in compliance with the separate regulations, whether the seized animal shall be handed over to a competent animal shelter or to an interested organization.
The regulation whereby the misdemeanour is laid down may stipulate mandatory imposition of the protective measure of seizing animals.
The ban on keeping one, several i.e. all types of animals on a person who has been pronounced responsible for a misdemeanour in the field of animal welfare protection shall be imposed for the purpose of preventing the offender from repeating the misdemeanour, i.e. from continuing to jeopardize the wellbeing of animals in some other manner.
This measure can be imposed for a term ranging from one to three years, counting from the enforceability of the judgement.
The person on whom the ban on keeping animals is imposed by means of a final judgement, who acts contrary to the ban referred to in paragraph 1 of this Article, shall be sanctioned under the regulation laying down the misdemeanour for which this measure has been imposed.
The regulation laying down the misdemeanour may provide for the mandatory imposition of the ban on keeping all, i.e. certain types of animals as permanent protective measures.
Ban on Participating in Public Procurement Procedures
Article 66a
Ban on participating in public procurement procedures shall consist of a temporary ban to the misdemeanour offender to participate in public procurement procedures.
Protective measure referred to in paragraph 1 of this Article may last up to two years counting from the finality of the judgement.
Multiplicity of Protective measures
Article 67
Where one judgement for a number of misdemeanours has established a number of protective measures of the same type which are prescribed to be imposed for a specified duration, a joint protective measure shall be imposed equal to the sum of terms of individually determined protective measures, provided that it may not exceed the maximum statutory limit for the duration of such type of protective measure.
CONFISCATION OF PROCEEDS FROM MISDEMEANOUR
The Grounds for Confiscation of Proceeds
Article 68
No one shall keep the proceeds acquired from a misdemeanour.
The proceeds referred to in paragraph 1 of this Article shall be confiscated by means a judgement whereby the misdemeanour and the liability for it has been determined, under conditions laid down by this Law.
Method of Confiscation of Proceeds
Article 69
Money, securities, valuables and any other proceeds acquired through committing a misdemeanour shall be confiscated from the misdemeanour offender. Where such confiscation is not possible, the offender shall be obligated to pay the monetary amount corresponding to the proceeds acquired.
If the convicted fails to pay the monetary amount referred to in paragraph 1 of this Article within the specified time limit, the payment shall be executed through enforcement.
Any proceeds acquired through committing a misdemeanour can be confiscated from the person to whom it has been transferred without any compensation or with a compensation that does not correspond to the actual value thereof.
Protection of the Aggrieved Party
Article 70
If the property claim of the aggrieved party has been awarded in misdemeanour proceedings, confiscation of proceeds shall be imposed only where such proceeds exceed the awarded property claim.
PROVISIONS ON MINORS
Liability of a Minor for a Misdemeanour
Article 71
No misdemeanour proceedings can be conducted against a minor who at the time when he/she committed the misdemeanour did not turn fourteen years of age (a child).
Provisions of this Chapter shall apply to the minors aged from fourteen to eighteen years of age who commit a misdemeanour and other provisions of this Law only where they are not contrary to these provisions.
Liability of Parents, Adoptive Parents, Guardians or Foster Parents and the Minor
Article 72
When a child has committed a misdemeanour due to an omission to supervise him/her by the parents, adoptive parents, guardians i.e. foster parents, where these persons were capable of exercising such supervision, the parents, adoptive parent, guardian, i.e. foster parent of the child shall be punished for the misdemeanour as if they have committed it themselves.
A law may prescribe that the parents, adoptive parent, guardian i.e. a foster parent of a minor aged from fourteen and up to eighteen years of age shall also be liable for a misdemeanour committed by the minor if the misdemeanour committed has been a consequence of an omission to exercise due supervision over the minor, where they were capable of exercising such supervision.
In addition to the parent, adoptive parent, guardian, i.e. foster parent, a law may prescribe that other persons whose legal obligation was to exercise supervision over a minor who has committed a misdemeanour shall also be liable for the minor’s misdemeanour.
Misdemeanour Sanctions against Minors
Article 73
Only corrective measures can be imposed against a minor who, at the time of committing the misdemeanour, has reached the age of fourteen and who has not turned sixteen years of age (a younger minor).
A corrective measure, penalty points or a penalty can be imposed on a minor who, at the time of committing the misdemeanour has reached the age of sixteen and has not reached eighteen years of age (an older minor).
Where it is necessary due to the nature of the misdemeanour, a protective measure can be imposed on a minor in addition to the corrective measure or penalty.
Only the court may impose a corrective measure, a fine, penalty points, a sentence of juvenile detention and a protective measure on a minor.
Article 74
The following corrective measures can be imposed on minors:
1) Measures of warning and direction: a reprimand and special obligations;
2) Measures of increased supervision.
The measures of warning and direction shall be imposed where such measures are necessary to exert influence on the minor’s personality and on his/her behaviour and where they are sufficient to achieve the purpose of these measures.
The measures of increased supervision shall be imposed where, for education and development of the minor, some longer-term corrective measures should be taken in addition to the adequate professional supervision and assistance.
Article 75
A reprimand shall be imposed on a minor with respect to whom it is not necessary to take some longer-term corrective measures, and in particular where it can be concluded from his/her attitude towards the misdemeanour committed and his/her readiness not to commit misdemeanours in the future that the corrective measure imposed will achieve the purpose of this measure.
When imposing a reprimand to a minor, it shall be pointed out to him/her that his/her actions were socially inacceptable, and that if he/she commits a misdemeanour again, there shall be an option to impose another corrective measure.
Article 76
If the court assesses that it is necessary to exert influence on the minor and his/her behaviour through relevant requests and prohibitions, it may impose on a minor one or a number of special obligations, and specifically:
1) To apologize to the aggrieved party;
2) Within his/her abilities, to repair or compensate the damage that he/she has caused;
3) Not to frequent certain places, and to avoid the company of certain persons who are exerting negative influence on him/her;
4) To undergo rehabilitation and treatment for addiction to alcohol and other psychoactive substances;
5) To be referred to a competent institution for training of drivers for the purpose of learning or testing his/her knowledge of traffic regulations;
6) To join the pro bono work of humanitarian organisations or the initiatives of ecological, social or local significance;
7) To join the work of athletic and other clubs in the school under pedagogical supervision of the teachers.
The obligations referred to in paragraph 1, items 2) through 7) of this Article may not last longer than six months and must not disrupt the minor’s schooling or employment.
Within the obligation referred to in paragraph 1, item 2) of this Article, the court shall determine the amount, forms and method of damage reparation, where the personal work of the minor on repairing the damage may last up to 20 hours at the maximum over a period of one month, and must be scheduled in such a manner that it does not interfere with the regular schooling or employment of the minor.
On the occasion of imposing of the special obligations, the court shall warn the minor that due to any failure to fulfil the obligations determined - they can be replaced by another obligation or a corrective measure.
Fulfilling of special obligations shall be conducted under supervision of the authority in charge of guardianship that shall notify the court of the fulfilment of the obligations.
Measures of Increased Supervision
Article 77
The corrective measures of increased supervision shall be imposed where it is necessary to enforce a longer-term corrective measure with respect to the minor.
The court shall impose the measure of increased supervision by the parents, adoptive parents or guardians where the parents, adoptive parent or a guardian have omitted to provide the necessary care for and supervision over the minor and where they are capable of exercising such supervision and where they can reasonably be expected to do so.
Where the parents, adoptive parent or a guardian cannot exercise increased supervision over the minor, increased supervision by the guardianship authority shall be imposed on the minor.
The measures of increased supervision referred to in paragraphs 2 and 3 of this Article may last three months at the minimum and one year at the maximum.
Conditions for Imposition of Corrective measures
Article 78
On the occasion of imposing the corrective measures the following shall be taken into consideration: the age of the minor, the level of his/her mental development, the mental characteristics and motives for which he/she has committed the misdemeanour, his/her previous upbringing, the environment and the conditions under which he/she has lived, the gravity of the misdemeanour, whether a corrective measure had already been imposed on him/her, as well as any other circumstances that are impacting the choice of a corrective measure by which the purpose of correction shall be achieved the best.
For the purpose of determining the circumstances referred to in paragraph 1 of this Article, the court shall hear the parents and the adoptive parent of the minor, his/her guardian and other persons that may provide the necessary information.
Discontinuation of Implementation and Modification of the Decision on Corrective Measure
Article 79
Where following handing down of the decision whereby the corrective measure is imposed, circumstances arise that did not exist at the time when the decision was handed down or which were not known then, and where they would have impacted the decision, the implementation of the measure imposed can be discontinued or the imposed measure can be substituted by another corrective measure.
Re-imposition of Corrective measures
Article 80
Where more than six months has passed from the finality of a decision whereby some of the corrective measures or special obligations is imposed and the implementation thereof has not begun, the court shall deliberate again on the need to enforce the measure or the special obligation imposed, or to substitute it by another corrective measure or special obligation.
The court shall maintain a special record for every minor on who a corrective measure has been imposed.
Article 81
A penalty can be imposed on an older minor only where at the time when he/she committed the misdemeanour, in view of his/her mental development, he/she could understand the significance of his/her act and control his/her actions and where due to the graver consequences of the misdemeanour or due to a higher degree of guilt, it would not be justified to apply a corrective measure.
A juvenile detention penalty can be exceptionally imposed on an older minor provided that the nature of the misdemeanour, the minor’s personal characteristic and behaviour must be born in mind.
The term of the juvenile detention penalty imposed on an older minor shall not exceed 30 days.
A fine imposed on a minor who committed a misdemeanour cannot be substituted by the penalty of juvenile detention, but it shall instead be collected by enforcement, in compliance with the law.
The misdemeanour court shall notify the guardianship authority competent according to the domicile of the minor of the corrective measure or penalty imposed on the minor who committed the misdemeanour.
Imposition of Corrective Measure or Penalty for Multiplicity of Misdemeanours
Article 82
If a minor has committed a number of concurrent misdemeanours, the court shall, in choosing among the corrective measures, assess all the misdemeanours and impose one measure only.
If the court determines a penalty for one of the misdemeanours and corrective measures for other misdemeanours, it shall impose the penalty only.
The court shall act in the manner referred to in paragraph 2 of this Article where it is determined following the imposed corrective measure, i.e. penalty that the minor has committed a misdemeanour prior to or following the imposition thereof.
Article 83
If a minor who committed a misdemeanour has become of the legal age prior to or during the misdemeanour proceeding, provisions on minors shall apply, except for the provisions on corrective measures.
If a minor has become of the legal age following handing down of the decision whereby a corrective measure is imposed, the implementation of such measure shall be discontinued.
STATUTE OF LIMITATIONS
Prescriptive Period for Institution and Conducting of Misdemeanour Proceedings
Article 84
A misdemeanour proceeding cannot be instituted or conducted if one year has elapsed from the date when the misdemeanour was committed.
Prescriptive period on instituting and conducting of a misdemeanour proceeding shall not run during the period when institution and conducting of the proceeding may not be undertaken by the law.
Prescriptive period shall be suspended by means of any procedural action of the court of relevant jurisdiction undertaken for the purpose of conducting the misdemeanour proceeding.
Following each suspension, the prescriptive period shall start to run again.
By way of exception from the provisions of paragraph 1 of this Article, for the misdemeanours in the field of customs, foreign trade, foreign currency operations, public revenues and finances, public procurements, transactions in goods and services, environment, prevention of corruption, and air traffic, a longer prescriptive period can be prescribed by a separate law.
The prescriptive period referred to in paragraph 5 of this Article cannot be longer than five years.
In any case, the institution and conducting of a misdemeanour proceedings shall become time-barred upon the expiry of the time period which equals the double prescriptive period required by law.
Provisions of paragraphs 1 through 4 and paragraph 7 of this Article shall apply mutatis mutandis to the statute of limitations on instituting and conducting of the procedure for issuing a penalty notice.
Prescriptive Period on Enforcement of a Penalty and Protective measure
Article 85
A penalty and a protective measure imposed cannot be enforced where one year has elapsed from the date of finality of the judgement.
The prescriptive period for enforcement of penalty and protective measure shall commence to run from the date of finality of the judgement whereby the penalty i.e. the protective measure is imposed.
The prescriptive period for enforcement of penalty and protective measure shall not run during the time when the enforcement cannot be undertaken by the law.
The prescriptive period shall be interrupted by means of each procedural action of the competent authority undertaken for the purpose of enforcing the penalty i.e. the protective measure.
Following each interruption, the prescriptive period shall start anew.
In any case, the enforcement of penalty i.e. protective measure shall become time-barred following the expiry of the double time period required by the law for enforcement of the penalty i.e. the protective measure.
MISDEMEANOUR PROCEEDINGS
THE BASIC PRINCIPLES OF THE PROCEEDINGS
Article 86
This Law lays down the rules whereby it is ensured that no one innocent is punished and that a misdemeanour sanction is imposed on the responsible misdemeanour offender under conditions provided for by this Law and on the basis of a legally conducted proceedings.
Legality in Imposition of Misdemeanour Sanctions
Article 87**
A misdemeanour sanction can be imposed only by the court of relevant jurisdiction that is conducting the misdemeanour proceedings under this Law.
By way of exception from paragraph 1 of this Article, a fine can be imposed by:
1) ** (Repealed)
2) An authorized authority, i.e. an authorized person by means of a penalty notice in compliance with the law.
Article 88
A misdemeanour proceeding shall be instituted and conducted on the basis of:
1) A motion of an authorized authority or an aggrieved party;
2) A penalty notice, in compliance with this Law.
Article 89
Evidence shall be collected and examined in compliance with this Law.
The burden of proof relating to the characteristics of the misdemeanour and misdemeanour liability shall lie with the person that filed the motion for a misdemeanour proceeding.
The court shall examine the evidence at the proposal of the parties.
A party shall be obliged to acquire evidence that they propose to be examined.
Exceptionally, the court may acquire evidence ex officio if the defendant is not able to do so himself or where that is justified for the reasons of expediency and efficiency in conducting the proceedings.
The court may examine supplemental evidence if it assesses that the examined evidence is contradictory or unclear and that such action is necessary in order that the subject matter of proving would be comprehensively discussed.
Article 90
The court shall ensure that ignorance or lack of education of the parties is not to the detriment of their rights.
Cost-effectiveness of Misdemeanour Proceedings
Article 91
The court shall conduct the proceedings without stalling, but in such a manner as that it is not to the detriment of handing down a correct and lawful decision.
Article 92
The court shall assess the evidence at its discretion.
The court shall decide which facts it will take as proven based on a conscientious and careful assessment of each piece of evidence separately, all pieces of evidence jointly and based on the results of the entire proceedings.
Article 93
Prior to handing down a decision, the defendant must be provided with an opportunity to plea on the facts and evidence that he is charged with and to present all the facts and evidence that are in his favour, except in the cases laid down by the law.
In a misdemeanour proceeding, the defendant must be informed of the misdemeanour with which he has been charged and of the grounds for the charge in the first hearing already, except where the proceedings based on this Law are conducted without hearing the defendant.
If the duly summoned defendant fails to appear and justify his absence or within a time limit left to him fails to provide a written defence, and where his hearing is not necessary for determining the facts that are of importance for handing down a lawful decision, the decision can be handed down even without hearing of the defendant. The defendant shall be entitled to defend himself on his own or with professional assistance from a defence counsel of his choice. The court shall, on the occasion of the initial hearing, impart advice on the right to a defence counsel to the defendant.
The use of Language in Misdemeanour Proceedings
Article 94
The court shall conduct the proceedings in Serbian language and it shall use the Cyrillic alphabet and the Latin alphabet where it is in conformity with the law.
In the territories in which, in compliance with the law, a language of a certain national minority is in official use as well, the proceedings shall be conducted at the request of the party in the language and with the use of the alphabet of such national minority as well.
Where the proceeding is not conducted in the language used by the party i.e. other participants in the proceeding, who are nationals of the Republic of Serbia, translation of the course of proceedings in their language shall be provided to them through an interpreter.
The parties and other participants in a proceeding who are not nationals of the Republic of Serbia shall be entitled to follow the course of the proceedings through an interpreter and to use their language in such a proceeding.
The person referred to in paragraphs 2 through 4 of this Article shall be advised on the right to translation and conducting of proceedings in their language or in a language that he/she can understand, but such a person may then waive that right if he/she understands the language in which the misdemeanour proceedings is conducted. It shall be noted in the transcript that such advice has been provided along with the statement made by the participants.
Translation shall be made by an interpreter designated by the court conducting the misdemeanour proceedings from the list of court interpreters, and where this is not possible, translation shall be provided by another person with the consent from the party concerned.
Appeal in Misdemeanour Proceedings
Article 95
Appeals can be filed against the decisions of the misdemeanour court and against decisions passed by the commission referred to in Article 87, paragraph 2, Item 1) of this Law in misdemeanour proceedings to the second instance misdemeanour court i.e. an objection can be made in compliance with this Law.
A decision handed down in a misdemeanour proceeding shall become final on the date of handing down of the judgement of the second instance misdemeanour court, unless specified otherwise by this Law.
No appeal shall be permitted against the decisions of the second instance misdemeanour court.
Prohibition of Reversal for the Worse
Article 96
If an appeal has been made for the benefit of the defendant only, the judgement may not be amended to his/her detriment in the part thereof pertaining to the sanction imposed, nor may a less favourable judgement be handed down for the defendant in repeat proceedings.
Compensation for Damage to an Unfairly Punished and Unjustifiably Detained Person
Article 97
The person who has been unfairly punished for a misdemeanour or unjustifiably detained shall be entitled to compensation for damage thus incurred to him/her, in addition to other rights accorded by the law.
At the request of the person referred to paragraph 1 of this Article, the Ministry in charge of justice shall conduct a procedure in order to arrive at an agreement on the existence, type and amount of compensation, and where such agreement is not achieved within three months from the submission of the request, the aggrieved party may file an action for compensation of damage to a court of relevant jurisdiction.
Article 98
The courts conducting misdemeanour proceedings shall provide legal assistance in the tasks within their competence to one another and to other courts.
The police authorities, other administrative authorities and other bodies and organizations shall provide legal assistance within their respective competencies to the courts conducting misdemeanour proceedings and carry out the orders of misdemeanour courts.
The courts shall provide legal assistance to state and other authorities by delivering files, documents and other data, if the course of misdemeanour proceedings is not disrupted thereby.
Mutatis Mutandis Application of the Criminal Procedure Code
Article 99
Provisions of the Criminal Procedure Code shall apply mutatis mutandis to the misdemeanour proceedings, unless laid down otherwise by this or another law.
AUTHORITIES COMPETENT TO CONDUCT PROCEEDINGS
Article 100**
The misdemeanour proceedings in the first instance shall be conducted by the misdemeanour courts.
Provisions of this Law shall apply mutatis mutandis in the misdemeanour proceedings referred to in paragraph 2 of this Article, unless prescribed otherwise by the law regulating public procurements.
The misdemeanour proceedings instituted upon appeals against the decisions of misdemeanour courts and the Commission referred to in paragraph 2 of this Article shall be conducted by the second instance misdemeanour court.
The second instance misdemeanour court shall additionally decide on the conflict and transfer of territorial jurisdiction of courts and perform other tasks specified by the law.
The second instance misdemeanour shall also follow and monitor the operation of courts, acquire from the courts the data and reports required for monitoring of the misdemeanour case law, application of laws and other regulations, monitoring and studying of social relations and phenomena and data on other issues of interest for discharging their function.
Article 101
Publicity of court adjudication shall be ensured by: public hearings, publication of decisions, providing notices to interested persons on the course of a misdemeanour proceeding, acquainting the general public on its operations through mass media.
For the purpose of confidentiality, protection of moral, interest of minors or protection of other special interests of a community, publicity of a court adjudication can be excluded in all or only in certain phases of a misdemeanour proceeding.
Article 102
The first instance misdemeanour proceeding shall be adjudicated and decided upon by a single judge.
The second instance misdemeanour court shall adjudicate and decide in a panel comprising of three judges.
General Territorial Jurisdiction
Article 103
The court in the territory of which the misdemeanour has been committed or attempted shall have the territorial jurisdiction to conduct the first instance misdemeanour proceedings.
The court having territorial jurisdiction to conduct the misdemeanour proceedings against a legal person shall additionally have jurisdiction to conduct misdemeanour proceedings against the responsible person with the legal person.
Where a misdemeanour is committed on board of a domestic ship or a domestic aircraft, the court with the territorial jurisdiction to conduct the first instance misdemeanour proceedings shall be the one in whose territory a domestic port or airport in which the voyage of the misdemeanour offender ends is located, and where the misdemeanour offender is a crew member, the court in the territory of which the home port of the ship, i.e. the home base of the aircraft is located shall have the jurisdiction.
Where a misdemeanour is committed or attempted in a territory of a number of misdemeanour courts, the court that has been the first to institute the proceedings shall have the jurisdiction over it, and if the proceedings has not yet been instituted, the court to which the motion to institute the misdemeanour proceedings is filed earlier.
Subsidiary Territorial Jurisdiction
Article 104
If the place of committing a misdemeanour is not known, the court in the territory of which the defendant has his/her domicile or residence, i.e. seat of the indicted legal entity is located, shall have the territorial jurisdiction if the validity of the regulation that prescribed the misdemeanour additionally extends over the territory in which his/her domicile or residence, i.e. seat of the indicted legal person is located.
Where neither the place of committing the misdemeanour, nor the domicile or residence of the defendant are known, the court in the territory of which the defendant is found, i.e. caught or turns in voluntarily shall have the jurisdiction.
Cumulation of Territorial Jurisdiction
Article 105
If a same person is indicted for number of misdemeanours and thus two or more courts have the jurisdiction to conduct the misdemeanour proceedings, the court that has instituted the proceedings first at the motion of the authorized authority shall have the jurisdiction, and where the proceedings have not yet been instituted, the court to which the motion to institute the misdemeanour proceedings if filed first shall have the jurisdiction.
Consolidation and Severance of Misdemeanour Proceedings
Article 106
The court may, at the proposal of the parties or ex officio, due to expediency or other reasons, conduct a unified misdemeanour proceeding in the following cases:
1) If the same person is indicted for a number of misdemeanours;
2) If a number of persons are indicted for one misdemeanour;
3) Against accomplices;
4) If the aggrieved party has simultaneously committed a misdemeanour against the defendant;
5) If a number of persons have been indicted for a number of misdemeanours which are mutually related.
No appeal shall be permitted against the resolution which imposes consolidation of proceedings or whereby the motion for consolidation is dismissed.
Article 107
The court may, at the proposal of the parties or ex officio, due to expediency or some other important reasons, decide to sever the proceedings for individual misdemeanours or against individual defendants and to complete them independently.
No appeal shall be permitted against the resolution imposing severance of misdemeanour proceedings or dismissal of a motion for severance of proceedings.
Proceedings against a Legal Person and Responsible Person
Article 108
A single misdemeanour proceeding shall be conducted against a legal person and the responsible person with the legal person, unless where there are some statutory reasons to conduct the proceedings against one of them.
Where the proceedings cannot be instituted against the responsible person with the legal person, the proceedings shall be instituted and conducted against the legal person.
Where the legal person has ceased to exist or where there are other legal obstacles to conduct the proceedings, the proceedings shall be instituted and conducted against the responsible person with the legal person.
Where the legal person has ceased to exist prior to the conclusion of the misdemeanour proceedings, the proceedings shall be continued against the legal successor.
Transfer of Territorial Jurisdiction
Article 109
Where a competent court due to legal or actual reasons is prevented from acting in a certain case, it shall notify the second instance misdemeanour court thereof, which shall designate another court having the subject matter jurisdiction.
No appeal shall be permitted against the resolution referred to in paragraph 1 of this Article.
Acting in Case of Lack of Jurisdiction
Article 110
The court shall ex officio ensure that resolving the case is within a court jurisdiction and that it has the subject matter and territorial jurisdiction, and as soon as it notices that it does not have jurisdiction, announce itself as not having jurisdiction by means of a resolution and without delay deliver the case to the competent court or to another competent authority.
Where the court to which the case has been delivered as to the court of relevant jurisdiction is of the opinion that that the court that delivered the case to it has the jurisdiction, it shall institute proceedings to resolve the conflict of jurisdiction.
No appeal shall be permitted against the resolution referred to in paragraph 1 of this Article.
Resolving the Conflict of Jurisdiction
Article 111
The second instance misdemeanour court shall resolve a conflict of jurisdiction between courts.
Until a conflict of jurisdiction between courts is resolved, each of them shall take the actions in the proceedings concerning which there is a threat from delay.
No appeal shall be permitted against the resolution referred to in paragraph 1 of this Article.
RECUSAL
Article 112
A judge participating in a misdemeanour proceeding shall be recused:
1) If he/she has been aggrieved by the misdemeanour;
2) If the defendant, the defendant’s defence counsel, the representative of the indicted legal person, the person that filed the motion to institute misdemeanour proceedings, the aggrieved party or his/her legal representative i.e. attorney-in-fact is his/her spouse or a straight-line relation by blood irrespective of the degree of consanguinity, in the collateral line - up to the fourth degree and according to in-law relationship - up to the second degree;
3) If he/she is in a relationship of a guardian, ward, adoptive parent, adoptee, a foster parent or a foster child with the defendant, with the representative of the indicted legal person, defendant’s defence counsel, the official that filed the motion to institute the misdemeanour proceedings in the name of the authorized authority or with the aggrieved party;
4) If he/she has, as an official on behalf of the authorized authority, filed a motion to institute the misdemeanour proceedings or has participated as a representative of the indicted legal person, as the defence counsel of the defendant, the legal representative or the attorney-in- fact of the aggrieved party, or has been heard as a witness or as an expert witness in the same case;
5) If he/she has participated in handing down of the first instance judgement in the same case;
6) If there are circumstances that raise doubts concerning his/her impartiality.
Duty of a Judge where there are Reasons for Recusal
Article 113
A judge participating in a misdemeanour proceedings, as soon as he/she has learnt of the existence of any of the reasons for recusal referred to in Article 112, paragraph 1, items 1) through 5) of this Law, shall discontinue his/her work on such case and notify the president of the court thereof, who shall designate another judge. In case of recusal of a court president, he/she shall designate his/her deputy among the judges of that court.
Where the president of a court is as the same time the only judge of such court or where due to some other reasons he/she cannot designate his/her deputy from the same court, he/she shall demand from the president of the second instance misdemeanour court to delegate another judge.
Where the judge is of the opinion that there are circumstances raising doubt concerning his/her impartiality (Article 112, paragraph 1, item 6), he/she shall notify the president of the misdemeanour court thereof, and if it is a case referred to in paragraph 2 of this Article - the president of the second instance misdemeanour court who shall decide on the recusal.
Filing of an Application for Recusal
Article 114
Recusal of a judge due to the existence of any of the reasons for recusal referred to in Article 112 of this Law can be requested by the indicted person and the applicant who filed the motion to institute the misdemeanour proceedings (hereinafter: the parties).
The parties may file a request for recusal of a judge until handing down of the judgement, i.e. resolution.
A party may file the request for recusal of the president and judges of the second instance misdemeanour court in an appeal against the first instance judgement.
A party may only request the recusal of a judge acting in the case who is designated by his/her name.
In the request, the party shall specify the circumstances due to which he/she is of the opinion that any of the legal grounds for recusal exists.
Acting in Case of a Submitted Request for Recusal
Article 115
When a judge who participated in misdemeanour proceedings learns that a request for his/her recusal has been submitted, he/she shall immediately suspend his/her work on the case, while in a case of a recusal referred to in Article 112, paragraph 1, item 6) of this Law, he/she may, until handing down of the resolution on recusal, take only the actions concerning which there is a threat from delay.
Recusal of other Participants in the Proceedings
Article 116
Provisions on recusal of judges shall apply mutatis mutandis to stenographers, interpreters and expert witnesses.
Deciding on a Request for Recusal
Article 117
The president of a court shall decide on a request for recusal of a judge.
Where the recusal of the court president is requested, the resolution on recusal shall be handed down by the president of the second instance misdemeanour court.
Where the recusal of the second instance misdemeanour court judge is requested, the resolution on recusal shall be handed down by the president of same court.
Where the recusal of the president of the second instance misdemeanour court is requested, the decision on recusal shall be handed down the president of the Supreme Court of Cassation.
The judge conducting the misdemeanour proceedings shall decide on the recusal of the stenographer, interpreter and expert witness.
Prior to handing down of a resolution on recusal, statement shall be acquired from the person whose recusal is requested, and, where necessary, other actions shall be taken as well.
No appeal shall be permitted against the resolution granting a request for recusal, and the resolution dismissing or refusing a request for recusal can be contested only by means of an appeal against the judgement.
DEFENDANT
Article 118
A defendant is a person against which a misdemeanour proceeding is conducted.
A defendant shall be entitled to submit evidence, file motions and use legal tools laid down in this Law.
On behalf of the defendant divested of legal capacity a legal representative shall take actions.
A defendant shall have the right to defend himself/herself alone or with the professional assistance from a defence counsel.
Defence Counsel of a Defendant
Article 119
A defendant may hire an attorney at law for a defence counsel and he/she may be, in compliance with the law, substituted by a trainee solicitor.
A defence counsel for a defendant may also be hired by his/her legal representative, spouse, straight-line relative by blood, an adoptive parent, adoptive child, brother, sister and a foster parent of the defendant, as well as by the person with whom the defendant lives in an extramarital household or in some other longer-term domestic relationship.
The defence counsel shall be authorized to take all the actions for the benefit of the defendant which the defendant may take.
The defence counsel must submit a written power of attorney to the court.
In addition, the defendant can give the power of attorney to the defence counsel orally, on the record at the court.
The rights and duties of the defence counsel shall terminate when he/she cancels the power of attorney or when the defendant revokes the power of attorney.
Article 120
A representative of an indicted legal person shall take part in the misdemeanour proceedings on its behalf, and he/she shall be authorized to take all the actions that the defendant may take.
Representative of Indicted Legal Person
Article 121
A representative of an indicted legal person shall be the person authorized to represent or act as an agent for such legal person on the basis of a law or another act.
Other than the legal representative of the indicted legal person, the representative referred to in paragraph 1 of this Article must have a written authorization made out by the body which has designated them as a representative.
Only one person may be the representative of the indicted legal person.
Representative of Indicted Foreign Legal Person
Article 122
A representative of an indicted foreign legal person shall be the person managing the representative office or another business unit of such legal person in the Republic of Serbia, where no other person is designated as representative of the legal person.
Persons who may not serve as a Representative of a Legal Person
Article 123
A representative of a legal person may not be a person who is a witness in the same matter.
A representative of the legal person may not be the responsible person against whom the misdemeanour proceedings is conducted for the same misdemeanour, except where such person is the only one authorized to represent the indicted legal person.
In the cases referred to in paragraphs 1 and 2 of this Article, the court shall invite the legal person to designate another representative within a time limit of eight days.
Punishment for a Failure to Designate a Representative
Article 124
If the indicted legal person fails to designate its representative at the invitation of the court or fails to designate another representative within the time limit referred to in Article 123, paragraph 3 of this Law, it can be punished by a fine of RSD 10,000 to RSD 30,000. Where the legal person fails to designate its representative even following the imposition of such fine, it shall be punished for each further failure to respond to such invitation with a fine of RSD 50,000 to RSD 100,000.
An appeal against the resolution referred to in paragraph 1 of this Article shall not have a suspensive effect on the enforcement of the resolution.
Article 125
The legal person and the responsible person with such legal person which are having the status of defendants in the same matter may each have their own defence counsel or may have a joint defence counsel.
The defence counsel of a legal person or of the responsible person with such legal person cannot be a person who, in the same misdemeanour proceedings, has had the capacity of the representative of the legal person.
THE AGGRIEVED PARTY
Article 126
The aggrieved party, within the meaning of this Law, shall be a person whose personal right or property right have been injured or threatened by the misdemeanour.
An aggrieved party which has turned sixteen may file the motion to institute misdemeanour proceedings on his/her own.
The aggrieved party shall be entitled to, on his/her own or through his/her legal representative or proxy:
1) File and represent a motion to institute misdemeanour proceedings;
2) Submit evidence, file motions and property claim for damages or restitution of objects;
3) File an appeal against the judgement, i.e. resolution handed down in relation to his/her motion to institute misdemeanour proceedings;
4) Submit evidence based on which the court may determine that the defendant must not access the aggrieved, objects or place of committing the misdemeanour during the course of the misdemeanour proceedings.
The procedural measure of the restraining access referred to in paragraph 3, item 4) of this Article may last as long as the reasons for its imposition exist, and at the latest until the final conclusion of the proceedings.
An appeal against the resolution imposing a restraint of access must be filed within three days from the date of delivery thereof and shall not have suspensive effect on the enforcement of the resolution.
PUBLIC PROSECUTOR AND OTHER AUTHORITIES AUTHORIZED TO FILE A MOTION TO INITIATE MISDEMEANOUR PROCEEDINGS
Public Prosecutor as a Party to a Proceeding
Article 127
The Public Prosecutor shall be a party to the misdemeanour proceedings.
The Public Prosecutor shall:
1) Take measures with a view to uncovering, finding and acquiring the required evidence for prosecution of misdemeanour offenders and successful conducting of misdemeanour proceedings before the court;
2) File a motion to institute misdemeanour proceedings, file an appeal or extraordinary legal remedies against court decisions;
3) Take other actions which he/she is authorized to take by this Law and by separate regulations.
The Public Prosecutor shall have the subject matter jurisdiction to act in misdemeanour proceedings where he/she has filed a motion to institute the misdemeanour proceedings.
Where a Public Prosecutor has been the first person to file a motion to institute a misdemeanour proceedings, the proceedings shall be conducted at his/her request, and it shall proceed at the request of the aggrieved party or another authority authorized to file the motion to institute proceedings, if the Public Prosecutor desists from his/her motion.
If he/she desists from the motion to institute misdemeanour proceedings, the Public Prosecutor shall, within eight days from the date of such desisting from the motion, notify the aggrieved party or another person authorized to institute the proceedings, so that they can resume the proceedings.
Where the aggrieved party or another authority authorized to institute the misdemeanour proceedings has already filed the motion to institute the proceedings, the proceedings shall be resumed on such motion.
Other Authority Authorized to File a Motion
Article 128
Where another authority is authorized to file motions to institute misdemeanour proceedings, it shall have all the rights that the Public Prosecutor has as a party to the proceedings, except those which are vested in the Public Prosecutor, as a state authority.
The competent authority referred to in paragraph 1 of this Article shall notify the aggrieved party in writing of whether the motion to institute the misdemeanour proceedings has been filed.
Where the competent authority referred to in paragraph 1 of this Article files a motion to institute proceedings for a misdemeanour for which a prison sentence is prescribed, it shall notify the competent Public Prosecutor thereof, who shall decide on whether to take over the prosecution.
The competent Public Prosecutor shall notify the competent authority referred to in paragraph 1 of this Article of the decision referred to in paragraph 3 of this Article in writing.
BRIEFS AND TRANSCRIPTS
Article 129
The motion to institute misdemeanour proceedings, motions, legal remedies and other declarations and statements (hereinafter: briefs) shall be filed in writing or given orally on the record.
Written briefs shall be handed over directly or sent by post.
Short and urgent notices can be given by telefax, telex, telephone, by electronic mail or in some other adequate manner on which an official record shall be made and added to the case file.
The briefs referred to in paragraph 1 of this Article must be intelligible and include all that is required in order that they can be acted upon.
If a brief is unintelligible or does not include everything that is required in order that it can be acted upon, the judge conducting the misdemeanour proceedings shall order the person submitting the brief to, within a specified time limit, and within fifteen days at the latest, correct i.e. supplement the brief and if such person fails to do so, the brief shall be dismissed as inadequate.
Article 130
A transcript shall be made on each action taken during misdemeanour proceedings, concurrently with the action and where this is not possible - immediately thereafter.
A transcript shall be kept by a stenographer.
By way of exception from paragraph 2 of this Article, when an apartment or a person is searched or when an action is taken outside of the official premises of a misdemeanour court, and a stenographer cannot be provided, the transcript can be made by the person taking the action.
Where a transcript is made by the stenographer, the transcript shall be made in such a manner that person taking the action must speak clearly to the stenographer what to record in the transcript.
A person being heard may be allowed to personally dictate the answers on the record. In case of abuse, such right may be deprived.
The Contents of the Transcript
Article 131
The name of the court, place where the action is taken, date and hour when the action is initiated and completed, personal names of the persons present and the capacities in which they are present, as well as a designation of the misdemeanour case in which the action is taken shall be entered in the transcript.
A transcript should include important information on the course and contents of the action taken. Only the relevant contents of the statements and declarations made shall be entered in the transcript. Questions shall be entered in the transcript only if it is necessary to understand the answer.
Where necessary, question posed and answer provided shall be entered in the transcript literally. If objects or files are seized on the occasion of taking an action, this shall be indicated in the transcript, and objects seized shall be attached to the transcript or the place where they are located shall be specified therein.
The statement of the defendant as to whether he/she applies for presentation of other evidence shall be entered in the transcript.
On the occasion of taking actions such as the investigation, search of an apartment or a person, or identification of persons or objects, data of relevance in view of the nature of such action or for determining identity of certain objects (description of measurements and sizes of objects or traces, putting tags on objects, etc.) shall be entered in the transcript as well, and if sketches, drawings, plans, photographs, film records and the similar has been made, it shall be specified in the transcript and attached to the transcript.
Article 132
A transcript must be kept accurately. It must not include any deletions, additions or alterations. Any spots crossed out must remain legible.
Any reversals, corrections and additions shall be entered at the end of the transcript and must be certified by the persons signing the transcript.
Article 133
A heard person, persons who are mandatorily present during the actions in misdemeanour proceedings, as well as the defendant, the defence counsel and the aggrieved party, where they are present, shall be entitled to read the transcript or to demand that it be read to them. The judge conducting the action shall advise them thereof, and it shall be indicated in the transcript whether the advice has been made and whether the transcript has been read.
The transcript shall always be read where the stenographer has been unavailable and that shall be indicated in the transcript.
Article 134
The heard person shall sign the transcript. Where the transcript comprises of a number of pages, the heard person shall sign each page thereof.
Where an interpreter or a translator was present, they shall put their signatures at the end of the transcript, and on the occasion of a search, the person being searched or whose apartment is being searched as well, as well as the witnesses who were present on the occasion of the search.
Where the transcript is not made by a stenographer, the transcript shall be signed by the persons present during the action. Where there are no such persons or where they are not capable of understanding the contents of the transcript, the transcript shall be signed by two witnesses.
An illiterate person shall affix the fingerprint of the index finger of the right hand instead of the signature and the stenographer shall write the person’s name and surname beneath the fingerprint. If, due to an impossibility to affix the fingerprint of the index finger of the right hand a fingerprint of some other finger or of a finger of the left hand is affixed, the finger and the hand from which the fingerprint has been taken shall be indicated in the transcript.
If the heard person has no hands, he/she shall read the transcript and if he/she is illiterate, the transcript shall be read to him/her and that shall be recorded in the transcript.
If the heard person refuses to sign the transcript or to affix the fingerprint, that shall be recorded in the transcript and the reason for such rejection shall be indicated.
If an action could not be performed without interruption, the date and time of the occurrence of such interruption shall be indicated in the transcript, as well as the date and time when the action is resumed.
Where there were objections to the contents of the transcript, such objections shall be stated in the transcript as well.
The transcript shall finally be signed by the judge and the stenographer.
Transcript on Conferring and Voting
Article 135
A separate transcript shall be drawn up on conferring and voting before the second instance misdemeanour court.
The transcript on conferring and voting shall include the course of voting and the decision handed down.
The transcript shall be signed by all the members of the panel and the stenographer.
Separate opinions shall be attached to the transcript on conferring and voting where these have not been included in the transcript itself.
The transcript on conferring and voting shall be enclosed in a separate cover. Such transcript can only be inspected by a higher court when deciding on a legal remedy and in such case it shall enclose the transcript again in the separate cover and indicate on the cover that the transcript has been inspected.
TIME LIMITS AND RESTITUTIO IN INTEGRUM
Article 136
The time limits laid down by this Law may not be extended, except where it is explicitly permitted by the law.
Where a declaration is tied to a time limit, it shall be considered that it is made within the time limit if delivered to whoever is authorized to receive it prior to expiry of such time limit.
When a declaration is sent by mail as a registered mail or by telegraph, the date of the handing over to the post shall be considered to be the date when it is delivered to whoever it was addressed.
In addition, a defendant detained in a penitentiary institution or in a juvenile detention centre may give a statement tied to a time limit on the record or hand it over to the management of the institution. The date of drawing up of such record, i.e. when the declaration is handed over to the management of the institution shall be considered to be the date of its handing over to the authority authorized to receive it.
Where due to ignorance or an obvious error by the person submitting it, a brief tied to a time limit has been handed over or sent to an authority that has no jurisdiction over it prior to the expiry of the time limit, and it reaches the competent authority after the expiry of the time limit, it shall be considered that it has been submitted on time.
Article 137
Time limits shall be calculated by hours, days, months and years.
The time or date when a delivery or communication is made, i.e. when an event from which a time limit should be calculated falls shall not be calculated in the time limit, and instead the first following hour, i.e. day shall be taken as the beginning of the time limit. One day shall be calculated to include 24 hours and a month shall be calculated according to the calendar time.
The time limits specified in months, i.e. years shall expire with the expiration of the day of the last month, i.e. year which, according to its number, corresponds to the date when the time limit has begun. Where there is no such day in the last month, the time limit shall expire on the last day of such month.
Where the last day of a time limit falls on a public holiday or on a Sunday or on some other day that is a non-working day for the court, the time limit shall expire with the expiry of the following working day.
Time Limit for Restitutio in Integrum
Article 138
A return to original position (restitutio in integrum) shall be permitted by the court conducting the misdemeanour proceedings by means of a resolution to a defendant who, due to some duly justified reasons has missed the time limit for filing an appeal against a decision, for the purpose of filing the appeal, providing that within eight days from the date of termination of the cause of such omission of the time limit, he/she files a motion for restitutio in integrum and if he/she files the appeal concurrently with the motion.
Restitutio in integrum may not be requested after the expiry of one month from the date of the omitted time limit.
The motion for restitutio in integrum shall be submitted to the misdemeanour court which handed down the first instance decision.
The motion for restitutio in integrum shall not stay the enforcement of the decision, but the court to which the motion has been submitted may, depending on the circumstances, decide to suspend the enforcement until the decision on the motion is handed down.
Deciding on Restitutio in Integrum
Article 139
The misdemeanour court of the first instance shall decide on restitutio in integrum.
When the court permits restitutio in integrum due to an omitted time limit for an appeal, it shall deliver the appeal with the case files for resolution to the misdemeanour court of the second instance.
No appeal shall be permitted against the resolution granting restitutio in integrum.
The court referred to in paragraph 1 of this Article shall deliver the appeal against the resolution whereby no restitutio in integrum is granted, enclosed with the appeal against the decision and other case files for resolution to the misdemeanour court of the second instance.
If the second instance misdemeanour court permits restitutio in integrum due to an omitted time limit for appeal, it shall decide in the same judgement on the appeal filed against the first instance decision.
COSTS OF THE MISDEMEANOUR PROCEEDINGS
Article 140
The costs of misdemeanour proceedings shall be the expenses incurred in relation to a misdemeanour proceeding, from its institution to its completion.
The costs of misdemeanour proceedings shall be:
1) The expenses for witnesses and expert witnesses;
2) The costs of investigation;
3) The costs of transport of the defendant;
4) The expenses related to bringing of the defendant;
5) The transportation and travel costs of the officials;
6) The necessary expenses of the aggrieved party as the person that filed the motion, i.e. of his/her legal representative and the remuneration and the necessary expenses of his/her attorney- in-fact;
7) The remuneration and the necessary expenses of the defence counsel;
8) The costs of translation and interpretation;
9) The lump sum;
10) The costs of enforcement.
Article 141
The costs of misdemeanour proceedings shall be borne by the person pronounced responsible for the misdemeanour.
The costs of the proceedings for a misdemeanour for which the proceedings has been discontinued or the defendant has been acquitted shall be borne by the court.
By way of exception from paragraph 2 of this Article, where a misdemeanour proceeding is discontinued due to desisting of the aggrieved party from the motion filed or where the defendant is acquitted due to an unfounded motion, the costs of the proceedings shall be borne by the aggrieved party.
By way of exception from paragraph 2 of this Article, the court shall not bear the costs of the misdemeanour proceeding where the proceeding is discontinued due to the criminal proceedings for the criminal offence that includes the characteristic of the misdemeanour in which the defendant is pronounced guilty.
The claim for compensation for remuneration and necessary expenses of the defence counsel shall be submitted within three months from the date of delivery of the final decision.
If the defendant is acquitted in the criminal proceeding due to which the misdemeanour proceeding has been discontinued, the time limit referred to in paragraph 5 of this Article shall run from the finality of the judgement of acquittal in criminal proceedings.
Article 142
One bearing the costs of the misdemeanour proceedings, the amount thereof and the time limit for payment shall be indicated in the decision on costs.
Where data necessary to determine the amount of costs is lacking, the costs shall be decided upon when such data are obtained.
Where no decision on the costs of proceedings has been included in a judgement or a resolution, it shall be decided upon subsequently, by means of a separate resolution against which appeal shall be permitted.
The time limit referred to in paragraph 1 of this Article may not be shorter than 15 or longer than 30 days from the date of finality of the decision.
Article 143
The person against whom a joint misdemeanour proceeding for a number of misdemeanours has been conducted shall not bear the costs for the misdemeanour whose court proceeding has been discontinued or in which such person has been acquitted, where it is possible to separate such costs from the total costs.
In the judgement whereby a number of defendants are pronounced responsible, the court shall determine the amounts of the portions of such costs to be borne by each of them individually, and where this is not possible, it shall decide that such costs shall be borne jointly and severally by all the defendants. Payment of the lump sum shall be determined for each defendant separately.
Costs of Detecting the Offender
Article 144
Where a separate regulation lays down that the costs incurred in relation to detecting a misdemeanour shall be borne by the offender, the defendant shall be obliged to pay such costs at the proposal of the person that filed the motion to institute the proceeding.
Reason for Release from Duty to Compensate for the Costs
Article 145
In the decision whereby the costs are decided upon, the court may release the defendant from the duty to compensate the costs of the misdemeanour proceedings in their entirety or in a part thereof, if the payment thereof would call in question the subsistence of the defendant or his/her legal dependants.
Costs of Translation and Interpretation
Article 146
The costs of translation and interpretation incurred through application of constitutional and legal provisions regulating the official use of languages and scripts i.e. interpretation for the deaf, blind and mute shall be borne by the court conducting the proceedings.
Subsequent Collection of Costs
Article 147
The costs of misdemeanour proceedings referred to in Article 140, paragraph 2, items 1) and 2) of this Law shall be paid in advance from the means of the misdemeanour court conducting the misdemeanour proceedings and shall be collected subsequently from the persons obliged to compensate them pursuant to the provisions of this Law.
Mutatis mutandis Application of Regulations on Compensation for Costs in Criminal Proceedings
Article 148
Regulations on compensation for costs to witnesses, expert witnesses and interpreters, as well as other costs in the criminal proceedings shall apply mutatis mutandis in the misdemeanour proceedings.
PROPERTY CLAIM
Deliberation on a Property Claim
Article 149
The court shall decide on a property claim.
The property claim that has arisen due to committing of a misdemeanour shall, as a rule, be deliberated at the motion of the aggrieved party or another authorized person in misdemeanour proceedings, except where this is significantly delaying the proceedings.
The property claim may pertain to compensation for damage and restitution of objects.
Persons Authorized to File the Claim
Article 150
A motion for realisation of a property claim in misdemeanour proceedings can be filed by a person authorized to realize such a claim in a lawsuit, by handing down of the first instance judgement at the latest.
The person authorized to file a property claim shall specify its claim by grounds and amount thereof, as well as to submit evidence.
Article 151
Where evidence presented in misdemeanour proceedings does not provide reliable grounds for granting the property claim in its entirety or in a part thereof, the court shall advise the aggrieved or another authorized party that the property claim, i.e. the surplus amount of such claim can be realized in a lawsuit.
Where a motion to institute misdemeanour proceedings is dismissed by means of a resolution or where the misdemeanour proceedings is discontinued, or where the defendant is acquitted, the aggrieved or another authorized person shall be advised to realize their property claim in a lawsuit.
Where the damaged property is public property, the competent Public Attorney shall be notified of the decision referred to in paragraphs 1 and 2 of this Article.
The aggrieved or another authorized person which has filed the claim shall be entitled to file an appeal against the decision on the property claim.
Article 152
If the court grants a property claim in its entirety or in a part thereof, it shall specify in the judgement the time limit within which the defendant shall pay the damages i.e. return the object.
The time limit for payment of damages and restitution of objects may not be longer than 15 days from the date of finality of the judgement.
HANDING DOWN AND COMMUNICATION OF DECISIONS
Article 153
In misdemeanour proceedings, the court shall hand down decisions in the form of a judgement, a resolution and an order.
Article 154
As a rule, the decisions shall be communicated immediately upon being handed down.
The decisions shall be communicated through oral pronouncing to the parties present, to the aggrieved party and to other persons having the right to appeal against such decision (hereinafter: the interested persons) and by delivering the certified transcript in case of their absence.
When a decision is pronounced orally, this shall be indicated in the transcript or in the file, and the person to whom the decision has been pronounced orally shall confirm it with his/her signature.
At the request of an interested person, a certified transcript of the decision that has been pronounced to him/her orally shall be issued.
The interested persons which are not requesting delivery of the decision’s transcript shall be advised on the right to appeal and on the time limit for the appeal.
A written authenticated copy of the decision in the case referred to in paragraph 4 of this Article shall be made within eight days from the date of oral pronouncing at the latest, and the written authenticated copy of the judgement shall be made immediately where the enforcement of the judgement prior to the finality thereof is imposed.
Deciding by the Second Instance Court
Article 154a
The panel of the second instance court shall hand down the judgement independently as the first instance court if the decision has already been revoked once in the same case.
The panel of the second instance court shall decide whether to hold the hearing.
Where the panel decides to hold the hearing, the reporting judge shall be the president of the panel.
The defendant may, within eight days from the date the judgement was served, file an appeal against the judgement of the second instance court referred to in paragraph 1 of this Article, if, under the appeal of the person that filed the motion to initiate the misdemeanour proceeding, the judgement of acquittal or the resolution to discontinue the proceeding has been reversed to a judgement of conviction.
Another panel of such court shall decide on the appeal of the defendant against the decision of the panel of the second instance court.
Article 155
The decisions of the second instance misdemeanour court shall be handed down by conferring and voting, following an oral exposition of the reporting judge on the state of affairs. The decision shall be handed down when the majority of the panel member vote for it.
The president of the panel shall manage conferring and voting and he/she shall vote the last. He/she shall ensure that all the issues are examined thoroughly and completely.
If votes are divided among a number of different opinions in respect of certain issues, so that not a single one of them has the majority, the issue shall be set apart and voting shall be repeated until the majority is achieved. Where the majority vote is thus not achieved, the decision shall be handed down by adding the votes that are the least favourable for the defendant to the votes that are less unfavourable than these, until the majority is achieved.
The panel members may not refuse to vote on the issues raised by president of the panel, but a member of the panel who has voted in favour of discontinuation of misdemeanour proceedings and remained in the minority shall not be obliged to cast the vote on the punishment. If he/she refrains from voting, it shall be considered that he/she has agreed to the vote that is the most favourable for the defendant.
Conferring and voting shall be taking place in a non-public sitting.
In the chamber in which conferring and voting take place, only the panel members and the stenographer may be present.
SERVING THE WRITS AND EXAMINATION OF FILES
Article 156
Writs shall be served through the post, another service authorized for delivery, by the official of the court or through another authority i.e. directly in the premises of the court.
Writs can also be served electronically, in compliance with separate regulations, where there are conditions for that.
Writs shall be served each day in the workplace or in business premises during working hours or in an apartment from 7:00 a.m. until 10:00 p.m. or in the court when the person to whom a writ should be served is found there or when he/she is summoned by the court to serve him/her the writ.
Serving can also be performed at some other time and in some other place, based on a special decision of the court that the process server shall be obliged to present at the request of the person to whom the writ is served.
A summons for an oral hearing or other summons can also be communicated orally by the court to the person who is before it, with advice on the consequences of the failure to appear before the court. Such an oral summons shall be recorded in the transcript which shall be signed by the person summoned, except where the summons has been recorded in the transcript on search, whereby it shall be considered that the summons has been duly served.
Article 157
A summons for a defendant to be heard, i.e. to provide the written defence or to hear a witness, as well as all the decisions from the delivery of which the time limit for an appeal runs, shall be served in person, except where this Law prescribes otherwise.
Decisions, for which the time limit for appeal runs from the delivery date thereof, shall be served in the same manner to the aggrieved party too.
Service at the Residential Address
Article 158
A writ for which this Law lays down delivery in person, shall be handed over directly to the person to which it is addressed, at the address at which he/she is registered or which he/she has communicated to the competent authority on the occasion of discovering of the misdemeanour.
Where the person to whom a writ must be served in person is not found in the place where the delivery is to be made, the deliverer shall hand over the writ to a member of the person’s household who is of the legal age, who shall be obliged to receive the writ and it shall thus be considered that the writ has been duly served.
Where the person to whom the writ must be served in person or a member of the person’s household who is of the legal age refuses to receive the writ, the deliverer shall make a note on the delivery slip that the receipt has been refused, who has refused the receipt, as well as the date and time when the receipt has been refused, and the writ shall be left in the apartment or fasten on the recipient’s door and it shall thus be considered that the writ has been duly served.
If the person to whom the writ must be served in person or a member of his/her household of legal age is not found in the apartment, the writ shall be handed over to persons of legal age found in the apartment if they agree to that and it shall thus be considered that the writ has been duly served.
Article 159
Where the writ is served at the workplace of the person to whom the writ is to be served in person, and such person is not found there, the writ can be served by handing over the writ to the person authorized to receive mail or to any other person employed with the same employer at the same place, who shall be obliged to receive the writ and it shall thus be considered that the writ has been duly served.
If the person to whom the writ is to be served in person refuses to receive the writ or if the same is done by the person referred to in paragraph 1 of this Article, the deliverer shall record on the delivery slip the date, time and reason for the receipt refusal and the writ shall be left in the workplace and it shall thus be considered that the writ has been duly served.
Article 160
If no one is found at the address at which the writ is to be served, a notice shall be left in the mail box or fastened on the door reading that the person to whom the writ is addresses should take it in the court within 15 days from the date of the attempted service.
Upon the expiry of the time limit referred to in paragraph 1 of this Article, the writ shall be put up on the notice board and on the website of the court, where there are technical conditions for that. It shall be considered that the writ has been served upon the expiry of the time limit of eight days from the date of putting up of the writ on the notice board and on the website of the court.
The notice referred to in paragraph 1 of this Article shall comprise: the name and surname of the person to whom service has been attempted, his/her capacity in the proceedings, date and time of the attempted service, address at which service has been attempted, an indication that the writ should be taken over in the court and the time limit for that, with a warning that in case of a failure to take it over the writ shall be put up on the notice board and on the website of the court, as well as that in such a case, upon the expiry of the time limit of eight days, it shall be considered that the writ has been duly served.
Where it is determined that the person to whom the writ is to be delivered is absent or that he/she is temporarily residing at another address and that due to that the writ cannot be served to him/her in a timely manner, the writ shall be returned to the court with an indication of the whereabouts of the absent person and of the time and place where the writ can be served to him/her.
If, in the repeated attempt, the writ cannot be served at the time and in the place specified in the manner referred to in paragraph 4 of this Article, the writ shall be put up on the notice board and on the website of the court, where there are technical conditions for that. It shall be considered that the writ has been duly served upon the expiry of the time limit of eight days from the date of putting up of the writ on the notice board and on the website of the court.
Where a writ cannot be served at the address referred to in Article 158, paragraph 1 of this Law, the court shall check the address and, if the writ cannot be served at the address at which the person is registered in a repeated attempt, it shall proceed in the manner prescribed in paragraph 2 of this Article.
Service to the Defence Counsel, Representative and Attorney-in-fact
Article 161
If the defendant has a defence counsel, all the decisions from the delivery of which the time limit for appeal runs shall be served to the defence counsel only, and where there are more of them, to one of them only and it shall thus be considered that the service of writ to the defendant has been completed.
If the defendant has a legal representative or an attorney-in-fact, the decisions referred to in paragraph 1 of this Article shall be delivered to him/her, and where there are more than one, to one of them only.
Article 162
A certificate of service completed (the delivery slip or proof of delivery) shall be signed by the recipient and by the deliverer.
The recipient shall personally indicate the date of receipt on the delivery slip or on the proof of delivery. Day and month of the receipt shall be written in letters and numerically.
Where the recipient is illiterate or is not able to sign, the deliverer shall sign for the recipient, indicate the date of receipt and add a note on the reason why he/she signed it.
Where the recipient refuses to sign the delivery slip or proof of delivery, the deliverer shall record that on the delivery slip and indicate the date of handing over and thus the service shall be completed.
Data in the certificate of a completed service must be filled out legibly.
Service by electronic means shall be considered performed providing that it is possible to furnish feedback by such delivery method that the person has received the writ.
The certificate of receipt of a writ delivered by electronic means shall be the printed electronic record of the date and time when the device for electronic data transmission recorded that the writ has been delivered to the recipient, the name of the sender and of the recipient and the title of the writ.
Service of Writs to Military Personnel, Police Officers and Other Persons
Article 163
Writs to military personnel, police officers, guards in penitentiary institutions and to the employees in land, river, marine and air traffic can additionally be served through their respective command, i.e. through an immediate superior officer or manager, and, where necessary, other writs can also be served to them in the same manner.
Service to persons deprived of liberty shall be carried out through the management of the institution in which they are placed.
Service to the persons enjoying the right to immunity in the Republic of Serbia, unless where the treaties stipulate otherwise, shall be carried out through the body in charge of foreign affairs.
Service of Writs to State Authorities, Legal Persons and Sole Traders
Article 164
Decisions and other writs shall be served to a state authority by handing over to the clerk’s office. Where decisions from the delivery of which a time limit runs are delivered, the date of service shall be considered to be the date of handing over thereof to the clerk’s office.
Service to legal persons and sole traders shall be carried out by handing over the writ to the person authorized to receive the writs, and where this is not possible, the writ shall be handed over to any employee found in the business premises of the recipient and it shall thus be considered that the service has been duly completed.
Where the person referred to in paragraph 2 of this Article refuses to receive the writ, the deliverer shall record on the delivery slip that the receipt has been refused, who has refused the receipt as well as the date and time of the refusal of receipt, and the writ shall be left in the business premises of the recipient and it shall thus be considered that the service has been duly completed.
Where the service to a sole trader within the meaning of paragraph 2 of this Article cannot be carried out, service shall be carried out at the address of his/her apartment if known, in the manner prescribed in Article 158 of this Law.
If the sole trader is absent, and the service cannot be carried out at the address of his/her apartment, service shall be carried out in the manner prescribed in Article 160 of this Law.
Change of Address and Putting up of Writs on the Notice Board
Article 165
When a defendant or his/her legal representative and the aggrieved party, upon having learnt of the proceedings, change their domicile or apartment address, they shall notify the court before which the proceedings are conducted thereof, immediately upon the completed change.
In case of their failure to do so, the court shall specify that all further services in the proceedings for such party shall be carried out by putting the writ on the notice board and on the website of the court, except in cases of a service of judgement whereby a prison sentence is imposed.
Service shall additionally be carried out in the manner referred to in paragraph 2 of this Article in the case where the court has handed down the resolution to discontinue the proceedings due to the statute of limitations, which has entered into force due to the impossibility to serve the decision referred to in Article 246, paragraph 1 of this Law.
It shall be considered that the service has been completed upon the expiry of eight days from putting up of the writ on the notice board and on the website of the court.
Where the defence counsel or the attorney-in-fact of the aggrieved party as the mover change their addresses during the course of the proceedings and where they fail to notify the court thereof, service shall be carried out as if the defendant had no defence counsel, i.e. as if the aggrieved party had no attorney-in-fact.
Examination of Case Files and Making of Written Copies thereof
Article 166
The mover of the motion to institute a misdemeanour proceedings, the defendant, defendant’s defence counsel, representative i.e. attorney-in-fact of the indicted legal person, the aggrieved party and his/her legal representative i.e. attorney-in-fact shall be entitled to examine and make written copies of the case files.
Other persons with a legal interest in compliance with the law may additionally be allowed to examine and make written copies of the case files.
When a misdemeanour proceeding is in progress, permissions for examining and making written copies of the case files shall be granted by the judge conducting the misdemeanour proceeding, and when the proceeding is completed, permission for examining and making written copies of the case files shall be granted by the president of the court or by an official designated by him/her.
Except to the defendant, his/her defence counsel and representative of the indicted legal person, examining and making written copies of the case files can be denied, but only if such actions would obstruct proper conducting of the misdemeanour proceedings or if the public is excluded from the proceedings.
After completion of the evidentiary proceedings, i.e. upon a completed oral hearing, the person having justified interest cannot be denied to examine or make written copies of the case files.
Appeal shall be permitted against the resolution to deny examining and making written copies of the case files, but it shall not have suspensive effect on the enforcement of the resolution.
INSTITUTING OF MISDEMEANOUR PROCEEDINGS
Article 167
A misdemeanour proceeding shall be instituted by means of a court resolution on the basis of:
1) A motion to institute misdemeanour proceedings;
2) An issued penalty notice in relation to which the motion for court decision- making has been filed.
Conditions for Issuing of a Penalty Notice
Article 168
A penalty notice shall be issued when only a fine in a fixed amount is laid down among the misdemeanour sanctions for a misdemeanour by the law or another regulation.
No motion to institute misdemeanour proceedings can be filed for the misdemeanours referred to in paragraph 1 of this Article.
A separate penalty notice shall be issued for each respective misdemeanour offender.
A penalty notice cannot be issued to a minor.
Where there are no conditions for issuing of a penalty notice vis-à-vis a legal or a responsible person under this Law, a motion to institute the misdemeanour proceedings shall be filed against both these persons.
Method of Issuing of a Penalty notice
Article 169
The authorized authority, i.e. the authorized person shall issue a penalty notice if the misdemeanour within his/her competence has been detected in one of the following manners:
1) By direct observation of a police officer or an authorized official on the occasion of control, supervision and examination, as well as through the inspection of the official records of the competent authority;
2) By inspection of data obtained with the aid of devices for supervision or measuring;
3) On the occasion of inspection or some other supervision by way of examination of documentation, premises and goods or in some other legally prescribed manner.
Article 170
A penalty notice shall be issued in writing and it shall comprise:
1) The title: A Penalty Notice;
2) The name of the authorized authority that issued it;
3) Identification number of the penalty notice specified by the authorized authority;
4) The personal name and the capacity of the official who has issued it;
5) Date of issuing and date of serving;
6) Personal name of the natural person who is the misdemeanour offender, his/her address of domicile, i.e. residence, the unique citizen’s registration number, information on employment, for foreigners - passport number, i.e. identity card number, and for the responsible person with a legal person the function performed by him/her in such legal person, and for the sole trader the name and seat of the business;
7) Name and seat of the legal person against which the penalty notice is issued, as well as its tax identification number and registration number;
8) Factual description of the act from which the legal characteristic of the misdemeanour arises, as well as the time and place of committing the misdemeanour;
9) Legal qualification of the misdemeanour;
10) Fine imposed;
11) Instruction on the payment method for the fine with the relevant account in which the payment should be made;
12) Signature of the official and seal of the authorized authority;
13) Place for signature, i.e. signature and seal of the person against which the penalty notice is issued;
14) Advice and warnings to the person against which the penalty notice is issued;
15) Information whether another penalty notice is issued for the same misdemeanour to another person;
16) Place for notes.
If the misdemeanour is committed by a motor vehicle in traffic, the penalty notice shall additionally comprise:
1) The registration number of the vehicle and the vehicle license number;
2) The driver’s licence number of the driver, if he/she is known.
The penalty notice can be issued in the electronic form as well.
Unless specified otherwise by this Law, the law regulating electronic document shall apply to the manufacturing, form, copying, certification, service and keeping of the penalty notice issued in the electronic form.
Advice and Warnings in a Penalty Notice
Article 171
A penalty notice shall include the following advice and warnings:
1) That the person against which the penalty notice is issued, if he/she accepts the responsibility and pays within eight days from the date of receipt of the penalty notice one half of the fine imposed in compliance with Article 173, paragraph 1 of this Law, shall be released from payment of the other half of the fine imposed;
2) That the person against which the penalty notice is issued may accept responsibility for the misdemeanour even following the expiry of the time limit of eight days from the receipt of the penalty notice, if, prior to the enforcement procedure, he/she voluntarily pays the total amount of fine imposed in compliance with Article 173, paragraph 4 of this Law;
3) That the person against which the penalty notice is issued and which does not accept responsibility for the misdemeanour is entitled to, within eight days from the receipt of the penalty notice, file a motion for court decision making by submitting the penalty notice in person or through post to the misdemeanour court of relevant jurisdiction with an indication of the court to which the motion is filed in compliance with Article 174, paragraph 1 of this Law;
4) That the person against which the penalty notice is issued will be obliged to, in addition to paying the fine stipulated in the penalty notice, compensate the court expenses in case that he/she requests court decision making and that the court determines that he/she is responsible for the misdemeanour in compliance with Article 174, paragraph 7 of this Law;
5) That the penalty notice shall become final regarding any administrative procedure and enforceable upon the expiry of the time limit of eight days from the date of receipt thereof if the person against which the penalty notice is issued does not pay the fine or does not request the court decision-making on the penalty notice issued within such time limit in compliance with Article 173, paragraph 2 of this Law;
6) That the person against which the penalty notice is issued, in case of an enforcement of the fine imposed, be obliged to compensate the costs of such enforcement specified in the resolution on enforced collection in compliance with Article 318, paragraph 6 of this Law;
7) That the uncollected fine shall be substituted for the natural person, sole trader, and the responsible person with the legal person against which the penalty notice is issued with the prison sentence or community service in compliance with Article 41 of this Law.
Provisions of paragraph 1, items 1) through 7) of this Article shall be constituent parts of a penalty notice, as advice and warning to the person against which the penalty notice is issued, within the meaning of Article 170, paragraph 1, item 14) of this Law.
The minister in charge of justice shall define the form of the penalty notice by means of a separate regulation.
Article 172
A penalty notice shall comprise of the original and two copies. The original shall be served on the person against which the penalty notice is issued and the copies shall be kept by the authority issuing the penalty notice.
The penalty notice shall be served on the person present who is considered to have committed the misdemeanour at the moment when the misdemeanour was detected. The person against whom the penalty notice is issued shall confirm the receipt thereof by means of his/her signature in the relevant place in the notice.
A printed copy of the penalty notice issued in electronic form may also be served on the person referred to in paragraph 2 of this Article.
The issuer of the notice shall issue a certified copy of the penalty notice at the request of the court, of the person to which the notice is served or of his/her representative.
If the person who is considered to have committed the misdemeanour is absent and where it is required due to the circumstances of detection or the nature of the misdemeanour, the penalty notice shall be served through mail or a delivery service of the authorized authority, in compliance with the provisions on service from law regulating the general administrative procedure.
If the person present against which the penalty notice is issued refuses to receive the notice, the official shall warn him/her of the consequences of the refusal of receipt, enter a note in the notice that the receipt was refused, the date and time of the refusal of receipt, upon which it shall be considered that the penalty notice is served.
If the person against which the penalty notice is issued states that he/she will request the court to decide on the notice, the authority that is issuing the notice may, in agreement with the court of relevant jurisdiction, determine the date of hearing on the occasion of issuing of the notice.
The authority shall enter in the notice a record of the scheduled hearing and immediately or on the next working day at the latest, notify the court of relevant jurisdiction thereof.
It shall be considered that the defendant has abandoned the request for court decision making, within the meaning of Article 175 of this Law, if he/she does not appear at the hearing and fails to justify his/her absence.
Article 173
The person against which the penalty notice is issued shall accept responsibility for the misdemeanour by paying one half of the fine imposed within eight days from the date of receipt of the penalty notice, whereby he/she shall be released from payment of the other half of the fine imposed.
If the person against which the penalty notice is issued does not pay the fine imposed within eight days from the date of receipt of the penalty notice or does not file a motion for court decision making on the penalty notice issued, it shall be considered that he/she has accepted the responsibility by omission, and the penalty notice shall become final in administrative procedure and enforceable.
The penalty notice with the statement of finality and a note that the fine has not been paid shall be delivered by the authorized authority to the misdemeanour court of relevant jurisdiction so that the fine imposed can be entered in the register and that the enforcement procedure be carried out in compliance with this Law.
The person against which the penalty notice is issued may accept the responsibility for the misdemeanour even following the expiry of the time limit of eight days from the receipt of the penalty notice if, prior to the enforcement procedure, voluntarily pays the entire amount of the fine imposed.
Proceedings at the Request for Decision Making by the Court
Article 174
The person against which the penalty notice is issued, if he/she does not accept the responsibility, may, within eight days from the date of receipt of the penalty notice, deliver to the court of relevant jurisdiction in person or through mail, the signed penalty notice, which shall, under these conditions, represent the request for court decision making on the penalty notice (hereinafter: the motion for court decision making).
By delivering the motion for court decision making to the court of relevant jurisdiction, the person against whom the penalty notice is issued shall acquire the capacity of the defendant in the misdemeanour proceedings (hereinafter: the defendant).
If the defendant files a motion for court decision making to the court in person, the court shall immediately upon receipt of the motion, make a case entry, issue to the defendant a certificate of the receipt of the motion, examine the motion and hand down the resolution on instituting of the proceedings, and hear the defendant or schedule a hearing for him/her.
If the defendant delivers the motion for court decision making to the court by mail, he/she may enclose with the signed penalty notice his/her written defence and deliver or propose evidence.
The court shall, immediately upon having made a case entry, examine the motion for court decision making, hand down a resolution to institute the proceedings and summon the authority that has issued the penalty notice to provide their answer within eight days and to deliver or propose evidence on the misdemeanour committed.
When the court hands down a resolution to institute the proceedings, it shall be considered that the decision on fine from the penalty notice has not been imposed, except in the case referred to in Article 175 of this Law.
If the court determines that the defendant who moved for the court decision making is responsible for the misdemeanour, it shall oblige him/her by means of a decision to pay the fine from the penalty notice in full amount thereof, as well as to compensate the court expenses.
Defendant’s Abandoning of the Motion for Court Decision Making
Article 175
The defendant who filed a motion for court decision making may abandon such motion at the first hearing at the latest.
It shall be considered that the defendant has abandoned the motion for court decision making if the duly summoned defendant does not appear in the first hearing and does not provide an excuse for his/her absence.
In the case referred to in paragraphs 1 and 2 of this Article, the court shall, by means of a resolution, determine that the penalty notice is final in administrative procedure and enforceable and it shall oblige the defendant to pay the misdemeanour costs incurred, and the fine imposed shall be entered in the register of fines.
The defendant shall be entitled to file an appeal against the resolution referred to in paragraph 3 of this Article within eight days. The appeal shall not have suspensive effect on the enforcement of the resolution.
Examining the Motion for Court Decision Making
Article 176
The court shall dismiss, by means of a resolution, a belated or unsigned motion for court decision making.
The defendant shall be entitled to file an appeal against the resolution referred to in paragraph 1 of this Article within eight days. The appeal shall not have suspensive effect on the enforcement of the resolution.
Upon the resolution whereby the court dismisses the motion for court decision making due to the reasons referred to in paragraph 1 of this Article, the penalty notice shall become final and enforceable and the fine imposed shall be entered by the court in the register of misdemeanour sanctions.
If the penalty notice which is submitted by the defendant as a motion for court decision making is illegible or does not include complete information required for the court to act, and in particular if the following is missing - the factual description of the action from which the legal characteristics of the misdemeanour result, the time and place where the misdemeanour occurred, the court shall, prior to handing down on the resolution on instituting of the proceedings, request from the authority that has issued the penalty notice to amend it within eight days.
If the authorized authority fails to act in compliance with the request of the court within the time limit left to it and does not remove the deficiencies, the court shall treat the motion in the same manner as specified in Article 182 of this Law that regulates a deficient motion to institute misdemeanour proceedings.
Instituting Proceedings based on Issued Penalty Notice
Article 177
Where the court does not dismiss the motion of the defendant for court decision making based on the penalty notice issued, it shall hand down a resolution on instituting of a misdemeanour proceedings.
The misdemeanour court shall notify the issuer of the penalty notice that the misdemeanour proceeding has been initiated and that it is required that the issuer provides complete evidence available of the misdemeanour committed.
Persons without Domicile in the Territory of the Republic of Serbia
Article 178
A misdemeanour offender who is unable to prove his/her identity or has no domicile, or does not live at the address at which he/she is registered, or if he/she has domicile abroad or if he/she is going abroad to reside, and to whom a penalty notice has been issued during the working hours of a bank or a post office, shall be ordered to pay the fine imposed immediately through a bank or a post.
Where the penalty notice is issued to a misdemeanour offender after the regular working hours of a bank or a post office, or where the misdemeanour is committed out of a populated place, the fine shall be collected on the spot and a certificate shall be issued thereof in which the postage charge amount shall be indicated which the misdemeanour offender shall pay on the spot, and the authorized officer shall pay such amount on the first following working day through the post.
If the misdemeanour offender fails to pay the fine, it shall be considered that he/she has filed a motion for court decision making and shall immediately be brought before the court of relevant jurisdiction.
Where it is not possible to bring the misdemeanour offender before the court immediately, the representative of the authorized authority may take the measures referred to in Article 199, paragraph 1 of this Law.
2. Motion to Institute Misdemeanour Proceedings
Article 179
The motion to institute misdemeanour proceedings shall be filed by an authorized authority or by the aggrieved party (hereinafter: the moving party).
The authorized authorities referred to in paragraph 1 of this Article shall be the administration authorities, authorized inspectors, public prosecutor and other authorities and organizations which are exercising public powers, whose respective competencies include direct enforcement or supervision over the enforcement of regulations whereby the misdemeanours are provided for.
The Aggrieved Party as the Mover Instituting a Misdemeanour Proceeding
Article 180
The aggrieved party shall be authorized to file a motion to institute misdemeanour proceedings in all cases except where the law provides that only the authority referred to in Article 179, paragraph 2 of this Law shall be authorized to institute misdemeanour proceedings.
The aggrieved party which has filed a motion to institute misdemeanour proceedings shall have the status of a party to the proceedings.
Where in the case referred to in paragraph 1 of this Article, the authorized authority fails to file a motion to institute a misdemeanour proceeding, the aggrieved may, in compliance with the provisions of this Law, file such a motion.
If the motion to institute the proceeding is filed by an authorized authority prior to the commencement of the proceeding at the motion of the aggrieved party, the motion to institute the proceeding of the authorized authority shall have the priority and shall be the one in procedure.
The misdemeanour report by the aggrieved party filed to the competent authority under conditions from this Law shall be considered to be a motion to institute misdemeanour proceedings if the authorized authority itself fails to initiate instituting of a misdemeanour proceeding.
In the case referred to in previous paragraph, the authorized authority shall, within eight days from the date of the filed misdemeanour report, notify the aggrieved party in writing of how it proceeded with the misdemeanour report.
The aggrieved party may, during the course of the proceedings, take over prosecution from the public prosecutor who desists from the motion to institute the proceedings. The aggrieved party may stick with the prosecutor’s motion or amend it.
Article 181
A motion to institute misdemeanour proceedings shall be filed in writing and shall include:
1) The name and seat of the moving party, i.e. the personal name and address of the person filing the motion;
2) The name of the court to which the motion is filed;
3) Basic information on the natural person, sole trader and responsible person against which the motion is filed: the personal name, unique citizen’s identification number, profession, place and address of residence, place and address of employment and citizenship, i.e. name and seat of the legal person, as well as the tax identification number (hereinafter: TIN) and company registration number, and for the sole trader the name and seat of the business, and for the responsible person with the legal person the function that he/she performs in such legal person;
4) A factual description of the action from which the legal characteristic of the misdemeanour arises, the time and place of committing the misdemeanour and other circumstances required to specify the misdemeanour as accurately as possible;
5) The regulation on the misdemeanour that should be applied;
6) The proposed evidence that should be examined, with indications of personal names and addresses of the witnesses, files that should be read and objects serving as evidence;
7) Information on whether a criminal proceeding or a procedure for an economic offence has been instituted for an act that includes the characteristics of the misdemeanour that is the subject matter of the motion;
8) Signature of the official, i.e. of the aggrieved party as the moving party and seal of the authorized authority that is filing the motion.
If available, the following data on the person against which the motion is filed shall be provided in the motion too: place and date of birth, telephone number, e-mail address, and telephone number at workplace, business account numbers of the legal person and of the sole trader.
The motion referred to in paragraph 1 of this Article may additionally include a motion to impose the procedural measure of restraining access referred to in Article 126, paragraph 3, item 4) of this Law.
The motion to institute misdemeanour proceedings which is filed by a natural person as the aggrieved party does not have to include the regulation on the misdemeanour that should be applied or the unique citizen’s identification number of the person against whom the motion is filed.
The motion to institute misdemeanour proceedings which is filed by a natural person as the aggrieved party against a legal person and the responsible person with the legal person and a sole trader should include the name and seat of the legal person, the name, surname and function of the responsible person with such legal person, i.e. the name and surname of the sole trader, and the name and seat of his/her business.
The motion to institute misdemeanour proceedings which is filed by a natural person as the aggrieved party against the responsible person with a public authority, authority of the territorial autonomy and unit of the local self-government or other holders of public powers should include the personal name of the defendant, name and seat of the authority and the function, i.e. tasks that the person performs in the authority.
A natural person in the capacity of the aggrieved party may also file a motion to institute misdemeanour proceedings to the misdemeanour court of relevant jurisdiction orally on the record.
The moving party must notify the misdemeanour court that a criminal proceeding or a proceeding for an economic offence is conducted against the defendant in relation to the same event, immediately upon learning thereof and until the final completion of the proceedings.
Article 182
A motion to institute misdemeanour proceedings shall be filed in as many copies as there are defendants and one copy for the court. Where the motion does not include all data referred to in Article 181 of this Law, the moving party shall be asked to supplement it within a specified time limit.
The time limit referred to in paragraph 1 of this Article may not be longer than 15 days.
In case that the moving party does not remove the deficiencies within the specified time limit, it shall be considered that he/she has desisted from the motion and the motion shall be dismissed by means of a resolution.
Examining Conditions for Institution of Proceedings
Article 183
When the court of relevant jurisdiction receives the motion to institute misdemeanour proceedings, it shall examine whether there are conditions for institution of misdemeanour proceedings and decide on the further course of the proceedings.
When the motion includes data concerning the fact that a criminal proceeding or a proceeding for an economic offence has been instituted in relation to the same event, the misdemeanour court shall deliver the case files to a court of relevant jurisdiction for further actions and notify the moving party thereof.
The court shall also act in the manner referred to in paragraph 2 of this Article when it learns during the proceedings that a criminal proceeding or a proceeding for an economic offence is pending related to the same event.
Article 184
When the court determines that there are no conditions for institution of a misdemeanour proceeding, the motion to institute proceedings shall be dismissed by means of a resolution.
Conditions to institute misdemeanour proceedings shall be lacking:
1) When the act described in the motion is not a misdemeanour;
2) When the court has no subject matter jurisdiction to conduct the misdemeanour proceedings;
3) When there are grounds that exclude the responsibility of the defendant for the misdemeanour;
4) When instituting a misdemeanour proceeding has become time-barred;
5) When the motion has been filed by an authority that is not authorized, i.e. by a person that is not authorized for that;
6) When there are other legal reasons due to which the proceedings may not be instituted.
The resolution referred to in paragraph 1 of this Article shall be delivered to the moving party, and the aggrieved party shall be advised that the property claim can be realized in a lawsuit.
The moving party shall be entitled to appeal against this resolution within eight days from the resolution delivery date.
Resolution on Institution of Misdemeanour Proceedings
Article 185
If the court does not dismiss a motion for instituting of misdemeanour proceedings, it shall hand down a resolution on instituting of misdemeanour proceedings.
The resolution referred to in paragraph 1 of this Article shall include the designation of the person against which the misdemeanour proceedings is being instituted and the legal qualification of the misdemeanour.
Where the motion is filed against a number of persons or for a number of misdemeanours, all the persons and the legal qualification for all the misdemeanours must be indicated in the resolution. The resolution on instituting of a misdemeanour proceedings shall not be delivered to the moving party or to the defendant.
No appeal shall be permitted against the resolution on instituting of a misdemeanour proceedings.
The proceedings shall be conducted only in respect of the misdemeanour and against the defendant to which the decision to institute the misdemeanour proceedings is relating, except in the case referred to in Article 247, paragraph 4 of this Law.
The court shall not be bound by the legal qualification provided in the motion to institute the misdemeanour proceedings i.e. in the resolution on instituting the misdemeanour proceedings.
MEASURES TO SECURE ATTENDANCE BY THE DEFENDANT
Article 186
Measures that can be taken to secure attendance by the defendant and successful conducting of the misdemeanour proceedings shall be: the summons, bringing in, bail and detention.
On the occasion of deciding which of the measures listed shall be applied, the court shall adhere to the conditions determined for application of individual measures, taking care that a stricter measure is not applied if the same purpose can be achieved by applying a less severe measure.
Article 187
Defendant’s attendance on the occasion of carrying out the actions in misdemeanour proceedings shall be secured by summoning him/her. Summons shall be addressed to the defendant by the court.
The defendant who should personally attend carrying out of the actions in the misdemeanour proceedings i.e. personally participate in carrying out thereof shall be summoned by the writ of summons.
Summoning shall be carried out by serving a closed writ that shall include: the name of the court, personal name of the defendant, legal qualification of the misdemeanour that he/she is charged with, place where the defendant is to appear, date and time when the defendant is to report, an indication that he/she is being summoned in the capacity of a defendant, official seal and signature of the judge. The summons shall include the information whether the defendant must attend in person for the purpose of hearing or whether he/she may provide his/her defence in writing.
When the defendant is summoned for the first time, a copy of the motion to institute the misdemeanour proceedings shall be mandatorily delivered to him/her enclosed with the summons.
When the defendant is summoned for the first time, he/she shall be advised in the summons on the right to hire a defence counsel and that the defence counsel may attend his/her hearing.
When the defendant is summoned to personally appear because it is necessary to hear him/her, he/she shall be warned in the summons that in case of a failure to appear, he/she shall be brought in.
Where the defendant’s presence is not necessary for the establishment of facts of the case, he/she shall be warned in the summons that in case of a failure to appear, the decision shall be handed down without his/her hearing.
In addition, provisions of this Article shall apply mutatis mutandis on summoning of the representative of the indicted legal person.
Article 188
If a duly summoned defendant does not obey the summons and does not justify his/her absence or if the summons could not be properly served and where it is obvious from the circumstances that the defendant is avoiding to receive the summons, the court shall, by way of exception, order that he/she be brought in if the establishing of facts of the case cannot be completely and properly done in some other manner.
Bringing in of the defendant can be ordered only where it was indicated in the summons that he/she would be forcibly brought in if he/she failed to obey the summons.
If a duly summoned representative of the indicted legal person does not obey the summons and does not justify his/her absence, it shall be ordered that he/she be brought in.
Article 189
A writ of body attachment shall be issued in writing. The writ should include: the name of the organisational unit of the police directorate to which is it addressed, personal data required to identify the defendant that is to be brought, the reason for ordering the body attachment, the official seal and signature of the judge ordering the body attachment.
The writ of body attachment shall be carried out by the authorized police officers.
The person entrusted with carrying out of the writ shall hand over the writ to the defendant i.e. to the representative of the indicted legal person and summon him/her to come with him/her. If the summoned person refuses to comply, he/she shall be brought forcibly.
No writ of body attachment shall be issued against a police officer, a professional member of the military or against a member of the guards in a penitentiary institution, but their respective commands, i.e. institutions shall be asked to escort them.
The costs of bringing shall be borne by the person brought.
Issuing of a General Writ of Body Attachment
Article 189a
The court may order that a general writ of body attachment be issued if the defendant against which a misdemeanour proceeding is instituted is on the run or where there are other circumstances that are indicative of his/her obvious avoiding to be brought under the court issued writ of body attachment which has not been carried out due to the existence of these circumstances.
The general writ of body attachment shall be delivered by the court to the police authorities for the purpose of organizing a search.
A search shall be organized by the police authority competent according to the place of the court before which the misdemeanour proceedings is conducted.
Where the person found in accordance with the issued general writ of body attachment cannot be immediately brought to the court, an authorized police officer may, in compliance with the provisions of Article 190, paragraph 3 of this Law, detain the defendant for 24 hours at the maximum from the moment when he/she is found.
The court that has ordered that the general writ for body attachment be issued shall be obliged to immediately withdraw it when the person sought is found or when conducting of the misdemeanour proceedings or enforcement of misdemeanour sanctions becomes time-barred or when other reasons due to which the pursuit is no longer required occur.
Apprehension of a Suspect for a Committed Misdemeanour Prior to Initiating the Proceeding
Article 190
Authorized police officers may, even without a court order, apprehend a person caught while committing a misdemeanour:
1) If the identity of such person cannot be determined or where there is a need to check his/her identity;
2) If he has no domicile or residence;
3) If, by going abroad, he/she may avoid misdemeanour liability, and the matter is about a misdemeanour for which no penalty notice can be issued;
4) If, by means of such bringing, he/she is prevented from continuing to commit the misdemeanour, i.e. if there is a danger that he/she will immediately continue committing the misdemeanour, repeat the misdemeanour or avoid the misdemeanour proceedings.
Apprehension of the suspect in the cases referred to in paragraph 1 of this Article must be conducted without delay.
If, in the cases referred to in paragraph 1 of this Article, the suspect has been caught while committing the misdemeanour but cannot be brought to the court immediately, and where there is reasonable doubt that he would flee or danger that he would directly continue committing misdemeanours, the authorized police officer may detain the suspect for 24 hours at the maximum.
In the case referred to in paragraph 3 of this Article, the authorized police officer shall, without delay, notify a person chosen by the detained person of the detention, as well as the diplomatic and consular representative of the state whose national has been detained, i.e. the representative of the relevant international organisation if the person detained is a refugee or a stateless person.
By way of exception from paragraph 1 of this Article, a detention measure can be imposed against a minor by means of a court order only.
A resolution on detention shall be passed when a suspect is apprehended.
The defendant and his defence counsel shall be entitled to appeal against the resolution on detention within four hours from the delivery of the resolution on detention.
An individual judge of the misdemeanour court that has territorial jurisdiction shall decide on the appeal within four hours from the receipt of the appeal.
The appeal shall not have suspensive effect on the enforcement of the resolution.
Provisions of paragraphs 6 through 9 of this Article shall additionally apply to detention of persons under the influence of alcohol or other psychoactive substances.
Article 191
In misdemeanour proceedings, a defendant can be detained by a court order in the following cases:
1) If his/her identity or domicile, i.e. residence cannot be determined, and there is reasonable doubt that he/she will escape;
2) If, by going abroad, he/she may avoid misdemeanour responsibility for which a prison sentence is prescribed;
3) If he/she has been caught while committing the misdemeanour and detention is necessary in order to prevent further committing of misdemeanour.
The judge shall notify the family members of the person detained or other persons in charge of taking care of the minor where detention is ordered against him/her.
Article 192
An order shall be issued by the court in order to detain the defendant wherein the date and hour when the detention is ordered shall be specified, as well as the legal grounds for the detention. Detention may not last longer than 24 hours.
The defendant shall be briefed about the detention order and he/she must sign it.
The defendant which has been detained shall be allowed without delay to notify of such detention a person of his/her choice, as well as the diplomatic and consular representative of the state whose national he/she is, i.e. the representative of the relevant international organisation if it is a case of a refugee or a stateless person, or the defence counsel, where the defence counsel has not been present on the occasion of his/her hearing.
Detaining a Person which is under the Influence of Alcohol or other Psychoactive Substances
Article 193
A person under the influence of alcohol or other psychoactive substances caught while committing a misdemeanour may, according to a court order or on the basis of a resolution of an authorized police officer, be detained if there is a danger that he/she will continue to commit misdemeanours.
The detention of a person in the case referred to in paragraph 1 of this Article may last until sobering up or for 12 hours at the maximum.
If the person referred to in paragraph 1 of this Article is a driver of a motor vehicle and has in excess of 1.20 mg/ml of alcohol in the blood or is under the influence of some other stupefying substances, detention shall be mandatory.
Detention shall additionally be mandatory where the person referred to in paragraph 1 of this Article has refused to undergo a test for the presence of alcohol or other stupefying substances.
Where it is possible, in the case referred to in paragraph 1 of this Article, the judge shall notify the family members of the detained person or other persons in charge of taking care of the minor where detention is ordered against him/her.
Article 194
Where a misdemeanour proceeding has been initiated against a defendant who does not have a permanent domicile in the Republic of Serbia or who is temporarily residing abroad, as well as in other cases where there is a danger that he/she could avoid responsibility for the misdemeanour by running away, it can be requested that he/she personally or some other person on his/her behalf deposits a bail that he/she will not run away until completion of the misdemeanour proceedings, and that the defendant himself/herself promises that he/she shall not hide and that he/she shall not leave his/her residence without permission.
A bail may not be set before the defendant is heard or without his/her consent.
Upon setting the bail, the court conducting the misdemeanour proceedings shall request the defendant to designate his/her proxy or a proxy for receipt of notices.
Article 195
A bail shall always equal an amount of money.
A bail shall consist of depositing cash, securities, valuables or other movable items of higher value which can easily be exchanged for money and kept, or of a personal obligation of one or several citizens that in case that the defendant runs away they will pay the determined bail amount.
The amount of bail shall be determined up to the amount of the highest fine prescribed for the misdemeanour for which the proceedings are conducted, increased by the expected costs of the misdemeanour proceedings.
Where the proceedings are conducted against the same defendant for several misdemeanours, the bail shall be determined as the amount of punishment that can be imposed for the multiplicity of misdemeanours.
In the cases referred to in paragraphs 3 and 4 of this Article, the bail can be increased by the amount of the property claim put forward by the aggrieved party.
The amount of bail shall be determined by the judge who conducts the misdemeanour proceedings and in compliance with the gravity of the misdemeanour, amount of damage incurred, personal and family circumstances and economic standing of the defendant.
Article 196
Where the misdemeanour is perpetrated by a person who does not have domicile in the Republic of Serbia and who wishes to leave its territory before finality of the court decision, a bail can be set at the proposal of the defendant independently from the conditions referred to in Article 194, paragraph 1 of this Law, where the amount of bail shall be set in the amount of the highest fine that can be imposed for the misdemeanour for which the proceedings is conducted, increased by the amount of property claim put forward by the aggrieved party and for the expected costs of the misdemeanour proceedings.
Leaving the Territory of the Republic of Serbia and Bail
Article 197
If the defendant runs away or leaves the territory of the Republic of Serbia, it shall be determined by means of a resolution that the amount provided as bail shall be registered as income of the budget of the Republic of Serbia.
Article 198
A bail shall be retained, as a rule, until passing of a final judgement.
If the acquittal becomes final or the decision on discontinuation of the misdemeanour proceedings has been passed, the bail posted shall be returned.
If upon finality of judgement the person punished does not pay for the damage or costs of the misdemeanour proceedings, the amount set shall be collected from the bail posted, and where the amount posted is not sufficient, the amount of damage shall be compensated from it primarily.
If the person punished does not pay the fine, i.e. the determined amount of proceeds confiscated, upon collection of damages and costs of the misdemeanour proceedings, the fine shall be collected in its entirety and then the determined proceeds, from the remaining amount.
If the person punished fails to appear to serve the prison sentence or fails to appear for the enforcement of the protective measure, the remaining bail amount shall be kept in its entirety and paid in as income of the budget of the Republic of Serbia.
Retention of Personal Identification Document
Article 199
The court may retain the travel document or another identification document of the defendant until the judgement enforcement, if it finds that the person punished whose the place of residence is abroad might thwart enforcement of judgement by leaving the territory of the Republic of Serbia.
The court shall impose retention of identification document at the proposal of the moving party or ex officio.
A certificate shall be issued on retention of identification document.
HEARING A DEFENDANT
Article 200
As a rule, a defendant shall be heard orally.
A defendant can be heard in the absence of the defence counsel if the defence counsel is unjustifiably absent despite having been notified of the hearing or if for the first hearing the defendant has not provided a defence counsel and if the defendant declares that he/she shall defend himself/herself without a defence counsel.
Statements of the defendant on the reasons for absence of the defence counsel shall be recorded in the transcript.
A decision cannot be based on a statement made by the defendant who has not been cautioned of the right to have a defence counsel of his/her choice or to be heard in the presence of a defence counsel.
When the defendant is heard for the first time, he/she shall be asked to provide his/her personal name, nickname if any, personal name of one parent, place and date of birth, unique citizen’s identification number, nationality, profession, address of residence and work, electronic mail address, family circumstances, his/her professional qualifications, his/her economic standing, the dinar and foreign currency bank account numbers, whether he/she has been convicted or punished for a misdemeanour and for what, whether a criminal or misdemeanour proceeding is conducted against him/her and for what offence, and if he/she is a minor, who his/her legal representative is.
For providing false and incomplete data referred to in paragraph 5 of this Article, the court may punish the defendant with a fine up to 50,000 dinars.
If, following the decision on punishment referred to in paragraph 6 of this Article the defendant provides correct information, the judge may revoke the decision on punishment.
After taking personal data, the defendant shall be informed what is he/she accused of and shall be invited to state everything that he/she has in his/her defence.
At hearing, the defendant shall be enabled to offer justification in an uninterrupted statement of all the circumstances that he/she is charged with and to present all the facts that are serve for his/her defence.
If the defendant does not want to speak or denies an answer to a posed question, he/she shall be advised that by doing that he/she may aggravate collecting evidence for his/her defence.
When the defendant completes his/her statement, he/she shall be asked questions, if necessary, to fill in the gaps or to remove inconsistencies and ambiguities in his/her statement.
Provisions on hearing of a defendant shall apply mutatis mutandis to hearing of a responsible person with a legal person and of a sole trader.
Hearing of a Representative of a Defendant Legal Person
Article 201
When a representative of a defendant legal person is heard for the first time, he/she shall be asked to provide the name and seat of the defendant legal person, personal name of the representative and his/her position, i.e. tasks performed in the legal person, number of business accounts of the legal person, TIN and company registration number of the legal person and whether the legal person has been convicted of a criminal offense, an economic offence or a misdemeanour.
Provisions on hearing of a defendant shall apply mutatis mutandis to hearing of a representative of a defendant legal person.
Respecting the Defendant’s Person
Article 202
A defendant shall be heard with full respect for his/her person.
Force, threat, deceit, promise, extortion, exhausting or other similar means shall not be used against the defendant in order to get his/her statement or confession or any action that might be used against him/her as evidence.
Article 203
If the court finds that the direct oral hearing is not necessary bearing in mind the significance of the misdemeanour and data available, it may advise the defendant in the summons to provide his/her defence in writing. In such a case, the defendant may provide his/her defence in writing or appear in person to be heard orally.
Article 204
When a defendant has domicile or residence outside of the territory of the court before which the proceedings are conducted, at the request of such court, he/she may also be heard before the court in the territory of which the defendant has domicile or residence.
Article 205
The defendant may be confronted with a witness and with another co-defendant if their statements do not agree in respect of important facts and if such disagreement cannot be removed in some other manner.
Those confronted shall be positioned facing each other and they shall be requested to repeat their respective statements to each other on each contentious circumstance and to discuss the truthfulness of what they stated. The course of confrontation and statements at which those confronted finally remain shall be entered in the transcript by the court.
Hearing through an Interpreter and a Translator
Article 206
If the defendant is deaf, questions will be asked in writing, and if he/she is mute, he/she shall be invited to answer in writing. If the hearing cannot be conducted in that manner, a person who can communicate with the defendant shall be invited as an interpreter.
Where the defendant cannot understand the language of the proceedings, questions shall be asked to him/her through a translator.
HEARING OF WITNESSES
Article 207
Persons who will probably be able to provide information about the misdemeanour and the offender and about other important circumstances shall be summoned as witnesses.
The aggrieved party can be heard as a witness.
Article 208
Each person who is summoned as a witness shall obey the summons, and unless determined otherwise by this Law, he/she shall testify as well.
Article 209
A witness shall be served with a written summons, in which the personal name and profession of the person summoned shall be indicated, along with the time and venue, the misdemeanour case in relation to which he/she is summoned, an indication that he/she is summoned as a witness and the warning about the consequences of any unjustified failure to appear.
A witness shall be summoned through the party that has proposed that he/she testifies, and where this is not possible, the court shall summon him/her directly.
Where the aggrieved party is summoned as a witness, this shall be indicated in the summons.
A minor who has not turned sixteen shall be summoned as witness through the legal representative i.e. through the guardian, except where this is not possible due to the need to act urgently or due to other circumstances.
Witnesses who, due to their old age, illness or severe physical disabilities cannot obey the summons can be heard in their apartments.
Article 210
The following cannot be heard as a witness:
1) A person who, by his/her testimony, would be in breach of the duty to keep the official or military secret until he/she is excused from such duty by the competent authority;
2) The defence counsel of the defendant about what the defendant confided in him/her as his/her defence counsel, unless where the defendant personally requests that.
Excuse from the Duty to Testify
Article 211
The following shall be excused from the duty to testify:
1) The spouse of the defendant;
2) Blood relatives of the defendant in direct line, relatives in the collateral line up to and inclusive of the third degree, as well as the in-law relatives up to and inclusive of the second degree;
3) The adoptee and the adoptive parent of the defendant;
4) The religious confessor about what the defendant confessed to him.
The judge who conducts the misdemeanour proceedings shall warn the persons referred to in paragraph 1 of this Article prior to their hearing or as soon as he/she learns for their relationship with the defendant that they do not have to testify. The warning and the response shall be entered in the transcript.
A minor who, on account of his/her age and psychological development, is not capable of understanding the significance of the right to be excused from testifying, cannot be heard as a witness unless where the defendant personally requests that.
A person who has grounds to refuse to testify against one of the defendants shall be excused from the duty to testify against other defendants as well where his/her testimony, by the nature of things, cannot be limited to other defendants only.
Consequence of the Breach of Rules on Testifying
Article 212
If a person who may not be heard as a witness (Article 210) or a person eligible to be excused from the duty to testify (Article 211) is heard as a witness, but has not been warned against that or where such person has not explicitly waived that right, or where the warning or the waiver has not been recorded in the transcript, or where a minor who cannot understand the significance of the right to be excused from testifying has been heard, or where the testimony of the witness has been obtained by force, threat or other prohibited means, decision cannot be based on such a testimony of the witness.
Refusal to Answer Certain Questions
Article 213
A witness shall not be obliged to answer certain questions where it is probable that by doing that, he/she would expose him/herself or a close relative to a deep disgrace, considerable property damage or criminal prosecution.
Article 214
A witness shall be heard before the court that conducts the misdemeanour proceedings, and where the witness has domicile, i.e. residence outside of its territory, he/she can be heard before the court in the territory of which the witness has his/her domicile, i.e. residence.
Witnesses shall be heard individually and without presence of other witnesses.
A witness shall provide testimony and answers to questions posed orally.
The witness shall be previously warned that he/she is obliged to speak the truth and that he/she must not withhold anything, and he/she shall then be cautioned that giving a false testimony is a criminal act.
The witness shall additionally be warned that he/she is not obliged to testify if there are circumstances referred to in Article 211 of this Law, and such warning shall be entered in the transcript.
On the occasion of hearing, the witness shall be first asked to provide his/her personal name, the personal name of one parent, age, place of birth, domicile, occupation and his/her relation with the defendant and with the aggrieved party.
After the general questions, the witness shall be invited to state everything that he/she knows about the case, and then he/she shall be put questions for the purpose of verification, supplementing and clarifications.
The witness shall always be asked how he/she knows the things he/she is testifying about.
Where the witness is deaf or mute, he/she shall be heard in the manner provided for in Article 206 of this Law.
If the witness does not understand the language in which proceedings is conducted, he/she shall be heard in the presence and with the assistance of a translator who knows the language spoken by the witness.
Article 215
Witnesses can be confronted if their testimonies do not agree in respect of the important facts. Those confronted shall be heard individually about each circumstance on which they testimonies mutually disagree and their answer shall be entered in the transcript.
Only two witnesses can be confronted simultaneously.
Provisions of Article 205, paragraph 2 of this Law shall apply to confrontation of witnesses.
A minor who has not turned fourteen and who is heard as a witness may not be confronted with the defendant or with another witness.
A minor older than fourteen and younger than eighteen years of age, who is heard as a witness, cannot be confronted with the defendant or with another witness if, due to the nature of misdemeanour, consequences and other circumstances, such person is particularly sensitive or is in a particularly difficult psychological condition.
Failure to Appear and Refusal to Testify
Article 216
If a witness who is duly summoned fails to appear and does not provide an excuse for such absence, or if he/she, without a permission or a justified reason, leaves the place where he/she should be heard, order can be issued to bring him/her in by force, and he/she may be punished with a fine ranging from RSD 10,000 to RSD 50,000.
If an official with the authorized authority which filed the motion for instituting the misdemeanour proceedings fails to obey the summons of the court to be heard in the capacity of a witness, and where he/she fails to justify his/her absence, the court may desist from hearing him/her.
Provisions on bringing of the defendant (Article 188) shall apply mutatis mutandis to bringing of a witness too.
If the witness, following the warning of the consequences of a refusal to testify, does not want to testify without a lawful reason, he/she can be punished with a fine of up to RSD 10,000 and if even after that he/she refuses to testify, he/she can be punished with a fine of up to RSD 50,000.
The resolution on the fine imposed on the witness shall be entered in the transcript.
An appeal against the resolution on the fine shall not have suspensive effect on the enforcement of the resolution.
If the witness agrees to testify immediately after a fine has been imposed on him/her, the fine shall be annulled and revoked.
Where any costs are incurred due to the reasons referred to in paragraphs 1 and 3 of this Article, the witness can be obliged to bear such costs.
In case that the person punished fails to pay the fine and the costs of proceedings, they shall be collected through enforcement action.
INVESTIGATION AT THE SCENE OF MISDEMEANOUR AND EXPERT INQUIRY
Investigation at the Scene of Misdemeanour
Article 217
If personal and direct observation by the judge conducting the misdemeanour proceedings is necessary for establishing or clarification of an important fact, investigation at the scene of misdemeanour shall be performed at the request of parties.
By way of exception from paragraph 1 of this Article, the court may conduct the investigation at the scene of misdemeanour ex officio, under condition referred to in Article 89, paragraph 5 of this Law.
An investigation at the scene of misdemeanour can be performed in the presence of expert witnesses.
The judge who conducts the misdemeanour proceedings shall specify which persons will be summoned to attend the investigation at the scene of misdemeanour.
Minutes shall be drafted during the investigation at the scene of misdemeanour. The minutes shall include the name of the court, i.e. administration authority which conducts the investigation, data on persons present, results of the investigation, and other important facts.
Article 218
Expert witness inquiry shall be ordered at the proposal of the parties where, for the purpose of establishing or assessment of an important fact, it is necessary to obtain the findings and the opinion from a person with the expert knowledge which the court lacks.
By way of exception from paragraph 1 of this Article, the court may order an expert witness inquiry ex officio, under the condition referred to in Article 89, paragraph 5 of this Law.
The expert inquiry shall be ordered in writing by the court which conducts the misdemeanour proceedings. The order shall state in respect of which fact the expert witness inquiry shall be performed and to whom it shall be entrusted. As a rule, one expert witness shall be designated, and where the expert witness inquiry is complex, two or more expert witnesses.
An expert witness inquiry can be entrusted to a relevant professional institution, a state authority or an expert, primarily from the listing of qualified expert witnesses, while other authorities or a person can be designated for such role only where there is a threat from postponement, if the qualified expert witnesses are prevented or where it is called for by other circumstances.
The name of the expert witness shall be imparted to the defendant and to the aggrieved party at their request.
Persons Ineligible for Expert Witnesses
Article 219
A person who cannot be heard as a witness (Article 210) or a person who is excused from the duty to testify (Article 211), or a person who is aggrieved by the misdemeanour cannot be taken as an expert witness, and where such a person has been taken as an expert witness, judgement cannot be based on his/her findings and opinion.
Request for Recusal of an Expert Witness
Article 220
Parties may request recusal of an expert witness due to the reasons prescribed in Article 112 of this Law.
Article 221
Prior to commencement of inquiry, the expert witness shall be invited to carefully examine the subject matter of the expert inquiry, to accurately state everything that he/she observes and finds and to present his/her opinion in an impartial manner and in compliance with the rules of science or skill. He/she shall in particular be cautioned that giving a false statement is a criminal act.
Article 222
Supplemental clarifications can be provided to the expert witness, and where necessary, he/she shall be acquainted with the situation in the case files. At a justified proposal by the expert witness, new evidence can be examined in order to establish the circumstances which are of importance for expert witness inquiry.
The expert witness shall examine the objects subject to inquiry in the presence of the judge who is conducting the misdemeanour proceedings and the stenographer, unless where longer examinations are required for the inquiry or where the examinations are performed in institutions, i.e. in a state authority, or where it is called for by moral considerations.
Where there are suspicions in respect of the defendant’s sanity, expert psychiatric assessment shall be ordered through an examination or observation in a health institution.
Findings and Opinion of an Expert Witness
Article 223
As a rule, the expert witness shall provide his/her findings and opinion in writing, within the time limit determined by the court.
By way of exception, an expert witness may be permitted to provide the findings and the opinion orally on the record. Any discrepancies or ambiguities in the findings and opinion of the expert witness shall be removed by hearing him/her or by repeating the expert witness inquiry through the same or another expert witness.
The written findings and the opinion of the expert witness shall be delivered to the parties to the proceedings, on which they may state their opinions within 15 days.
Punishing of an Expert Witness
Article 224
The person who is summoned as an expert witness shall obey the summons and to provide his/her findings and opinion.
If the expert witness who has been duly summoned fails to appear and fails to excuse his/her absence or where he/she unjustifiably refuses to provide the expert witness inquiry, he/she can be ordered to compensate any costs thus incurred, and he/she may additionally be punished with a fine ranging from RSD 10,000 to RSD 50,000.
The resolution on punishing shall be recorded in the transcript, and the resolution on punishing made in writing shall additionally be delivered to the Ministry in charge of justice.
The appeal against the resolution on punishing of the expert witness shall not have the suspensive effect on the enforcement of the resolution.
In case that the expert witness does not pay the fine imposed, it shall be collected through enforcement action.
Article 225
Provisions of this Law which pertain to the expert witnesses shall apply mutatis mutandis to the interpreters.
SEARCH OF PREMISES AND PERSONS
Article 226
An apartment and other premises, as well as persons, can be searched where it is probable that in the apartment, other premises, things or with certain persons an object or traces shall be found which could be important for the misdemeanour proceedings, or that the defendant will be caught by search of the apartment and other premises.
Search of persons, premises and things which belong to persons enjoying immunity under the international law shall not be allowed.
Article 227
A search shall be ordered by means of a written court warrant.
The search warrant shall be handed over, prior to commencement of the search, to the person with whom or on whom search will be conducted. Prior to the search, the person to whom the search warrant pertains shall be invited to voluntarily surrender the person i.e. the objects that are searched for.
The search warrant shall be implemented by police.
Article 228
Two citizens of legal age shall be present during the search.
The holder of the apartment or the premises shall be invited to be present during the search, and if he/she is absent, one of the adult members of the household or a neighbour shall be invited to be present during the search.
A search in the premises of legal persons can only be performed in the presence of a representative of such legal person.
A search of persons shall be performed by only by the persons who are of the same sex as the person who is being searched and only the persons who are of the same sex as the person who is being searched shall be present during the search in the capacity of witnesses.
Locked premises, furniture or other objects shall be opened by force only where the person holding them or his/her attorney-in-fact is not present or does not wish to open them voluntarily. In doing that, incurring any unnecessary damage shall be avoided.
Article 229
Minutes shall be drafted on each search of an apartment, i.e. premises or person, in which the search warrant based on which the search is performed, the description of premises, i.e. person which is being searched and of the persons, i.e. objects or traces which are found shall be stated.
The minutes shall be signed by the person whose premises or things are searched or which is being searched and by the persons whose presence is mandatory.
A copy of the minutes shall be issued to the person whose premises or things had been searched or which had been searched.
Article 230
If, during a search, objects are found which were used for committing a misdemeanour or which have been procured through a misdemeanour or were made on the same occasion, or objects which may serve as proof in the misdemeanour proceedings, such objects shall be temporarily seized.
Article 231
Objects that can be seized under this Law can temporarily be seized even before handing down of the judgement.
The temporary seizure of objects shall be instructed by the court by means of a written order. The order shall include the disposition and a brief explanation of the reasons for the temporary seizure of the object.
The law may additionally authorize the officials of the inspection authorities, officers of the customs service and the authorized police officers to temporarily seize the objects referred to in paragraph 1 of this Article when, in performing the official duty, they learn of a misdemeanour. The said authorities shall immediately notify the court of the temporary seizure of objects and to ensure keeping of such objects, unless where determined otherwise by the law.
The person from whom the objects have been seized shall be served with the order and issued a receipt with an accurate indication of the objects seized.
If it is a case of perishable objects or where their keeping requires disproportionate costs, the court shall order that such objects are sold and that the proceeds shall be handed over for keeping to a bank or another financial organisation.
Handling of the Temporarily Seized Objects
Article 232
The temporarily seized objects, i.e. the proceeds from the sale of objects shall be returned to the owner in cases where the misdemeanour proceedings does not end with a judgement whereby the defendant is announced guilty, except where it is called for by the interests of general safety or moral reasons, on which a separate resolution shall be handed down by the court.
Where the owner is not known and even within one year from the date of publication of an announcement no one applies for the object, i.e. for the proceeds from the sale of the object, a resolution shall be handed down that the object shall become public property or that the proceeds are ascribed to the budget of the Republic of Serbia. This decision shall not interfere with the right of the owner to realize the proprietary rights in a lawsuit.
PLEA BARGAIN
Article 233
When a misdemeanour proceeding is conducted for one misdemeanour or for a multiplicity of concurrent misdemeanours, the authorized moving party may, orally or in writing, propose to the defendant or to his/her defence counsel to make a plea bargain to confess the misdemeanour (hereinafter: a plea bargain), i.e. the defendant or his/her defence counsel may propose conclusion of such an agreement to the authorized moving party.
When the proposal referred to in paragraph 1 of this Article is made, the parties or the defence counsel may negotiate the conditions of pleading guilty to the misdemeanours that the defendant is charged with.
A plea bargain can be made and delivered to the court until handing down of the first instance decision.
The plea bargain cannot be made in relation to a misdemeanour for which a penalty notice is issued.
Article 234
A plea bargain shall include:
1) The description of the misdemeanour that the defendant is charged with;
2) The confession of the defendant that he/she has committed the misdemeanour referred to in item 1 of this paragraph;
3) The agreement on the type and amount of the punishment, i.e. on other misdemeanour sanctions;
4) The statement of the authorized moving party on desisting from the misdemeanour prosecution for the misdemeanours that are not covered by the plea bargain;
5) The agreement on costs of the misdemeanour proceedings, on the confiscation of proceeds from misdemeanour, on restitution of the object injured by the misdemeanour and on the property claim if filed;
6) The statement on the waiver of the parties and the defence counsel of the right to appeal against the decision of the court handed down on the basis of the acceptance of the plea bargain;
7) Signatures of the parties and the defence counsel.
In the plea bargain, the authorized moving party and the defendant may agree on imposition of a punishment to the defendant which may not be below the statutory minimum prescribed in Article 39, paragraph 1 of this Law.
The defendant and the moving party may agree that the protective measure, prescribed for the misdemeanour that the defendant is charged with, is imposed with a narrower scope or that it is not imposed at all.
Article 235
The court shall decide on the plea bargain, which it may reject, accept or turn down.
The court shall reject the plea bargain if it has been submitted following the handing down of the first instance decision. No appeal shall be permitted against a resolution on rejection of a plea bargain.
Article 236
The court shall accept the plea bargain by means of a judgement if it determines on the basis of the plea bargain:
1) That the defendant, in sound mind and voluntarily, has confessed the misdemeanour, i.e. misdemeanours which comprise the scope of the motion and that the possibility of a confession given in a state misconception by the defendant is excluded;
2) That the plea bargain has been made in compliance with the provisions of Article 234 of this Law;
3) That the defendant is completely aware of all the consequences of the plea bargain, and in particular that he/she completely understands that, by the agreeing to the plea, he/she waives the right to a trial and to filing appeal against the court judgement handed down on the basis of the resolution on acceptance of the plea bargain;
4) That the plea bargain does not infringe the rights of the aggrieved party.
When one or more conditions from this Article have not been fulfilled, the court shall hand down a resolution whereby the plea bargain is turned down. The confession of the defendant given in the plea bargain which has not been accepted by the court cannot be evidence in the misdemeanour proceedings.
When the resolution referred to in previous paragraph of this Article becomes final, the plea bargain and all the files which are related to it shall be separated in separate files and destroyed before the court, about which an official annotation in such separate case shall be made.
The court decision on the plea bargain shall be delivered to the authorized moving party and to the defendant, i.e. to the defence counsel if there is one.
Appeal against the Decision on Plea bargain
Article 237
Against the court resolution on turning down of a plea bargain, an appeal can be filed by the authorized moving party, the defendant and his/her defence counsel, within eight days from the day when the resolution is delivered to them.
No appeal shall be permitted against the decision of the court on acceptance of the plea bargain.
Judgement on Acceptance of a Plea bargain
Article 238
By means of the judgement whereby it accepts a plea bargain, the court shall announce the defendant guilty and impose a punishment, i.e. another misdemeanour sanction and decide on other issues envisaged in the plea bargain.
The judgement must correspond to the contents of the plea bargain and must additionally include the data referred to in Article 251 of this Law.
The judgement referred to in paragraph 1 of this Article shall be delivered to the persons referred to in Article 256 of this Law.
Where the plea bargain envisages desistance by the authorized moving party from misdemeanour prosecution for misdemeanours which are not covered by the plea bargain, the court shall hand down a judgement referred to in Article 253 of this Law in respect of these misdemeanours.
TRIAL
Article 239
A trial shall be ordered when the court assesses that it is necessary for the purpose of proper and complete determining of the findings of facts.
The defendant and his/her defence counsel, the aggrieved party, the person that filed the motion to institute the proceedings and other participants in the proceedings shall be summoned to the trial. If the defendant is a legal person, the representative of the legal person shall be summoned to the trial.
In the summons to the trial, the defendant shall be cautioned that in case of a failure to obey the summons, his/her brining shall be ordered.
If the duly summoned defendant fails to appear in the trial and if he/she does not provide an excuse for such absence, the court shall postpone the trial and issue the bringing order, where there are no conditions to hold the trial without the presence of the defendant.
Failure of the Defendant to Appear
Article 240
The court can decide to hold the trial in the absence of the defendant who has been duly summoned if he/she has been heard, and where it finds that his/her presence is not necessary for proper establishing of the findings of facts.
Under the same conditions, a trial can be held in the absence of the duly summoned representative, i.e. defence counsel of the defendant legal person.
The trial can be held without the presence of the person that filed the motion.
The trial shall also be held if the duly summoned defence counsel of the defendant who has not provided an excuse for his/her absence fails to appear and the defendant has agreed to that.
Article 241
A trial shall be open to public.
The court may exclude the public for the entire trial or for a part thereof where the public interest demands so or moral reasons.
If the proceedings are conducted against a minor, the trial shall be held without the presence of the public.
In the case referred to in paragraphs 2 and 3 of this Article, the court shall caution the persons present in the trial in which publicity has been excluded that they are obliged to keep as a secret everything that they have learnt in the trial and it shall be point out to them that disclosing a secret is a criminal act.
Article 242
The court shall initially perform a check of the presence of those summoned and it shall determine their identities.
The trial shall commence by presenting the contents of the motion to institute the misdemeanour proceedings, following which the hearing of the defendant shall ensue. If the defendants are a legal person and the responsible person with the legal person, the representative of the legal person shall be heard first, and after him/her the responsible person. Witnesses cannot be present in the hearing of the defendant, and of the representative of the legal person and the responsible person. Upon hearing of the defendant, evidence shall be produced by hearing witnesses and expert witnesses and other evidence shall be produced.
The court shall decide on producing of evidence by hearing of witnesses, expert witnesses and other evidence by means of a resolution.
The order of producing evidence shall be determined by the court.
During the proceedings, the court may revoke the resolution that it handed down on producing of an individual piece of evidence.
A transcript shall be made about the operation of the trial, in which the entire course of the trial shall be recorded.
The transcript of the trial shall be signed by the parties present, the defence counsel, the judge, the stenographer.
Rights of the Parties in a Trial
Article 243
The person that filed the motion, the defendant and his/her defence counsel, representative and defence counsel of the legal person and the aggrieved party shall be entitled to, during the trial, propose evidence and make other proposals, and upon approval of the judge who conducted the proceedings, they may pose questions to persons that are heard.
The authorized representative of the moving party shall be entitled to modify the contents of the motion in the trial in respect of the factual description of the misdemeanour.
In the case referred to in paragraph 2 of this Article, the court shall postpone the trial by means of a resolution in order that the defendant can get acquainted with the modification of motion and prepare the defence.
Following the completed evidence procedure, the parties and the defence counsel may give closing arguments with their respective assessments on the presented evidence. The final argument shall always belong to the defendant, i.e. to the representative of the accused legal person.
Where the court finds that the trial should not be postponed for the purpose of supplementing the proceedings or for the purpose of preparation of defence of the defendant due to the modified motion, it shall conclude the trial, and it may hand down the judgement and publicly announce the disposition of the judgement inclusive of a brief statement of reasoning.
Where in the case referred to in paragraph 5 of this Article the defendant and the moving party declare that they do not request that the judgement made in writing be served on them and that they shall not appeal, the defendant shall be handed over, and the moving party shall be served, a transcript of the disposition of the judgement only.
MAINTAINING ORDER
Article 244
It is the duty of the judge to ensure that order is maintained during carrying out actions in misdemeanour proceedings.
If a party to the proceedings, i.e. another person present disrupts order or does not obey the orders to maintain order, the judge shall warn him/her, and if the warning is unsuccessful, he/she may order that such person be removed, which shall be recorded in the transcript.
If the warning is unsuccessful, the persons referred to in paragraph 2 of this Article can be punished with a fine ranging from RSD 10,000 to RSD 50,000. The decision of the court which pertains to maintenance of order shall be entered in the transcript.
The attorney-in-fact or the defence counsel which following the fine continues to disrupt order may be denied further representation, i.e. defence by means of a resolution.
If a person fined does not pay the imposed fine within the time limit specified, the fine shall be collected by enforcement action.
An appeal against the resolution on punishment referred to in paragraphs 2 through 4 of this Article shall not have suspensive effect on enforcement of the resolution.
STAY OF PROCEEDINGS
Article 245
The court shall stay the proceedings by means of a resolution:
1) If the residence of the defendant is not known or if he/she is on the run, or otherwise unavailable to state authorities, or is abroad for an unspecified period;
2) If the defendant has begun to suffer from a temporary mental illness or a temporary mental disorder.
Prior to staying of the proceedings, all pieces of evidence on misdemeanour and liability of the defendant that can be obtained shall be collected.
A proceedings stayed shall be resumed when the obstructions that have caused the stay terminate.
The moving party shall be notified of the stay and of the resumption of the proceedings, and in a misdemeanour proceeding in the field of customs, foreign trade and foreign currency operations, the aggrieved party as well shall be notified.
JUDGEMENT AND OTHER DECISIONS
Handing down of the Judgement and of Other Decisions
Article 246
A misdemeanour proceeding shall be concluded by handing down of a conviction or an acquittal, a resolution whereby the proceedings is discontinued or a resolution whereby a corrective measure is imposed against an offender who is a minor.
A written copy of the judgement, i.e. of the resolution shall be made within eight days from the date of completion of all actions in misdemeanour proceedings which precede handing down of a judgement, i.e. of a resolution.
The judgement, i.e. the resolution shall be based on evidence presented and on the facts established during the proceedings.
Objective and Subjective Identity
Article 247
A decision in misdemeanour proceedings shall pertain only to the person that is charged by the motion to institute the misdemeanour proceedings and only to the misdemeanour which is the subject matter of the motion filed.
The court shall decide on the motion filed in its entirety.
The court shall not be bound by the proposals or the assessment in respect of the legal qualification of misdemeanour.
If, following instituting of a misdemeanour proceeding, the legal person against which the proceedings is conducted ceases to exist, the moving party may direct the motion against its legal successor.
Resolution on Discontinuation of Misdemeanour Proceedings
Article 248
The misdemeanour proceedings shall be completed by means of a resolution on discontinuation where the court establishes:
1) That the misdemeanour proceedings has been conducted without a motion, i.e. that the person that filed the motion to institute the misdemeanour proceedings was not authorized to file it;
2) That the court does not have the subject matter jurisdiction to conduct the misdemeanour proceedings;
3) That the defendant, for the same act, has already been punished with a final decision, acquitted from liability in misdemeanour proceedings or that the misdemeanour proceeding was finally discontinued, but not due to any lack of jurisdiction;
4) That in a criminal proceeding, i.e. an economic offence proceeding, the defendant has been finally acquitted or announced guilty for the same event which also includes the characteristic of the misdemeanour;
5) That the defendant has diplomatic immunity;
6) That the statute of limitations for conducting the misdemeanour proceedings has entered into effect;
7) That the defendant died in the course of the misdemeanour proceeding, i.e. that the accused legal person has ceased to exist and that it has no legal successor;
8) That the authorized moving party has desisted from the motion to institute the misdemeanour proceedings prior to finality of the decision.
The misdemeanour proceedings shall additionally be discontinued in other cases laid down by the law.
In the explanation of the resolution, reasons due to which the proceedings were discontinued and the regulation based on which it was done shall be stated in brief.
Article 249
The judgement whereby the defendant is pronounced liable for the misdemeanour shall be handed down when it is established in the misdemeanour proceedings that the misdemeanour and the liability of the defendant for such misdemeanour exist.
Article 250
The judgement whereby the defendant is released from liability shall be handed down by the court:
1) If the act which he/she has been charged with is not a misdemeanour according to a regulation;
2) If there are circumstances which exclude the misdemeanour liability of the defendant;
3) If it has not been proved that the defendant has committed the misdemeanour for which the motion to institute the misdemeanour proceedings was filed against him/her.
Contents of the Disposition of the Judgement whereby the Defendant is convicted for a Misdemeanour
Article 251
Where the defendant is pronounced liable for a misdemeanour, the disposition of the judgement shall include:
1) The misdemeanour for which the defendant is pronounced liable with an indication of facts and circumstances which comprise the characteristics of the misdemeanour and which the application of the specific regulation on misdemeanour is dependent on;
2) The regulations that have been applied;
3) The decision on sanctions imposed;
4) The decision on confiscation of proceeds;
5) The decision on reckoning detention in the punishment imposed;
6) The decision on property claim;
7) The decision on costs of the misdemeanour proceedings.
Where the defendant is fined, the time limit for fine payment shall be indicated in the judgement.
Where the protective measure of seizure of an object is imposed, the manner in which the objects seized shall be handled shall additionally be specified in the disposition of the judgement.
When the imposed measure of the seizure of objects does not include the objects which are temporarily seized in accordance with Article 231 of this Law, the disposition of the judgement shall lay down that such objects be returned to the owner.
Article 252
A judgement shall be pronounced orally if the defendant is present, and the judgement made in writing with an explanation shall be delivered to the defendant and to the moving party only where they request so.
If the judgement is published, only the disposition of the judgement shall be entered in the transcript with a statement that the judgement has been communicated orally, that a brief explanation of the judgement has been provided together with the instruction on legal remedy.
Where the defendant requests that judgement made in writing be delivered to him/her, the court shall deliver it within eight days from the date of publishing.
The defendant which is present will be handed over and the moving party shall be delivered only a transcript of the disposition of the judgement if:
1) The defendant declares that he/she does not request that the judgement made in writing be delivered to him/her;
2) Where the defendant has waived the right to appeal.
The statement on waiver of right to appeal shall be made on the record and it must include signatures of the defendant and of the judge.
The court shall, at the request of the moving party, draw up and deliver a written copy of the judgement with the explanation of the decision included. The time limit for appeal by the moving party shall run from the receipt of the written copy of the judgement which includes the explanation of the decision.
Judgement for Several Misdemeanours
Article 253
Where a misdemeanour proceeding is conducted for several misdemeanours, the misdemeanours for which the defendant is convicted and those for which he/she is acquitted or for which the proceedings is to be discontinued shall be indicated in the judgement.
Contents of a Judgement Made in Writing
Article 254
A judgement made in writing referred to in Article 252, paragraph 6 of this Law shall include: the introduction, the disposition, explanation and the instruction on the right to appeal, as well as the number, date, signature of the judge and the official seal.
The introduction of the judgement shall include: an indication that the judgement is handed down in the name of the people, the name of the court which has handed down the judgement, the personal name of the judge, the personal name of the defendant, place of domicile of the defendant i.e. the name and seat of the accused legal person, legal qualification of the misdemeanour which is the subject matter of the motion filed, date when the judgement is handed down and the basis for handing down of the judgement.
The disposition of the judgement shall include the basic information on the defendant referred to in Article 181, paragraph 1, item 3), the decision whereby the defendant is pronounced liable or acquitted from liability, the description of facts and the legal qualification of misdemeanour.
The explanation of judgement shall contain a brief presentation of the contents of the motion to institute the misdemeanour proceedings, the established findings of facts with the statement of evidence based on which individual facts were proven, the reasons due to which the court has taken them as proven or not proven, the reasons due to which it has not sustained certain proposals from the parties, regulations on which the judgement is based and the reasons for each count of the judgement.
In the instruction on the right to appeal, advice shall be provided on who the appeal is to be filed with, who it is to be submitted to, within what time limit, whether the appeal must be filed in writing, as well as that it may be handed over directly or sent by registered mail.
Correction of a Judgement and Other Decisions
Article 255
Any errors made in writing names and numbers and other obvious mistakes made in writing, calculation and transcribing in the judgement and other decisions shall be corrected ex officio or at the proposal of the parties or the aggrieved party.
Corrections shall be made by means of a separate resolution, which shall become an integral part of the judgement or another decision which is being corrected.
Where the disposition of a court decision contains the errors referred to in paragraph 1 of this Article, the court shall deliver the corrected transcript of the decision to the persons who have the right to appeal. The time limit for appeal shall run from the date of delivery of the corrected transcript of the decision.
Serving the Judgement to the Participants in the Proceedings
Article 256
The judgement made in writing shall be served on the moving party and the defendant according to the provisions on service of this Law.
If a decision on the property claim has been made, the judgement shall be served on the aggrieved party which is not the moving party, on the person whose object has been seized by means of that judgement, as well as on the person against which the measure of confiscation of proceeds has been imposed.
Serving the Orally Pronounced Judgement on a Defendant
Article 257
If the defendant requests that the copy of the judgement be served on him/her, the judge shall have the copy served on him/her within eight days from the date when the judgement is drafted.
The request of the defendant within the meaning of paragraph 1 of this Article shall be recorded in the transcript against his/her signature.
ORDINARY LEGAL REMEDY
Article 258
An appeal can be filed against the judgement and against the resolution of a misdemeanour court with the second instance misdemeanour court. The appeal shall be submitted to the court which has handed down the first instance decision.
The appeal shall be submitted within eight days from the date of serving of the judgement or resolution.
Persons Authorized to File an Appeal
Article 259
An appeal can be filed by the defendant, the defence counsel and the moving party.
The appeal can be filed always against the judgement, and against the resolutions handed down in a misdemeanour proceeding only where the right to appeal is not excluded by the law.
An appeal can be filed for the benefit of the defendant by his/her spouse, relative by blood in direct line, brother, sister, legal representative, adoptive parent, adoptee, foster parent and the person with whom the defendant lives in an extramarital household or in some other permanent union.
The time limit for appeal shall run from the date when the defendant is served with the transcript of the judgement and where the defendant has the defence counsel, from the date when the judgement was served on him/her.
An appeal can be filed for the benefit of the accused legal person by the legal representative as well as by the authorized representative of the legal person.
Where a protective measure has been imposed comprising of seizure of an object whose owner is not the defendant, the owner of the object can file the appeal only in respect of the decision on such measure.
Suspensive Effect of the Appeal
Article 260
An appeal filed in a timely manner shall have a suspensive effect on the enforcement of the decision, except in cases where it is specified otherwise by this Law.
Waiver of and Desistence from an Appeal
Article 261
The defendant and the moving party may waive the right to appeal following the pronouncement of the decision, and they may desist from an appeal filed until handing down of the second instance judgement.
A waiver of and a desistence from the right to appeal may not be revoked.
A waiver made by a minor of the right to appeal shall not have any legal effect.
Article 262
An appeal shall include:
1) A designation of the decision against which the appeal is filed;
2) A statement of reasons why the appellant is dissatisfied with the decision;
3) Signature of the appellant.
New facts can be presented and new evidence can be proposed in the appeal. When referring to the new facts, the appellant shall state the evidence whereby such facts can be proven.
Where the appellant presents new evidence in the appeal, he/she shall state why he/she hasn’t presented such evidence earlier, as well as the facts which he/she proves by means of such evidence.
Grounds due to which a Judgement and a Resolution can be contested
Article 263
A judgement and a resolution can be contested:
1) Due to a significant breach of the provisions of misdemeanour proceedings;
2) Due to a breach of provisions of substantive law;
3) Due to erroneously or incompletely established statement of facts;
4) Due to a decision on misdemeanour sanctions, confiscation of proceeds, costs of misdemeanour proceedings and property claim.
Significant Breaches of Provisions of Misdemeanour Proceedings
Article 264
A significant breach of provisions of misdemeanour proceedings shall exist always where:
1) The misdemeanour proceeding was conducted and the judgement or resolution was handed down by a judge who had been recused by means of a final decision from conducting proceedings and deliberation;
2) The misdemeanour proceeding was conducted and the decision was handed down by a judge who had to be recused (Article 112, paragraph 1, items 1) through 5);
3) The defendant was not advised on the right to use the language, or, contrary to his/her request, he/she or his/her defence counsel were denied the right to use their own language in the oral hearing or in the course of other activities in the misdemeanour proceedings and to follow the course of the trial, i.e. proceedings in their own language (Article 94);
4) Contrary to the law, public was excluded in the trial;
5) The court dismissed the motion to institute the misdemeanour proceedings contrary to the provisions of Article 184 of this Law;
6) The court, by means of a resolution, discontinued the misdemeanour proceedings contrary to the provisions of Article 248 of this Law or handed down the judgement whereby the defendant is acquitted from liability contrary to the provisions of Article 250 of this Law;
7) The judgement or the resolution has been handed down by the court which, due to the lack of subject matter jurisdiction could not adjudicate in such matter (Article 110);
8) The orally pronounced judgement was not recorded in the transcript (Article 252, paragraph 2);
9) The court did not decide in entirety on the motion to institute misdemeanour proceedings (Article 247, paragraph 2);
10) The court decided beyond the motion to institute misdemeanour proceedings;
11) The judgement or the resolution is based on a piece of evidence on which it cannot be based according to the provisions of this Law, except where, bearing in mind other pieces of evidence, it is obvious that even without such piece of evidence the same decision would be handed down;
12) The judgement or the resolution is based on the statement of the defendant who was not cautioned of the right to take a defence counsel of his/her choice or to be heard in the presence of the defence counsel;
13) The provision of Article 96 of this Law has been breached;
14) The disposition of the judgement or resolution is unintelligible.
A significant breach of the provisions of misdemeanour proceedings which influenced or could have influenced handing down of a lawful and proper judgement or resolution shall additionally exist where:
1) The defendant in the misdemeanour proceedings was not heard prior to handing down of the decision except in the cases referred to in Article 93, paragraph 3 and Article 187, paragraph 7 of this Law;
2) The disposition is contradicting the reasoning of the judgement or the resolution;
3) The judgement or the resolution does not have any reasoning or reasoning on the decisive facts are not stated, or such reasoning is completely unclear, or to a significant degree contradictory, or where there is a significant contradiction between what is stated in the reasoning on the contents of the documents or the transcript on the statements given in the proceedings, and the actual documents or transcript, except in the case referred to in Article 252, paragraph 4 of this Law;
4) In the course of the misdemeanour proceedings or on the occasion of handing down of the decision the court did not apply or applied erroneously any provision of this Law, or in the course of the misdemeanour proceedings has violated the right to defence.
Article 265
A breach of substantive misdemeanour law shall exist where the court has not applied or has erroneously applied the provisions which determine:
1) Whether the act with which the defendant is charged is a misdemeanour;
2) Whether there are any circumstances which exclude the liability for misdemeanour;
3) Whether there are any circumstances which exclude instituting and conducting of misdemeanour proceedings, and in particular whether the matter is time-barred or already been finally adjudicated;
4) Whether in respect of the misdemeanour which is the subject matter of the motion to institute misdemeanour proceedings, a law or another regulation has been applied in spite of being inapplicable;
5) Whether in the decision on punishment, protective measure, and another misdemeanour sanction or on the confiscation of proceeds, the authority which is bestowed upon the court by the law has been overreached;
6) Whether the provisions on reckoning of detention and sentence served has been breached.
Erroneously or Incompletely Established Statement of Facts
Article 266
A decision can be contested due to the erroneously or incompletely established statement of facts where a court has either failed to establish a decisive fact, or established it erroneously.
The incompletely established statement of fact shall additionally exist where the new facts or new evidence are indicative of that.
Contesting a Judgement or a Resolutions due to a Decision on Sanction and Other Reasons
Article 267
A decision can be contested due to a decision on a misdemeanour sanction where by such decision the statutory powers (Article 265, paragraph 1, item 5) have not been overreached by the court, but the court has not properly weighted the punishment in view of circumstances which impact the punishment to be stricter or lighter.
A decision on punishment can additionally be contested in cases where the court has applied or failed to apply the provisions on mitigation of punishment, on release from punishment, or where it has not imposed a warning despite the existence of legal conditions for that.
A decision on a protective measure, another misdemeanour sanction or confiscation of proceeds can be contested where there is no infringement referred to in Article 265, paragraph 1, item 5) of this Law and the court has improperly handed down such decision or failed to impose a protective measure i.e. confiscation of proceeds despite the existence of legal conditions for that.
A decision on a property claim as well as a decision on costs of misdemeanour proceedings can be contested when the court has handed down a decision on that contrary to the law.
Article 268
The court shall dismiss, by means of a resolution, any belated, unpermitted appeal or an appeal filed by an unauthorized person.
The timely, permitted appeal, filed by the authorized person shall be delivered by the misdemeanour court enclosed with the case files to the second instance misdemeanour court within three days.
Decisions of the Second Instance Misdemeanour Court
Article 269
The second instance misdemeanour court shall hand down the decisions in the form of a judgement or a resolution.
The judgement of the first instance misdemeanour court shall be confirmed or reversed by means of a judgement.
The second instance court shall use a resolution to dismiss an appeal filed against a judgement or resolution, and to decide on an appeal against a resolution or to vacate the judgement of the misdemeanour court.
By means of a resolution, a judgement or a resolution shall be reversed due to the reasons prescribed by Article 248 of this Law.
Method of Deciding on an Appeal
Article 270
When deciding on an appeal against a judgement or a resolution of a misdemeanour court, the second instance misdemeanour court may:
1) Dismiss the appeal;
2) Reject the appeal as unfounded and confirm the first instance decision;
3) Grant the appeal, and reverse or vacate the first instance decision.
Dismissing of an Appeal by the Second Instance Court
Article 271
The second instance misdemeanour court shall dismiss an appeal by means of a resolution as belated, unpermitted of filed by an unauthorized person, where it establishes that the court that conducted the proceedings has failed to do so.
Limitations for Examining a First Instance Decision
Article 272
The second instance misdemeanour court shall examine the first instance decision in the part thereof which is contested by the appeal, but it must ex officio always examine:
1) Whether there is any significant breach of the provisions of the misdemeanour proceedings referred to in Article 264, paragraph 1, item 1) and items 6) through 14) of this Law;
2) Whether the substantive law has been infringed to the detriment of the defendant (Article 265).
Where an appeal filed for the benefit of the defendant does not include any grounds for contesting the decision (Article 263), the second instance misdemeanour court shall limit the examination to the breaches referred to in paragraph 1 of this Article, as well as to the decision on misdemeanour sanction and confiscation of proceeds (Article 267).
Confirming of a First Instance Decision
Article 273
The second instance misdemeanour court shall, by means of a judgement, reject an appeal as unfounded and confirm the first instance decision where it establishes that the reasons due to which the decision is contested or the breach of the law referred to in Article 272 of this Law do not exist.
Reversal of a First Instance Decision
Article 274
The second instance misdemeanour court shall grant the appeal and by means of a judgement reverse the first instance decision, where it establishes that:
1) The decisive facts in the first instance proceedings were properly established and that in view of the established statement of facts, and upon proper application of law, a different decision should be handed down;
2) There are such breaches of law which may be removed by the reversal of the first instance decision;
3) On the occasion of weighting of the punishment i.e. imposition of the protective measure not all the circumstances which are impacting proper weighting of punishment i.e. lawful imposition of a protective measure have been taken into account;
4) The circumstances which have been taken into account have not been properly assessed;
5) The court which conducted the misdemeanour proceedings has erroneously assessed the documents and evidence which it did not produced itself, and the resolution or the judgement is based on such evidence.
Vacating a First Instance Decision
Article 275
The second instance misdemeanour court shall grant the appeal and by means of resolution vacate the first instance decision and instruct the court to retry the case:
1) Where there is a significant breach of provisions of the misdemeanour proceedings which has impacted the lawful decision making;
2) Where the court, contrary to the provisions of this Law, has established the statement of facts erroneously or incompletely, due to which the trial has to be supplemented or started anew;
3) Where the misdemeanour proceeding was discontinued or a judgement was handed down whereby the defendant was acquitted of liability due to an erroneous assessment of evidence or erroneous application of substantive law.
In addition, due to the reasons referred to in paragraph 1 of this Article, the first instance decision can be partially vacated, if the individual parts of the decision can be separated without any detriment to proper adjudication.
Statement of Reasons in the Second Instance Decision
Article 276
In the statement of reasons in the decision, the second instance misdemeanour court shall assess the allegations of the appeal and point out to the infringements of the law which it has taken into account ex officio.
Where the first instance decision is vacated due to a breach of provisions of misdemeanour proceedings, the statement of reasons shall indicate which provisions have been breached and what the breach is reflected in.
Where the first instance decision is vacated due to erroneously or incompletely established statement of facts, the deficiencies, i.e. reasons why the new evidence and new facts are important for handing down of a proper decision shall be stated.
Where the first instance decision is vacated in the cases referred to in paragraphs 2 and 3 of this Article, the second instance court shall instruct the misdemeanour court how to retry the case.
Effect of an Appeal in Favour of the Co-Defendants
Article 277
Where the second instance misdemeanour court, at the occasion of anybody’s appeal filed against the decision, establishes that the reasons due to which it has handed down the judgement or resolution in favour of the defendant are also beneficial for any one of the co-defendants who has not filed an appeal or has not filed it in that direction, it shall ex officio act as if such an appeal exists.
Serving of a Second Instance Decision
Article 278
The second instance misdemeanour court shall return all the files to the first instance court with a sufficient number of certified transcripts of its judgement and resolution for the purpose of service thereof to the defendant, the moving party and other interested parties.
Obligations of the Misdemeanour Court
Article 279
The misdemeanour court shall perform all the actions and discuss all the contentious issues to which the second instance misdemeanour court has pointed out in its decision whereby the first instance decision is vacated.
In handing down of a new decision, the court shall be bound by the prohibition prescribed in Article 96 of this Law.
EXTRAORDINARY LEGAL REMEDIES
1. Motion to Retry Misdemeanour Proceedings
Article 280
A misdemeanour proceeding completed by means of a final decision can be repeated if:
1) It is proven that the decision is based on a false document or on a false statement by a witness or an expert witness;
2) It is proven that the decision was handed down due to a criminal offence of the judge or another official who participated in the proceedings;
3) It is established that the person which is punished for the misdemeanour has already been punished once for the same act for a misdemeanour, economic offence or a criminal offence;
4) New facts are presented or new evidence is submitted which would have, by themselves or in relation to previous evidence, led to a different decision, had they been known in the previous proceedings;
5) The defendant gets an opportunity to use the decision of the European Court of Human Rights whereby a violation of a human right is established, and that could have influenced handing down of a more favourable decision for the defendant;
6) The Constitutional Court, in a proceedings instituted by means of a constitutional appeal, has established a violation or denial of a human or minority right and freedom guaranteed by the Constitution in the misdemeanour proceedings, which could have influenced handing down of a more favourable decision for the defendant.
The facts referred to in paragraph 1, items 1) through 3) of this Article shall be proven by a final court decision.
If the proceedings against the persons referred to in paragraph 1, items 1) through 3) of this Article cannot be conducted because they are deceased or because there are circumstances which exclude criminal prosecution, the facts referred to in paragraph 1, items 1) and 2) of this Article may also be established by other evidence.
Filing a Motions for a Retrial
Article 281***
A motion for a retrial can be filed by the punished person. For the benefit of the punished person, the motion can additionally be filed by the persons referred to in Article 259, paragraph 3 of this Law.
A motion for a retrial can be filed within 60 days from the date on which the party learnt of the existence of facts and circumstances referred to in Article 280, paragraph 1, items 1) through 6) of this Law.
Article 282
The court which has handed down the first instance decision shall decide on the motion for a retrial.
The motion shall include the legal grounds for a requested retrial and evidence which prove the facts on which the motion is based.
If the motion does not contain such information, it shall be dismissed by means of a resolution.
The motion shall additionally be dismissed when the court, based on the motion and evidence from the case file from the previous proceedings, establishes that the motion has been filed by an unauthorized person or that the motion was filed in an untimely manner or that there are no legal conditions for a retrial or that the facts and evidence which the motion is based on are obviously not suitable to permit the retrial on the basis of them.
An appeal can be filed against the resolution whereby the motion for a retrial is dismissed within eight days from the date of service thereof.
A motion for a retrial for the benefit of the punished person may be filed even after the decision was enforced.
Deciding on a Motion for a Retrial
Article 283
If the misdemeanour court does not dismiss a motion for a retrial, it shall retry the case in the scope which is necessary for establishing the facts due to which the motion has been filed.
Depending on the results of the retrial, the motion shall be rejected by means of a resolution or alternatively a new decision shall vacate the previous one in its entirety or in a part thereof.
An appeal can be filed against the resolution whereby a motion for a retrial is rejected within eight days from the service date thereof.
Where the retrial is granted, in the repeated proceedings the court shall be bound by the prohibition prescribed in Article 96 of this Law.
No appeal shall be permitted against the resolution that granted the retrial.
Deferring Enforcement of a Decision
Article 284
A motion for a retrial shall not have the suspensive effect on the enforcement of the decision, but where the court assesses that the motion can be granted it may decide to defer the enforcement until the decision on the motion for a retrial is made.
A resolution whereby the retrial is granted shall suspend the enforcement of the decision against which the retrial has been granted.
2. Request for the Protection of Legality
Submission of the Request for the Protection of Legality
Article 285
A request for the protection of legality may be submitted against the final judgement if:
1) The law or another regulation on the misdemeanour has been infringed;
2) The law has been applied for which it has been established by means of a decision of the Constitutional Court that it is not in accordance with the Constitution, generally accepted rules of international law and ratified treaties.
A request for the protection of legality shall be filed by the Republic Public Prosecutor within three months from the judgement service date.
Article 286
The Supreme Court of Cassation shall decide on a request for the protection of legality.
The court referred to in paragraph 1 of this Article shall notify the Republic Public Prosecutor of the panel’s session.
Prior to presenting the case for deciding, the judge designated as the reporting judge may, where necessary, procure information about infringements of the law put forward.
Article 287
In deciding on a request for the protection of legality, the Supreme Court of Cassation shall restrict itself only to the examination of infringement of regulations to which the public prosecutor refers in his/her request.
The Supreme Court of Cassation shall decide on the request for protection of legality which was submitted due to an infringement of the law (Article 285, paragraph 1, item 1) only where it considers that it is an issue of significance for proper or uniform application of the law.
The Supreme Court of Cassation shall reject a request for protection of legality as ungrounded by means of a judgement if it establishes that there is no infringement of regulation pointed out to in the request.
When the Supreme Court of Cassation establishes that the request for protection of legality is founded, it shall hand down a judgement by which it shall, subject to the nature of the infringement, reverse the final decision or vacate the decisions of the misdemeanour court and the second instance misdemeanour court in their entirety or in a part thereof and remand the case to the misdemeanour court for repeated adjudication or shall alternatively restrict itself to establishing the infringement of regulation only.
Article 288
Where a request for protection of legality is raised at the detriment of the punished person, and the Supreme Court of Cassation finds that it is founded, it shall establish only that the infringement of the law exists, without interfering with the final decision.
Where the Supreme Court of Cassation finds that the reasons due to which it has handed down the decision in favour of the punished person exist for any of the punished co-defendants for which no request for protection of legality has been raised, it shall act ex officio as if such a request exists.
Where the request for protection of legality is raised in favour of the punished person, in handing down of the decision the Supreme Court of Cassation shall be bound by the prohibition referred to in Article 96 of this Law.
Article 289
The decision of the Supreme Court of Cassation shall be delivered to the misdemeanour court through the second instance misdemeanour court in the needed number of copies.
Article 290
If a final judgement has been vacated and the case is remanded for a retrial, the previous motion to institute the misdemeanour proceedings shall be taken as the grounds thereof.
The court shall carry out all the procedural acts and to discuss the issues pointed out to it by the Supreme Court of Cassation.
In a retrial, new facts can be presented and new evidence can be submitted.
In handing down of a new decision, the court shall be bound by the prohibition referred to in Article 96 of this Law.
A request for protection of legality shall not have any suspensive effect to enforcement of judgement, but the Supreme Court of Cassation, in deciding on a request, may order to the court of relevant jurisdiction to defer i.e. stay the enforcement of judgement until it decides on the request filed.
PROCEEDINGS AGAINST MINORS
Application of Legal Provisions
Article 291
Provisions of this Chapter shall apply to misdemeanour proceeding against a minor, while the other provisions of the misdemeanour proceedings prescribed by this Law shall apply only if they are not contrary to these provisions.
Unless prescribed otherwise by this Law, provisions of the Law on Juvenile Criminal Offenders and Criminal Protection of Juveniles ("Official Herald of the RS", No. 85/05) shall apply mutatis mutandis in a misdemeanour proceeding against a minor.
Article 292
The misdemeanour proceeding against a minor shall be urgent.
Prior to imposing a corrective measure or a punishment against a minor, opinion shall be procured from the competent guardianship authority, unless where the minor has become of legal age in the meantime.
If the competent guardianship authority fails to provide its opinion within sixty days, the court may impose a reprimand or a fine against the minor even without the opinion of the guardianship authority, taking into account the mental development, sensitivity and personal characteristics of the minor. When taking actions against a minor in his/her presence, and in particular during his/her hearing, the persons participating in the proceedings shall act with caution, taking into account the mental development, sensitivity and personal characteristics of the minor.
Article 293
A minor shall be summoned through the parents, i.e. the legal representative, except where that is not possible due to the need to act urgently or due to some other justified reasons.
Where the minor is not summoned through parents, i.e. the legal representative, the court which conducts the misdemeanour proceedings shall notify them of the institution of proceedings.
No papers may be served on a minor by putting them out on the bulletin board of the court.
Article 294
No one can be released from the duty to testify about the circumstances required to assess the mental development of a minor, to familiarize with his/her personality and his household.
Severance and Consolidation of Proceedings
Article 295
When a minor has participated in committing of a misdemeanour together with persons of legal age, the proceedings against him/her shall be severed and conducted according to the provisions of this Law.
The proceedings against a minor may be conducted together with the proceedings against the persons of legal age and completed according to the general provisions of this Law only where consolidation of proceedings is necessary for thorough resolution of the matter.
The resolution on severance, i.e. consolidation of proceedings shall be handed down by the acting judge. No appeal shall be permitted against such resolution.
The Rights of Parents and Guardians
Article 296
In the proceedings against minors, the guardianship authority, parents, i.e. the legal representative of the minor shall have the right to familiarize themselves with the course of the proceedings, to put forward proposals in the course of the proceedings and to point out to the facts and evidence which are of importance for handing down of a proper decision.
Article 297
The court may decide not to conduct the misdemeanour proceedings against a minor where it is of the opinion that it would not be purposeful to conduct the proceedings taking into account the nature of the misdemeanour and the circumstances under which the misdemeanour is committed, the previous life of the minor and his/her personal characteristics.
In the case referred to in paragraph 1 of this Article, the court shall, by means of a resolution, discontinue the misdemeanour proceedings, and the parent, adoptive parent, guardian, i.e. foster parent of the minor and the guardianship authority shall be notified of the misdemeanour committed for the purpose of taking measures within their respective scope of authorities.
The court shall decide on imposition of a corrective measure by means of a resolution.
Article 298
An appeal against the decision handed down in the proceedings whereby a sanction for a misdemeanour has been imposed against a minor can be filed, in addition to the persons referred to in Article 259 of this Law, also by the guardian, brother, sister and the foster parent of the minor.
The persons referred to in paragraph 1 of this Article may file an appeal for the benefit of the minor even against his/her will.
Article 299
Where the court establishes that the minor at the time of perpetrating the misdemeanour did not turn fourteen, it shall discontinue the misdemeanour proceedings.
In the case referred to in paragraph 1 of this Article, the court shall notify the parent, the adoptive parent and the guardian of the minor, as well as the guardianship authority, of the misdemeanour committed, and where necessary it may additionally notify the school, i.e. the organisation in which the minor is accommodated.
Article 300
Public shall in all cases be excluded in the proceedings against a minor.
COMPENSATION FOR DAMAGE AND RETURN OF A MONETARY AMOUNT DUE TO UNJUSTIFIED PUNISHMENT
The Right to Compensation for Damage due to Unjustified Punishment
Article 301
The unjustifiably punished person shall have the right to compensation for damage.
An unjustifiably punished person shall be considered to be the person against whom a misdemeanour punishment, a protective measure or a corrective measure has been imposed by means of a final judgement, and due to an extraordinary legal remedy, a retrial was conducted and finally discontinued or completed by an acquitting judgement, except in the following cases:
1) If the misdemeanour proceedings has been discontinued because in the retrial due to the extraordinary legal remedy the aggrieved party as the moving party desisted from the request to institute the misdemeanour proceedings, based on an agreement with the punished person;
2) If the retrial was discontinued due to the statute of limitations on instituting and conducting of proceedings resulting from unavailability of the punished person;
3) If the punished person, by means of his/her false confession or in some other manner, has intentionally caused his/her punishment, except where he/she was forced to do so.
The Right to Compensation for Damage due to Unfounded Deprivation of Liberty or Enforcement of a Misdemeanour Sanction
Article 302
The right to compensation for damage shall additionally have the person:
1) Against which enforcement of a misdemeanour sanction prior to finality of the judgement has been imposed in case of discontinuation of proceedings or acquittal from liability in the appellate proceedings;
2) Who was detained and the misdemeanour proceedings against him/her was not instituted or the proceedings instituted has subsequently been discontinued, but not due to the reasons referred to in Article 301, paragraph 2, items 2) and 3) or who has been acquitted from liability;
3) Who has served a prison sentence and then, due to an extraordinary legal remedy or due to an appeal filed against the judgement whereby enforcement of judgement prior to the finality was ordered, a prison sentence has been imposed which is shorter than the punishment which he/she has served, or the misdemeanour sanction has been imposed which does not comprise of deprivation of liberty;
4) Who has been unfoundedly detained for a longer period than permitted by law.
A person who has caused his/her deprivation of liberty through his/her own unpermitted actions shall not have the right to compensation for damage.
Mutatis Mutandis Application of the Code of Criminal Proceedings
Article 303
Unless prescribed otherwise by this Law, provisions of the law regulating criminal proceedings shall apply mutatis mutandis to compensation for damage due to unjustified punishment in misdemeanour proceedings.
Restitution of Monetary Amounts
Article 304
The person against whom a fine, a measure of confiscation of proceeds or a protective measure of seizure of an object has been unjustifiably imposed in a misdemeanour proceedings shall have the right to restitution of the fine paid, restitution of confiscated proceeds, restitution of object or monetary value of the seized object (hereinafter: restitution of the monetary amount).
The punished person who has caused the punishment through his/her false confession may not request restitution of the monetary amount.
Article 305
The right of an unjustifiably punished person to claim compensation for damage i.e. restitution of the monetary amount shall become time-barred after three years from the enforcement of punishment.
The limitation period referred to in paragraph 1 of this Article shall be suspended by submission of a claim to the Ministry in charge of justice.
Where the claim for compensation for damage i.e. restitution of the monetary amount is submitted by an unjustifiably punished person, his/her heirs after his/her death may resume the claim procedure within three months from the date of death of the unjustifiably punished person, but only in respect of compensation for property damage.
If the unjustifiably punished person has waived the claim for compensation for damage i.e. for restitution of the monetary amount, such claim may not be submitted after his/her death.
Procedure for Exercising of Rights
Article 306
The authorized person shall, prior to filing of an action with the court, address the Ministry in charge of justice with his/her claim for compensation for damage, for the purpose of agreement on existence of damage and the amount of compensation.
If no agreement is reached within two months from the claim receipt date, the authorized person may file an action with the court of relevant jurisdiction for compensation of damage against the Republic of Serbia. The request for restitution of the monetary amount shall be submitted to the Ministry in charge of finances.
If the competent authority dismisses the request or fails to pass a resolution on such request within two months, the authorized person may realize his/her claim through an action for compensation of damage against the Republic of Serbia.
During the course of procedure before the competent authorities referred to in paragraphs 1 through 3 of this Article, limitation period laid down in Article 305 of this Law shall not run.
ENFORCEMENT OF DECISIONS
Acquiring of Enforceability Status
Article 307
A judgement, i.e. a resolution (hereinafter: a decision) shall acquire the status of legal enforceability when they can no longer be contested by means of an appeal or where appeal is not permitted. A decision handed down in a misdemeanour proceeding shall be enforced when it becomes final and when there are no legal obstacles for enforcement, unless where specified otherwise by this Law.
The decision whereby a fine is finally imposed or compensation for costs of proceedings or a property claim is adjudicated, or the measure of confiscation of proceeds is imposed shall be enforced upon the expiry of the time limit specified in the decision for payment of fine, costs of proceedings, proceeds, compensation for damage or restitution of objects.
The penalty notice shall become enforceable upon the expiry of the time limit of eight days from the date of handing over.
Unless where specified otherwise for individual cases in the law, a decision shall be enforced upon the expiry of 15 days from its finality, and where an appeal has been filed against a decision, such time limit shall be calculated from the date of delivery of the second instance decision.
An order shall be enforced immediately unless the court which has issued the order determines otherwise.
If a legal person ceases to exist after finally concluded proceedings in which liability has been determined and a sanction for misdemeanour imposed, the fine and deciding upon proceeds shall be enforced against a legal person which is its legal successor.
Article 308
A judgement of conviction may be enforced even before its finality in the following cases:
1) If the defendant cannot prove his/her identity or has no domicile, or does not live at the address at which he/she is registered, or if he/she has domicile in a foreign country or if he/she goes abroad to reside there, and the court finds that there is reasonable doubt that the defendant will evade enforcement of imposed sanction;
2) If the defendant is punished for a graver misdemeanour in the field of public order and peace, safety of public transport or for a graver misdemeanour whereby the human life or health is threatened or where the interests of general safety or the safety of transactions in goods and financial transactions or the moral reasons call for that or where he/she is punished for a misdemeanour which may result in some graver consequences, and there is reasonable doubt that he/she will continue to commit misdemeanours, repeat the misdemeanour or evade enforcement of imposed sanction.
In the cases referred to in paragraph 1 of this Article, the court shall determine in the judgement that the defendant must accede to enforcement of the judgement even before its finality.
If the defendant files an appeal against the judgement whereby enforcement of judgement is determined prior to its finality, the court shall deliver the appeal enclosed with the case file to the second instance misdemeanour court within 24 hours, counting from the moment when the appeal was received, and the second instance misdemeanour court decide on the appeal and deliver its judgement to the court within 48 hours counting from the moment of receipt of the case file.
The moving party can file an appeal against the judgement referred to in paragraph 1 of this Article within 48 hours counting from the moment of receipt of the judgement.
Enforcement of Fines, Duties and Costs of Proceedings
Article 309
Fines, punishments imposed due to contempt of court, adjudicated court fees and costs of proceedings, decisions on a property claim and on confiscation of proceeds shall be enforced in compliance with this Law.
Mutatis Mutandis Application of the Law on Enforcement of Criminal Sanctions
Article 310
A prison sentence, an unpaid fine substituted by a prison sentence, a community service, protective measures and corrective measures shall be enforced in accordance with the law regulating enforcement of criminal sanctions, unless where prescribed otherwise by this Law.
Enforcement of the Protective measure of Seizure of Objects
Article 311
The protective measure of seizure of objects shall be enforced by the authority competent for the enforcement i.e. supervision of the enforcement of regulations in accordance to which the protective measures has been imposed, unless where prescribe otherwise by the law.
Where a judgement determines that the object seized shall be handed over to a certain authority or organisation, such authority or organisation shall be invited to take the object over.
Where the offender has arbitrarily alienated or destroyed the object of the misdemeanour or has otherwise prevented enforcement, he/she shall be obliged by a separate court resolution to pay the monetary amount corresponding to the market value of such object at the time when the resolution is handed down.
Where the judgement determines that the seized object shall be sold, the authority referred to in paragraph 1 of this Article shall carry out the sale in compliance with the law regulating the tax procedure, unless where specified otherwise by a separate law.
The monetary amount acquired through the sale of the seized object shall be the income of the budget of the Republic of Serbia.
Notice on Enforcement of a Protective measure
Article 312
The authorities obliged under this Law to enforce the protective measures shall notify the court which has imposed the measure of the enforcement of the protective measure.
Enforcement of Measure of Confiscation of Proceeds
Article 313
The measure of confiscation of proceeds shall be enforced by the court which has handed down the judgement.
Proceeds which could not be otherwise collected can be collected by enforcement from immovable property.
The confiscation of proceeds through enforcement from immovable property shall be carried out by the court of relevant jurisdiction in accordance with the regulations on enforcement procedure.
The proceeds confiscated by means of a judgement shall be the income of the Republic of Serbia.
The enforcement of the measure of confiscation of proceeds imposed against a legal person that ceased to exist after finality of the judgement shall be conducted against the legal person that took over its assets up to the amount of assets taken over.
The costs of enforcement shall be borne by the punished person.
Enforcement of a Fine and Other Monetary Amounts
Article 314
A fine imposed for a misdemeanour, the costs of misdemeanour proceedings as well as other monetary amounts which are adjudicated on the basis of compensation for damage, on the basis of a property claim or on the basis of confiscation of proceeds shall be enforced by the misdemeanour court which has imposed them, i.e. the court in the territory of which the penalty notice has been issued.
The fine, costs of misdemeanour proceedings and other monetary amounts shall be paid within the time limit specified in the decision through a post office or a bank with a special paying-in slip which shall be filled out by the court of relevant jurisdiction.
Where a fine is imposed by means of a penalty notice, the payment shall be effectuated through the account number which is indicated in the notice (Article 170, paragraph 1, item 11).
If the punished natural person, sole trader or a responsible person fails to pay the fine within the specified time limit, the court shall substitute it by a prison sentence or by community service, in compliance with Article 41 of this Law or alternatively collect it by enforcement.
If the punished legal person fails to pay the fine within the specified time limit, the court shall collect by enforcement.
Unpaid costs of proceedings and other monetary amounts adjudicated on the basis of a property claim, compensation for damage or confiscation of proceeds shall be collected by the court through enforcement.
Article 315
Upon the expiry of the time limit for voluntary payment, the court which has handed down the first instance decision which is being enforced, i.e. the court in the territory of which the penalty notice which is being enforced is issued shall hand down a resolution on enforcement.
By means of the resolution, the court shall determine whether the unpaid fine shall be substituted by the prison sentence or by the community service punishment or collected by enforcement.
The decision on how the unpaid fine shall be enforced shall be handed down by the court by weighting the reasons of expediency and efficiency in each individual case.
If the punished person pays the fine in its entirety following the handing down of the court resolution on substitution of the unpaid fine, the resolution shall be repealed, and the prison sentence or community service shall not be enforced or alternatively further enforcement thereof shall discontinued, where the enforcement of any of such punishments has commenced.
If the punished person pays a portion of the fine, the resolution shall be reversed by substituting the outstanding portion of the fine by the prison sentence or by community service or shall alternatively be collected by enforcement.
If the punished person fails to perform the community service or fails to pay the remaining portion of the fine after having served the prison sentence of ninety days, it shall be determined by means of a new resolution that the remaining portion of the fine shall be collected by enforcement.
Contents of the Resolution on Enforcement
Article 316
A resolution on enforcement shall include:
1) The court which has handed down the resolution;
2) The person imposed with a fine that is being enforced;
3) The enforceable decision whereby the fine has been imposed;
4) The amount of fine imposed;
5) The means and the object of enforcement as well as other data necessary for carrying out of enforced collection;
6) The decision on costs of enforcement;
7) The advice on legal remedy.
The resolution on enforced collection shall be served on the punished person, his/her defence counsel, as well as the authority in charge of resolution’s enforcement.
Where the resolution on enforcement imposes enforced collection of unpaid costs of proceedings and other monetary amounts adjudicated on the basis of a property claim, compensation for damage or confiscation of proceeds, this shall be specifically indicated in the resolution.
Objection to a Resolution on Enforcement
Article 317
The punished person may file an objection against the resolution on enforcement within three days from the resolution receipt date due to the following reasons:
1) If the obligation which is to be enforced is fulfilled;
2) If the decision based on which substitution of punishment is imposed or enforced collection is cancelled has been vacated, reversed, and repealed i.e. where it no longer has that status of a legally enforceable document;
3) If the time limit for fulfilment of obligation has not expired;
4) If the court which has handed down the resolution on enforcement has no jurisdiction therein;
5) Where the conditions for substitution of a fine referred to in Article 41 of this Law have not been fulfilled;
6) If the enforced collection is imposed on things and rights exempt from enforcement, i.e. on which the possibility of enforcement is limited;
7) To a decision on costs of enforcement.
The objection to the resolution on enforced collection shall not have suspensive effect on the enforcement thereof.
In addition, the judge who handed down the resolution on enforced collection against which the objection is filed can himself/herself revoke his/her resolution if he/she finds that the reasons in the objection are founded, otherwise he/she shall deliver the objection enclosed with the case files to the competent panel of such court.
The panel comprising of three judges shall decide on the objection. The judge who has handed down the resolution on enforced collection against which the objection has been filed cannot decide on such objection as a member of the panel.
Means and Objects of Enforced Collection
Article 318
The means whereby enforced collection shall be carried out shall be:
1) The enforcement against the funds in the account of the punished person;
2) The enforcement against personal emoluments of the punished person;
3) The enforcement by inventorying, appraisal and sale of movable objects and immovable property owned by the punished person.
The objects against which the enforced collection is carried out shall be the things and rights against which enforcement can be carried out under provisions of the law regulating enforcement and security interest.
The means whereby the enforced collection of fines, costs of proceedings and other monetary amounts is carried out as well as the objects against which enforced collection is to be carried out shall be specified by the court in the resolution on enforcement referred to in Article 315 of this Law.
Where it is determined during the enforcement of the resolution that the enforcement collection cannot be carried out with the means and objects of enforcement which are specified in the resolution, the court may reverse the resolution and specify other means and object of enforcement.
In a procedure of enforced collection, the costs of proceedings and the costs of enforcement shall be settled first.
The costs of enforced collection and the costs of enforcement shall be borne by the punished person.
After death of the punished natural person, responsible person or sole trader, the enforced collection of a fine, costs of misdemeanour proceedings and other monetary amounts shall not be carried out.
Carrying out of Enforced Collection against the Funds in the Account of the Punished Person
Article 319
Upon receipt of the resolution on enforcement, the enforced collection of fines, costs of proceedings and other monetary amounts from the accounts of punished persons which are maintained by commercial banks shall be carried out by the authority in charge of enforced collection in compliance with the provisions of the law regulating payment operations.
The authority in charge of enforced collection shall, within 30 days from the day of receipt of the resolution on enforced collection, notify the competent misdemeanour court of the executed collection, or alternatively on the reasons for the failure to carry out the enforced collection.
Carrying out of Enforced Collection on Personal Emoluments of the Punished Person
Article 320
The court may, by means of a resolution on enforcement, determine that the enforced collection be carried out by means of an attachment on the personal emoluments of the punished person.
By means of the resolution referred to in paragraph 1 of this Article, the attachment on a specified portion of the personal emolument of the punished person shall be imposed and the payer of these emoluments shall be ordered to, on the occasion of each payment of such emoluments, staring from the next payment following the receipt of the court decision and until collection in full, perform garnishment and to pay the amount withheld in the prescribed account for incoming payments.
The payer of personal emolument of the punished person shall immediately obey the court order and notify the court of relevant jurisdiction of any changes influencing the enforced collection within five days from the date of occurrence of such change at the latest.
If the payer of the personal emolument of the punished person fails to garnish and pay the amount of personal emolument on which enforced collection is carried out to the prescribed account for incoming payments, the court may hand down a resolution to carry out the enforced collection from the funds in the account of the payer.
Unless prescribed otherwise by this Law, provisions of the law regulating enforcement and security interest shall apply mutatis mutandis to enforced collection from the personal emoluments of the punished person.
Enforced Collection against Movable and Immovable Property of a Punished Person
Article 321
In case that it is not possible to conduct enforced collection in some other manner, the court may hand down a resolution that the enforced collection be conducted against movable or immovable property of the punished natural person, sole trader or responsible person.
The enforced collection against movable and immovable property of the punished person shall be conducted by the court with subject matter and territorial jurisdiction in compliance with the provisions of the law regulating enforcement and security interest.
Duty to Notify of Payment of Fine
Article 322
The authority competent for public payments shall without delay notify the court, i.e. the administration authority which handed down the decision of the effectuated payment of the fine, costs of proceedings and other monetary amounts by delivering a report on payment with a statement of daily transactions on relevant accounts.
Article 323
Enforcement of the judgement in respect of damages and restitution of objects shall be carried out at the request of the aggrieved party, i.e. owner of objects.
A final judgement shall serve as an enforceable title.
CONSOLIDATED REGISTERS
Article 324
For the purpose of maintaining the consolidated records of misdemeanour sanctions imposed, a consolidated register of sanctions shall be maintained.
The register of sanctions shall be a centralized electronic database in which all data entered shall be stored and processed.
Storage and Handling of Data in the Register of Sanctions
Article 325
The register shall be stored in the central electronic data medium with the ministry in charge of justice which shall be responsible for its maintenance and storing.
The Ministry in charge of justice shall take the technical, staff-related and organisational measures for the protection of data, in compliance with the determined standards and procedures, which are necessary to protect the data from loss, destruction, unauthorized access, modification, publication and any other misuse, as well as lay down the confidentiality obligation of the persons employed on processing data.
Data Handler in the Register of Sanctions
Article 326
The president of the misdemeanour court shall designate a data handler in the register who shall have the following authorisations and obligations:
1) To ensure lawful, systematic and updated entry, deletion and modification of data in the register;
2) To enable authorized persons to inspect the register;
3) To issue certified excerpts from the register and certificates that a person is not entered in the register;
4) To ensure keeping and archiving of documentation on the base of which entry, deletion or modifications of data were carried out in the register;
5) To carry out other activities necessary for uninterrupted and proper updating of data in the register, in compliance with the law.
Data to be entered in the Register of Sanctions
Article 327
The following data shall be entered in the register of sanctions:
1) Name and surname and the unique citizen’s identification number of the punished natural person, sole trader, i.e. responsible person with a legal person, i.e. the number of the travel document of a foreign natural person, and for a sole trader the name and seat of the business;
2) The name and seat, TIN and company registration number for the punished legal person;
3) The decision which is final, i.e. final in administrative proceedings whereby the misdemeanour sanction is imposed;
4) Legal qualification of the misdemeanour committed;
5) The type and description of the imposed misdemeanour sanction;
6) The duration of the protective measure;
7) The misdemeanour court which handed down the judgement, i.e. the authority which issued the penalty notice;
8) The misdemeanour court which performed the entry;
9) The date of entry.
Entry of Data in the Register of Sanctions
Article 328
Entry of data referred to in Article 327 of this Law shall be performed by the court that has passed the final decision, i.e. decision which is final in administrative proceedings that serves as the basis for the entry, i.e. by the first instance court in the territory of which the penalty notice that serves as the basis for the entry has been issued.
Entry of data in the register of sanctions shall be carried out immediately upon finality of the decision, i.e. upon the moment a decision whereby the misdemeanour sanction is imposed becomes final in administrative proceedings, which shall be ensured by the court of relevant jurisdiction ex officio.
The issuer of the penalty notice, in compliance with Article 173, paragraph 3 of this Law, shall immediately upon the expiry of the time limit referred to in Article 173, paragraph 2 of this Law, deliver to the court of relevant jurisdiction a copy of the penalty notice issued with a statement that it is final in administrative proceedings and with a note on whether the fine is paid or not.
Deletion of Data from the Register of Sanctions
Article 329
A sanction imposed against a legal, natural and responsible person as well as against a sole trader shall be deleted from the records ex officio providing that the punished person does not commit a new misdemeanour within a time limit of four years from the date of finality of the decision whereby the sanction was imposed.
By way of exception from paragraph 1 of this Article, a warning imposed shall be deleted within one year from the finality of the decision whereby it was imposed.
The juvenile detention sanction imposed against a minor shall be deleted within two years from the moment when such sanction is served, time-barred or pardoned, providing that no new misdemeanour is committed.
A protective measure shall not be deleted from the misdemeanour records until it is executed or until the limitation period for execution of the protective measure runs out.
Issuing of Data from the Register of Sanctions
Article 330
Data on punished persons from the register of sanctions can be only be provided to another court, competent prosecutor’s office, police and inspection authorities, in relation to a criminal proceeding or a misdemeanour proceeding conducted against a person that has previously been punished for a misdemeanour, to the authorities competent for enforcement of misdemeanour sanctions or to the competent authorities participating in the punishment deletion procedure.
Data from the register of sanctions regarding a punished person can be provided at a justified request of the authorities referred to in the previous paragraph of this Article if some specified legal consequences of the punishment or protective measure are still present or where there is justified interest for that based on the law.
At the request of citizens and legal persons data on their punishments for misdemeanours shall be provided to them.
Citizens and legal persons shall not be asked to submit evidence of not being punished for misdemeanours unless where that is specifically envisaged so by the law.
Proof of payment of fee for the service requested shall also be enclosed to the request for issuing data from the register of sanctions. Minister in charge of justice shall prescribe the fees for issuing of data from the register of sanctions by means of a separate act.
2. Register of Unpaid Fines and Other Monetary Amounts
Article 331
For the purpose of efficient collection of fines imposed, compensation of costs and collection of other monetary amounts adjudicated based on damages, property claim or confiscation of proceeds, a consolidated register of unpaid fines and other monetary amounts (hereinafter: the register of fines) shall be maintained.
The register of fines shall be a centralized electronic database in which all data entered in the register shall be kept.
Any unpaid fines, costs of proceedings and other monetary amounts imposed by means of a final and enforceable court decision or by means of a penalty notice that is final in administrative proceedings and enforceable, shall be entered in the register of fines.
Provisions on the register of sanctions referred to in Articles 325 and 326 of this Law shall apply mutatis mutandis to keeping and handling of data in the register of fines.
Data to be entered in the Register of Fines
Article 332
The following information shall be entered in the register of fines:
1) Name and surname and unique citizens identification number of the punished natural person, sole trader i.e. responsible person with the legal person, i.e. the number of the travel document of a foreign natural person which failed to pay the fine or other monetary amounts imposed or which failed to compensate the costs of the proceedings imposed in their entirety within the time limit prescribed;
2) For the punished legal person, the name and seat, TIN and company registration number and the name and seat of the sole trader’s business;
3) The decision which is final, i.e. final in administrative proceedings whereby a monetary liability is imposed;
4) The misdemeanour court that has passed the decision, i.e. the authority that has issued the penalty notice;
5) The amount owed and the basis for such debt;
6) The due date of the payment’s obligation;
7) The misdemeanour court that performed the entry;
8) The date of entry.
The unpaid fines and other monetary amounts imposed shall be recorded and maintained in the register of fines.
Entry of Data in the Register of Fines
Article 333
Entry of data referred to in Article 332 of this Law shall be performed by the court that passed the decision which is the basis for entry, i.e. by the first instance court in the territory of which the penalty notice was issued, based on which the entry is made.
Entry of data in the register of fines shall be performed upon expiry of the time limit for voluntary payment, which shall be ensured ex officio by the court of relevant jurisdiction.
Provisions of Article 328, paragraph 3 of this Law shall apply mutatis mutandis to entry of data in the register of fines.
Deletion and Change of Data in the Register of Fines
Article 334
If the person punished pays the amount owed in a part thereof or completely or the fine imposed is completely or partially replaced by a served prison sentence or by a community service, the court of relevant jurisdiction shall immediately perform deletion of data i.e. to enter the relevant change in the register of fines.
If prior to the enforcement procedure, the person punished pays the fine imposed by means of a penalty notice voluntarily, in a part thereof or completely, the issuer of the notice shall immediately notify the court of relevant jurisdiction thereof.
The fine and costs of the proceedings, data on the person punished as well as any other data relating thereto shall be deleted from the register of fines immediately after the person punished has paid the total amount owed i.e. upon the expiry of the time limit of four years from the date when the penalty notice or judgement of conviction became final.
Access to Data in the Register and Issuing of Excerpts and Data from the Register
Article 335
Data from the register of fines shall be available to all misdemeanour courts, as well as to the authorities competent for conducting the proceedings referred to in Article 336 of this Law.
Provisions of Articles 326 and 330 of this Law shall apply mutatis mutandis to issuing of data from the register of fines.
An application for issuing data from the register of fines can be submitted to any misdemeanour court.
Access to data from the register of fines shall be approved and regulated in more detail by the minister in charge of justice, by means of a separate act.
Article 336*
(Repealed by means of the Decision of the CC)
RULES ON CONLICTS OF LAW AND ASSIGNING CASES FOR ENFORCEMENT IN RELATIONS AMONG COURTS IN THE REPUBLIC OF SERBIA
Article 337
A court that pronounced a prison sentence, a corrective measure or a protective measure may request that such sentence i.e. measure is enforced in the territory of another court in the Republic of Serbia, in which the domicile i.e. residence of the person against which the enforcement is to be conducted is located.
Obligations of the Court Following the Assignment of Enforcement
Article 338
The court that conducted enforcement shall pass a resolution on costs incurred in conducting of enforcement.
For the purpose of settling the costs of enforcement, the court that conducted the enforcement shall withhold the required sum from the amount collected.
TRANSITIONAL AND FINAL PROVISIONS
Article 339
Regulations on misdemeanours that are not in compliance with this Law shall be harmonized until the initial date of application of this Law.
Article 340
The misdemeanour proceedings initiated by the initial date of application of this Law shall be completed in compliance with the provisions of the Law on Misdemeanours ("Official Herald of the RS", Nos. 101/05, 116/08 and 111/09).
The second instance misdemeanour court shall be competent to act in the proceedings referred to in paragraph 1 of this Article from the initial date of application of this Law, for adjudicating on an appeal against a resolution handed down by the administration authorities.
The cases of misdemeanour courts in which no decision on appeal against decisions of administrative authorities have been handed down by the initial date of application of this Law shall be transferred to the jurisdiction of the second instance misdemeanour court.
Article 341
Secondary legislation prescribed by this Law shall be passed within six months from the date of entry into force of this Law.
Article 342
On the initial date of application of this Law, the Law on Misdemeanours ("Official Herald of the RS", Nos. 101/05, 116/08 and 111/09) shall cease to be valid.
Article 343
This Law shall enter into force on the eighth day from the date of publication in "Official Herald of the Republic of Serbia", and it shall apply from 1 March 2014.
Independent Articles of the
Law on Amendments and Additions to the Law on Misdemeanours
("Off. Herald of the RS", No. 13/2016)
Article 21
Regulations on misdemeanours that are not in accordance with this Law shall be harmonized within one year from entry into force of this Law.
Article 22
This Law shall enter into force on the eighth day from the date of publication in the "Official Herald of the Republic of Serbia".
Independent Article of the
Law on Additions to the Law on Misdemeanours
("Off. Herald of the RS", No. 91/2019)
Article 3
This Law shall enter into force on 1 July 2020.
PUBLISHER’S NOTE
* The provisions of Article 336 of the Law on Misdemeanours ("Off. Herald of the RS", Nos. 65/2013 and 13/2016) ceased to be valid based on the Decision of the CC IUz No. 367/2013 of November 3, 2016, published in "Off. Herald of the RS", No. 98/2016 of December 8, 2016.
** The provisions of Article 87, paragraph 2, item 1) and Article 100, paragraph 2 of the Law on Misdemeanours ("Off. Herald of the RS", Nos. 65/2013, 13/2016 and 98/2016 - decision of the CC) shall cease to be valid on July 1, 2020, the day the Law on Public Procurement begins to apply ("Off. Herald of the RS", No. 91/2019).
*** Provisions of Article 281, paragraph 3 of the Law on Misdemeanours ("Off. Herald of the RS", Nos. 65/2013, 13/2016, 98/2016 - CC decision, 91/2019 and 91/2019 - other law) ceased to be valid based on Decision of the CC IUz No. 25/2018 of April 7, 2022, published in the "Off. Herald of the RS", No. 112/2022 of October 12, 2022.