Foreign citizens in the misdemeanor procedure – Part one
– CHARACTERISTICS OF THE MISDEMEANOR PROCEDURE CONDUCTED AGAINST FOREIGN CITIZENS –
Are foreign citizens in the same position as citizens of the Republic of Serbia?
All the basic principles of the misdemeanour procedure, the principle of legality, determination of material truth, urgency and the use of the language shall be applied in the misdemeanour procedure in which the defendants are foreigners, i.e. person who do not have citizenship of the Republic of Serbia are indicted.
Detaining a suspect for the commission of a misdemeanour before initiating proceedings
The specificity of the misdemeanour proceedings in which as defendants appear foreigners is the urgency of such a procedure, due to the fear that a foreigner will leave the Republic of Serbia and thus, avoid misdemeanour liability. The provision of Article 190 of the Law on Misdemeanours prescribes the institute of detaining a suspect for the commission of a misdemeanour before initiating proceedings.
This measure is carried out by authorized police officers, without a court order and without a prior written notification. The arrest of the suspected, shall be carried out without delay, and the perpetrator shall be transferred to the judge on duty.
In which cases can the institute of detaining a suspect for the commission of a misdemeanour be applied?
Authorized police officers may arrest a person found in the misdemeanour, in the following cases:
1. if the identity of that person cannot be determined or there is a need for identity verification,
2. if the person does not possess permanent or temporary residence,
3. when leaving the country would lead to avoidance of misdemeanour liability, and these are violations for which a misdemeanour warrant cannot be issued,
4. if the detention is preventing from continuing the offence.
In cases of the detention of foreigners, the experience so far shows that it is possible to determine the fulfilment of any of these four conditions; often foreigners do not have any personal identification documents on the basis of which their identity could be determined, they do not have a place of permanent or temporary residence, by virtue of the act of going abroad, they can certainly avoid responsibility for the misdemeanour, and the detention prevents them from committing the offense.
When is the police authorized to detain a foreigner?
If the perpetrator of the misdemeanour is found in the commission of a misdemeanour and cannot be immediately brought to the judge and there are grounds for suspicion that he will escape or the danger of continuing the misdemeanour, the authorized police officer can keep the perpetrator for a maximum of 24 hours.
Lawyer’s advice: In such a situation, an authorized police officer is obliged to notify a person, at the choice of the detainee (which is in most cases the selected defender), as well as the diplomatic consular representative of the state whose citizen is detained, i.e. representatives of the relevant international organization, if the detainee is a refugee or stateless person.
Enforcement of a judgment in a misdemeanour procedure before the decision on the defendant’s appeal
It is a general rule that a conviction in a misdemeanour procedure is enforced when it becomes legally effective.
When can a judgment determining the liability of a foreigner be enforced?
From the basic rule to enforce a final judgment, the Law on Misdemeanours in Article 308 allows the enforcement of a judgment even before its finality, in cases where the defendant cannot prove his identity or does not have a place of residence or does not live at the address on which he / she is registered, or if he goes abroad for the purpose of staying, and the court finds that there is a reasonable suspicion that the defendant will avoid the enforcement of the sentence imposed.
In which deadlines does the appeal decide?
In the event that the defendant declares an appeal against a judgment ordering the enforcement of the judgment before its finality, the court is obliged to submit the appeal with the case file to the second instance court within 24 hours, counting from the time when the appeal was received, whereby the second instance court is obliged to decide on the appeal and to deliver its judgment to the first instance court within 48 hours counting from the time of receipt of the file of the case.
Use of the language of a foreign citizen in a misdemeanour procedure
The accused has the right to use his own language, in all stages of the misdemeanour procedure and if the procedure is not conducted in the language of the person participating in the misdemeanour procedure, oral translation of the statement, but also the documents and other written evidence, must be provided.
Lawyer’s advice: In the record of the defendant’s hearing, it must be noted that the defendant is informed about the right to use the language, which, in case of omission, is a violation of the provisions of the misdemeanour procedure and the reason for the abolition of the first instance decision.
Košutić Šeperac Radenković