Translated by OSCE Mission to SaM February 2006
CRIMINAL CODE
(Official Gazette of RS, Nos. 85/2005, 88/2005, 107/2005)
GENERAL PART
CHAPTER ONE
GENERAL PROVISIONS
No Criminal Offence or Punishment without Law
Article 1
No one may be punished or other criminal sanction imposed for an offence that did not constitute a criminal offence at the time it was committed, nor may punishment or other criminal sanction be imposed that was not applicable at the time the criminal offence was committed.
No Punishment without Guilt
Article 2
Punishment and caution may be imposed only on an offender who is guilty of the committed criminal offence.
Basis and Scope of Criminal Law Compulsion
Article 3
Protection of a human being and other fundamental social values constitute the basis and scope for defining of criminal acts, imposing of criminal sanctions and their enforcement to a degree necessary for suppression of these offences.
Criminal Sanctions and their General Purpose
Article 4
- (1)
- Criminal sanctions are punishment, caution, security measures and rehabilitation measures.
- (2)
- The general purpose of prescription and imposing of criminal sanctions is to suppress acts that violate or endanger the values protected by criminal legislation.
- (3)
- A criminal sanction may not be imposed on a person who has not turned fourteen at the time of the commission of an offence. Rehabilitation measures and other criminal sanctions may be imposed on a juvenile under the conditions prescribed by a special law.
CHAPTER TWO
APPLICATION OF CRIMINAL LEGISLATION OF
THE REPUBLIC OF SERBIA
Temporal Application
Article 5
- (1)
- The law in force at the time of committing of criminal offence shall apply to the offender.
- (2)
- If after the commission of a criminal offence, the law was amended once or more times, the law most lenient for the offender shall apply.
- (3)
- A person who commits an offence prescribed by a law with a definite period of application shall be tried under such law, regardless of the time of trial, unless otherwise provided by such law.
Applicability of Criminal Legislation on the Territory of Serbia
Article 6
- (1)
- Criminal legislation of the Republic of Serbia shall apply to anyone committing a criminal offence on its territory.
- (2)
- Criminal legislation of the Republic of Serbia shall apply to anyone committing a criminal offence on a domestic vessel, regardless of where the vessel is at the time of committing of the act.
- (3)
- Criminal legislation of the Republic of Serbia shall apply to anyone committing a criminal offence in a domestic aircraft while in flight or domestic military aircraft, regardless of where the aircraft is at the time of committing of criminal offence.
- (4)
- If criminal proceedings have been instituted or concluded in a foreign country in respect of cases specified in paragraphs 1 through 3 of this Article, criminal prosecution in Serbia shall be undertaken only with the permission of the Republic Public Prosecutor.
- (5)
- Criminal prosecution of foreign citizens in cases specified in paragraphs 1 through 3 of this Article may be transferred to a foreign state, under the terms of reciprocity.
Applicability of Criminal Legislation of Serbia to Perpetrators of Particular Criminal
Offences Committed Abroad
Article 7
Criminal legislation of Serbia shall apply to anyone committing abroad a criminal offence specified in Articles 305 through 316, and 318 through 321 hereof or Article 223 hereof if counterfeiting relates to domestic currency.
Applicability of Criminal Legislation of Serbia to Serbian Citizen Committing Criminal
Offence Abroad
Article 8
- (1)
- Criminal legislation of Serbia shall also apply to a citizen of Serbia who commits a criminal offence abroad other than those specified in Article 7 hereof, if found on the territory of Serbia or Montenegro or if extradited to the State Union of Serbia and Montenegro.
- (2)
- Under the conditions specified in para 1 of this Article, criminal legislation of Serbia shall also apply to an offender who became a citizen of Serbia and Montenegro after the commission of the offence.
Applicability of Criminal Legislation of Serbia to a Foreign Citizen Committing a Criminal Offence Abroad
Article 9
- (1)
- Criminal legislation of Serbia shall also apply to a foreigner who commits a criminal offence against Serbia or its citizen outside the territory of Serbia other than those defined in Article 7 hereof, if they are found on the territory of Serbia or Montenegro or if extradited to the State Union of Serbia and Montenegro.
- (2)
- Criminal legislation of Serbia shall also apply to a foreigner who commits a criminal offence abroad against a foreign state or foreign citizen, when such offence is punishable by five years' imprisonment or a heavier penalty, pursuant to laws of the country of commission, if such person is found on the territory of Serbia and is not extradited to the foreign state. Unless otherwise provided by this Code, the court may not impose in such cases a penalty heavier than set out by the law of the country where the criminal offence was committed.
Special Requirements for Criminal Prosecution for Offences Committed Abroad
Article 10
(1) In cases referred to in Articles 8 and 9 hereof, criminal prosecution shall not be undertaken if:
1) the offender has fully served the sentence to which he was convicted abroad;
2) the offender was acquitted abroad by final judgement or the statute of limitation has set in respect of the punishment, or was pardoned;
3) to an offender of unsound mind a relevant security measure was enforced abroad;
4) for a criminal offence under foreign law criminal prosecution requires a motion of
the victim, and such motion was not filed. - (2)
- In cases referred to in Articles 8 and 9 hereof criminal prosecution shall be undertaken only when criminal offences are also punishable by the law of the country where committed.
When in cases referred to in Article 8 and 9 paragraph 1 hereof, the law of the country where the offence was committed does not provide for criminal prosecution for such offence, criminal prosecution may be undertaken only by permission of the Republic Public Prosecutor.
- (3)
- In case referred to in Article 9 paragraph 2 hereof, if the act at time of commission was considered a criminal offence under general legal principles of international law, prosecution may be undertaken in Serbia following the permission of the Republic Public Prosecutor, regardless of the law of the country where the offence was committed.
Calculating Detention and Time Served Abroad
Article 11
Detention, any other depriving of liberty in respect of a criminal offence, depriving of liberty during extradition procedure, as well as the punishment that the offender has served abroad pursuant to the judgement of a foreign court shall be calculated in the punishment imposed by a domestic court for the same criminal offence, and if the punishment is not of the same kind, calculation shall be done according to the assessment of the court.
Applicability of the Law of a Member State Setting forth Criminal Offence
Article 12
- (1)
- Criminal legislation of a member state that sets forth a criminal offence shall apply to anyone who on the territory of such member state commits a criminal offence provided under its legislation, regardless of where such person stands trial.
- (2)
- If the criminal offence provided under criminal legislation of a member state has been committed on the territory of both member states, the law of the state where the offender stands trial shall apply.
- (3)
- For criminal offences provided under legislation of a member state when such acts are committed outside the State Union of Serbia and Montenegro or on a domestic ship or domestic aircraft while outside the territory of the State Union of Serbia and Montenegro, the law of the member state where the offender stands trial shall apply.
Applicability of the General Part of this Code
Article 13
Provisions of the General Part of this Code shall apply to all criminal offences provided under this Code or other law.
CHAPTER THREE
CRIMINAL OFFENCE
1. General Provisions on Criminal Offence
Criminal Offence
Article 14
- (1)
- A criminal offence is an offence set forth by the law as criminal offence, which is unlawful and committed with guilty mind/mens rea.
- (2)
- There is no criminal offence without an unlawful act or culpability, notwithstanding the existence of all essential elements of a criminal offence stipulated by law.
Commission of Criminal Offence by Omission
Article 15
- (1)
- A criminal offence is committed by omission if the law defines a failure to undertake a particular action as a criminal offence.
- (2)
- A criminal offence may also be committed by omission even if the law defines the offence as commission, if elements of such criminal offence have materialised by the offender's failure to do what he was obliged to do.
Time of Commission of Criminal Offence
Article 16
- (1)
- A criminal offence is committed at the time the offender was acting or was obliged to act, irrespective of when the consequences of that act occurred.
- (2)
- An accomplice has committed a criminal offence at the time when he acted or was obliged to act.
Place of Commission of Criminal Offence
Article 17
- (1)
- A criminal offence is committed both at the place where the perpetrator acted or was obliged to act, and where full or partial consequences of the act occurred.
- (2)
- An attempted criminal offence shall be considered committed both at the place where the offender acted and at the place where consequences of his intent should or could have occurred.
- (3)
- An accomplice has committed an offence also in the place where he acted in complicity.
An Offence of Minor Significance
Article 18
- (1)
- An offence shall not be considered a criminal offence, if despite having elements of a criminal offence it represents an offence of minor significance.
- (2)
- An offence of minor significance is that in which the degree of the offender’s responsibility is low, if consequences are absent or insignificant or eliminated by the offender, and where the general purpose of imposing criminal sanctions does not require sanctioning.
- (3)
- The provisions of paragraphs 1 and 2 of this Article may be applied to criminal offences carrying imprisonment sentence of up to three years or a fine.
Self-defence
Article 19
(1) An act committed in self-defence is not a criminal offence. - (2)
- Self-defence is such defence as necessary for the perpetrator to repel a concurrent unlawful attack on his person or the person of another.
- (3)
- Punishment of a perpetrator who has exceeded the limits of self-defence may be mitigated. A perpetrator who exceeds the limit of self-defence due to extreme provocation or fear caused by assault may be acquitted.
Extreme Necessity
Article 20
(1) An act committed in extreme necessity shall not constitute a criminal offence. - (2)
- Extreme necessity exists when an act is committed by the perpetrator to repel from his person or the person of another a concurrent unprovoked danger that could not be otherwise repelled, and the damage inflicted does not exceed the damage threatened.
- (3)
- Punishment of a perpetrator who caused the danger himself, but due to negligence or has exceeded the limits of extreme necessity, may be mitigated. A perpetrator who has exceeded the limits of extreme necessity under particularly extenuating circumstances, may receive remittance of punishment.
- (4)
- There is no extreme necessity if the offender was under obligation to expose himself to imminent danger.
Force and Threat
Article 21
(1) An act committed under irresistible force is not a criminal offence. - (2)
- If a criminal offence is committed under force which is not irresistible or under threat, the offender may be punished more leniently.
- (3)
- In case referred to in para 1 of this Article, the person using irresistible force shall be considered perpetrator of the criminal offence.
Guilt
Article 22
(1) A perpetrator is guilty if he/she was mentally competent and acting with premeditation at the time of committing of the criminal offence, and was aware or should or could have been aware that his action was prohibited.
(2) A perpetrator is also guilty when acting in negligence, if so explicitly provided by law.
Mental Incompetence
Article 23
(1) There is no criminal offence if it was committed in a state of mental incompetence. - (2)
- A perpetrator is mentally incompetent if they were unable to understand the significance of their act or were unable to control their actions due to mental illness, temporary mental disorder, mental retardation or other severe mental disorder.
- (3)
- A perpetrator of a criminal offence whose ability to understand the significance of their act or ability to control their actions was substantially diminished due to any of the conditions stipulated in paragraph 2 of this Article (substantially diminished mental competence) may be given a mitigated sentence.
Self-induced Incompetence
Article 24
- (1)
- The guilt of the perpetrator of a criminal offence who by consumption of alcohol, drugs or otherwise induced such a state of mind where they could not understand the significance of their act or control their actions shall be determined according to the time directly preceding the induced state.
- (2)
- A perpetrator who under the circumstances referred to in paragraph 1 of this Article committed a criminal offence in the state of substantially reduced competence may not receive mitigated punishment on these grounds.
Premeditation
Article 25
A criminal offence is premeditated if the perpetrator was aware of his act and wanted it committed or when the perpetrator was aware that he could commit the act and consented to its commission.
Negligence
Article 26
A criminal offence is committed by negligence if the offender was aware that by his action he could commit an offence, but had recklessly assumed that it would not occur or that he would be able to prevent it or was unaware that by his action he could commit an offence although due to circumstances under which it was committed and his personal characteristics he was obliged to be and could have been aware of such possibility.
Liability for Graver Consequence
Article 27
When a graver consequence has resulted from a criminal offence due to which a more severe punishment is provided by law, such punishment may be imposed if the consequence is attributable to the offender’s negligence, as well as if he acted with premeditation if this does not establish elements of another criminal offence.
Mistake of Fact
(Error Facti)
Article 28
- (1)
- An act shall not be considered a criminal offence if it was done out of a compelling mistake of fact.
- (2)
- A compelling mistake of law exists where the perpetrator was not required or could not avoid a mistake about particular circumstance, which is a statutory element of the criminal offence, or about particular circumstance, which, had it existed, would have rendered such act permissible.
- (3)
- If the perpetrator’s mistake was due to negligence, he shall be guilty of criminal offence committed by negligence, if such offence is provided by law.
Mistake of Law
(Error Iuris)
Article 29 - (1)
- An act shall not be considered a criminal offence if it was done out of a compelling mistake of law.
- (2)
- A compelling mistake of law exists where the perpetrator was not required or could not be aware that his act was prohibited.
- (3)
- A perpetrator who was unaware that an act was prohibited, but could have or should have known, may be punished leniently.
2. Attempted Criminal Offence
Attempt
Article 30
- (1)
- Whoever commences a criminal offence with premeditation, but does not complete it, shall be punished for the attempted criminal offence if such offence is punishable by law with a term of imprisonment of five years or more, and for the attempt of other criminal offence only when the law explicitly provides for the punishment of attempt.
- (2)
- A perpetrator shall be punished for an attempt with a punishment prescribed for the criminal offence or with a lighter punishment.
Inappropriate Attempt
Article 31
An offender who attempts to commit a criminal offence with an inappropriate tool or against an inappropriate object may be remitted from punishment.
Voluntary Abandonment
Article 32
- (1)
- An offender who attempted to commit a criminal offence, but voluntarily abandoned the act of commission or prevented occurrence of consequences, may be remitted from punishment.
- (2)
- The provision of paragraph 1 of this Article shall not apply if the offender has not completed the criminal offence due to circumstances preventing or considerably hindering commission of the criminal offence, or because he assumed that such circumstances were present.
- (3)
- An accessory, instigator or abettor who voluntarily prevents commission of a criminal offence may also be remitted from punishment.
- (4)
- If in cases specified in paragraphs 1 and 3, the offender completes some other criminal offence that is independent of the offence he abandoned, the offender may not be remitted from punishment for such other offence on the same grounds.
3. Complicity in Criminal Offence
Co-perpetration
Article 33
If several persons jointly take part in committing a criminal offence, or jointly commit an offence out of negligence, or by carrying out a jointly made decision, by other premeditated act significantly contribute to committing a criminal offence, each shall be punished as prescribed by law for such offence.
Incitement
Article 34
- (1)
- Whoever with intent incites another to commit a criminal offence shall be punished as prescribed by law for such offence.
- (2)
- Whoever with intent incites another to commit a criminal offence whose attempt is punishable by law, and such offence has not been attempted at all, shall be punished as for the attempted criminal offence.
Aiding and Abetting
Article 35
- (1)
- Anyone aiding another with intent in committing a criminal offence shall be punished as prescribed by law for such criminal offence, or by a mitigated penalty.
- (2)
- The following, in particular, shall be considered as aiding in the commission of a criminal offence: giving instructions or advice on how to commit a criminal offence; supply of means for committing a criminal offence; creating conditions or removal of obstacles for committing a criminal offence; prior promise to conceal the commission of the offence, offender, means used in committing a criminal offence, traces of criminal offence and items gained through the commission of criminal offence.
Limits of Culpability and Punishment of Accomplices
Article 36
- (1)
- An accomplice is culpable for a criminal offence within the limits of his intent or negligence, and the inciter and abettor within the limits of their intent.
- (2)
- Grounds which preclude the culpability of the perpetrator (Art. 23, 28 and 29 hereof) do not preclude a criminal offence of co-perpetrators, inciters or abettors if they are culpable.
- (3)
- Personal relations, characteristics and circumstances due to which the law allows remittance of punishment, or that affect sentencing, may be taken in consideration only for such perpetrator, co-perpetrator, inciter or abettor where such relations, characteristics and circumstances exist.
- (4)
- Personal relations, characteristics and circumstances representing an essential element of a criminal offence do not have to exist with an inciter or abettor. An inciter or abettor having no such personal characteristic may be given a mitigated penalty.
4. Punishment of Inciter and Abettor for an Attempt
Attempt and Lesser Criminal Offence
Article 37 - (1)
- If a criminal offence remains an attempt, the inciter and abettor shall be punished for the attempt.
- (2)
- If an offender commits a lesser criminal offence than the one incited to or abetted, and which would have been comprised in such offence, the inciter and abettor shall be punished for the committed criminal offence.
- (3)
- Provision of paragraph 2 of this Article shall not apply if the inciter would receive more severe penalty by application of Article 34, paragraph 2 hereof.
5. Special Provisions on Criminal Liability for Offences Committed through the Media
Culpability of an Editor-in-chief
Article 38
- (1)
- A perpetrator of a criminal offence committed through publication of information in newspapers, other periodicals, on the radio, television or newsreels is the author of the information.
- (2)
- As an exception to paragraph 1 of this Article, an editor-in-chief or person replacing him at the time of publication of the information shall be deemed perpetrator of a criminal offence committed through publication of information in newspapers, other periodicals, on the radio, television or newsreels:
1) if the author remains unknown until the conclusion of the main hearing before a
first instance court and the offence carries a statutory penalty of five years imprisonment or more; 2) if the information was published without the author’s consent; 3) if at the time of publication factual or legal obstacles existed for prosecution of the
author, and continue to exist.
(3) An editor-in-chief or person replacing him is not culpable if due to justifiable reasons he was unaware of any of the circumstances referred to in paragraph 2, items 1 through 3 of this Article.
Criminal Liability of Publisher, Printer and Producer
Article 39
(1) If conditions set forth in Article 38 hereof exist, the perpetrators shall be:
1) publisher – for a criminal offence committed through regular printed publications, and if there is no publisher or factual or legal obstacles exist for his prosecution – the typesetter/printer who had knowledge thereof;
2) producer – for the criminal offence committed by way of compact disc, phonograph record, magnetic tape and other audio mediums, film for public and private showing, slides, video or other similar means intended for a wider audience.
(2) If the publisher, printer or producer is a legal entity or government authority, the official in charge of publishing, printing or production shall be culpable.
Application of Provisions of Articles 38 and 39
Article 40
Provisions of Articles 38 and 39 hereof shall apply only provided these persons may not be considered perpetrators of a criminal offence pursuant to general provisions of this Code.
Protection of Sources of Information
Article 41
Persons referred to in Articles 38 and 39 hereof shall not be considered perpetrators of a criminal offence if they failed to disclose to the court or a competent body the author of the information or source of information, unless a criminal offence has been committed which is punishable by at least five years imprisonment or more, or if necessary in order to prevent such criminal offence.
CHAPTER FOUR
PENALTIES