Imprisonment in Misdemeanor Proceedings and Substitution of Unpaid Fines for Imprisonment in Serbian Misdemeanor Law

 

The Law on Misdemeanors provides prison and fine penalties, community service and penalty points, warnings, protective measures and educational measures as misdemeanor sanctions, and as it is pointed out, with the aim that citizens respect the legal system and that no one commits a misdemeanor in the future.

Imprisonment must not be prescribed for a period shorter than one or longer than 60 days.

Imprisonment cannot be imposed on a pregnant woman, after the completion of three months of pregnancy, nor on the mother until the child is one year old, and if the child was stillborn or if it died after childbirth, until six months have passed from the day of delivery.

Work in the public interest is defined as voluntary unpaid work for the benefit of society that does not offend human dignity and does not generate profit, and cannot last less than 20 hours or more than 240 hours.

 

Serious Offenses Lead Straight to Prison

For excessive speeding, driving under the influence of alcohol or running a red light, you can immediately find yourself in jail and spend at least 15 days there. There are many more serious offenses for which the magistrate on duty can impose a prison sentence.

According to the new law, misdemeanor proceedings are urgent. The enforceability of the judgment occurs before its finality. For driving with more than two per thousand of alcohol in the blood, running through a red light, driving without a license, driving on a yellow lane, violent driving and other serious offenses, when there is reasonable suspicion that the defendant will repeat the offense or continue to commit the offense, the policeman immediately takes him with the on-duty misdemeanor judge who immediately makes a decision and that decision is immediately executed.

At this point, it is important to point out that the penalty is a minimum of 15 days in prison or a fine of 100,000 to 120,000 dinars, along with 14 penalty points and eight months of being banned from driving a motor vehicle, and ten months if there was a traffic accident. Therefore, a citizen with such behavior risks being immediately brought to the on-duty misdemeanor judge and sentenced to a prison sentence of at least 15 days and immediately taken to serve the prison sentence. Appeals can be made within 24 hours, and the Misdemeanor Appellate Court is obliged to make a decision on the appeal within 48 hours and deliver it to the defendant. Another possibility is a heavy fine. If the judge does not impose a prison sentence but a fine, for example 100,000 dinars, the defendant can immediately pay it and go home, think about it, and then appeal. However, if he cannot pay this fine, then it is replaced by imprisonment. Every thousand dinars is replaced by one day in prison, so he must go to prison for 60 days. The prison sentence cannot last longer when it comes to misdemeanors, so there remains 40,000 dinars that the defendant must pay. If he does not pay, he enters the record of unpaid fines.

In every case like this, misdemeanor proceedings will be conducted, but what is new is that the sentencing is urgent, as is the execution. The sentence is executed immediately, before the court decision becomes final, and the defendant has the right to appeal and have a higher court decide on his appeal. The defendant is tried immediately. The procedure is conducted by the misdemeanor judge on duty. If the traffic police can immediately prove that the defendant has committed a serious offense, he will be immediately convicted and fined. In these cases, material evidence, a recording or a breathalyzer test are most often provided.

A novelty in Serbian misdemeanor law is work in the public interest, which is another possibility. Judges will assess in each individual case whether it is better for the defendant to be sentenced to work instead of prison or a fine. When deciding on the type of punishment, the court will assess the personality of the defendant and other circumstances. If someone commits a serious offence, in many cases it can be shown that a prison sentence would cause more harm than good. The family and social status of the defendant will also influence the court's decision.

 

Substitution of unpaid fines in misdemeanor proceedings

Substitution of unpaid fines in misdemeanor proceedings is regulated in Article 41. of the Law on Misdemeanors.

The aforementioned provision prescribes:

"The court can replace a fine that the punished natural person, entrepreneur or responsible person in a legal entity does not pay (in whole or in part) with a prison sentence by determining one day of imprisonment for every 1,000 dinars that has been incurred, with the fact that the prison sentence cannot last shorter than one day and no longer than sixty days".

Therefore, the law does not determine exactly when a fine can be replaced by a prison sentence. In the decision by which a person is punished for a misdemeanor, in addition to the imposition of a fine, the term in which the fine must be paid is determined. At the end of that term, the court can replace the fine with a prison sentence, which is again prescribed as a possibility in the same misdemeanor decision.

The law prescribes as a possibility this conversion of a fine into a prison sentence, therefore, it is not mandatory.

"If, in addition to the fine, a prison sentence was also imposed on the punished person, the imprisonment that replaces the unpaid fine and the imposed prison sentence cannot last longer than ninety days".

With this provision, the law determines the maximum duration of the prison sentence in the event that the punished person, in addition to the fine, is also sentenced to prison. Therefore, the sum of those prison sentences cannot exceed ninety days.

"If the court deems it justified, taking into account the severity of the offense, the amount of the unpaid fine and the property potential of the convicted person, the court may, instead of imprisonment, order that the unpaid fine be replaced by work in the public interest, with eight hours of work replacing one day of imprisonment, i.e. 1,000 dinars fine, and the work cannot last longer than 360 hours".

This is the second possibility of execution of the imposed misdemeanor sanction, in case of non-payment of the fine. This is precisely its replacement with work in the public interest, of course, if it is justified considering the gravity of the offense, the amount of the unpaid fine and the financial capabilities of the convicted person.

"The part of the unpaid fine that could not be replaced by a prison sentence or work in the public interest, is collected through compulsion".

"If, after the court's decision to replace the unpaid fine, the punished natural person pays the fine, the prison sentence or community service will not be carried out. If the execution of the sentence has begun, and the punished person pays the rest of the imposed fine, the execution of the sentence of imprisonment and community service will be suspended".

Payment of a fine always interrupts the execution of the prison sentence or community service, before or during their execution.

"The replacement of an unpaid fine with a prison sentence cannot be determined for fines imposed on minors and legal entities".

"The unpaid fine imposed on the minor will be compulsorily collected on the property of the minor, his parent or other person responsible for taking care of him".

The law does not allow the replacement of an unpaid fine with a prison sentence if it was pronounced against a minor, and logically also against a legal person, because the same cannot go to prison.

Finally, the law stipulates that: "The provisions of the law prescribing the execution of criminal sanctions shall be applied accordingly to the replacement of unpaid fines".

 

Zoran J. Minic, Attorney at Law

lawofficeminic@gmail.com