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Civil asset recovery
Is there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter?
There are no limitations for parallel progression of civil and criminal proceedings. Elements of civil legal liability are certainly broader than the elements of criminal legal liability. The civil court is bound by the judgment of a criminal court, and the responsibility determined by a criminal court cannot be reduced or annulled by the judgment of a civil court. Likewise, someone who is released in a criminal proceeding can be sentenced for damage and civil liability in a civil proceeding. If proceedings progress in parallel, the criminal court shall issue a procedural decision by which it shall question the victim of fraud and ascertain property claim, and the realisation of the request and claim shall instruct the civil proceeding.
In which court should proceedings be brought?
The competent court is the civil court of general jurisdiction or commercial court, depending on who the litigants are and whether natural persons or a legal entity. Likewise, it depends on claim amount whether a basic civil court of general jurisdiction or a High Court of general jurisdiction is deemed competent.
What are the time limits for starting civil court proceedings?
The initiation of civil proceedings is limited by the statute of limitations applicable to the underlying claim. However, there is no procedural statute of limitations restricting civil court proceedings as such.
As a rule, claims that arise out of a breach of contract become time-barred after 10 years unless otherwise prescribed by law. Some specific contractual claims become time-barred after five years, commercial claims after three years and damage claims after three or five years.
In what circumstances does the civil court have jurisdiction? How can a defendant challenge jurisdiction?
Commercial courts have jurisdiction in commercial and business matters between legal entities or entrepreneurs.
Civil courts mainly have jurisdiction for contentious civil matters, court orders in non-contentious matters and court orders in matters of debt collection and bankruptcy law, as well as arbitration.
The court examines ex officio whether the procedural requirements of a claim are satisfied when it receives a court claim. A party has a right to object to the jurisdiction of the court before and at the preliminary hearing. The court has an obligation to decide on any objection immediately in a written decision, or in the main decision in the later stage of the hearing with a final judgment.
What is the usual time frame for a claim to reach trial?
After receiving the claim, the court executes the preliminary examination of the lawsuit, examining whether the lawsuit is incomprehensible or incomplete, or if there are disadvantages concerning the ability of the parties to be litigated parties, deficiencies in the legal representation of the party or deficiencies relating to the authorisation of the representative to initiate a lawsuit if such authorisation is required. If the court determines there is, it can either call upon a party to correct the deficiency, if it can be corrected, or reject the claim. Further, the court will reject the claim if it determines the following:
- that deciding on a claim does not fall within the jurisdiction of the court;
- that the lawsuit was filed after the statute of limitations;
- that there is already a litigation with the same claim;
- that final judgement of court settlement on the same claim already exists; or
- that there is no legal interest of the claimant to file a lawsuit.
If there are none of the aforementioned circumstances, the court will deliver the lawsuit to the defendant within 15 days starting from the day of receiving the lawsuit. The defendant is obliged to submit a response to the lawsuit, within 30 days of the date of delivery of the lawsuit. The court will schedule and hold a preparatory hearing within 30 days of the date of delivery of the defendants’ response to the claimant. Having the aforementioned provisions in mind, in litigation, the time frame from the moment of filing the claim to the court to the first hearing is approximately 80 days.
Admissibility of evidence
What rules apply to the admissibility of evidence in civil proceedings?
Provisions of the Civil Procedure Code regulate the admissibility of evidence. The court rules on the admissibility by taking into consideration each item of the evidence individually and afterwards jointly putting all the evidence together in one logical and legal whole.
What powers are available to compel witnesses to give evidence?
If the witness who is duly summoned does not come and does not justify his or her absences, or if he or she leaves the place where he or she is to testify without authorisation or justified reason, the court may order that said witness is to be brought by force and bear the enforcement expenses. The court can also fine the witness in the amount of 10,000 to 150,000 Serbian dinars. If the witness comes to the scheduled hearing, but refuses to give his or her statement without valid reason, the court can fine the witness in the amount of 10,000 to 150,000 Serbian dinars, and if he or she still refuses, the court can fine the witness again. Concerning physical evidence, pursuant to articles 241 and 242 of the Civil procedure Code, the court may request from the defendant and from a third party any documents, evidence, or both, in his or her possession. A court order can be enforceable in terms of physical enforceability with the assistance of court bailiffs, according to Law on Enforcement and Security. Likewise, the court may fine any person who does not present a document upon a court order.
Publicly available information
What sources of information about assets are publicly available?
There are many open public registries that do not require permission to check and use data, such as the register of companies (the Business Entities Register), the intellectual property register, the civil registry, the real estate cadastre, mortgage registers and the Register of Pledges, etc. There are registers where data is public but cannot be accessed directly except through authorised persons, such as the register of shares where all data can be accessed through an authorised broker. Additionally, there is a register of addresses and identification numbers of natural persons, and a vehicle register, which is managed by the police, who will present such data at the request of the authorities.
Cooperation with law enforcement agencies
Can information and evidence be obtained from law enforcement and regulatory agencies for use in civil proceedings?
All evidence, including evidence obtained by law enforcement, can be used in civil proceedings without exception. This raises the question of whether law enforcement agencies are willing to cooperate with private persons and exchange evidence. Cooperation is successful if it does not interfere with the pre-investigation, investigation or criminal proceeding. From the moment that the prosecutor takes over the case from the police department and issues the indictment, the counsel of the victims can obtain all evidence without exception. Assessment of whether cooperation would interfere with proceedings and the stages of proceedings falls solely to the law enforcement authorities.
How can information be obtained from third parties not suspected of wrongdoing?
In general, pursuant to articles 241 and 242 of the Civil Procedure Code, documents in their possession may be requested from defendants and third parties. Such decisions can be enforceable. The court may fine a person who does not present a document at the court’s request.
Bank secrecy in the legal system
Bank secrecy rules are regulated by the Law on Banks (Official Herald of RS, Nos. 107/2005, 91/2010 and 14/2015). The Law on Banks defines bank secrets under article 46 and prescribes that they shall be considered as business secrets, and that the following shall be considered as bank secrets:
- data that is known to a bank and refers to personal data, financial status and transactions, as well as ownership or business relations of the clients of such bank or another bank;
- data on balance and transactions on individual deposit accounts; and
- other data that the bank has become aware of in the course of performing business activities with clients.
The Law on Banks prescribes that the following shall not be considered as a bank secret:
- public data and data accessible from other sources to interested persons with legitimate interest;
- consolidated data on the basis of which the identity of an individual client is not disclosed;
- data on bank shareholders and the amount of their participation in the bank share capital, and data on other persons holding a share in the bank and the data on such share, regardless of whether they are bank clients; and
- data related to a client fulfilling its obligations towards the bank in good time.
The Law on Banks prescribes several exceptions to the obligation to guard bank secrets. The obligation to guard bank secrets shall not apply if the data is disclosed as follows:
- on the basis of the decision or request of the competent court;
- for the needs of the Ministry of Internal Affairs, which is the authority responsible for combating organised crime and preventing money laundering, according to the regulations;
- in connection with property proceedings, on the basis of a request by the guardian of the property or the consular representative offices of foreign states, upon submission of written documents that prove the legitimate interest of these persons;
- in the case of execution by the competent authority regarding property of the bank’s client;
- to regulatory authorities for the purpose of performing activities within their field of competence;
- to a person established by banks for the purpose of collecting data on the total amount and type of, and timeliness in fulfilling, obligations of individuals and legal entities that are clients of the bank;
- to a competent authority with regard to supervising payment system operations of legal entities and individuals conducting their activities, in compliance with payment system regulation;
- to the tax administration pursuant to regulations on activities within its field of competence;
- to the authority competent for the supervision of foreign currency operations;
- upon the request of the organisation for deposit insurance, in compliance with the law that governs deposit insurance; or
- to a foreign regulatory authority under the conditions stipulated in the memorandum of understanding concluded between the foreign regulatory authority and the National Bank of Serbia.
Except for the provisions specified above, a bank has the right to disclose data that represents bank secrets to the investigative judge, public prosecutor and courts, or other public and legal authoritative bodies, solely for the purpose of the protection of its rights in compliance with the law.
What interim relief is available pre-judgment to prevent the dissipation of assets by, and to obtain information from, those suspected of involvement in the fraud?
Temporary measures and preliminary measures in criminal and civil proceedings
Temporary measures in legislation are regulated both in criminal and civil proceedings by the Law on Enforcement and Security (Official Herald of RS, No. 106/2015 ).
A temporary measure may be ordered before, or in the course of, a court (both in civil and criminal proceedings as well as in an enforcement proceeding) or administrative proceeding, as well as after the termination of such a proceeding, until such time as the enforcement proceeding is conducted.
There are two types of temporary measures.
Temporary measures for securing a monetary claim
Requirements for imposing such measures are that temporary measures for securing monetary claims may be ordered if the enforcement creditor shows the probability of the existence of a claim and the risk that without such temporary measure the judgment debtor would prevent or considerably hinder satisfaction of the claim by disposing of, concealing, or otherwise making unavailable his or her property or means. The risk exists especially if the claim is to be realised abroad, if there is already an enforcement procedure against the same debtor for due instalment payments, if the paying obligations exceed the debtor’s earnings or there has been an unsuccessful enforcement procedure already against the same debtor, because he or she refused to disclose data about his or her assets, or gave false data about the assets.
Within this temporary measure the following measures may be imposed:
- prohibition on the disposal of movable property and possible confiscation of that property;
- prohibition on the disposal or mortgage of immovable property;
- order to a debtor’s debtor to pay a claim to the debtor or to hand over property, and the prohibition on the debtor to receive property, or collect a claim and dispose of it;
- order to a bank or other financial institution, with which the debtor has an account, to deny payment of an amount determined by the temporary measure;
- prohibition on the disposal and pledge of stocks and shares in the company that is the subject of the claim, and registration of such prohibition in the Central Register of securities; and
- confiscation of cash and securities and their depositing.
Temporary measures for securing a non-monetary claim
Requirements for imposing such measures are that temporary measures for securing non-monetary claims may be ordered to secure a non-monetary claim if the enforcement creditor has shown the probability of the existence of the claim and a risk that without such measure satisfaction of the claim would will be prevented or considerably hindered. A temporary measure may also be ordered when an enforcement creditor shows that the temporary measure is necessary to prevent the use of force or the infliction of irreparable damage.
Under this temporary measure, the following measures may be imposed:
- prohibition on the disposal and pledge of movable property that is the subject of the claim - confiscation of these items, and entrusting them to an execution creditor or a third party, or the safekeeping of the court;
- prohibition on the disposal or mortgage of immovable property concerning the claim, and the registration of such prohibition in the public registry;
- prohibition on taking actions that could harm the creditor;
- prohibition on making changes to the property that is the subject of the claim;
- prohibition on the debtor’s debtor to hand over property that is the subject of the claim;
- prohibition on the disposal and pledge of stocks and shares in the company that is the subject of the claim, and registration of such prohibition in the Central Register of Securities;
- order to the debtor to perform certain actions necessary to preserve the movable or immovable property, prohibit its physical alteration, damage or destruction; or
- a temporary arrangement on the dispute to eliminate the danger of violence or major irreparable damage.
In criminal proceedings, on the motion of authorised persons, temporary measures can be determined for securing the claim for damage, under the provisions of the law governing the enforcement and security, for damage that arose from the commission of a criminal offence, or unlawful acts that are prescribed by law as a criminal offence.
A decision of the court by which the temporary measure is determined must specify the duration of the temporary measure. When such a decision is made in civil proceedings before filing a lawsuit or commencing other legal proceedings, such measure must be justified by filing a lawsuit, or commencing other legal proceedings within the period set by the court.
Preliminary measures are regulated both in criminal and civil proceedings by the Law on Enforcement and Security (Official Herald of RS, Nos. 106/2015, 106/2016 and 113/2017 - authentic interpretation).
A preliminary measure shall be imposed on the basis of a decision of a domestic court on a monetary claim that has not become final or enforceable, if an enforcement creditor establishes that there is a likely risk that, without such measure, satisfaction of the claim will be impossible or made significantly more difficult.
For presumed risk, a risk is deemed to exist if the motion for security is based on one of the following decisions:
- a payment order issued because of a bill of exchange or cheque, against which timely objection has been made;
- a judgment issued in a criminal matter in which the claim is accepted, against which a repeat of the procedure is allowed;
- a decision according to which enforcement should take place abroad;
- a judicial or administrative settlement, or a notary public record of the settlement being contested in accordance with the law; or
- a judgment on the pleadings that has been appealed.
A settlement is made before a court or body deciding on the administrative procedure, contested in a manner prescribed by law.
Types of preliminary measures
The court may order the following preliminary measures:
- inventory of goods and the registration of a lien on the movable property listed in the Register of Pledges;
- seizure of monetary claims of the enforcement debtor and the acquisition of a lien on them;
- order for the National Bank of Serbia to order the banks in which the enforcement debtor has bank accounts to transfer the funds in the amount of the secured claim to the deposit of the public executor;
- prohibition of disposal of financial instruments, and registration of a lien on them in the Central Register of Securities;
- registration of a lien in favour of the enforcement creditor on shares of the enforcement debtor in a limited liability company, a partnership or limited partnership in the Register of Pledges and registration of seizure of shares in the Business Entities Register;
- seizure of a claim that an enforcement debtor has towards a third person, which consists of the debtor’s right to be handed over certain immovable or movable property, or to be delivered a certain amount of movable property, and acquisition of a lien on such claim; or
- registration of prior notice - mortgage on immovable property owned by the enforcement debtor, or on a claim of the enforcement debtor registered on immovable property.
The court may, on request of the enforcement creditor, and in accordance with the circumstances of the case, order two or more preliminary measures if necessary.
A decision imposing a preliminary measure must specify the amount of the claim that is secured with interest and costs, and the preliminary measure and its duration.
Non-compliance with court orders
How do courts punish failure to comply with court orders?
Pursuant to articles 241 and 242 of the Civil Procedure Code, the court may request from the defendant and from a third party any documents in their possession. A court order can be enforceable in terms of physical enforceability with the assistance of court bailiffs, according to the law that regulates enforcement procedure. Likewise, the court may fine any person who does not present a document upon a court order. The latest amendments to the Criminal Code have made non-compliance with a court decision a criminal offence punishable by a prison sentence.
Obtaining evidence from other jurisdictions
How can information be obtained through courts in other jurisdictions to assist in the civil proceedings?
Rogatory rules are the governing rules in respect of international legal assistance and aid. A letter rogatory, or letter of request, is a formal request from a court to a foreign court for some type of judicial assistance. The most common remedies sought by letters rogatory are the service of process and taking of evidence.
Serbian courts seek international aid and assistance in accordance with international agreements or treaties on assistance and aid that Serbia has entered into with other countries.
Unless otherwise stipulated by an international agreement, requests of a domestic court for legal aid are submitted to foreign courts through diplomatic channels. The applications and attachments must be written in the language of the relevant country or officially translated into that language.
Assisting courts in other jurisdictions
What assistance will the civil court give in connection with civil asset recovery proceedings in other jurisdictions?
In accordance with the Civil Procedure Code, Serbian courts are obliged to secure and provide legal aid to foreign courts in cases determined by international agreements and where there is reciprocity in providing legal aid. If there is doubt concerning reciprocity, the Ministry of Justice shall give an expert opinion.
Courts provide legal aid to foreign courts in compliance with Serbia’s national laws. An action requested by a foreign court may also be performed as the foreign court requires and in accordance with foreign proceeding regulations, but only if this is not contrary to the laws of Serbia.
The Civil Procedure Code prescribes that if it is not otherwise stipulated by an international agreement, courts shall proceed upon the request of a foreign court for legal aid only if such requests are submitted through diplomatic channels and if the application and attachments are in the Serbian language or officially translated into Serbian.
Causes of action
What are the main causes of action in civil asset recovery cases, and do they include proprietary claims?
The main causes in civil asset recovery cases are fraud, fraudulent transfer, breach of contract, debts, statutory causes, proprietary claims, damage cases including loss of profit, directors’ and officers’ misappropriation of company funds, and fraudulent misrepresentation including sale of company at inflated or underestimated price, etc.
What remedies are available in a civil recovery action?
In a civil recovery action, restitution, damages, account of profits, actio pauliana and monetary compensation (if restitution is not possible) are available.
Judgment without full trial
Can a victim obtain a judgment without the need for a full trial?
If the court finds that the basis of the lawsuit is uncontested it may issue a partial judgment by which it decides on the merits of the claim. If the defendant does not respond to the lawsuit, the court then renders a judgment on the grounds of absence. If the defendant does not appear at the preparatory hearing, the court may render a judgment adopting the claim owing to non-appearance. However, even such judgment cannot be executed automatically because the defendant has a right to appeal.
What post-judgment relief is available to successful claimants?
The successful claimant of a monetary claim can launch debt collection proceedings from all the debtor’s accounts and assets. In the enforcement procedure, it is possible to seek and gain a temporary measure, as detailed in question 11.
What methods of enforcement are available?
The enforcement procedure is regulated by the Law on Enforcement and Security (Official Herald of RS, Nos. 106/2015, 106/2016 and 113/2017 - authentic interpretation).
An enforcement procedure is initiated by a motion of enforcement submitted by the enforcement creditor before a competent court (before first instance courts of general jurisdiction or commercial courts considering parties in the proceeding). The execution procedure may be initiated by submitting a motion for enforcement based on executive titles (final and enforceable court judgments, decisions, settlements, etc) or authentic documents (invoices, bills, bills of exchange or cheques, business book excerpts, bank guarantees, etc).
When submitting a motion for enforcement, a judgment creditor must propose the means and object by which the enforcement proceeding shall be conducted. The court may, during the enforcement proceeding, at the request of the judgment creditor or debtor, designate a means or object of enforcement other than that proposed or determined.
Objects of an enforcement proceeding are things and rights on which enforcement of a claim may be carried out (for example, money, funds in bank accounts, movable and immovable property); the means by which enforcement proceedings may be conducted are enforcement actions used to enforce a claim in accordance with the law (eg, sale of chattels, sale of immovable property, transfer of monetary claim).
This kind of procedure is urgent and the court acts rapidly in proceedings for enforcement. The court shall decide on a motion of enforcement within eight days of filing a motion to the court.
If the motion for an enforcement is based on authentic documents, when the court issues the decision on enforcement, the judgment debtor may challenge this decision by objecting within eight days of receipt of the enforcement decision.
If the motion for an enforcement is based on executive titles, when the court issues the decision on enforcement the judgment debtor may challenge this decision by appealing within eight days from the receipt of the enforcement decision.
Objection and appeal postpone the enforcement procedure only when it is prescribed by the law.
Enforcement of foreign executive title
If the enforcement creditor’s motion to enforce is based on a foreign executive title, he or she must submit the original or a certified copy, translated into the language that is in official use in the court, together with proof of the finality and enforceability under the law of the country of the executive title.
A foreign executive title previously recognised by the domestic court in accordance with the law shall be enforced in the same manner and procedure as applicable to the enforcement of domestic executive titles. An enforcement creditor may initiate an enforcement procedure before a competent court in Serbia on the basis of a foreign executive title that has not previously been recognised by the domestic court. When the motion to enforce has been filed on the basis of a foreign executive title that has not been recognised, the court shall decide on the recognition of such document as a preliminary matter.
Funding and costs
What funding arrangements are available to parties contemplating or involved in litigation and do the courts have any powers to manage the overall cost of that litigation?
Parties finance cases in a dispute themselves. The source of financing of parties varies. Besides their own funds, it is possible for parties to sell or transfer in whole or in part their claim from the litigation, or to obtain funds for conducting litigation, which is less common. More commonly, parties that cannot pay for a lawyer sign a success fee agreement no higher than 30 per cent of the claim, and thus finance the dispute. Companies that finance disputes as their main business activity are not active on the legal market. Apart from a possible contracting success fee and an hourly fee, there is an official lawyer’s tariff. When the court renders a judgment and obliges the losing party to reimburse the costs of the successful party, the fee amount is determined solely by the current lawyer’s tariff, which is very low compared with an hourly fee and success fee.
Criminal asset recovery
Describe the legal framework in relation to interim measures in your jurisdiction.
See question 10.
Proceeds of serious crime
Is an investigation to identify, trace and freeze proceeds automatically initiated when certain serious crimes are detected? If not, what triggers an investigation?
The law prescribes that asset recovery is possible in criminal proceedings for the following criminal offences:
- organised crime;
- crimes against property (such as robbery, fraud or extortion);
- criminal offences against businesses (such as counterfeiting of money, credit cards and securities;
- creating, obtaining and providing other means for forgery;
- money laundering;
- abuse of position of the responsible person;
- false bankruptcy;
- damage to the creditor;
- unauthorised production, possession and distribution of narcotics; and
- crimes against public order, official duty (such as the criminal offence of abuse of official position), humanity and other goods protected by international law.
Confiscation – legal framework
Describe the legal framework in relation to confiscation of the proceeds of crime, including how the benefit figure is calculated.
Legislation prescribes certain rules on tracing assets that have derived from committing a criminal offence.
The Law on Confiscation of Assets Derived by Criminal Offence (Official Herald of RS, Nos. 32/2013 and 94/2016) prescribes the rules and conditions, procedures and authorities responsible for detection, seizure and management of assets of natural and legal persons that derive from committing a criminal offence.
The benefit figure is calculated according to an expert report during the criminal case. This figure is used in the process of confiscation.
The Criminal Code (Official Herald of RS, Nos. 85/2005, 88/2005 - correction, 107/2005 - correction, 72/2009, 111/2009, 121/2012, 104/2013, 108/2014 and 94/2016) also prescribes rules on the confiscation of objects, and seizure of property gained by committing a criminal offence.
Article 87 of the Criminal Code regulates the security measure of the confiscation of objects and prescribes that objects used or intended to be used for the commission of a criminal offence, or objects arising from a criminal offence, may be confiscated in criminal proceedings, as well as objects when there is a danger that the object will be reused for the commission of a crime, when it is necessary to protect the public safety, or for moral reasons.
In respect of the seizure of property gained by a criminal offence, the Criminal Code prescribes in article 92 that any property gained by committing a criminal offence shall be confiscated from the offender. Under the court’s decision, property gained by committing a criminal offence, such as money, things of value and any other property, shall be confiscated from the offender to the amount of the profit acquired by a criminal offence as determined in a criminal proceeding.
If in criminal proceedings a claim on the property of the victim is determined, the court shall order the confiscation of property gained though a criminal offence only if it exceeds the amount of the property claim awarded to the victim.
Under the Criminal Procedure Code, property gained by commission of a criminal offence shall be determined in the criminal proceedings ex officio. The court is obliged to determine the amount of property gained by the criminal offence. To that end, the court has to present all the necessary evidence in a criminal proceeding.
The court is entitled by the provisions of the Criminal Procedure Code to determine temporary measures in a criminal proceeding in accordance with the provisions of the Law on Enforcement and Security, in order to secure the claim of the victim and the collection of property gained during the criminal offence.
Describe how confiscation works in practice.
Under the law, a request for seizure of assets may be submitted at any stage of the criminal proceedings when reasonable doubt exists that assets have derived from a criminal offence.
This request for seizure of assets is submitted by the public prosecutor. The decision on the seizure is rendered by the investigating judge, the judge for the previous proceedings or the president of a panel of judges who presides over the main hearing, depending on the stage of the criminal proceeding.
Assets and funds obtained from the sale of assets (conducted by the Directorate for the Management of Seized Assets (the Directorate)) will become the property of Serbia when the decision on the confiscation of assets becomes final.
The law also prescribes that seized assets, as well as confiscated funds or funds obtained from the sale of assets, be immediately returned to their owner when it has been determined that the seized assets have not been obtained from and by a criminal offence.
What agencies are responsible for tracing and confiscating the proceeds of crime in your jurisdiction?
An organisational unit responsible for financial investigation has been legally established. This unit is a specialised organisational unit of the Serbian Ministry of Internal Affairs for the detection of assets derived from criminal offences.
The unit acts on the order of a court, Public Prosecutor’s Office or ex officio.
Is confiscation of secondary proceeds possible?
Confiscation of secondary proceeds is certainly possible and very often is in practice. In such case, the defendant must prove that this property has no legitimate link to a criminal act.
Is it possible to confiscate property acquired by a third party or close relatives?
Confiscation is permitted from a third party, provided that the assets to be confiscated are obtained directly from an offence. Otherwise, this kind of request can be successfully challenged by a third party.
Can the costs of tracing and confiscating assets be recovered by a relevant state agency?
The cost of tracing and confiscating assets is the state’s responsibility until the end of the case. In the final and binding court decision after sentencing and fining, the court will determine the resolution cost. The defendant must pay the cost. If the defendant refuses to pay court costs, a state agency will have the right to recover the cost from confiscated assets according to the enforcement law.
Is value-based confiscation allowed? If yes, how is the value assessment made?
Value-based confiscation is permitted if the assets subject to confiscation are no longer available. In such a case, the court may uphold a claim for compensation by the state in respect of a sum of equivalent value. The amount of compensation must be equivalent to the value of the assets, were the assets still available for confiscation.
Burden of proof
On whom is the burden of proof in a procedure to confiscate the proceeds of crime? Can the burden be reversed?
When the prosecutor initiates an official investigation proceeding, he or she immediately orders the Financial Investigation Unit to investigate financial aspects of a specific criminal offence, and all assets of a suspect. The prosecutor then delivers an order on the confiscation of those assets that have been found. When the court receives the prosecutor’s order, a hearing is scheduled in which the defendant explains and proves whether those assets have any connection with the crime. The burden of proof is with the defendant.
Using confiscated property to settle claims
May confiscated property be used in satisfaction of civil claims for damages or compensation from a claim arising from the conviction?
The state has precedence over payment collection. Should any assets remain, they can be partly used in satisfaction of civil claims for damages, or compensation from a claim arising from the conviction.
Confiscation of profits
Is it possible to recover the financial advantage or profit obtained through the commission of criminal offences?
It is possible to recover the financial advantage or profit obtained through the commission of criminal offences as part of the court judgment in a criminal procedure.
Non-conviction based forfeiture
Can the proceeds of crime be confiscated without a conviction? Describe how the system works and any legal challenges to in rem confiscation.
Without a conviction assets cannot be confiscated (ie, should the suspect be released or should the prosecutor abandon the criminal prosecution, the assets should be returned). They (eg, money and weapons of unknown origin, jewellery and works of art without a certificate of origin and similar) will not be returned even though no conviction has taken place; then the burden of proof will be on the suspect to prove the legality of those funds.
Management of assets
After the seizure of the assets, how are they managed, and by whom? How does the managing authority deal with the hidden cost of management of the assets? Can the assets be utilised by the managing authority or a government agency as their own?
In accordance with the law, the state established the Directorate, which is part of the Ministry of Justice.
The Directorate acts on and undertakes the following actions prescribed by the Law on Confiscation of Assets:
- manages temporarily and permanently assets seized after a criminal offence, temporarily seized assets under the order of the Public Prosecutor’s Office in investigatory proceedings, objects used in committing an offence and that derived from committing a criminal offence, and assets gained by a criminal offence;
- makes an assessment of seized assets derived from criminal offences;
- stores, keeps and sells temporarily seized assets, and manages funds gained;
- keeps records on seized assets; and
- provides international legal assistance.
The Directorate usually covers its own costs by renting or leasing seized assets as it collects the monthly rent.
Making requests for foreign legal assistance
Describe your jurisdiction’s legal framework and procedure to request international legal assistance concerning provisional measures in relation to the recovery of assets.
Rogatory rules in criminal proceedings in Serbia are set out in the Law on International Legal Aid in Criminal Matters (Official Herald of RS, No. 20/2009).
The Law prescribes that international legal assistance shall include extradition of the accused or convicted, takeover and transfer of criminal prosecution, and execution of the sentence.
Other forms of mutual legal assistance include the following:
- the performance of court process activities, such as summoning and sending documents, interrogating the accused, trial witnesses and expert witnesses, investigating, searching premises and persons, and seizing property;
- the implementation of measures such as surveilling and recording telephone and other conversations or communications, and optical recording entities, controlling delivery, providing simulated business services, concluding simulated legal affairs, using undercover investigators, conducting computer searches and processing;
- the exchange of information and delivery of documents and items related to criminal proceedings to the requesting state, the submission of data without request, the use of audio and video conferencing and the establishment of joint investigation teams; and
- the temporary handover of a prisoner for examination before a competent authority of the requesting state.
It also prescribes that international legal assistance shall be provided in proceedings relating to a crime where the request for assistance falls within the jurisdiction of the state that requested the assistance.
International legal assistance is provided in proceedings instituted before administrative authorities for an offence punishable under the law of the state submitting the request or the law of the state receiving the request.
International legal assistance is also provided at the request of the International Court of Justice, the International Criminal Court, the European Court of Human Rights and other international institutions established by an international treaty ratified by Serbia.
Authorities responsible for providing international legal assistance are the domestic courts and the Public Prosecutor’s Office.
A request for providing international legal assistance must be submitted in the relevant request form.
Complying with requests for foreign legal assistance
Describe your jurisdiction’s legal framework and procedure to meet foreign requests for legal assistance concerning provisional measures in relation to the recovery of assets.
See question 35.
To which international conventions with provisions on asset recovery is your state a signatory?
Serbia is a signatory to the following:
- the Agreement on Cooperation to Prevent and Combat Trans-Border Crime (Official Gazette of Serbia and Montenegro - International Agreements, No. 5/2003);
- the United Nations Convention against Corruption (Official Gazette of Serbia and Montenegro - International Agreements, No. 12/2005);
- the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Official Gazette Serbia - International Agreements, No. 7/2002);
- the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing Terrorism (Official Gazette of Serbia - International Agreements, No. 19/09);
- the Terrorist Financing Convention (Official Gazette of Serbia - International Agreements, No. 7/2002); and
- the Additional Protocol to the European Convention on Mutual Legal Assistance in Criminal Matters (Official Gazette of Serbia - International Agreements, No. 10/2001).
Can criminal asset recovery powers be used by private prosecutors?