Under the authority vested upon it by the state of emergency, the Government of Serbia has passed a number of bylaws with the aim of protecting public health in the wake of COVID-19 outbreak. One of them is disputable Decree on Misdemeanour for Violation of the Order of the Minister of the Interior on Restriction and Prohibition of Movement of Persons on the Territory of the Republic of Serbia (Uredba o prekršaju za kršenje Naredbe ministra unutrašnjih poslova o ograničenju i zabrani kretanja lica na teritoriji Republike Srbije) (“Official gazette of RS“, no. 39/2020) (“Curfew Decree“).
In his Order on Restriction and Prohibition of Movement of Persons on the Territory of the Republic of Serbia (Naredba o ograničenju i zabrani kretanja lica na teritoriji Republike Srbije) (“Official gazette of RS”, nos. 34/2020, 39/2020 and 40/202) (“Curfew Order“), the Minister of Interior limited the freedom of movement of persons on the territory of Serbia, with the aim of suppressing and preventing contagious disease COVID-19. Article 5 of the Curfew Order stipulates that a failure to comply with the Curfew Order is a criminal offense in accordance with the Criminal Code, as well as a misdemeanour in accordance with the Curfew Decree.
Article 248 of the Criminal Code of Republic of Serbia incriminates failure to comply with health measures during an epidemic of dangerous contagious disease designed to suppress or prevent the disease. At the same time, according to Article 1 of the Curfew Decree, failure to comply with the measures contained in the Order is punishable with a fine ranging from RSD 50,000.00 to RSD 150,000.00. Accordingly, the same behaviour is both a crime and a misdemeanour. Article 2 of the Curfew Decree provides that misdemeanour proceedings for the behaviour infringing upon the Curfew Decree can be conducted in parallel with criminal proceedings, “notwithstanding the prohibition stipulated in Article 8(3) of the Serbian Misdemeanour Act”. The Curfew Decree therefore attempts to derogate the rule that misdemeanour and criminal proceedings cannot run in parallel. However, the reference in the Curfew Decree to Article 8(3) of the Misdemeanour Act is misplaced.
Article 8(3) of the Misdemeanour Act actually stipulates that misdemeanour proceedings may not be commenced or continued if the perpetrator has been already found guilty by a final judgment of a criminal act which includes the same elements as the misdemeanour. Contrary to what Article 2 of the Degree suggests, Article 8(3) of the Misdemeanour Act does not regulate parallel conduct of misdemeanour and criminal proceedings. Its focus is narrower – it only prohibits conduct of misdemeanour proceedings where there is already a final conviction in criminal proceedings for the same act. In this manner, Article 8(3) of the Misdemeanour Act reiterates the principle of ne bis in idem. As per the Serbian Constitution (Article 202 in connection with Article 34), that principle cannot be derogated from even in the state of emergency. It is therefore clear that the derogation in Article 2 of the Curfew Decree from Article 8(3) of the Misdemeanour Act is unconstitutional. It is, however, unclear whether the Serbian Government indeed wanted to derogate from Article 8(3) of the Misdemeanour Act.
It follows from Article 2 of the Curfew Decree that the Government actually wanted to derogate the prohibition of parallel conduct of misdemeanour and criminal proceedings. This situation is addressed in Article 183 of the Misdemeanour Act, not in Article 8(3). Article 183 states that if the misdemeanour court becomes aware that criminal proceedings have been initiated with respect to the same act, it shall forward the case file to the competent criminal court. This provision prevents conduct of misdemeanour proceedings if criminal proceedings for the same act are already pending.
The derogation from Article 183 of the Misdemeanour Act would mean that misdemeanour and criminal proceedings for the same act may run in parallel, but it does not mean that the accused should be exposed to double jeopardy.
As previously confirmed by the Serbian Constitutional Court, if a final decision on the merits is rendered in misdemeanour proceedings or those proceedings are otherwise terminated with prejudice while the criminal case is still pending, the criminal proceedings should end.
Conversely, if a decision on the merits or a decision on the termination of criminal proceedings with prejudice is rendered first, the misdemeanour proceedings should terminate, as per Article 248 of the Misdemeanour Act. Opinions differ as whether the misdemeanour proceedings may continue if the criminal proceedings end before it becomes possible for the criminal court to pass any decision, such as if the prosecutor drops the case prior to the indictment.