The Belgrade Centre for Human Rights filed an initiative with the Serbian Constitutional Court to review the constitutionality of the Decree on the Misdemeanour of Violating the Order of the Minister of Internal Affairs on the Restriction and Prohibition of Movement of Individuals in the Territory of the Republic of Serbia (hereinafter: Decree) and its compliance with the European Convention on Human Rights. The Decree was adopted during the state of emergency introduced in response to the COVID-19 pandemic. BCHR is disputing the possibility of dual, criminal and misdemeanour punishment of individuals who violate the prohibition of movement.
Under the Decree, anyone who violates the restriction or prohibition of movement shall be punished by a fine ranging from 50,000 to 150,000 RSD (Article 1). Article 2 of the Decree is, however, disputable given that it lays down that misdemeanour proceedings may be initiated and completed also in case criminal proceedings have been initiated or are pending against the perpetrator of the misdemeanour for a crime comprising elements of the misdemeanour, regardless of the prohibition in Article 8(3) of the Misdemeanour Act.
Although the ministerial Order specifies that non-compliance with the introduced prohibitions will be punishable as a criminal offence, in accordance with the Criminal Code, and as a misdemeanour, under the Decree, the BCHR holds that there is no justification for punishing the individuals who violate the prohibitions twice (in criminal proceedings – for the offence incriminated in Article 248 of the Criminal Code, and then in misdemeanour proceedings, for a misdemeanour under Article 1 of the Decree), which is precisely what the impugned Article of the Decree enables.
To recall, Article 34 of the Serbian Constitution and Article 4 of Protocol 7 to the European Convention on Human Rights enshrine the ne bis in idem principle, which may not be derogated from even during states of emergency.
The BCHR initiative is available here.
