By Goran Korać, lawyer
Law office of Tomislav Šunjka
Responsibility of legal entities for criminal offenses in Republic of Serbia is regulated by Law on responsibility of legal persons for criminal offenses ("Official Herald of RS", no. 97/2008), Serbian Penal code ("Official Herald of RS", no. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009 and 121/2012) and Criminal procedure code ("Official Herald of RS", No 72/2011, 101/2011, 121/2012 i 32/2013).
By Article 12 of Serbian Penal code it is prescribed that responsibility of legal entities for criminal offenses shall be regulated by special law - Law on responsibility of legal persons for criminal offenses ("Official Herald of RS", no. 97/2008).
Law on responsibility of legal entities for criminal offenses regulates following issues in respect to responsibility of legal entities:
Law for responsibility of legal entities for criminal offence applies to domestic and foreign legal entities for criminal offences committed on territory of Republic of Serbia as well to foreign legal entities for criminal offences committed abroad against Republic of Serbia, citizen of Republic of Serbia and domestic legal entity.
Necessary conditions for responsibility of legal entities
Legal entity is responsible for criminal offences committed by responsible person in legal entity working in scope of his operations or authorisation with intention to gain benefits for legal entity.
Responsibility of legal entity exists and if responsible person within legal entity fails to make supervision or control of some other natural person which acts and which is under his supervision or control and in which way he allows him to commit criminal offence with intention to gain benefits for legal entity.
Limits to responsibility of legal entities are determined by guiltiness of responsible person in the legal entity.
Legal entity also may be found responsible for attempt of criminal offence if attempt of criminal offence is punishable by provisions of Serbian Penal code. Legal entity which prevents completion of criminal offence may be released from the penalty.
Law prescribes rules on criminal offence of legal entity in respect to termination or status change of the legal entity or opening of bankruptcy proceeding. If legal entity ceases to exist before ending of criminal proceeding or if it makes status change, criminal sanctions may be imposed to the successor of the legal entity which is indictment. If legal entity makes status change after committing of criminal offence it shall be responsible for committing of criminal offence if responsible person is found guilty for committing of criminal offence.
Legal entity is responsible for criminal offences nevertheless it is committed before opening or in the process of bankruptcy proceeding.
Criminal sanctions, legal consequence and criminal records under the Law on responsibility of legal persons for criminal offenses
Criminal sanctions which may be imposed to legal entities by conviction under the Law on responsibility of legal persons for criminal offenses are:
Penalty may be imposed as monetary fine (in the amount of one hundred thousand Republic of Serbia dinars (RSD) to five hundred million RSD) or as penalty on termination of the legal entity.
Suspended sentence may be imposed to legal entity only for some criminal offence for which law prescribes monetary fine in amount of five million RSD and with condition that legal entity does not commit any other criminal offence in the time period determined by court decision which cannot be longer than three years.
Security measures such as prohibition on performing certain registered activities or business which may be imposed to legal entity in time period of three years from the day of sentencing, seizure of objects which were or which were intended to be used for committing of criminal offence or which were gained by committing of criminal offence and public publication of judgment if it is considered to be useful that public shall be acquainted with judgement or if it necessary to prevent or remove danger to lives and health of people or to protect public interest.
In respect to types of legal consequence of conviction of legal entities prescribed by Law on responsibility of legal persons for criminal offenses are: 1. Cessation or losing of certain rights, 2. Prohibition on gaining of certain rights.
Criminal records of convicted legal entities is being led by first instance court competent by the seat of the legal entity in question and this criminal record contains following: name, seat and business activity of legal entity, registry number, information on committed criminal offence, information on criminal sanction, information on responsible person which committed criminal offence, information on legal consequence of the conviction, later changes of aforementioned information, information on executed criminal sanction.
Law prescribes limitation on execution of imposed penalty in such way that imposed penalty of termination of legal entity cannot be executed if more than eight years from imposing of penalty has elapsed as well as penalty of monetary fine cannot be executed if more than three years from imposing has elapsed.
Law on responsibility of legal persons for criminal offenses prescribes rules on preliminary measures which allow Court to seize benefit from the legal entity gained by criminal offence by applying regulations of preliminary measures and before ending of criminal proceeding if it assesses that subsequently seizure of benefit gained by criminal offence would be impossible of difficult.
Rules of procedure for criminal proceedings against legal entities prescribed by Law on responsibility of legal persons for criminal offenses
Criminal proceeding is initiated and simultaneously being led against legal entity and responsible person in legal entity as one court proceeding. Law also prescribes possibility to initiate and lead proceeding only against legal entity.
Competent court for deciding in criminal proceeding against legal entity is court at his territorial jurisdiction criminal offence is committed or it is attempted.
In this criminal proceeding legal entity is obliged to appoint representative of the legal entity in the criminal proceeding if responsible person in legal entity is charged by indictment.
Charged legal entity has right to hire and appoint defence counsel.
Criminal proceeding includes following stages:
Pre-criminal proceeding which stage exists in the proceeding for criminal offences for which is prescribed monetary fine or imprisonment as criminal sanction and in which case public prosecutor may dismiss criminal complaint if it decide that for some reason there is no public interest to initiate criminal proceeding (reason such as legal entity has reported criminal offence to the public authorities before authorities has find out for criminal offence, legal entity has prevented damage or it has compensated damage caused by criminal offence).
Previous criminal proceeding is stage of criminal proceeding which is initiated by submitting indictment to the competent court by prosecutor office. Indictment contains mandatory information prescribed in Criminal procedure code of Serbia as well as name, seat and business activity, registry number of legal entity, name and surname of legal representative and bases of legal responsibility of legal entity.
Main criminal proceeding is stage of criminal proceeding at which stage evidences are being presented as well as at which stage questioning of charged responsible person in legal entity is being performed, after which and if it is necessary appointed representative of legal entity in criminal proceeding is being questioned. Acting judge is entitled to determine confrontation of charged responsible person and appointed representative of legal entity in criminal proceeding. At the end of this stage of the proceeding, after presentation of all evidences, public prosecutor, injured party and afterwards defence counsels give final statements. After final statements are given, competent court makes a judgement.
Execution of convictions (criminal sanctions)
Only final and valid court decision - conviction may be executed. Court decision - conviction is final and valid if parties have not submitted appeal against court decision - conviction, or if parties have waived right to appeal or if proceeding under appeal has been completed.
At the moment when all legal grounds are met (conviction is final and valid), competent court makes a decision on execution of conviction ex officio.
Competent court delivers decision on execution of court decision - conviction to convicted legal entity, defence counsel, public prosecutor and regarding the type of criminal sanction and to competent register office which leads competent register of legal entities, organisation for enforcement collection or other competent state authority.
Also, it is important to point out that Law on responsibility of legal persons for criminal offenses prescribes application of other relevant provisions of Serbian Penal code, Criminal procedure code, Law on execution of criminal sanctions, Law on enforcement and security and Law on payment transactions.