Part II
THE COURSE OF PROCEEDINGS
D. JUDICIAL REVIEW
Chapter XXVII
EXTRAORDINARY LEGAL REMEDIES
2. Extraordinary mitigation of penalty
Permissible mitigation of penalty
Article 433
(1) Mitigation of sentence imposed by a final judgment which is not executed, shall be permitted if after the judgment becomes final, circumstances arise which did not exist at the time the judgment was rendered or were unknown to the court, and such circumstances would have obviously lead to a more lenient sentence.
(2) Mitigation of final sentence shall not be allowed when the most lenient sentence for such criminal offence envisaged by the Criminal Code was pronounced to the convicted person.
(3) Mitigation of final sentence shall not be allowed when the grounds specified in paragraph 1 of the present Article at the same time represent the grounds for staying the enforcement of sentence or discontinuance of its enforcement.
Persons who may file a motion for extraordinary mitigation of sentence and effects
of the motion
Article 434
(1) A motion for extraordinary mitigation of penalty may be submitted by the Public Prosecutor, the convicted person and his defense counsel, as well as by persons who are authorized to file an appeal against the judgment to the benefit of the defendant (Article 388).
(2) The convicted person and his defense counsel, as well as persons authorized to file an appeal against the judgment in favor of the convicted person (Article 388) shall not be entitled to file a motion for extraordinary mitigation of sentence if it is evident that they were aware or could have been aware of circumstances specified in Article 433, paragraph 1 hereof at the moment of pronouncing of judgment and
did not, immediately upon learning of such circumstances, file a motion with the court for presentation of relevant evidence.
(3) A motion for extraordinary mitigation of penalty does not stay the execution of penalty.
Ruling on the motion for extraordinary mitigation of sentence
Article 435
(1) A motion for extraordinary mitigation of penalty shall be submitted to the court which rendered the judgment at first instance.
(2) The President of the Trial Chamber of the court at first instance shall dismiss by a ruling a motion for extraordinary mitigation of penalty submitted by an unauthorized person, or if the motion is filed contrary to Article 433, paragraphs 2 and 3 i.e. Article 432 paragraph 2 of the present Code, or if filed contrary to the rule specified in Article 436 paragraph 1 hereof or prior to expiry of deadlines specified in Article 436 paragraph 2 hereof, as well as if the grounds on which the motion is based are evidently incompatible for mitigation of sentence or do not justify more lenient penalty.
(3) If the motion is dismissed on grounds specified in Article 433 paragraph 3 hereof, the person who filed the motion i.e. the defendant and his defense counsel, if they had not filed the motion, shall be advised of the possibility to request deferral of enforcement of penalty or discontinuing of enforcement of penalty.
(4) If the ruling specified in paragraph 2 of the present Article was not rendered, the court at first instance shall inquire whether grounds for mitigation exist and, after having obtained the opinion of the Public Prosecutor if the proceeding was conducted upon his request, it shall deliver the files along with its substantiated motion to the Supreme Court of Serbia which is competent to decide on the motion for extraordinary mitigation of penalty.
(5) In case of a criminal offense which is prosecuted upon the request of the Public Prosecutor, the Supreme Court of Serbia shall, before rendering a ruling, deliver the files to the Public Prosecutor who represents prosecution before that court. The Public Prosecutor may submit his written motion to the court.
(6) The Supreme Court of Serbia shall dismiss a motion by a ruling if it establishes that circumstances exist specified in paragraph 2 of the present Article or shall deny the motion if it finds that legal conditions for extraordinary mitigation of penalty were not met. When the motion is approved, the court shall by a judgment revise the final judgment regarding the decision on penalty.
(7) No appeal is allowed against the decision of the Supreme Court of Serbia specified in paragraph 6 of the present Article.
Limitations on filing a new motion for extraordinary mitigation of penalty
Article 436
(1) A new motion for extraordinary mitigation of penalty may not be filed if the previous motion was sustained and by the Supreme Court of Serbia judgment the final judgment was reversed in regards to the decision on penalty.
(2) A new motion for extraordinary mitigation of penalty may not be filed before the expiry of minimum two years after the decision specified under Article 435 paragraph 6 hereof was rendered by the court deciding on the matter, if the pronounced sentence is up to ten years of imprisonment, i.e. minimum three years if the pronounced sentence exceeds ten years of imprisonment.
Revoking a judgment on sustaining a motion for extraordinary mitigation of penalty
Article 437
The court shall revoke a judgment by which it sustained a motion for extraordinary mitigation of penalty if it is proven (Article 426, paragraph 2) that the judgment was based on a false document, false testimony of a witness, false findings and opinion i.e. false testimony of expert witness.
Mitigating factors - national proceedings
EDIT.