Part II
THE COURSE OF PROCEEDINGS
D. JUDICIAL REVIEW
Chapter XXVII
EXTRAORDINARY LEGAL REMEDIES
3. Motion for the protection of legality
Grounds for filing a motion for protection of legality
Article 438
(1) The Republic Public Prosecutor may submit a motion for the protection of legality against final court decisions and against judicial proceedings which preceded such final decisions, if the law was violated.
(2) The Republic Public Prosecutor may file the motion specified in paragraph 1 of the present Article also if it was determined by a decision of the European Court for Human Rights or other court established based on ratified international treaty that human rights and fundamental freedoms were violated during the criminal proceedings, and the court decision was based on such violation, and that court of competent jurisdiction did not allow reopening of criminal proceedings, or if the violation made in court's decision may be rectified by setting aside the decision or by reversing it, without reopening the proceedings.
(3) The Republic Public Prosecutor may file the motion specified in paragraph 1 of the present Article also if the decision of the court is based on a law or other regulation rescinded by a decision of the Constitutional Court, and if a judgment was rendered in such manner, the motion for the protection of legality may be filed if the court of competent jurisdiction did not allow reopening of criminal proceedings or if the violation made in the decision of the court may be rectified by setting aside the decision or its reversal, without reopening the proceedings.
(4) The defendant sentenced to unconditional prison sentence of one year imprisonment or more severe penalty, or juvenile detention, and the defense counsel of such defendant may, within one month from the date when the defendant received the final judgment, request from the Republic Public Prosecutor in a written and substantiated motion to file a motion for protection of legality against the final judgment if in their opinion such judgment violates the Criminal Code to the detriment of the defendant, or that in the criminal proceedings preceding rendering of the final decision the defendant's right to defense was violated thus affecting rendering of lawful and proper judgment.
(5) The motion specified in paragraph 4 of the present Article may not be filed by the defendant who did not file an appeal against the judgment, except if the judgment of the second-instance court has pronounced, instead of acquittal from sentence, judicial admonition, suspended sentence or fine, a sentence of one year imprisonment or more severe penalty i.e. a sentence of juvenile detention instead of corrective measure.
(6) The Republic Public Prosecutor shall dismiss the motion specified in paragraph 4 of the present Article by a ruling if in his assessment there are no grounds for filing the motion for protection of legality.
(7) The defendant and his defense counsel may file an appeal against the ruling specified in paragraph 6 of the present Article to the Supreme Court of Serbia within eight days from the day of receiving the ruling.
(8) The appeal specified in paragraph 7 of the present Article is deliberated by a chamber comprising of three judges of the Supreme Court of Serbia who shall dismiss the appeal as unfounded and confirm the ruling referred to in paragraph 6 of the present Article or shall sustain the appeal if it determines probability of presumptive grounds invoked by the defendant or his defense counsel.
(9) If the chamber of the Supreme Court of Serbia specified in paragraph 8 of the present Article sustains the appeal specified in paragraph 7 of the present Article, it shall proceed as if a motion for protection of legality has been filed and, in such cases, the Republic Public Prosecutor has the right and duty to take part in the proceedings as if he has filed the motion for protection of legality.
Jurisdiction for adjudicating the motion for protection of legality and decisions
against which the motion may not be filed
Article 439
(1) The Supreme Court of Serbia shall decide on a motion for the protection of legality.
(2) A motion for the protection of legality shall not be allowed against judgments rendered by the Supreme Court of Serbia upon a motion for the protection of legality.
Ruling on the motion for protection of legality
Article 440
(1) The court shall decide on a motion for the protection of legality in a session of the Court Chamber.
(2) Before the case is presented for deliberation, the reporting judge shall deliver a copy of the motion to the defendant and his defense counsel, and if necessary, he may provide information about the violation of law that is stated in the motion.
(3) The Public Prosecutor shall always be notified of the session, while the defendant and his defense counsel shall be notified if the motion is to the prejudice of the defendant, and the presence of the convicted person shall be secured if the Presiding Judge deems it necessary (Article 399 paragraph 2).
(4) The court having jurisdiction to decide on a motion for the protection of legality, may, taking into account the contents of the motion, order that the execution of the final judgment be stayed or discontinued.
(5) The court having jurisdiction to decide on a motion for the protection of legality shall be obligated to deliver its decision along with the file to the court at first instance or the higher court within not later than four months of the day the motion was submitted.
Limitations when deciding on allegations in the motion, privilege of association and
ban on prejudicial reversal
Article 441
(1) When deciding on a motion for the protection of legality, the court shall limit its review only to those violations of law which the Public Prosecutor stated in his motion.
(2) If the court finds that the grounds on which it rendered a decision to the benefit of the convicted person also exist in respect of any co-defendant for whom a motion for the protection of legality was not filed, it shall proceed ex officio as if such a motion was filed.
(3) If the motion for the protection of legality is filed to the benefit of the convicted person, the court shall be bound by the prohibition referred to in Article 406 hereof.
Denying of the motion for protection of legality as unfounded
Article 442
The court shall by its judgment deny as unfounded a motion for the protection of legality if it establishes that the violation of law which the Public Prosecutor stated in his motion does not exist.
Upholding of the motion for protection of legality
Article 443
(1) If the court establishes that a motion for the protection of legality is well- founded, it shall render a judgment whereby it shall, according to the nature of the violation of law, either reverse the final decision or set aside fully or partially both the decision of the first instance court and the higher court or only the decision of the higher court and remand the case for a new decision or retrial before the first instance court or the higher court, or it shall only determine the violation of law.
(2) If a motion for the protection of legality was submitted to the prejudice of the defendant and the court finds that it is well founded, it shall only determine that the violation of law exists, without interfering with the final decision.
(3) If, pursuant to the provisions of the present Code, the court at second instance did not have the power to rectify a violation of law made in the judgment at first instance or in the trial that preceded it, and the court adjudicating on the motion for the protection of legality which was submitted to the benefit of the defendant determines that the motion is well founded and that, in order to eliminate the violation of law which occurred, the decision at first instance should be set aside or reversed, it shall set aside or reverse the decision at second instance as well, although the latter did not violate the law.
New trial
Article 444
If, while the court is deliberating a motion for the protection of legality that was
filed to the benefit of the defendant, considerable suspicion arises regarding the
decisive facts that were established in the decision against which the motion was submitted, so that it is not possible to adjudicate on the motion for the protection of legality, the court shall set aside such decision by the judgment on the motion for the protection of legality and order that a new trial be held before the same court or another court at the first instance with subject matter jurisdiction.
Rules for new trial
Article 445
(1) If a final judgment is set aside and the case remanded for retrial, the previous indictment or its part referring to the part of the judgment that was set aside, shall be the basis for new trial.
(2) The court shall be obligated to carry out all procedural actions and discuss all issues indicated by the court which was deciding on the motion.
(3) The parties may present new facts and new evidence before the court at first instance i.e. court of second instance.
(4) If, in addition to the decision of the lower court, the decision of the higher court was also set aside, the case shall be remanded to the lower court through the higher court.
Appeal against decision of acquittal or conviction or against sentence - national proceedings
EDIT.