Part III
SPECIAL PROCEEDINGS
Chapter XXXVI
PROCEEDINGS FOR COMPENSATION OF DAMAGES, REHABILITATION AND REALIZATION OF OTHER RIGHTS OF UNJUSTIFIABLY CONVICTED PERSONS OR PERSONS ILLEGALLY DEPRIVED OF LIBERTY
Persons entitled to compensation of damages due to wrongful conviction
Article 533
(1) The right to damages for wrongful conviction may be claimed by a person against whom a criminal sanction was imposed by a final decision or who was pronounced guilty but whose penalty was remitted, and subsequently, upon a request for an extraordinary judicial remedy, the new proceedings were discontinued by a final decision or the convicted person was acquitted by a final judgment or the charge was denied, except in the following cases:
1) If the proceeding was discontinued or the indictment denied by a judgment because in the new proceedings the subsidiary prosecutor or private prosecutor desisted from prosecution or if the injured person desisted from prosecution, provided that desistance occurred on the basis of an agreement with the defendant;
2) If the ruling on discontinuation of criminal proceeding or the judgment denying the indictment is rendered because the criminal offence was covered by amnesty or pardon;
3) If in the new proceeding the indictment was dismissed due to the lack of court’s jurisdiction and the authorized prosecutor has initiated prosecution before the court having jurisdiction.
(2) A convicted person is not entitled to damages if he deliberately caused his conviction through a false confession or otherwise, unless he was forced to do so by illegal actions of an official of a government authority (article 9).
(3) In case of a conviction for concurrence of offenses, the right to damages may also apply to individual criminal offenses in respect of which conditions for granting of damages are met.
Filing of claim for damages to administrative authority
Article 534
(1) The statute of limitations for the right to damages shall expire in three years from the day the judgment at first instance for acquittal or judgment denying the indictment became final or from the day when the ruling at first instance on discontinuance of proceedings became final, and if a higher court decided on an appeal - from the day of receipt of the higher court decision.
(2) Before filing a civil claim for damages, the injured person shall submit his request to the competent authority, in order to reach an agreement on the existence of damage and the type and amount of compensation.
(3) In the case referred to in Article 533 paragraph 1 items 3 hereof, the claim for damages shall be decided only if the authorized prosecutor has not initiated prosecution before the court having jurisdiction within a term of three months from the day of receipt of the final decision. If after this time limit the authorized prosecutor initiates prosecution before the competent court, the proceeding for damages shall be adjourned until the conclusion of the criminal proceeding.
Civil Claim for Damages
Article 535
(1) If a claim for damages is not accepted or if the administrative authority does not decide upon it within three months from the day the claim is submitted, the injured person may bring a civil action for damages with the court having jurisdiction. If a settlement was reached only on one part of the claim, the injured person may bring a civil action regarding the rest of the claim.
(2) While the proceeding referred to in paragraph 1 of the present Article is under way, the statute of limitations referred to in Article 534 paragraph 1 of the present Code does not run.
(3) A civil action for damages is brought against the Republic of Serbia. Rights of heirs of the injured person
Article 536
(1) The heirs shall inherit only the right to compensation of property damage. If the injured person filed a claim, the heirs may resume the proceedings only within the limits of the filed claim for compensation of property damage.
(2) The heirs may resume proceedings for compensation of damages or institute proceedings after his death if the injured person died before the statute of limitations expired and did not waive the claim, pursuant to the rules on damages specified by the Law on torts and contracts.
Right to damages for persons wrongfully deprived of liberty
Article 537
(1) The following persons shall also be entitled to damages:
1) A person who was detained or was imposed a ban referred to under Article 168, paragraph 2 hereof or who was otherwise deprived of liberty in connection with a criminal offence by a court, Public Prosecutor or the police, when criminal proceedings were not instituted or discontinued by a final ruling or who was acquitted by a final judgment or when the indictment was denied;
2) A person who served the sentence of imprisonment, and upon the request for the reopening of criminal proceedings, i.e. request for the protection of legality or request for a review of the legality of final judgment which was filed under the previous Criminal Procedure Code, or when the sentence of a shorter duration than the sentence served was imposed on him, or non-custodial criminal sanction was imposed or if he was pronounced guilty but the penalty was remitted;
3) A person who, due to an error or unlawful action of state authorities, was deprived of liberty without legal grounds, or was kept in detention or penitentiary institution or who was under the ban referred to in Article 168, paragraph 2 hereof for a longer period than prescribed;
4) A person whose detention or the ban referred to in Article 168, paragraph 2 hereof lasted longer than the sentence.
(2) A person who was deprived of liberty according to Article 267 hereof without legal grounds is entitled to damages if detention or the ban referred to in Article 168, paragraph 2 hereof was not ordered against him, or if the time during which he was deprived of liberty was not included in the penalty for the criminal offense or misdemeanor.
(3) A person who caused his deprivation of liberty by illicit acts is not entitled to damages. In cases referred to in paragraph 1 item 1 of the present Article, a person is not entitled to damages, despite the existence of circumstances referred to in Article 533 paragraph 1 items 1 and 2, or if the proceeding was discontinued pursuant to Article 248 hereof, or if judgment of non-suit was rendered, or the proceeding was not initiated due to settlement between the parties or due to pardon of offence (Article 477 and 268).
(4) In cases referred to in paragraphs 1 and 2 of the present Article the provisions of this Chapter shall apply mutatis mutandis.
Publication in the media of the decision revealing wrongfulness of previous
judgment and delivery of such decision to other persons
Article 538
(1) If the case related to unjustifiable conviction or illegal deprivation of liberty of some person is announced in the media and the reputation of that person is damaged thereby, the court shall, upon his request, publish in newspapers or through other media the announcement on a decision declaring that the previous conviction was wrongful or that the deprivation of liberty was unlawful. If the case is not announced in the media, such announcement shall, upon this person’s request, be delivered to a state authority, local government authority, enterprise, other legal entity or his employer, and if this is necessary for his rehabilitation – to a social or other organization. After the death of convicted person, his spouse, common-law partner, children, parents, brothers and sisters are entitled to submit such a request.
(2) The request referred to in paragraph 1 of the present Article may also be submitted if the claim for damages was not submitted.
(3) Regardless of the conditions referred to in Article 533 hereof, the request referred to in paragraph 1 of the present Article may also be submitted when the legal qualification of the offense was altered upon an extraordinary judicial remedy if, due to the legal qualification in the original judgment, the reputation of the convicted person was seriously damaged.
(4) The request referred to in paragraphs 1 to 3 of the present Article shall be submitted to the court which tried the case at first instance within a term of six months (Article 534, paragraph 1). A Trial Chamber (Article 24 paragraph 6) shall decide on the request. In deciding on the request, the provisions of Article 533 paragraphs 2 and 3 and Article 537 paragraph 3 shall apply mutatis mutandis.
Annulment of entry in criminal records
Article 539
The court which tried the case at first instance shall ex officio render a decision which annuls the entry of a wrongful conviction into the criminal register. The decision shall be delivered to an authority in charge of the criminal register. Data from the criminal register concerning the annulled entry shall not be available to anyone.
Limited inspection and copying of files
Article 540
A person allowed to inspect and copy files (Article 201) concerning wrongful conviction or illegal deprivation of liberty may not use data from such files in a manner which would be detrimental to the rehabilitation of the person against whom criminal proceedings were conducted. The President of the Court shall warn the person allowed to inspect the files, and this shall be noted on the file and signed by this person.
Retroactive recognition of employment right and social insurance
Article 541
(1) A person whose employment or social insurance was terminated due to a wrongful conviction or illegal deprivation of liberty shall have the same years of service or years of social insurance recognized as if he had been employed. The period of unemployment caused by a wrongful conviction or unlawful deprivation of liberty which was not caused through the fault of the person shall also be included in the years of service or social insurance.
(2) Whenever deciding on a right related to years of service or years of social insurance, the competent authority or institution shall take into account the years of
service or social insurance recognized by the provision of paragraph 1 of the present Article.
(3) If the authority or institution referred to in paragraph 2 of the present Article does not take into account the years of service or social insurance recognized by the provision of paragraph 1 of the present Article, the injured person may request that the court referred to in Article 535 paragraph 1 hereof determines that recognition of such a period occurred by force of law. A civil action is brought against the authority or institution which contests the recognition of years of service or social insurance and against the Republic of Serbia (Article 535 paragraph 3).
(4) Upon the request of the authority or institution competent for the realization of the right referred to in paragraph 2 hereof, the contributions specified for the period of time to which the person is entitled according to paragraph 1 of the present Article shall be paid out from budget funds (Article 535 paragraph 3).
(5) The years of social insurance recognized pursuant to the provision of paragraph 1 of the present Article shall also be the years of pension insurance.
Compensation - national proceedings
EDIT.