According to the definition stipulated by the Law on Misdemeanours of the Republic of Serbia (“the Law”), misdemeanour is an unlawful act established as misdemeanour by law or other regulation, which is subject to misdemeanour sanctions. Accordingly, it is an unlawful behaviour which, considering its gravity and consequences, does not represent criminal act (or economic offence).
Under the Law, misdemeanours may be prescribed by law or regulation and/or decision of the assembly of a local self-government unit.
According to the last published Report on Work of the Misdemeanour Appellate Court, for 2021, the annual inflow of cases to this highest-instance misdemeanour court that decides on appeals against decisions of lower misdemeanour courts is around 30 thousand. Out of that number, misdemeanours in the field of finance and customs make for 8.03%, misdemeanours in the field of economy 6.46%, misdemeanours in the field of labour, employment relations and safety and protection at work make for only 1.78%, while the largest number of cases are in the field of transport safety – 57.31%. Similar trends can be observed in the report for 2020, while reports for 2019 and 2017 indicate somewhat higher percentage (except for transport safety).
The above therefore shows a decreasing tendency for the number of cases in the economy-relevant matters, which naturally brings about the question as to the reasons for that; among other, whether the prescribed misdemeanour sanctions have contributed to that and to what extent, or the awareness of economic entities about them?
Since, as it was already noted, misdemeanours represent offences, misdemeanour sanctionsresemble penal sanctions, wherefore the Law stipulates that the following may be pronounced or imposed for misdemeanours:
As regards the penalties, misdemeanour may be subject to imprisonment, fine and community service.
Fines
In relation to the fines, the Law recognises several modes of pronouncing. Namely,
- within an appropriate range(namely from RSD 5,000/approx. EUR 43 to 150,000/approx. EUR 1,272 for a natural person or responsible person, from RSD 50,000/approx. EUR 424 to 2,000,000/approx. EUR 16,950 for a legal entity, and from RSD 10,000/approx. EUR 85 to 500,000/approx. EUR 4,238 for entrepreneurs);
- in fixed amount(so-called mandate fine, for a natural person and responsible person from RSD 1,000/approx. EUR 9 to 50,000/approx. EUR 424, for entrepreneur from RSD 5,000/approx. EUR 43 to 150,000/approx. EUR 1,272, and for legal entity from RSD 10,000/approx. EUR 85 to 300,000/approx. EUR 2,543); while
Exceptionally, for misdemeanours in the field of public revenues, public information, customs, foreign trade and foreign exchange operations, environment, trade in goods and services and trade in securities, the law may prescribe fines that correspond to the amount of damages or unrealised obligation, value of goods or other object that is subject of misdemeanour(but not exceeding the twenty-times the amount of such values, and not exceeding five-times the amount of maximum fines that may be pronounced under the Law).
Previously noted mandate fines (prescribed in fixed amount) shall be pronounced by supervising authorities instead of misdemeanour courts, while the latter nevertheless have the competence to pronounce the fines prescribed in a relevant range, given that it is necessary to measure the fine, i.e., determine its amount within the prescribed range based on presented evidence and assessing all circumstances of the case.
Examples
The Serbian Law on Personal Data Protection includes penalty provisions under which fines in a prescribed range (from RSD 50,000/approx. EUR 424 to 2,000,000/approx. EUR 16,950) will be imposed on controller and/or processor being legal entity in case it commits a misdemeanour prescribed by Article 95, para. 1 of this law (e.g., processing of personal data contrary to the principles of processing from Article 5, para. 1 of the law), as well as provisions under which fines in fixed amount (RSD 100,000/approx. EUR 848) will be imposed on controller and/or processor being legal entity in case it commits a misdemeanour prescribed by Article 95, para. 2 of the law (e.g., if it fails to inform the recipient about special terms for personal data processing prescribed by law and its obligation to meet such terms).
On the other hand, the Serbian Customs Law stipulates that fine from one to five times the value of goods subject to misdemeanour will be imposed on a legal entity, entrepreneur or natural person, and fine of RSD 20,000/approx. EUR 170 to 150,000/approx. EUR 1,272 on a responsible person in a legal entity, if some of misdemeanours from Article 265, para. 1 of this law are committed (e.g., failure to properly report the goods imported to or exported from the customs territory of the Republic of Serbia).
Similarly, the Law on Tax Procedure and Tax Administration stipulates that taxpayer (legal entity or entrepreneur) failing to submit tax application, calculate and pay taxes, shall be fined for misdemeanour with 30% to 100% of owed tax amount established during tax control, and no less than RSD 500,000/approx. EUR 4,238 for legal entity and RSD 100,000/approx. EUR 848 for entrepreneur.
In relation thereto, the recently adopted Strategy for Personal Data Protection for the period 2023 – 2030 of the Republic of Serbia has announced stricter penal policy for infringement of obligations in the field of personal data protection and underlined that that the model used by the Serbian Commission for the Protection of Competition should be applied for this purpose and that fine should be pronounced in the amount depending on the company income.
Namely, for the sake of comparison, the possibility prescribed by the GDPR for infringement of obligations in the field of personal data protection is fine up to EUR 10,000,000 or 2% of the total annual turnover of the company in the world for the previous financial year (whichever amount is higher), and up to EUR 20,000,000 or 4% of the total annual turnover of the company in the world for the previous financial year (whichever amount is higher) – therefore, in the amounts exceeding by far the ones prescribed by the domestic Law on Personal Data Protection.
Finally, it was noted in practice that the acting courts usually, and particularly in case of first misdemeanour, do not pronounce maximum fines. However, it can also be noted that penal policy tends to be stricter recently, however it remains to be seen whether the announced fines are enough to achieve the effect of general prevention, i.e., committing so-called dissuasive influence on potential perpetrators of misdemeanour as offence.