Unconstitutional double jeopardy for curfew violation?

The Human Rights Centre in Belgrade has submitted to the Constitutional Court of Serbia a proposal for the Court to initiate proceedings to review the constitutionality and conformity with the European Convention on Human Rights of the Regulation on offences for violation of the restriction and prohibition of movement of persons (curfew) on the territory of Serbia.

The order was issued by the Minister of Interior, Nebojsa Stefanovic, during the state of emergency due to the COVID-19 pandemic, and the initiative concerns the envisaged possibility of double punishment, criminal and administrative, of persons violating the curfew.

“The aforementioned decree states that a person, who violates the curfew, will be fined from 50,000 to 150,000 dinars (Article 1). However, Article 2 of this decree is questionable, as it stipulates that a person can be again charged for that offence even though criminal proceedings have already been initiated or are pending for an offence with the same characteristics”, the Centre stated in a note.

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Although Stefanovic’s order states that non-compliance with the curfew will be punished as a criminal offence – under the Criminal Code, in accordance with the above-mentioned regulation, according to the Human Rights Centre, there is no justification for citizens who violate these prohibitions to be doubly punished (in criminal proceedings – for the offence referred to in Article 248 of the Criminal Code, and subsequently in proceedings for the offence referred to in Article 1 of the Criminal Regulation), which Article 2 of the Regulation allows.

“We recall that Article 34 of the Serbian Constitution and Protocol 7 of the European Convention on Human Rights (Article 4) guarantee the principle of ‘ne bis in idem’, which cannot be derogated even during a state of emergency”, concluded the note.

(Nedeljnik, 25.03.2020)



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