Offences are categorised in three main categories: criminal offences, commercial offences and misdemeanours.

Criminal Offences

A criminal offence is constituted by the presence of the following general elements:

• a specific action that is prescribed as a criminal offence by the law; and
• said action is committed with criminal intent (or, where specifically prescribed, out of negligence).

Each criminal offence has its own special substantive elements prescribed either by a particular law or the Criminal Code.

Criminal intent (culpability)

Criminal intent exists if the offender was mentally competent, acted with premeditation and was aware (or should or could have been aware) that their action was prohibited.

If so prescribed by the law, the offender may also be guilty when acting with negligence.

Negligence is defined by the following:

• the offender is/was aware at the time of committing the offence that by their action an offence could be committed, but assumed that it would not occur or that he/she would be able to prevent it; or
• was unaware that by their action an offence could be committed, but was obliged to be aware and could have been aware of such possibility.

Action and omission

A criminal offence is usually perpetrated by active behaviour.

Omission as a manner of perpetrating criminal offence is exceptional and exists only where specifically provided for.

Attempted criminal offences, inappropriate attempts and voluntary abandonment

An attempt represents an incomplete criminal offence (with all its attributes and constituent elements) – that is, where an offender failed to complete criminal offence. If such offence is punishable by law, an attempt could be punished by prison sentence of five years or more. In the case of other criminal offences, an attempt can only be punished if the law explicitly prescribes punishment of such attempt.

Inappropriate attempt occurs when an offender attempts to execute a criminal offence with inappropriate means or against an inappropriate object. In such cases, punishment against offender may be remitted.

An offender who voluntarily abandoned the act of executing a criminal offence, or who prevented its consequences, may also be remitted from punishment.

Misdemeanour

Misdemeanour is an illegal act for which a misdemeanour sanction is prescribed.

Misdemeanour may be committed by action or omission when the regulation stipulates so.

Attempt of misdemeanour is punishable only if explicitly prescribed as such.

A person (natural or natural person-entrepreneur), legal entity (including all companies, government bodies, governmental agencies and local authorities) or a person responsible for a legal entity may be liable for a misdemeanour if, at the time of committing the misdemeanour:

• they were mentally competent;
• they committed the misdemeanour either with intent or due to negligence; and
• they were aware (or had to be aware and may have been aware) that such actions were illegal.

Negligence is deemed sufficient for a misdemeanour liability to exist, except where intent is explicitly required by regulation.

Commercial Offences

Commercial offence refers to a socially harmful violation of the regulations on economic or financial operations, which has caused or could have caused graver consequences, and which is defined as a commercial offence by a regulation.

A legal entity may be liable for a commercial offence, as may the person responsible for economic or financial operations within that legal entity.

Generally, a person is responsible for a commercial offence if it was committed by the person՚s action or failure to exercise due supervision, regardless of whether the person acted intentionally or negligently. In exceptional cases, regulation may determine that a commercial offence can only be committed with intent.

Liability for an attempted commercial offence exists if the regulation defining the offence expressly stipulates that an attempt will be punished.

Criminal Offences

There are statutes of limitations for criminal prosecution and for the enforcement of criminal punishment.

There is further distinction between absolute and relative statutes of limitations. The relative statute of limitations may be interrupted by any action from the prosecutor, in which case it starts again from the beginning. The absolute statute of limitations is based on the lapse of a prescribed period of time, after which it is no longer possible to undertake criminal prosecution.

The statute of limitations for criminal prosecution expires automatically when twice the time required by law for the statute of limitations for criminal prosecution has passed.

The statute of limitations for criminal prosecution begins from the date the criminal offence took place or the date the consequence of the offence occurred, whichever is later.

There is no separate statute of limitations for concealed criminal offences. As for continuing offences, the statute of limitations starts from the last committed offence.

Misdemeanours

There are statutes of limitations for the prosecution of misdemeanours and for the enforcement of punishment for misdemeanours.

The statute of limitations for misdemeanour prosecution starts to run from the date when the misdemeanour was committed.

The statute of limitations for enforcement of misdemeanour punishment begins from the date the judgment becomes final and binding.

There are absolute and relative statutes of limitations for both the prosecution of misdemeanours and the enforcement of punishment for misdemeanours. The relative statute of limitations lasts for one year from the date the misdemeanour was committed and the absolute statute of limitations is calculated in the same manner as per criminal offences.

Exceptionally, for offences in the field of customs, foreign trade, foreign exchange operations, public revenues and finances, public procurement, trade in goods and services, environment, prevention of corruption and air traffic offences, a special law may prescribe longer deadlines for statutes of limitations – but no longer than five years.

Commercial Offences

The (relative) statute of limitations for the prosecution of commercial offences lasts for three years from the date the offence was committed.

Exceptionally, for commercial offences in the field of foreign trade, foreign exchange and customs operations, the statute of limitations for prosecution occurs lasts for five years from the date the commercial offence was committed.

The Law on Commercial Offences prescribes the application of the relevant parts of the Criminal Code to the statute of limitations for prosecution. Consequently, the absolute statute of limitations for the prosecution of commercial offences expires after a period of six years. Identical rules apply to the statute of limitations for the execution of a sentence.

Criminal Offences

Extraterritorial reach may be applied to white-collar offences in the following circumstances:

• where a Serbian citizen who commits a criminal offence abroad is found on Serbian territory or extradited to Serbia and the criminal offence is punishable under the law of the country in which it was committed;
• where a foreigner who commits a criminal offence against Serbia or its citizen(s) abroad is found on Serbian territory or extradited to Serbia and the criminal offence is punishable under the law of the country in which it was committed;
• where a foreigner who commits a criminal offence abroad against a foreign state or towards a foreigner – for which, according to the law of the country in which it was committed, an imprisonment of five years or more may be imposed – is found on Serbian territory and not extradited to a foreign state; and
• where the criminal offence was considered a criminal offence according to general legal principles recognised in international law at the time when it was committed, prosecution may take place in Serbia (with the approval of the Republic Public Prosecutor), irrespective of the law of the country where such criminal offence was committed.

Domestic and foreign legal entities are liable for criminal offences committed on Serbian territory. Foreign legal entities are liable for criminal offences committed abroad to the detriment of Serbia, its citizens or a Serbian legal entity. Domestic legal entities are liable for a criminal offence committed abroad.

Misdemeanours

Foreign natural and legal persons and foreign persons responsible for legal entities are liable for misdemeanours, as are domestic natural, legal and responsible persons. However, a foreign legal entity and a responsible person may only be punished for a misdemeanour committed on Serbian territory if:

• it has a business unit or representative office in Serbia or a representative office; or
• if the offence was committed by means of transport.

In exceptional circumstances, offenders may be punished for misdemeanours committed abroad if such punishment is explicitly provided for by regulations ‒ for example, in the case of certain customs offences.

Commercial Offences

A foreign legal entity and a person responsible for a foreign legal entity may be liable for a commercial offence only if the foreign legal entity has a representative office on Serbian territory or if the commercial offence was committed by means of transport.

A legal entity is responsible for any criminal offences that are committed by the persons in charge, with the intention of gaining benefits for said legal entity, while they are working within the scope of its operations or authorisation. The legal entity is also responsible if a person in charge fails to exercise supervision or control over the actions of any other natural person who is under their supervision or control and, as a result, such failure enables the natural person to commit a criminal offence with the intention of gaining benefits for the legal entity.

Both legal entities and responsible persons therein may be held liable for the same offence.

There is no policy preference regarding whether to pursue a legal entity or a natural person (or both), but prosecutors hesitate to prosecute legal entities because of a general fear that this will have a negative impact on the economy.

A legal entity formed through a merger or acquisition is not a universal successor of the legal entities that participated in the merger or acquisition. If the legal entity that participated in the merger or acquisition had benefited from criminal activities, and if those benefits were entered into the newly formed legal entity during the M&A process, then the newly formed legal entity would be criminally liable. Otherwise, a successor entity is not liable for criminal offences committed by the target entity that occurred prior to the merger or acquisition.

Should the legal entity be found guilty of a criminal offence owing to the actions or omissions of the person responsible for or in charge of said legal entity (eg, failure to control and supervise), and the legal entity is obliged to compensate for damages to third party as a result, the legal entity may then sue the responsible person in a recourse action.

The legal framework for damage compensation in cases of white-collar criminal offences are the Serbian Criminal Code, the Criminal Procedure Code, the Law on Torts and Contracts, the Civil Procedure Law, Law on Misdemeanours and the Law on Commercial Offences. 

Victims of white-collar crimes may claim compensation in both criminal and civil proceedings. Legal grounds for damage compensation may be:

• a final and binding guilty court verdict in a criminal/misdemeanour/commercial offence court;
• a plea agreement with the Public Prosecutor's Office and/or other authorities; and
• general civil clauses related to damage reparation and compensation in the relevant civil laws.

In existing case law, victims are usually directed to pursue their compensation claims via civil proceedings if there has been a conviction.

Usually, because the parties involved in these proceedings are legal entities, commercial courts are the competent courts when it comes to damage compensation for white-collar crimes. In rarer cases, basic or higher courts may be competent, depending on the financial census of the case in question.

However, even in cases where there is no conviction (eg, not-guilty verdict, acquittal or statute of limitations application) for a criminal/commercial/misdemeanour offence, it is still possible to claim for damages in a civil court because civil liability is generally much broader than criminal liability.

In Serbia, there are no class action lawsuits. However, there are circumstances in which compensation for damage can be claimed in much the same way as a class action lawsuit – for example, in some criminal cases the victims will be hundreds of thousands of minor shareholders. In such cases, the court will order one sum be paid as compensation and this sum will be distributed to all shareholders according to their participation in the shareholder structure. Additionally, Serbia recognises the concept of derivative claims, in which the plaintiff requests damages for third-party victims.

Authorities have been putting significant effort lately into increasing the powers and abilities of bodies combating organised crime and white-collar crime, in particular. This is reflected in the introduction of new white-collar crimes in legislation and the creation of new liaison officer posts co-ordinating between the Public Prosecutor’s Office, tax authorities and police units in order to increase their capacities and capabilities.

A new special Anti-Corruption Department has been introduced at the Public Prosecutor’s Office relatively recently. This new department has been assembled by teams that specialise in dealing with white-collar crimes.

Further recent developments include the increased efforts to combat high-tech crimes (also known as cybercrime).

The main authorities responsible for the investigation and prosecution of white-collar offences are:

• special divisions in higher prosecutors' offices for organised crime;
• the Special Department for Organised Crime of the High Court in Belgrade;
• the Special Department for Organised Crime of the Court of Appeal in Belgrade;
• special divisions in higher prosecutors' offices for combating corruption;
• special departments in higher courts for combating corruption;
• the Administration for Criminal Police;
• the Administration for the Prevention of Money Laundering; and
• the tax authority.

Essentially, the only difference in competence between authorities that battle corruption and authorities that battle organised crime in the field of white-collar criminal offences is monetary census. If the amount of illegal gain exceeds RSD200 million (or if the value of public procurement exceeds RSD800,000), the authorities for combating organised crime will be competent. If it is less, the authorities for combating corruption will be competent.

Basic prosecutors' offices, local police departments dedicated to commercial crime and basic courts are competent for tax evasion, damaging creditors and some other minor white-collar criminal offences.

The misdemeanour procedure is initiated at the request of the authorised authorities, which are determined by special laws or other by-laws that also prescribe a particular misdemeanour. They can be various civil and administrative authorities such as investigative authorities, tax authorities, customs authorities and prosecutors’ offices.

Conflict of jurisdiction between prosecutors and civil/administrative authorities exists in cases where the same event contains constituent elements both of criminal offences and misdemeanour/commercial offences ‒ for example, in cases of tax evasion (in which the difference is essentially determined by the amount of evaded tax). In the case of such events, if someone has been found guilty of misdemeanour, they cannot also be tried for a criminal offence, as the ne bis in idem principle applies.

Rules on initiating white-collar investigations are determined by the powers and legal standing of the competent authorities, whether civil or criminal.

Criminal offence proceedings may be initiated only by the competent prosecutor's office, following a criminal application by police, victims, civil or enforcement authorities.

Commercial offence proceedings may be initiated only by competent prosecutor's office; however, the application may come from any civil or administrative enforcement authority.

Misdemeanour proceedings may be initiated by any competent investigative authority (or other state, province or local authority with public authority or any civil authority).

Public prosecutors are obliged to perform their duties professionally, conscientiously, impartially, fairly and without undue delay, taking particular care to protect victims and prevent discrimination on any basis.

The police force, tax authority and various investigative authorities have their own specific scopes of authority and are not directly subordinate to the Public Prosecutor's Office (in a hierarchical sense), which is a problem in Serbia. Although the Public Prosecutor has the principle of proactivity, the office is bound by the results of police work. 

The powers of the police in the pre-investigation procedure should be distinguished from taking evidentiary actions. Evidentiary actions refer to the efforts of the Public Prosecutor and the police to gather evidence.

The police have the general authority to:

• collect the necessary information from citizens;
• carry out the necessary inspections of means of transport, passengers and luggage;
• restrict movement in a certain area for the necessary time (and for a maximum of eight hours);
• take the necessary measures to establish the identity of persons and objects;
• issue a search warrant for the person and the objects sought; and
• investigate certain facilities and premises of state bodies, companies, shops and other legal entities in the presence of the responsible person to gain insight into their documentation and, if necessary, to confiscate it.

Investigators within the various ministries are authorised to:

• inspect and copy the necessary public documents and data from registers and records maintained by competent authorities, in accordance with the law;
• inspect a personal or other public document featuring a photograph that is suitable for identifying supervised subjects, witnesses, officials and interested persons, as well as natural persons found at the place under investigation;
• take written and oral statements from supervised subjects and to invite them to give statements on issues of significance to the investigation;
• order that the business books, general and individual acts, records, contracts and other documentation of the supervised entity that are relevant to the investigation be made available within a certain period;
• inspect and check the location, land, buildings, business and other non-residential premises, plants, devices, equipment, accessories, vehicles and other dedicated means of transport, other means of work, products, objects that are put into circulation, goods in circulation, etc;
• take the necessary samples in order to examine them and determine the factual situation, in accordance with the special law and the regulations adopted on the basis of the law;
• take photos and record the area in which the investigation is carried out and anything else that is subject to investigation;
• secure evidence; and
• undertake other actions to determine the factual situation according to the general and specific laws.

The authority will temporarily confiscate and ensure the safekeeping of objects that under the law must be confiscated or that can be used as evidence in criminal proceedings. All persons, except the defendant and persons who are excluded from testifying, must hand over the items.

Where there are grounds to suspect that an offence has been committed that is per law prosecuted ex officio, the police are obliged to take the necessary measures to discover and secure traces of the offence and objects that can serve as evidence, as well as to collect all information that could be useful for the successful conduct of proceedings. This includes the authority to investigate the premises of legal entities in the presence of the responsible person, inspect their documentation and confiscate it.

Under the same conditions, any employee or officer or director of a company may be summoned for questioning.

Internal investigations are not deemed necessary or mandatory.

Whether internal investigations are considered by enforcement authorities and courts in practice will depend on whether the evidence gathered as result is permissible according to Criminal Procedure Code.

The benefit of conducting an internal investigation and presenting the results (self-reporting) is that this makes it possible to enter a non-prosecution agreement with competent prosecuting authority.

During the internal investigation, attention should be paid to personal data as per the Data Protection Law.

The person leading the investigation should always be aware that conducting interviews and taking statements is entirely voluntary. If the employee agrees, their statement may be taken in accordance with the provisions of the Civil Code.

There is no obligation for the employees to co-operate. Usually, during the introductory part of an internal investigation, it is suggested to employees that they will have certain legal benefits if they co-operate, whatever the result of the investigation may be. If an employee agrees to co-operate during the internal investigation, they can engage legal counsel at their own expense; however, the presence of legal counsel is not mandatory.

When conducting an internal investigation and taking statements from the employee, best practice includes three main steps. First, the employee's statement is recorded in audio or video format with their consent. Then the statement is transcribed in written form, which the witness then has the opportunity to read and complete, add or amend if necessary. Finally, the written statement is notarised before the public notary in the presence of the employee, who signs the statement.

The Republic of Serbia has signed 52 bilateral international agreements that regulate international legal assistance in criminal matters with 31 countries.

The enforcement of foreign criminal judgments is regulated exclusively by special agreements. Assignment and taking over of criminal prosecution are not regulated by any special contract. This type of legal aid is already regulated in a number of countries, along with general types of international legal assistance.

The Republic of Serbia is a member of 24 Council of Europe conventions on providing international legal assistance in criminal matters and is a member of more than 30 UN conventions.

Among the most significant treaties that apply are the UN Convention Against Corruption of 31 October 2003 (UNCAC), the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (ECMA) and the European Convention on Extradition of 13 December 1957. Other conventions of the Council of Europe regulate cross-border co-operation when it comes to certain criminal matters, including corruption. There are also UN conventions that regulate cross-border co-operation regarding criminal activities such as corruption.

It is also worth noting that the Republic Public Prosecutor's Office participates in the work of international prosecutorial networks and bodies such as the European Union Agency for Criminal Justice Cooperation (EUROJUST), Southeast European Prosecutors Advisory Group (SEEPAG), the Consultative Council of European Prosecutors and others. The Republic Public Prosecutor's Office has intensified its co-operation with EUROJUST.

Serbia does not have blocking statutes or equivalent regulation.

Extradition

As for the matter of extradition, Serbia has signed bilateral agreements with 28 countries. Additional legal instruments that apply are the aforementioned European Convention on Extradition of 1957 and additional protocols from 1975, 1978, 2001 and 2012.

It is important to note that the state requesting the extradition is not a party in the extradition proceedings and that it does not have any rights (such as the right to inspect the file or file motions or remedies).

There are no special rules that govern or distinguish the matter of extradition in the case of white-collar crimes, so general rules are applied.

Extradition will not be permitted if:

• the person cannot be prosecuted in the criminal proceedings (the principle of specialty);
• the person is facing the death penalty; and
• the person was convicted in absentia.

Extradition may be postponed until:

• criminal proceedings before a domestic court that are conducted for different criminal offence have legally concluded; or
• the person whose extradition is sought has completed serving a prison sentence or other criminal sanction that involves deprivation of liberty.

Extradition of Serbian citizens

The extradition of Serbian citizens is only possible in exceptional circumstances.

The Republic of Serbia's existing Constitution does not regulate the matter of extraditing its own citizens. Bearing this in mind, the Law on International Legal Assistance in Criminal Matters provides that it will only be applied if there is no agreement or if certain issues are not regulated within the agreement. Serbia has reached agreements that foresee extradition of its own citizens with the Republic of Croatia, Montenegro, North Macedonia, Bosnia and Herzegovina, Italy and the USA, among others.

For white-collar offences, prosecution is initiated by filing an indictment proposal with the Public Prosecutor's Office for offences punishable by a fine or imprisonment of up to eight years) or indictments (for offences punishable by imprisonment for more than eight years).

Enforcement bodies and courts have no rights to exercise their discretion when deciding whether a company or an individual will be charged with a white-collar offence.

The only possible “exceptions” are where certain persons have entered into special type of a plea agreement with the Public Prosecutor’s Office that, for example, grants them the status of:

• witness (in return for freedom from prosecution for that specific criminal act); or
• whistle-blower (in some cases the Public Prosecutor's Office may use its discretion to decide not to prosecute the whistle-blower).

This plea agreement is made by the Public Prosecutor's Office but needs to be approved by the court. The court can only refuse to approve the agreement in the following two situations:

• the agreement is not fulfilled; or
• criminal prosecution of a witness is no longer possible due to statute of limitations or other formal reasons.

The only guidelines in this respect concern what evidence the Public Prosecutor's Office will receive from the offender by concluding the plea agreement and that can be considered when deciding whether to drop the charges.

“Postponement of criminal prosecution” has been introduced into Serbian law relatively recently as an alternative means of resolving a criminal investigation that, in its essence, constitutes a deferred prosecution agreement. The prosecutor agrees to drop the charges if the defendant agrees to fulfilling certain conditions, such as:

• donating a certain amount to charity;
• reparation of damages incurred by the criminal offence; and/or
• performing community service and not repeating the criminal offence in certain period.

This mechanism is applicable to all criminal offences that are punishable by a monetary penalty or a maximum of five years in prison.

The prosecutor has the discretionary right to apply this alternative mechanism as it is not obligatory and only prescribed as a possibility.

A defendant may voluntarily admit to the charges; in which case, the prosecutor and the defendant may reach a plea agreement. This is possible from the beginning of investigation until the end of trial. The defendant will voluntarily acknowledge charges in exchange for:

• a conviction on reduced charges; or
• an agreed-upon sentence.

This plea agreement must be approved by the court, which will check and control all elements of the agreement and its compliance with the law before granting approval.

There are no plea agreements in the case of commercial offences.

Plea agreements do exist for misdemeanour offences. In the context of white-collar misdemeanours, it is worth mentioning the following guidelines issued by the Ministry of Finance concerning plea agreements in tax-related offences.

Plea agreements may be reached following the acknowledgement of the tax-related misdemeanour offence, based on the pre-condition that the taxpayer will eliminate the illegality/irregularity and the consequence of the violation and pay the tax.

The type and amount of the misdemeanour sanction are determined in the plea agreement and are based on:

• the severity of the violation of regulations; and
• the previous actions of the defendant.

Two sub-criteria, depending on the nature of the offence, are:

• the type of irregularity (eg, errors in data entry or failure to submit a tax return); and
• the amount of unpaid or uncalculated or unreported tax.

The following criminal company law and corporate fraud offences are recognised in the Serbian Criminal Code.

Fraud in Conducting Business Activity (Article 223)

Basic constituent elements

This criminal offence consists of the following:

• intent to obtain unlawful material gain for self or another person;
• misleading by false representation or by concealing facts or maintaining the false conviction of another; and
• leading another to do something or not do something that results in damage to the assets of:
1. a business entity they work for or with; or
2. another legal entity.

Sanctions

The basic form of this offence is punishable by a monetary fine and imprisonment for a term of between six months and five years. Qualified forms of this criminal offence depend on the amount of illegal gain/damage incurred.

Fraud in Insurance (Article 223a)

Basic constituent elements

This criminal office consists of the following:

• destroying, damaging or hiding an insured object; and
• reporting damage with the intention of collecting an agreed sum from an insurance company.

Sanctions

The basic form of this offence is punishable by imprisonment for a term of between three months and three years. Qualified forms of this criminal offence depend on the amount of illegal gain/damage incurred. Attempt is also punishable.

Embezzlement in Conducting Business Activity (Article 224)

Basic constituent elements

This crime is committed when the offender: 

• misappropriates money, securities or other assets entrusted to them while working in a business entity; and
• intends to obtain unlawful material gain for self or another person.

Sanctions

The basic form of this offence is punishable by imprisonment for a term of between three months and five years. Qualified forms of this criminal offence depend on the amount of illegal gain/damage incurred.

Abuse of the Position of a Responsible Person (Article 227)

Basic constituent elements

This criminal offence occurs when, by abusing their position or powers, the responsible person:

• exceeds the limits of their powers or fails to perform their duties; and

• in doing so (and providing this does not constitute another criminal offence or parts thereof):
1. obtains unlawful material gain for themselves or for another natural person or legal entity; or
2. incurs material damage to another person.

Sanctions

The basic form of this offence is punishable by imprisonment for a term of between three months and three years. Qualified forms of this criminal offence depend on the amount of illegal gain/damage incurred.

Additional Criminal Offences

The following also constitute white-collar criminal offences in the Republic of Serbia:

• causing false bankruptcy;
• damaging creditors;
• abuse in privatisation;
• abuse in procedure in public procurement; and
• abuse of trust in conducting business activity.

The Serbian Criminal Code outlines the following main bribery and influence peddling offences.

Abuse of Office (Article 359)

Basic constituent elements

This offence can be only committed by an official who, by exercising their official position or authority, exceeding the limits of their official authority or failing to perform their official duty:

• obtains for themselves or another natural or legal person any benefit;
• harms another; or
• seriously violates the rights of another.

Sanctions

The basic form of this offence is punishable by imprisonment for a term of between six months and five years. Qualified forms of this criminal offence depend on the amount of illegal gain/damage incurred.

Trading in Influence (Article 366)

There are several different forms of this criminal offence, as follows.

Basic constituent elements

The request for or receipt of a gift (or any other benefit) for self or another ‒ directly or through a third party ‒ in exchange for use of official or social position or actual or presumed influence to mediate in the performance or non-performance of an official action.

Sanctions

The basic form of this offence is punishable by imprisonment for a term of between six months and five years. There are additional forms of this criminal offence (with varying sanctions), which include variations on the basic constituent elements.

Soliciting and Accepting Bribes (Article 367)

There are also several forms of this criminal offence.

Basic constituent elements

This offence is committed when:

• an official directly or indirectly:
1. requests or receives a gift (or other benefit); or
2. receives a promise of a gift (or other benefit) for himself or another; and
• such request or receipt is in exchange for:
1. performing, within the scope of his official authority or in connection with his official authority, an official action that he should not perform; or
2. not performing an official action that he should perform.

Sanctions

The basic form of this offence is punishable by imprisonment for a term of between two and 12 years. There are additional forms of this criminal offence (with varying sanctions), which include variations on the basic constituent elements.

Bribery (Article 368)

There are also several forms of this criminal offence.

Basic constituent elements

This offence is committed by:

• offering or promising a gift (or other benefit) to an official (or another) person in exchange for such person using their official authority or acting in connection with their official authority to:
1. perform an official action that they should not perform or not perform an official action that they should perform; and
2. perform an official action that they should perform or not perform an official action that they should not perform; or
• mediating in such bribery of an official.

Sanctions

This offence is punishable by imprisonment for a term of between six months and five years.

The main regulation in the field of Serbian anti-bribery legislation is the Law on Prevention of Corruption, which established an Anti-Corruption Department, as well as specific sector regulation (financial, public, etc). The primary scope of the Anti-Corruption Department is the monitoring of property and any conflict of interest by public officials.

Additionally, the ISO 37001 Anti-Bribery Management System has been translated and adopted. The authors' office participated in its translation and adoption by the state commission.

In heavily regulated industries such as finance, insurance and energy, there is an obligation to maintain a compliance programme, as stipulated by regulations including:

• the Law on Banks;
• the Law on Insurance;
• the Law on Digital Assets;
• the Law on Capital Markets; and
• the Law on Energy.

Although failing to maintain a compliance programme is not foreseen as a criminal offence by these laws, they do foresee misdemeanour offences, commercial offences and various monetary penalties rendered by the National Bank of Serbia (NBS) in case of violation of such obligations.

A compliance programme comprises a system of internal controls within which appropriate administrative and other procedures are agreed. Management is then obliged to organise and apply these policies and actions in a way that corresponds to the nature, complexity and riskiness of the work and the framework of internal control. A compliance programme also entails procedures for the purpose of:

• reporting on the compliance of the company's operations and the control of that compliance;
• determining and accepting appropriate risks and managing those risks; and
• preventing irregularities and illegalities in the company's operations.

The main offences and sanctions in relation to insider dealing, market abuse and criminal banking law are detailed in the following Serbian laws.

The Law on Capital Markets

The Law on Capital Markets prescribes the following criminal offences and sanctions:

• Engaging in Market Manipulation (Article 281) – punishable by monetary fine and a prison sentence of six months to five years or, if the acts have caused a significant disruption on the regulated market or multilateral trading facility, prison sentences of three years to eight years);
• The Use, Disclosure and Recommendation of Inside Information (Article 282) – punishable by a prison sentence of up to one year or, depending on the amount of illegally obtained material gain, a fine; and
• Unauthorised Provision of Investment Services (Article 283) – punishable by a fine or a prison sentence of up to one year; however, depending on the amount of obtained material gain, longer prison sentences and harsher fines may apply.

The Law on Digital Assets

The Law on Digital Assets prescribes sanctions of a fine or up to one year in prison for anyone who, with the intention of obtaining material gains or causing damage to other persons, uses insider information:

• directly or indirectly to acquire or alienate (or in an attempt to acquire or alienate) the digital property to which this insider information refers, either for their own benefit or the benefit of another;
• for disclosure and making such insider information available to any other person; or
• for recommending or inducing another person to acquire or alienate the digital property to which this insider information refers.

The Law on Digital Assets also prescribes sanctions of a fine and between six months and five years in prison for anyone who engages in market manipulation for their own or another's benefit or who harms other persons by:

• concluding a transaction or issuing trading orders in which:
1. false information about the offer, demand or price of digital property is likely to be provided;
2. the person (or persons acting jointly) maintains the price of one or more digital assets at an unrealistic level; or
3. fictitious practices or any other form of deception or fraud is used; or
• spreading information via the media (including the Internet) or otherwise transmitting untrue news (or news that may cause a misconception) about digital property, if they knew or should have known that this information was untrue or misleading.

The Law on Banks

The Law on Banks prescribes a prison sentence of between three months and five years for anyone who engages in the following criminal offences:

• accepting deposits without an operating licence issued by the NBS (Article 135); and
• granting loans and issuing payment cards without an operating licence issued by the NBS and without being authorised to do so by law (Article 136).

In cases where the amount of material gain obtained by committing these offences exceeds certain amounts provided by the Law, the sanctions may be stricter.

Law on Foreign Currency Operations

The Law on Foreign Currency Operations prescribes the following actions as criminal offences, and includes accompanying sanctions:

• Anyone who buys or sells effective foreign money and cheques that amount to foreign currency from or to natural persons without the authority of the NBS will be punished with a prison sentence of between six months and five years; and
• Anyone who charges, pays, issues a payment order for, or transfers an amount exceeding EUR100,000 to a non-resident, under a contract that does not specify the actual price or on the basis of an untrue document, will be punished by prison sentence of between one and ten years.

Tax Fraud

The Criminal Code prescribes two types of tax fraud, which are essentially differentiated by the type of public income that is defrauded.

Tax Evasion (Article 225)

The first offence occurs where the offender intends to fully or partially avoid paying more than RSD1 million in taxes by:

• giving false information about the acquired income or other facts that have an influence on the determination of such obligations;
• failing to report the acquired income where mandatory reporting is required; or
• concealing data related to the determination of the obligations.

Criminal intent must be proven.

The prescribed sanctions are a fine and between one and five years in prison. Qualified forms of this criminal offence exist and longer prison terms are prescribed for such, depending on the amount of tax evaded.

The relevant tax laws provide penalties for misdemeanours or commercial offences in cases of tax evasion (and other prescribed duties or liabilities) where the amounts evaded are less than RSD1 million.

Evasion of Withholding Tax (Article 226)

The second criminal offence is non-payment of withholding tax, which is a special type of tax evasion that refers to those taxes, mandatory social security contributions and other prescribed duties that are paid as withholding tax. Criminal offence exists simply by not paying it with intent of evading it. Intent is proven by sole act of failure to pay.

The prescribed sanctions are a fine and a prison term of between one and five years. Qualified forms of this criminal offence exist and longer prison terms are prescribed for such, depending on the amount of tax evaded.

The LTPTA and Obligations to Prevent Tax Evasion

The Law on Tax Procedure and Tax Administration (LTPTA) provides for the following criminal offences.

• Tax Fraud Related to VAT (Article 173a) – prescribes a fine and a prison sentence of between one and five years for:
1. intentionally requesting an unfounded VAT refund or tax credit for VAT;
2. completely or partially avoiding payment of VAT by:
1. failing to submit one or more tax returns for VAT; or
2. by submitting one or more tax returns for VAT with false content; or
3. avoiding payment of VAT in another way and where the amount of tax exceeds RSD1 million.
• Endangering the Collection of Taxes and Tax Control (Article 175) – prescribes sanctions of a monetary fine and up to one year in prison for intentionally jeopardising the collection of taxes that are not yet due or determined but are in the process of being determined or controlled.
• The Illicit Trade in Excise Products (Article 176) and Illicit Storage of Goods (Article 176a) – introduces the illegal production, refinement, holding or intermediating in the sale and purchase of goods subject to excise as a criminal offence and prescribes sanctions of up to five years in prison.

The LTPTA, along with other relevant regulations that prescribe liability for payment of specific types of taxes and other duties, provides legal entities and entrepreneurs' obligations regarding such payment in detail. Failure to comply with such obligations is sanctioned as misdemeanour.

The LTPTA and other regulation prescribe a series of obligations on companies to calculate and pay taxes and submit tax application. Failure to perform these obligations is sanctioned by misdemeanour or commercial offences.

Pursuant to the Law on Accounting, legal entities and entrepreneurs are obliged to keep proper accounting documents, business books and financial reports and to decide upon specific persons and business premises responsible for their storage, as well as the manner of storage. Financial reports, audit reports and statistical reports must be kept for 20 years.

Failure to comply with established obligations is sanctioned either as a commercial offence or misdemeanour.

The Law on Archival Material and Archival Activities prescribes that a criminal complaint or a request to initiate misdemeanour proceedings may be filed if an authorised person determines that the creator and owner has damaged or destroyed archival material or documentary material whose storage period has not expired.

Damaging or destroying of financial records may be treated as concealment of a criminal offence and is punishable as such under the general rules of criminal law. Criminal intent must be proven.

Penalties for failure to keep or disclose accurate financial records range from RSD50,000 to RSD2 million for legal entities and from RSD5,000 to RSD150,000 for responsible persons in a legal entity.

Commercial offences with regard to keeping accurate financial records are prescribed by the Law on Accounting, with monetary penalties that range from RSD100,000 up to RSD3 million for legal entities and from RSD20,000 up to RSD150,000 for responsible persons in a legal entity.

The main criminal offence relating to competition law is the signing of a restrictive agreement. Unless an individual exemption applies, any person in a business entity who enters into a restrictive agreement that fixes prices and restricts production or sales (ie, divides the market) faces a fine and between six months and five years in prison.

If a company abuses its dominant position in the relevant market, signs or implements a restrictive agreement, fails to perform or implement measures to eliminate competition infringement or de-concentrating measures, or conducts a concentration without approval, it may be obliged to pay a monetary fine equivalent to up to 10% of the total annual revenue generated on Serbian territory. Any company reports the existence of violation may be exempt from the penalty obligation.

The Criminal Code now prohibits the signing of a restrictive agreement aimed at fixing prices, limiting production or sale or market sharing.

The Criminal Code only prescribes one criminal offence relating to consumer law. Article 256 provides that the production and circulation of harmful products is punishable by a monetary fine and between six months to five years in prison.

However, a series of administrative misdemeanour offences have been put in place primarily to protect consumers' rights from various violations, the most common of which are not issuing invoices to the consumer, misleading the consumer and unfair business practices.

Companies and responsible persons therein face monetary penalties for these misdemeanours that range from RSD50,000 to RSD2 million.

Protective measures may be issued to both companies and responsible persons within the companies.

The Criminal Code recognises the following criminal offences in relation to cybercrime, computer frauds and breach of company secrets.

Damaging Data and Computer Programmes (Article 298)

Basic constituent elements

Deleting, altering, damaging or concealing data without authorisation or otherwise making computer programmes unusable.

Sanctions

The basic form of this offence is punishable by up to one year in prison. Stricter sanctions are prescribed for several qualified forms of this offence, depending on the amount of damage incurred by the illegal activity.

Creating and Introducing Computer Viruses (Article 300)

Basic constituent elements

Creating a computer virus with the intent to introduce it into another’s computer or computer network.

Sanctions

This criminal offence is punishable by a fine or imprisonment for up to six months. If damage is incurred as a result, prescribed sanctions are a fine or imprisonment for up to two years.

Computer Fraud (Article 301)

Basic constituent elements

This offence is committed when someone intentionally enters incorrect data, fails to enter correct data, or otherwise conceals or falsely represents data in order to affect the results of electronic processing and transfer of data, leading to:

• unlawful material gain for themselves or another; and
• material damage to another person.

Sanctions

Prescribed sanctions are a fine or a prison sentence of up to three years. Qualified forms of this offence with stricter sanctions exist, depending on the amount of damage.

Unauthorised Access to Computers, Computer Networks or Electronic Data Processing (Article 302)

Basic constituent elements

Accessing a computer or computer network without authorisation by circumventing protection measures, or accessing electronic data processing without authorisation by circumventing protection measures.

Sanctions

Prescribed sanctions are a fine or imprisonment for up to six months. If certain special criteria are fulfilled, the sanction may be more strict.

Additional Cyber-Offences

The following cyber-offences are also included in the  Criminal Code:

• Computer Sabotage (Article 299);
• Preventing or Restricting Access to Public Computer Network (Article 303);
• Unauthorised Use of Computers or Computer Network (Article 304); and
• Creating, Obtaining and Providing Another Person with the Means to Commit Criminal Offences Against the Security of Computer Data (Article 304a).

Disclosing a Business Secret (Article 240)

As for the breach of company secrets, the Criminal Code prescribes Disclosing a Business Secret (Article 240) as a criminal offence, which is punishable by between six months to five years in prison.

If this criminal offence is committed for gain or involves particularly confidential information, prescribed sanctions are a fine and between two and ten years in prison. The Criminal Code defines a “business secret” as information and documents declared by law, other regulations or the competent authority as a business secret whose disclosure would or could cause harmful consequences for the enterprise or other business entity.

Article 21 of the Law on Protection of Trade Secrets also prescribes the unlawful obtaining, using or disclosing of a business secret as a criminal offence, with a monetary penalty in the range of RSD100,000 to RSD3 million.

Financial, trade and customs offences are prescribed by various different laws, including the Criminal Code, the Law on Foreign Exchange Operations, the Customs Law, and the Law on the National Bank of Serbia.

The main financial crimes are foreseen by Criminal Code:

• Counterfeiting Money (Article 241);
• Counterfeiting Securities (Article 242);
• Money Laundering (Article 245); and
• Financing Terrorism (Article 393).

The only customs criminal offence that is prescribed by the Criminal Code is smuggling (Article 236). This is also a matter of misdemeanour regulation.

The main trade criminal offences prescribed by Criminal Code are Illegal Trade (Article 235) and Illegal Production (Article 234).

In addition, there are numerous commercial offences and misdemeanour offences prescribed in relation to finance, trade and customs.

Concealment is prescribed as criminal offence by Article 221 of Criminal Code and is punishable by a fine or imprisonment of up to three years. The penalty may not exceed the statutory penalty for the offence by whose commission the object was acquired.

Additionally, concealment may be treated as an act of aiding and abetting in the execution of a criminal offence, according to the Article 35 of Criminal Code.

As for concealment as a white-collar crime, two criminal offences relate to this issue.

• Preventing Control (Article 237 of the Criminal Code), which is punishable by up to one year in prison; and
• Preventing and Obstructing Evidence (Article 336 of the Criminal Code), which applies to any obstruction of evidence in proceedings before the court or competent state body.

As for concealment predicate offences, they can vary – for example, Giving a False Statement (Article 581 of the Law on Companies) by the competent authority in order to conceal the exact order of a company's finances may be a predicate offence in Fraud in Conducting Business Activity (Article 223 of the Criminal Code).

Also, Giving a False Statement may also appear as predicate offence in Tax Avoidance (Article 225 of the Criminal Code. In order to facilitate tax evasion, false information on legal income/expenditures is usually supplied.

General rules of criminal law are applied to aiding and abetting with regard to corporate criminal offences and anyone  whose actions fall under these general rules may be punished for aiding and abetting in corporate criminal offences.

An abettor will be sanctioned by the prescribed punishment for the criminal offence to which the abetting relates, but with the possibility of penalty mitigation.

A person conspiring or abetting in a criminal offence is judged on their own intent, which can be separate from the intent of the offender. Also, a conspirator or abettor who wilfully prevents the execution of the criminal offence may be exempted from punishment.

According to Article 245 of the Criminal Code, money laundering is defined as:

• converting, transferring, obtaining, keeping or using property while aware that such property originated from a criminal offence, with intent to conceal or misrepresent the unlawful origin of the property; or
• concealing and misrepresenting facts on a property while aware that such property originates from a criminal offence.

The above-mentioned elements must be proven. Prescribed sanctions are a fine and imprisonment for between six months and five years. Qualified forms of this criminal offence depend on the amount of laundered funds and other qualifying circumstances, with sanctions varying from one to 12 years of imprisonment.

Predicate offences and events usually include all types of corporate frauds offences (see 3.1 Criminal Company Law and Corporate Fraud), bribery (see 3.2 Bribery, Influence Peddling and Related Offences), insider trading (see 3.4 Insider Dealing, Market Abuse and Criminal Banking Law) and tax fraud (see 3.5 Tax Fraud).

In terms of specific obligations to prevent money laundering, the Law on the Prevention of Money Laundering and the Financing of Terrorism obliges banks, currency exchange offices and providers of money transaction services to undertake the necessary checks (eg, KYC and verifying the legal basis of a transaction) when opening bank accounts and transferring money. The NBS has rendered several by-laws that prescribe in detail the procedure and steps for how to fulfil obligations from said law.

Violation of these obligations (ie, failure to fulfil them) constitutes a commercial offence (punishable with monetary penalties in the range of RSD100,000 to RSD3 million for legal entities and penalties for responsible persons from RSD10,000 to RSD200,000) or a misdemeanour offence (punishable with monetary penalties in the range of RSD10,000 to RSD500,000 and penalties for responsible persons from RSD5,000 to RSD50,000). The NBS, the Basic Prosecutor's Office (in case of commercial offences) and the Administration for Prevention of Money Laundering are the main prosecuting authorities for these violations.

The Administration for the Prevention of Money Laundering is established in Serbia as the principal authority in the field of conducting anti-money laundering activities.

The Administration for the Prevention of Money Laundering collects, processes and analyses information, data and documentation obtained in accordance with the law and forwards it to the competent authorities. It also performs other tasks related to the prevention and detection of money laundering and terrorist financing.

The defence depends on the type and circumstances of the white-collar offence in question and on the specific case.

Where there are criminal or misdemeanour or commercial offence charges of tax evasion, the defence would primarily try to prove that there was no criminal intent and that the omission in tax application resulted from a different interpretation of the applicable regulation in cases where there is any arbitrary element in tax regulation. Additionally, the tax due should be paid (even if a criminal/commercial/misdemeanour offence is initiated and ongoing) in order for the prosecutor to accept that there was no intent and drop the charges.

In most cases, the defence may try to present evidence of strong internal procedures and compliance programmes that were actually carried out. The existence and application of such a programme can lead to a not guilty verdict for the company directors or it can be viewed as a mitigating factor, especially in heavily regulated sectors such as banking, insurance, pharmacy, but this is not automatic.

There are a few significant exceptions for white-collar offences in Serbia.

Tax evasion does not constitute a criminal offence, for example, if the amount of evaded tax is less than RSD1 million ‒ such cases are considered merely misdemeanour offences.

Additionally, in accordance with the Law on Health Care, it is possible to give a non-monetary gift of thanks to medical staff with a value of EUR23 per individual or EUR462 for a group.

Both self-disclosure and co-operation with authorities are considered mitigating factors. Reparation of damage to victims is also considered a mitigating factor.

The list of leniency measures is not strictly defined and tends to depend on a case-by-case basis. Some criteria for leniency measures are highlighted, such as the behaviour of offender post festum and the significance of the protected object in the criminal offence in question.

A special law has been introduced regarding whistle-blowers. However, the protection offered by this law is somewhat limited and mostly concentrated on the employment aspect (protection against termination, decrease of salary, etc); however, it does not encompass protection from criminal charges if the whistle-blower was a participant in the execution of the criminal offence.

The whistle-blower is entitled to protection if they disclose information in due process within prescribed deadlines and if the information is considered truthful.

Whistle-blowing, where the whistle-blower was a participant in criminal offence, would potentially be considered as mitigating circumstances in a criminal case.

There are no incentives offered to whistle-blowers.

Criminal Offences

The burden of proof is placed strictly on the prosecutor, who must defend their indictment before the court.

The court can base its judgment, or a decision corresponding to a judgment, only on facts of which certainty it is convinced.

If there are any doubts concerning the existence of elements of a criminal office ‒ that is, the facts on which the conduct of criminal proceedings depends ‒ then the court will resolve in favour of the defendant.

The court evaluates the evidence according to its free will.

Which facts will be taken as proven is decided by conscientious and careful evaluation of each piece of evidence separately and all pieces of evidence together.

There is no legally established presumption of guilt mechanism.

Commercial Offences

The rules for criminal offences also apply to commercial offences.

Misdemeanour Proceedings

The burden of proving the features of the misdemeanour and misdemeanour liability is on the applicant for the initiation of misdemeanour proceedings.

The standard of proof is identical to criminal offences.

The assessment of penalties and penal policy is primarily created by the legislator to determine the type and range of punishment. The legislator restricts the judge’s discretion in sentencing by:

• prohibiting the mitigation of punishment for certain criminal offences; and
• introducing mandatory punishment in the case of multiple returns with sanctioning that is greater than half of the prescribed range.

When the judge assesses the punishment, they do so within the limits prescribed by the law. They must consider the purpose of the punishment (ie, special or general prevention), but also all the circumstances (both mitigating and aggravating) of the specific case that may influence the severity of the punishment. The punishment can only be reduced or increased in exceptional cases that meet conditions expressly prescribed by law.