The Ministry of Justice of the Republic of Serbia is the principal authority at the central level, responsible for receiving and acting upon letters rogatory seeking Mutual Legal Assistance (hereinafter MLA), which is then responsible for forwarding requests to the competent national authorities (i.e. courts and prosecution offices) responsible for the execution of such requests. In a way this arrangement represents an alternative to diplomatic channel communication. In certain instances, respecting the rules of reciprocity and any bilateral agreements, the judicial authorities of the requesting State may communicate directly with the competent authorities of the requested State. In case there is no reciprocity or any bilateral agreement, MLA requests must be addressed and sent to the Ministry of Justice.
When the request is made directly, there are a number of ways to determine competent judicial authorities to which the request should be addressed. Serbian Judicial Atlas which provides help in determining jurisdiction of national courts and public prosecution offices for the purpose of international legal assistance and cross-border co-operation is available here.
For any other assistance on this matter, please do not hesitate to contact directly EJN contact points.
Considering that MLA requests often require personal data information, please note that the Republic of Serbia, when dealing with MLA issues, ensures that other main tenets of international law as well as general principles of mutual assistance are respected, particularly regarding issues concerning human rights. Any information provided by Serbia to the requesting states based on MLA requests is to be treated as confidential by the requesting state and shall not be used for a purpose other than expressly stated in the MLA request.
A broad range of criminal offences and activities of organized criminal groups are becoming increasingly transnational and as such, criminal investigations require prosecutors, judiciary and the police to gather evidence beyond the borders of a particular state, which requires effective MLA co-operation.
As a candidate country for EU accession, the Republic of Serbia is currently in the harmonization process of domestic legislation with the EU Acquis and European standards, including provisions that regulate MLA. In Serbia, as in any other developing country, transnational organized crime represents a significant threat to the economic prosperity and social stability. Main challenges posed are the increasing mobility of offenders, their use of advanced technology and international banking services used in order to commit crimes.
In order to adequately respond to these challenges, Serbia has passed laws that allow provision of MLA to foreign jurisdictions and has committed to international treaties and bilateral agreements.
Providing international legal assistance in criminal matters in Serbia is carried out in accordance with national legislation and institutional framework. However, ratified international treaties and generally accepted rules of international law have primacy over national legislation. Article 16 (2) of the Constitution of the Republic of Serbia expressly states that the generally accepted rules of international law and ratified international treaties form an integral part of the legal system of the Republic of Serbia.
In case certain subject matters are not regulated under the above mentioned international treaties or bilateral agreements, MLA is provided in accordance with the domestic legislation, i.e. based on the Serbian Law on Mutual Legal Assistance in Criminal Matters of 2009 as well as by taking into account any relevant provisions of:
1. the Serbian Criminal Code;
2. the Law that regulates organization and jurisdiction of courts and public prosecutors and;
3. The Serbian Criminal Procedure Code.
According to the Act on Mutual Legal Assistance in Criminal Matters, Serbian law distinguishes and recognizes the following basic forms of mutual legal assistance in criminal matters:
1. Extradition of defendants or convicted persons;
2. Assumption and transfer of criminal prosecution;
3. Execution of criminal judgments;
4. Other forms of mutual assistance.
When requesting MLA from Serbia, the requesting party must indicate the legal basis and/ or reciprocity principle upon which such request is sought. Please note, regardless of the existence of international treaties or bilateral agreements, the requested State may have expressed reservations which limits the assistance that can be realistically provided. For example, some states have retained the right to refuse to provide judicial assistance in cases where the offense is already the subject of judicial investigation in the requested country. The main principle that should be followed is: one must always take into account the fact that the requested State will have to comply with their own domestic law and internal procedures, when deciding whether and to what extent the assistance sought can be generally accorded.