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FREE LAW JOURNAL - VOLUME 1, NUMBER 1 (18 JULY 2005)
By appliance a security measure (article 69, The Basic Criminal Code and aerticle 75, The Criminal Code
of the Republic of Montenegro) , the objects which are in the possession of perpetrator of criminal act can
be confiscated. It is quite understandable because a criminal sanction should effect the perpetrator himself
as he committed a criminal act. Besides, there are law prescribed cases when it is possible, by appliance a
security measure, to confiscate the objects even when they are not in his possession. Such an opportunity
is preciselu defined by regulation of article 62, paragraph 2, of The Basic Criminal Code and article 75,
paragraph 2 of The Criminal Code of the Republic of Montenegro it is a matter of general security or
morality reasons but even in that case, the third person's right on compensation from the perpetrator of a
criminal act has not been touched. In this case, the appliance of a security measure has got extremely
preventive character because it prevents committing criminal acts in future : but, in criminal-law theory,
there is a reasonable question of judification of such a confiscation the object as the form of criminal
sanction when the person did not participate in committing a criminal act at all or who obtained the object
in question in some other legal way (but not by committing a criminal act).
Generally speaking, the pronouncing a security measure of confiscating the objects is of facultative
character. It means that such a form of criminal sanction is pronounced by court' opinion when legally
prescribed conditions are fulfiled to a concrete case, taking into consideration the aim of prescribing and
pronouncing criminal sanctions at all. The court , by rule, on the basis of all subjective and objective
circumstances in a connection with committed criminal act and its perpetrator, has decided to pronounce
a security measure from article 69, The Basic Criminal Code and article 75, The Criminal Code of the
Republic of Montenegro. Besides this legal possibility, it is specially prescribed that the court must
pronounce a security measure in a concrete case, if, of course, legally prescribed conditions are fulfiled. It
that case, the court cannot decide independently but must pronounce it.
In that sense, the decision of Federal Court (the regulations of special part of criminal law, by which it is
prescribed that the objects will be confiscated for certain criminal acts) represents the realization of the
regulations of general part of criminal code, so they cannot be independently applied 22 . The court can
pronounce a security measure of confiscation the objects in two ways : by decision of criminal matter
(sentence or decision) or by special decision. As a rule, the court decides to apply a security measure in a
decision by which the court meritoriosly deals with a criminal matter. In that sense it is the principle of
court practice in Serbia and Montenegro. The security measure of confiscation the objects is one of
criminal sanctions but when it is missed by a sentence after the time of absolute expiry for a criminal act
the defended was pronounced guilty, the court cannot pronounce it even by additional decision according
to regulation of article 500, paragraph 3, of The Code of Criminal Proceedings.
Therefore, a special decision about pronouncing a security measure of confiscating the objects, the court
can decide only in outstanding circumstances and only in two cases : 1) when it is missed by the sentence
the defended was pronounced guilty and 2) when the procedure is ended in front of some other body or it
is dismissed. When the procedure, by which the defended is pronounced guilty, is effectively ended, the
decision about confiscating the objects according to article 69, The Basic Criminal Code or article 75, The
Criminal Code of the Republic of Montenegro can be pronounced by a council from article 23, paragraph
6, of The Code of Criminal Proceedings, even additionally when such a decision was missed.
The pronounced security measure of confiscating the objects is accordance with the regulation of article
212, of The Law of permorming Criminal Sanctions is in the charge of court which has pronounced that
22 Presuda Saveznog suda Kž. 12/78 od 31. maj 1978. godine
DR. DRAGAN JOVASEVIC - THE SYSTEM OF PROPERTY CRIMINAL SANCTIONS IN CRIMINAL LAW OF SERBIA AND MONTENEGRO
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