The severest punishment in Criminal Code of the Republic of Serbia in the period between 17 November 2001 and 9 March 2002

The most important principle of the Criminal Law is definitely the principle of legality. It is necessary to emphasize that the principle of legality also includes the obligatory legislative regulation of general terms for applying criminal sanctions. This principle is applied when related to those institutes of the general part which define the existence of the criminal offence, and also to those provisions of the general part which enable or exclude the application of a specific criminal sanction. In Serbia, until 17 November 2001 the Criminal Code of The Federal Republic of Yugoslavia was in force and it prescribed that general provisions of that law are applied to all criminal offences defined in federal laws and the laws of the republics. It also determined that for criminal offences, criminal offenders can be pronounced a death penalty, if prescribed by the law of the republic, as well as imprisonment sentence and fine. The imprisonment sentence could not be shorter than 15 days, nor longer than 15 years, with the exceptional 20 year imprisonment for the most serious criminal offences. Criminal Code of The Republic of Serbia was also in force at the time and it defined conditions for prescribing, pronouncing and executing death penalty, prescribing it only for murder in Article 47 Paragraph 2 (aggravated murder) and for grave cases of grand larceny and robbery from Article 169 Paragraph 2. The Law on Amendments and Supplements to the Criminal Code of Republic of Serbia published on 11 November 2001 deletes death penalty from the register of criminal offences, and from that day on either imprisonment sentence or fine can be pronounced to criminal offenders. From 9 March 2002 Criminal Code of Republic of Serbia did not predict a 40 year imprisonment for any criminal offence, whereas for criminal offences of aggravated murder and grave cases of grand larceny and robbery a prescribed punishment is minimum 10 years, which means 10 to 15 years, or death penalty. Since the provisions in the general part of the federal law do not allow pronouncement of death penalty, it is evident that in that period the severest punishment that could be pronounced to a perpetrator of these two criminal offences was the imprisonment sentence of 15 years. Bearing in mind that these two criminal offences are some of the most serious ones and have always been followed by the severest punishment, the fact that in this period the pronounced sentence is only 15 years is an argument in favor of the thesis of a serious omission of the legislator. However, the principle of legality, the most important principle of criminal law, as well as its other principles do not allow courts to correct mistakes of the legislator under any excuse or for any 'higher' interests. Even if it is a mistake, there is an irrefutable assumption in the criminal law that the legislator wanted to prescribe exactly the way he did at the moment of writing.