While the debate on changes to the penal code focuses on the emotive issue of life sentences for child killers, the authorities are busy smuggling in a raft of other changes that will seriously limit the liberty of Serbia’s courts.
So, if someone has been convicted of tax evasion, and in the next five years he or she commits a traffic offence, although these crimes are not related and do not imply any real inclination to crime, he or she will have to suffer a more severe sanction without the possibility of the judge taking into account aggravating circumstances to impose a sentence that he or she considers appropriate.
Sanctions are even tougher if someone has been sentenced twice within the last five years, resembling America’s “three strikes” law.
Tightening control over penal policy goes even further, however. Judges will not be allowed to pronounce conditional sentences for crimes with an imposed penalty of eight years or more – the limit in the current criminal code is 10 years.
Severe penalties are prescribed for abuse and torture, domestic violence, tax evasion, killing and abusing animals, preventing an official from performing an official act, attacking an official person in the exercise of their official duty, participation in a group that prevents an official from performing official actions and violent behaviour at sports events or public gatherings.
Observing these crimes, some may think it is right and necessary to send a strong message that violence will not be tolerated in society, and that harsh sanctions will fulfill this purpose.
In reality, the policy of sharpening sentences is merely populism. Significantly, according to the national Bureau of Statistics, some 193 cases of torture and killing of animals were reported in Serbia in 2017. The perpetrators were found in 96 cases.
Of that number, 25 had to give something to charity or perform some hours of community service. Only 17 were convicted. So, out of 193 reported crimes, we reached 17 convictions.
From that example we can see that sanctions are not the real problem. The problem is the willingness and capacity to investigate and prosecute. Also, while sanctions will now become higher, no corresponding measures have been taken to build up the capacity of prosecutors or the police.
While we seem convinced that more criminals will end up behind bars, on the other hand, the Justice Ministry has explained in its Law proposal that no additional funding from the budget will be required or set aside to implement the criminal code amendments.
Faced with criticism of its proposals, the Ministry of Justice has justified its decision to wreak havoc with the rule of law and the entire criminal code with the submission to parliament of 158,000 signatures, guided by the Tijana Juric Foundation, set up in memory of the Serbian teen brutally murdered in 2014.
But the foundation’s proposal referred only to life sentences for murderers of children and pregnant women – not to life imprisonment for crimes against constitutional or public order, for which this punishment has also been prescribed.
Considering that 56 per cent of the population in Serbia support capital punishment, according to surveys, what is to be expected next? Is Serbia going to legalize torture and the inhumane treatment of prisoners because the majority wants it?
Serbia is obliged to change its constitution for the purposes of Chapter 23 in its EU accession process. But strong opposition to drafted constitutional amendments by almost all legal professionals can easily be overruled by the mandatory referendum on the process of constitutional changes.
This obviously populist decision on life terms has been made to increase trust in, and the credibility of, the Ministry of Justice, to create room for future manipulation of a referendum on constitutional amendments.
To conclude, behind the changes to criminal law stands a far more dangerous constitutional change, which, instead of creating a more independent judiciary, will further subordinate judges and prosecutors to executive power.
People in Serbia should remember that, without an independent judiciary, and with such strict criminal sanctions, no citizen can be sure that their basic human rights will in future be respected.
Milena Vasic is an attorney-at-law within the Lawyers’ Committee for Human Rights – YUCOM