Serbian public had been given a mere month to get acquainted with the proposed changes to the Criminal code and submit objections and suggestions.
Legal expert associations cried out that a public discussion on the vast changes proposed should last at least until the end of December, especially given the fact that public discussion on four other closely related laws – Draft Law on the Judicial Academy, amendments to the Law on Judges, amendments to the Law on Public Prosecution as well as the amendments to the Law on Criminal Procedure – has been opened at the same time. The Ministry of Justice reacted by stating that the citizens should have thanked them for not having less time to discuss.
This episode alone is illustrative of the overall relation of the state towards independent expert organisations and civil society when it comes to the changes in the legal system. Legal experts have been warning for years that the prosecution and the judiciary are being increasingly abused to serve the interests of the ruling party. Coupled with the rising state violence against those who opposed the Jadar Project some of the proposed changes seemed ominous.
Activists and legal associations in fact pointed out that the proposed Amendments to the Criminal code would effectively criminalise all citizens’ insubordinate online activities and decriminalise police brutality – just as another wave of protests is expected.
“Publication of materials that advise the commission of a criminal offense”: Could you be guilty for reading a Facebook post?
The Ministry of Justice proposed the recognition of a new criminal act called the Publication of materials that advise the commission of a criminal offense. As stated in the text of Article 343a: (1) Whoever, through the means of information technology or in another way, makes available material containing information to which advice is given in order to commit a criminal offense, shall be punished by imprisonment from three months to three years. (2) The punishment referred to in paragraph 1 of this article shall also be imposed on a person who mediates the access to materials referred to in paragraph 1 of this article. (3) Whoever knowingly accesses the material referred to in paragraph 1 of this article by means of information technology shall be punished by a fine or imprisonment of up to one year. (4) Material referred to in paragraph 1 of this article is considered to be any material that audibly or visually contains instructions or advice for the use of means of committing a criminal offense or objects resulting from the commission of a criminal offense.
“What is ‘advice or instruction’ information? Who is the ‘mediator’ in that context? What is ‘any material containing instructions and advice’? What is ‘conscious access’ to the material?”, asked the ex-commissioner for information of public importance of the Republic of Serbia, Rodoljub Šabić, in a statement for Mašina. As he added: “Would publishing on the Internet and ‘consciously reading’ a court verdict in which the explanation describes a specific way of committing a criminal offense fit into the acts of committing the offense defined in this way? Can the same be said for novels, for example? Edgar Allan Poe or Agatha Christie?”
Given that a large number of those who took part in the blockade of the railway traffic during an anti-Rio Tinto protest in August have been accused of an attempt of a violent overthrow of the constitutional order, should we assume that everybody who calls for a traffic blockade could in the future found themselves suspected of this new crime, and possibly charged for it, asked Milena Vasić, a lawyer at the Lawyers’ Committee for Human Rights – Yucom, in a statement for Mašina.
Extortion of testimony could have been deleted from the Criminal code
Another amendment that caught the public’s eye – and sent shivers down their spines – was the proposed deletion of the article Extortion of testimony. The proposer justified the deletion with a stance that the same act was contained in the provisions of another article, thus being redundant. The experts and the civil society begged to differ. Šabić pointed out that the other article might only be applicable if illegal means caused “great pain or severe suffering”: “This could lead to the conclusion that the use of illegal means by an official in order to extort a statement if they do not cause ‘great pain or severe suffering’ is no longer criminalized”.
Vasić added that the Ministry of Justice stated that the deletion was proposed in order to comply with the recommendation of the UN Committee for the Prevention of Torture. In her opinion, such justification was technically correct – but problematic. “It is a question of partial application of international standards, which causes suspicion”, commented Vasić for Mašina.
One of the problems lawyers from Yucom saw with this amendment was the fact that all ongoing cases of police violence might be stopped if the problematic changes went into effect.
Serbian Association of Free and Independent Trade Unions commented that “abolishing the extortion of evidence as a criminal offense represents an attack on the foundations of legal security of citizens and opens the possibility for numerous abuses”. Overall, they saw some of the proposed changes as an encroachment on the core of civil rights and the basic postulates of the legal system.
No penalty for child pornography – but no penalty to those who abuse “cheap” public procurement, too
The civil society criticised other articles too. As Vasić pointed out, “The draft failed to intervene in criminal offenses against the environment, which would be required by the current political situation and the new directive of the European Union, which expresses the need to comply with regulations at that level”. Additionally, the legislator ignored the initiative to sanction femicide as a separate crime, together with the initiative to sanction the publication of sexually explicit content that was created by the abuse of trust, i.e. what we colloquially call ‘revenge pornography’ – thus ignoring years of suggestions and campaigns of feminist organisations.
What it did offer was an easy way out for those who abused public procurement, as long as the value of the procurement didn’t exceed five million dinars. It also advised heavier punishments for some cases of homicide and rape, which legal experts found to be a populist measure with no legal sense.
36.000 people signed the petition against the Draft Law
As the public debate was approaching its end, two petitions were launched: one by the environmentalist Eko straža movement, and the other by Kreni-Promeni. The Kreni-Promeni movement, whose members also took part in the protests against Jadar Project in 2021, has quite a wide reach thanks to the numerous petitions it has been launching over the years. This time it acquired close to 20.000 signatures in less than 24 hours and managed to submit as much as 34.000 to the Ministry of Justice just before the last session of the public debate, on 30th of October. Meanwhile, other actors have been trying to draw some attention of the international community to the fact that the political and freedom of expression in Serbia have come under an unprecedented attack.
The joint efforts obviously worked: Maja Popović, the head of the Ministry of Justice, used the chance of giving the introductory speech to the last session on the Draft Law, on Wednesday, to state that the Ministry will adapt the two most problematic articles. She pointed out that the new criminal offense caused controversy and that it will be specified by referring to specific criminal offenses: paedophilia, terrorism, murder, and forgery of documents and money. As for extortion, it will be kept in the Criminal code in its existing mode.
Citizens and activists didn’t have much time to celebrate this “victory”. On the one hand, everybody is expecting the next government’s attempt to push for amendments to the Law on Internal Affairs; twice successfully stopped by the civil society, this Draft Law aims to allow mass electronic surveillance, further centralise the police, and allow for more police brutality. And in the meantime, the government decided to dismantle a functional bridge in Belgrade, privatise the remaining communal enterprises and, of course, continue to push for the realisation of extractivist projects such as the lithium mine in the Jadar Valley. As the authorities would say “There’s much yet to be done, for those willing to work”.
