Ministry of Justice undermines legal order

“The way in which the adoption of amendments to the Criminal Code is taking place is a consequence of the situation that there is no dialogue in the society,” said Danilo Curcic, coordinator of the non-governmental organization A11 in his Istinomer interview. According to him “the initiative of the Foundation ‘Tijana Juric’ from the very beginning was not in line with constitutional guarantees of this country, and the Law should not be amended in this way, even if three million people signed in its favour.” For Curcic “The Ministry of Justice shows irresponsibility because it did not explain in a timely manner that this initiative could not be passed because the Constitution and the European Convention on Human Rights in fact prohibit inhuman and degrading punishment.”

Speaking about the Foundation, its founder, a few days ago, criticizing the ones who criticize these proposals, said that the state must decide whether it keeps the side of criminals or victims. Could it be in such a way that criminal law is perceived?

This country in fact does not in any way keep the side of the victims. Amendments to criminal law, which we now have the opportunity to see in the Assembly, do not mention in any single paragraph of any article being amended, in fact, the rights of victims. They do not say that victims should have more rights in criminal proceedings or that it is in fact necessary to protect the victims in a better way. Actually, in our legal system, as one colleague said, a person who was stolen a bicycle and a person who was raped have the same treatment in the criminal legal procedure.

How do you explain that?

By the fact that it is easier to deal with what is the known consequence of everything that happened by actually locking these people and throwing away the key, than actually open the question of why this happens, of prevention, early detection of potential criminals, the inevitability of punishment that is necessary. That is more important than prescribing a draconian sentence that has no place in our legal system because the Constitution does not allow it, and then we are allegedly dealing with the rights of the victims.

The proposers would respond to this by arguing that when it comes to crimes of child murder, child rape, these are not draconian penalties, i.e. that throwing away the key into the well is not inhuman treatment, because castration, for example, would be such?

Basically, in this situation, we have completely shifted focus to persuasion related to what is written in the Constitution and what the European Court of Human Rights states. The MPs of the ruling majority say that this is in accordance with the Constitution.

And what is inconsistent with the Constitution?

The inconsistency with the Constitution is that, according to the practice of the European Court of Human Rights which fully binds the Republic of Serbia according to Article 16 of the Constitution, we must interpret the provisions relating to the protection of human rights in accordance with the practice of international bodies dealing with protection of these rights. The European Court of Human Rights is one of those bodies and it says that those cases in which the convicted person is not entitled to hope that he will be released one day, that his resocialization will eventually happen, represent the violations of Article 3 of the European Convention on Human Rights which guarantees the prohibition of inhuman and degrading treatment. This is the same provision that exists in our Constitution in Article 25. So, even if we don’t take into consideration the European legal standards contained in the European Convention on Human Rights, Article 25 of the Constitution guarantees the prohibition of inhuman and degrading punishment. We can now play mental gymnastics and say that nobody will torture them in prison, which is actually an argument which not only is untrue, but also makes no point in discussing standards.

State Secretary of the Ministry of Justice commented that he does not really care even if we do violate the Convention on Human Rights; he said “so let us violate it” because they should be in prison and I believe that most citizens agree with that.

When they feel some kind of injustice in Serbia, most citizens also say “we will be heading all the way to Strasbourg”. If we do believe that Strasbourg will bring us some justice, when it comes to this matter, the very same Strasbourg told us, however hard it is to grasp, that these people have the right to being considered at some point whether they will get out of prison. Not to be released for sure, but only to be considered, only to be given hope that they will be released, when they pass through the procedure provided for by this institute of conditional release. If we have somehow accepted this completely, if we have internalized the question that we will be heading all the way to Strasbourg because Serbia violates our rights, let us then listen to what Strasbourg has to say in this very case.

How do you explain that instead of adhering to Strasbourg, to the Council of Europe, instead for the Ministry of Justice to be aware that we have also ratified the European Convention on Human Rights, we can hear messages from here that Dunja Mijatovic is hypocritical and rude, that they really do not care about what the Council of Europe says. Petar Petrovic, president of the Parliamentary Committee on the Judiciary, says it is a pity that we cannot impose the death penalty. What kind of path is this and what is our attitude towards the Council of Europe and respect for human rights?

We can tomorrow as a state agree to leave the membership of the Council of Europe. It is the decision of every country, whether it wants the membership or not. We had to adopt some standards the moment we agreed to be a member of the Council of Europe. As a society we have agreed to be based on some values – these values are the prohibition of inhuman and degrading punishment, the ban on the death penalty and all other issues that are actually guaranteed by the European Convention and the standards of the Council of Europe.

Are we turning aside all this in this way? Are we saying goodbye to the Council of Europe?

In fact, we are playing a kind of a game and it is likely that we count on the fact that the Council of Europe, if react at all, will react in about five or six years, in a potential case that will happen. In fact, we do not know if this will happen and if someone will actually reach the European Court of Human Rights, and in essence we are pandering to the emotions of the majority of public, we are pandering to thinking that is based on something that is much closer to intuition than attitudes of experts and what actually in criminal and legal terms should happen –a right that is completely stripped of emotions, which is agreed upon when a modern criminal law was established. It was understood that victims and those who feel most threatened cannot actually propose penalties, cannot write laws, they cannot decide what the sanction will be like.

The Minister of Justice explained that there is no need to have public debates, i.e. public discussions, because more than 160,000 people signed the initiative and that this was enough.

Following the same logic, I am sure that perhaps more people would sign a petition for the introduction of death penalty. We have data indicating that over 70% of Serbia’s citizens in fact support death penalty. Does that mean that we will then introduce the death penalty because people would sign such a petition? No, precisely because we agreed to put in our Constitution a ban on the death penalty and inhuman and degrading treatment.

But it seems we did not agree?

It seems that the ruling majority, that is, the ones being called upon to answer this question, as we got to this situation, actually realized that we can ignore it all, because in some way we will satisfy some narrative of the majority and the view of the majority that Serbia should deal with those who are monsters, i.e. those who commit the most serious crimes.

Are you saying that this is in the function of political marketing?

I do not see any other reason why there is a complete omission of the public debate which is in fact the obligation of the Ministry of Justice under Article 77 of the Law on State Administration. The discussion is not just good practice; it is the obligation of the Ministry of Justice in cases of amendments to laws which significantly affect the legal system.

Why is bad news that someone who committed a horrible crime of child murder and child mutilation will never return and will be locked up for the rest of their lives?

Bad news is because it suggests that we have agreed that certain individuals have no human rights. This opens up a very difficult question, which is, in fact, a dangerous situation. So, those to whom these provisions apply are no longer entitled to be applied human rights standards. Then the next question is who will be second, third, fourth or fifth group. In fact, it is now a completely open field for us to see who will be next to be deprived of the right to human rights, that is, the right to protection, which is prescribed by the Constitution, the European Convention on Human Rights and other documents.

You yourself said that this represents a postponement of the death penalty and regression. I also saw a comment by one of the female experts who rated it as a death penalty in instalments. What is retrograde regarding this?

This is regression in the sense that, when the death penalty was revoked in Serbia, we decided not to introduce a lifetime imprisonment sentence. If I’m not mistaken, in 2003 we revoked the death penalty and then actually imposed a sentence that is not a life sentence. In order for us some 16 or 17 years later, without any analysis of the effects of this punishment on those who received 30 to 40 years in prison, to introduce a lifetime imprisonment sentence which is essentially executed at the moment when the prisoner ceased his life. This is in fact a death penalty, a postponed death penalty, since he will never go out.

Unless being pardoned by the President?

This, according to data we have obtained from the General Secretariat of the President of the Republic of Serbia, has never happened since Toma Nikolic was the President. From that moment until now, there were 127 procedures where prisoners sentenced to more than 15 years sought pardon and did not receive it. The second issue, completely legal in nature, beyond the pardon itself, is that there is no legal remedy.

In public, the argument for this Law takes the example of Great Britain, which also has lifelong imprisonment.

The problem with Great Britain is that for years it has had a problem as regards meeting the obligations under Article 3 of the European Convention on Human Rights precisely because of the issue of life imprisonment without conditional release. I think it’s a good message we received from Professor Dirk Van Zyl Smit from the University of Nottingham, a global expert on life imprisonment, who says that Britain can hardly be an example to any country in Europe, primarily because of the historical circumstances, because it is a different legal system, and because Great Britain for years has had a problem with the issue of the respect of obligations under Article 3 of the European Convention on Human Rights.

If we go back a little, the petition was initiated by the foundation “Tijana Juric”, but these amendments to the Law were announced by President Vucic after the National Security Council session in January, when he said that draconian penalties would be imposed, that this would be state’s crackdown on mafia, and he referred to Austria and Germany. Also, the Director of Police used to announce that the Assembly would adopt all that. From the very beginning, everything has the reverse order?

It was announced by a government authority that does not have the constitutional authority to do so. The President of the Republic has no authority whatsoever to propose amendments to laws, to influence the content of the regulations that will be passed in the parliament. It turned out that the Ministry of Justice formed a working group, which we found out about from an article on the BBC portal, which managed to find out who the members of the working group are. There is no transparency in the working group’s work.

From what I can see in this BBC news report, there some representatives of the Supreme Court of Cassation and the Prosecution in the working group?

So, it is not disputable that the experts can have different opinions on a particular issue, it is not an issue at all. The second question is, in fact, how this working group decided on this issue of life imprisonment without conditional release. We do not know if a person from the Supreme Court of Cassation dealt with the issue of repeat offence or dealt with the question of prescribing the criminal offense of assaulting lawyers, or other issues, and that this issue essentially entered into a legal text in some other way.

Regardless of the political preferences of the proposers in the Ministry of Justice or the executive power, and even those in the working group, it is difficult to believe that they all do not know that it is a violation of the Convention, that it is a violation of the Constitution. Do you think that it is being consciously, deliberately done?

There is absolutely no other reason to say that this is not the case. I think it takes 10-15 seconds to check on Google the practice of the European Court of Human Rights in respect of life imprisonment and to get a brief report on what is the European Court’s practice and what are the standards. If the working group writing amendments to the Criminal Code is not aware of it, then it really borders with impossible.

To what extent do citizens have the right to influence decision-making including legislation? Citizens are our starting point, and this is a civic initiative and the state meets the needs of citizens. What is the limit not to cross?

The limit is only the Constitution, for which, in fact, again the citizens were asked when it was adopted. The limit is only the Constitution, i.e. those values that are incorporated in the Constitution of the Republic of Serbia which prescribes the prohibition of inhuman and degrading punishment. For example, there is the case of missing babies in Serbia.

It was published that some first evidence was found.

It appears from time to time, but the essence is that there is no investigation into that. It was discussed that the work of the prosecution should be “unblocked” regarding cases concerning the missing babies in Serbia. There was a working group that analysed the legal framework in Serbia and came to the conclusion that it was not possible to unblock the work in the judiciary because the statute of limitations of criminal prosecutions occurred. This is again a constitutional guarantee that prohibits the prosecution. No matter how much the general public was eager to determine what happened in those cases, this cannot be done precisely because the constitutional guarantees are such that they do not allow the opening of criminal proceedings in cases where the flow of time is such that the statute of limitations actually occurred.

In the last few years, as several children died in an awful and violent way, or because of illness, we personalize the laws, giving them the names of the children who died. Is this good practice?

It depends on the content of the regulation itself. Essentially, the laws can be called by names or in some other way, I think it’s not that significant. The important issue is that in all cases parents or family members had some sort of need to require the state to change the system because of what happened. The state responded in some cases, but it obviously did not respond in other ones. The problem is that in this case, initiated by the Foundation Tijana Juric, as far as we understand the terrible tragedy that happened, the whole emotional level, the responsible authorities would say thank you for the initiative, this initiative is very important and we will use the maximum from what you have submitted to improve the victim protection system, finding the perpetrator, prevention and everything else, which would actually affect the protection of children, and not accept the initiative, which is known in advance as not being in accordance with the constitutional guarantees of this country.

Do you have the impression that the political top of the ruling party, i.e. the Ministry of Justice, is hiding behind this man, who undoubtedly survived a terrible tragedy, and that he was let out to fight the public instead of them?

If you look at who was actually speaking in the public in the last month about the initiative and defended the views that the initiative is not contrary to the Constitution, these were the representatives of the Foundation Tijana Juric, except in one case, where it was the State Secretary of the Ministry of Justice, who became known for the statement that he really did not care about the Council of Europe. So, the Ministry did not act responsibly in this whole case, and ultimately they were supposed to say – we accept the initiative, and now we will defend it because the citizens finished their part of the work the moment they collected a certain number of signatures.

That means that we can collect 170,000 signatures and advocate that the sentence be a guillotine or hanging on Terazije and that the state could please us, because this would be politically…

Following the same logic, the state would have to go in the same way in any other area. To collect 200,000 signatures and demand that it rained every day or that every day was called Tuesday, the state would then have to do it with the same logic. If the number of signatures is the issue on which initiatives and proposals for amending laws are actually based, then we do not need experts, we do not need anything, we will only collect signatures and change the regulations, we ultimately do not need the Assembly.

Speaking of experts, a petition was launched by them, but what is really intimidating is the attack on judge Majic after his appearance in “Utisak nedelje”. The Minister of Justice, the Speaker of the Assembly, the deputy head of the SNS, have uttered frightening assessments of the judge of the Appellate Court because he said what he thinks. It is impossible for the Minister of Justice not to know what the attack on the judge means, isn’t it?

Finally, it seems to me that what happened to judge Majic and the attack on him are in fact a signal to the Constitutional Court how to act when the initiative comes to the agenda. The initiative will be filed on the first day of the entry into force of the Law, and then we can expect that the ruling majority, or Martinovic, or anyone else will comment on the verdict or decision of the Constitutional Court if the Constitutional Court determines what we are talking about all this time – that this is all contrary to constitutional guarantees.

When we talk about initiatives, another initiative is now being launched – the initiative of parents who are concerned about their children being surrounded by drug dealers in school yards. This is all related to the recent initiative of one let’s call it a non-governmental organization, about the introduction of civil patrols. Can the signatures of citizens and parents bring, despite expert explanations, the formation of civil patrols?

In fact, this case of introducing a life sentence without conditional release actually teaches us that this is also possible now, that there are no more problems about it. Citizens will now submit different initiatives and the authorities will accept them in accordance with their views and in relation to the proposal itself. We no longer need any kind of expertise, we no longer need to talk about what kind of solutions we want, but it is enough to collect a certain number of signatures and then actually introduce whatever decision we want, whatever regulation we want to exist in the country.

What is the consequence of this to the system, to the legal system, to various systems within the state?

The consequence is that the institutions that managed to remain standing to a small extent, are actually completely marginalized. In this case, we do not have the opinion of experts, in this case we do not have the position of the Supreme Court of Cassation, in this case, we do not have the opinion of the Ombudsman on the draft law on amendments to the Criminal Code, although he could do it by law and announced it, as far as I recall, in one show. Somehow those who are against such initiatives, in line with all that happened to judge Majic, are marginalized in order to satisfy a populist demand placed in the context of protecting children in front of schools or protecting children through the fact that someone else will be in prison for the rest of their lives and the like.

Everyone who criticized this initiative is actually placed in the context of someone who supports the crime, who supports pedophilia, who supports rape, who will support drug dealers, etc.

The state is more powerful than them, said the head of the SNS parliamentary club. Today, we heard something that borders with the threat to the judge of the Appellate Court – that the state is more powerful than judge Majic and all who stand behind him. What does this mean? Will judge Majic be arrested today because he said something or will he bear some other consequence because he said that – we do not know.

It is also said that the opposition, which is not in the assembly hall, is undermining the legal order?

Those who are to adopt such a law undermine the legal order because they are to adopt a law that is absolutely inconsistent with the Constitution and that may not be passed by the Constitutional Court. There is no theoretical possibility that this law survives in this form after the initiative that will be submitted to the Constitutional Court.

A lot of people from the opposition supported this initiative with their signatures; are they being subject, in fact, to populism, and is the opposition itself, or at least its largest part, not ready to defend the standards of the Council of Europe that are embedded in the Constitution?

This is some general impression. In fact, things do not differ a lot depending on who has the majority in the Assembly. We had the opportunity to hear the MP Milojicic who said that he would vote for it because he is a parent, and then he withdrew. But in any case, only a few of the opposition MPs in fact somehow mustered up the courage and strength to say – “this is not in accordance with the Constitution, do not vote for this”; are the reasons for that because the opposition is in every way marginalized and it somehow does not want to get additional negative points from citizens.

And maybe they have a problem with the fact that the initiator really survived a terrible tragedy and that this whole debate is more than torturous?

Yes, we are now here in a situation that we are to oppose someone who has lost his daughter, the victim of a terrible crime, and that every next sentence makes us amiss for any kind of meaningful debate. Because somehow, everyone who stated their views is against the victim, against Tijana, against Mr. Juric, and so on. It’s not the point at all. Nobody here is against it at the personal level, in fact, we are against the principle that laws, which are in violation of the standards that are applicable here, are adopted and that to some people, however difficult it is to grasp that these are the people to whom rights belong as to everyone else, are denied protection guaranteed by human rights.

There were a lot of dilemmas, partly explained, but not fully, about the introduction of life imprisonment without the possibility of conditional release for the most serious crimes other than those proposed by the Foundation. Acts of terrorism, attack on the constitutional order, murder of a state official. The dilemma is whether this is done by automatism or with political intent?

It would be unreasonable to have a sentence of 30 to 40 years and simultaneously a sentence of life imprisonment, and at the same time a sentence of lifelong imprisonment without the possibility of conditional release. In this regard, this is some sort of harmonization with the replacement of the most severe sentence which existed in the legal system with a life sentence. What is a serious problem, and it seems to me that somehow it falls out of focus, is the fact that we are no longer talking about the sentence of lifelong imprisonment as such. So, we no longer talk about whether or not we need it, although in 2015, for example, the Supreme Court of Cassation took the stand that we do not need it, because we do not know the effects of the 30 to 40 year sentence. So, we do not know how this affects the reduction of crimes, the repeat offence and all this and the discussion is no longer held about whether we need a sentence of life imprisonment, but we only focus on this issue of life imprisonment without the possibility of a conditional release. So, in any case, our new reality is life imprisonment, which is probably never to be excluded from the legal system in Serbia, and then we will see what happens to this other issue of conditional release.

Is it illogical that, for example, there is no conditional release for the mentioned criminal offenses, and there is conditional release, as far as I understand, for the “crime of crimes” – genocide?

Yes, yes, the issue that, I think, Professor Ilic, the former judge of the Constitutional Court mentioned is that in the case of genocide as a “crime of crimes”, there is a possibility of conditional release after 27 years of imprisonment, but – without any intention to compare the tragedies here, but humanity actually realized that genocide is a crime of crimes – for other crimes it does not exist. Genocide is the most horrible crime that can be committed in the world; in those cases you will have the possibility of someone being entitled to conditional release, while in the cases initiated by the Foundation Tijana Juric that does not exist. Actually on the one hand, this is not logical, and on the other hand the question arise, how this Law is actually nomotechnically resolved. And the Law has many problems, which are not only related to this issue, but actually also for many others.

I think that the lawyer Ivan Jankovic as well mentioned the likelihood that the state will probably pay damages due to solutions in this Law, because citizens will appeal to the Strasbourg court.

Ultimately, this will also partly become a burden of the people who signed the petition, because it was not initially explained to them what this petition implied. In this sense, it seems to me that it would have been much more beneficial if the initiative of the Foundation Tijana Juric had begun to collect signatures only after an expert debate about what is actually possible in the legal system in Serbia. However, we took the reverse order. Signatures have been collected, and now we are trying to “cloak” it all up into a legal framework, stating that it is not a matter of inhuman or degrading punishment, or that it is not inconsistent with the Constitution of the Republic of Serbia.