HLC submits comments to draft criminal justice legislation

HLC submits comments to draft criminal justice legislation

Saopštenje - 3The proposed amendments would lead to a backsliding in standards, instead of improving the legal framework

The Humanitarian Law Center (HLC) has today submitted to the Ministry of Justice of the Republic of Serbia its comments on the text of the Draft Law on Amendments to the Criminal Procedure Code(CPC) and on the Draft Law on the Amendments to the Criminal Code (CC).

After pointing out that one month’s timeframe for public consultations is unduly short, the HLC would like to emphasise that the proposed amendments to the two organic criminal laws not only fail to contribute to the improvement of criminal legislation, but actually undermine the standards achieved standards.

On 12 May 2021, the Ministry of Justice established the working groups to amend the CPC and CC. The public was informed of their activities for the first time on 26 September of 2024, when a call for public consultations was announced. After three years of non-transparent work by the working groups, the Ministry left only one month for public debate on the two systemic penal laws. This is unacceptable. During this time, it has been practically impossible to become familiar with all the proposed amendments, analyse their implications and offer adequate solutions.

The Humanitarian Law Center calls attention to the fact that the proposed amendments to the CC include conspicuous repressive tendencies. As regards the CPC, the proposed amendments are of such size and nature that it is debatable whether this law should be amended at all, but rather, whether it might be more meaningful to pass a new law altogether.

The proposed amendments to the CPC not only fail to improve the position of injured parties and witnesses to proceedings, but in the case of certain proposals, seriously undermine their position still further. The proposal to introduce an appeal against the decision on granting the status of especially sensitive witness, particularly if taking into account victims of sexual violence and domestic violence, jeopardises the position of an extremely vulnerable witness. The amendments deny the protection guaranteed by the existing provisions, and make way for additional intimidation of witnesses by retracting the decision to provide protection in the first place.

It is necessary to introduce a provision stipulating the protection of injured parties and witnesses to the proceedings in relation to sexual freedoms, by not allowing interrogation on their previous sexual life and by preventing the use of consent as means of defence in procedures against criminal offences committed against the values protected by international law. In addition to this, injured parties should also be enabled to propose court expertise along with other parties. The negative practice up to now in deciding on reparation claims has demonstrated that injured parties should be allowed to appeal against the judgment in the part related to reparation claims. Additionally, prosecutors and courts need to be obliged to request that the police provide protection to injured parties and witnesses.

Regarding the proposed amendments to the CC, it is evident that the proponents were guided by penal populism. The number of criminal offences liable to a life sentence has visibly risen, but it is also obvious that the lawmaker has not justified the proposed arrangements with any facts that would corroborate the effectiveness of such a decision.

The lack of improvement in protection is also made obvious by the retention of the same definition of rape, whereby the perpetration of the criminal offence is necessarily conditioned by the use of force, not the lack of consent. This indicates, with its recourse to the populist introduction of the life sentence for the same offence, a deviation from the obligation to align to the Istanbul Convention and international standards.

In addition, the HLC deems unacceptable the proposed amendments related to the introduction of the repressive criminal offence “Publication of material advising the perpetration of a criminal offence“, as well as the decriminalisation of abuse in public procurement with contracts of a value of up to five million dinars. Finally, the HLC finds the proposed deletion of the criminal offence of extorting statements irresponsible and, consequently, hazardous.

Bearing in mind all the above, the HLC demands that the Ministry of Justice extend the timeframe for public consultations, in order to better consider any repercussions the proposed amendments might have. Owing to the short period available for public debate, the professional public and civil society are being forced to focus solely on the adverse nature of the proposed amendments, which does not leave any time for discussing how these two organic laws could be amended in a way which would genuinely improve criminal justice protection.

Share