The Humanitarian Law Center (HLC) points out that the new amendments to the Criminal Code of the Republic of Serbia, particularly in two provisions, introduce repressive measures against political engagement and criticism of the government. Furthermore, the introduction of the new criminal offense of sexual intercourse without consent, in addition to the existing criminal offense of rape, enables arbitrary legal qualification of the offense, granting the convicted person privileges depending on which offense they are prosecuted under.
The Government and the Ministry of Justice of the Republic of Serbia had previously, during the last amendments to the Criminal Code in 2024, also proposed repressive changes, but withdrew them after strong criticism from the legal community and civil society organizations.
1. New Criminal Offense: Publication of Materials Advising the Commission of Criminal Acts
Although the current Criminal Code (Article 35) already prescribes punishment for anyone who intentionally assists in the commission of a criminal offense — including through advice or instructions — the new amendments allegedly clarify that the incrimination does not apply to all criminal offenses. Instead, by listing categories of crimes to which it does apply — murder and aggravated murder, sexual offenses, counterfeiting money, unauthorized production and distribution of narcotics, criminal offenses against the constitutional order and security of the Republic of Serbia, forgery of documents, and crimes against humanity and other goods protected by international law — the amendments actually introduce new criminal offenses that open the door to serious abuses and human rights violations.
Under the new Article 343a — Publication of Materials Advising the Commission of a Criminal Offense — anyone who “by means of information technology or otherwise makes available material containing information that provides advice for the commission of a criminal offense” may be sentenced to up to three years in prison. The same penalty applies to “a person who mediates access to such material,” and even “a person who knowingly accesses such material using information technology” would be subject to punishment. The definition of “material” is any “material that, in audio or visual form, contains instructions or advice.”
The HLC emphasizes that it is completely unclear what could be considered “material containing instructions or advice for the commission of a criminal offense.” In this regard, Rodoljub Šabić, the first Commissioner for Information of Public Importance, warns: “Does, for example, a court judgment in which the reasoning describes in detail the manner of committing a criminal offense, or crime novels and stories, or even sharing someone’s post, qualify as such ‘material’?”
At a common-sense level, it is also questionable how it can be envisaged that merely reading or listening to a text could constitute committing a criminal offense.
Given the current social situation, with numerous cases of requalification of misdemeanors against public order and peace into criminal offenses against the constitutional order and security of Serbia, the HLC warns that this new criminal offense could be used to intimidate citizens who, via social networks, call for or give instructions regarding protests, those who share such posts, or even those who merely read them — and that it could also be used for the criminal prosecution of political opponents.
2. Amendment to Article 90: Endangering Traffic with Dangerous Means or Actions
The HLC also points to the amendment of Article 90 of the Criminal Code, which proposes the introduction of the offense endangering traffic with dangerous means or actions. This provision could be used against students and citizens who participate in road blockades, which began after the deaths of 16 people under the collapsed roof of the Novi Sad Railway Station. Under this amendment, any interruption of traffic could fall under the category of a criminal offense — including nonviolent traffic blockades which, under international standards, are considered an exercise of the right to peaceful assembly.
3. New Offense: Sexual Intercourse Without Consent
The HLC further emphasizes that the introduction of the new criminal offense sexual intercourse without consent (punishable by three to fifteen years of imprisonment), in addition to the existing offense of rape (with an increased penalty ranging from five years to life imprisonment), enables arbitrary legal qualification of the offense. The choice of qualification determines whether a milder or harsher penalty is imposed, and also affects the possibility of conditional release.
