The Belgrade Centre for Human Rights and the Centre for Anti-War Action express their grave concern with respect to specific amendments of the judicial and criminal laws currently debated by the National Assembly of the Republic of Serbia.As a member of the Council of Europe, our country is obliged to abide by European human rights standards and take them into consideration when drafting and adopting laws and thus reducing chances of being found in violation of human rights by the ECtHR.
The provisions in the amendments to the Act on Jurisdiction and Organisation of State Bodies in Suppressing Organised Crime and the Criminal Code of the FRY give rise to great concern. The proposed amendments foresee “preventive” custody of people on the basis of a decision by an internal affairs body (including Minister of Police) or the state prosecutor (Art. 15 v-z). This provision is in contravention of the ECHR and the Serbia and Montenegro Human and Minority Rights Charter. Such decisions cannot be taken by the police or prosecutor, but only by the court (investigating judge); appeals of such decisions cannot be reviewed by the prosecutor or an administrative body, but by the court.
The draft amendments to the FRY Criminal Code (Arts 3-5) re-establish confiscation as a penalty in national criminal legislation. Confiscation of all property was a notorious tool of the political and class struggle era and, as such, has no place in today’s criminal or penal policy. Criminal legislation, including national criminal law (Chapter VII of the CC of Yugoslavia) provide for the confiscation of proceeds of crime and thus prevents those found guilty of the crime from also gaining material benefits from the crime. Under international standards, the confiscation of property is justified only when such confiscation is proportionate to the goal to be achieved. Public interest is protected in a justifiable and proportionate manner by confiscating property acquired through the commission of a crime.
Under the UN Convention against Trans-National Organised Crime, a state is obliged to provide for confiscation but only of proceeds from crimes with elements of organised crime or proceeds transformed into another form of property, as well as of property or instrumentalities used in or destined to be used for the commission of crimes with elements of organised crime (Art. 12). The general provision in the draft amendments to the Criminal Code of Yugoslavia is much broader and allows for the confiscation of all property, including the one gained by licit means.
Proposed Articles 6 and 8 abolish the general maximum penalty of imprisonment. For over half a century, no one in our country could have been sentenced to more than 15 years of prison, whilst the death sentence could have been modified to 20 years’ imprisonment. When capital punishment was abolished, a 40-year prison sentence was the maximum penalty for the gravest crimes, but still, no one could be sentenced to more than 15 and less than 40 years in jail. The amendments provide for convicting a person found guilty of more than one crime to a cumulative jail sentence of over one hundred years. Amending such an important criminal legal institute such as the maximum prison sentence should not be undertaken during a state of emergency.
Draft amendments to the Act on the Public Prosecutor’s Office and the Act on the High Judicial Council deviate from the principle of the division of power. The High Judicial Council will, inter alia, have no powers with respect to the election and dismissal of the Republican Public Prosecutor and his/her deputies as the amendments transfer these powers to the Government. Also, under the amendments, deputy public prosecutors shall no longer be appointed to life tenures but to eight-year terms in office. Under the amendments, the Government is to nominate the Republican Public Prosecutor and appoint his/her deputies. It shall also be empowered to review appeals of decisions to suspend and dismiss them.
Belgrade Centre for Human Rights
Centre for Anti-War Action
