Belgrade Centre for Human Rights alarms the public on the problems that can be caused by conducting court hearings using technical means of transmitting sound and images (Skype) in light of the absolute prohibition of torture, inhuman or degrading treatment or punishment. According to the Centre, conducting hearings using technical means of transmitting sound and images would erode guarantees for protection against ill-treatment arising from Article 25 of the Constitution of the Republic of Serbia and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which are of non-derogable nature.

A defendant who has been a victim of ill-treatment and who is during the hearing under control by officers who ill-treated him or are in a close hierarchical or organizational relationship with the perpetrators, may be discouraged from disclosing allegations of ill-treatment to the court. Furthermore, the situation whereby the defendant does not make a personal contact with his defence counsel but rather communicates through technical means of transmitting sound and images, as requested by the Protector of Citizens in a recently issued opinion, would significantly contribute to the discouragement of the defendant to bring out the ill-treatment allegations.

Moreover, according to the European Court of Human Rights’ case-law, even when strictly speaking no complaint of ill-treatment has been made, an investigation must be initiated if there are sufficiently clear indications that ill-treatment occurred, i. e. bruises and injuries on the defendant’s body (Stanimirovic v. Serbia, App. no. 26088/06, Judgment of 18 October 2011, § 39). In this respect, the possibility of a judge to notice injuries into the defendant’s body during the hearing, in which the defendant is present only via technical means of transmitting sound and image, is questionable. In some cases, European Court of Human Rights took into consideration such possibility of the judge during the hearing when examining the violation of the material aspect of Article 3 of the Convention (Almaši v. Serbia, App. no. 21388/15, Judgment of 8 October 2019, § 82).

Since the state of emergency was declared in Serbia on 15 March 2020, Belgrade Centre for Human Rights filed three criminal charges against police officers on suspicion of committing torture and ill-treatment (Article 137 of the Criminal Code) by using unjustified force against citizens who violated the prohibition of movement.

The Belgrade Centre for Human Rights (BCHR) hereby alerts the Serbian Government to the detrimental effects of the regulations enacted during the state of emergency and providing for the imposition of misdemeanour penalties against individuals violating the Order Restricting and Prohibiting the Movement of Individuals in the Territory of the Republic of Serbia (hereinafter: Order).

To recall, BCHR is of the view that the Order is unconstitutional, because it does not constitute valid grounds for derogations from constitutionally guaranteed human and minority rights (notably, the right to liberty and security of person and the freedom of movement) and that the Decree on Misdemeanour Violations of that Order provides for violations of the ne bis in idem principle. It therefore reminds the Serbian Government of the legal obstacles to convicting citizens of misdemeanours under the Order.

On 20 March 2020, the Serbian Government enacted a Decree on Statutory Limitations in Court Proceedings Conducted during the State of Emergency. Under this Decree, statutory limitations for appeals of misdemeanour decisions shall not run during the state of emergency, which was declared on 15 March 2020. This means that the statutory limitations for appeals of first-instance decisions convicting individuals of violating the Order will start running only once the state of emergency is lifted. However, pursuant to Article 202(3) of the Constitution, the Decree on Misdemeanour Violations shall cease to be effective when the state of emergency is lifted.

Article 6 of the Misdemeanour Act lays down that misdemeanour offenders shall be tried under the law that was in force at the time they committed the offence, or, in the event it was amended in the meantime, under the law more favourable to them. Therefore, the BCHR is of the view that individuals prosecuted for violating the Order will be exculpated after the state of emergency is lifted. In other words, misdemeanour courts will be unable to punish them and will be forced to discontinue all ongoing misdemeanour proceedings for violations of the Order.

Furthermore, the criteria for determining whether the individuals who violated the Order should be charged with a criminal offence (non-compliance with health regulations during epidemics) or with a misdemanour under the Decree remain unclear given that the elements of these offences are identical, while the penalties they warrant and their other legal consequences differ. This brings into question both equality before the law and legal certainty in criminal law, which the Constitution does not allow even in a state of emergency.

BCHR regrets the inadequate legal formulation of the numerous regulations the Serbian Government has enacted during the state of emergency, which will have grave consequences on the human rights and, ultimately, the budgets of Serbia’s citizens.

We draw the attention of the domestic and international public to the unacceptable recent moves by the state authorities in Serbia during the state of emergency introduced due to the COVID-19 pandemic, which undermine democracy, rule of law, basic human rights and especially freedom of media.

We condemn the arrest of  Nova.rs journalist Ana Lalić, to whom the Novi Sad Police Department imposed a measure of detention of up to 48 hours on April 1, 2020 because, as her lawyer stated, she is suspected that she could repeat the crime, publishing articles which are causing panic and chaos. This kind of treatment of journalists not only directly represents a violation of media freedom, but also creates an intimidating effect for all journalists in Serbia, which are the key point for adequate information of citizens in this country.

In a difficult situation we are in, combating a contagious COVID-19 disease that threatens all of us, the activities and measures of state bodies even in the state of emergency must be in accordance with the Constitution of Serbia, the European Convention on Human Rights and the international acts to which Serbia committed itself to. One of them is certainly the freedom of media, and above all the right of the public on accurate, true and timely information, especially in a situation where the public health of the entire population is endangered.

Announcement by the Prime Minister of Serbia Ana Brnabić that today, on 2 April 2020, just four days after the adoption, the Government will withdraw its Conclusion on informationduring the coronavirus pandemic, which stipulated that all information regarding the pandemic is provided exclusively by the Crisis response team headed by the Prime Minister of Serbia, is a positive step. We hope that the decision to withdraw the Conclusion was made by the Government of Serbia after listening to the opinion of the profession, journalist associations, legal experts and international organizations whose mandate is the protection of human rights, who considered that this kind of centralization of information represents censorship and drastic violation of the rights and freedoms guaranteed by the Constitution – freedom of expression, freedom of media and the right to be informed. On the other hand, we think that the Prime Minister’s statement that she will appeal to the relevant authorities not to make similar arrests is not in accordance with the Constitution and the principle of separation of powers, therefore it can be considered as pressure on the prosecution by the executive branch, which has become a frequent practice to which we have pointed out before.

While we believe it is important that the Government of Serbia and the Crisis response team continue to publish information on the number of tested, infected, hospitalized, deceased and citizens in home isolation, quarantine and similar accommodation in Serbia, and on the measures that the state intends to introduce and provide interpretations of intended and existing measures, we also consider it necessary that not only national, but also institutions at the local level (mayors, emergency staffs, etc.), as well as health institutions and health workers, provide information to the public that may be relevant for the suppression of the infection. It should be noted that the health and lives of people depend on the timely response of the authorities.

At the same time, we urge the Government of Serbia to introduce all measures it adopts during the state of emergency imposed due to the COVID-19 pandemic, in particular those relating to the derogation from human and minority rights, in the form required by the Constitution of Serbia and in proportion to the need for their introduction.

Signatories:

• Belgrade Centre for Security Policy
• Belgrade Centre for Human Rights
• Lawyers’ Committee for Human Rights YUCOM
• Civic Initiatives
• Center for Practical Politics
• Helsinki Committee for Human Rights
• Centre for Contemporary Politics
• A11 – Initiative for Economic and Social Rights
• CEPRIS
• National Convention on the EU