Has that decisive moment – repeated in the judiciary many times – when the judiciary system, this time in the form of a law, begins once again to mock itself, arrived again? Since it has almost completely devoured its own substance with thoughtlessly and arrogantly implemented reform in the mandate of the previous government, the judiciary, by means of the competent minister, current government and parliament, announces a reform, this time not from the beginning, i.e. court organization and appointment of judges and prosecutors, but from the very end, i.e. from partial reduction of prison sentences for convicted perpetrators of criminal acts.

The draft law itself would require a serious debate. Some of this, more in the form of political instead of legal arguments, was heard during the parliamentary debate. We will not discuss the substance of the law, but only the reason why it is being adopted, its ratio legis.

Why is the law on amnesty being adopted? One justification, inarticulate and generalized – in accordance with tradition, can be found in the text of the explanation, item II, Reasons for adopting the law: “The Law on Amnesty changes the position of individuals convicted of crimes, because the social, economic and political situation has changed”. Additionally: “Having in mind that new legal solutions, which embraced international standards in the field of penal sanctions, have been recently adopted, the draft Law on amnesty is proposed. The Law will partially or fully relive certain groups of prisoners of serving legally imposed sentences”. Nothing about which particular “social, economic and political circumstances” have changed, what these changes consist of, compared to what time have these circumstances changed, how they influence the change “of position of individuals convinced of crimes”. When this “recent” adoption of international standards in the field of penal sanctions took place – cannot be discerned from the explanation. Contrary to previous practice, the real ratio legis can be found in item IV, subtitle Financial means necessary to implement the law, which begins with the statement that no financial means are needed to implement this law. Even better, the Law is a radical money saver. The draft Law proposes to include around 3600 out of the total 8000 prisoners “in this law”, which practically means that 3600 will be amnestied. Short-term reduction of budgetary expenses, which will derive from full or partial reduction of penal sentences, is estimated at 127 million, while long-term savings are estimated at 800 million dinars. Thus, the statements of the Minister of Justice and his aids, clearly and unambiguously demonstrate that the real ratio legis are the overcrowded Serbian jails and budgetary cuts.

The deeper layers of the reason for adopting the law, can be more sensed than deduced. I perceive several theories: “financial”, based solely on the reason of budgetary savings, “anti-corruption”, based on the premise that prisons are overcrowded, and it is necessary to make space for the newly found perpetrators of corruption, and “contractual and tortious legal”, mostly based on the data of how muchSerbia, as a state, owes to individuals who were groundlessly remanded in custody.

However, what I have never known – never heard of or read about – is a state which justifies amnesty with budgetary savings, overcrowded prisons or its own level of debt. More precisely, I know of no state which did this publicly, officially and in the form of a law. But what I don’t know, doesn’t matter. I am not an expert on this issue. I call on my colleagues – judges, prosecutors, professors of law, to inform Serbia of these examples, if they exist, and particularly of the consequences of amnesty due to economic necessity and issues of overcrowded prisons.

In the past, we were taught that legal amnesty is a measure undertaken on certain special occasions (for example: Napoleon’s amnesty of 1815, which included Maurice de Talleyrand); or following conflicts, mostly armed conflicts (amnesty in the US after the civil war and a significant number of more recent amnesties in Chile, Argentina, Brazil, Congo, etc); or as a measure of transitional justice (for example, in Spain, after the toppling of Franco regime, in South Africa, after apartheid ended, and during the work of the Truth and Reconciliation Commission); or in order to harmonize the factual and the legal situation (occasional amnesties of illegal immigrants in the US. Particularly known for its glamorous character was the amnesty of immigrants carried out by Arnold Schwarzenegger while he served as governor of California). Budgetary-overcrowdedness theory was not included in these teachings. Whether this is our novum and specificum, I repeat, I do not know. And one should really know.

However, even if it is proved that the ratio legis of this amnesty is not a lone example, I believe that at least the Minister of Justice should know the anecdote about how the prison in Pozarevac, one of the biggest in Serbia, came to be. After all, the Minister is an expert in comparative-law tradition. While traveling aroundSerbia, princeMilos decided to spend some time in Pozarevac. Local leaders welcomed him warmly and properly. The prince was very pleased, and asked how he may repay his hosts for their hospitality. He proposed to help build a church or a school. “No, your highness”, they answered him. “Build us a prison!” The prince wondered – more to himself – why, on earth, a prison. “So that our children may remain close to us”, they answered. The point of this anecdote, in this context, is not “for the children to remains close”. Even back then, people were aware of the fact that if a jail is overcrowded, a new building should be constructed, instead of releasing the prisoners. Even if they are our own children.

And, if he has not heard (he did not have to) this anecdote, the Minister could remember how his predecessor carried out her own reform. Poorly and carelessly. But, from the beginning, at least. It appears that he begins his own from the end. With poor and careless reason for adopting the law. It is wrong to begin the reform (if this is a reform) with a Law on amnesty, for which the reason is not faked, but which (the reason) is not sufficient, or common, or appropriate. It reminds us more of a Law on amnesia, then of a Law on amnesty. However, linguists do claims that both words are derived from the same root (Aμνηστία – Aμνησία).

Translated by Bojana Obradovic

Peščanik.net, 28.10.2012.

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Vesna Rakić Vodinelić
Vesna Rakić Vodinelić, beogradska pravnica, 1975-1998. predaje na državnom pravnom fakultetu u Beogradu, gde kao vanredna profesorka dobija otkaz posle donošenja restriktivnog Zakona o univerzitetu i dolaska Olivera Antića za dekana. Od 1987. članica Svetskog udruženja za procesno pravo. 1998-1999. pravna savetnica Alternativne akademske obrazovne mreže (AAOM). 1999-2001. rukovodi ekspertskom grupom za reformu pravosuđa Crne Gore. Od 2001. direktorka Instituta za uporedno pravo. Od 2002. redovna profesorka Pravnog fakulteta UNION, koji osniva sa nekoliko profesora izbačenih sa državnog fakulteta. Od 2007. članica Komisije Saveta Evrope za borbu protiv rasne diskriminacije i netolerancije. Aktivizam: ljudska prava, nezavisnost pravosuđa. Politički angažman: 1992-2004. Građanski savez Srbije (GSS), 2004-2007. frakcija GSS-a ’11 decembar’, od 2013. bila je predsednica Saveta Nove stranke, a ostavku na taj položaj podnela je u aprilu 2018, zbog neuspeha na beogradskim izborima. Dobitnica nagrade „Osvajanje slobode“ za 2020. godinu.
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