If and when the latest amendments to the Criminal Code (CC) are adopted, as a judge, I will act in accordance with them just like all those before, no matter what I personally think about them. However, until this happens, I will keep trying to explain why all of this is wrong. Nevertheless, I wonder if, this time, I will even have a genuine opportunity to do that?
According to the announcement of the minister of justice, there will not be any public hearings on the latest amendments to the Criminal Code. According to her, a public debate is not needed because a sufficient number of citizens have already expressed their opinion on the latest in a series of criminal-legal experiments, by submitting an initiative with more than 158,000 signatures.
And so, many of us who believe that the latest initiative to change the CC is nothing more than another (pre-election) populist maneuver, have gotten another confirmation of our views from the most competent authority. Because, according to this announcement, the necessity of expert public debate in contemporary Serbian society is terminated if a sufficient number of citizens propose a certain legislative solution!
When it comes to populist strides in legislation, things have truly changed during the past two years. First of all, even though it was merely a formality, we once had a process called the Constitutional debate. Although no one paid any attention to them throughout this farcical process, professional associations and individuals nevertheless had some sort of opportunity to express their views on the ideas of the Ministry of justice. The next stage was less romantic – we witnessed increasingly frequent attacks on those who took the Constitutional debate seriously, believing that it also allowed for the voicing of critical opinions. The next step towards a pot full of “boiled frogs” happened when GONGO associations joined the game. These government-non-government organizations, supported by associations of bakers, hairdressers, and locksmiths, led the ovations and lynchings “as ordered”. But, formally, the debate was still there, although it was completely irrelevant who was saying what, or even who represented which side. In the end, in all likelihood, even this form of simulacrum became too superfluous. The draft amendment to the CC says that we have come to a stage in which even GONGO discourse is no longer necessary. Just like in the elections, those who collect enough signatures will be able to tailor domestic legislation, unhindered by the grumbling of experts. Direct democracy at work!
The highlight of the latest reforms is certainly the introduction of a life sentence. Although the explanation of the draft, given by the Ministry itself, acknowledges that in 2015 it abandoned this possibility, as it was concluded that the expert public on this issue was divided, they didn’t bother to include an explanation as to what has changed in the meantime. Therefore, it is probably best to conclude that the Ministry has realized that the opinion of the professional public can be an impediment to the always-just goals of the political elite, and that, therefore, it should be removed from the equation. Just as with the Belgrade Waterfront or the Kalemegdan gondola, experts would only make a mess and hinder the sentiment of the general public when it comes to “draconian punishment”. Therefore, this time, the “divided expert public” was left completely outside of the forum where serious questions were discussed by “serious people” – those who are more sensitive to the just rage of the general populace, and those whose words caress the ears of ever-bloodthirsty citizens.
The manner in which the introduction of this penalty to the domestic system is justified is also interesting. In addition to referring to comparative solutions (it is true that most European countries recognize this punishment), the proposer assures us that the stricter punishment advocated here is actually often more humane than the current, limited imprisonment. Justification for this bizarre attitude is found in the fact that freedom is not always preferable to captivity (some would say that, in our kind of society, it very rarely is), especially considering the impossibility of long-term convicts reintegrating into society and finding their place there after the sentence.
However, even life imprisonment wasn’t enough. They also felt it necessary to include an additional caveat according to which parole will not be possible in cases such as murder and the most severe forms of criminal offenses against sexual liberties. It is especially symptomatic that in this, the most controversial of all decisions, no explanation was given. The Ministry of justice informs us that it has accepted the initiative by the “Tijana Juric” Foundation, but completely refuses to inform us about why it chose to do so and how it intends to defend this position.
Removing the possibility of parole in a life sentence is an extremely problematic solution, which has been repeatedly dealt with by the European Court of Human Rights (ECtHR). Seeing as we are not privy to the reasoning that guided our legislator, we can only assume that the hopelessness of such a sentence, which the ECtHR identifies as inhumane punishment, will be softened by the possibility of a pardon which the President of the Republic may give. However, it is precisely here that we might see all the defects in a process deprived of public debate. The question that must be asked is the extent to which the domestic institution of pardon provides any realistic perspective for future convicts in such cases, especially in a situation where the underlying reason for which the punishment was imposed is a belief that certain persons should never again, under any circumstances, be let back into society. Can anyone really think that this legal problem requires nothing more than a certain number of signatures on a petition?
Another problem may also be caused by the extension of the criminal offenses where obsolescence cannot take place, bearing in mind that Article 34 paragraph 6 of the Constitution envisages this exception exclusively when it comes to a handful of the most severe crimes.
Of course, there are other decisions here that invite our attention. In line with the announcement by the President of the Republic, more severe penalties are prescribed for a number of criminal offenses, as well as a new proposal for a mandatory minimum sentence for repeat offenders (namely, over half of the prescribed sentencing range for a given offense). A new criminal offense, “Assault against an attorney” is also being proposed. This and many other offenses exhibit a considerable lack of lawmaking refinement (for example, Article 5, paragraph 2 of the Draft has an error in referral). The introduction of a new goal of punishment is also interesting – “achieving fairness and proportionality between the committed act and the gravity of the criminal sanction”, which can also be explained by the previously announced focus on retribution.
Apart from the fact that the expert public is no longer needed for adoption of amendments to the criminal code, what else is evident from this text? First of all, that, in all likelihood, we have already entered a dangerous new time, in which criminal law, just like everything else, has become a marketing trick and a tool to win votes. The experts all agree on the possible effects of these amendments. It is clear that no punishment, not even one without the possibility of parole, will deter the perpetrators of the most severe criminal acts. This was confirmed in practice a long time ago and there is simply nothing more to be said on the subject. However, legal acts of this kind are the easiest tool for the government to demonstrate to the citizens that its strong intention to combat the most severe crimes is genuine. After all, a single stroke of a pen which seemingly solves the issue costs the government nothing. Besides this, this move also wins you the approval of the majority of those caught up in the carefully induced moral panic. And when the whole thing inevitably fails to deliver the desired results – no skin off their back! Once it becomes evident that the successes the newest reformers announced didn’t happen, no one will remember their promises, just like they don’t remember those made by the many reformers who came before.
Everything else, like a real analysis of why we’re becoming a more violent society, preventative work, education, and raising awareness is much more expensive, harder, and uncertain. At least in this stage of development, it seems that we, as a community, have given up on these possibilities. Until we return to them, let us play with the numbers and experiment in vivo by posting on social networks everything we would do to the “rapists of our children” if we ever got our hands on them. Citizens always fail to realize that, every time their consent is manipulated (Chomsky), they are victims, even if they feel like they’re playing executioner. Citizens believe that none of this costs anything, anyway. Just like the legislator assures us in the last sentence of the draft, which says that no funds from the budget of the Republic of Serbia are needed for implementation of this law.
Translated by Marijana Simic
Peščanik.net, 25.05.2019.