Photo: Etienne Girardet/Unsplash
Photo: Etienne Girardet/Unsplash

A group of protestors charged with blocking traffic with their protests was acquitted by the court. This decision was justified by the importance of the right to protest against the government’s measures and exhibit civil disobedience in a democratic society, which justifies a temporary traffic jam.

Unfortunately, this decision wasn’t made by any Serbian court, but by a court in London regarding the protests by those unhappy with the environmental protection measures imposed by the British government. I say unfortunate, because we are witnessing a mountain of misdemeanor warrants against citizens from many cities in Serbia for blocking traffic during the protests which led to the withdrawal of the Law on expropriation and changes to the Law on referendum and people’s initiative. So, such a decision from a domestic court would have set a valuable precedent.

The citizens who have received misdemeanor warrants from the police are faced with the following options: pay half of the stated fine within 8 days; pay the whole amount after that deadline; don’t pay and be susceptible to enforced collection and potentially pay additional costs; don’t pay, but address the court and ask for a ruling against the misdemeanor warrant within 8 days – if this succeeds, you are acquitted, but if it doesn’t, you have to pay both the fine and court expenses.

Those responsible for this probably count on the majority of people choosing the first option, following the natural desire to avoid discomfort. And some citizens will certainly do this, regardless of whether this will affect their further participation in protests. On the other hand, many of my lawyer colleagues have, rightfully, called on the citizens to not pay the fine and instead pursue a court ruling on the misdemeanor warrants. So, many citizens will probably do this as well, which will cause additional burden to our courts which are already slow and overwhelmed.

Either way, these misdemeanor warrants have opened several important issues about the legality of police actions.

Almost all of the misdemeanor warrants are based on photographs and records from CCTV cameras. Even if they were legally obtained, according to our law, they are insufficient proof of guilt without further evidence or expertise, and thus, insufficient grounds for charges. The initiators of the avalanche of misdemeanor warrants seem to be aware of this, which is evidenced by the disturbing statements of some police officers that their superiors are asking them to falsely testify to circumstances unknown to them.

Can this evidence that is used by the Ministry of Interior even stand in court? Was it legally obtained? How did the Ministry identify alleged perpetrators based on these videos? Does the number of misdemeanor charges and the speed at which they were brought point to the conclusion that the Ministry used so-called intelligent video surveillance – cameras and software for digital, biometric face recognition?

If the Ministry has indeed used this technology to identify alleged perpetrators by comparing the photographs of the people in the streets with the database of biometric photographs of citizens, it was done in violation of the Law on protection of personal data, which means that the Ministry was involved in illegal and punishable processing of personal data. There is no valid excuse for such processing in the Serbian legal system, and the Ministry has been warned about this many times by the Commissioner for Information and Protection of Personal Data. If the Ministry didn’t use the biometric identification technology which we know they got from China, it is very difficult to explain how they managed to identify the perpetrators this quickly, given the size of the protests, number of participants, and other circumstances.

The suspicion of a conscious and intentional violation of the law by officials should always prompt appropriate measures from the authorities. On this occasion, the Commissioner for Information and Protection of Personal Data should conduct a procedure of supervision over this data processing in the Ministry of the Interior and inform the public about the results. This should also be addressed by the public prosecutor, however unrealistic it would be to expect that to happen given our experiences so far.

Despite the executive branch’s insistence on persecuting the protestors due to the perceived illegitimacy of their protest, the London court confirmed the legitimacy of civil protests and civil disobedience in general, without ever needing to pass judgement on the specific demands being made in this case. In our country, it is an incontrovertible truth that the behavior of the government led to civil protests, that citizens took to the streets because the government, by creating two very bad laws, persistently ignored justified requests and warnings from both the professional and general public, and that the demands of the protestors were ultimately accepted as legitimate by the President of the republic, the Assembly, and the Government.

Therefore, the insistence of the authorities on the alleged responsibility of the protestors is in obvious, complete discrepancy with elementary justice. The avalanche of misdemeanor warrants due to the alleged threat to traffic safety has nothing to do with fairness and justice, but with revenge and intimidation. For that reason alone, in reviewing these misdemeanor warrants, even regardless of the aforementioned problems with the legality of police actions, our courts would have to confirm the legitimacy of justified civil protest with their decisions. Otherwise, they will be contributing to a trend which should be incompatible with the role of the court, and which has taken on a frightening momentum in our society and state – the undermining of elementary justice.

Translated by Marijana Simic

Pešč, 20.12.2021.