I believe that the discussion about the fate of the girl Tijana Juric has been an important topic of conversation in many families in Serbia during the last ten days. From the hope that it was just a summer adolescent mischief, those of which we ourselves were once, in happier times, the protagonists, to the darkest forebodings that, unfortunately, turned out to be true. For Tijana’s parents and sister there are no words of comfort, at least not strong enough to alleviate their pain and loss.
As a mother of two already grown-up children, I am afraid and the very thought of how they must feel after losing their child is unbearable to me.
However, as a lawyer in criminal defense counsel and uncompromising defender of human rights and European values, I must speak publicly about the inappropriate behavior of Nebojsa Stefanovic, PhD, the Minister of Police of the Republic of Serbia, who said today:
“Yesterday the police arrested the monster who committed this act … Because of this monster and this act, sometimes I’m sorry that Serbia had abolished the death penalty, it is obvious that our society is not ready for European standards of conduct.”
After reading this sentence, I immediately remembered the action “Sablja” and the request of then Minister of Justice, now deceased colleague Vladan Batic, to reinstate the death penalty a few days after Serbia became member of the European Council, in order to appropriately punish the perpetrators of assassination of the Prime Minister Zoran Djindjic.
Naturally, the death penalty was not reinstated into our criminal law, and of course, the then General Secretary of the Council of Europe Schwimmer warned the government of Serbia that the European criminal law no longer recognizes the death penalty as a criminal sanction, and that its ministers shouldn’t publicly call for its restoration. The European Council also condemned the raids implemented by the Government, which justified its actions by the gravity of the crime committed.
And the crime was then, as it is now, heinous, morally and emotionally unacceptable for any normally constituted human being. And for every normally constituted human being, the first “gut” reaction is the urge for revenge and the desire to cause the worst pain to the perpetrator or perpetrators of these heinous acts, in return for what they have done to innocent victims.
However, the state, and especially the state governed by the law, or the one which declares that it wants to become one, can’t afford “gut” or any other non-legal response, in any field, and especially not when it comes to protection or violation of basic human rights.
And, as the right to life is a basic human right, so is the right to enjoy the presumption of innocence and the right to a fair trial, the right to protection from arbitrary deprivation of freedom and other rights that protect us, individuals, from the state and its officials, and also discipline the state and force it to comply with the rules and procedures it introduced itself, or accepted by becoming a member of international organizations that prescribe and protect them by its mechanisms.
And therefore no state agency, not even the minister of police, Nebojsa Stefanovic, PhD, mustn’t call a man who was arrested and suspected for execution of the gravest crime, “a monster”, identifying him by his full name and place of residence. He mustn’t publicly, before the citizens, complain about the fact that the state can no longer kill such a “monster”. He mustn’t present any details of the investigation to the public, and in particular, discuss the state of mind of the suspect.
As a lawyer, I want to avoid any “gut” reaction and stay within the law. Also, I don’t want to fall into the trap and speculate on the effect that the minister of police may wish to cause with the citizens, jumping to every opportunity, even the tragic fate of Tijana Juric and despair and pain of her loved ones. I don’t even want to discuss the ranking on the minister’s values scales of values and principles of the rule of law in terms of the European Convention on Human rights on the one hand and, on the other, the value of personal development in the government of the country whose society, as he concluded, “is not ready for European standards of conduct”.
At the beginning of the process against 33 years old Dragan Djuric, who was born in Belgrade, and resides in Surcin (according to information given by the Minister Stefanovic, PhD), suspected of aggravated murder of Tijana Juric, I just want to point out the problem that exists in the national criminal legislation of the Republic of Serbia, consisting in systematic violation of the European Convention on Human rights and the jurisprudence of the Strasbourg court by the police in Serbia.
Namely, Serbian national legislation allows police to conduct operations to detect offenders without any restrictions, and especially without any possibility of subsequent control of the legality of these actions by the defense of the suspects.
Furthermore, Serbian national legislation allows police to indefinitely hold a person so identified and subsequently apprehended, without the slightest intervention of the judiciary, and to arbitrarily determine the moment in which that person would officially become, within the meaning of the Code of Criminal Procedure, a person deprived of freedom, who would only then begin to enjoy all the rights provided by the law.
And the most serious issue: Serbian national legislation allows police, during the time of that arbitrary, unofficial detention, of which there is no written evidence subject to control of the defense of detained persons, to examine people, gather evidence, and “deliver” all that to judicial authorities, and, as we see today, to the public.
In order to clarify this, here is an example from my practice as a lawyer:
In a case similarly promoted in the media, where the culprits for the most serious crime were also promptly identified and qualified by derogatory names by the police and other state authorities (though it was during the government of Mirko Cvetkovic and minister of police Ivica Dacic) and then the criminal procedure was used only to confirm police findings obtained with the grossest violations of human rights of the accused, by the review of criminal records, with intention to address the court in Strasbourg, I found to my astonishment that the criminal case does not contain any document which refers to the process of identifying the suspects by the police, although practically the whole prosecution case, which was later confirmed by the court, was based on evidence gathered during the discovery phase. Given my experience as a French lawyer who works on criminal records that must include records of all actions of the police performed in order to identify and bring to justice persons suspected of any crime, and 10 years after Serbia had joined the Council of Europe, I expected to find such records of police actions in such a serious criminal case. Local colleagues told me that it is not so in our country, and when I asked them whether they seek annulment of all acts which are contrary to Article 5 of the European Convention, they answered negatively, explaining that it is not possible according to our Code of Criminal Procedure.
So, in France, any violation of protected rights of a person suspected of committing a crime, deprived of freedom or not, from the moment the police starts to take interest in him (for example, to listen to his conversations, review his e-mail, follow him), and especially from the moment of the arrest, leads to the cancellation of the entire procedure and release of the defendant, no matter how severe a criminal offense of which he is suspected or accused.
In Serbia, the people I represented before the court in Strasbourg were identified as the perpetrators of aggravated murder by police operations about which there wasn’t even the slightest trace in the criminal record, except for a single note on the seizure of property which confirmed statements of my clients that they were held and questioned by the police for dozens of hours, with use of direct and indirect force, before they even saw a lawyer or a prosecutor.
In Serbia, unfortunately, no one asked for the annulment of the proceedings, not even before the Constitutional Court, because of the police investigation, which in truth was very comfortable for the police and useful for daily political interests, but which was in utter conflict with the European standards.
Given the vast number of complaints against Serbia, the court in Strasbourg has recently started to apply most strictly the principle of subsidiarity of protection of human rights to petitions against Serbia (the crudest example of this, and generally criticized in the law community, is the case of war veterans from Nis, which I also represented before the Grand Chamber of the Court), so it rejected the complaint of my clients, because they didn’t address the violation of these rights before the courts in Serbia.
It is, thus, all the more important that we as the citizens of Serbia become aware that it is in all our interests to legally regulate the work of the police according to European standards, and to educate citizens to seek control over police actions in certain criminal proceedings, and their annihilation unless they are in compliance with the European Convention and judiciary practice of the Strasbourg Court, before national courts, based on the direct application of the European Convention on Human Rights.
Because, potentially, we could all be a victim of police arbitrarity, and even brutality.
Because it is not important to the victims that someone is convicted of a crime they or their loved ones suffered, but that it is the true perpetrator.
Because as citizens we have an interest to protect all victims and identify and sanction all perpetrators.
Because as citizens – both potential victims and potential perpetrators of crimes – we have an interest to force the state and its representatives, under the threat of criminal sanctions, to respect and to ensure respect for our human rights: to life and physical integrity, property and private life, freedom of thought and expression and the right of everyone to a fair trial and the right of accused persons to have the presumption of innocence respected.
Because as citizens we have an interest that the police exercise their powers under the strict control of the judiciary, and that the judiciary be independent and responsible.
And last, but not the least important, as citizens we have an interest to be represented by accountable people and to never again hear the ministers passing verdicts in advance and practically, knowingly or unknowingly, call for lynching of any of the citizens, believing that it would cater to our lowest passions and thus reducing us to a group of irrational people “not ready for the European standards of conduct”, unless Stefanovic, PhD, in his address to the public today, referred to himself.
* The author is a lawyer in Paris
Translated by Marijana Simic