Arbitrary prescribing of life sentences for any other criminal offense foreseen by the legislator in the Draft Law on Amendments and Supplements Criminal Code is "classic penal populism" that will not reduce the rate criminality, Milena Vasić, program director of the Committee of Lawyers for Human Rights, tells "Vreme".
She estimates that such an accumulation of life sentences can only lead to "cheap political points" because world practice does not show that the imposition of stricter sentences leads to a reduction in the crime rate.
"There is no basis in penalism. You have countries with the death penalty, so crimes that carry the death penalty are committed in them. The certainty of criminal prosecution has proven to be effective in the fight against crime, and not punishment, so the perpetrator must not have the feeling that he will not be caught, that he will get away with it," says Vasić.
He emphasizes that people who start committing a crime do not think about the amount of the threatened punishment, especially in the case of monstrous crimes and sexual offenses.
Too short a deadline for public discussion
The 20-day deadline for the public discussion is very short, since it is a systemic law, Vasić points out and indicates that the professional public does not have enough time to familiarize themselves with the text and analyze it adequately.
"Last year, a public discussion was already started, comments were sent to the professional public, departmentally ministry was obliged to make a report from that public discussion and to answer which comments were adopted and which were rejected, and the reasons for that, but that report was not published," says Vasić.
He also points out that the Ministry of Justice's explanation was that this year's public hearing was just a continuation of last year's hearing.
"That is not an adequate explanation, because in the meantime not only the text of the proposed law has changed, but also Government of Serbia, and the whole process would have to start from the beginning," emphasizes Vasić.
A serious step backwards.
When it comes to human rights, Vasić warns that the Draft Law is a serious step backwards because it is imbued with a type of criminal law populism.
As an example, he states that both basic and qualified forms of certain criminal offenses are punishable by life imprisonment, and only the minimum sentence is changed.
It is the same for rape and qualified form rape the threatened sentence of life imprisonment, and the same is the case with murder and aggravated murder.
"The legislator really did not skimp on the penalties, but the question arises of the meaning of such ranges of penalties," assesses Vasić.
He also states that certain solutions are actually "recycled, old" solutions that the professional public has already judged to be inadequate.
That is why, he adds, "the few comments from civil society that were adopted in the previous process" remained in the shadow of the new solutions adopted by the Ministry of Justice.
Dealing with civil blockades
Vasić notes that according to the current law there is a criminal act of endangerment traffic dangerous act or dangerous means.
In that case, the objects of protection are life or body or property of a larger scale, and whoever obstructs traffic and thus endangers the life or body of people or property of a larger scale is punished.
Vasić points out that in the new draft, the part about endangering the lives or bodies of people or property on a larger scale is deleted, and the penalty is prescribed only for illegal obstruction of traffic.
"It can be any obstruction, including a road block, which we have often seen in recent months, and even commemorative silence. This means that according to the new draft law, the protective object becomes traffic as such, which, apart from being meaningless, can also affect the rights of citizens who use their The constitutionally guaranteed right to peaceful assembly on the street", says Vasić.
The draft law foresees a prison sentence of one year for those who stop vehicles in traffic contrary to the regulations, which is the definition of blocking the road.
He adds that such a solution did not exist in last year's Draft Law.
"The Ministry has now created such a solution, under the rationale that it wants to protect traffic. It is indicative that this was not found in the previous Draft Law and it is obvious that it is a reaction to protests, and the need to criminalize them," says Vasić.
It indicates that stopping traffic contrary to regulations is already covered by the Law on Traffic Safety and that it is predominantly a matter of misdemeanors.
"That's why we can get into a situation where there is competition between a misdemeanor and a criminal offense. Why would something that is already prescribed as a misdemeanor and essentially has no criminal significance now be prescribed by the Criminal Code," asks Vasić.
A change directed against the protection of citizens from torture
As another problematic solution, the draft law mentions the deletion of the qualification of the criminal offense of extortion of testimony, which implies extortion of testimony accompanied by severe violence or if, as a result of extortion of testimony, particularly severe consequences occurred for the defendant in criminal proceedings.
The reasoning of the Ministry of Justice is that this form of coercion of testimony is partly contained in other criminal acts.
"We had situations where two years ago a man died in the police station and that one man entered the "maric" with his hands tied behind his back and allegedly committed suicide. Therefore, we had very mysterious deaths related to police actions," says Vasić.
Now the qualified form of that criminal offense is suddenly deleted, under the rationale that it is partially contained in other criminal offenses.
"Partially contained and 100 percent contained are not the same. That is a big complaint, because this change is directed against the protection of citizens from torture," says Vasić.
He reminds that in 2008, Serbia received a recommendation from the United Nations Committee for the Prevention of Torture, according to which the definition of abuse and torture should be harmonized with the definition from the UN Convention.
"There is no harmonization with the UN definition, although there has been a recommendation for a long time, but that is why the criminal offense is deleted under the alleged explanation that there is a recommendation to harmonize these offenses. There is a recommendation to harmonize these criminal offenses with the UN Convention, and not just to delete the qualified form of coercion of testimony," specifies Vasić.
He explains that by adopting that provision from the draft law, it would mean that if serious bodily injuries occurred, the policeman would not be prosecuted for extorting a statement, but for some other criminal offense.
Anything but rape
When it comes to rape, Vasić points out that there is currently no criminal offense in the domestic legislation that would essentially contain sexual intercourse without consent.
He states that the definition of rape implies the use of force or the threat that someone will directly attack the life or body of the victim or a person close to the victim and emphasizes that currently in cases of rape, a moment of physical coercion or proof that there was a threat is required.
"Physical coercion means that the woman defended herself, and rape victims, as science has proven, often do not defend themselves against rape, but 'freeze', stiffen, offer passive resistance. The definition of rape is therefore long out of date," says Vasić.
He reminds that this is why non-governmental and women's organizations have been demanding from the state for years that rape should include any sexual relationship without the victim's consent. This is also a requirement of the Istanbul Convention, which was ratified by Serbia, and in the draft law, marriage without consent was introduced.
He assesses that the criminal act of sexual intercourse without consent was caused by a "superficial interpretation of the Istanbul Convention".
"We don't know why those who wrote the draft law thought that it was enough to include the act itself, without calling it rape. The problem is that it is really a mockery of the victims, because you practically say to a woman, just because she did not resist physically, that she was not raped, but that she was sexually assaulted without consent. That is, therefore, only a superficial linguistic interpretation of the Istanbul Convention by which we came to the conclusion that it can be a criminal offense separate from rape," he says. Vasic.
He states that the punishments for rape without consent range from two to 13 years, and for rape from five years to life imprisonment, although it is essentially the same crime.
"You have the possibility that the prosecution deliberately goes for a lesser crime because it has assessed that it might not be right for a person to be punished with life imprisonment. At the same time, not every form of rape should be punished with life imprisonment," concludes Vasić.
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