A great controversy developed at the UNS forum "Journalism and the Presumption of Innocence", held on July 18, and on the occasion of the initiative of one of the two Belgrade Bar Associations (led by Jugoslav Tintor) to introduce a provision in the Criminal Code by which persons in state institutions for statements that violate someone's right to the presumption of innocence were punished with up to three years in prison and a fine.
The AKB submitted this initiative to the Ministry of Justice at the beginning of July, a few days after Veran Matić, in his capacity as the president of the Commission for Investigating the Murders of Journalists, stated that he had a "strong impression" that the court panel handling the proceedings against the accused for the murder of Slavko Ćuruvija was conducting the process "as that he does not want to lead him or is forced to make a pre-planned acquittal decision".
In the AKB initiative, in addition to officials or persons performing work of public importance, it is foreseen that journalists and editors from the media who convey these statements will also be punished in the same way - with imprisonment and a fine.
With the exception of the journalists present at the forum held in the Press Center in Belgrade, one of the most energetic opponents of this initiative was lawyer Zdenko Tomanović.
On that occasion, Tomanović said that he "cannot and will not" rely on "bad justice, the political criteria of elected judges, on the dominance of our political elite, which should assess which journalist has violated the presumption of innocence", as well as that Serbia does not there is independence of the judiciary.
Lawyer Tomanović spoke for "Vreme" about this initiative, but also about the state of the judiciary, the media and the political elites that dominate life in Serbia. The interview was conducted before the murder of lawyer Dragoslav Ognjanović.
"WEATHER": Do you see similarities in the content of this initiative of the Belgrade Bar Association with the provisions? "Vučić's" the 1998 Information Act?
ZDENKO TOMANOVIC: That law provided for a misdemeanor, and this initiative calls for something stricter than that law from 1998: it calls for prison sentences of up to three years, and then the so-called shortened procedure, faster than regular.
But the biggest difference is that that Law was proposed by the government, and this one is proposed by lawyers. Lawyers are the ones who should fight for the journalist to be free, for the judge to be free, and not for both of them to be unfree. They should make their own decisions, with their own will, not someone else's will with someone else's decision.
And by the way, I think that this is an artificially imposed topic, that, unfortunately, lawyers participate in a political trick for the umpteenth time. There is a discussion about something that should be indisputable, and then some of those people, who have neither respectable nor credible practice, so-called "judicial trainees", to say "we understand lawyers, but the state is currently an unshakable fighter for the rights of journalists", and in this way it will actually create the impression that the state is an unshakable fighter for independent and free journalism and expression. And actually it's not. For us, everyday life is the best proof, the best indicator that this is not so.
This initiative is completely insignificant and should not receive so much attention at all, but it can be dangerous, because the trust in our institutions has been completely shaken here for a long time. They are completely politicized, and the worst thing is that those institutions that apply the law are also completely politicized. This is best seen by lawyers in the daily application of law, this is where the relationship of the state towards the individual is best seen. And when the rights of the individual are in conflict with the interests of the political elite, then it is obvious that the individual is completely discouraged, completely alone and without any chance to realize his right. And the measure of every rule of law, the measure of democracy, the measure of the rule of law is one man, an individual. Justice rests on the individual. There is no application of law in the rule of law if the individual is discouraged.
If this initiative were to be adopted, what would we get as a media image?
We would get a formalization of the existing demagogic justice.
What is demagogic justice??
It is creating the illusion that justice has a common, generally accepted meaning in our society. I believe that with the arrival of the multi-party system, if we measure modern democracy in Serbia since then, that the new class that was formed, the class of politicians, abused democracy, so that it managed not only to occupy the field of untouchability, but also managed to dominate all institutions, to politicize them and to impose that the true meaning of justice is actually the meaning in which their personal interest or the interest of a small political group is incorporated. Unfortunately, this is continuously the case.
The political elite imposed the appearance that the center of their activities and their exclusivity is the creation of justice, unlike all the past; that justice is what we live today and what the citizens of Serbia aspired to, and that unlike all earlier justices, this justice here is neither selective, nor occasional, nor temporary, but that is the true meaning of the word "justice". And that is a pure illusion that is imposed primarily by the misuse of public speech, that is, the media. Demagogic justice means the following: that every political elite in every political program swears by justice and the laws of this country, and then explains to us that life is something else.
Is it realistic that state officials are sentenced to prison terms in this kind of judiciary? only President Vučić would risk decades of imprisonment with each new press conference because of what he says.
The political elite never take any chances when it comes to the judiciary. She has never de facto relinquished control over the judiciary, the judge, or the prosecution. And also, the political elite managed to continuously shape public opinion in such a way that the lawyer often identifies with his client. Well, if you defend people who are responsible for organized crime, then you are a member of a gang, part of that criminal group, if you defend people who belong to some political parties, then you are part of that political brain or value system. That identification is something that was done in order to devalue the legal profession, and then to achieve de facto control over certain legal teams or parts of the legal profession. Why is this done? Because, since this abuse of democracy started, integrity has become the biggest enemy of every political elite. Therefore, none of the political elite of Serbia loved people of integrity, on the contrary. She always tried to generate publicity against people of integrity, because it is something that bothers and is an obstacle.
Jugoslav Tintor could be heard more than once that the media "judged" in some cases. So is there a problem with the media? (and it certainly is), or is it an even bigger problem that judges allow this kind of pressure to influence their judgments? What kind of judges are they and where is that integrity then??
The judiciary has lost the battle for its own autonomy and independence in cases where an individual is in conflict with the interests of politics. And that is a measure of the autonomy and independence of the judiciary of a country. The quality of the judiciary is not measured in daily routine functioning, but in cases where the political elite is above the law. Are the judges ready to stand up to those who have more power than allowed?
The disciplining of the judicial authority, the effort to reduce the judge to an administrator, the executor of the desired result, formed the dominant attitude that only the result is important, and not the procedure through which that result is achieved. The burden of control has been imposed on judges, there is a feeling of uncertainty, and there is a growing impression that the courts and the prosecution have been imposed an additional burden of having to do what is expected of them.
For people of integrity, personal and professional, which every profession has - including, of course, the judiciary - the additional situation is made worse by negative selection and humiliation when high positions are given to those who do not belong. Our judges have been losing their rights for years. Is there a greater humiliation for judges than the trampling of their rights? In defense of their rights, judges file lawsuits against the state that is supposed to protect their rights.
If such is the situation in the judiciary, What is it like to be a lawyer??
Today, in our wave of total reforms, when the difference between knowledge and ignorance is nullified, when the integrity of lawyers is viewed as an undesirable and dubious obstacle, Serbia needs unique, free and independent lawyers, who are a guarantor and an important means of exercising the rights of every citizen of this country , not political affinity as a measure of legal standards.
We lawyers are complicit in the decline of our integrity and our profession because lawyers thought it was enough to only care about personal interest, that social interest did not exist. If you have such an attitude, then you are building a society in which there are no public values, no public conscience and awareness, no public morality...
No public at all..
This is also an abuse of the political elite. They reduced the public. They reduced the public to the position of certain media. So, they called something that is a much broader phenomenon - the public - public opinion, and then they identified that public opinion with media opinion. By further reduction, that media opinion came to the position of a couple of newspapers or media that are under their control, and then an illusion was actually created that the public's position is what is written by a couple of their media, and that is equated with the position of our political elite.
Except AKB, which responded to Veran Matić's doubts about the correctness of the trial of the accused for the murder of Slavko Ćuruvija, the Association of Judges of Serbia also responded, stating that "with this statement, which was given in the course of court proceedings that have not been legally concluded, the presumption of innocence guaranteed by the Constitution is violated, laws and international conventions, on the one hand, the court is being illegally influenced, contrary to the Law on the Organization of Courts". How do you see this position of the Association of Judges of Serbia??
Here, the story of the violation of the presumption of innocence was an excuse to ban the suspicion of bad justice. I am unpleasantly surprised that the Association of Judges, which is not a state body, dared to call on the state body, namely the High Council of the Judiciary, to react under the pretext of reacting to the violation of the presumption of innocence, in connection with the pressure on the work of the court. The society of judges knows best that the political elite is the gravedigger of their independence. The political elite is the biggest opponent of their independence and they are bothered by judges of integrity. They are there - less and less, but they are there. The initiative of the Belgrade Bar Association is completely inappropriate, and the reaction of the Association of Judges is inadequate, because the Association of Judges must encourage suspicion of our bad judiciary. Our judiciary is bad, as a result of decades of abuse of democracy by political elites.
During the aforementioned debate in the Press several journalists asked the center and received no response: in what way should Veran Matić express his doubts about the course of the trial, without influencing the court? And isn't that the right and obligation of journalists, to report to the public on matters of public interest?
Of course, that is the journalist's duty. A journalist has the right to doubt. And what should a journalist do when the state fails? What if the government prioritizes personal interests or the interests of a small social group over the law? When does the state deal with crime? What if there is a continuity of incorporating the personal interests of the political elite into the potential of the secret services? The political elite always included their personal interest in the name "state interest". And the alleged state reason for many judges and prosecutors is the most effective for understanding the pressure.
The continuity of our life in Serbia shows that the secret services have always had the greatest power. Recent history has shown us, and shows us daily, that this power has always been concentrated outside the institutions. And that is the problem of our rule of law, that the real power has been displaced - it is not, nor has it ever been, where it should be. The real power is outside the institutions, at the top of the political elite, and the political elite made all those important decisions that, in fact, should have been made by the institutions. And when you put people in institutions that do not belong to them, then it is normal that the excess power of the political elite leads to a lack of their power and responsibility.
In our country, only the political elite realized the right to autonomy and independence. Everyone else is not. Non-institutional governance has become the practice of modern Serbia, from the nineties until today. And when you have extra-institutional rule, you usually do it with the help of secret services. And if in some trial or process you recognize that continuity, that personal or political interests are embedded in the potential of the secret services, you are obliged to go towards that legitimate goal, which is to inform the citizens of Serbia about the truth. And that's why I don't agree that it has to lead to prison, as, unfortunately, my colleagues suggest.
How should this problem be solved at all? the relationship between the presumption of innocence and media freedom?
Protection of the presumption of innocence on the one hand, and media freedom on the other, do not have to be in conflict. There is no legal certainty without the presumption of innocence. Ever since the presumption of innocence was introduced as a concept in law, after the French Revolution in 1789, it referred to guarantees for an individual, a man in conflict with the state. Over time, since in addition to the state there are also certain public figures who have the power of suggestion, the presumption of innocence has become an important principle without which there is no fairness, no fair trial without the presumption of innocence, no justice.
We lawyers fight daily to prevent public opinion from being shaped by the notion that someone is guilty before the court has determined that they are guilty. That is the essence of the presumption of innocence – that someone is not found guilty until proven guilty. However, against that right, you have the indisputable right of the public, and that is the guarantor of our freedom. Justice must be done, but it is not enough that it is done if it is not seen to be done. That is why the public is important, to see that justice is done. For us lawyers, the public and journalists are sometimes the most important weapons - to open a certain social discussion, to point out some selectivity in the application of the law, to the unequal treatment of citizens, to abuses by the state and institutions... I said at that conference - there is no free citizen without a free journalists, just as there is no legal certainty without the presumption of innocence.
However, these two rights can come into conflict. Then the state must regulate it by determining the criteria - what is the balance in the conflict between those two rights, where is the measure when one right can be denied or reduced at the expense of another right? I think that the only real measure is what is called the public or social interest. And the social interest is sometimes more important than the rights that belong to each individual and that are in conflict with the law.
But that balance and criteria that the state should establish, it is not criminal law, it is not a crime, it is not prison. You have other instruments, lawsuits for violation of the presumption of innocence, these are civil proceedings before civil courts.
The interview with Zdenko Tomanović was conducted before lawyer Dragoslav Miša Ognjanović was killed on Saturday, July 28. After this murder, Tomanović sent "Vremen" his reaction to the murder of a colleague with whom he collaborated during the trial of Slobodan Milošević in The Hague:
"I was very shaken by the news of the murder of a colleague with whom I shared the various trials, hardships, and pleasures that this case brought for years on the occasion of the Milosevic trial in The Hague."
Misha was killed only because he is a lawyer. And that, unfortunately, does not prevent our political elite or their media pawns from giving a significant measure of criminalization of the lawyer, while favoring the piquancy from his private life.
This is possible in our country, because our institutions are driven only by political interest and practical benefit.
Despite the large number of liquidations, the political elite convinces us of security, and reality is the biggest enemy of such a thesis. I'm afraid that their clear attitude is hidden behind it, which simply means that it's a matter of the underground and let them kill each other. Such an attitude is dangerous because it encourages crime, and then the criteria for placing on the kill list remains unclear and stretched.
There is no longer that political marketing that can hide the impotence or ignorance or the lack of will of the state to provide all citizens with equality in the protection of all the rights that belong to citizens."
"WEATHER": How can the judiciary be reformed?, without it being "with an axe" like 2009, and again that prosecutors and judges do not remain in the judiciary (and especially court presidents) who have allowed someone else to decide the outcome of the work they are doing?
ZDENKO TOMANOVIC: The elite imposed the position that the evolutionary development of the judiciary should not be allowed. And building a good judiciary is serious business and there is no practice involved. The temporary workers who run the judiciary refuse to see the problems, and even for those problems of their own making, they now shift the blame to others.
Judicial reforms were reduced to the replacement of judges based on political criteria or criteria of personal vendettas, or the criteria of a closed social group. Corruption remained the same, but the number of obedient and incompetent ones increased. After all, that judiciary has been in a VD state for years.
Instead of developing the judiciary in the direction of completely separating the executive power from the judicial power, unfortunately, every year has meant a greater influence of the executive power in the area of the judicial power. The professional integrity of the profession must be opposed to pragmatic populism in the application of law and to legal non-culture. In order for this to be possible, it is necessary to first admit that there is a problem in our profession and in our evaluation of the role of lawyers, judges and journalists.
