Is More Repression Less Repression?

Blog Post Author- Milena Vasic, Attorney at law

At the beginning of October, the Draft Amendments to the Criminal Code was published on the website of the Ministry of Justice, with a public hearing deadline of 20 days. We haven’t had the opportunity to hear the Minister of Justice, to instruct us in the changes and reasons for the changes in the law and to invite citizens and experts to join the public hearing, but only faithful followers of the Ministry’s website could find information about the draft.

For a long time now, there has been a tendency in Serbia to solve social problems through the repressive apparatus of the criminal law. When the Criminal Code was changed in 2019, we warned that introducing life imprisonment without the possibility of parole violates international standards and pushes the boundaries of the achieved level of human rights. Due to the popular tendency to seek solutions in criminal law, a small number of people at that time could understand that it has not been a matter of defending murderers and rapists, but to warn that once you move that line, every next time it would get easier.

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At this moment, the social problem that wants to be solved by the amendments to the Criminal Code is not negligible. Changing the law should result in protecting journalists who are systematically persecuted, insulted and silenced in Serbia, who suffer hundreds and thousands of messages of extremely offensive and humiliating content which they can do nothing with, unless it is a direct threat. Skillfully organized attacks on journalists, particularly through social networks, very often cannot be qualified as one of the existing criminal offences, although their content is not less disturbing. Therefore, the journalist is left only with a private lawsuit against N.N with unknown address.

The changes envisaged by the current draft refer to three criminal offences – coercion, endangering safety and preventing the printing and distribution of printed items and broadcasting programs.

In the criminal offense of coercion, a qualified form of offense is introduced in which coercion committed in a brutal manner is equated with coercion committed against a person whose work is of public importance related to those activities. Defining the work of public importance, the Code states: “The work of public importance considers performing a profession or duty that has an increased risk to the safety of the person performing it, and refers to professions that are important for public information, human health, education, public transportation, legal and professional assistance before judicial and other state bodies.”

According to the published draft, regarding criminal offense of endangering safety, not only the threat of attacking the life or body of a person or a closely-related person is going to be punishable, but in addition to attacking life and body, freedom and property of greater value are added. Thinking what the threat to attack a person’s freedom will look like, we can’t help but remember one sentence that can often be heard in our political debate: “You will end up behind bars.” Could someone who says this really end up behind bars if he threatens someone with bars? Will a person who proves that saying “bars” he meant on a legally conducted criminal procedure with respect for the right to a fair trial, without the intention of endangering someone’s safety, prove this from detention? It is particularly dangerous if we consider that the qualified form of endangering safety, which is punishable by imprisonment of up to five years in prison, protects the President of the Republic, MPs, Prime Ministers, members of the Government, judges of the Constitutional Court, judges, public prosecutors and deputy public prosecutors, attorneys at law, police officers and persons performing work of public importance in the field of informing related to the work they perform. So, as with the criminal offence of coercion, it is not just about journalists.

Regarding the criminal offense of preventing the printing and distribution of printed items and broadcasting programs except the title of the offense, the second paragraph has been completely changed to an almost completely new criminal offense so that it stands:

“The punishment referred to in paragraph 1 (fine or imprisonment of up to one year, cf.) whoever unauthorizedly prevents or obstructs publishing through the media of information of public importance, or who, due to publishing such information or opinion by gross insult or abuse, insolent or reckless behavior, significantly endangers the peace of the person who published the information or opinion.” For this criminal offense, instead of the previous prosecution at the suggestion of the injured party, it is envisaged criminal prosecution ex officio.

Apart from the fact that the explanation of the Ministry of Justice explicitly states the need to protect journalists, from this legal text it follows that this protection does not cover only journalists. Everyone, who publishes information of public importance and opinion on such information, is protected. Information of public importance is information available to a public authority, created during the work or related to the work of a public authority, and refers to everything that the public has a justified interest to know. It is, therefore, almost any information related to the work of state bodies, which any person can present, and any other person is allowed to publish opinion on – either positive or negative. Looking at the explanation of the Ministry of Justice, it can be noticed that “in addition to information of public importance, opinion is also protected, since there is a need for wider protection of freedom of expression”, and that in addition to journalists, a wider circle of people who publish different opinions in the media is protected. Without assessing the quality of different opinions that appear in the media in Serbia, which exist, as many as people there are, the question really arises whether the opinion should be privileged by criminal protection? If you have read something that you may have considered extremely stupid and have expressed yourself insultingly enough towards the author of the opinion, according to this solution, you can go to prison. In this way, the space for discussion is significantly narrowed to the choice of words that is acceptable to the person whom they are addressed to and which do not disturb. Probably we all want to live in a better world, but at this moment, in the world we live in, there is no political discussion without disturbance, and the messages being sent in such a discussion, no matter how unpleasant they are, are protected by the standards of the European Court of Human Rights and the right to freedom of expression.

The covid epidemic has taught us that information of public importance, such as the published number of deceased persons, does not always have to be accurate, nor does it have to be true. Publishing information on the number of deceased, according to the current draft law, you become protected by this criminal offence so that if someone attacks you that you have published lies and covered up the truth in a sufficiently offensive, brazen and reckless way, that person can end up behind bars. At a time when there is a lot of talk about statistics on the number of infected and deceased and false news related to the epidemic, until that person proves that his/her intention was not to grossly insult and disturb the person who published information of public importance, but to fight for the truth, the repressive apparatus has already done its thing. It is not required to convict someone for the act they are charged with, just arresting them, calling them for an informative conversation, exposing them to the risk of criminal prosecution is repression that will make many citizens think twice before writing or saying something.

Listing the hypothetical situations where all this work can be (mis)used, journalists have been completely lost, who, that is a fact, really need more protection. Although the Ministry of Justice assures us that more repression is actually less repression, we must be aware of the political climate which we live in and the solutions to the issues we vainly seek in criminal law. The initiators of the lynching of independent journalism are not angry citizens who lose control of the keyboard, so they are looking for an adequate victim for their frustrations, but those who are protected by parliamentary and official immunity at various levels of authorities in Serbia, and who will not be affected by the Criminal Code. No law, no matter how perfectly written, can eliminate the lack of that will for social change to happen.

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