JURIST Guest Columnist Teodora Miljojkovic discusses the implications of Serbia passing an amendment instituting life without parole
On Tuesday, May 21, the Serbian National Assembly passed the Criminal Code amendment which introduced significant changes into the criminal justice system, out of which the most controversial one is the sentence to life imprisonment without the possibility of parole (LWOP). The LWOP is now prescribed as a possible sentence for some of the most serious offences prescribed by the Criminal Code:
- Aggravated murder (art. 114, par. 9 (1));
- Rape which resulted in death. (art. 178 (4))
- Sexual intercourse with a helpless person which resulted in death. (art.179(3))
- Sexual intercourse with a child which resulted in death. (art.180(3))
- Sexual intercourse through abuse of position (art.181(5))
These legal novelties were triggered by the citizens’ petition, so-called “Tijana’s Law Initiative” which was a public response to the egregious case of rape and violent murder of a 13-old girl back in 2014. In the Rationale of amending the law, the Serbian legislator stated that this amendment derives its legitimacy from the will of 158.460 citizens who signed the petition, demanding the most severe punishment for the sex offenders. The citizens of Serbia welcomed this law as an act which would finally bring justice to the victims of the most serious crimes and their families. Nevertheless, the judiciary, academia, and eminent human rights institutions (NGOs such as Autonomous Women’s Center, Yucom Lawyers’ Committee for Human Rights, Belgrade Center for Human Rights) have tried to draw attention to the discordance of this amendment with the international human rights standards and Serbian constitution, but also to bring to the public attention the dangerous outcomes this law may lead to in the future.
The first and obvious issue which needs to be addressed is that the life imprisonment sentence was proposed in the citizens’ initiative only in regard to the murder of a child or a pregnant woman and sexual offences which resulted in death. Nevertheless, the legislator in the Law’s rationale stated that “it doesn’t make sense to have both life imprisonment and the max. 30-40 year sentence in the Criminal code”, so article 40 of the Amendment extended the application of this law to all the criminal offences for which there was earlier a 30-40 year sentence prescribed. The problem is that the range of the criminal offences for which the courts can now impose the life sentence goes far beyond the one proposed by the Initiative. (E.g. criminal offences against the constitutional order and security of the state, genocide, crimes against humanity, crimes against the civilians, planning of murder and murder of the highest state officials). There are two serious problems with this legal solution: first, even if it is true from the perspective of legal certainty that there should be only one maximum sentence, the life imprisonment, being the replacement of the capital punishment, should it be proved as justified and necessary in regard to each particular criminal offence. The National Assembly failed to do so. Secondly, the legislator introduced LWOP in relation to the previously mentioned sexual offences and aggravated murder, but left the option of parole for genocide and crimes against humanity, which is unreasonable from the aspect of the proportionality of the sanction. It seems as the law was introduced as a strong emotional response to a hard case, which leading Serbian criminal law experts defined as not so useful strategy of crime prevention. In addition, this legislative framework can lead to many problems in practice which the legislator didn’t take into consideration.
For example, NGO Autonomous Women’s Center tried to warn the National Assembly that the introduction of the life imprisonment would actually lead to lower and not higher sentences for those who commit the most serious offences, taking into consideration the Serbian courts’ sentencing policy. Statistics from 2017 which this organization provided show that in 51 cases of the aggravated murder, the courts delivered only two maximum year sentences. The second highest sentence after the previous max. 30-40 year sentence in the Serbian criminal law is 20 years in prison (art.45 (1) of the Criminal Code). If courts in future will be able to apply only life imprisonment or the second highest sentence (20 years), statistics show that the courts would most likely go for the less severe option, which will be completely against the rationale of this amendment.
Additional controversial provision of this amendment concerns the repeat offence which seriously restricts the competencies of the judiciary in the criminal proceedings. If an individual commits a new crime within 5 years after he was convicted for another crime, the judge will have to apply the stricter sentence, regardless of the different nature of those two offences. This could lead to absurd and seemingly unjust consequences in practice.
The second aspect from which this law could be analyzed is the international human rights framework which Serbia obliged itself to, particularly European Convention on Human Rights. Serbia has been a Contracting state of the European Convention since 2003, which entails the state’s obligation to fully comply with the European Court of Human Right’s jurisprudence. Introduction of the life sentence without the possibility of parole is in discordance with the jurisprudence of the European Court of Human Rights as it amounts to a violation of the Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment or punishment). It is important to note that life imprisonment is not prohibited under the Convention as such, mostly because of the states’ wide margin of appreciation in the matters concerning criminal justice system and the lack of European consensus in relation to the punishment for the most serious crimes.
“It is well-established in the Court’s case-law that a State’s choice of a specific criminal justice system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at the European level, provided that the system does not contravene the principles set forth in the Convention” (See Vinter and Others v. the United Kingdom, judgment (Grand Chamber) of 9 July 2013, §104 Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008, §99). In addition, the Court established that “it is not its role to decide what is the appropriate term of detention applicable to a particular offence or to pronounce on the appropriate length of detention or other sentence which should be served by a person after conviction by a competent court” (Vinter and Others v. UK, cited above, §105, also see T. v. the United Kingdom [GC], no. 24724/94, § 117, 16 December 1999; V. v. the United Kingdom [GC], no. 24888/94, § 118, ECHR 1999‑IX; and Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001‑VI).
Thus, the life sentence would probably pass the ECthHR 3-tier test of rights’ restriction (The restriction of human rights has to be 1. prescribed by law. 2. proportionate. 3. necessary in democratic society).
Nevertheless, the life sentence without the possibility of parole would not, according to the Court’s standards set in the Kafkaris and Vinter and Others v. UK judgements.
Firstly, in Kafkaris v. Cyprus, the Court stated that the punishment has to be reducible de iure e de facto in order not to amount to a violation of the article 3 of the Convention. (Kafkaris v. Cyprus §98). Further, in Vinter and Others v. UK, the Court elaborated more on when the sentence would be regarded as irreducible and, thus, violate the article 3:
“… [I]n the context of a life sentence, Article 3 [of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment1,] must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds……..where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention. … Furthermore, … [a] whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.” (Vinter and Others v. the United Kingdom, cited above, §§ 119-122).
The rationale behind this Court’s approach is that the prisoner, regardless of the seriousness of the crime he committed, has to have the right to hope that he will eventually be released and reintegrated into society, if he no longer represent a public threat. The right to hope, of course, is not explicitly protected under the Convention, but the idea of protecting such right often appears within the ECtHR jurisprudence. For example, in his concurring opinion to the Vinter judgement, the judge Power Forde stated:
“Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading”.
Thus, under the ECHR standards, the LWOP would undermine the highest protection of human dignity, which all the Contracting states agreed upon. Since the Serbian amendment was introduced without taking into consideration these standards, we can expect a lot of pending cases in front of the ECtHR in regard to the LWOP in the future, which will most likely end up in Court finding a violation of the Article 3.
Other than European Convention on Human Rights, this law does not meet the standards of the other ratified conventions either, such as International Covenant on Civil and Political Rights or Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Council of Europe (CoE) Commissioner for Human Rights Dunja Mijatovic expressed her criticism in regard to the new law already at the drafting stage, but the Serbian Government disregarded it.
Finally, the Amendment to the Criminal Code is in discordance with the article 20 of the Serbian Constitution which prescribes that “attained level of human and minority rights may not be lowered.” Serbia was one of the rare countries which did not introduce the life imprisonment sentence after having the capital punishment abolished in 2002. Thus, introducing it after 17 years would hardly have a constitutional ground.
Teodora Miljojkovic is the JURIST regional editor in Hungary. She attends Central European University.
Suggested citation: Teodora Miljojkovic, Serbia Introduced the Life Sentence without Parole, Despite its International Obligations, JURIST – Academic Commentary, May 28, 2019, https://www.jurist.org/commentary/2018/12/teodora-miljojkovic-serbia-parole/
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