"Insulting the Yugoslav President"
Serbian and federal law enable an individual performing a political duty to file a private suit, like any other citizen, if he of she thinks that another person has insulted or defamed him or her. If, however, the insult or defamatory remark is connected to the functionary's performance of an official duty, it is a separate offense (under article 157 of the Yugoslav penal code) on which the public prosecutor is authorized to act.181 While there were no reports of the use of this provision to suppress freedom of speech in 1998 or in the first three months of 1999, there were several cases in the period during and after the NATO war. All of these cases dealt with the defamation of President Milosevic (nolegal action was taken against the Serbian state media for its continuous denigration of Milo Djukanovic, president of Montenegro, even though the Serbian penal code prohibits defamation of both Serbian and Montenegrin officials).182
As mentioned earlier, Biserka Apic, forty-three, from Sremska Mitrovica was convicted of defamation on May 26, and sentenced to four months imprisonment for violating article 157 (1) of the Yugoslav penal code.183 In the opinion of the district court in Sremska Mitrovica, Apic committed the offense on April 28 by uttering the following words in the presence of four colleagues: "Shut up, Josip; you let that jackass be the president of your country and to lead you like sheep over the past ten years, and throughout these ten years we've been in war."184 She was also alleged to have said, on the same occasion, that the blame for the NATO bombardment of Yugoslavia was not to be put on Clinton and NATO, but on the people of Serbia, and that the culprit responsible for the war was Slobodan Milosevic. After the court in Sremska Mitrovica rendered the judgment, Apic was released until the Supreme Court of Serbia ruled on her appeal. Oral argument was presented before the Supreme Court on November 9, but the court had not rendered a decision as of January 2000.
The decision of the district court states that "it is sufficient for the existence of this offense that the accused made derogatory remarks...in a closed circle of people, i.e., at her office."185 However, the two most authoritative commentaries to the penal code provide no basis for such a conclusion. A commentary co-authored by Zoran Stojanovic, Belgrade Law School professor and president of the Yugoslav Committee for Gathering Data on Crimes Committed against Humanity and International Law, explicitly states that "[for this offense to exist] the statement has to be public (it can not be a statement or a discussion in a closed circle of people)."186 Ljubisa Lazarevic, another Belgrade Law School professor, fails to give a clear answer in his commentary: in his opinion, the phrase "public exposure [to ridicule]" cannot be construed through the number of persons present alone, but "through an observation of the overall circumstances of the case."187
The official records of the proceedings offer an unclear picture of what Apic actually said before her colleagues. Two witnesses claimed that they heard her uttering the words referred to in the verdict, while the other two could not remember exactly what she had said Apic claimed that the target of her words was not Slobodan Milosevic, whom she did not mention by name at all, but the people, who "uncritically follow a leader, just as sheep follow an ass."188
Apart from the issue of what exactly was uttered on the specific occasion and how many people were present, the crux of the matter is the manner in which Yugoslav legislation defines the domain of free speech and how the Serbian courts interpret this domain. Like article 218 of Serbia's penal code,189 article 157 imposes severe limits on the expression of personal views, and it vests courts with the power to determine authoritatively the "truth" in contentious political issues. The decision in the case of Biserka Apic affirms that a court is the proper forum for establishing the truth on a political issue (the political responsibility of Slobodan Milosevic for the war in Yugoslavia). And for an ordinary citizen, unprotected by a "scientific, artistic, [etc.]" veil, to express a different view means "to make a derogatory remark" and to be subject to penal prosecution. The courts thereby become a powerful tool in curtailing freedom of expression.
Those who employ "ridiculing remarks" in a literary work do not enjoy sufficient protection of the law. If a prosecutor and a judge find that such remarks were made without the intention to denigrate, the author passes muster (article 157 (2) of the Yugoslav Penal Code). If, however, the judicial bodies recognize such an intention on the part of the author, he or she can face penal prosecution and punishment.
In February 1999, the district public prosecutor in the eastern Serbian town of Zajecar indicted Boban Miletic Bapsi, a writer from the nearby town of Knjazevac, for ridiculing the state and its president, Slobodan Milosevic. Miletic's controversial book of aphorisms, in which the prosecutor found evidence of the offense, was published in November 1998. Among the aphorisms that the prosecutor found violated the penal code are: "Leader, go to the top of Beogradjanka [skyscraper] and take a step forward; it would be a small step for you, and a big one for Serbia," "Milosescu, you'll end up worse than Ceausescu," and, "In a country of abnormal people, it is normal that the most abnormal rules." The prosecutor found that sentences like these were not humorous or satirical-which would exempt the writer from prosecution-but were made with an intent to denigrate.190 As of January 2000, the trial had not begun.
A retired waiter from a village near Knjazevac, Djordje Rajkovic was indicted at the beginning of August for insulting President Milosevic, the federal government, and the army191 during a private conversation in a bar. According to the indictment, on July 15, 1999, Rajkovic publicly exposed Milosevic, the government, and the army to ridicule "in connection with their performance of their duties," by uttering the following words: "Slobodan Milosevic created a strong police which protects him, he weakened the army, he is a thief and should be replaced;" and, "the motherf...r sold the country, sold Kosovo, sold the people." Rajkovic was alleged to have said these words on the terrace of a bar in Knjazevac in the presence of several people.192 The trial began on October 26 before the district court in Zajecar. On November 16, Rajkovic was given a three-month suspended sentence. As Rajkovic's lawyer explained to Human Rights Watch, the court found Rajkovic guilty, but prescribed a light punishment because, in the early 1990s, Rajkovic had been captured and tortured by the Croatian army.193
Prosecution of Conveners of Protests
Svetozar Fisic and Slobodan Karaleic
Two internally displaced persons (IDPs) from Prizren (Kosovo) were sentenced on June 21 for organizing a protest staged by ethnic Serbian IDPs from Kosovo in Belgrade on the same day. Svetozar Fisic, who is also the president of the Democratic Party branch in Prizren, and Slobodan Karaleic were sentenced to thirty days of imprisonment.
The rally was organized to oppose the Serbian government's campaign of returning Serbs who had fled or been forced from Kosovo after the withdrawal of the Serbian and Yugoslav armed forces in mid-June.194 Fisic himself had left Kosovo six days before the rally and his arrest.
At the beginning of the rally, a police officer warned Fisic that the rally was canceled, because of a war decree forbidding public gatherings which was still in force although the NATO intervention had ended two weeks before.195 The rally took place as the Serbian authorities were trying to downplay the significance and magnitude of the Kosovo Serbs' plight. Fisic and Karaleic were found guilty of disturbing public peace and order and of failing to report within twenty-four hours "changes of temporary residence," which they were obliged to do on the basis of a decree issued by Serbian president Milan Milutinovic at the beginning of the NATO intervention. As Fisic noted in an interview after his release from prison, "[I]f it really had been for the change of residence, they would have arrested at least 250 persons present at the rally."196
Fisic was again detained by the police on October 25 in Belgrade. He was distributing copies of the daily bulletin Promene (Change), issued by the Alliance for Change during the street protests in Belgrade and other Serbian cities. The police confiscated the bulletins and detained Fisic for one hour in the police station.197
On July 6, a magistrate in Leskovac convicted Ivan Novkovic, thirty-four, and sentenced him to thirty days of imprisonment for gathering citizens in public rallies that were not authorized by the authorities.198 According to the magistrate's ruling, at a rally held in Leskovac on July 5 Novkovic had "gathered" citizens and invited them to attend another unauthorized rally, to be held the next day. The prosecution witnesses, two police inspectors, said that they had heard Novkovic inviting the participants to the July 6 rally, although Novkovic denied this. In violation of the Serbian Misdemeanors Act (article 197), the magistrate did not allow him to confront the witnesses. Nor was Novkovic advised of his right to retain a lawyer.199
During Novkovic's stay in jail, penal proceedings against him were initiated, and an indictment was filed on August 9. It related to the videotape Novkovic played on the evening of July 1 in which Novkovic stated that Zivojin Stefanovic, in his capacity as the head of Jablanicki district, had sent more than 30,000 people to army units serving in Kosovo and that he had brought the economy of the district to a collapse. The public prosecutor found these allegations untrue and harmful to Stefanovic's honor and reputation. He called them "an abuse of official position," for which imprisonment of up to five years is prescribed by law.200 He called Novkovic a "responsible person" who had used his official status in the TV enterprise and committed an offense.201 Novkovic's lawyers claimed that he could not have committed such a crime, as he is only a technician at the station with no official position to abuse.202
At the end of September, Novkovic was fired from the TV station.203 His trial began on October 25, but had not ended as of January 2000.
Milorad Mitic and Bratislav Stamenkovic
Protest rallies in Leskovac continued in July and August for forty-five consecutive days. Throughout this period, a number of local residents were exposed to pressure by the police, in the form of "informative talks" in which they were persuaded to "avoid" the rallies.204 Another form of intimidation was the imprisonment of those who spoke atthe rallies. One of them, Milorad Mitic, was sentenced on July 8 to sixty days imprisonment. He had also been convicted of offenses during the large-scale 1996-1997 demonstrations against the government.205 In the period between the 1996-1997 protests and the July 1999 events, Mitic was convicted several times of violations of traffic regulations, in what local human rights defenders described as continued legal harassment by local authorities who have targeted him as a vocal critic of the government.206 His latest stint of imprisonment was punishment for his participation on the first three days of the protest rallies in Leskovac, where Mitic, who fought in Kosovo, addressed the crowd in a Yugoslav Army uniform. Like Ivan Novkovic (see above), Mitic was convicted on a charge of "gathering citizens in a public rally that was not authorized by the authorities."207
Bratislav Stamenkovic, one of the participants in the protests in Leskovac and another returnee from the war in Kosovo, served twenty-five days in prison, from July 13 to April 7.208 He was charged with gathering citizens without previous notification of the gathering to the police. Stamenkovic had spoken at the previous six gatherings, but was prosecuted only because of his alleged organization of the July 12 rally. He explained to Human Rights Watch:
I suppose they punished me because on July 12, I invited the audience to walk the next day to the prison in which Ivan Novkovic was serving his sentence, and to express their discontent there. The magistrate interpreted these words as my invitation to "attack the prison." Formally, however, I was found guilty of organizing an unauthorized rally. However, at some point before my arrest the local branch of the Serbian Renewal Movement had assumed the organizational aspect of the rallies, precisely for the purpose of preventing harassment of us, ordinary citizens, unprotected by membership in a political party. So the SPO was announcing the rallies in advance. The police never responded with either an express authorization or a prohibition of the rallies.209
The Serbian Law on Citizens' Gatherings stipulates that, in order to prohibit a gathering, the police must express their intent to do so. Failure to announce a prohibition means that the rally is authorized. In spite of this, the magistrate found that Stamenkovic violated the law.
In another Serbian city-Valjevo-thousands of people responded to the invitation of local painter Bogoljub Arsenijevic to attend an anti-government rally on July 12. Approximately 15,000 gathered on the central square that day, making it the biggest rally in Valjevo over the past ten years. After the rally, several thousand demonstrators walked in the direction of the SPS-controlled municipal assembly. In clashes with the police, several civilians and three policemen were hurt, and some windows and furniture in the building were damaged.210
After the rally, Arsenijevic went into hiding for one month. On August 17, however, he was arrested and severely beaten while leaving the Belgrade office of the Movement for Democratic Serbia, a newly founded opposition party led by former VJ head, General Momcilo Perisic. As Arsenijevic described in a statement secretly recorded during a visit by his wife in the Belgrade Prison hospital, the four persons who captured and beat him were not policemen butthugs employed by a private agency and hired for that occasion.211 His jaw was broken and he suffered from internal bleeding.212
At his first appearance before the investigating judge, on Aug 19, Arsenijevic was unable to give any statement due to his injuries.213 Although the doctor at the Valjevo Emergency Clinical Hospital recommended that Arsenijevic be transferred immediately to a Belgrade hospital, this was not done until four days later. On August 25, Arsenijevic underwent an operation on his jaw in Belgrade, after which he was sent back to Valjevo prison. On September 17, he was indicted on a charge of obstructing police officers under article 23 of the Serbian Law on Public Order and Peace.
Other than his fractured jaw, his injuries were not dealt with for weeks after the police attack. His condition therefore deteriorated in the Valjevo prison and, at the beginning of October, Arsenijevic was again sent to the main prison hospital in Belgrade. There, he began a hunger strike there to demand a transfer to the civilian hospital in Valjevo. On October 11, unconscious, he was transferred to the hospital.
The police and judiciary bodies in Serbia have shown no intention to investigate and punish those responsible for Arsenijevic's beating. On October 4, four of Arsenijevic's friends and relatives who had protested before the Valjevo court were detained for five hours by the police. One of the detainees told Human Rights Watch that an inspector at the police station "threatened to kill the detainees" while they were being held.214
Arsenijevic's trial began on October 28 in the district court in Valjevo, and on November 15 the court sentenced him to three years in prison. Human Rights Watch observed the October 25 session, at which five policemen, witnesses for the prosecution, testified. Their accounts of the July 12 events were contradictory, particularly with regard to the description of Arsenijevic's alleged use of physical violence in the municipality building and the circumstances in which two policemen were injured. One of the defense attorneys, a lawyer with Belgrade's Humanitarian Law Center, told Human Rights Watch that at another session, on November 11, ten defense witnesses testified that the policemen were hurt outside of the building, and not in Arsenijevic's vicinity.215 Independent media reports on the trial match the account given by the lawyer.216 In an oral explanation of the November 15 verdict, the presiding judge Djunisic acknowledged contradictions in the policemen's testimonies; he nevertheless claimed that Arsenijevic's responsibility was firmly established. He did not explain the court's refusal to consider the testimonies given by the non-police witnesses.
As of January 2000, Arsenijevic was in prison awaiting the outcome of appeal proceedings before the Supreme Court of Serbia. In January, an independent association of journalists submitted a request for a pardon on his behalf to the Serbian president Milan Milutinovic. From prison Arsenijevic, however, said he rejected the idea of a pardon either from Milan Milutinovic or Slobodan Milosevic, despite his aggravated health condition.217
181 "(1) Whoever exposes to ridicule in public the FRY, its flag, coat of arms or anthem, the president of the FRY, the federal assembly, Federal Government, Yugoslav Army, presidents of the chambers in the Federal Assembly, or president of the Federal Government, in connection with performance of their duties, will be punished by imprisonment of up to 3 years; (2) Perpetrators will not be punished for exposing to ridicule the superior organs or representatives of the organs, if the derogatory remarks were made in a scientific, literary or artistic work, in serious criticism, in performance of official duties, in the exercise of the profession of a journalist, in political and other social activity in the defense of a right or in protection of justified interest, if the manner of expression and other circumstances do not indicate that the statement was made with the intention to denigrate; or, if the author proves the veracity of the statements, or proves that there were justified reasons to believe that the statement made or reproduced was true." Krivicni zakon Savezne Republike Jugoslavije, sa objasnjenjima i uputstvima (Penal Code of the Federal Republic of Yugoslavia, with Explanations and Instructions), 2nd amended edition, Belgrade, 1995, article 157.
182 While the FRY penal code (article 157) protects federal officials from defamation, Serbia's penal code (article 98) protects, using analogous wording, functionaries at the level of the two republics (Serbia and Montenegro).
183 Decision of the district court in Sremska Mitrovica, No. K: 45/99 (on file with Human Rights Watch).
185 Ibid., p. 8.
186 Obrad Peric and Zoran Stojanovic, Krivicno pravo, Posebni deo (Criminal Law, Specific Crimes) (2nd ed, Belgrade 1998), p. 36.
187 Ljubisa Lazarevic, Krivicno pravo Jugoslavije, Posebni deo (Yugoslav Criminal Law, Specific Crimes) (Belgrade 1998), p. 497.
188 Decision of the District court in Sremska Mitrovica, No. K: 45/99 (on file with Human Rights Watch), para. 3.
189 See above, footnote 27.
190 Indictment by District Prosecutor in Zajecar, No. K 13/99 (on file with Human Rights Watch).
191 D. Vitomirovic, "Kafanski svedoci brane ugled SRJ" (Witnesses From a Bar Protect Reputation of FRY), Danas, August 12, 1999, p. 10.
193 Human Rights Watch telephone interview with Miodrag Nikolov, defense attorney of Djordje Rajkovic, November 16, 1999.
194 See Human Rights Watch, "Abuses Against Serbs and Roma in the New Kosovo," A Human Rights Watch Report, vol. 11, no. 10 (D), August 1999.
195 D. Petrovic, "Krenuo sam kod predsednika, stigao u `Padinjak'" (I Went to the President, But I Arrived to a Jail), Glas Javnosti, July 25, 1999, p. 11.
197 Priveden Fisic (Fisic Detained), Glas Javnosti, October 26, 1999, p. 2.
198 Decision of the Municipal Magistrate in Leskovac, No. 7068/99-8, July 6, 1999 (on file with Human Rights Watch).
199 Human Rights Watch interview with Gradimir Nalic, lawyer in the Yugoslav Committee for Human Rights, Belgrade, September 6, 1999.
200 "Official person who uses his position...and inflicts harm upon another person or violates his or her rights, shall be punished by six-months to five-years of imprisonment." Penal Code of the Republic of Serbia (Ministry of Justice and Official Gazette eds., Belgrade 1998), article 242 (1).
201 M.J., "Novkovic osumnjicen za zloupotrebu polozaja" (Novkovic Suspected of Abusing His Position), Glas Javnosti, July 23, 1999, p. 8.
202 M.Z.I., "Novkovicevi advokati optimisti" (Novkovic's Lawyers are Optimistic), Glas Javnosti, July 27, 1999, p. 6.
203 M.Z.I., "Ivan Novkovic dobio otkaz" (Ivan Novkovic Fired), Blic, October 4, 1999, p. 6.
204 Human Rights Watch interview with Bratislav Stamenkovic, member of the Civic Parliament in Leskovac, Belgrade, September 5, 1999.
205 See Human Rights Watch, "Discouraging Democracy: Elections and Human Rights in Serbia," A Human Rights Watch Report, vol. 9, no. 11 (D), September 1997.
206 Human Rights Watch interview with Gradimir Nalic, lawyer in Yugoslav Lawyers Committee for Human Rights, attorney of Milorad Mitic and Bratislav Stamenkovic, Belgrade, September 6, 1999.
207 Decision of the municipal magistrate in Leskovac, No. 7072/99-8, July 8, 1999 (on file with Human Rights Watch).
208 Human Rights Watch interview with Gradimir Nalic, Belgrade, September 6, 1999.
209 Human Rights Watch interview with Bratislav Stamenkovic.
210 J. Stojic, "Arsenijevic se tereti za cetiri krivicna dela" (Arsenijevic Charged With Four Crimes), Politika, August 19, 1999, p. 14.
211 The transcript of the Arsenijevic's account of the event was published in Z. Stanojevic ed., "Kako me policija prebila i uhapsila" (This Is How the Police Beat and Arrested Me), Vreme, September 11, 1999, p. 15.
212 "Maki prebacen u valjevski Urgentni centar" (Maki Transferred to Valjevo's Emergency Clinical Hospital), Danas, August 18, 1999, p. 22.
213 N.A., "Bez izjave zbog jakih bolova" (No Statement Because of Severe Pain), Danas, August 20, 1999, p. 22.
214 Human Rights Watch telephone interview with member of the Civic Resistance in Valjevo (name withheld), October 4, 1999.
215 Human Rights Watch interview with Natasa Rasic, lawyer in the Humanitarian Law Center, Belgrade, November 17, 1999.
216 "Svedoci brane Makija" (Witnesses Defend Maki), Danas, November 12, 1999, p. 13; Dragan Todorovic, "Miloseviceva posledica" (Consequence of Milosevic), Vreme, November 20, 1999.
217 M.Z.D., "Ne zelim Milosevicevu milost" (I Don't Need Milosevic's Mercy), Danas, January 12, 2000, p. 22. The statement was communicated to the media through the Valjevo Civic Resistance group.