<<previous  |  index  |  next>>

Institutional and Legal Framework for Investigating and Prosecuting Offenses with Ethnic or Religious Motives

Structure of the Police, Prosecuting and Judicial Authorities

Police

The police in Serbia, including the autonomous province of Vojvodina, are centralized. The minister of interior has the power to appoint local police commanders in the municipalities. The proportion of ethnic minorities in the Serbian police remains below the percentage of the minorities in the overall population. In 2005 Human Rights Watch recommended that the government of Serbia intensify efforts to ensure greater participation of minorities in the police in Vojvodina. At the time of this writing, the level of representation remains comparable to that in 2005.

Since 2004, the Serbian authorities, advised by Organization for Security and Co-operation in Europe (OSCE), have been encouraged to reform policing structures and methods, including by introducing a community model of policing. This approach seeks to enhance collaboration and communication between the police and communities, in order to create trust, reduce community fears and apprehension, thereby promoting operational problem-solving. It emphasizes the decentralization of control, giving local forces greater autonomy. An important aspect is building capacity to investigate hate crimes. Community policing has been used in other post conflict areas, including Bosnia and Kosovo, motivated by the desire to improve police cooperation with citizens, especially minority communities.

Over the past four years, the OSCE has organized a number of pilot trainings by international experts for selected groups of high-ranking police officials.¹³ These constitute only the first small step towards training the entire police force and larger-scale police reform proposals are still pending with the Ministry of Internal Affairs. At the time of this writing, the reforms have not yet been agreed, and there is no timeline for their implementation.¹⁴

According to one international official close to the process, there remains resistance at high levels within the Ministry of the Interior, apparently resulting from fear that reform would eventually lead to decentralization of police structures and diffusion of power away from Belgrade. The change of government in July, and the appointment of a new Interior minister, does not appear to have altered this.¹⁵

Human Rights Watch wrote to the head of the Uniformed Police Directorate, in August 2008 seeking comment on the status of police reform (see Annex II). His response referred to a series of ongoing measures to improve relations between the police and the minority communities, including training workshops for the police, the creation of local “safety councils” with representatives of minority communities and the police, and outreach to encourage recruitment of minorities. ¹⁶  While welcome, the measures have yet to translate into effective investigation of attacks on minorities or greater minority representation in the police. Nor do the measures amount to the introduction of a community policing model, not least because the police remain under centralized control.

Criminal courts and public prosecutors

Serbia is divided into districts. Districts are, in turn, divided into municipalities. Most districts and municipalities have their own criminal courts and prosecutors. District and municipal-level judges and prosecutors are selected by the Serbian parliament in the capital Belgrade. District courts, as a general rule, have jurisdiction over crimes punishable with prison sentences exceeding ten years, while municipal courts have jurisdiction to adjudicate lesser offenses. Serbian legislation also lists specific crimes which, although not punishable with more than ten years of imprisonment, are within the competence of district courts. Incitement to ethnic, racial and religious hatred is one of these crimes.

Misdemeanor judges

Minor offences defined as “misdemeanors” are dealt with outside the criminal justice system by misdemeanor judges, who are appointed by the Serbian executive branch. Despite their formal titles, they are not members of the judiciary. Administrative agencies, inspectorates, and other bodies “empowered with public authority” are in charge of initiating misdemeanor proceedings.

The law on misdemeanors, adopted in 2006, and which entered into force on January 1, 2007, identifies a misdemeanor as “an unlawful, wrongfully committed act, which has been identified by the competent authority as misdemeanor.”¹⁷ Misdemeanors can be prescribed by law or decree, or by decision of an assembly of a town or city. Misdemeanor sanctions include: penalties, cautions, orders of court and corrective measures. According to the law on misdemeanors, “a fine, penalty of imprisonment, community service or penalty points, including the cancellation of a driver’s license, can be prescribed for a misdemeanor.”¹⁸

This updated misdemeanor law does not differ from the old version as far as specifying types of punishable conducts, and the provisions on specific misdemeanors are identical. One substantial change in the new misdemeanor law is the provision elevating the misdemeanor system, which would elevate misdemeanors judges into members of judiciary. However, this provision is still to be implemented at the time of this writing.¹⁹

Misdemeanor judges operate in most municipalities in Serbia. Appeals of their decisions go to one of the misdemeanor chambers that exist throughout Serbia.²⁰ The misdemeanor chamber in Novi Sad, for example, hears appeals of the decisions by misdemeanor judges in Vojvodina.

Investigating and prosecuting offences

In Serbia, responsibility for carrying out investigations is diffused among the police, investigative judges and prosecutors. A shortcoming of this system is that it is conducive to confusion over who leads the process and who has ultimate oversight authority over it. The new criminal code empowers prosecutors and investigative judges to work with the police and supervise their activities more closely.

The process starts when the police receive a report of an alleged offense. They are charged with conducting a preliminary investigation in order to gather initial information about the case. On the basis of their preliminary investigation, the police evaluate the appropriateness of legal proceedings.

There are four bodies authorized under the law to refer a case for prosecution as either a misdemeanor or a criminal offense: the police, misdemeanor judges, the office of the public prosecutor, and judges in the criminal courts. The police can refer a case either to a public prosecutor or misdemeanor judge, depending on their assessment of the gravity of the offense. If the police opt for misdemeanor charges, it is open to a misdemeanor judge to determine that the act constitutes a criminal offense rather than a misdemeanor. In that case, the misdemeanor judge can declare a lack of jurisdiction and refer the case to the competent public prosecutor. The misdemeanor judge can also complete the misdemeanor proceedings and report the case to the competent criminal prosecutor. This is not considered double jeopardy (prosecution for the same offense more than once) because misdemeanor proceedings are administrative rather than judicial, and because a finding of guilt does not constitute conviction on a criminal charge.

In case of charges determined by the police to be of a criminal nature, a district prosecutor has to accept these charges and send them to an investigative judge to supervise the police investigation. Under the new criminal code enacted in June 2006 (which entered into force in June 2007), a district prosecutor can assume the similar role to an investigative judge in terms of overseeing the police investigation. This new role for prosecutors further diffuses responsibilities for investigations, making it harder to assess where responsibility for inaction may lie.

An investigative judge works in a close cooperation with the police to collect all information pertinent to the proceedings and to secure evidence.²¹ When there is sufficient evidence to support an indictment, an investigative judge needs to hand the file over to a prosecutor, who then drafts an indictment. The role of an investigative judges ends at this points. With respect to the incidents addressed in this report, prosecutions are initiated by offices of public prosecutor.²²

Prosecuting Offences with an Ethnic or Religious Motivation

There are three legal avenues for prosecuting offences with an ethnic motivation. The first option is to charge the suspect with general public order offenses under the criminal code, such as violent behavior or participation in group violence.

The second option is to treat the offense as a misdemeanor, an administrative charge that may encompass public order offenses, which are under the jurisdiction of the misdemeanor courts (outside of the criminal justice system) and prosecuted by municipal prosecutors.

The third way to charge suspects is to use Article 317 of the criminal code, which prohibits incitement to ethnic, racial and religious hatred. For an offense to qualify as an Article 317 crime, it is not necessary that the perpetrators’ motive is hatred. Criminal responsibility under Article 317 attaches when the perpetrator intended to incite hatred against the victim group, or knew that hatred was a likely result and was reckless as to whether such hatred resulted (“advertent recklessness”). District courts have jurisdiction over alleged Article 317 crimes, which are prosecuted by district prosecutors. 

Human Rights Watch has previously advocated for the more robust use of the Article 317 (Article 134 of the old criminal code), in order to ensure that ethnically and religiously motivated crimes result in criminal convictions against adults. In 2005, we reported out that most crimes committed against national minorities as acts of retaliation in response to events in Kosovo (the anti-Serbian riots) were classified as misdemeanors and in some cases ordinary offenses of violent behavior. This classification resulted in light punishments—and in case of misdemeanors in symbolic penalties.

Despite the introduction of the 2006 criminal code, the way offenses with ethnic or religious motivation are being prosecuted has not changed. In 2008 Article 317 (Article 134 of the previous criminal code), which prohibits incitement to ethnic, racial and religious hatred was still not used to prosecute cases of inter-ethnic violence.

Absence of hate crimes legislation

Furthermore, Serbian criminal law still lacks a clear provision that would allow for the imposition of greater sentences for ethnically aggravated forms of offences, which Human Rights Watch recommended in 2005. Article 54 of the criminal code called “General Rules on Sentencing” states that the “court shall determine the penalty for the perpetrator of a criminal offence within boundaries prescribed by the law for that crime, and taking into consideration the purpose of punishment as well as all mitigating and aggravating circumstances, and in particular: degree of guilt, motives out of which the offense was committed . . .”²³ But neither Article 54 nor any other provision of the criminal code explicitly states that the court may impose a harsher penalty if the victim has been targeted because of his or her actual or perceived race, religion, or ethnicity. Moreover, in practice prosecutors do not tend to argue that ethnic motivation is a factor justifying a higher sentence under Article 54 and judges do not take such motivation into account when passing sentence.²⁴

International human rights law permits but does not require states to adopt “hate crime” legislation, apart from the requirement to prohibit violence or incitement to such acts against any race or group of persons of another color or ethnic origin.²⁵

Typically, “hate crime” laws permit higher sentences for criminal acts that are aggravated by racial, ethnic, religious or other hatred. Human Rights Watch supports the enactment of such laws as long as they are appropriately enforced to protect the rights of all ethnic, racial, and other groups.

Serbia’s Obligations under International Human Rights Law

The clearest statement’s of Serbia’s duties in the area of protection of minorities is set out in the Council of Europe’s Framework Convention on the Protection of National Minorities²⁶, Article 6(2), which provides that:

“The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.”

The main monitoring body of experts for this treaty, its Advisory Committee, is currently considering Serbia’s second state report. The Committee is due to make its official visit to monitor Serbia’s compliance with the treaty on November 3-7, 2008.

Moreover, Article 4 of the International Convention for Elimination of All Forms of Racial Discrimination (ICERD) and Article 20 of the International Covenant of Civil and Political Rights (ICCPR) contain the requirement to prohibit violence or incitement to such acts against any race or group of persons of another color or ethnic origin.

The Article 14 of the Protocol no. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force in Serbia in 2005, adds:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.²⁷

Finally, the Article 21 of the Declaration on the Rights of Person belonging to National or Ethnic, Religious and Linguistic Minority affirms the right for national minorities to participate effectively in cultural, religious, social, economic and public life, and particularly to participate in decisions at national and regional levels which concern the minority to which they belong or the regions in which they live.²⁸

The last report of the European Commission against Racism and Intolerance (ECRI) on Serbia, adopted on 14 December 2007 (and made public on April 28, 2008) recommends that Serbia ratify the revised European Social Charter, signed by Serbia in 2005, which reinforces the principle of non-discrimination for the whole set of rights stipulated by the Charter.²⁹

---