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Life Imprisonment Without Parole: The Compatibility of Serbia’s Approach with the European Convention on Human Rights

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Abstract

In this article, the author deals with the issue of life imprisonment without parole. Life imprisonment represents a new type of penalty in Serbian criminal law, in addition to standard imprisonment. The present state of the Serbian criminal legislation provides the possibility of parole for most criminal offences after 27 years of imprisonment served, while simultaneously explicitly prohibiting the possibility of parole for certain offences. The author elaborates the judgments of the European Court of Human Rights regarding life imprisonment, emphasizing rehabilitation as the primary goal of criminal sanctions. After that, the author explains the legislative solutions outlined in the Criminal Code of Republic of Serbia. Through the analysis of the crucial provisions of the Criminal Code, as well as other important and relevant laws, the author points out the shortcomings of the existing regulations in Serbia regarding life imprisonment, which flagrantly threatens to violate the offenders’ human rights.

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Notes

  1. Streicher v. Germany, 2009; Meixner v. Germany, 2009.

  2. Iorgov v. Bulgaria (№ 2), 2010.

  3. See Todorov v. Bulgaria, 2011, Simeonovi v. Bulgaria, 2011, Dimitrov and Ribov v. Bulgaria, 2011 and Kostov v. Bulgaria, 2012.

  4. Lynch and Whelan v. Ireland, 2013.

  5. Čačko v. Slovakia, 2014.

  6. Koky v. Slovakia, 2017.

  7. Leger v. France, 2006.

  8. Weeks v. the United Kingdom, 1987.

  9. Törköly v. Hungary, 2011.

  10. See Khamtokhu and Aksenchik v. Russia, 2017.

  11. Kafkaris v. Cyprus, 2008.

  12. Garagin v. Italy, 2008.

  13. Kafkaris v. Cyprus, 2008.

  14. Vinter and Others v. the United Kingdom, 2013.

  15. Vinter and Others v. the United Kingdom, 2013.

  16. Hutchinson v. the United Kingdom, 2017.

  17. Öcalan v. Turkey, 2003.

  18. Öcalan v. Turkey (№ 2), 2014.

  19. Öcalan v. Turkey (№ 2), 2014.

  20. Boltan v. Turkey, 2019.

  21. Kaytan v. Turkey, 2015, Gurban v. Turkey, 2015.

  22. László Magyar v. Hungary, 2014.

  23. T.P. and A.T. v. Hungary, 2016.

  24. Bodein v. France, 2014.

  25. Vella v. Malta, 2019.

  26. Petukhov v. Ukraine (№ 2), 2019.

  27. Trabelsi v. Belgium, 2014.

  28. Hutchinson v. the United Kingdom, 2017; Petukhov v. Ukraine (№ 2), 2019; Khoroshenko v. Russia, 2015.

  29. Harakchiev and Tolumov v. Bulgaria, 2014.

  30. Manolov v. Bulgaria, 2014.

  31. Matiošaitis and Others v. Lithuania, 2017.

  32. Dardanskiš and Others v. Lithuania, 2019.

  33. Murray v. Netherlands, 2016.

  34. Murray v. Netherlands, 2016.

  35. Petukhov v. Ukraine (№ 2), 2019.

  36. Marcello Viola v. Italy (№ 2), 2019.

  37. Then, cautionary measures were—and remain to this day—suspended sentence and judicial admonition. Security measures were: compulsory psychiatric treatment and confinement in a medical institution, compulsory psychiatric treatment without confinement, compulsory alcohol and drug addiction treatment, prohibition from practicing a certain profession, activity or duty, prohibition of public appearance, prohibition of driving a motor vehicle, confiscation of objects and expulsion of a foreigner from the country. Lastly, juveniles could be subjected to criminal sanctions in the form of disciplinary measures, measures of increased supervision and institutional measures.

  38. The Code begins by proclaiming the principle of legality and prescribes that no person may be punished or have another criminal sanction imposed upon them for an offence that did not constitute a criminal offence at the time it was committed, nor may penalty or any other criminal sanction be pronounced that did not legally exist at the time the criminal offence was committed (Article 1—nullum crimen nulla poena sine lege). Furthermore, the Code prescribes that penalties and cautions may only be imposed on an offender who is guilty of the committed criminal offence (Article 2). Article 3 further proclaims that the protection of the human being and other fundamental social values constitutes the basis for—and determines the scope of—defining individual criminal offences, imposing criminal sanctions, and enforcing them to a degree necessary for the effective suppression of these offences.

  39. Article 4, Paragraph 2 of the Criminal Code.

  40. Article 42 of the Criminal Code.

  41. Article 43 of the Criminal Code.

  42. Article 44 of the Criminal Code. .

  43. Article 45, Paragraphs 1 and 2 of the Criminal Code.

  44. Article 54, Paragraph 1 of the Criminal Code.

  45. Article 54a of the Criminal Code.

  46. Article 56 of the Criminal Code.

  47. Article 57 of the Criminal Code.

  48. Article 58 of the Criminal Code.

  49. Article 59 of the Criminal Code.

  50. During 2011, numerous public debates were sparked about abolishing the option of penalty reduction and mitigation for certain criminal offences. Academic workers and criminal law professors generally believed that such measures would not be implemented, but it happened nevertheless. First major changes stipulated that the penalty could not be reduced in cases of abduction (Article 134, Paragraphs 2 and 3), rape (Article 178), sexual intercourse with a helpless person (Article 179), sexual intercourse with a child (Article 180), extortion (Article 214, Paragraphs 2 and 3), unlawful production and circulation of narcotics (Article 246, Paragraphs 1 and 3), illegal border crossing (Article 350, Paragraphs 3 and 4) and human trafficking (Article 388). Furthermore, the penalty imposed upon an offender who had previously been convicted of the same kind / type of criminal offence could not be mitigated. Unfortunately, this was not the end of such provisions. They were later expanded to encompass aggravated murder (Article 114). Certain initiatives to further expand these provisions were never passed, such as the initiative by the Protector of Citizens (Ombudsman) to abolish the possibility of penalty reduction for sexual intercourse through abuse of position (Article 181), prohibited sexual acts (Article 182), pimping and procurement (Article 183), mediation in prostitution (Article 184), showing, procurement and possession of pornographic material and juvenile pornography (Article 185), inducing a minor to attend sexual acts (Article 185a), abuse of computer networks and other methods of electronic communication to commit criminal offences against sexual freedom of minors (Article 185b). The purpose of the proposed amendment was to exclude the possibility of penalty reduction for all criminal offences against sexual freedom. According to the Protector of Citizens, the existing provision unjustifiably privileges perpetrators of certain crimes against sexual freedom compared to perpetrators of other crimes in the same group; such a provision unjustifiably makes significant differences between penalizing different criminal offences against sexual freedom, which are punishable by the same or similar penalty (Citizens 2011). This initiative was not passed in the Serbian National Assembly, and is therefore not implemented in the Criminal Code. It seemed then that the erosion of the established criminal legislation system is finally finished; however, soon after that, new provisions were implemented regarding release on parole.

  51. It's worth mentioning that one of the changes was the introduction of a new criminal offence—assault on an attorney, as requested by the Bar Association of Serbia. As said above, one of the reasons for amending the Criminal Code was the need to impose stricter penalties upon recidivists. It is presently prescribed that the court shall consider an earlier sentence an aggravating circumstance in situations in which less than 5 years have passed from the earlier sentence (either pronounced or served). In such cases, it is stipulated that the court may not reduce the penalty below statutory limits or mitigate the penalty, unless such possibilities are explicitly allowed by the law, or unless the law provides a possibility to omit the penalty altogether, but the court decides otherwise. In cases of multiple repeated offences, it is prescribed that for a criminal offence committed with premeditation and punishable by imprisonment, the court must pronounce a sentence above the middle of the statutory range, but under the following conditions: (1) if the offender had been sentenced at least twice to at least 1 year of imprisonment for criminal offences committed with premeditation; (2) if less than 5 years had passed between the day the offender was released from serving the pronounced sentence and the commission of a new criminal offence (Article 55a of the Criminal Code). For the purpose of aligning with international recommendations, the amendments of the Criminal Code stipulate a more detailed definition of financing terrorism (Article 393 of the Criminal Code).

  52. Article 44a, Paragraph 1 of the Criminal Code.

  53. Article 44a, Paragraph 2 of the Criminal Code.

  54. Article 44a, Paragraph 3 of the Criminal Code.

  55. This is where the principle of legality is fully emphasized, since one of its elements is the application of a more lenient law. The Criminal Procedure Code of the Republic of Serbia provides two extraordinary legal remedies: the request for the protection of legality and the request for reopening criminal proceedings. In the first half of 2020, the appellate courts had been flooded with requests for reopening criminal proceedings, with the explanation that the removal of 30–40 years of imprisonment from the Criminal Code and the introduction of life imprisonment represents a legal basis for reopening criminal proceedings for persons sentenced to 30–40 years of imprisonment. The appellants claimed that they were serving a sentence that no longer exists in the criminal justice system of the Republic of Serbia, and that, instead of this sentence, they should be sentenced to 20 years of imprisonment (by the principle of applying the more lenient law). All such requests were rejected, with the explanation that the replacement of 30–40 years of imprisonment with life imprisonment is not a basis for reopening the proceedings, since their sentence was prescribed by law when they were convicted (for example, Judgment of the Kragujevac Appellate Court № Kz.2 238/2020 from 11.05.2020).

  56. As a legal category, parole was first introduced to Serbian criminal legislation in May 1869, in a special law titled The law on conditional release of convicts from penal facilities (Serb. lat. Zakon o uslovnom otpuštanju krivaca iz kaznitelnih zavedenja, Serb. cyr. Закон о условном отпуштању криваца из казнителених заведења). It is worth mentioning that between 1883 and 1885, parole in Serbia was granted in 784 individual cases, and revoked in only 12 cases (Pavlović 2007). The Execution of Imprisonment Act of 1929 introduced the Irish progressive system, which provided parole as the fourth phase of imprisonment for a smaller number of prisoners (only a quarter or a fifth of the total number of prisoners). It is interesting to note that the criminal laws of 1947 and 1951 provided possibilities of conditional release of persons sentenced to life imprisonment with forced labour after serving 15 years of imprisonment. After the Second World War, the first complete codification of Yugoslav criminal law (Criminal Code of 1951) also implemented parole. It could be granted to any convict (regardless of the type of criminal offence he was convicted of, or whether he was a recidivist or not) who had to that point served half of his imprisonment term. It's worth mentioning that a convict who had "especially excelled in his work and conduct" while serving his sentence could be released even before serving half of his sentence. At the time, the penalty of life imprisonment had also existed in the Yugoslavian criminal legislation; a convicted person sentenced for life could be granted parole after serving 15 years of their sentence, provided that their behaviour assured the authorities that they will no longer commit criminal offences (Ignjatović 2016). The Law on Execution of Criminal Sanctions from 1961 introduced a form of optional automatic parole, granted 1 month before the expiration of the sentence, provided that the convict had served at least three quarters of the sentence and behaved well, which was assessed by the director of the penal institution, and at his discretion. The percentage of parolees grew from year to year–from 21.2% in 1954 to 43% in 1960, and then to 52.6% in 1972 (Soković 2014).

  57. Article 46, Paragraph 1 of the Criminal Code.

  58. Article 46, Paragraph 2 of the Criminal Code.

  59. Article 181, Paragraph 5 and Article 46, Paragraph 5 of the Criminal Code.

  60. Article 63 of the Criminal Code.

  61. Vinter and Others v. the United Kingdom, 2013.

  62. Article 109 of the Criminal Code.

  63. Article 110 of the Criminal Code.

  64. Article 111 of the Criminal Code.

  65. Article 4 of the Law on Pardon.

  66. Article 5 of the Law on Pardon.

  67. Article 6 of the Law on Pardon.

  68. Article 9 of the Law on Pardon.

  69. Article 10 of the Law on Pardon.

  70. Article 122 of the Constitution.

  71. Unfortunately, this is a step backwards, since even the Criminal Code of 1947 allowed the possibility of amnesty or pardon replacing the death penalty by life imprisonment with forced labor.

  72. Article 2 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  73. Article 42 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  74. Article 43 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  75. Article 76 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  76. Article 6 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  77. Article 178 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  78. Article 183 of the Law on Execution of Criminal Sanctions of the Republic of Serbia.

  79. Vinter and Others v. the United Kingdom, 2013.

  80. Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the Former Yugoslav Republic of Macedonia, 2012.

  81. László Magyar v. Hungary, 2014.

  82. Harakchiev and Tolumov v. Bulgaria, 2014.

  83. Marcello Viola v. Italy (№ 2), 2019.

  84. Vinter and Others v. the United Kingdom, 2013.

  85. Petukhov v. Ukraine (№ 2), 2019.

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    Veljko Turanjanin

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Turanjanin, V. Life Imprisonment Without Parole: The Compatibility of Serbia’s Approach with the European Convention on Human Rights. Liverpool Law Rev 42, 243–274 (2021). https://doi.org/10.1007/s10991-020-09269-6

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