Analysis of the Normative and Institutional Framework of Child Friendly Justice in Serbia: summary report and recommendations

Kolaković-Bojović, Milica and Stevanović, Ivana and Vukićević, Vladimir (2022) Analysis of the Normative and Institutional Framework of Child Friendly Justice in Serbia: summary report and recommendations. Institute of Criminological and Sociological Research, Belgrade.

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Abstract

Sixteen years after the last comprehensive reform of criminal legislation in the field of child justice, international standards in this area have reached a significantly higher level of detail and comprehensiveness. At the same time, the long-term application of the Law on Juvenile Delinquents and Criminal Protection of Juveniles has crystallized in practice the need to regulate certain issues differently. Based on these bases, the expert team of the Institute of Criminological and Sociological Research, supported by the UNICEF Office in the Republic of Serbia, conducted a comprehensive assessment of the compliance of Serbian criminal legislationi with relevant international standardsii in June 2021-January 2022. In addition, the expert team conducted a comparative analysis of the institutional framework in terms of possible choices of institutional coordination of public policies in the field of child friendly justice. Regarding general issues relevant to the position of juveniles in criminal proceedings, regardless of whether they are in the role of perpetrator, witness or injured party, it was concluded that it is necessary to harmonize the concept of a child who in international standards means a person under 18 years. Additionally, the need to prescribe more detailed criteria and procedures for assessing the best interests of the child was identified. The need to prescribe the obligation of continuous professional training for professionals in contact with minors was recognized, followed by establishing the obligation to respect the dignity and integrity of the child at the level of criminal procedure, but also for more precise and comprehensive guarantees of juvenile privacy, including media and justice. The position of juvenile offenders needs to be improved by extending the possibility of criminal prosecution to juvenile offenders who face up to eight years in prison, but also to expand the list of educational warrants and enable the prosecutor to apply all educational warrants in the pre-trial stage. Starting from the principle that the deprivation of liberty is the last mean, it is necessary to improve the conditions in detention units, to expand the use of alternatives to detention, including the consideration of the ban on its use for juveniles aged under 16. The procedural position should also be improved through audio / video recording of the interrogation. The need for improvement was also identified with regard to the execution of criminal sanctions, and especially with regard to the procedure and conditions for the execution of institutional educational measures and the punishment of juvenile imprisonment, especially in the part related to the application of disciplinary measures. Post-penal care of juveniles remains an inadequately / insufficiently regulated area, which directly negatively affects the recidivism of this category of perpetrators. The position of juvenile victims of criminal offenses is inadequately regulated, starting with the inconsistent use and duality of the terms "victim" and "injured party" in the national criminal legislation. Juvenile victims were not provided with systematic professional support during the procedure, based on a preliminary assessment of individual needs, as well as the presence of a trusted person at the hearing. There is still no obligation of the body of procedure to inform the injured party about the release of the defendant from custody, i.e. from serving a prison sentence or juvenile imprisonment, depending on the age of the perpetrator, except when there is a risk of retaliation. Despite the adequate legal framework, the realization of compensation claims in criminal proceedings is almost impossible in practice, so in addition to the consistent application of the Guidelines issued by the Supreme Court of Cassation, it is necessary to regulate prosecutorial role with general instructions of the Republic Prosecutor, followed by training and use of uniform forms. The most comprehensive interventions are needed in the Criminal Code, as inconsistencies have been identified in a number of areas, including the penalties prescribed for crimes against sexual freedom committed against minors, and thus the statute of limitations for the same category of crimes. Harmonization of criminal ranges, as well as the act of execution itself, is necessary for the criminal offense of Trafficking in Human Beings, as well as its clearer demarcation with related criminal offenses. It is necessary to include in the Criminal Code new incriminations, starting with the criminal offense of selling a child, through criminal offenses incriminating enforced disappearances and wrongful removal of a child, to the explicit prohibition of recruitment and exploitation of minors in hostilities by armed groups other than the armed forces. Having in mind the number of issues related to the inconsistency of the criminal legislation of the Republic of Serbia with the relevant international standards in the field of child friendly justice, it is necessary that the competent institutions enter the harmonization process without delay, first by assessing this can be done at all through amendments to the Law on Juveniles or it is necessary to draft a completely new law, which would comprehensively respond to the requirements for harmonization but also real needs to overcome problems in practice. At the same time, it is necessary to approach the amendments to the Criminal Code and the Code of Criminal Procedure, especially bearing in mind that these amendments have been postponed several times, for which there was no justification, especially considering that these laws were amended in other segments. Through a comparative analysis of the institutional framework in the field of child-friendly justice, the organizational structures and capacities of the Ministries of Justice of Austria, Hungary, Croatia, Montenegro, Slovenia and Serbia were analysed. It was noticed that the Ministry of Justice of the Republic of Serbia does not deviate from the practices of the analysed countries in terms of competencies and entrusted tasks, but that there are significant deviations in terms of organizational structure and capacity. Having in mind the scope of competences of the Ministry of Justice of the Republic of Serbia regarding criminal substantive and procedural law, the lack of a specialized organizational unit that would deal exclusively with criminal law, which is common practice of the observed states, is a serious obstacle to full compliance with numerous international standards. areas of child rights. In addition, the insufficient staffing capacity of the Ministry of Justice, as well as the lack of specialization of officials to work on regulations relevant to children's rights, further complicate reform efforts in the area of children's rights.

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