On September 2, 2019, the Humanitarian Law Center (HLC) filed an initiative with the Constitutional Court for an assessment of the constitutionality and conformity of the Criminal Code (CC) with the Constitution of the Republic of Serbia, the generally accepted rules of international law and ratified international treaties. The HLC considers that the newly introduced provision of the CC concerning the prohibition of conditional release of persons sentenced to life imprisonment, without establishing an effective and efficient mechanism guaranteeing a review of a sentence to life imprisonment, directly violates the provision of Article 25 of the Constitution of the Republic of Serbia, and Article 3 of the European Convention on the protection of human rights and fundamental freedoms (Convention).
The Law on Amendments to the CC was promulgated in the National Assembly of the Republic of Serbia and was published in the RS Official Gazette on May 21, 2019, while its implementation was postponed until December 1, 2019. The adoption of the CC amendments was accompanied by the absence of adequate public debate and failure to consult the views of the expert public, which pointed out from the beginning that a legal solution was being provided contrary to the prohibition of torture, inhuman and degrading treatment, as envisaged by all relevant European, international and comparative acts, but also by the established jurisprudence of the European Court of Human Rights.
The HLC, in its initiative, pointed to a number of Council of Europe resolutions and recommendations, numerous documents from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment, the provisions of the Rome Statute of the International Criminal Court, EU regulations, individual experiences of States parties to life imprisonment, the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations and the International Covenant on Civil and Political Rights. All these acts take the unique view that the mandatory sentence of life imprisonment without the possibility of parole is not in itself contrary to the Convention, but that it is necessary to establish a mechanism to ensure that the sentence of life imprisonment is reviewed so that these prisoners are not deprived of the hope that they will be released.
The initiative refers to a series of decisions of the European Court of Human Rights addressing this legal issue (Vinter and Others v. The United Kingdom, Hutchinson v. The United Kingdom, Murray v. The Netherlands, Matiošaitis and Others v. Lithuania itd.) and takes the same view that States parties have a wide margin of appreciation in defining criminal policy within their own countries, including the right to impose life imprisonment without parole. However, the European Court of Justice equally believes that every member of the Council of Europe must have a defined legal mechanism that will allow reconsideration of life imprisonment for inmates, in order to clearly establish the criteria for what a prisoner sentenced to life imprisonment must do in order to obtain consideration of his or her liberation, and under what conditions.
The HLC has emphasised in its initiative that the current legislation does not have clearly defined criteria that would guide prisoners sentenced to life imprisonment to help ensure that their release be really considered, and that there are no indications at this point that the authorities will adopt a law that would establish these criteria.
For these reasons, the HLC considers that it is the duty of the Constitutional Court to consider this initiative as soon as possible, and to declare unconstitutional the provisions of the Law on Amendments to the Criminal Code which do not comply with the requirements of Article 3 of the Convention and which are contrary to accepted legality and the general principles regarding the status of the victim, as recognized by the text of the Convention.
