Legislative framework – key features and obstacles

Serbian legal framework for the fight against organized crime is primarily based on the Constitution, the Criminal Code, the Criminal Procedure Code, the Law on organization and jurisdiction of governmental authorities in suppression of organized crime, corruption and other particularly serious criminal offences, the Law on foundations of regulations of security services of the Republic of Serbia, the Law on police, the Law on security information agency, the Law on military security and military intelligence agency, the Law on psychoactive controlled substances, the Law on protection of participants in criminal proceedings, the Law on seizure and confiscation of proceeds of crime, the Law on the liability of legal entities for criminal offences, the Law on the enforcement of prison sentences for criminal offences of organized crime, the Law on the substances used in the illegal production of narcotics and psychotropic substances and the health records Law.

62 The Criminal Code is of the key legislative acts relevant for organized crime and its diverse forms, such as drug trafficking. It is important to note that the Criminal Code has been amended several times in the preceding years. Criminal justice professionals perceive these amendments as the first phase of the reform of criminal legislation, suggesting that it is necessary to reconsider a series of solutions and possibly change them (Skulic and Ilic, 2012;

Stojanovic, 2013). These standpoints refer to the criminal offences related to narcotic drugs, which have been associated with significant problems in practice, and are not fully harmonized with certain international legal documents. Possession of small quantities for personal use is punishable by up to 3 years in prison, but punishment may be remitted in minor cases (Criminal Code, Art. 246a). However, it is not legally defined what constitutes a small amount of illegal drugs. Comparative overview of the contemporary legislation of European countries, including case-law, shows that there is no EU state where such a severe punishment can be imposed for very small quantities of narcotic drugs, regardless of its type. Additional legislative changes to the Criminal Code have been adopted in 2012 to improve the chapter on corruptive offences.

The criminal procedure system in Serbia is subjected to an ongoing reform during the last decade²⁷. The new Criminal Procedure Code came into force on January 15, 2012²⁸ only at the specialized courts for war crimes and organized crime. The new Criminal Procedure Code introduces a significant number of new features which, inter alia, contribute to the more efficient work of judicial authorities in the fight against organized crime and corruption. Some

27 The Criminal Procedure Code adopted in 2001 was amended in 2009, aiming to suppress organized crime and strengthen enforcement against narcotics and corruption, but failed to address a number of problems. The Amendments introduced the plea agreement in Serbian criminal proceedings for the first time. In 2006, a new Criminal Procedure Code was passed, but has never entered into force. The new Criminal Procedure Code passed in 2006 aimed at better alignment of the criminal justice system with the newly reformed judicial system.

Nevertheless, the Code did not address the lack of parity between the prosecution and defense, inefficient management of resources, and unclear application of prosecutorial discretion and plea bargaining. Facing widespread criticism from members of the Serbian Bar, the 2006 Criminal Procedure Code never entered into force

28 In the period between 2011 and October 2013, two Criminal Procedure Codes were applicable in Serbia. The first is the 2001 Criminal Procedure Code, which was implemented before the courts and public prosecutor’s offices of general jurisdiction until October 2013. The second is the new Criminal Procedure Code adopted in 2011 applicable in cases falling within the jurisdiction of Prosecutor’s Office for Organized Crime as of 15 January 2012. The new Code introduces prosecutorial investigation aiming to expedite processing of criminal offenders, increase the trust in the judiciary, and reduce frequent conflicts between the police, prosecution, and courts that have plagued the criminal justice system.

63 of the key changes involve presentation of evidence at preliminary hearings, a fundamental change to trial advocacy practice and the roles and responsibilities of prosecutors and defence attorneys, measures to increase the use of plea bargaining, new evidence-gathering techniques, witness protection standards, and the ability to use mediation in certain criminal proceedings. Innovative techniques for evidence gathering were introduced and more closely regulated, including the use of surveillance communication, secret monitoring and recording, undercover operations, and computer data searches. Moreover, the Law on Organisation and Jurisdiction of State Authorities in the Fight against Organised Crime, Corruption and Other Particularly Serious Criminal Offences was adopted in 2016 to improve the organizational structure and cooperation of state bodies aiming to enable more effective detection, prosecution and trial for organized crime, terrorism and corruption. The new Law on Police was enacted in January 2016, introducing a number of innovations²⁹ in the legal system that is expected to significantly contribute to the improvement of quality in the performance of police.

Serbia has a list of drugs and of drug precursors and it is regularly updated, on the basis of a proposal of the Ministries of Health or Interior. However, early warning mechanism on new psychoactive substances for collecting, managing and sharing information among state structures responsible for the fight against drugs has not yet been established. Despite the relatively adequate legal framework, Serbia needs to improve conditions for the storage of permanently seized quantities of narcotic drugs and to fully launch a system for the destruction of confiscated drugs by clearly prescribing and implementing the procedure and designating the responsible state institutions.

With regard to policies on discovery of new illicit drugs and precursors on the market, National Focal Point has been established and significant steps were made for its proper organisation and functioning. However, as it is established under public institution (Ministry of health) and on the basis of the agreement of Serbia with the Global Fund which prohibits

29 The most important novelties refer to the reorganization of the Ministry of Interior; separation into internal and police affairs; division into police, state and executive officers; the use of new means of coercion by police officers replacing the use of firearms; the introduction of integrity tests; career progression based on basic parameters as vocational training, education and more

64 to hire new personnel, the establishment of the National Focal Point and Early Warning System is significantly impeded at the operational level as the department is understaffed, with limited resources. There is a significant lack of available early detection, monitoring, screening and assessment strategies targeting drug precursors and NPS) use in Serbia.

Effective control over the production and marketing of substances that can be used for the illegal production of narcotic drugs and psychotropic substances is an important element in preventing the illicit production of narcotic drugs and psychotropic substances and leading to a reduction in their supply. Since most of these substances are in regular circulation and are used in chemical, pharmaceutical, cosmetic and similar industries, control of production and trade, including import and export, must be carried out in accordance with legal norms, in order to prevent their unlawful use.

The Law on Seizure and Confiscation of the Proceeds from Crime proved to be a major step in precluding property and funds which are proceeds of crime and often used to commit new criminal offences³⁰. However, the total number of proceeds of crime seized remains low and management of seized property needs to be improved. An Asset Recovery Office remains to be designated and adequately staffed to foster international cooperation.

In terms of customs cooperation, Serbia needs to access to the Convention on mutual assistance and cooperation between customs administrations (Naples II) upon accession to the EU. This process will need to be accompanied by amendments to legislation as regards central coordination units, special forms of co-operation and extension of the investigation powers of customs. The legal framework is largely aligned with Decision 2009/917/JHA on the use of information technology for customs purposes. There is an IT strategy for the Customs Administration covering the period 2011 till 2020, but there is a need to establish an

30 The Law is aligned with Council Framework Decision 2005/212/JHA on confiscation of crime-related proceeds, instrumentalities and property, Council Framework Decision 2003/577/JHA on the execution in the European Union of Orders freezing property or evidence, Council Framework decision 2006/783/JHA on the application of mutual recognition of confiscation orders, Council Framework decision 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime. The law is not yet aligned with Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition of financial penalties. The legal framework still needs to be aligned with the Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union

65 IT database (including digital records of investigations) and extent the IT application to the entire enforcement division in order to comply with Decision 2009/917/JHA.

Following this review of the institutional, strategic and legislative set-up, it is also important to mention the certain notable effects of the crime control policies, as they entail the key feature of the state under exploration. One of such visible features is certainly the penal policy of a state. Penal policy in Serbia is often criticized by the professional public, experts and the media, particularly in regards to sentencing serious criminal offences. It is argued that courts pronounce conditional sentences for serious crimes, whereas minor offences are sentenced with imprisonment or tend to pronounce sentences within legally stipulated minimum (Delic, 2010). Regular acceptance of various mitigating circumstances by the courts leads to conclusions that penal policy is inadequate or soft (Delić, 2010; Mrvić-Petrović and Đorđević, 1998; Ćirić, Đorđević, and Sepi 2006). However, according to Stojanovic (2008), frequent legislative amendments often result from lack of consideration of scientific and experts’

standpoints and political polarization and are therefore inefficient.

Moreover, the relationship of drugs and crime in the criminal justice system is of particular importance for the analysis of state policies on drug trafficking. However, one of the key obstacles to objective analysis of penal policy refers to the lack of statistical data, since courts, prosecution and police do not perform aggregate analyses. Thus, evaluations are based on separate statistics which makes them incomparable and questions validity of results. In addition, relevant authorities do not keep statistical data on drug related offenses, which further complicates the analysis, as it remains unclear whether individuals are prosecuted due to possession of drugs for personal use or for the actual criminal offense involving unauthorized sale of narcotics. Finally, when discussing penal policy for organized crime and drug trafficking cases, it needs to be borne in mind that indigent individuals often lack access to legal aid, while mandatory defence is stipulated only in case of offences punished with imprisonment over 8 years (Criminal Procedure Code, 2012), whereas members of organized criminal groups have the potential to hire lawyers.

66 Overall, such sentencing trends result in lack of individualized sentences, recidivism related to lack of consequences, and potential reinforcement of further criminal behaviour. There is also a need to address current sanctioning policies and selective prosecutions. Recurrent and at times controversial changes in legislation aimed at increasing justice efficiency and suppression of crime, coupled with multiple postponement of their implementation, appear to hinder adequate criminal justice functioning.