Little big stories: The judge – justice in crises (VIDEO)
By stopping life, we save lives – said the President of Serbia, and declared a state of emergency on March 15th. From an insignificant virus, corona has become an invisible enemy, to whom the government has declared war. In that state, some suffered a swift judgement.
Milan Njegovan, accused of violating self-isolation: "30 days of detention, and the judge says - there must have been an appeal from our president in Germany as well, you had to listen to the appeals"
Dragomir Milojevic, President of the Supreme Court of Cassation: "There is no justification. It’s well known where the law is, and not in the statements of the president"
Goran Stupar, Milan Njegovan's lawyer: "I think it was a demonstration of power of sorts"
In the justice of war, the government is the one to both sue and judge.
Katarina Golubović, Committee of Lawyers for Human Rights: "The whole story is being carried out by the executive authorities, they condemn people, 21:57 and then in the end free them"
Lidija Komlen Nikolić, President of the Association of Prosecutors: “The state of emergency suspends certain rights, but does not suspend everything. And that's something that a lot of people forget. "
“Surrender is not an option” however, is not just a motto of the government.
Milan Njegovan: "I said that we will go till the end, wherever the end is, we’ll go till the end"
We still don't know what decision the Constitutional Court will make at that end.
Katarina Golubović: "The Constitutional Court always has a passive stand, and that is also a big problem, and it will bring a lot of damage to the Republic of Serbia"
Will all the citizens have to pay for the damage, yet again, and who will be pardoned and in what way, are the questions that open Insider's Little Big Stories.
THE JUDGE – JUSTICE IN CRISIS
The first case of coronavirus in Serbia was confirmed on March 6th. In the following days, it became clear that this was not a local disease, and that the virus arrived in Serbia even before the expected wave of those who usually come from abroad during the approaching Easter holidays.
Milan Njegovan: "Everyone went to work quite normally in Germany and all that, and I asked my boss if I could take some vacation days. We got in the car on the morning of March 14th, thinking I will go home, I will be with my family, I will spend Easter with them, after that, I’ll go back to work, and then everything goes back to normal. However, it turned out totally different. "
That it turned out differently, even from what the authorities in Serbia first said, it all soon became apparent.
The decision about borders not going to be closed changed, and the appeal to citizens not to return to the country was made by the officials and the President of Serbia at the same place where only 9 days earlier they made jokes about the virus.
Aleksandar Vučić, President of Serbia, (February 26, 2020): "Wherever you put alcohol, corona disappears. Now I have one more reason to drink a glass a day, although it has nothing to do with that kind of alcohol, but that’s how I like to think of it, you know”.
The number of corona victims, however, grew and took some lives, as well. It moved from China to Europe.
The movement of people made the virus spread quickly everywhere, so the authorities in Serbia pointed the finger at their own citizens who are coming from abroad.
Milan Njegovan: "If I had known that this was the situation, that it turned out like that, I would not have come, because in Germany, I have health insurance, and in Serbia I don’t."
Although the coronavirus was declared a contagious disease in Serbia on March 10th, the borders did not close. The airports were more and more crowded, and people waited for hours at the border crossings.
Milan Njegovan: "A border police officer took the passports, checked them, returned them, the customs officer checked what we have in the car, we also asked if we needed something, like an isolation or something... He said that we don’t need anything, he said “Just double the dose of liquor and that's your isolation”.
He arrived home in Novi Sad on March 15th. That evening, a state of emergency was declared in Serbia.
He followed the instructions from a flyer he received at the border.
Milan Njegovan: "On Monday morning, I called the number that was on the flyer. + I asked what should I do, if I should go somewhere to get examined, they said “if you are not manifesting any symptoms, you’re free to go out, just don't make close contacts with people”.”
It turned out that the rules have changed several times within 4 days.
Lidija Komlen Nikolić, Association of Prosecutors “From March 10th to March 15th, the procedures were changed four times, how and what to do when someone enters the country, what country are they coming from, what should be done, and then at some point you have this, to say the least, legal chaos, as I call it.”
Life was still relatively normal. Schools have closed, but cafes, shops and shopping malls were still open.
Milan Njegovan: "It was a lovely evening, we went out for a walk, when we came back, the police was in front of the house, they were making a record, 02:49 and they started asking questions - where was I, why did I leave the house, what does it say in the resolution. When I said that I don't have any written resolution – “Impossible, you have to have a resolution, you had to follow the procedure”, same things as the judge said, “you have to listen the media, you must not leave the house”. From the evening of March 16th to March 20th, I did not go out anywhere."
Complete self-isolation was introduced for all people over 65 years of age, and the ban of movement, that is, the curfew, for all other citizens, as well. With the bans, along came the violations.
Olivera Ristanović, President of the Misdemeanour Court in Belgrade: “Out of 111 judges, approximately 25 of us worked, there were day and night shifts, until 4,5 in the morning, on some nights when we had up to 30 defendants, there were another 60 police officers accompanying them. 07:28 So actually, the bigger problem was to organize the reception of those people, so that they weren't all together in one place. At first, mostly the homeless were brought in, you are conducting proceedings against a person because they violated a ban of movement, and they don’t even have a home in the first place, they were being brought to the court, to the police stations, we all come in contact with him, and there’s really no point in that. There were cases of whole families being brought in, with children who are only 4 or 5 years old, one child in the courtroom said "ma’am, please don't let mom and dad go to prison". It is difficult to judge in such circumstances. "
Milder punishments were also given in some cases of older people caught in violation. A video of an elderly lady explaining to the police that she’s going to her English class, became viral on social networks, on which the information that she was fined with a maximum of 150 thousand dinars quickly spread, as well. That information was incorrect, and the lady was found disobedient again.
"Ma'am, how old are you?" – “45”. “How old?” - "45". “So where are you going?” - "To play tennis with a friend". “So, are you aware you’re not allowed to go out?” - "So, what should I do?". “Well, stay home.” - "Well, I can't".
Olivera Ristanovic, president of the Belgrade Misdemeanour Court: "A colleague who worked on this case fined her with 50,000 dinars, because she looked into her social life, and saw that she was constantly going out."
Olivera Ristanovic, President of the Misdemeanour Court in Belgrade: "Fortunately for us, statistically speaking, the least cases are against people over the age of 65. Mostly, these people have had their sentences mitigated. There was this lovely elderly gentleman, who reminded me of my grandfather, and it was very hard for me to punish him. At one point he said - "Child, I can see it's a lot harder for you than it is for me."
Authorities and experts were angry with the citizens, stating that their misbehaviour would lead to the Italian scenario. However, those who returned from abroad were blamed the most.
Ana Brnabić, Prime Minister of Serbia: “You all know or have heard of at least one person who returned from abroad, who does not abide with the measures of mandatory quarantine, unfortunately. After all, you have all seen the examples of our footballers who come from abroad, and they have contracts, million-dollar contracts, they come here and completely disregard the self-isolation, and that is something that our authorities will be dealing with.
Aleksandar Vučić, President of Serbia: "It’s easy to punish, I am sure that those two boys, young men, who are being mentioned all over the news, are regretting at this moment what they did. They have been isolated according to the regulations. If they try to go out, they will be immediately arrested, but I hope it won’t come to that.”
One of them, Luka Jović, along with a public statement of remorse, explained that he was tested in Spain, and that he was not given instructions at the border in Serbia on how to behave in self-isolation. It turns out that the official notice did not even exist until the Committee of Lawyers for Human Rights (YUCOM) intervened.
Katarina Golubović: “Some did not even receive any information at the very beginning, and then they received a verbal notice, but very often that verbal notice is not stated in a legally valid manner, there were no documents to be signed or anything like that. So, mistakes were made at the very beginning. "
The mistakes were not limited only to those who came from abroad. In just 2 weeks, the number of calls to YUCOM increased to 100 per day.
Katarina Golubović: “We also realized that there is a systemic problem, because people all over Serbia called and asked what their legal position is and how they should behave, and we realized that we have to react, that there is legal uncertainty, that there is no knowledge about the situation.
There was also inequality. While public figures simply gave public apologies and were put in quarantine at home, others were tried under urgent procedure, some were severely punished, and many were imprisoned in special detention units.
Katarina Golubović: "We had the case of Jovana presented at that time, where the case was presented as political pressure on Jovana, considering that she was, so to speak, also politically engaged."
Not everyone reported about the case of a student and artist from Kikinda, Jovana Popović, but thanks to social networks, the public was able to learn that the author of the song "Bagra", which criticizes the government, ended up in custody. The day before the introduction of the state of emergency, she entered Serbia from Montenegro, where there were no cases of coronavirus at that time. She was arrested 10 days later, and the prosecution submitted blank record and the resolution from sanitary inspectors to the court as evidence, without any signatures. This strengthened the belief that this case also has a political background. But this case did not remain sole.
Milan Njegovan: "And then I waited for the resolution from 6 in the morning, so that at 3 o'clock in the afternoon they would say there will be no resolution, but that I am going directly before the judge. The judge sentenced me to 30 days in custody. Police came again and they arrested me, and I was in custody until April 15th."
It turned out that the first arrests and detainments began as soon as the Prime Minister announced the allocation of special detention units for those who violate self-isolation.
Ana Brnabić: "The Government of Serbia, the Ministry of Justice, through the Administration for the Execution of Criminal Sanctions, has provided three special facilities in Vršac, Požarevac and Pirot, which will be used to accommodate these individuals, until further notice. If they violate the isolation, they will be quarantined in these facilities."
Simultaneously with this announcement, the Ministry of Justice sent appeals to the judicial authorities. Prosecutors were advised to order detention for all individuals who violate the measures of self-isolation, and the State Prosecutor was advised to initiate disciplinary proceedings for dismissal against prosecutors who do not comply with that.
Vladimir Beljanski, President of the Bar Association of Vojvodina: "On the one hand, it is a demonstration of power of the executive authorities, and a threat to prosecutors. Let's see what they are saying in other words, they are telling prosecutors to disregard the CPC. You must seek custody whether or not the legal requirements are met. Thus, the executive authorities suspend the most important procedural act in criminal law, the CPC.”
The State Prosecutor, however, acted on the recommendation of the Ministry, and issued a mandatory instruction advising prosecutors to order detention in cases of violation of self-isolation.
Lidija Komlen Nikolić: “That general mandatory instruction cannot precede every concrete action, you will propose it, but you must have an explanation for that. So that is what is crucial here, you have to have the conditions foreseen by law to be able to do so.
The manner in which prosecutors and judges acted also determined the fear of infection. The Ministry of Justice recommended that the trials be held via Internet application Skype.
Milan Njegovan: "Monitors are placed in the office, and that's how it’s done, you sit in front of the monitor. The judge can be heard because the camera is right in front of them 11:01, but as soon as a lawyer or a prosecutor start speaking, you can’t hear them very well, then there are echoes, and then disconnection, typical internet problems".
In response to Insajder, the Ministry of Justice stated that the trials via Skype were introduced at the request of judges, and that it is in line with the practice that exists in other countries.
Vladimir Beljanski: "We are not the only ones who introduced this type of trials, but as far as I know, we are the only ones who introduced them in this way. No one introduced them through a government decree, which overcomes the legal power and rights of the defendant, and no one works in such a way that the defendant sits in custody, from where his picture is being transmitted, and everyone else, i.e. defence attorneys, judge, prosecutor, stenographer and maybe some others - in the courtroom”
Although there is no provision in the Criminal Procedure Code for such a trial, some courts applied the ministry's recommendation immediately, without even waiting for a government decree on trials via video link, which was passed only on April 1st. The court in Dimitrovgrad passed the first verdict the day after the ministry's recommendation. The sentence was in line with the president's statement.
March 23, 2020 Aleksandar Vučić, President of Serbia: “In the coming days, you’ll be able to see first cases of people being sentenced to 3-12 years in prison for violating self-isolation advised by doctors at the borders or elsewhere, because these people are putting thousands of lives of others in our country in danger.”
The defendant received the verdict from the court in Dimitrovgrad, with the maximum sentence of 3 years, via Skype in the detention unit in Pirot, where he was placed.
Dragomir Milojevic, President of the Supreme Court of Cassation: "It simply violates human rights, that’s undisputable. This citizen has the right to say “I will not be tried”, and I think that the judge should then respect his rights."
Milovan Njegovan's lawyer referred to that right.
Milan Njegovan: "So, the judge agreed to postpone my trial so that I can attend in person, and it was postponed to April 30th."
This case, however, will be remembered for something else. In the decision to order detention, the judge literally referred to the appeal sent to the citizens by the president.
Goran Stupar, lawyer: "I asked the judge outside of the hearing when does the president’s appeal become effective, he did not answer, he removed himself from the panel and made a decision to order his detention."
Dragomir Milojević: "You want it in two words or one? There is no justification. That is my opinion. It’s well known where the law is, and not in the statements of the president, or any statement in the media for that matter, I don’t want to sound too harsh."
Milan Njegovan: "I think that we were a collateral, someone had to be, so that the citizens would be warned."
Katarina Golubović: "As a party, you can definitely claim that your right to a fair trial has been violated"
Milan Njegovan: "First I was sent to Klisa, to the Klisa prison in Novi Sad. However, when we got there, they checked the papers, and they said that they can’t take me in because I was supposed to be in quarantine, that I have to go for Vršac”.
The shock of entering the detention centre was followed by the additional fear of infection, because, there were other people in the same place who are suspected of violating self-isolation, which means that they could potentially be infected.
Milan Njegovan: "That was constantly on our minds, we just wished that no one gets infected, because if one infected person comes in contact with 40 people, then all 40 will be infected."
The Ministry of Justice says that all prisons have protection measures defined in accordance with the recommendations of the Institute of Public Health, the Batut Institute and the Infectious Diseases Clinic. They also claim that the temperature of all detainees is being measured, a medical examination is performed and the epidemiological anamnesis is determined, that everyone is under constant medical supervision, and that everyone receives masks, gloves and disinfectants.
"We emphasize that all three units have rooms that are intended to accommodate people with symptoms of infection, in order to be immediately separated from people who do not have any symptoms. Rooms for accommodation of people, as well as other areas in the institutions, are being disinfected several times a day. People spend at least two hours in the fresh air" - the ministry said in a written response to our questions.
Katarina Golubović: "My personal opinion is that it was necessary to perform tests on these people, primarily because of their mental health, because being in detention meant that they were endangered."
Milan Njegovan: "The first fifteen days we all looked at each other, payed close attention if someone would cough, whether someone had a fever. People started to break mentally."
Katarina Golubović: "I would even consider it a kind of torture"
The Ministry of Justice, which recommended the detention, envisioned it to be with almost no limits, that is, to act as if people were in quarantine.
Radomir Ilić, State Secretary, Ministry of Justice (March 20, 2020): “Detention lasts 30 days, but imagine seven days later, because they are not in solitary confinement, a person who is also suspected of having coronavirus enters, then the detention of the first person that came is extended. What this means is that those who ended up in such detention units, practically won’t come out until the end of the epidemic, and possibly even for some extra days."
Goran Stupar, lawyer: This is an obvious example where the impression is that the executive authorities are influencing the judiciary ones, since the Secretary of State from the Ministry of Justice was in position to state that defendants who violated the measures of self-isolation will remain in custody.
Katarina Golubović: "I still believe that there are people of integrity in the judicial system, and my faith was confirmed through these trial monitorings, as there were requests from prosecutors to end the detention, and some courts accepted such a proposal."
Milan Njegovan was released from custody on April 15th and is not even considering a settlement with the prosecution.
Milan Njegovan: "Wherever the end is, we’re going to get there. I don't want them to put burden on me because of something I didn't do, I will not confess, if we need to go to Strasbourg, we go to Strasbourg".
With the termination of the state of emergency, the decrees according to which people were tried, will cease to be valid. Until then, it will be possible to file appeals against court decisions. After more than 100 Skype trials, it is apparent that verdicts have changed and mitigated over time, and that lawyers' appeals have been accepted and detentions lifted.
Katarina Golubović: “We had a collision of messages, a collision of legal regulations, and definitely requests that people should be convicted. I think that in these cases this instruction overpowered even when the situations were difficult, the judges ruled convictions, although with a minimum sentence of 3 months in house arrest, and all that, once again, relying on the following instruction and the announcement of the Ministry of Justice that a law on amnesty is going to be passed."
The law on amnesty was announced due to the good behaviour of prisoners in all Serbian prisons, and it is not known to whom it could refer to it.
Vladimir Beljanski: "Let me remind you that during the bombing we had military courts that were working at the time, some of those courts were even ad hoc courts, not permanent, and they conducted proceedings that were of urgent nature, with very rigorous punishments in the end, we had similar situations such as today’s self-isolation, then the violation of self-isolation, then immediate detention, then immediately after that the Skype trial, and the very severe sentences that are still being served today. In the end, those proceedings were finalized with overt verdicts, but after all, with amnesty. It is very wrong for the judiciary authorities to rely on amnesty.
Before the court, the Constitutional Court, there will also be a resolution on the introduction of a state of emergency which, as the Constitution stipulates, was not introduced by the Assembly because, as stated, it could not gather. The opportunity for introduction of a state of emergency was, in that case, used by the President, the Prime Minister and the President of the Assembly.
Vladimir Beljanski: "Constitutional provisions and the rule of law are a legacy of the civilization, and we have now pushed them into the background with the justification that now everything is allowed"
Katarina Golubović: "The Constitutional Court failed during the state of emergency, and that’s something that should not have happened"
Lidija Komlen Nikolić: “Something that is very important, that is in these times of the state of emergency, is to not make the same mistakes that happened to us 12:01 in previous states of emergency, when we had a large number of compensation proceedings and where the state, that is, the Republic of Serbia, after all, all the citizens of Serbia, paid the price for the urgency and cunning steps of their colleagues and everything else.”
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