no. 011-00-12/2024-02 date: May 14, 2024

MINISTRY OF JUSTICE

Maja Popović, Minister

11000 BELGRADE

Nemanjina 22-26

Subject: Initiative for amendment of Criminal Code provisions

Dear Ms. Popović,

As you are aware, the Commissioner for the Protection of Equality, within the competences prescribed by the Law on Prohibition of Discrimination^[1] monitors the implementation of laws and other regulations and initiates the adoption or amendment of regulations to promote equality and protection against discrimination. In this regard, in the previous period, the Commissioner submitted several initiatives with justifications to the Ministry of Justice, related to the amendment of several provisions of the articles of the Criminal Code of the Republic of Serbia. Bearing in mind that a new Government has been elected and that the Ministry has previously announced amendments to the Criminal Code, the Commissioner submits this initiative to the Ministry of Justice.

In the work plan of the previous Government for 2023, for December 2023, amendments to the Criminal Code were planned to harmonize it with the definition of victim in Directive (2012)29 of the EU. Among other things, the planned changes are significant because Directive (2012)29 of the EU specifically points out victims who may be exposed to discrimination and victimization and that certain acts may be motivated by hatred of other and others. The Directive particularly aims to promote the right to dignity, life, physical and psychological integrity, freedom and security, respect for private family life, property rights, principles of non-discrimination, principles of equality between men and women, rights of children, the elderly and persons with disabilities, as well as the right to a fair trial. The Directive specifically states that violence directed at a person because of their sex, gender identity, or gender expression, or violence that disproportionately affects people of one gender in particular, is considered gender-based violence. It can result in mental, sexual, emotional, or psychological injury or economic damage to the victim. Gender-based violence is considered a form of discrimination and a violation of the fundamental freedoms of the victim. It includes violence in intimate relationships, sexual violence (including rape, sexual assault, and harassment), human trafficking, slavery, various forms of harmful practices, such as forced marriage, genital mutilation of women, and so-called “crimes out of honor”. The Directive pointed out that women victims of gender-based violence require special assistance and protection because there is a high risk of secondary victimization and re-victimization, intimidation, and retaliation associated with such violence.  It is also stated that violence in close relationships is a serious and often hidden social problem that can cause systemic psychological and physical trauma with serious consequences because the perpetrator is a person in whom the victim should have confidence, and that, therefore, victims of violence in intimate relationships may require special protection measures. The Directive additionally points out that women are disproportionately exposed to this type of violence, and the situation can be even more difficult if the woman is dependent on the perpetrator economically, socially, or in terms of residence. The Directive stipulates that the status of the victim in the criminal legal system, as well as whether the victim can actively participate in the criminal proceedings, differs from country to country depending on the national legal system and is determined by one or more criteria listed below: whether the national legal system provides the victim with the legal status of a party in criminal proceedings, whether the victim has a legal obligation or is asked to actively participate in criminal proceedings, for example, as a witness; and/or whether the victim has a legal right following the national legislation to participate in the criminal proceedings actively and claim that right, where the national legal system does not provide the victim with the legal status of a party in the criminal proceedings. Member States should determine which of these criteria applies, to determine the scope of the rights provided for in this Directive, where there are references that indicate the status of the victim within the relevant criminal justice system. The Directive also points out that information and advice provided by competent authorities, victim support services, and restorative justice services should, to the greatest possible extent, be provided to the victim through various means and in an understandable manner. This information and advice should be provided in simple and understandable language. It is also necessary to enable the victim to be understood during the procedure. In this sense, the victim’s knowledge of the language in which the information is provided, their age, maturity, intellectual and emotional capacity, literacy, and any mental or physical impairments must be considered. Special attention should be paid to difficulties in understanding or communication due to disabilities, such as hearing impairments or speech impediments. In the same way, limitations on the victim’s ability to communicate information should be considered during criminal proceedings. Therefore, the Directive in particular points out the position of victims of gender-based violence, persons with disabilities, as well as the position of children of victims, relatives of victims, etc. In addition, the Directive points out that the individual assessment should take into account the personal characteristics of the victim, such as their age, sex, gender identity and gender expression, ethnicity, race, religious belief, sexual orientation, state of health, disability, resident status, communication difficulties, relationship with or dependence from the perpetrator of the criminal act, as well as previous experiences related to criminal acts. The type or nature of the criminal offense and the circumstances under which it was committed must be taken into account, such as whether it is a criminal offense motivated by hatred, prejudice, or discrimination or whether it is sexual violence, violence in intimate partner relationships, whether the perpetrator of the crime was in a position to control the victim, whether the victim has a place of residence in an area with a high crime rate, or an area strongly influenced by a criminal gang, or whether the country of origin of the victim is different from the Member State where the crime was committed. To encourage victims, make it easier for them to file a criminal complaint, and enable them to break the vicious cycle of re-victimization, it is essential that victims have reliable support services available and that competent authorities are ready to respond to victims’ complaints with respect, in a compassionate, professional and non-discriminatory manner. This would increase the victim’s confidence in the criminal justice system of the Member States and reduce the number of unreported crimes. Professionals to whom criminal offenses can be reported should be adequately trained to facilitate the reporting of criminal offenses, and measures should be foreseen to enable the submission of reports by third parties, including civil society organizations. Communication technologies, such as e-mail, video recordings, or electronic online forms, should be enabled for submitting applications.

Also, in addition to this Directive, with which it is necessary to harmonize our criminal legislation, the Commissioner points to the fact that in April 2024, a directive of the European Parliament and the European Council on combating violence against women and domestic violence^[2] (2022/0066(COD) PE-CONS 33/24) was adopted, whose purpose is a comprehensive framework for the effective preventing and combating violence against women and domestic violence.

Bearing in mind all of the above, the Commissioner also reminds of previously submitted initiatives of this body, which were sent to the Ministry of Justice in previous years and have not been considered so far.^[3]

In this regard, the Commissioner once again reminds that the provisions of Article 178 of the Criminal Code (hereinafter: CC) are not fully harmonized with the Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention)^[4], as well as that Article 179 of the CC, in terms of terminology and differentiating a group of persons only by their personal capacity, is also not un compliance with the Convention on the Rights of Persons with Disabilities^[5].

First, we will clarify what non-compliance of the Article 179 of the CC consists of. After the adopted amendments, Article 178, paragraph 1 of the Criminal Code stipulates that whoever forces another to sexual intercourse or an act equivalent to it by using force or threatening to directly attack the life or body of that person or a person close to them, shall be punished by a prison sentence of 5 to 12 years, while the provision of Article 179, paragraph 1, stipulates that whoever commits violence against another or an act equivalent to it by taking advantage of mental illness, mental retardation, other mental disorder, incapability or any other condition of that person due to which they are not capable to resist, shall be punished with imprisonment of five to twelve years. From the criminal acts prescribed this way, it follows that the fundamental difference is whether the passive subject could resist in the specific case. Bearing in mind the cited provisions, the Commissioner points out that the terminology used in Article 179 of the Criminal Code and the definition of other criminal acts does not follow international standards, and that it is outdated and discriminatory. Terms such as “mental illness,” “mental retardation,” and “other mental disorder” are inadequate, and they insult the dignity of persons who have developmental difficulties or some form of disability, whereby these persons are further stigmatized. The Commissioner believes that it is important to emphasize that a large number of studies show that people with disabilities belong to one of the most discriminated groups in the Republic of Serbia. The medical approach to disability has not yet been abandoned, which is why people with disabilities are viewed through the assumption of complete inability to live and lack of independence in terms of making life-related decisions.^[6] Women with disabilities are more exposed to violence, abuse, and neglect than women without disabilities. Some women with disabilities are exposed to forced sterilization, which is carried out with or without their coerced consent, 13% of women with disabilities were forced to have an abortion, and the coercion was carried out by family members or their doctors, with the “explanation” that they would not be good mothers. Women with intellectual and mental disabilities are at a much higher risk of being victims of sexual violence than women without disabilities and women with physical disabilities, and from the moment a woman is placed in a residential institution, that risk increases even more.^[7]

The provisions of Article 36, paragraph 1 of the Istanbul Convention stipulate that the Member States will take the necessary legislative or other measures to ensure that the following types of intentional behavior are criminalized: a. vaginal, anal/or oral penetration of a sexual nature on the body of another person without their consent, using any part of the body or object; b. other sexual acts with a person without their consent; c. inciting another person to attempt sexual acts with a third person without their consent. The same article in paragraph 2 stipulates that consent must be a voluntary outcome of the person’s free will as assessed in the context of the given circumstances. Also, the Commissioner points out that Article 39 of the Istanbul Convention stipulates that Member States will take the necessary legislative or other measures to ensure that the following intentional actions are criminalized – surgery with the purpose or with the result of preventing natural reproduction in a woman without her informed consent and understanding of procedures.

The Council of Europe, in the Recommendations for the implementation of the Istanbul Convention given to the Republic of Serbia^[8], pointed out that it is necessary for the Republic of Serbia to quickly implement the reform of the Criminal Code in the part that regulates sexual violence, which will be based on the concept of freely given consent, and in the manner regulated by Article 36 of the Convention, regardless of personal characteristics.^[9] Therefore, the integration of these two criminal acts into one is important for the sake of harmonization with the Istanbul Convention, taking into account that the criminal act of rape, as prescribed by the Criminal Code, recognizes two acts as the act of execution: coercion and forced sexual intercourse, whereby the prohibition of the act stems from coercion. However, in addition to physical coercion in the sense of the use of force or a qualified threat, one should bear in mind that the very absence of consent, in compliance with the Istanbul Convention, should be criminalized.

The Commissioner is of the opinion that there is no need for a special offense from Article 179 of the CC but that it is necessary to expand, that is, amend the criminal offense from Article 178 of the CC by prescribing a more severe form of this criminal offense when it comes to persons with disabilities, while harmonizing the terminology with standards and anti-discriminatory regulations.

Regarding the provisions of Article 120, paragraph 1 of the Criminal Code, these provisions stipulate that whoever, contrary to the regulations on terminating a pregnancy, performs an abortion on a pregnant woman, initiates an abortion, or assists her in performing an abortion, with her consent, shall be sentenced to three months in prison up to three years, while paragraph 3 of the same article stipulates that whoever pefroms or initiates an abortion on a pregnant woman without her consent, and if she is under the age of sixteen, without her consent and the written consent of her parent, adoptive parent or guardian, will be punished by imprisonment from one to eight years. This provision prescribes the illegal termination of pregnancy with the consent of the pregnant woman as the basic form of the criminal offense, while the more severe form of this criminal offense prescribes the illegal termination of pregnancy when there is no consent. In this regard, the Commissioner points out the provisions of the Istanbul Convention, which concern the intentional termination of a woman’s pregnancy without her informed consent. The Commissioner pits out that the Law on the Rights of Patients^[10], in Article 7, paragraph 1, also stipulates that the patient has the right to all types of information about the state of their health, the health service and how they use it, as well as all information that is available based on scientific research and technological innovations, while paragraph 2. stipulates that the patient has the right to receive the information from para. 1. and 2. of this article on time and in a manner that is in their best interest. Article 11, paragraph 1, of this law stipulates that the patient has the right to receive timely information from the competent health worker when they need to decide to agree or not to agree to the proposed medical measure, which includes, among other things, 1) diagnosis and prognosis of the illness; 2) brief description, goal and benefit of the proposed medical measure, duration and possible consequences of taking or not taking the proposed medical measure; 3) the type and probability of possible risks, painful and other secondary or permanent consequences; 4) alternative methods of treatment; 5) possible changes in the patient’s condition after undertaking the proposed medical measure, as well as possible necessary changes in the patient’s lifestyle; 6) effect of drugs and possible side effects. Therefore, from the quoted provisions of the law, it follows which information is necessary that the patient possesses to make a decision in relation to their health condition.

Regarding the implementation of the Istanbul Convention, the Council of Europe also recommended to the Republic of Serbia that medical workers must respect the consent given by a woman referring to the performance of medical procedures related to preventing the natural reproduction of a woman, and act accordingly. This recommendation must be implemented in particular when it comes to women with disabilities who are placed in institutions. In the European Commission Report for 2020^[11] but also for 2021, it was stated that women with disabilities in institutions are particularly susceptible to gender-specific forms of violence – forced contraception, forced sterilization, and forced abortion.^[12] Also, in the Concluding observations^[13] regarding the Initial Report of the Republic of Serbia on the implementation of the Convention on the Rights of Persons with Disabilities, in which recommendations were given regarding the implementation of the Convention, it was stated that the Republic of Serbia should prohibit medical interventions that are carried out without the prior consent of persons with disabilities, as well as provide compensation and protection for all those who were exposed to such interventions. In addition, it is recommended that the state take all necessary measures that guarantee the right to free, prior, and informed consent for any type of treatment of a disabled person, regardless of their business capacity. For example, Montenegro amended the Criminal Code in this direction by amending the criminal offense of rape as well as criminalizing forced sterilization through a separate offense.^[14].

The Commissioner also draws attention to the document – the response of the Republic of Serbia to the Report on the Implementation of the Committee’s Recommendations, which was adopted in November 2020, based on the 2020 GREVIO report for the Republic of Serbia^[15] which by all means indicates further obligations regarding the full implementation of the recommendations of the GREVIO committee, that is, the provisions of the Istanbul Convention.

In addition to the aforementioned amendments to the CC that need to be considered, the Commissioner points out the provisions of Article 250 – Transmission of HIV infection and the previously submitted initiative related to it.

The relevant provision of the Criminal Code refers to the transmission of HIV infection and stipulates that anyone who knowingly puts another at risk of HIV infection will be punished with up to two years in prison (paragraph 1); who knowingly does not comply with the regulations and measures related to the prevention of the spread of HIV infection and thereby out of neglience causes the transmission of the HIV virus infection to another person, shall be punished by imprisonment of one to five years (paragraph 2); who, knowing that he is infected with the HIV virus, knowingly transmits that infection to another, will be punished by imprisonment from two to twelve years (paragraph 3); if the act referred to in paragraph 3 of this article results in the death of an infected person, the perpetrator will be punished with imprisonment of five to fifteen years (paragraph 4); if the offense referred to in paragraphs 3 and 4 of this article was committed out of negligence, the perpetrator will be punished for the offense referred to in paragraph 3 by imprisonment for up to three years, and for the offense referred to in paragraph 4 by imprisonment from six months to five years (paragraph 5) .

The civil society organizations that addressed the Commissioner pointed out, among other things, that highlighting only one patient population in the Criminal Code, in this case, HIV positive, resulted in obvious stigmatization, and thus discrimination, of people living with the HIV, and that the way these people are criminalized, at a time when both the state and the civil sector in the Republic of Serbia, as well as the whole world, are making enormous efforts to reduce and one day eliminate the stigma and discrimination of people with HIV. They also emphasized that the existing Article 250 of the Criminal Code should be deleted entirely or changed so that only HIV is not specifically emphasized because the previous Article 249 of the Criminal Code talks about the consequences, i.e., prescribed sanctions for those who do not act according to the regulations, decisions or orders for control or prevention of any infectious disease. In their address, they stated that it is completely unnecessary to highlight only the transmission of HIV in a separate article because only people living with HIV are directly called out in that way. They also submitted data related to the rate of HIV infection among the population in the Republic of Serbia and pointed out that the Republic of Serbia is a country with an extremely low rate of HIV infection (less than 0.1%). According to the data of the Institute for Public Health “Dr. Milan Jovanović Batut”, from 1984 to 2018, a total of 3,854 persons infected with HIV were registered in Serbia, of which 1,967 persons fell ill with AIDS (51% of all diagnosed HIV+ persons), while 1,255 persons died (1134 perons died of AIDS, i.e. 29% of all persons diagnosed with HIV infection). They pointed out that the legislator did not take into account, when formulating this provision, the medical aspect of the transmission of HIV infection, which affects the possibility of proving that this act was committed and makes it practically unprovable. This is confirmed by the very small number of criminal cases established on this basis and the even smaller number of legally binding decisions. They further pointed out that the criminal provisions related specifically to HIV should be repealed following the recommendations of UNAIDS and the World Health Organization.

To prevent HIV infection and other sexually transmitted infections, as well as to provide treatment and support to all people living with HIV, in 2018, the Republic of Serbia adopted the Strategy for the Prevention and Control of HIV Infection and AIDS in the Republic of Serbia 2018-2025^[16] (hereinafter: Strategy). The Strategy emphasizes that the respect and promotion of the human rights of people living with HIV, key populations at risk of HIV, as well as other sensitive population groups is extremely important. People living with HIV have the right to privacy, normal education, health care, work, housing, and non-discriminatory treatment in all areas of life. The public should be informed about the importance of overcoming prejudice and ignorance and preventing discrimination to control HIV infection and AIDS successfully. The special responsibility of all employees in public services, especially in health, educational, and social protection institutions, is in the domain of removing prejudices and suppressing fear towards people living with HIV.

The Strategy also stipulates that public health measures regarding health care, employment, education, social protection, housing, and other social activities must be based on scientific knowledge about HIV transmission, not assumptions, speculations, and fear.

The Strategy specifically emphasized that one of the goals in the field of sustainable development (global goals following the UN 2030 Agenda) in the field of health is ending the epidemic caused by HIV as a serious public health risk in every country by 2030. Respect for human rights is a prerequisite for a successful response to HIV infection. Obstacles in the exercise of human rights, the existence of stigma, discrimination, violence, and various abuses significantly contribute to the increase of sensitivity to HIV in key populations and the reduction of the quality of life of people living with HIV.

The Strategy is based on a comprehensive approach and intersectoral cooperation as prerequisites for the success of strategic activities, which include, among other things, adequate legal regulations.^[17] The strategic plan for the response to the HIV epidemic is based on the principles of full guarantee and protection of human rights based on the recommendations of the EU and other international conventions.

The UNAIDS publication^[18], among other things, stated that UNAIDS confirms the concept of “undetected- untransmittable”. Namely, there is a strong scientific consensus that people living with HIV who are taking an effective antiviral therapy that suppresses the level of HIV to an undetectable level cannot transmit HIV sexually, as well as that there is a need for the treatment to be available to everyone at affordable prices, in combination with the relevant services of the health system. In the UNAIDS report Communities at the centre^[19], it is stated that the pace of progress in reducing the number of new HIV infections, improving access to treatment, and ending AIDS-related deaths is slowing down and that there is an urgent need for political leaders to put AIDS back on the agenda to make its disappearance a reality. It is stated that ignorance and fear of HIV fostered stigma and discrimination against people living with HIV since the earliest days of the epidemic and that some progress has been made in the fight against stigmatization and discrimination, but that this attitude towards people living with HIV/AIDS is still common.

Also, the World Health Organization^[20] in its Global Health Sector Strategy – HIV^[21] recommends, among other things, the following actions to Member States in terms of ending policies and practices that encourage stigmatization and discrimination, especially of people living with HIV, as well as that it is necessary to create an institutional and social environment that is safe for people with HIV to access health (and any other) assistance without fear of discrimination, and involve society in planning and providing the highest quality and most efficient services.

According to the results of the latest research on the perception of citizens towards discrimination^[22] the analysis of responses on the prevalence of discrimination against specific groups shows that the largest number of respondents believe that it exists to a great extent or mostly against people with HIV/AIDS (41%) This research also showed widespread negative attitudes and pronounced social distance towards persons with HIV/AIDS.

In relation to a decision from 2019, which repealed the provision characterizing HIV and hepatitis B virus transmission as a criminal offense, UNAIDS welcomed this practice, considering that the criminalization of HIV transmission is ineffective, discriminatory, and does not support efforts to prevent new HIV infections.^[23]

At the time when this criminal offense was entered into the Criminal Code, taking into account, among other things, general prevention, given the spread of the virus at the time, unknowns regarding transmission and treatment, the prescription of a special offense was conditioned by such social circumstances. Considering the development of medical science, innovative therapies, the prevention of transmission due to the use of such treatment, and the reduction of mortality and morbidity, the question of the further purpose of the existence of a special criminal offense arises. The Commissioner believes that taking into account all the above, it is necessary to consider amendments to the Criminal Code so that the transmission of this infectious disease is not singled out as a separate criminal offense, and that the same goal can be achieved by amending Article 249 of the Criminal Code, which is not only stigmatizing for people who live with HIV, i.e. by repealing the Article 250 of the Criminal Code, by which the transmission of this infectious disease is separately sanctioned.

The Commissioner also sent the initiative to the Ministry of Justice, as an authorized proposer, in 2022^[24] to amend the CC in Chapter 14, Criminal acts against the freedom and rights of human and citizen, by stipulating a special offense for abuse and publication of recordings of sexually explicit content. The importance of timely sanctioning of all types and forms of violence, including gender-based violence as a frequent form of violence in general, is indisputable.

The Commissioner also reminds that the amendments to the Criminal Code, which many years ago recognized domestic violence as a separate criminal offense, greatly contributed to the understanding of gender-based violence in our society. Thanks to these changes, domestic violence was no longer a private matter but a social problem, which was followed by other changes in the legislation: protection measures against violence in the family and partner relationships were introduced, stricter penalties for sexual offenses, prohibition of approaching and communicating with the victim, criminal acts of persecution and sexual harassment, and the Law on Prevention of Domestic Violence was also adopted, and the like.

In the past few years, the Republic of Serbia has taken necessary steps towards the suppression of gender-based, peer-based, and any other violence, as well as towards strengthen mechanisms for the protection of victims of violence following the activities of the Commissioner, who continuously points out these problems, submitting initiatives and recommending measures to public authorities, as well as other activities following the prescribed competences. Discrimination, primarily of women and girls based on gender, is often caused by firmly rooted, traditional, patriarchal stereotypes about gender roles in the family and wider community, according to which women are “owned” by men. The consequence of such perceptions are unequal power relations, as well as social tolerance and acceptance of violence as normal behavior.

Bearing in mind the modern accelerated development of science and technology, we are witnessing that digital technologies are increasingly being used as a means of committing violence this type of violence is taking on wider proportions and is not limited only to physical space because it spreads through the Internet and social networks and to the online sphere. A vicious circle of violence is created that is difficult to get out of, it has a wide audience in the digital community who can continuously follow the process of abuse and often even enjoy and participate in the violence. The consequences of this kind of violence are far-reaching, and if it is not sanctioned, the victims can be continuously and long-term exposed to the violence committed. We also remind you of the event that disturbed the public in Serbia, which related to a Telegram group in which users shared content of revenge pornography, i.e., intimate photos and videos of girls, while one of those groups numbered as many as 36,000 people.^[25].

Bearing in mind this situation and the need to respond to these new forms of violence, the Commissioner, together with UNFPA – the United Nations agency for sexual and reproductive health, launched at the local level the campaign “Your body is yours. Both online and in the real world”, which is part of the global campaign “Bodyright” to raise awareness about gender-based violence committed through technology and the need to respond strongly to this violence. Technology-mediated violence is real violence that comes in many different forms. In this global campaign, it was pointed out that the data shows that 85% of women with access to the Internet stated that they witnessed violence online, and 38% that they experienced violence in person. According to the available data, Serbia has a large number of Internet users, which is constantly increasing, especially since the beginning of the Covid 19 pandemic, indicating the importance of virtual space.

Bearing in mind the new forms and types of violence in the digital world, a Glossary of gender-based violence perpetrated through technology was created as part of the campaign. Within this Glossary, a special part is devoted to forms of gender-based violence committed through technology. Thus, in addition to cyber violence and gender-based online harassment, and threats to privacy and security through technology, it was also clarified what constitutes sexual violence in the digital environment. This publication states the following: “Sexual violence in the digital environment includes various forms of sexual abuse that are carried out through information and communication technologies and/or are carried out in the digital environment. It includes abuse through visual content, regardless of whether the visual material is real or was obtained through the manipulation of computer programs – in the second case, we are talking about deepfake. Abuse through visual content includes underskirt and perverted photography; pornography without consent and sexual coercion; synthetic sex media, deepfakes, and fake (deepfake) pornography; sexting and abusive sexting; cyber exhibitionism, unwanted pornography, and dickpic/penis photos. Sexual violence in the digital environment, unfortunately, often overflows and overlaps with sexual violence in the offline world, and when this happens, we are talking about grooming in the online space, unwanted live sexual experiences enabled by technology, as well as electronically assisted human trafficking. Sexual violence in the digital environment can also represent the continuation of sexual violence in the offline world – an example is practice recording and/or broadcasting sexual assaults and rapes.”

When it comes to the legislative framework of the European Union, Directive 2018/1808 amending Directive 2010/13/EU on the coordination of certain provisions established by laws and other regulations in Member States on the provision of audiovisual media services^[26] stipulates that platforms for the exchange of video content are obliged, among other things, to take “appropriate measures regarding the protection of minors from programs, user-generated videos, and audiovisual commercial communications that could harm their physical, psychological or moral development, as well as measures regarding the protection of the general public from programs, videos generated by users and audiovisual commercial communications that contain incitement to violence or hatred against a group of persons or a member of a group based on any personal characteristic”^[27]. Also, Directive 2011/93/EU on the suppression of sexual abuse and sexual exploitation of children and child pornography^[28] qualifies any type of abuse and exploitation of children as a serious violation of human rights and foresees a large number of criminal acts requiring severe penalties, and orders states to remove such content from the Internet and block websites with such content.

The abovementioned new Directive of the European Parliament and the European Council on the fight against violence against women and domestic violence^[29] (2022/0066(COD) PE-CONS 33/24) stipulates that EU member states must introduce into their legislation, within 3 years, the criminalization of female genital mutilation, forced marriage, sharing of intimate images without consent, cyberstalking, cyberharassment and cyber incitement to hatred or violence.

When it comes to the region, the analysis of comparative practice shows that some countries have already taken or are taking measures to sanction the abuse of sexually explicit content specifically. For example, in the Republic of Croatia, amendments to the 2021criminal legislation were adopted^[30] that prescribe the misuse of sexually explicit content as a separate offense. Also, Montenegro introduced, by amending the Criminal Code at the end of 2023^[31], a new article (175a) entitled Misuse of another person’s recording, photograph, portrait, audio recording or writing with sexually explicit content, and it is also considering the introduction of femicide as a separate crime^[32].

At the “Privacy Week” event, held from January 24-26, 2024, a panel was held in Belgrade, organized by the organization Partners Serbia, related to violence caused by sharing victims’ private content. The panel was opened by the presentation of a journalist who stated that based on research within Telegram groups, they learned that since 2021 dozens of groups have been operating, through which images and videos are shared of women who have not given their consent and who do not even know that this content is being shared publicly. The reaction of the prosecutor’s office was then pointed out, which dismissed the criminal complaint against the administrator of the Telegram group in which intimate content was shared without women’s permission, because he “only administered the groups, and did not personally post the content”. The AWC organization also presented an initiative for the introduction of a special part in the CC, which proposed to incriminate the misuse and publication of recordings of sexually explicit content.

As we pointed out, in addition to the fact that the consequences of this act affect the victim, we should not ignore the fact that they also affect family members and the immediate environment of the victim, and the victim has a hard time recovering because the content can be available even after many years and retraumatize the victim over and over. The law should follow the changes caused by the accelerated development of science and technology by sanctioning new forms of digital violence, as indicated by the EU Directive. The victims of these crimes are mostly women and children, but they can also be men. Bearing in mind the consequences of the act, it is necessary to improve their protection, which in many cases is impossible without the help of the prosecution and the police.

It is a fact that such changes require the provision of additional human and technical resources, however, this cannot be a reason not to sanction this type of violence and not protect the victim. Prescribing abuse and publication of recordings of sexually explicit content as a criminal offense would have, among other things, a preventive function in deterring potential perpetrators from committing this crime. The situation in which a child appears as a victim should certainly be foreseen as a qualified form of this criminal act. The fact is that our Criminal Code already contains several acts that regulate unauthorized photography, recording, wiretapping, publication and display of other people’s documents, portraits and videos, unauthorized collection of personal data, etc. However, these acts do not sufficiently recognize the specificities of such sophisticated forms of violence and of making them available to a large number of people through information technologies.

When amending the Criminal Code, it is necessary to take into account that the term “revenge pornography” is not adequate because it narrows the scope of the act and implies that the partner committed the act, while the term pornography is derogatory to the victims and implies that the victim recorded pornographic content. The term is also inadequate because a special act should also incriminate fake photos and recordings of the so-called deepfake content.

Bearing in mind all of the above, the Commissioner resubmits this initiative for amendments to the Criminal Code in Chapter 14, Criminal acts against the freedom and rights of human and citizen, prescribing a separate offense for the misuse and publication of sexually explicit content recordings by specifically sanctioning the misuse of real or fake sexually explicit content recordings. It is especially necessary to sanction making available this content to a third person or a larger number of persons, as well as when the content is published or provided by the use of computers, information, or communication technologies or in another way.

Considering all of the above, as well as the fact that the last amendments to the Criminal Code were made in 2019, and bearing in mind the necessity of innovating the Criminal Code, the Commissioner considers that there is an opportunity, when considering amendments to this Code and its harmonization with the Directive (2012 )29 EU in terms of the concept of victim, as well as with the Directive of the European Parliament and the European Council on the fight against violence against women and domestic violence (2022/0066(COD) PE-CONS 33/24), to also consider amendments to Arts. 120, 178, 179, 250, as well as amendments in Chapter 14 of the Criminal Code.

^[1] “Official Gazette of RS”, nos. 22/09 and 52/21, Article 33, paragraph 1, item 7, in connection with item 5.

^[2] https://data.consilium.europa.eu/doc/document/PE-33-2024-INIT/en/pdf

^[3] https://ravnopravnost.gov.rs/poverenica-povodom-kampanje-16-dana-aktivizma-protiv-nasilja-nad-zenama/

http://ravnopravnost.gov.rs/inicijativa-za-izmenu-krivicnog-zakonika-2/

^[4] Law on ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (“Official Gazette of RS – International Treaties”, number 12/13)

^[5] “Official Gazette of RS – International Agreements”, number 42/09

^[6] “Regular annual report of the Commissioner for the Protection of Equality for 2020”, Belgrade, March 2021, p.189

^[7] “Strategy for preventing and combating gender-based violence against women and domestic violence for the period 2021-2025” (“Official Gazette of RS”, number 47/21)

^[8] Published on February 4, 2020

^[9] Committee of Parties, Council of Europe Convention on preventing and combating violence against women and domestic violence, Recommendation on the implementation of Council of Europe Convention on Preventing and Combating Violence against Women and domestic Violence by Serbia, IC-CP/INf(2020)5, Published on 4th of February 2020;

^[10] “Official Gazette of RS”, no. 45/13 and 25/19 – dr. the law

^[11]https://www.mei.gov.rs/upload/documents/eu_dokumenta/godisnji_izvestaji_ek_o_napretku/serbia_report_2020_SR.pdf

^[12]https://www.mei.gov.rs/upload/documents/eu_dokumenta/godisnji_izvestaji_ek_o_napretku/izvestaj_ek_oktobar_21.PDF

^[13] Committee for the Rights of Persons with Disabilities, Concluding Observations on the Initial Report of the Republic of Serbia, CRPD/C/SRB/CO/1 of April 21, 2016

^[14] Criminal Code of Montenegro (“Official Gazette of the Republic of Montenegro”, nos. 70/03, 13/04 – corrected, and 47/06, and “Official Gazette of Montenegro”, nos. 40/08, 25/10, 32/11, 64 /11 – other law, 40/13, 56/13 – amended, 14/15, 42/15, 58/15 – other laws, 44/17, 49/18, 3/20, 26/21 – correction, 144/21, 145/21 and 110/23)

^[15]https://rm.coe.int/reporting-form-on-the-implementation-of-the-recommendations-addressed-/1680aa7cee

^[16] “Official Gazette of RS”, number 61/18

^[17] Point 2.2. Strategic approach and 2.3. Strategic principles – Strategy for prevention and control of HIV infection and AIDS in the Republic of Serbia 2018-2025

^[18] UNAIDS is a global program of the United Nations and leads efforts to eradicate AIDS as a threat to public health at the global level within the framework of achieving sustainable global goals in accordance with the 2030 Agenda.

^[19] Communities at the centre, UNAIDS, Geneva 2019, available online: https://www.unaids.org/sites/default/files/media_asset/2019-global-AIDS-update_en.pdf

^[20] https://www.who.int/news-room/fact-sheets/detail/hiv-aids

^[21] https://apps.who.int/gb/ebwha/pdf_files/WHA69/A69_31-en.pdf?ua=1

^[22] https://ravnopravnost.gov.rs/izvestaj-o-percepciji-gradjana-i-gradjanki-o-diskriminaciji-u-srbiji/

^[23] https://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2019/june/20190613_

^[24] https://ravnopravnost.gov.rs/rs/781-22-inicijativa-za-izmenu-krivicnog-zakonika-zloupotreba-snimaka/

^[25] https://autonomija.info/reaguj-osvetnicka-pornografija-je-dokumentovano-nasilje-nad-zenama/

^[26] https://eur-lex.europa.eu/legal-content/HR/TXT/?uri=celex%3A32018L1808

^[27] Article 28b of Directive 2018/1080 EC

^[28] https://eur-lex.europa.eu/legal-content/HR/TXT/?uri=celex%3A32011L0093

^[29] https://data.consilium.europa.eu/doc/document/PE-33-2024-INIT/en/pdf

^[30] https://narodne-novine.nn.hr/clanci/sluzbeni/2021_07_84_1562.html

^[31] http://sluzbenilist.me/pregled-dokumenta/?id={79E5828B-3462-42C2-9D4D-CDF9789C1A54}

^[32] https://www.euronews.rs/evropa/region/108571/crnogorski-ministar-pravde-o-izmenama-krivicnog-zakonika-razmatramo-uvodenje-femicida-kao-posebnog-krivicnog-dela/vest

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković