no. 011-00-39/2024-02 date: November 18, 2024

MINISTRY OF THE INTERIOR

Ivica Dačić, Minister

11000 BELGRADE

Bul. Mihajla Pupina 2a

Subject: Initiative for Amendments to Article 3, Paragraph 1, Item 15, and Article 16 of the Law on Public Peace and Order

Dear Mr. Dačić,

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 December 2022, the Commissioner submitted to the Ministry of the Interior, among other things, the Initiative for Amendments to Article 3, Paragraph 1, Item 15, and Article 16 of the Law on Public Peace and Order^[2]. Bearing in mind that this law has not yet been amended following the Commissioner’s initiative, we are resubmitting and supplementing the former initiative.

The Commissioner once again points out the importance of considering amendments to the Law on Public Peace and Order (“Official Gazette of the RS,” no. 6/16 and 24/18), namely Article 3, Paragraph 1, Item 15, which prescribes the meaning of the expression “prostitution,” and Article 16 of this law, which establishes prostitution as an illegal act against public order and peace and prescribes sanctions.

In the Republic of Serbia, since 2016, the Law on Public Peace and Order has been in effect, stipulating that engaging in prostitution is a misdemeanor punishable by a fine or imprisonment. A significant change introduced by this law is the provision for penalizing clients of prostitution services, which was not envisaged under the previous legislation. However, although the law prescribes penalties for all parties involved, numerous studies reveal that, in practice, only service providers are most frequently punished. Data shows that individuals engaging in prostitution are penalized “five times more often compared to those who use prostitution services“^[3].

During the most recent amendments, the legislator intended to treat those engaging in prostitution and those using such services equally, given that identical penalties were prescribed for both parties. However, it is important not to overlook data indicating that entering prostitution in most cases is not a matter of free choice but rather a result of coercion and/or deception, poverty, and is one of the most brutal forms of exploitation and discrimination, often linked to human trafficking and slavery. Sexual exploitation, as one of the most severe violations of human rights, is directly related to gender inequality, with women most often being the victims. Therefore, this allocation of responsibility between unequal parties inherently suggests that the law needs to be amended.

In this regard, we draw attention to certain provisions of the Constitution and laws. Article 21 of the Constitution of the Republic of Serbia^[4] prohibits any discrimination, whether direct or indirect, on any grounds, particularly based on race, gender, national affiliation, social background, birth, religion, political or other beliefs, property status, culture, language, age, or mental or physical disability.

The constitutional prohibition of discrimination is further elaborated in the Law on Prohibition of Discrimination^[5], which defines discrimination as any unjustified differentiation or unequal treatment, or omission (exclusion, restriction, or giving precedence) concerning individuals or groups, as well as members of their families or persons close to them, openly or covertly, based on race, skin color, ancestry, citizenship, national or ethnic origin, language, religious or political beliefs, gender, sex, gender identity, sexual orientation, sexual characteristics, income level, property status, birth, genetic traits, health condition, disability, marital and family status, criminal record, age, appearance, membership in political, trade union, or other organizations, and other actual or presumed personal characteristics. Article 20 of this law states that discrimination exists when actions violate the principle of gender equality or respecting equal rights and freedoms of women and men in political, economic, cultural, and other aspects of public, professional, private, and family life. The law prohibits the denial of rights, or the public or covert granting of privileges based on sex, gender, or gender identity or due to gender reassignment or adjustment to gender identity, as well as due to pregnancy, maternity leave, childcare leave, or special childcare leave. Moreover, the law forbids physical or other violence, exploitation, expressions of hatred, humiliation, blackmail, and harassment based on sex, gender, or gender identity, as well as public advocacy, support, or behavior associated with prejudices, customs, and other social patterns of behavior based on the idea of the inferiority or superiority of genders or stereotypical gender roles.

The Convention on the Elimination of All Forms of Discrimination against Women^[6], ratified by the Republic of Serbia, stipulates that for this Convention, the term “discrimination against women” refers to any distinction, exclusion, or restriction based on sex, which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field, based on equality between men and women. Article 6 of the Convention obliges member states to take all appropriate measures, including legislative ones, to suppress all forms of trafficking in women and the exploitation of the prostitution of women.

The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others^[7] obliges states to penalize any person who, to satisfy their desires, procures, entices, or leads another person into prostitution, regardless of that person’s consent, or exploits the prostitution of another person, regardless of their consent (Article 1). Furthermore, it mandates the punishment of any person who owns, manages, knowingly finances, or participates in financing a brothel or knowingly rents a building or other premises, or parts thereof, for the prostitution of others (Article 2).

This Convention was replaced by the UN Protocol against Trafficking in Persons, which obliges States Parties to prosecute traffickers, extradite suspects and exchange information, and which also addresses some aspects of prevention and protection. This Protocol is the first international binding legal instrument that explicitly addresses preventive measures against trafficking in persons, as well as action to protect and assist victims of trafficking in persons.^[8]

The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography^[9] obliges states to ensure that, at a minimum, actions such as offering, obtaining, procuring, or providing a child for child prostitution are fully encompassed within their criminal or penal laws, regardless of whether such acts are committed domestically or transnationally, individually or in an organized manner: offering, obtaining, procuring or providing a child for the purposes of child prostitution.

Under the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially of women and children^[10], which supplements the United Nations Convention against Transnational Organized Crime^[11], human trafficking is defined as: recruitment, transportation, transfer, harboring, or receipt of persons through threats or use of force, coercion, abduction, fraud, deception, abuse of power, or a position of vulnerability, or giving/receiving payments or benefits to obtain the consent of a person with control over another, for the purpose of exploitation. Exploitation includes, at a minimum, the exploitation of the prostitution of others, other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude, or the removal of organs. The consent of the victim to the intended exploitation is irrelevant (Article 3). Each state party is required to adopt legislative and other necessary measures to establish as criminal offenses the conduct outlined in Article 3 of the Protocol (Article 5).

The Council of Europe Convention on Combating Trafficking in Human Beings^[12] stipulates that Member States should undertake, among other things, measures to discourage demand that encourages all forms of exploitation of people, especially women and children, which leads to human trafficking, including measures to recognize demand as one of the main causes of human trafficking (Article 6).

The Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse^[13] stipulates the obligation of states to undertake the necessary legislative and other measures to ensure that the following types of intentional behavior are criminalized: engaging a child in prostitution or inducing a child to participate in prostitution; forcing a child into prostitution or making money from some other form of exploiting a child for such purposes; use of child prostitution services.

The Commissioner is once again submitting this initiative, bearing in mind the obligations of the Republic of Serbia regarding the harmonization with the legal framework of the European Union during the accession process. The proposed amendments and supplements are also based on Directive 2011/36/EU of the European Parliament and the Council on preventing and combating trafficking in human beings and protecting victims, as well as replacing Council Framework Decision 2002/629/PUP, and Directive 2012/29/EU of the European Parliament and the Council establishing minimum standards on the rights, support, and protection of victims of crime, and replacing Council Framework Decision 2001/220/PUP.

As a reminder, in its Regular Annual Report on the State of Equality Protection^[14], the Commissioner for the Protection of Equality highlighted the report of the United Nations Committee on the Elimination of All Forms of Discrimination against Women addressed to the Republic of Serbia. In its concluding observations on the Fourth Periodic Report of the Republic of Serbia^[15], the Committee requested that information be provided within two years on steps taken regarding the repeal of Article 16 of the Law on Public Peace and Order. In its new submission, sent to the Republic of Serbia two years later, on November 25, 2021, the Committee again addressed recommendation 26a), noting that it had not been implemented in the meantime. The Committee requested that the Republic of Serbia, “without delay, repeal Article 16 of the Law on Public Peace and Order to decriminalize women in prostitution, ensure that women in prostitution are not criminalized under laws, including the Law on Public Peace and Order, and provide exit programs and alternative income-generating opportunities for women who wish to leave prostitution”.

The citizens’ association for combating human trafficking and all forms of gender-based violence, “Atina”, which has long been involved in protecting victims of human trafficking, also pointed out to the Commissioner the need to amend the provisions of Article 16 of the Law on Public Peace and Order. The Association particularly emphasized the need to align national legislation with international standards in the areas of gender equality, prevention of gender-based violence, and prevention of human trafficking. Furthermore, they highlighted data from the Police Directorate indicating that, in the last three years, the police have identified far more offenders under this article among women and filed significantly more requests to initiate misdemeanor proceedings against women than men. According to the Association’s correspondence, in 2019, 288 offenders were recorded under Article 16, of whom 206 were women (71.5%). In 2020, 312 offenders were recorded, of whom 214 were women (68.5%). In 2021, the police submitted 293 requests for misdemeanor proceedings under this article involving 211 women and 88 men. For “engaging in prostitution” in 2021, 205 women and 79 men were charged, while for other activities (mostly “purchasing services”), 3 men and 5 women were charged. Additionally, they noted a clear disparity in the punishment of men and women, reflected in data from misdemeanor courts. Between 2016 and 2020, 356 women were penalized for engaging in prostitution under Article 16 of the Law on Public Peace and Order^[16], compared to 109 men for purchasing sexual services. The association “Atina” stated that an analysis of verdicts for this period revealed that those engaging in prostitution were predominantly highly vulnerable women and socially marginalized individuals. In 75% of cases, these were girls and women aged 13 to 25, mostly uneducated or with limited education, and overwhelmingly unemployed (96%), living in poverty. Most women admitted in court that they turned to prostitution due to dire financial circumstances. The Association further noted that almost all women in prostitution (90%) are controlled and dependent on individuals exploiting them, akin to victims of human trafficking. Considering that 60% of human trafficking cases are carried out for sexual exploitation, including prostitution, women exploited in prostitution should not be subject to misdemeanor prosecution or penalties. Instead of offering support and protection to these women, responsibility and the additional burden of fines are imposed on them—fines they are often unable to pay, forcing them back into prostitution as their sole income source.

The proposed amendments simultaneously abolish the possibility of misdemeanor punishment for girls aged 14 to 18. Specifically, given that children (persons under 18) acquire misdemeanor liability at the age of 14, girls aged 14 to 18 can currently be prosecuted for offenses under Article 16 of the Law on Public Peace and Order, despite the state’s obligation to provide girls involved in prostitution with the highest level of legal, social, and other forms of protection and to eliminate all measures that involve criminal, misdemeanor, or other forms of prosecution and sanctioning. The Republic of Serbia has undertaken this obligation through the ratification of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, as well as the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse. The criminalization and penalization of children over the age of 14 involved in prostitution contradicts established standards that this is considered a severe form of child sexual exploitation. In most cases, it results from human trafficking, and in all cases, it stems from the exploitation of the child’s vulnerable position, making the notion of child consent untenable.

The Association for Combating Human Trafficking and All Forms of Gender-Based Violence, “Atina”, also pointed out experiences from other countries that have decriminalized the provision of sexual services while continuing to penalize their purchase, such as Sweden and France. This comparative analysis indicates that in the years following the adoption of such (so-called abolitionist) legal solutions, the demand for sexual services decreased, as did the number of women involved in prostitution. For instance, in Sweden, the number of women in street prostitution was halved, from 650 in 1995 to 300 in 2008. Regulatory models in these countries also include provisions for psychological counseling and educational programs, which have yielded positive results.

Based on the previously elaborated points, the proposed amendments are as follows:

Article 3, paragraph 1, item 15) of the Law on Public Peace and Order, which reads:

“15) Prostitution – is the provision of sexual services for compensation in money or other value.”

Article 16 of this law which reads:

“Whoever engages in prostitution, uses prostitution services, or provides premises for prostitution shall be punished by a fine of 50,000 to 150,000 dinars or by imprisonment from 30 to 60 days.

Whoever provides premises for prostitution to a minor shall be punished by imprisonment from 30 to 60 days.”

should read after the amendments as follows:

“Article 3

15) Prostitution – is the provision and use of sexual services for compensation in money or other value;”

“Prostitution

Article 16

Whoever uses prostitution services or provides premises for prostitution shall be punished by a fine of 50,000 to 150,000 dinars or by imprisonment from 30 to 60 days. Whoever provides premises for prostitution to a minor shall be punished by imprisonment from 30 to 60 days.

For the offenses specified in paragraphs 1 and 2 of this Article, community service may be imposed as a supplementary penalty.”

Given that strict adherence to the recommendation of the CEDAW Committee, specifically the removal of the offense in Article 16, paragraph 1 of the Law on Public Peace and Order, could potentially lead to various interpretations of the legal status of prostitution and even interpretations that might open the door to its legalization, we believe that instead of deleting the entire article, it should be amended as proposed in this initiative. The proposed amendment is aimed at the decriminalization/depenalization of women in prostitution, specifically by removing the first action from this article, “engaging in prostitution”, while retaining the sanctioning of the other two actions—using prostitution services and providing premises for prostitution.

Based on Article 52 of the Criminal Code^[17] and Article 38 of the Law on Misdemeanors, the initiative proposes the possibility of imposing community service as a supplementary penalty, which we leave to the consideration of the Ministry of Internal Affairs as the proposer of the Law. In this regard, we would like to point out that community service cannot be imposed without the offender’s consent, as this would be contrary to international documents that prohibit forced labor, including ILO Convention No. 105 on the Abolition of Forced Labor^[18], which the Republic of Serbia has ratified. If the aforementioned proposal is accepted, we believe it should be stipulated that this penalty cannot be imposed without the offender’s consent, as is done in Article 52, paragraph 4 of the Criminal Code. Such work could be carried out by individuals responsible for the misdemeanor under Article 16 of the Law on Public Peace and Order, specifically in the field protection of victims of human trafficking and victims of violence, fully respecting the victims’ rights to safe accommodation and environment.

Since the emphasis in the initiative is placed on the use of prostitution services, there is a need to amend the definition of prostitution in Article 3 of this law to include the action of using the service. Amendments to Article 16 of the Law on Public Order and Peace aimed at the decriminalization of women in prostitution represent just the first step towards improving the status of these women and the overall prevention of sexual exploitation and prostitution in the Republic of Serbia. After the amendment of the Law on Public Peace and Order, related changes to the Criminal Code should also be considered, which currently incriminates mediation in prostitution in Article 184, as well as the promotion and advertising of prostitution.

The Criminal Code should, in addition to these provisions, include articles that sanction the purchase of sexual services and the provision of premises to minors for prostitution, which is currently regulated only by the Law on Public Peace and Order and is pursued as a misdemeanor. Given that a draft law on amendments to the Criminal Code is currently in process, we consider it important to reiterate this initiative for the comprehensive regulation of the aforementioned issue. Alongside this step and the proposed amendments to the relevant laws, consideration should be given to ways of providing long-term support and empowerment for women who wish to leave prostitution. The CEDAW Committee has also recommended to the Republic of Serbia to “ensure exit programs and alternative income-generating opportunities for women who wish to leave prostitution”.

To ensure adequate and effective exit programs, it is not enough for just one institution to advocate for these changes; a broader range of community actors and a strategic approach to providing comprehensive support for these women is necessary. It is essential to build a support system in which women in prostitution are first formally recognized as victims, for whom specialized services in the domain of social protection would then be created, followed by economic empowerment programs, including requalification and upskilling programs at the National Employment Service. This is the only sustainable path for women in prostitution who wish to leave it to truly succeed and find another adequate and dignified source of income.

Considering all of the above, as well as the strategic commitments of the Republic of Serbia, anti-discrimination regulations, and the recommendations of the CEDAW Committee, the Commissioner for the Protection of Equality, in accordance with the competences under Article 33, paragraph 1, item 7) of the Law on Prohibition of Discrimination, refers once again this initiative to the Ministry of the Interior to commence drafting a law that encompasses the proposed amendments as soon as possible.

^[1] “Official Gazette of RS”, no. 22/09 and 52/21, Article 33, paragraph 1, item 7, in connection with item 5.

^[2] Initiative no. 011-00-33/22-02, of December 22, 2022.

^[3] Analysis of convictions for the misdemeanor of prostitution, p.102, Authors Sanja Pavlović and Hristina Cventinčanin Knežević

^[4] Constitution of the Republic of Serbia (“Official Gazette of RS”, nos. 98/06 and 115/21)

^[5] Law on the Prohibition of Discrimination, (“Official Gazette of RS”, nos. 22/09 and 24/21), Article 2, paragraph 1, item 1.

^[6] Law on the Ratification of the Convention on the Elimination of All Forms of Discrimination against Women (“Official Gazette of the SFRY – International Treaties”, no. 11/81), Article 5.

^[7]“Official Gazette of the Presidium of the National Assembly of the FPRY”, no. 2/51

^[8] Manual for the Revision of Legislation Against Trafficking in Persons, Institute for Human Rights, OSCE/ODIHR, 2001, p.16

^[9] “Official Gazette of SRY – International Agreements”, no. 7/02

^[10] “Official Gazette of SRY – International Agreements”, no. /01

^[11] “Official Gazette of SRY – International Agreements”, no. 6/01

^[12] “Official Gazette – International Agreements”, no. 19/09

^[13] “Official Gazette of RS – International Agreements” number 1/10

^[14] Available at: http://ravnopravnost.gov.rs/rs/izvestaji-i-publikacije-rs/publikacije-lat/

^[15] Concluding observations on the 4th periodic report of the Republic of Serbia, March 8, 2019, within them recommendation 26 a) – Trafficking in human beings and exploitation of prostitution

^[16] Five-year monitoring of the implementation of the Law on Public Peace and Order for Article 16-Prostitution (2016-2020), Author Sanja Pavlović

^[17] „Official Gazette of RS“, nos. 85/05, 88/05 – corr, 107/05 – corr, 72/09, 111/09, 121/12, 104/13, 108/14, 94/16 and 35/19

^[18] „Official Gazette of SRY  – International Agreements“, no. 13/02

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Janković