BLOG Legal Angle
Written by Luka Jovanović
attorney-at-law and FSD Program Director
96 HOURS OF RULE OF LAW
There is no doubt that the start of the year 2024 will be marked, mayhaps even herald more anxious time yet ahead, by the days, acts and events cited around the name of Nikola Sandulovic, a man who was represented in the media as the leader of the marginal and little known oppositional Republican Party.
The way he is being treated can be considered unique in many ways – even by the standards of Serbias‘ judiciary!
It is this very „uniqueness“ of Sandulovic‘s case that needs to be brought to the attention of the public at large, especially the professional public!
Let‘s start at the beginning…
It all started, as it often does in Serbia, with a post on social media. Namely, on January 2nd Nikola Sandulovic posted on „X“ (formerly Twitter) a comment with photographs taken at Prekaz in Kosovo in which he informed the public that he laid flowers on the grave of the Jashari and that he has on that occasion, as he said, asked for forgiveness on behalf of all the Serbs who weren‘t culpable for their deaths.
On the very next day after this post was published mechanisms of the rule of law will make their entrance onto the scene.
The first move was made by the High Court in Belgrade which, at the request of the High Public Prosecutors‘ Office in Belgrade, issued a search warrant for the premises of Mr. Sandulovic on January 3rd with the goal to gather clues and evidence of possible Instigating of National, Racial and Religious Hatred and Intolerance from Article 317 of the Criminal Code. The search of the premises was, according to the warrant, entrusted to the Anti-Terrorism Unit of the Criminal Police Administration.
What exactly transpired on the day when the police arrived at Sandulovic‘s doorstep isn‘t entirely clear. Based on what has been published in the media and posted on social media up to date it can be asserted that no searching of the premises was conducted that day and that Sandulovic at that point in time was not a suspect as that term is defined by the Criminal Procedure Code.
Sandulovic himself claims that he was abducted on that day and brought to the SIA HQ where he was subject to police brutality as a result of which he suffered serious bodily harm. Due to the intensity of these injuries on the night between January 3rd and January 4th he was taken to the Military Medical Academy.
At the time of writing of these lines no convincing explanation by competent institutions was offered to the public as to the reasons why Sandulovic – who at that time was not a suspect – was taken from his home or where he was taken, no documents are publicly available that confirm that he was hospitalized at the MMA at that specified time and his state of health at the time of admittance to the hospital remains unknown.
After Sandulovic was returned by an ambulance from the MMA back to his house, the Anti-Terrorist Unit arrives at his address to, in accordance with the warrant that was issued a day before, conduct a search of the premises. After the search was concluded the gravely ill Sandulovic was taken by the police to the Criminal Police Administration HQ.
On January 5th – just an hour past midnight – CPA issued a ruling that placed Sandulovic under custody, at the authorisation of the Nis High Public Prosecutors‘ Office, on the grounds that he is suspected of Instigating National, Racial and Religious Hatred and Intolerance from Article 317 of the Criminal Code. The questioning of Sandulovic at the High Public Prosecutors‘ Office in Nis was scheduled for January 6th at 12 p.m.
At this point it needs to be said that the involvement of the Nis Public Prosecutor Office is remarkably unusual and practically – inexplicable!
Chiefly because the initiation of criminal proceedings in this legal matter is outside of Nis Public Prosecutors Office‘s jurisdiction.
Namely, The Organization of Competences of Government Authorities in the Prosecuting of High-Tech Crime Act stipulates that the prosecuting of criminal acts against the constitutional order and the security of Serbia committed via computer networks is the purview of the Special Department of the Belgrade Public Prosecutors‘ Office for the entire territory of Serbia.
On January 5th, after he was placed under custody, the police took Sandulovic to the ER at the Belgrade Clinical Center where he was at 7 a.m. diagnosed with „injuries obtained by physical strength of persons unknown,“ as well as a „fracture of the arch of the VIII rib on the left.“
At the end of the ER Triage report it is noted that the patient is being taken to the prison hospital in Belgrade Central Prison and that because of his health condition „he is incapable of longer transport outside the city.“
A reminder, a person held in custody on the authorization of the public prosecutor needs to be questioned within 48 hours after he is arrested.
That deadline in Sandulovic's case was set to expire on January 7th at 1 a.m!
After he has been questioned – according to the Criminal Procedure Code – Sandulovic needed to be questioned by the court about the grounds on which his detention is being requested, if such a request was made by the public prosecutor.
None of this, it would seem, happened in Nis!
Sandulovic, due to his poor health caused previously sustained injuries, was unable to be taken to Nis from the Central Prison hospital.
So, without questioning the suspect who‘s taking into custody he authorized precisely so he could be questioned by him, the Prosecutor filed a motion for the detention of the suspect.
In his motion for the detention of Sandulovic, who was incapable of being transported to the prosecutor‘s office, the prosecutor pointed out that there was „a genuine possibility that the suspect is a flight risk“ and a „danger that the suspect shall repeat the offence“!
The questioning before the judge didn‘t go any better either!
Even though the court was legally bound to question Sandulovic on the grounds for detention before it reached it‘s decision, the court has – while referencing an official memo by the prosecutors‘ office and citing „a danger of delay“ – concluded that there is grounds for detention – Without Questioning the Suspect – „since it is uncertain when the suspect will be healthy enough to appear before the court, and there is a danger that the suspect shall repeat the offence“!
* * *
So, in short, what do 96 hours of Rule of Law on January 2024 look like in Serbia:
Because of a single tweet, a non-competent court has, at the motion of a non-competent public prosecutor, ordered the 30-day detention of an individual (for whom there exist serious indications that he was a victim of police brutality) who, due to the severity of his injuries, couldn‘t be brought before the non-competent court to be questioned on the grounds for detention stated in the motion brought by a non-competent public prosecutor.
The reason that the non-competent court has stated for the detention is the danger that the battered person might tweet again.
Considered in their entirety and individually all the circumstances surrounding the case of Nikola Sandulovic represent an indicator of the alarming state of our judicial system with regards to the disregard for elementary rights in criminal proceedings and they underscore to what extent does the state encroach upon the civil liberties guaranteed by the Constitution in these kinds of proceedings.
After the mass arrests of students who participated in public protests on December 24th, the case of Sandulovic is an illustration of the exceptionally dangerous escalation of state repression which will, if we merely gloss over it without a second thought (despite the reactions from the region and European officials), become ever more unrestrained.
If we continue down that path, there won‘t be any wrong train, or wrong train stations. There won‘t be even any rails anymore. Only brute force will remain.