The Constitutional Court of the Republic of Serbia, on December 22, 2022, issued a decision accepting the constitutional appeal of ASTRA’s client, minor N.N. The Court determined that in the process of concluding an agreement on the recognition of a criminal offence from October 2021 and the proceedings of the High Court in Jagodina, which ended with the passing of the verdict of the High Court in Jagodina in November 2021, the applicant’s rights of the child from Article 64, paragraph 3 of the Constitution of the Republic of Serbia were violated, in connection with the principles of the best interest of the child and the protective approach to victims from Article 30, paragraph 1 and 2 of the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse. The remaining part of the constitutional appeal is dismissed.
At the same time, the injured party was granted the right to compensation for non-material damage in the amount of 1,000 euros, which is paid out of the budget funds – section of the Ministry of Justice.
As a reminder, ASTRA’s client-attorney filed an appeal on behalf of the minor N.N. to the Constitutional Court in December 2021. The appeal was against the actions of the High Public Prosecutor’s Office in Jagodina and the inaction of the High Court in Jagodina; that is, against the verdict of the High Court in Jagodina, due to the violation of the right to dignity and free development of the personality, the right to inviolability of mental and physical integrity, the right to a fair trial, the right to equal protection of rights and to a legal remedy and the rights of the child, guaranteed by the provisions of Article 23, paragraph 1, Article 25, Article 32, paragraph 1, Article 36, paragraph 1, and Article 64, paragraph 3 of the Constitution of the Republic of Serbia.
In addition, the applicant pointed out the violation of rights from several articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Convention on the Rights of the Child, the Law on the Ratification of the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse, the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the Law on juvenile offenders and the criminal protection of minors, the Criminal Code and the Code of Criminal Procedure.
As the rights guaranteed by the provisions of international conventions are essentially contained in the prominent rights guaranteed by the Constitution, the Constitutional Court primarily evaluated the existence of their possible violation in relation to the corresponding provisions of the Constitution.
As can be seen in the decision, the competent deputy prosecutor of the Higher Public Prosecutor’s Office in Jagodina, when deciding on the type and amount of the criminal sanction for the person suspected of committing three criminal acts of child abuse, had in mind the findings and opinion of the commission of neuropsychiatric experts, which states that the suspect’s emotional and social maturity at the time of the crime was at the level of an older minor aged 17. Also, the prosecutor had in mind the report of the competent Center for Social Work in Paraćin, which states that an educational measure should be imposed on the suspect, increased supervision by the guardianship authority, which would provide protection and help, strengthen the responsibility of the younger adult and thereby ensure reintegration into the social community.
One gets the impression that the Higher Public Prosecutor’s Office in Jagodina made a significant effort to comply with the findings of the commission of experts and representatives of the CSW, but unfortunately, without taking enough care not to violate the rights of the minor victim. That is why the Constitutional Court concluded in its decision on the appeal of ASTRA’s client, that the competent authorities in the specific case did not provide adequate protection to the child nor did they act in the best interests of the child in terms of compliance with the United Nations Convention on the Rights of the Child, the Council of Europe Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse and the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.
We believe that the decision mentioned above by the Constitutional Court can be an important document in improving the further work of decision-makers and provide clear guidelines for adequate action in similar cases.