CRIMINAL LAW ASPECTS OF STALKING - CONTROVERSIAL ISSUES AND POSSIBLE DE LEGE FERENDA AMENDMENTS

Abstract

By ratifying the Istanbul Convention, which requires Member states to incriminate stalking, an obligation has been created for the Republic of Serbia to amend its criminal legislation by imposing this criminal offense. Bearing in mind that Convention does not specify the essential features of stalking in detail, the experience of those countries that have already prescribed it, served as a model for the Criminal Code of Serbia. By recognizing the fact that stalking was not incriminated in comparative legislation in a unique way, the author proposes answers to some of the controversial issues regarding this incrimination. Namely, the author deals with the following issues concerning the criminal offense of stalking: 1) how we should appreciate the condition of repeating the acts of execution in relation to stalking; 2) the problem connected with the circle of acts of execution that should represent an act of stalking; 3) the issue regarding the fact whether the consequences for the existence of completed criminal offense should be required; 4) in the context of those legislations which require the consequence the issue is whether the consequence of a criminal offense should be judged subjectively on the basis of the victim’s experience or objectively on the basis of the standards of an average citizen; 5) the circle of people who can be considered as a passive subject (victim) of stalking; and 6) the type of subjective element of crime required for the existence of stalking. Recognizing the disadvantages of the de lege lata rule, above all, wide zone of punishability, as well as the absence of consequence in the most of the acts of execution, in the concluding considerations, taking into account the comparative law solutions, it is mentioned proposals for de lege ferenda amends of the existing legal solution, with the aim of improving its application in future court practice. In that context, it is concluded that the criminal offense of stalking should be prescribed as an intentional unauthorized persistent execution of actions, against the will of another person, over a long period of time, causing a state of his or her sense of distress and fear for his or her own safety or security of the close person. By adopting the proposed de lege ferenda solution, the legal certainty would be strengthened and, in practice, it would be much easier to prove the existence of this criminal offense since that at least two serious objections of the existing solution would be removed: the problem of the wide zone of punishability in the context of stalking and the absence of consequence in the most of the acts of execution as well.