The Committee against Torture this morning began its consideration of the initial report of Serbia on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Svetozar ?ipli?, Minister for Human and Minority Rights of Serbia, noted that, after the democratic forces had taken over in October 2000, the process of building democratic institutions and abolishing discriminatory laws and those that were in conflict with international law had started. In November 2006, Serbia had adopted a new Constitution, which provided that no one might be subjected to torture, inhuman or degrading treatment or punishment. In 2005, Serbia had adopted the new Criminal Code and the Law on the Police, which prescribed the effective actions by the police in a modern way, especially with regard to persons deprived of liberty. Other relevant legislation included the Law on Asylum, which had been enforced since April 2008, in which Serbia had, for the first time, defined the establishment of refugee status on the ground of the Convention on Refugees from 1951.
In September 2005, the Minister of the Interior had formed the Commission to Monitor the Implementation of the European Convention for the Prevention of Torture with the aim of detecting and preventing all forms of torture within the police forces. Of particular significance among police reforms had been the establishment and strengthening of an efficient system of internal control and responsibility, including the establishment of the Internal Control Sector within the police forces, in May 2006, and the definition of the Rules of Resolution of Procedure Claims for claims filed against police officials by individuals. In addition, the Constitution established the Ombudsman, an independent and autonomous State body, which protected the rights of citizens and controlled the activities of the State administration. The Ombudsman had four deputies of whom one was specialized in the field of protection of persons deprived of liberty.
Serving as Rapporteur for the report of Serbia, Committee Expert Fernando Mariño wondered if the new Criminal Code included a definition of the crime of torture and if the Convention was directly applicable in the courts. He also asked for clarification on the procedure for bringing complaints of torture against law enforcement authorities; whether there was an oversight mechanism for prisoners in isolation; and whether there were time limits for pre-trial detention, given reports that such detentions had lasted up to two or three years in some cases. Other concerns included oversight of institutions for the mentally disabled.
Abdoulaye Gaye, the Committee Expert serving as Co-Rapporteur for the report of Serbia, asked about implementation of training programmes for law enforcement officials and prison and border guards. A major concern was overcrowding and poor conditions in prisons, which could lead to increased violence. The slow functioning of the prison system was also directly related to the judiciary system. The judicial process was too slow and Serbia needed to ensure that individuals received prompt trials.
Other Committee Experts asked questions on a number of issues, including reparations for victims of war crimes and prosecutions and sanctions for war criminals; rules for judicial appointments; sexual violence in prisons; and a lack of compliance by Serbia with Views issued by the Committee to individual communications of torture or ill-treatment brought before the Committee. An Expert asked for a specific update on the situation of the some 1,000 persons that had been detained following the assassination of Prime Minister Zoran Gingic in 2003. Reports had been received that those individuals had been detained without access to lawyers or family members and there had been widespread allegations of ill-treatment. Similarly, information was requested on prosecution of incidents of ethnic hatred and violence that were carried out in Serbia following Kosovo's declaration of independence.
The delegation of Serbia also included other representatives from the Ministry for Human and Minority Rights; the Ministry of Justice; the Ministry of Labour and Social Policy; the Ministry of the Interior; the Ministry of Foreign Affairs; the Ministry of Health; the National Council for Cooperation with the International Tribunal for the Former Yugoslavia; as well as Slobodan Vuk?evi?, the Permanent Representative of Serbia to the United Nations Office at Geneva, and other member of the Permanent Mission.
The delegation will return to the Committee at 3 p.m. on Thursday, 6 November, to provide its responses to the questions raised today.
Serbia is among the 145 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Lithuania to the questions posed by Experts on Tuesday, 4 November.
Report of Serbia
The initial report of Serbia (CAT/C/SRB/1) notes that matters related to criminal procedure are regulated by the Criminal Procedure Code, which entered into force on 28 March 2002 in the entire territory of the Former Republic of Yugoslavia. Although the term "torture" did not appear either in the constitutional texts or the criminal legislation of the Former Republic of Yugoslavia, the protection against torture, i.e. degrading treatment and punishment, was regulated by a large number of legal provisions which described and sanctioned the actions covered by the Convention.
In order to ensure prisoners' and/or detainees' protection from torture or other mistreatment, the right of petition and complaint has been given to them in the event of any violation of the rights granted to them by law or a breach of any rule. All complaints submitted to the warden or to the supervisory service are considered and their grounds examined urgently. Likewise, any use of force is registered and the need for it assessed, whereupon a relevant report is submitted to the Ministry of Justice of the Republic of Serbia. Complaints against mistreatment and torture have been rare, especially from prisoners serving long sentences. Complaints have been most frequently filed for the failure to provide medical assistance as many prisoners who had had no means or opportunity to have medical examinations and interventions carried out prior to imprisonment tended to request them while in prison.
The evaluation of the years-long practice of the Ministry of Internal Affairs has revealed that there was no torture. Rather, there were only individual cases of abuse of powers whereupon appropriate legal and by-law measures, including suspension and the termination of employment, were taken against authorized official persons. In the period from 1 January 1992 to 30 June 2003, a total of 38 criminal charges were brought against 50 Ministry personnel. Criminal charges were also brought against 41 uniformed and nine authorized Ministry of Internal Affairs personnel working on crime investigation. The majority of charges were brought after 2000, i.e. upon the establishment of a new democratic Government in Serbia. At that time the new Ministry leadership embarked upon the process of depoliticization and decriminalization of the Ministry, as well as the restaffing of its higher echelons and the demystification of the work of the police. At the same time, the Ministry devoted special attention to the implementation of the principles of transparency and public scrutiny as part of the control of its work. The majority of the prosecuted cases referred to the wrongful use or abuse of the powers related to the use of means of coercion - physical force or the rubber baton. In 16 cases, the means of coercion were used on the official premises during interrogations concerning the circumstances of the commission of certain criminal offences, when three persons lost their lives and five sustained severe bodily injuries. Out of the total number of Ministry of Internal Affairs personnel who had been charged, 12 were found guilty and sentenced to imprisonment ranging from 80 days to six years in prison. In addition to criminal charges, 38 Ministry personnel also had disciplinary proceedings instituted against them. Five were dismissed, 11 fined, six transferred to other workplaces, two had the charges against them dropped, eight were acquitted, while the proceedings against six continued.
Presentation of Report
SVETOZAR ?IPLI?, Minister for Human and Minority Rights of Serbia, began by noting that, in September 2006, Serbia had ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. On 3 March 2004, it had ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
Mr. ?ipli? observed that so far the process of reporting on the implementation of international instruments in the field of human rights by Serbia had been specific and complex. The initial reports covered long time periods. They had been prepared in the course of a dynamic process of reforms and changes in the State structure in 2003 from the Federal Republic of Yugoslavia to the State Union of Serbia and Montenegro. After the State Union of Serbia and Montenegro had ceased to exist in June 2006, Serbia, as the only legal successor of the State Union, had continued the international legal subjectivity of the State Union and the membership in all the treaties and conventions of the United Nations in the field of human rights.
The period before 2000 had been marked by cases of human rights violations, regardless of the accepted international commitments, Mr. ?ipli? commented. That period in Serbia had been marked by conflicts, isolation, disturbed relations with the surrounding countries and the international community, economic sanctions and internal instability, which had all resulted in the rapid economic collapse and impoverishment of the widest population groups. Nevertheless, after the democratic forces had taken over in October 2000, the process of building democratic institutions and abolishing discriminatory laws and those that were in conflict with international law had started. The reinstatement of the country in the various international organizations had been resolved, in particular in the United Nations and then in the Organization for Security and Cooperation in Europe and in the Council of Europe. Serbia had since been actively cooperating with those organizations in the field of human rights. In view of the strategic commitment of Serbia towards European integration, the reform process of domestic legislation was directed towards the harmonization with the acquis communitaire of the European Union and the adoption of the highest international standards in the field of human rights. In compliance with its international obligations, Serbia had also been actively cooperating with the International Criminal Tribunal for the Former Yugoslavia and, in compliance with resolution 1244 of the Security Council, had been cooperating with the Interim Administration Mission of the United Nations in Kosovo and Metohija.
In November 2006, Serbia had adopted a new Constitution. That supreme legal act guaranteed physical and psychological integrity and provided that no one might be subjected to torture, inhuman or degrading treatment or punishment or subjected to any medical or scientific experiments without his or her free will and consent, Mr. ?ipli? said. In 2005, Serbia had adopted the new Criminal Code and the Law on the Police, which prescribed the effective actions by the police in a modern way and also the actions by the police with the persons they came into contact with, especially persons deprived of liberty. In 2006, the new Law on Criminal Procedure had been adopted, and would come into force on 1 January 2009. Moreover, since 1 April 2008, the Law on Asylum had been enforced, in which Serbia had, for the first time, defined the establishment of refugee status on the ground of the Convention on Refugees from 1951.
In September 2005, the Minister of the Interior formed the Commission to Monitor the Implementation of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment with the aim of detecting and preventing all forms of torture within the police forces. Of particular significance among police reforms had been the establishment and strengthening of an efficient system of internal control and responsibility of the police, as the basis of police decriminalization, and the efficient combat against corruption within the police forces as a prerequisite for the establishment of high professional standards and police ethics. The most important institutional segment of that system was the Internal Control Sector within the police forces, established in May 2006. The second was the definition of the Rules of Resolution of Procedure Claims for claims filed against police officials by individuals.
With regard to prisons, the prevention of torture against persons deprived of liberty was provided by the Directorate for Enforcement of Institutional Sanctions, which supervised lawful and proper conduct in the relevant institutions through regular, controlled and extraordinary visits.
The Constitution of Serbia established the Ombudsman, an independent and autonomous State body, which protected the rights of citizens and controlled the activities of the State administration. It was also the body in charge of legal protection of property rights and interests of Serbia, as well as the activities of other bodies and organizations, companies and institutions that had been entrusted with public powers, Mr. ?ipli? said. The Ombudsman had four deputies of whom one was specialized in the field of protection of persons deprived of liberty.
Serbia highly appreciated and supported the activities of the civil sector related to the supervision of institutions of detention, Mr. ?ipli? emphasized. Helsinki Human Rights Watch was one of the organizations that regularly visited the prisons in Serbia and made recommendations concerning the improvement of conditions for prisoners. Serbia had included those recommendations into its Strategy for the Reform of the Enforcement of Criminal Sanctions, adopted in 2005.
Mr. ?ipli? wished to highlight the issue of the implementation of the Convention in the Autonomous Province of Kosovo and Metohija, which had been under the international administration of the United Nations since June 1999. The situation of human rights in Kosovo and Metohija was worrying and not satisfactory, in particular in relation to disrespect for human rights of the members of minority communities, of the Serbs and the Roma in the first place. Serbia would like to propose to the Committee to request the relevant information from the UN Interim Administration in Kosovo to find the most adequate way to consider the implementation of the Convention in the Autonomous Province so that the Committee could get a real picture of the situation on the ground and make adequate recommendations.
Serbia highly appreciated the cooperation with the Committee against Torture and supported its activities, Mr. ?ipli? stressed. Serbia recognized the competence of the Committee under article 20 of the Convention (cases involving well-founded indications of systematic practise of torture). In accordance with that procedure, the members of the Committee had visited Serbia in 2002. Serbia had also recognized the competence of the Committee to consider communication of other States as well as its competence to receive and consider communication from or on behalf of individuals subject to its jurisdiction.
In conclusion, Mr. ?ipli? emphasized that Serbia, aware of all of its inherited problems and the existing challenges, remained determined to make further progress in the process of democratization, to fulfil its international obligations and achieve the highest standards, especially in the domain of human rights and protection against torture and to establish full cooperation with the competent international bodies in that regard.
Questions Raised by Committee Experts
FERNANDO MARIÑO, the Committee Expert serving as Rapporteur for the report of Serbia, wondered, regarding the Optional Protocol and the ability of individuals to lodge complaints, whether there were rules in Serbia regarding dispositions of complaints that had emanated from Serbia when it was part of Yugoslavia.
With regard to the situation in Kosovo and Metohija, Mr. Mariño noted that the de facto and de jure responsibility for implementation of the Convention lay with the UN Mission, and the Committee would discuss the issue of how to consider implementation of the Convention in those areas.
Mr. Mariño noted a number of recent positive laws enacted in Serbia related to the Convention, including the ratification of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the creation of the special body to follow-up on actions by the police; and the law on asylum.
However, at the legislative level the situation was very complex, Mr. Mariño noted. The move to align Serbian legislation with European Union law was a positive one. However, according to the report, there was no definition of torture in the legal code, despite the existence of other provisions under which such crimes could be penalized. In that context, did the new Criminal Code include a definition of the crime of torture? Also, was the Convention directly applicable in the courts?
With regard to complaints of torture brought against law enforcement authorities, it was not clear how that procedure worked. Mr. Mariño was also concerned to know if appeals were available in the event that there was a ruling against the complainant.
For prisoners in isolation (solitary confinement), Mr. Mariño wished to know what oversight mechanisms existed. Another concern was pre-trial detention, which reportedly had lasted up to two or three years in some cases. What were the time limits for such detention, and were there special rules, for example, in cases where the detainee was mentally disabled?
On the situation of the mentally disabled, Mr. Mariño was concerned to know what oversight existed for the treatment of such individuals, in particular in institutional settings. In that connection, he would like more information about the work of the Ombudsman's office in this area.
Turning to Serbia's new judicial system, what was the role and independence of the Public Prosecutor's Office, Mr. Mariño asked.
With regard to Kosovo, did the Serbian authorities have any legal responsibility to protect and safeguard the Serbians there, in particular with regard to the provisions of the Convention? A decision by the ICTY rendered in favour of Bosnia and Herzegovina had said that genocide had been committed by Serbian paramilitaries. What steps did the Government intend to take, or had it taken, to bring those who had committed those acts to justice, Mr. Mariño asked.
ABDOULAYE GAYE, the Committee Expert serving as Co-Rapporteur for the report of Serbia, turning to the question of training for law enforcement, prison and border guards, asked where Serbia stood in the implementation of those training programmes and whether any monitoring had been carried out to assess their effectiveness.
On prisons, Mr. Gaye noted that Serbia faced a very difficult situation with regard to prison conditions and the need to renovate and expand its prison facilities, and that those conditions could lead to increased violence in prisons. The slow functioning of the prison system was directly related to the judiciary system. The judicial process was too slow and Serbia needed to ensure that individuals received prompt trials. More information on the incidence of violence in prisons and monitoring of prisons was needed.
Regarding refugees, what protections were accorded to asylum-seekers before their status was determined, Mr. Gaye asked. Statistics in this area would also be welcome.
The Convention prohibited the trade or import of instruments of torture. Mr. Gaye asked therefore if Serbia had any laws prohibiting such trade or import.
Mr. Gaye was also concerned to know about any anti-terrorism legislation that Serbia might have in place and what restrictions that placed on individuals, as well as statistics of any cases brought under that legislation.
Other Committee Experts then asked questions on a number of issues, including oversight of institutions for the mentally and physically handicapped; reparations for victims of war crimes; prosecutions and sanctions for war criminals; due process issues, including rules for judicial appointments; sexual violence in prisons, including whether any incidents had been reported or compensation been made; and the new penal provision for marital rape and whether any prosecutions had been carried out under that article.
On historical events, an Expert asked for a specific update on the situation of the some 1,000 persons that had been detained following the assassination of Prime Minister Zoran Gingic in 2003. Reports had been received that those individuals had been detained without access to lawyers or family members and there had been widespread allegations of ill-treatment. What was the status of those detainees today and had any investigations into those complaints been carried out? Similarly, a specific response was asked on incidents of ethnic hatred and violence that were carried out in Serbia following Kosovo's declaration of independence.
Other concerns raised by Experts included the situation of human rights defenders, who were often targets for violence; a lack of compliance by Serbia with Views issued by the Committee to individual communications of torture or ill-treatment brought before the Committee; and clarification on the point at which a detainee had the right to a lawyer.
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