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State party: Serbia and Montenegro [FNa]
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[FNa] The Federal Republic of Yugoslavia (which changed its name to Serbia
and Montenegro on 4 February 2003) succeeded the Socialist Republic of
Yugoslavia on 27 April 1992.
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The Committee against Torture, established under Article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Meeting on 16 November 2005,
Having concluded its consideration of complaint No. 172/2000, submitted to
the Committee against Torture by Mr. Danilo Dimitrijevic under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Having taken into account all information made available to it by the
complainant,
Adopts the following:
Decision of the Committee against Torture under article 22 of the Convention
1.1 The complainant is Danilo Dimitrijevic a Serbian citizen of Roma origin,
residing in Serbia and Montenegro. He claims to be a victim of violations of
article 2, paragraph 1, read in connection with articles 1 and 16,
paragraph, 1; article 14 alone; and articles 12 and 13 taken alone and/or
read in connection with article 16, paragraph 1, by Serbia and Montenegro,
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. He is represented by the Humanitarian Law Center (HLC),
based in Belgrade, and by the European Roma Rights Center (ERRC), based in
Budapest, both non-governmental organizations.
The Facts as Presented by the Complainant:
2.1 At around noon on 14 November 1997, the complainant was arrested at his
home in Novi Sad, in the Serbian province of Vojvodina, and taken to the
police station in Kraljevica Marka Street. The arresting officer presented
no arrest warrant; nor did he inform the complainant why he was being taken
into custody. However, since a criminal case was already pending against
him, in which he was charged with several counts of larceny, the complainant
assumed that this was the reason for his arrest. He made no attempt to
resist arrest. At the police station, he was locked into one of the offices.
Half an hour later, an unknown man in civilian clothes entered the office,
ordered him to strip to his underwear, handcuffed him to a metal bar
attached to a wall and proceeded to beat him with a police club for
approximately one hour from 12.30 to 13.30. He sustained numerous injuries,
in particular on his thighs and back. The complainant assumes that the man
was a plain-clothes police officer. During the beating an officer, whom the
complainant knew by name, also entered the room and, while he did not take
part in the abuse, he did not stop it.
2.2 The complainant spent the next three days, from 14 to 17 November 1997,
during the day, in the same room where he had been beaten. During that time,
he was denied food and water, and the possibility of using the lavatory.
Although the complainant requested medical attention, and his injuries
visibly required such attention, he was not provided with any. During the
night, he was taken from the police station to the Novi Sad District Prison
in the Klisa neighbourhood. He was not ill-treated there. At no time was he
told why he had been brought to the police station, in contravention of
articles 192 (3), 195 and 196 (3) of the Criminal Procedure Code (CPC),
which deals with police powers of arrest and detention.
2.3 On 17 November 1997, the complainant was brought before the
investigating judge of the Novi Sad District Court, Savo Durdić, for a
hearing on the charges of larceny against him, in accordance with Article
165 of the Serbian Criminal Code (Case file No. Kri. 922/97). Upon noticing
the complainant's injuries, the judge issued a written decision ordering the
police immediately to escort him to a forensic specialist for the purpose of
establishing their nature and severity. [FNb] In particular, the judge
ordered that a forensic medial expert examine the "injuries visible in the
form of bruises on the outside of the suspect's legs.…" The judge did not
inform the public prosecutor of the complainant's injuries, even though,
according to the complainant, he should have done so in accordance with
Article 165 (2) of the CPC. Rather than taking the complainant to a
specialist, as instructed, the police presented him with a release order, on
which the required internal registration number was missing and which
incorrectly stated that his detention started at 11 p.m. on 14 November
1997, although he had been taken into custody eleven hours earlier. [FNc] In
the complainant's view, this was an effort to evade responsibility for
subjecting him to the physical abuse he had been subjected to during that
period.
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[FNb] This order has been provided.
[FNc] This release order has been provided.
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2.4 Upon his release, and being ignorant of his rights under the law and
frightened by his experiences in the preceding three days, the complainant
did not seek immediate medical assistance. He did, however, go to a
privately owned photographic studio and had photographs taken of his
injuries. He has provided these photos, dated 19 November 1997. On 24
November 1997, and having consulted a lawyer, the complainant attended the
Clinical Centre of the Novi Sad Forensic Medicine Institute for an
examination. However, he never received the report and was told that it had
been sent to the investigating judge. The case file (No. Kri. 922/97) was
examined on several occasions by the complainant's counsel but did not
contain the report. In response to queries from counsel, the Medical
Institute stated in a letter, dated 30 September 1999, that the report had
been forwarded to the judge of the Novi Sad District Court. [FNd] To date
this report has not been found in the case file.
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[FNd] This letter has been provided.
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2.5 Also on 24 November 1997, the complainant filed a criminal complaint
with the Municipal Public Prosecutor's Office in Novi Sad. He gave a
detailed account of the incident and alleged that the following crimes had
been committed "extraction of statements, civil injury and slight bodily
harm." He also submitted a medial certificate allegedly relating to injuries
caused to the complainant by police violence in 1994 (unrelated to the
incident in question), a medical report dated 18 November 1997, the police
release order, the Novi Sad District Court Order, and photographs of his
injuries. Despite many inquiries as to the status of his complaint,
including a letter from the complainant's lawyer, dated 3 March 1999, the
Novi Sad Municipal Public Prosecutor's Office, has failed to date to respond
in any way to the complaint. Criminal proceedings against the complainant
with respect to the charges against him for larceny (Case file No. Kri.
922/97) also remain pending. The complainant is currently serving a
four-year prison term for larceny in the Sremska Mitrovica Penitentiary,
unrelated to case file, No. Kri 922/97.
2.6 According to the complainant, under article 153 (1) of the CPC, if the
public prosecutor finds on the basis of the evidence, that there is
reasonable suspicion that a certain person has committed a criminal offence,
he should request the investigating judge to institute a formal judicial
investigation further to articles 157 and 158 of the CPC. If he decides that
there is no basis for the institution of a formal judicial investigation, he
should inform the complainant of this decision, who can then exercise his
prerogative to take over the prosecution of the case on his own behalf –
i.e. in his capacity of a "private prosecutor". As the Public Prosecutor did
not formally dismiss his complaint, the complainant concludes that he was
denied the right personally to take over prosecution of the case. As the CPC
sets no time limit in which the public prosecutor must decide whether or not
to request a formal judicial investigation into the incident, this provision
is open to abuse.
The Complaint:
3.1 The complainant claims that he has exhausted all available criminal
domestic remedies by having filed a complaint with the Public Prosecutor's
Office. In the complainant's view, civil/administrative remedies would not
provide sufficient redress in his case. [FNe]
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[FNe] He refers to international jurisprudence to support this claim.
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3.2 The complainant submits that the allegations of violations of the
Convention should be interpreted against a backdrop of systematic police
brutality to which the Roma and others in the State party are subjected, as
well as the generally poor human rights situation in the State party. [FNf]
He claims a violation of article 2, paragraph 1, read in connection with
articles 1, and 16, paragraph 1, for having been subjected to police
brutality inflicting on him great physical and mental suffering amounting to
torture, cruel, inhuman and/or degrading treatment or punishment, for the
purposes of obtaining a confession, or otherwise intimidating or punishing
him. [FNg]
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[FNf] In this context, the complainant provides reports from various
national and international non- governmental organisations and the
Concluding Observations of CAT of 1998, A/54/44,paras.35-52.
[FNg] To support his argument that the treatment he received was torture,
cruel, inhuman and/or degrading treatment or punishment, he refers to the
United Nations Code of Conduct for Law Enforcement Officials, the United
Nations Body of Principles for the protection of All Persons under Any Form
of Detention or Imprisonment, the United Nations Basic Principles on the Use
of Force and Firearms by Law Enforcement Officials, the Council of Europe's
Declaration on the Police and the European Court of Human Rights.
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3.3 He claims a violation of article 12 alone and/or read in connection with
16, paragraph 1, as the State party's authorities failed to conduct an
official investigation into the incident, which gave rise to this complaint
and failed to respond to queries on the status of the complaint. Since the
public prosecutor's office failed formally to dismiss his criminal
complaint, he cannot personally take over the prosecution of the case. The
complainant alleges that public prosecutors in Serbia and Montenegro seldom
institute criminal proceedings against police officers accused of misconduct
and delay the dismissal of complaints, sometimes by years, thereby denying
the injured party the right to prosecute his/her own case.
3.4 The complainant claims a violation of articles 13 alone or read in
connection with article 16 of the Convention, as despite exhaustion of
domestic remedies all criminal domestic remedies, he has received no redress
for the violation of his rights. The State party's authorities have not even
identified the police officer concerned. [FNh]
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[FNh] The complainant refers to Communication No. 59/1996, Encarnacio Blanco
Abad v. Spain, Views adopted on 14 May 1998.
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3.5 Article 14 is also said to be violated, since the complainant was denied
a criminal remedy and has thus been barred from obtaining fair and adequate
compensation in a civil lawsuit. The complainant explains that under
domestic law, two different procedures exist, through which compensation for
criminal offences may be pursued: by criminal proceedings under article 103
of the CPC following criminal proceedings, or/and by civil action for
damages under articles 154 and 200 of the Law on Obligations. The first
avenue was not an option, as no criminal proceedings were instituted and the
second was not availed of by the complainant, as it is the practice of the
State party's courts to suspend civil proceedings for damages arising from
criminal offences until prior completion of the respective criminal
proceedings. Even if the complainant had attempted to avail of this
recourse, he would have been prevented from pursuing it, as under articles
186 and 106 of the Civil Procedure Code he would have to identify the name
of the respondent. Since the complainant to date remains unaware of the name
of the officer against whom he is claiming violations of his rights the
institution of a civil action would have been impossible.
The State Party's Submission on Admissibility and Merits and the
Complainant's Comments Thereon:
4. On 14 January 2003, the State party provided a submission, merely stating
that it "accepts" the complaint. Following a request for clarification from
the Secretariat, the State party made another submission, on 20 October
2003, in which it states that the "acceptance" of the complaint implied that
the State party recognised the competence of the Committee to consider the
complaint, "but not the responsibility of the State concerning the complaint
in question". In addition, it submitted that the Ministry on Human and
Minority Rights of Serbia and Montenegro is still in the process of
collecting data from the relevant authorities of the Republic of Serbia for
the purposes of giving a response on the merits. The State party has
provided no further information since that date.
Complainant’s comments on the State party’s submission on the admissibility
and the
Merits
5. On 25 November 2003, the complainant commented on the State party's
submissions. He submits that by failing seriously to contest the facts
and/or his claims, the State party has in effect expressed its tacit
acceptance of both. [FNi]
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[FNi] In this regard, he refers to decisions of the Human Rights Committee
in particular Communication No. 88/1981, Gustavo Raul Larrosa Bequio v.
Uruguay, Views adopted on 29 March 1983, para. 10.1.
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Issues and proceedings before the Committee as to the admissibility
6.1 The Committee notes the State party's failure to provide information
with regard to the admissibility or merits of the complaint. In the
circumstances, the Committee, acting under rule 109, paragraph 7 of its
rules of procedure, is obliged to consider the admissibility and the merits
of the complaint in the light of the available information, due weight being
given to the complainant's allegations to the extent that they have been
sufficiently substantiated.
6.2 Before considering any claim contained in a complaint, the Committee
must decide whether or not it is admissible under article 22 of the
Convention. The Committee has ascertained, as it is required to do under
article 22, paragraph 5 (a), of the Convention that the same matter has not
been, and is not being examined under another procedure of international
investigation or settlement. With respect to the exhaustion of domestic
remedies, the Committee has taken note of the information provided by the
complainant about the criminal complaint, which he filed with the public
prosecutor. It considers that the insurmountable procedural impediments
faced by the complainant due to the inaction of the competent authorities
made recourse to a remedy that may bring effective relief to the complainant
highly unlikely. In the absence of pertinent information from the State
party, the Committee concludes that in any event, domestic proceedings, if
any, have been unreasonably prolonged since the end of November 1997. With
reference to article 22, paragraph 4, of the Convention and rule 107 of the
Committee's rules of procedure the Committee finds no other obstacle to the
admissibility of the complaint. Accordingly, it declares the complaint
admissible and proceeds to its examination on the merits.
Consideration of the Merits
7.1 The complainant alleges violations by the State party of article 2,
paragraph 1, in connection with article 1, and of article 16, paragraph 1,
of the Convention. The Committee notes in this respect the complainant's
description of the treatment he was subjected to while in detention, which
can be characterized as severe pain or suffering intentionally inflicted by
public officials for such purposes as obtaining from him information or a
confession or punishing him for an act he has committed, or intimidating or
coercing him for any reason based on discrimination of any kind in the
context of the investigation of a crime. The Committee also notes the
observations of the investigating judge with respect to his injuries, and
photographs of his injuries provided by the complainant. It observes that
the State party has not contested the facts as presented by the complainant,
which took place more than seven years ago, and observes that the medical
report prepared after the examination of the complainant and pursuant to an
order of the Novi Sad District Court Judge, has not been integrated into the
complaint file and could not be consulted by the complainant or his counsel.
In the circumstances, the Committee concludes that due weight must be given
to the complainant's allegations and that the facts, as submitted,
constitute torture within the meaning of article 1 of the Convention.
7.2 In light of the above finding of a violation of article 1 of the
Convention, the Committee need not consider whether there was a violation of
article 16, paragraph 1, as the treatment suffered by the complainant under
article 1 exceeds the treatment encompassed in article 16 of the Convention.
7.3 Concerning the alleged violation of articles 12 and 13 of the
Convention, the Committee notes that the public prosecutor never informed
the complainant whether an investigation was being or had been conducted
after the criminal complaint was filed on 24 November 1997. It also notes
that the failure to inform the complainant of the results of such
investigation, if any, effectively prevented him from pursuing a "private
prosecution" of his case. In these circumstances, the Committee considers
that the State party has failed to comply with its obligation, under article
12 of the Convention, to carry out a prompt and impartial investigation
whenever there is reasonable ground to believe that an act of torture has
been committed. The State party also failed to comply with its obligation,
under article 13, to ensure the complainant's right to complain and to have
his case promptly and impartially examined by the competent authorities.
7.4 As for the alleged violation of article 14 of the Convention, the
Committee notes the complainant's allegations that the absence of criminal
proceedings deprived him of the possibility of filing a civil suit for
compensation. In view of the fact that the State party has not contested
this allegation and given the passage of time since the complainant
initiated legal proceedings at the domestic level, the Committee concludes
that the State party has also violated its obligations under article 14 of
the Convention in the present case.
8. The Committee, acting under article 22, paragraph 7, of the Convention,
is of the view that the facts before it disclose a violation of articles 2,
paragraph 1, in connection with article 1; 12;13; and 14 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
9. The Committee urges the State party to prosecute those responsible for
the violations found and to provide compensation to the complainant, in
accordance with rule 112, paragraph 5, of its rules of procedure, to inform
it, within 90 days from the date of the transmittal of this decision, of the
steps taken in response to the views expressed above.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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