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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 24 November 2005,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention:
1.1 The complainants are Mr. Slobodan Nikolić and his wife, Mrs. Ljiljana
Nikolić, nationals of Serbia and Montenegro, born on 20 December 1947 and on
5 August 1951. They claim that the State party's alleged failure to proceed
to a prompt and impartial investigation of the circumstances of their son's
death constitutes a violation by Serbia and Montenegro of articles 12, 13
and 14 of the Convention. The complainants are represented by counsel.
The Facts as Submitted by the Complainants:
2.1 On 19 April 1994, the complainants' son, N. N., born on 19 April 1972,
died in Belgrade. The postmortem examination of his corpse was carried out
on 25 April 1994 by a medical team of the Institute for Forensic Medicine of
the Faculty of Medicine in Belgrade. The autopsy report states that the
death was caused by damage to vital brain centers caused by the fracture of
cranial bones and hemorrhage from the rupture of the aorta and the torn
blood vessels surrounding the multiple bone fractures. These injuries "were
inflicted with a brandished, blunt and heavy object".
2.2 According to the police report, the complainants' son was found dead on
the sidewalk in front of building no. 2 at Pariske Komune Street in Novi
Beograd on 19 April 1994. He had fallen out of the window of apartment no.
82 on the 10th floor of the same building at 9.40 a.m. In an attempt to
escape his arrest by the police, he had connected several cables and had
tied them to a radiator. When trying to descend to the subjacent window on
the ninth floor, the cables broke apart and N. N. fell on the concrete
pavement.
2.3 According to police inspector J. J., this incident was preceded by the
following events: On 19 April 1994, he and two other inspectors, Z. P. and
M. L., went to apartment no. 82 at 2, Pariske Komune Street to arrest the
complainant on the basis of a warrant, as he was suspected of having
committed several property-related offences. Through a slit above the
threshold of the entrance door, they noticed a shadow in the corridor.
Assuming that N. N. was in the apartment, they unsuccessfully called on him
to open the door. After having ordered an intervention team to break the
entrance door, inspector J. J. warned N. N. that the police would forcibly
enter the flat, if he continued to refuse opening the door. J. J. then went
to the eleventh floor and entered the flat located directly above apartment
no. 82. From a window, he saw N. N. looking out of the window below. After
having returned to apartment no. 82, J. J. again called on N. N. to
surrender, promising that he would not be subjected to physical violence.
The intervention team then broke the door of the apartment, where they only
found M. K., the girlfriend of the deceased, who was crying and stated that
N. N. had fallen out of the window. Looking out of the window, J. J. saw the
body of a man lying on the sidewalk.
2.4 The deceased was identified as N. N., based on documents found in one of
his pockets, as well as by M. K., and his death was established by a
physician of the Secretariat for Internal Affairs. At around 10:30 a.m., the
investigating judge of the Belgrade District Court, D. B., arrived together
with the deputy public prosecutor of the District of Belgrade (hereafter
"deputy public prosecutor"), V. M., inspected "the scene of the crime",
[FN1] interviewed M. K. and ordered that the body of the deceased be sent to
the Institute of Forensic Medicine for an autopsy.
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[FN1] The term "scene of the crime" is used in the police report dated 19
April 1994.
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2.5 The report of the investigating judge states that several police
officers informed him that N. N. had "categorically declined" to unlock the
door after having argued with the police for some time. When they entered
the flat, the deceased "had just jumped out of the window." M. K. confirmed
that N. N. had refused to open the door. When she tried to snatch the keys
of the apartment from his pocket, he told her that he would rather escape
through the window than to open the door. Although she did not see what
happened in the room from where N. N. had tried to escape, M. K. concluded
from his absence that he had jumped out of the window, when the policemen
entered the flat. She stated that there was no physical contact between N.
N. and the members of the police intervention team. Apart from the cables
tied to the radiator, the report mentions that a white three-socket
extension cable was hanging on a tree above the sidewalk where the corpse of
the deceased was lying. One single- and one double-wire of around 2.5 meters
length each were tied to the socket box - probably the missing ends that had
been torn from the cables tied to the radiator. Lastly, the report states
that the investigating judge ordered the police to interview all witnesses
of the incident.
2.6 On 22 April 1994, the deputy public prosecutor advised the complainants
that he considered that their son's death had been caused by an accident and
that, accordingly, no criminal investigation would be initiated.
2.7 On 18 July 1994, the complainants brought charges of murder against
unknown perpetrators, asking for a criminal investigation to be initiated by
the Belgrade public prosecutor's office. They claimed that the police
clubbed their son with a blunt metal object, thereby causing his death, and
subsequently threw his corpse out of the window to conceal the act. On 12
August and on 5 December 1994, the deputy public prosecutor informed the
complainants that no sufficient grounds existed for instituting criminal
proceedings, and advised them to file a criminal report with the public
prosecutor's office, submitting the evidence on which their suspicion was
based.
2.8 In the meantime, the investigating judge had requested a commission of
medical experts of the Belgrade Institute of Forensic Medicine, composed of
the same doctors who had conducted the autopsy, to prepare an expert opinion
on the death of N. N. In their report dated 22 November 1994, the experts
concluded on the basis of the autopsy report, as well as other documents,
that the location, distribution and types of injuries observed on N. N.
indicated that they were the result of the fall of his body from a
considerable height on a wide, flat concrete surface. The "signs of the
injury reactions (inhalation of blood and [...] bruises around the wounds
and torn tissues)" indicated that N. N. was alive at the moment when he
incurred the injuries.
2.9 On 13 and 24 January 1995, the complainants challenged inconsistencies
in the medical findings of the expert commission, as well as in the autopsy
report, and requested the Belgrade District Court to order another forensic
expertise from a different institution at their expense.
2.10 On 27 June 1995, the complainants sought the intervention of the Public
Prosecutor of the Republic, who, by reference to the forensic expertise of
the expert commission, affirmed the position of the deputy public
prosecutor. Similarly, the Deputy Federal Public Prosecutor, by letter of 8
January 1996, advised the complainants that there were no grounds for him to
intervene.
2.11 At the complainants' request, Dr. Z. S., a pathologist from the
Institute of Forensic Medicine of the Belgrade Military Hospital, evaluated
the autopsy report of 19 April 1994 and the expert commission's forensic
findings of 22 November 1994. In a letter of 21 March 1996, he informed the
complainants that, although the described injuries could be the result of
the fall of the body of the deceased from a considerable height, it could
not be excluded that some of the injuries had been inflicted prior to the
fall. He criticized (a) that the autopsy had been carried out six days after
the death of N. N.; (b) that the reports did not describe any decomposition
changes of the body; (c) that the autopsy report stated that the brain
membranes and brain tissue of the deceased were intact, while at the same
time noting the presence of brain tissue on the front side of his
sweatshirt; (d) the contradiction between the size of the rupture of the
aorta (3 cm x 1 cm) and the relatively small quantity of blood found in the
chest cavity (800 ccm); (e) the expert commission's finding that the first
contact of the deceased's body with the ground was with his feet, resulting
in transverse fractures of the lower leg bones instead of diagonal
fractures, which would usually result from a similar fall; (f) the unclear
description by the expert commission of the mechanism of injuries, i.e.
"that the first contact of the body was with the feet which caused feet and
lower leg fractures, which was followed by bending and twisting (extension
and rotation) of the thorax", given that extension means stretching of the
body rather than bending; and (g) that the autopsy report diagnosed
decollement, i.e. the separation of the skin of subcutaneous tissue from the
muscle membrane, on the external side of the left thigh, although such an
injury was usually "inflicted by a strong blow with a brandished blunt
weapon", i.e. "the blow of the body on the ground", which was unlikely to
occur after a fall on the feet and a fracture of both lower leg bones.
2.12 By letter of 28 August 1996, the complainant's lawyer requested the
Belgrade Public Prosecutor's Office to order another forensic expertise, to
be conducted by the Institute of Forensic Medicine of either the Belgrade
Military Hospital or the Faculty of Medicine of Novi Sad, and, for that
purpose, to exhume the body of N. N. at the expense of the complainants to
address the doubts expressed by Dr. Z. S. In addition, he requested
clarification of the following questions: (a) The time and place of death;
(b) whether the contusions of the brain and the wound on the lower forehead
of the deceased could have been the consequence of injuries inflicted by
blows before the fall; (c) whether the small quantity of blood found in the
chest cavity indicated that N. N. was already dead at the time of the fall,
given that a living person discharges about 70 milliliters of blood from the
left auricle into the aorta with every heartbeat (totaling about 4.9 liters
per minute); (d) how it could be explained that the autopsy report did not
establish any circular fractures of the bones of the base of the cranium
after a fall from a height of 20 to 30 meters; and (e) which parts of the
body would usually be damaged after a fall from this height, based on the
weight of the body, its free movement during, as well as the velocity of the
fall.
2.13 On 2 October 1996, the complainants' lawyer requested the Belgrade
Public Prosecutor's Office that several potential witnesses be interviewed
either by the Serbian Ministry of the Interior or by the Secretariat for
Internal Affairs of Novi Sad: (a) The complainants, to find out whether M.
K., when delivering the tragic news of their son's death, said: "Aunt Ljilja,
they have killed Nikolica - they have killed Dumpling!"; (b) R. J. and Z.
T., colleagues of the mother, who were present when M. K. told the mother
that her son had died; (c) M. K., to establish whether she saw N. N. tying
the cables to the radiator; whether he had been sleeping and, if so, whether
he was already dressed when the police arrived at the door; how it was
possible that she did not see N. N. jump out of the window, if she was in
the same room; or, alternatively, how she could claim that there was no
contact between N. N. and the policemen, if she was in another room; (d)
neighbours in building no. 2, Pariske Komune Street, in particular D. N.,
the tenant of the flat above apartment no. 82, and S. L., who removed the
biological traces in front of the building, to ask him what exactly he
removed and whether he did this before or after the end of the in situ
investigation; (e) several friends of the deceased, to find out whether N.
N. had a fight with M. K. prior to 19 April 1994 and whether M. K. had
threatened that she would "fix him"; (f) officials of the Belgrade Central
Prison, to elucidate whether N. N. had escaped from prison, but was
subsequently released on probation by decision of 23 July 1993 of the deputy
public prosecutor; and (g) A. N., the sister of N. N., to ask her whether an
intervention team of the Belgrade Secretariat for Internal Affairs came to
her flat in January 1994, threatening that they would throw N. N. from the
sixth floor, should they capture him.
2.14 In a report dated 27 November 1996, the same medical experts who
prepared the autopsy report and the first forensic expertise dated 22
November 1994, while dismissing the questions asked by the complainants'
lawyer (para. 2.12) as too vague, addressed the objections raised by Dr. Z.
S. (para. 2.11), observing (a) that it was not customary to state the time
and place of death in an autopsy report, as this information was already
contained in the report of the doctor establishing the death and in the
police report; (b) that the reason for the late autopsy was that the blood
of the deceased (presumably a drug addict) was tested for HIV and that the
results were received late on Friday, 22 April 1994, so that the autopsy
could not be carried out before Monday, 25 April; (c) that the corpse had
been kept in a refrigerator and only started to decompose during the autopsy
and its subsequent cleaning and transport to the hospital chapel; (d) that
the purpose of the autopsy report was to record the injuries and changes of
the body of the deceased, rather than to explain how the brain tissue came
on his sweatshirt; it could have passed through his nose or mouth, as the
front skull cavity, which forms the roof of the nose cavity and of the
pharynx, displayed numerous fractures of the skull base bones, which were
always accompanied by ruptures of the attached hard brain tissue; (e) that
the little amount of blood found in the chest cavity of the deceased was not
due to death prior to the fall but to the considerable blood loss resulting
from his injuries; (f) that Dr. Z. S. himself did not rule out that a fall
on the feet could cause transversal fractures of the leg bones; (g) that the
bending of the body following the contact of the feet with the ground did
not exclude that numerous injuries, such as the aorta rupture, led to
hyperextension of the body; (h) that the mechanism of the fall first on the
feet and, in a second phase, on the left side of the body and the head
explained the decollement in the region of the left thigh, the fissure on
the lower left forehead, the fracture of the skull bones, and the brain
contusions; and (i) that the fall on the feet reduced the body's impact on
the ground, which explained why the autopsy report recorded neither
protrusion of the thigh bone heads through pelvic bones, nor circular
fractures of the skull base.
2.15 On 26 February and 18 June 1997, the complainants' lawyer requested the
district public prosecutor to resubmit his questions (para. 2.12) to the
commission of forensic experts to seek clarification of the contradictions
between the experts' findings and the findings of Dr. Z. S.
2.16 On 21 August 1997, Dr. Z. S. commented on the experts' second forensic
report (para. 2.14), criticizing (a) that the experts had not provided a
satisfactory explanation as to why the result of the HIV test had not been
included in the autopsy report; (b) the contradiction between the experts'
finding that the brain tissue on the deceased's clothes came through his
nose and mouth and the statement in the autopsy report that the mucous
membrane of the lips and mouth cavity were "examined in detail" but that "no
signs of injuries [were] observed", and that no "foreign content", i.e.
traces of brain tissue, was found in the nose and mouth; (c) the experts'
failure to identify the part of the brain from which brain tissue was
missing; (d) their failure to explain why such a small amount of blood was
found in the thoracic cavities, given that the complainants' son probably
continued to breath for some time following the infliction of the injuries,
that the total blood flow of an adult is 5000 ml per minute, and that blood
pressure is the highest near the heart where the 3 x 1 cm aorta fissure was
located; (e) the experts' superficial and contradictory description of the
bone fractures; and (f) their conclusion that all recorded injuries resulted
from the body's fall on the concrete ground, ignoring the possibility that
some injuries could have been inflicted with a blunt mechanical weapon
before the fall.
2.17 In a letter of 29 August 1997 to the Department for the Control of
Legality of the Belgrade City Secretariat for Internal Affairs, the
complainants drew attention to the fact that inspector J. J. reportedly was
crying when the investigating magistrate arrived at Pariske Komune Street
no. 2 and that he went on vacation the following day. They referred to the
case of N. L., who had allegedly been forced to wear a bullet proof vest, on
which he received blows with a baseball bat during his interrogation by,
inter alia, inspector J. J., leaving few traces and causing a slow and
painful death after two weeks. [FN2]
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[FN2] See a newspaper article submitted by the authors in VREME Magazine, 9
March 1996, "The deadly bat".
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2.18 On 30 August 1997, the complainants brought charges of murder against
police inspectors J. J., Z. P. and M. L., alleging that they had maltreated
their son with hard round objects (such as a baseball bat), inflicting a
number of grave injuries to his body, thereby voluntarily causing his death.
Assuming that the transversal fractures of the lower legs had been inflicted
prior to the fall, it could be ruled out that the injured had tried to
escape through the window. The complainants also claimed that the police had
breached the Code of Criminal Procedure (a) by forcibly entering the flat
without the presence of a neutral witness; (b) by calling the investigating
magistrate 30 minutes after the incident, rather than immediately, allegedly
to remove incriminating evidence and to put M. K. on tranquilizers; (c) by
interviewing no other witnesses than the police inspectors; (d) by having
the deceased's body identified by M. K. rather than by his family; (e) by
failing to seal the door or to return the keys of the apartment to the
complainants; and (f) by sending M. K. to deliver the tragic news to the
complainants. The complainants also informed the district prosecutor that
several witnesses could testify that the police had previously shot at and
threatened their son. They challenged the deputy public prosecutor for bias,
since he had already indicated that he would reject any criminal charges.
2.19 After the District Public Prosecutor had decided, on 24 September 1997,
not to initiate criminal proceedings against inspectors J. J., Z. P. and M.
L., the complainants, on 4 October 1997, filed a request for an
investigation of their son's alleged murder with the Belgrade District
Court. [FN3] In particular, they requested the investigating judge to
interrogate J. J., Z. P. and M. L. in the capacity of accused, to detain
them on remand in order to prevent any interference with witnesses, to
summon and examine certain witnesses, including the complainants themselves,
and to seek clarification of the remaining forensic inconsistencies. By
letter of 28 January to the President of the District Court, the
complainants criticized that only one of their requests, i.e. the
interrogation of the police inspectors, had been complied with. They also
challenged that the authorities persistently refused to state the time of
their son's death, that no explanation had been given for the numerous
bruises on the deceased's body, that the Institute of Forensic Medicine had
refused to hand out any photographs of the deceased and that its forensic
findings were intended to conceal their son's abuse by the police, that M.
K. had given three different versions of the incident to the investigating
judge, the complainants, and her friends, respectively, and that not a
single pedestrian on the busy streets facing apartment no. 82 had witnessed
their son jumping out of the window.
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[FN3] In accordance with Section 60 of the Code of Criminal Procedure of the
State party, the injured party may apply for criminal proceedings to be
instituted, if the public prosecutor finds that there are no sufficient
grounds to initiate criminal proceedings ex officio. If the investigating
judge rejects the request for the initiation of criminal proceedings, a
special chamber of the competent court decides whether such proceedings
shall be initiated. See ibid., Section 159.
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2.20 By decision of 17 February 1998, [FN4] the Belgrade District Court
found that the absence of any physical contact between the police inspectors
and the deceased had been established on the basis of the concurring
statements of J. J., Z. P. and M. L., the report of the investigating judge,
as well as the police report of 19 April 1994, and the findings and opinions
of the experts from the Institute of Forensic Medicine of the Belgrade
Faculty of Medicine dated 22 November 1994 and 27 November 1996. It
concluded that there were no grounds for conducting an investigation against
the charged police inspectors for the criminal offence of murder.
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[FN4] See Belgrade District Court, Decision of 17 February 1998, Ki. No.
898/97 (Kv. No. 99/98).
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2.21 On 13 March 1998, the complainants appealed to the Supreme Court of
Serbia and Montenegro and, on 23 March, they supplemented their reasons of
appeal. They challenged that the District Court had failed to address their
arguments or the objections raised by Prof. Dr. Z. S., an internationally
renowned expert selected by the United Nations for autopsies conducted on
the territory of the former Yugoslavia, while merely relying on the
contradictory findings of the commission of forensic experts and on the
un-scrutinized statements of M. K., as well as of the charged inspectors
themselves, against one of whom criminal proceedings had previously been
instituted for similar conduct. No fingerprints of the deceased had been
found in apartment no. 82; the cables attached to the radiator had not even
been examined for his biological traces.
2.22 By decision of 21 May 1998, [FN5] the Supreme Court of Serbia in
Belgrade rejected the complainants' appeal as unfounded. It endorsed the
findings of the Belgrade District Court, considering that the commission of
experts, in its supplementary findings and opinions of 27 November 1996,
responded to all objections raised by the complainants' lawyer and by Dr. Z.
S. in a precise manner.
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[FN5] See Supreme Court of Serbia in Belgrade, Decision of 21 May 1998, Kž.
II 224/98.
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The Complaint:
3.1 The complainants claim that the State party failed to proceed to a
prompt an impartial investigation of their son's death and alleged prior
torture, in violation of article 12, although the forensic evidence
submitted by the complainants strongly suggested that their son was the
victim of an act of torture within the meaning of article 1 of the
Convention.
3.2 They submit that other inconsistencies further supported their
suspicion, inter alia: (a) the fact that N. N. was explicitly told that he
would not be subjected to physical force, if he opened the door of apartment
no. 82; (b) that the search warrant issued on 19 April 1994 only authorized
the police to enter the apartment to "search for goods related to criminal
offences", rather than to arrest N. N., and that it stated 11 a.m. as the
time of the entry, although the police report stated 9.40 a.m. as the time
of death; and (c) that it was unreasonable to expect that anyone would risk
his life by trying to climb from the tenth to the ninth floor of a
high-rise, only secured by some electric cables, break the window and enter
the apartment on the ninth floor, only in order to find himself in the same
situation as before, assuming that the police had plenty of time to reach
the (presumably locked) door of the apartment on the ninth floor before this
could be opened from inside.
3.3 The complainants claim that the dismissal of all their motions to
initiate criminal proceedings, and of their subsequent appeals, raises
doubts about the impartiality of the Serbian authorities' investigation into
N. N.'s death and alleged prior torture, thus disclosing a violation of
article 13 of the Convention. Thus, the investigating judge had never
initiated an investigation or even heard the complainants; none of the
witnesses named by the complainants' lawyer was ever heard or
cross-examined.
3.4 The complainants submit an amicus curiae by Human Rights Watch/Helsinki
dated 24 November 1997, which states that the "[i]nconsistencies in the
various police and medical reports could only be adequately addressed in a
court of law."
3.5 For the complainants, the State party's failure to investigate the
circumstances of their son's death de facto prevents them from exercising
their right to a fair and adequate compensation, guaranteed in article 14 of
the Convention, as the legal successors of their son and as indirect victims
of the acts of torture that he had presumably been subjected to. They refer
to a similar case, in which the European Court of Human Rights found that
the disappearance of the applicant's son amounted to inhuman and degrading
treatment within the meaning of article 3 of the European Convention, and
awarded 15.000 £ compensation for the disappeared son's pain and suffering
and an additional 20.000 £ for the applicants' own anguish and distress.
[FN6]
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[FN6] See European Court of Human Rights, Kurt v. Turkey, Judgment of 25 May
1998.
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3.6 The complainants submit that the same matter has not been and is not
being examined under another procedure of international investigation or
settlement, and that they have exhausted all available domestic remedies.
Committee's Request for State Party's Observations:
4.1 By notes verbales of 2 November 2000, 19 April 2002 and 12 December
2002, the Committee requested the State party to submit its observations on
the admissibility and merits of the communication. On 14 January 2003, the
State party informed the Committee that it "accepts the individual complaint
No. 174/2000".
4.2 After consultations with the Secretariat, the State party, on 20 October
2003, explained that "the acceptance", in its note verbale of 14 January
2003, "implies that Serbia and Montenegro recognizes the competence of the
Committee against Torture to consider the aforementioned [complaint], but
not the responsibility of the State concerning the individual [complaint] in
question."
4.3 At the same time, the State party advised the Committee that it was
still in the process of collecting data from the relevant authorities in
order to prepare its observations on the merits of the complaint. No such
information has been received to date.
Issues and Proceedings Before the Committee:
5. Before considering any claim contained in a communication, the Committee
against Torture 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, paragraphs 5 (a) and (b), of the Convention, that the same
matter has not been, and is not being, examined under another procedure of
international investigation or settlement, and that the complainants have
exhausted all available domestic remedies. It therefore considers that the
complainant's claims under articles 12, 13 and 14 of the Convention are
admissible and proceeds to its examination on the merits.
6.1 The Committee has considered the communication in the light of all
information made available to it, in accordance with article 22, paragraph
4, of the Convention. It regrets that the State party has not submitted any
observations on the substance of the complaint and observes that, in the
absence of any such observations, due weight must be given to the
complainants' allegations, to the extent that they are substantiated.
6.2 The Committee must decide, pursuant to article 12 of the Convention,
whether there are reasonable grounds to believe that an act of torture has
been committed against the complainants' son prior to his death and, if so,
whether the State party's authorities complied with their obligation to
proceed to a prompt and impartial investigation.
6.3 The Committee considers that the following elements cast doubts on the
sequence of events leading to the death of the complainants' son, as
established by the State party's authorities:
(a) The fact that the autopsy report states that the injuries "were
inflicted with a brandished, blunt and heavy object," thus suggesting that
N. N. had been tortured prior to his fall from the window of apartment no.
82.
(b) The statement by inspector J. J. that he promised N. N. that he would
not be subjected to physical violence, if he opened the door of apartment
no. 82;
(c) The fact that the search warrant issued on 19 April 1994 did not
explicitly authorize the police to arrest N. N., and that it states 11 a.m.
as the time of entry into the apartment, although the death of N. N.
occurred at 9.40 a.m., according to the police report;
(d) The contradiction between the police report and the report of the
investigating judge (both dated 19 April 1994) as to the voluntary nature of
the death of N. N., describing it as an accident resulting from the
deceased's attempt to escape his arrest (police report) or as the result of
what appears to have been a suicide (investigation report: "Nikolić had just
jumped out of the window");
(e) The absence of witnesses who would have confirmed that N. N. jumped out
of the window of apartment no. 82;
(f) The alleged inconsistencies in the testimony of M. K. (paras. 2.5 and
2.19);
(g) The fact that the investigating judged arrived at Pariske Komune Street
no. 2 only at 10.30 a.m., apparently because he had not been informed of the
death until 30 minutes after the incident, and that, despite his order to
interview all witnesses, allegedly only the concerned police inspectors were
interviewed;
(h) The alleged inconsistencies in the autopsy report and in the forensic
findings of the expert commission and, in particular, the objections raised
by Dr. Z. S., particularly his statement that it could not be excluded that
some of the injuries had been inflicted prior to the fall, which in turn
might have been inflicted by treatment in violation of the Convention;
(i) The alleged prior involvement of inspector J. J. in an act of torture;
and
(j) The uncertainty about prior threats by the police and attempts to arrest
N. N., allegedly involving the use of firearms by the police.
6.4 On the basis of these elements, the Committee considers that there were
reasonable grounds for the State party to investigate the complainants'
allegation that their son was tortured prior to his death.
6.5 The question therefore arises whether the investigative measures taken
by the State party's authorities, in particular by the Belgrade deputy
public prosecutor, were commensurate to the requirement of article 12 of the
Convention to proceed to a prompt and impartial investigation of the events
preceding the death of N. N. In this regard, the Committee notes the
complainants' uncontested claim that the deputy public prosecutor advised
them already on 22 April 1994, i.e. three days before the autopsy, that he
would not initiate criminal proceedings ex officio, as he considered their
son's death an accident, and that he did not examine any of the witnesses
named by their lawyer. It also notes that the investigating judge entrusted
the same forensic experts, who had conducted the autopsy, with the
preparation of both expert opinions, with a view to addressing the alleged
inconsistencies in their own autopsy report, despite several requests by the
complainants to order a forensic expertise from another institution. The
Committee concludes that the investigation of the circumstances of the death
of the complainants' son was not impartial and therefore in violation of
article 12 of the Convention.
6.6 With regard to the alleged violation of article 13, the Committee
observes that, although the complainants were entitled to complain to the
courts after the deputy public prosecutor had decided not to institute
criminal proceedings against J. J., Z. P. and M. L., both the Belgrade
District Court and the Supreme Court based their finding that there had been
no physical contact between the police and N. N. exclusively on evidence
that had been challenged by the complainants and which, according to them,
was flawed by numerous inconsistencies. [FN7] Both courts dismissed the
complainants' appeals without addressing their arguments. The Committee
therefore considers that the State party's courts failed to examine the case
impartially, thereby violating article 13 of the Convention.
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[FN7] See paras. 2.20-2.22 above.
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7. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the State party's failure to proceed
to an impartial investigation of the death of the complainants' son
constitutes a violation of articles 12 and 13 of the Convention.
8. Concerning the alleged violation of article 14 of the Convention, the
Committee postpones its consideration until receipt of the information
requested from the State party in paragraph 9 below.
9. Pursuant to rule 112, paragraph 5, of its rules of procedure, the
Committee wishes to receive from the State party, within 90 days,
information on the measures taken to give effect to the Committee's Views,
in particular on the initiation and the results of an impartial
investigation of the circumstances of the death of the complainants' son.
[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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