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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 8 May 2009,
Having concluded its consideration of complaint No. 261/2005, submitted to
the Committee against Torture on behalf of Mr. Besim Osmani 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
complainants,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture.
1. The complainant is Mr. Besim Osmani, a citizen of the Republic of Serbia
of Roma origin, born in 1967, and residing in the Republic of Serbia. He
claims to be a victim of violations of article 16, paragraph 1, read
separately or in conjunction with articles 12 and 13, and article 14, read
separately or in conjunction with article 16, paragraph 1, of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment by the Republic of Serbia. He is represented by three
non-governmental organizations: the Humanitarian law Center (HlC), Minority
Rights Center (MRC), both based in Belgrade and by the European Roma Rights
Center (ERRC), based in Budapest.
Factual Background
2.1 The complainant was one of the 107 Roma inhabitants of the "Antena" Roma
settlement situated in New Belgrade (Novi Beograd), Municipality of
Belgrade. The settlement existed since 1962. Four families resided there
permanently, while the majority of its inhabitants were displaced Roma from
Kosovo, who moved into the settlement in 1999 after their property in Kosovo
was destroyed. On 6 June 2000, the "Antena" inhabitants were notified in
writing by the Municipality of New Belgrade of its decision of 29 May 2000
to demolish the settlement, and that they should vacate the area by the
following evening.[FNa] The inhabitants did not contest the Municipality's
decision but being very poor and unable to find another place to live at
short notice, they did not leave. On 8 June 2000, at approximately 10 a.m.,
representatives of the Municipality of New Belgrade and a group of some 10
uniformed policemen arrived at the settlement in order to execute the
eviction order. Shortly after the bulldozers started demolishing the
settlement, a group of five to six plainclothes policemen, all of whom, with
the exception of the van driver who wore a white suit, were dressed in
black, arrived at the scene in a blue Iveco cargo van with a police license
plate number BG 611-542. [FNb] They did not produce any identification
documents and were not wearing any insignias. In the course of the eviction,
the plainclothes policemen hit a number of the Roma while the uniformed
policemen abused them with racist language. The complainant was twice
slapped and hit with fists in the head and in the kidneys by a plainclothes
officer who was gripping the complainant's left arm, while the latter was
holding his 4 year old son with the right arm. The child was also hit but
did not sustain serious injury. The complainant fled the settlement and
sought medical treatment for his injuries. The medical certificates of 12
June 2000 stated that he had a haematoma under his left arm and he was
advised to see a specialist for an examination of his abdomen.
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[FNa] The explanation given for the adoption of the decision was that the
settlement has been situated on state-owned land and its inhabitants did not
have legal title to reside there at the time in question.
[FNb] According to the testimony of another witness, one M., the number of
the van's licence plate is BG 611-549.
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2.2 As a result of this operation, the complainant's home and personal
belongings, including a mini van, were completely destroyed and he was left
homeless together with his wife and three minor children. The first six
months after the incident, the complainant and his family lived in a tent on
the site of the destroyed settlement. As of 2002, they have lived in the
basement of a building where the complainant works on the heating system and
maintenance.
2.3 On 12 August 2000, the HlC filed a complaint supported, among others, by
five witness statements with the Fourth Municipal Public Prosecutor of
Belgrade claiming that the complainant's mistreatment by unidentified
perpetrators and the conduct of the police in the course of the settlement's
demolition breached article 54 (causing light bodily injury) and article 66
(abuse of authority) of the Criminal Code.
2.4 According to article 19, paragraph 1, of the Criminal Procedure Code of
the Republic of Serbia (CPC), formal criminal proceedings can be instituted
at the request of an authorized prosecutor, that is, either the public
prosecutor or the victim. All criminal offences established by law are
prosecuted ex officio by the state through the public prosecutor service,
unless the law explicitly states otherwise, which is not the case as far as
articles 54 and 66 of the Criminal Code are concerned. According to articles
241, paragraph 1, and 242, paragraph 3, of the CPC, a formal judicial
investigation can only be undertaken against an individual, whose identity
has been established. When the identity of the alleged perpetrator of a
criminal offence is unknown, the public prosecutor can request the necessary
information and/or take the necessary steps in order to identify the
individual(s) at issue. According to article 239, paragraph 1, of the CPC,
the prosecutor may exercise this authority through the law enforcement
agencies or with the assistance of the investigating judge. If the public
prosecutor finds, based on the totality of evidence, that there is
reasonable doubt that a certain person has committed a criminal offence
prosecuted ex officio, he requests the investigating judge to institute a
formal judicial investigation in accordance with articles 241 and 242 of the
CPC. On the other hand, if the public prosecutor decides that there is no
basis for the institution of a formal judicial investigation, he must inform
the complainant/victim of this decision, who can then exercise his/her
prerogative to take over the prosecution of the case on his/her own behalf -
that is, in the capacity of a "private prosecutor" as provided by article
61, paragraphs 1 and 2, and article 235, paragraph 1, of the CPC.
2.5 On 10 April 2001, in the absence of a reply from the Public Prosecutor's
Office, HlC sent a request for information concerning the investigation to
the Fourth Municipal Public Prosecutor. In a letter dated 19 April 2001 and
received on 16 May 2001, HlC was informed that the complaint had been
rejected, as there was no reasonable doubt that any criminal acts subject to
official prosecution had been committed. No information was provided about
the steps taken by the Public Prosecutor's Office to investigate the
complaint. The victim's representative was advised, in accordance with
article 60, paragraph 2, [FNc] of the CPC, to take over the prosecution of
the case before the Municipal Court of Belgrade within eight days. To that
end, the victim's representative was invited to submit either a proposal to
the investigating judge to conduct the investigation against an unidentified
perpetrator or a personal indictment against the officials for the crimes
proscribed by articles 54 and 66 of the Serbian Criminal Code. The Deputy
Public Prosecutor listed the names of four members of the Department of
Internal Affairs of New Belgrade who provided assistance to the Department
of Civil Engineering and Communal Housing Affairs in carrying out the
eviction and demolition: Sergeant Major B., Staff Sergeants A. and N., and
Master Sergeant J. However, the letter did not mention the names of the
plainclothes policemen who participated in the eviction, thus preventing the
complainant from formally taking over the prosecution of the case.
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[FNc] As of 29 March 2002, when a new Criminal Procedure Code entered into
force, the number of the article in the new Code is 61, paragraph 1. The
substance of the provision remained the same.
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2.6 On 23 May 2001, HlC filed a request before the Fourth Municipal Court of
Belgrade to reopen the investigation into the matter. To help identify the
perpetrators, HlC requested the Court to hear, in addition to the Roma
witnesses, the policemen named in the Deputy Public Prosecutor's letter of
19 April 2001, as well as the representatives of the Department of Civil
Engineering and Communal Housing Affairs who had been present on 8 June
2000.
2.7 Between 25 December 2001 and 10 April 2002, the four uniformed policemen
were heard by the investigating judge, making contradictory statements
regarding the police's participation in the demolition of the "Antena"
settlement. Master Sergeant J. stated that due to the number of the
settlement's inhabitants and their reluctance to vacate the settlement, the
group of policemen called for additional assistance and soon a vehicle with
five or six colleagues in plainclothes from the Police Station of New
Belgrade arrived at the scene. [FNd] Sergeant Major B., who was the
commander of the Bezanija Police Department, [FNe] stated that police
support was provided at two locations in the settlement and that no
plainclothes policemen were present at his location. Sergeant A. declared
that he was present at the destruction of the settlement but did not see any
violence taking place. He did not recall whether the other Ministry of
Internal Affairs' officers, other than those from the Bezanija Police
Department, were present at the scene and stated that, as a rule, assistance
is provided by the uniformed rather than by plainclothes policemen. Sergeant
N. stated that he did not participate in this operation. None of the
policemen who were present during the eviction and demolition of the "Antena"
settlement, could remember the names of the colleagues or subordinates who
also took part in it.
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[FNd] In his testimony before the court, Master Sergeant J. stated that "the
force and clubs were used by officers and colleagues in plainclothes from
the Department of Internal Affairs of New Belgrade", whereas his colleagues
and he "did not use force on that occasion". For a part of Master Sergeant
J.'s testimony referred to by the State party in support of its arguments,
see paragraph 4.7 below.
[FNe] Bezanija Police Department is a sub-department of the Department of
Internal Affairs of New Belgrade.
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2.8 On 17 May 2002, the investigating judge heard the complainant. His
testimony was supported by the statements of the other two inhabitants of
the settlement who were also heard as witnesses by the investigating judge.
All of them stated that they would be able to recognize the plainclothes
policemen who hit them.
2.9 On 4 June 2002, in reply to the investigating judge's request for
information on the policemen present at the eviction and demolition of the "Antena"
settlement, the Department of Internal Affairs of New Belgrade stated that
the execution of the decision of the New Belgrade Municipality started on 7
June 2000. On that day, police officials J., O. and T. visited the
settlement and requested the inhabitants to start evacuating their homes.
The operation continued the next day by the Sergeants A. and N. together
with the Commander B.
2.10 On 17 July 2002, the investigating judge interviewed P., one of the
Building Construction inspectors present during the operation. He stated
that the "Antena" inhabitants had been aware of the plan to demolish their
settlement a month before the actual demolition was to take place and that
on 7 June 2000 they had been given a last 24 hours vacation notice. On 8
June 2000, the "Antena" inhabitants gathered at the settlement and it seemed
to him that they had brought Roma from other settlements to prevent the
demolition. Building Construction inspectors requested assistance from the
Bezanija Police Department, which sent to the settlement uniformed and
plainclothes policemen. The witness confirmed that a few kicks and slaps in
the faces of the Roma inhabitants had taken place but stated that he did not
recall that truncheons were used on them. He declared, however, that the
plainclothes policemen did not interfere in the conflict; they were taking a
Roma resisting the settlement's demolition into police custody. He further
stated that the demolition did not proceed before the inhabitants took their
belongings out of the barracks. [FNf]
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[FNf] For a part of P.'s testimony referred to by the State party in support
of its arguments, see paragraph 4.7 below.
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2.11 On 12 September 2002, the Fourth Municipal Court of Belgrade informed
the HlC [FNg] that the investigation had been concluded and that, according
to the provisions of article 259, paragraph 3, of the CPC, the victims'
representative could lodge an indictment in the case [FNh] within 15 days or
otherwise it would be deemed that they have waived the prosecution.
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[FNg] The Court's letter was received on 18 September 2002.
[FNh] See paragraph 2.5 above.
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2.12 On 2 October 2002, the complainant's and the other victims'
representative filed a new request to supplement the investigation with the
Fourth Municipal Court of Belgrade, in accordance with the procedure
established by article 259, paragraph 1, of the CPC. The motion stated that,
in breach of article 255 of the CPC, the investigating judge did not provide
the parties with the names of the plainclothes policemen and therefore, they
were unable to formally take over the prosecution of the case. It was
proposed, inter alia, that the court conduct a new hearing of Master
Sergeant J. and that it resend a request to the Department of Internal
Affairs of New Belgrade to provide information on the identity of the
plainclothes policeman involved in the incident.
2.13 On 6 November 2002, in response to this request, the Fourth Municipal
Court of Belgrade sent an inquiry to the Department of Internal Affairs of
New Belgrade regarding the names of the Department's officers who provided
assistance to the Municipality of New Belgrade and to the Bezanija Police
Department but indicated by mistake an erroneous date for the incident, that
is, 8 June 2002. As a result, the Department of Internal Affairs replied on
20 November 2002 that it had not provided any assistance to the
above-mentioned bodies on the said date. On 22 November 2002, a second
similar request was sent to the Department of Internal Affairs by the Fourth
Municipal Court of Belgrade. This time, the letter did not mention the date
of the incident but required the names of the plainclothes policemen who had
assisted the policemen from the Bezanija Police Department during the
destruction of the "Antena" settlement. On 4 December 2002, Master Sergeant
J. replied that he did not know the names of the plainclothes policemen who
intervened during the destruction of the "Antena" settlement but he did not
deny that such intervention occurred. Also, on 13 November 2002, Master
Sergeant J. was re-interviewed by the Court. He repeated his previous
statement adding that "(...) if necessary, I could try to find out precisely
which police officers were present and inform the court about it".
2.14 On 26 December 2002, the Fourth Municipal Court of Belgrade informed
the victims' representative that the investigation has been concluded and
recalled that, according to the 277 provisions of article 259, paragraph 3,
of the CPC, the victims' representative could lodge an indictment in the
case within 15 days. Otherwise it would be deemed that they had waived the
prosecution.
2.15 On 10 January 2003, the victims' representative notified the Court that
the involvement of the plainclothes policemen in the physical abuse of Roma
on 8 June 2000 was clearly supported by the victims' statements, as well as
by the witnesses P. and Master Sergeant J. and requested the Court to
continue its investigation until the perpetrators had been identified. On 6
February 2003, the Department of Internal Affairs of New Belgrade, in
response to a third request from the Court dated 30 January 2003, sent a
letter providing the names of two officers G. and A., who had provided
assistance during the incident of 8 June 2000.
2.16 On 25 March 2003, HlC sent a letter of concern to the Minister of
Internal Affairs, complaining about the lack of cooperation of the
Department of Internal Affairs of New Belgrade in the investigation and
asking the Minister to disclose the names of the plainclothes policemen who
provided assistance during the incident of 8 June 2000 at the "Antena"
settlement in New Belgrade.
2.17 On 8 April 2003, the Court interviewed policemen G., who stated that he
was not present at the destruction of "Antena" settlement and had no direct
knowledge of the incident of 8 June 2000. He confirmed that, as a rule,
assistance in such situations was provided by the uniformed rather than by
plainclothes policemen but, in emergencies, policemen in plainclothes could
be dispatched. He further stated that the names of the policemen assigned to
different tasks were kept in a registry in the police department. Should the
Court require such information, it would receive a report based on the
information contained in the registry.
2.18 By letter dated 6 May 2003, [FNi] the victims' representative was again
informed that the investigation has been terminated by the Fourth Municipal
Court of Belgrade and that he could lodge an indictment within 15 days to
proceed with the criminal prosecution in the case. However, once again, the
perpetrators were not identified by name. On 27 May 2003, the representative
requested the Court not to finalize the investigation in the case until the
Ministry of Internal Affairs had sent its response to HlC's request that it
provide the names of the plainclothes policemen involved in the incident. On
3 June 2003, HlC sent a reminder to the Ministry of Internal Affairs. On 20
June 2003, an adviser to the Minister of Interior informed HlC that the
criminal investigation conducted by the Fourth Municipal Court of Belgrade
was not able to confirm the participation of plainclothes policemen in the
incident of 8 June 2000. The letter concluded that, upon the request of the
Court, the Secretariat of Belgrade [FNj] should present all required
information regarding the conduct of the policemen.
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[FNi] The letter was received by the victims' representative on 12 May 2003.
[FNj] Police Headquarters in Belgrade.
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2.19 On 20 December 2003, the victims' representative was notified for the
fourth time that the Court had concluded the investigation in the case and
was invited to lodge the indictment within 15 days. As before, the names of
the perpetrators were not identified, thus making it impossible for the
victims to formally take over the prosecution of the case.
2.20 Pursuant to domestic law, the complainant had two different procedures
for seeking compensation: (1) criminal proceedings, under article 201 of the
CPC, which should have been instituted on the basis of his criminal
complaint, or (2) a civil action for damages under articles 154 and 200 of
the Serbian law on Obligations. Since the prosecutor failed to identify the
perpetrators and no formal criminal proceedings were instituted by Fourth
Municipal Public Prosecutor of Belgrade, the first avenue remained closed.
Concerning the second avenue, the complainant did not file a civil action
for compensation given that it is standard practice of the Serbian courts to
suspend civil cases for damages arising out of criminal offences until prior
completion of the respective criminal proceedings.
2.21 Had the complainant decided to sue for damages immediately following
the incident, he would have faced another procedural impediment. Articles
186 and 106 of the CPC require that both parties to a civil action - the
plaintiff and the respondent alike - be identified by name, address and
other relevant personal data. Since the complainant was unable to provide
this information, instituting civil action for compensation would clearly
have been procedurally impossible and would have been rejected by the civil
court out of hand.
The Complaint
3.1 The complainant submits that the State party has violated article 16,
paragraph 1, read separately or in conjunction with articles 12 and 13; and
article 14, read separately or in conjunction with article 16, paragraph 1,
of the Convention.
3.2 With regard to exhaustion of domestic remedies, the complainant submits
that international law does not require that a victim pursue more than one
of a number of remedies which may be capable of redressing the violations
alleged. Where there is a choice of effective and sufficient remedies, it is
up to the complainant to select one. Thus, having unsuccessfully exhausted
one remedy, a complainant "cannot be criticised for not having had recourse
to legal remedies which would have been directed essentially to the same end
and would in any case not have offered better chances of success". [FNk] The
complainant refers to the jurisprudence of the European Commission which
held that where domestic law affords both civil and criminal remedies for
treatment allegedly contrary to article 3 of the European Convention on
Human Rights, a complainant who initiated criminal proceedings against a
police officer allegedly responsible need not also have filed a civil action
for compensation. [FNl] Moreover, the complainant submits that only a
criminal remedy would be effective in the instant case; civil and/or
administrative remedies do not provide sufficient redress.
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[FNk] See A v. France, Judgment of 23 November 1993, Series A no. 277-B;
Miailhe v. France, Judgment of 25 February 1993, Series A no. 256-C.
[FNl] See Bethlen v. Hungary, Application 26692/95, admissibility decision
of 10 April 1997.
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3.3 The complainant claims that he was subjected to acts of cruel, inhuman
and degrading treatment and punishment by state officials, in violation of
article 16. He submits that the assessment of the level of ill-treatment
depends, inter alia, on the vulnerability of the victim and should thus also
take into account the sex, age, state of health or ethnicity of the victim.
The level of ill-treatment required to be "degrading" depends, in part, on
the vulnerability of the victim to physical or emotional suffering. The
complainant's association with a minority group historically subjected to
discrimination and prejudice [FNm] renders the victim more vulnerable to
ill-treatment for the purposes of article 16, paragraph 1, particularly
where, as in the Republic of Serbia, law enforcement bodies have
consistently failed to address systematic patterns of violence and
discrimination against Roma. He suggests that a "given level of physical
abuse is more likely to constitute 'degrading or inhuman treatment or
punishment' when motivated by racial animus and/or coupled with racial
epithets".
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[FNm] Reference is made, inter alia, to the Human Rights Committee's
concluding observations on Serbia and Montenegro (Official Records of the
General Assembly, Fifty-ninth Session, Supplement No. 40 (A/59/40), para.
75); Human Rights Watch, World Report 2004: Human Rights and Armed
Conflicts; the International Helsinki Federation for Human Rights, Human
Rights in the OSCE Region: Europe, Central Asia and North America, Report
2004, on Serbia and Montenegro; Amnesty International, "Serbia and
Montenegro: Amnesty International's concerns in Serbia and Montenegro" (EUR
70/004/2003); Centre on Housing Rights and Evictions, 2003 Global Survey on
Forced Evictions; Belgrade Centre for Human Rights, 2003 report on human
rights in Serbia and Montenegro, and HlC, "Roma in Serbia (1998-2003)",
Belgrade 2003.
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3.4 The complainant submits that in violation of article 12, read in
conjunction with article 16, paragraph 1, of the Convention, the Serbian
authorities failed to conduct a prompt, impartial, and comprehensive
investigation into the incident at issue, capable of leading to the
identification and punishment of those responsible, despite reasonable
grounds to believe that an act of cruel, inhuman and degrading treatment or
punishment had been. He refers to the Committee's findings in Abad v. Spain
that "under article 12 of the Convention, the authorities have the
obligation to proceed to an investigation ex officio, wherever there are
reasonable grounds to believe that acts of torture or ill-treatment have
been committed and whatever the origin of the suspicion." The Committee also
found that "a criminal investigation must seek both to determine the nature
and circumstances of the alleged acts and to establish the identity of any
person who might have been involved therein" [FNn] In order to comply with
the requirements of article 12, read in conjunction with article 16,
paragraph 1, the State party's authorities had to conduct not a pro forma
investigation but an investigation capable of leading to the identification
and punishment of those responsible. Following the Deputy Public
Prosecutor's decision of 19 April 2001 to terminate the investigation, as
prescribed by law, the victim had the right to take over the prosecution of
the case and finally lodge the indictment. However, the failure of the
prosecutor and the investigating judge to identify the perpetrators
prevented the complainant from exercising this right.
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[FNn] Encarnación Blanco Abad v. Spain, communication No. 59/1996, Views
adopted on 14 May 1998, paras. 8.2 and 8.8. See also, Assenov and Others v.
Bulgaria, Judgment of 28 October 1998, para. 102.
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3.5 The complainant also alleges a violation of article 13, read in
conjunction with article 16, paragraph 1, because his right to complain and
to have his case promptly and impartially examined by the competent
authorities was violated. He submits that the 'right to complain' implies
not just a legal possibility to do so but also the right to an effective
remedy for the harm suffered.
3.6 The complainant finally invokes a violation of article 14, read together
with article 16, paragraph 1, because of the absence of redress and of fair
and adequate compensation. He refers to the European Court of Human Rights
jurisprudence on the interpretation of the term "effective remedies" that
should be afforded at the domestic level, stating that whenever an
individual has an arguable claim that he has been subjected to inhuman or
degrading treatment by the police or such agents of the state, the notion of
an effective remedy entails, in addition to the payment of compensation
where appropriate, a thorough and effective investigation capable of leading
to the identification and punishment of those responsible. [FNo]
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[FNo] Assenov and Others v. Bulgaria (note n above), para. 102.
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The State Party's Observations on Admissibility and Merits
4.1 In a submission dated 23 May 2005, the State party challenged the
complainant's claim that the Fourth Municipal Public Prosecutor did not take
any steps in response to the complaint submitted by the HlC on 12 August
2000 until 19 April 2001. The State party submitted that according to the
case file available with the Fourth Municipal Public Prosecutor and an
interview with the Deputy Case prosecutor, HlC's complaint was received on
15 August 2000. On 18 August 2000, the Prosecutor requested the Department
of Internal Affairs of New Belgrade to provide information "on persons who
assisted the Department of Civil Engineering and Communal Housing Affairs of
New Belgrade in the demolition, on whether force was used, including which
type and manner and for what reasons it was used, whether residents resisted
the implementation of the decision of the Department".
4.2 On 9 November 2000, the Prosecutor received a report from the
Secretariat of Internal Affairs of Belgrade, Internal Affairs Control
Section. On 23 November 2000, the Prosecutor requested the Secretariat to
return to him the original complaint, which was forwarded by the former on
13 February 2001. According to the report, on 7 June 2000, officers of the
Bezanija Police Department visited the settlement and noted that the
inhabitants were packing up slowly, dismantling their dwellings and looking
for a new place to live. Accordingly, there was no police intervention
against the inhabitants on that date. On 8 June 2000, the municipal
administration authorities "demolished illegally built dwellings (…) which
took place without disturbance of public peace and order. The police
provided assistance, (…) but the assistance consisted of physical presence,
short of taking any measure or form of intervention, either before or after
the demolition of the dwellings".
4.3 On 19 February 2001, the Prosecutor decided to reject the complaint
under article 153, paragraph 4, in connection with paragraph 2 of the
Criminal Procedure law (CPl). According to article 45, paragraph 2,
subparagraph 1, of the CPl that was in force at that time, the Prosecutor
was empowered to take the necessary measures to uncover criminal offences
and to identify alleged perpetrators. Article 46, paragraph 2, subparagraph
1, of the CPC that subsequently entered into force makes the Prosecutor
responsible for pretrial procedure. The State party concludes that under the
CPl, the Prosecutor had very limited powers in the pretrial procedure and
had to rely on the Ministry of Internal Affairs. According to the Ministry's
report, there were no illegal activities in the case in question and taking
into account the procedure for obtaining the evidence under the CPl, the
Prosecutor correctly found that there was no reasonable doubt that a
criminal offence under article 66 of the CPl, or any other offence
prosecuted ex officio had been committed.
4.4 On 19 April 2001, the above decision with a remedy in the sense of
article 60, paragraph 2, of the CPl was forwarded to the HlC. In this
regard, the State party submits that the CPl and the CPC clearly distinguish
between the complainant and the injured party. Only the injured party has
the right, in the sense of article 60, paragraph 2, of the CPl and article
61, paragraph 2, of the CPC to take over criminal prosecution if the
Prosecutor rejects the complaint. In this situation, the injured party has
the right of the Prosecutor and not that of a private complainant. Since the
HlC filed the complaint without submitting the full powers of attorney of
the injured party represented in this case, the Prosecutor could not inform
the HlC of the rejection of the complaint. Moreover, the injured party, the
complainant, could not be informed either, since after the settlement's
demolition, his address was no longer valid and no alternative address was
provided. It was only after the HlC submitted the full powers on 13 April
2001 that the Prosecutor informed the organization, within the shortest
possible time, of the rejection of the complaint and rendered detailed
advice on the remedy.
4.5 In 2000 and 2001, the only independent authority to control the legality
of the work of the Ministry of Internal Affairs was the Internal Affairs
Control Section. It investigated all cases in which force was used and
carried out internal control on the basis of complaints of serious
misconduct and/or reports of excessive use of force. This Section has been
transformed in the meantime into the post of the General Inspector of the
Public Security Department.
4.6 With regard to the complainant's and other victims' statement that they
would be able to recognize the plainclothes policemen who hit them should
they be given this opportunity, the State party submits that "while a
witness statement constitutes evidence, identification is only one measure
to establish its authenticity." Since the Internal Affairs Control Section
concluded that the Ministry of Internal Affairs officers acted in full
compliance with the law, the Prosecutor could not request identity parade as
it would have been superfluous. In any event, the injured party taking over
the prosecution has the right to request action to determine identification
during the proceedings.
4.7 The State party further submitted that the Court had difficulties in
subpoenaing the injured parties, since the HlC failed to provide their
proper addresses. As a result, the Court was able to subpoena the witnesses
only on 7 May 2002 and so heard them almost a year after the prosecution was
taken over by the injured party. The State party referred to the statement
made by one of the "Antena" inhabitants, before the investigating judge of
the Fourth Municipal Court of Belgrade where he indicated, inter alia, that
"these individuals did not have any insignia and wore civilian clothes and
used only their arms and legs during the attack on the settlement's
residents." He added that his son was pushed by a truncheon when the latter
bowed to pick up his cell phone from the ground and that "the police officer
did it to move him away from the melee, as my son risked to be hit, felled
and run over." Sergeant Major B., an officer of the Department of Internal
Affairs of New Belgrade testified in January 2002 that "the residents (…)
booed us and protested the demolition (…)." In addition to Sergeant J.'s
testimony of 10 April 2002 quoted by the complainant, [FNp] the State party
referred to a part of his statement where he explained that several attempts
have been made to serve demolition decisions on the settlement's residents.
On 8 June 2000, the residents "refused to move, the police tried to talk
them into it but they would not listen." He recalled that the plainclothes
policemen who arrived at the scene used the truncheons on the most reluctant
inhabitants who had lain down in front of the bulldozers to prevent the
demolition, but did not remember who was using the truncheons and on whom.
He further recalled that no one insulted, kicked or hit the Roma with the
fists. The physical contact was limited to holding the inhabitants by the
arm to drag them away from the area; one or two of them were ultimately
arrested and taken into custody to the Bezanija Police Department. As for
the Building Construction inspector's testimony referred to by the
complainant, [FNq] the State party refers to a part of his statement where
he mentioned that "(…) the police officer from the Bezanija Police Station
that assisted us tried to solve the problem with the Roma peacefully and,
really I cannot remember now if insults were exchanged between them."
---------------------------------------------------------------------------------------------------------------------
[FNp] See paragraph 2.7 above.
[FNq] See paragraph 2.10 above.
---------------------------------------------------------------------------------------------------------------------
4.8 The State party concluded that the facts mentioned above prove that on
the day in question the police tried to act in accordance with the standards
governing the intervention against a large number of people and endeavoured
to apply force discriminately. In particular, they tried to use a
two-pronged approach to protesters: the policemen showed maximum respect
towards those who offered passive resistance and carried them away, while a
number of protesters offered active resistance to policemen in implementing
the planned intervention and encouraged individual Roma to oppose the
police, provoking physical contact with the police in which the policemen
were compelled to apply physical force by using truncheon and by hitting and
kicking protesters in order to remove them.
4.9 Further, the State party provided extensive information on existing
legal avenues available to the injured party to exercise its right to
compensation through the institution of criminal, civil and administrative
proceedings. It claims that by filing a claim for compensation under article
172 of the Contracts and Torts law, the complainant could have prosecuted
the Republic of Serbia and the Ministry of Internal Affairs in a civil
lawsuit. It is not necessary to establish the names of all individuals who
caused the damage in order to institute and conduct these proceedings.
Because the legal person (the Republic of Serbia) is responsible for the
damage caused by its agencies to third persons in the discharge or in
connection with the discharge of their functions, it suffices to establish
that the employees of the Ministry of Internal Affairs have been involved.
In deciding on the lawsuit, the court would have had to determine whether
the intervention of the Ministry of Internal Affairs' officers was justified
or not. If the court finds that the intervention was not justified, it would
have accepted the request and ordered the State to compensate the injured
party. If the intervention was considered justified, the court would have
assessed whether excessive force was used and if, in the court's opinion, it
was - the request would have been accepted and the State would have been
ordered to compensate the injured party.
4.10 Finally, the State party claimed that the complainant had not exhausted
all domestic remedies, as the civil lawsuit described above under the
objective responsibility provision is a more effective procedure to obtain
redress and stands a better chance of success than the criminal procedure.
It further noted that the injured party's request to institute criminal
proceedings under article 66 of the Criminal law against policemen involved
in the operation on 8 June 2000 would come under the statute of limitations
on 8 June 2006.
Complainant's Comments on the State party's Observations
5.1 On 6 July 2005, the complainant submitted his comments in which he
maintained all his initial claims and stressed that the State party has
failed to respond to all aspects of the communication on the alleged
breaches of articles 13 and 14 and to certain aspects of article 12. He
further stated that the State party's silence could be taken to mean that it
has no objections on these points.
5.2 As to the alleged failure to exhaust domestic remedies, the complainant
contended that the State party's arguments on the theoretical availability
of a separate law suit were unfounded. As implicitly supported by the
Committee's jurisprudence, there is no requirement for a victim to pursue
multiple avenues of redress [FNr] - criminal, civil and administrative - in
order to be deemed to have exhausted domestic remedies. Moreover, given that
the wrong suffered by the complainant clearly falls under article 16 of the
Convention, which requires criminal redress, civil and administrative
remedies alone [FNs] would not have provided sufficient redress. Finally,
criminal proceedings in the Republic of Serbia are generally quicker and
more efficient than civil proceedings.
---------------------------------------------------------------------------------------------------------------------
[FNr] Henri Unai Parot v. Spain, communication No. 6/1990, Views adopted on
2 May 1995, para. 10.4 and Encarnación Blanco Abad v. Spain, (note n above),
para. 8.6.
[FNs] See paragraphs 4.9 and 4.10.
---------------------------------------------------------------------------------------------------------------------
5.3 The complainant further submitted that the authorities are bound ex
officio to investigate and punish ill treatment when they have knowledge of
it. Both under the CPl and under its successor, the CPC, public prosecutors
are obliged to take all steps and to adopt all necessary measures in order
to uncover relevant evidence and investigate a case thoroughly. It is
irrelevant whether the complainant initiated separate civil proceedings,
since the State party is obliged to investigate and to prosecute, as the
evidence clearly indicated there had been an abuse.
5.4 The complainant challenged the State party's claim that the law in force
at the relevant time limited the public prosecutor's powers in the conduct
of criminal proceedings, particularly regarding the police. The public
prosecutor was and is empowered with specific competences and powers
throughout the entire criminal procedure. He could take over prosecution
from the injured party as the prosecutor where, as in the present case, the
criminal offences involved are prosecuted ex officio. The complainant
submitted that under article 155 of the CPl, the public prosecutor had power
to instruct both the police and the investigating judge, whereas under
article 239 of the CPC, the public prosecutor's power extends only to the
investigating judge in this respect. Both laws empower the investigating
judge to take actions on his own motion and upon the motion of the public
prosecutor. Proper examination of the allegations of mistreatment at the
hands of the police would mean, inter alia, ordering the identification of
the police officers dressed in civilian clothes through conducting an
identity parade for the victim. Various State party bodies could have
ordered the police to provide this information through the Ministry of
Internal Affairs, the investigating judge or the public prosecutor. The
complainant concluded that any differences between the CPC and the CPl have
no bearing on the arguments in the present case, especially concerning the
State party's obligations under articles 12, 13 and 14 of the Convention.
5.5 The complainant questioned the State party's assertion that during 2000
and 2001 the only independent authority with the powers to regulate police
conduct was the Internal Affairs Control Section. The fundamental principle
of the division of powers vests the judiciary with this authority.
5.6 The complainant noted the State party's confirmation that there were
plainclothes officers on duty and its argument that they used only police
truncheons in a legal fashion (no use of fists, kicking, etc.). [FNt] This
assertion does not correspond to the testimonial evidence of abuse
corroborated by medical reports and photographs. At the same time, no
competent state authority revealed the identity of these plainclothes
officers to the complainant, thus absolutely and definitively preventing him
from exercising his right to take over the prosecution and ultimately
bringing the perpetrators to justice. Even if the identity of the
plainclothes officers was not contained in the report, there were numerous
ways through which the authorities could have requested this information.
---------------------------------------------------------------------------------------------------------------------
[FNt] See paragraph 4.7 above.
---------------------------------------------------------------------------------------------------------------------
5.7 With regard to the duty to investigate under article 12, the complainant
submitted that no internal report by the State party's organs and bodies
describing an investigation of the events of 8 June 2000 had been made
available to the complainant at any point during the domestic proceedings.
As such, he had no input in this internal investigation, no ability to
examine testimonial or other evidence provided by the police, no opportunity
to confront the plainclothes officers who might have been interviewed nor
ensure that all the implicated officers were interviewed. lastly, the
complainant noted that the State party continued to withhold the report of
the Internal Affairs Control Section from him and the Committee. He referred
to the Committee's jurisprudence recognizing that the state's failure to
inform the complainant about whether an internal investigation was being
conducted and of its results effectively prevents the complainant from
pursuing a private prosecution and thus violates the State party's
obligations under article 12. [FNu]
---------------------------------------------------------------------------------------------------------------------
[FNu] Dragan Dimitrijevic v. Serbia and Montenegro, communication No.
207/2002, Views adopted on 24 November 2004, paragraph 5.4.
---------------------------------------------------------------------------------------------------------------------
Supplementary Submissions from the State Party
6. In a further submission dated 16 November 2005, the State party
transmitted a note from the Public Prosecutor's Office, containing similar
arguments to those submitted in the State party's observations of 23 May
2005. In addition, the State party challenged the complainant's allegation
that a civil lawsuit would not have had a deterrent effect on the
perpetration of the criminal offence of abuse of authority. [FNv] The
publication in the media of a court's judgement directing the State to
compensate for the acts that had been committed by the officers of the
Ministry of Internal Affairs would have probably led the Ministry to take
internal disciplinary sanctions. The State party also disagreed with the
complainant's statement that civil proceedings take longer than criminal
proceedings. The Sate party cited the example of the case of Milan Ristic [FNw]
where a civil action was initiated after a criminal action and the court
ordered the State to compensate the family of the victim while the criminal
investigation was still pending. The State party concluded that the judicial
authorities acted in accordance with domestic legislation and the
Convention. Nothing more could be done without a more active collaboration
of the complainant or his counsel with the public prosecutor.
---------------------------------------------------------------------------------------------------------------------
[FNv] See paragraph 5.2 above.
[FNw] Milan Ristic v. Yugoslavia, communication No. 113/1998, Views adopted
on 11 May 2001.
---------------------------------------------------------------------------------------------------------------------
Decision of the Committee on Admissibility
7.1 On 23 November 2006 the Committee considered the admissibility of the
communication. It took note of the arguments advanced by the complainant and
his assertion that he had exhausted domestic remedies. The Committee also
noted that the State party had disputed this fact and provided a detailed
description of the legal avenues available to the injured party to exercise
its right to compensation through the institution of criminal, civil and
administrative proceedings. It also took note of the State party's argument
that the civil lawsuit filed under the objective responsibility provision of
the Contracts and Torts law was a more effective procedure to obtain redress
than the criminal procedure. In this regard, the Committee considered that
the State party's failure to initiate ex officio an investigation into the
complainant's allegations and to reveal the identity of the plainclothes
officers present during the incident, thus permitting the complainant to
take over the prosecution, rendered the application of a remedy that may
bring, in the particular circumstances of the present case, effective and
sufficient redress to the complainant effectively impossible. Moreover,
having unsuccessfully exhausted one remedy one should not be required, for
the purposes of the article 22, paragraph 5 (b) of the Convention, to
exhaust alternative legal avenues that would have been directed essentially
to the same end and would in any case not have offered better chances of
success. In these circumstances, the Committee concluded that it was not
precluded by the requirements of article 22, paragraph 5 (b), of the
Convention, from considering the communication.
7.2 The Committee noted the complainant's allegations that the plainclothes
policemen used disproportionate force, resulting in light personal injury,
and that subsequently he had been unable to obtain redress. The State party
contended that the policemen tried to act in accordance with the standards
governing the intervention against a large number of people and endeavoured
to apply force discriminately. The Committee considered, however, that this
claim had been sufficiently substantiated, for purposes of admissibility and
should be considered on its merits.
7.3 The Committee against Torture therefore decided that the communication
was admissible as far as it raised issues under articles 12, 13, 14 and 16
of the Convention.
State party's Merits Observations
8.1 On 19 June 2008, the State party submitted that the Criminal Code of the
Republic of Serbia, the CPC, the Code of Obligations and the Manual on
Methods of Assistance Provided by the Ministry of Internal Affairs of 2
December 1997 (Manual) were applicable to the present case. In particular:
(a) Under article 153 of the CPC, in force when the events in question took
place, the Public Prosecutor rejects the criminal offence report if there is
no basis for the institution of a formal judicial investigation. If the
Public Prosecutor is unable to assess from the criminal offence report
whether the charges contained therein are probable, or if the data from the
criminal offence report or police notification do not provide sufficient
grounds for issuing a ruling on the opening of the investigation, the Public
Prosecutor requests the police to gather necessary information and undertake
other measures, if he is unable to undertake the necessary measures proprio
motu or through other government authorities. If he concludes that the
reported offence is not a criminal offence subject to formal judicial
investigation, the Public Prosecutor rejects the criminal offence report.
The CPl and the CPC allow the injured party to take over criminal
prosecution if the Public Prosecutor rejects the complaint. Furthermore,
under article 259, paragraph 3, of the CPC, if the investigating judge
decides that the investigation is concluded, he informs the injured party,
as prosecutor or private prosecutor, of this fact and notifies the injured
party that it may file an indictment with the court, i.e. a private suit,
otherwise it would be deemed that the injured party has waived prosecution;
(b) Under article 103, section 6 and 7 (limitations on criminal
prosecution), of the Criminal Code, criminal prosecution may not be
instituted after three years from the time of committing a criminal offence
punishable by more than one year's imprisonment; and of two years from the
time of committing a criminal offence punishable by less that one year's
imprisonment or fine. Under article 104, section 6 (course and suspension of
limitations on criminal prosecution), of the Criminal Code, absolute
limitations on criminal prosecution become effective after expiry of twice
the time period required by law for limitation of criminal prosecution. At
any time after the submission of the criminal offence report, the injured
party or its representative have the right to be informed of what the
prosecutor has done on the report;
(c) Under article 154 and article 200 of the Serbian law on Obligations, the
complainant had a right to seek compensation through civil action; [FNx]
(d) According to the Manual, civil servants do not take part in eviction
procedures. Evictions are carried out by uniformed officers of the Ministry
of Internal Affairs.
---------------------------------------------------------------------------------------------------------------------
[FNx] See also paragraph 4.9 above.
---------------------------------------------------------------------------------------------------------------------
8.2 The State party submits that on 10 April and 17 July 2002, the policeman
and Construction inspector, respectively, confirmed that "certain civilians"
participated in the dispersal of settlement residents who protested against
the demolition, without asserting, however, that "these civilians were
police officers".
8.3 The State party recalls that, as required by article 12 of the
Convention, it conducted a prompt and impartial investigation, and carried
out supplementary investigations at the HlC's request on several occasions.
The complainant's allegation that plainclothes policemen took part in the
event was not proven by the investigation and such presumption "is not in
conformity with the applicable regulations of the Republic of Serbia".
8.4 The State party regrets that the absolute statute of limitations for
criminal prosecution in the present case has expired on 8 June 2006 [FNy]
and stresses that the complainant himself has partly contributed to the
slowing down of the investigation. Specifically, the HlC submitted the power
of attorney to represent the complainant before the Fourth Municipal Public
Prosecutor of Belgrade only seven months the criminal offence report was
filed. It also failed to provide the investigating authorities with proper
addresses for the complainant and witnesses.
---------------------------------------------------------------------------------------------------------------------
[FNy] See also paragraph 4.10 above.
---------------------------------------------------------------------------------------------------------------------
8.5 Irrespective of the absolute statute of limitations for criminal
prosecution in the present case, the State party denies that it violated
article 14 of the Convention, because the complainant had numerous
opportunities to obtain fair compensation for the damages sustained by
initiating a civil action. [FNz] Even if criminal proceedings had been
initiated, the court would have directed the complainant, upon the
completion of the proceedings, to establish his claim in a civil action.
That is, in criminal proceedings the court would have had to ask for expert
opinions of economic and medical experts, which would have resulted in
longer proceedings and in a substantial increase in costs. Moreover, under
the Serbian law, criminal and civil proceedings may be conducted in
parallel. The complainant was entitled to claim compensation for all types
of damage (reimbursement of medical care costs, physical pain and suffering,
etc.) but he failed to avail himself of such possibility. The State party
reiterates that the complainant has not exhausted all available domestic
remedies.
---------------------------------------------------------------------------------------------------------------------
[FNz] See paragraph 8.1 (a) above.
---------------------------------------------------------------------------------------------------------------------
8.6 The State party ends by stating that it will take measures, if the
Committee were to conclude that an absolute statute of limitations for
criminal prosecution amounts to a violation of article 13 of the Convention,
for adequate compensation of non-pecuniary damages in the amount offered to
be paid to the complainant ex gratia. This compensation should be in
conformity with the practice of domestic and international courts in similar
cases.
Complainant's Comments on the State Party's Observations on the Merits
9.1 On 12 September 2008, the complainant noted that the State party has
changed its argumentation in important respects. Specifically, it now
recognises that the CPC was also applicable in the present case, as the
complainant had considered from the outset, and accepted his argument that
both under the CPl and its successor from March 2002 onwards, the CPC did
entrust the prosecutor with the competence and the mandate to fully
investigate police ill-treatment allegations.
9.2 The complainant agrees that he had the right but not the obligation to
initiate a civil action. He reiterates that civil remedies were not too
considered as adequate or effective in his case and hence did not have to be
exhausted. He also notes that the Committee has already addressed this issue
in its admissibility decision, where the Committee held that this alleged
"failure" to have recourse to civil remedies did not amount to
non-exhaustion. [FNaa]
---------------------------------------------------------------------------------------------------------------------
[FNaa] See paragraph 7.1 above.
---------------------------------------------------------------------------------------------------------------------
9.3 The complainant further notes that, by referring to the Manual [FNbb]
the State party effectively implies that plainclothes policemen could not
have taken part in the police operation. Furthermore, the State party
argued, for the first time throughout the proceedings both before the
domestic courts and the Committee, that the perpetrators of the
complainant's ill-treatment were not in fact policemen but rather civilians.
[FNcc] The complainant notes that until now, the State party has not
referred to a group of "civilians" being present during the eviction and
conceded that police officers did indeed resort to the use of legitimate
force against Roma. The complainant refers to the same testimony of Sergeant
J. and Construction inspector of, respectively, 10 April and 17 July 2002,
which was quoted by the State party, but concludes that it is replete with
reference to plainclothes policemen. [FNdd] The complainant therefore
dismisses the State party's argument to the effect that under the applicable
legal framework, only uniformed police officers could take part in an
eviction. In this respect, the complainant submits that state authorities
are responsible in cases where their agents acted ultra vires.
---------------------------------------------------------------------------------------------------------------------
[FNbb] See paragraph 8.1 (d) above.
[FNcc] See paragraph 8.2 above.
[FNdd] See, for example, paragraphs 2.7, 2.10, 2.13 above.
---------------------------------------------------------------------------------------------------------------------
9.4 The complainant notes that even if, hypothetically, the new version of
events as formulated by the State party is accepted, then the State's
responsibility remains engaged. Under article 16 of the Convention, "[e]ach
State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in article I, when such
acts are committed by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity (emphasis added)." The complainant points out that the State party
did not produce evidence as to whether the uniformed policemen who were
present undertook any actions in order to protect the Roma from the assault
of these "civilians". Neither did it produce any evidence about measures it
took to identify these "civilians" and to provide their names to the
complainant.
9.5 The complainant concludes that the burden rests on the State party to
prove either under which circumstances the complainant was injured by
policemen (in accordance with the original version of the events) or how
these "civilians" managed to penetrate into the settlement undetected and
assault the Roma inhabitants, as the State party currently suggests. The
complainant stresses that the police operation launched on that day was
mounted following careful preparation and planning, i.e. it was not a
"spontaneous" police operation. Therefore, the police authorities had ample
time to prepare themselves and take all the necessary measures in order to
minimize any kind of threat to the Roma.
9.6 For the complainant reiterates, the State party failed to advance new
arguments regarding the adequacy of the investigation launched into his
allegations of ill-treatment and recalls that this "is not an obligation of
result, but of means". Any investigation should in principle be capable of
leading to the establishment of the facts of the case and, if the
allegations prove to be true, to the identification and punishment of those
held responsible. In the present case, the Prosecutor based his decision not
to open the investigation into the HlC's criminal offence report on the
report received from the Secretariat of Internal Affairs of Belgrade,
Internal Affairs Control Section, dated 9 November 2000. [FNee] The State
party continues to withhold this report from him and the Committee. [FNff]
The complainant further notes that the State party itself questions the
validity of this report by supporting three mutually exclusive versions of
the events that took place on 8 June 2000. [FNgg]
---------------------------------------------------------------------------------------------------------------------
[FNee] See paragraphs 4.2 and 4.6 above.
[FNff] e paragraph 5.7 above.
[FNgg] See paragraphs 4.2 and 8.2 above.
---------------------------------------------------------------------------------------------------------------------
9.7 The complainant further submits, inter alia, that the State party's
authorities have failed to establish how many uniformed (not to mention
plainclothes) policemen and from what departments were present on 8 June
2000; to investigate whether any of its agencies uses a vehicle with the
license plate number that had been provided by the complainant and other
witnesses; and to request a copy of the registry of the Department of
Internal Affairs of New Belgrade.[FNhh] He adds that starting from 25
December 2001, there was concrete evidence [FNi]i that policemen from yet
another police agency, in addition to the Bezanija Police Department, had
been involved in the demolition of the "Antena" settlement and that the
Prosecutor should have been aware that the information provided by the
Department of Internal Affairs of New Belgrade in its letter of 6 February
2003 was inaccurate. [FNjj] Nevertheless, the complainant's case was closed
pursuant to article 257 of the CPC. The complainant argues that the fact
that all his requests to supplement the investigation were granted by the
investigating judge amounts to a concession of the inadequacy of the
investigation measures taken until then.
---------------------------------------------------------------------------------------------------------------------
[FNhh] See paragraph 2.17 above.
[FNii] See paragraph 2.7 above.
[FNjj] See paragraphs 2.15 and 2.17 above.
---------------------------------------------------------------------------------------------------------------------
9.8 As to the State party's claim that the prosecution in the case is now
time-barred and that the complainant has partly contributed to the slowdown
of the investigation, the complainant submits that:
(a) The delay by the HlC to submit the power of attorney to the Fourth
Municipal Public Prosecutor of Belgrade should not have had any impact on
the investigation, as the authorities should have taken all measures
required to investigate the complainant's allegations proprio motu. In any
event, the only delay that can be attributed to the complainant is three and
not seven months, as claimed by the State party. [FNkk] Even taking into
account this delay, the State party had two years and nine months to conduct
an effective investigation before the institution of criminal proceedings
became time-barred, and five years and nine months before the absolute
time-bar to any proceedings;
(b) As to the alleged delay caused by the complainant's failure to provide
the prosecuting authorities with the exact addresses of witnesses, the
complainant submits that the State party itself had admitted that locating
the Roma witnesses was difficult because after the eviction the authorities
were not aware of their whereabouts and the authorities failed to
immediately contact the HlC and request its help in locating the relevant
witnesses. In addition, the complainant notes that his and the other "Antena"
residents' eviction on 8 June 2000 violated relevant human rights standards.
[FNll]
---------------------------------------------------------------------------------------------------------------------
[FNkk] The three months between the rejection of the complaint by the
Prosecutor (on 19 February 2001) and the date when the HlC was informed of
this decision (19 April 2001).
[FNll] Reference is made to the Committee on Economic, Social and Cultural
Rights, general comment No. 7 (1997) on The right to adequate housing
(article 11, paragraph 1): forced evictions (E/1998/22-E/C.12/1997/10),
paras. 13, 15 and 16.
---------------------------------------------------------------------------------------------------------------------
Consideration of the Merits
10.1 The Committee has considered the communication in the light of all
information made available to it by the parties concerned, in accordance
with article 22, paragraph 4, of the Convention.
10.2 The Committee takes note of the State party's observations of 19 June
2008 challenging the admissibility of the complaint and finds that the
points raised by the State party are not such as to require the Committee to
review its decision on admissibility, owing in particular to the State
party's failure either to initiate ex officio an investigation into the
complainant's allegations or to reveal the identity of the persons who
caused bodily injury and verbally abused the complainant, thus preventing
him from taking over the prosecution. Consequently, there was no domestic
remedy left for the complainant that would enable him to take over the
prosecution and to claim effective and sufficient redress for the treatment
to which he was subjected to on 8 June 2000. The Committee therefore sees no
reason to reverse its decision on admissibility.
10.3 The Committee proceeds to a consideration on the merits and notes that
the complainant alleges violations by the State party of article 16,
paragraph 1, read separately or in conjunction with articles 12 and 13, and
article 14, read separately or in conjunction with article 16, paragraph 1,
of the Convention.
10.4 As to the legal qualification of the treatment to which the complainant
was subjected to on 8 June 2000, the Committee considers that the infliction
of physical and mental suffering aggravated by the complainant's particular
vulnerability, due to his Roma ethnic origin and unavoidable association
with a minority historically subjected to discrimination and prejudice,
reaches the threshold of cruel, inhuman or degrading treatment or
punishment. The Committee notes that the complainant and the State party are
at odds as to the identity of the persons who caused bodily injury to the
complainant and verbally abused him but the parties concur in as much as the
presence of the State party's uniformed policemen (public officials) in the
place and at the time in question are concerned. The Committee further notes
that the State party did not contest that the complainant has indeed
sustained bodily injury and was verbally abused. The Committee recalls that
the State party did not claim that the uniformed policemen who were present
at the "Antena" settlement at the time when the treatment contrary to
article 16 occurred, took steps to protect the complainant and other
inhabitants from the abuse and did not produce any evidence that would allow
the Committee to deduce that this was the case.
10.5 The Committee considers that, irrespective of whether the persons who
had caused bodily injury to the complainant and verbally abused him were or
were not public officials, the State party's authorities who witnessed the
events and failed to intervene to prevent the abuse have, at the very least
"consented or acquiesced" to it, in the sense of article 16 of the
Convention. In this respect, the Committee has reiterated on many occasions
its concerns about "inaction by police and law-enforcement officials who
fail to provide adequate protection against racially motivated attacks when
such groups have been threatened".[FNmm] The Committee concludes that there
was a violation of article 16, paragraph 1, of the Convention by the State
party.
---------------------------------------------------------------------------------------------------------------------
[FNmm] See, inter alia, Official Records of the General Assembly,
Fifty-sixth Session, Supplement No. 44 (A/56/44), concluding observations on
the initial report of Slovakia, paragraph 104; concluding observations on
the second periodic report of the Czech Republic, paragraph 113; and
concluding observations on the second periodic report of Georgia, paragraph
81.
---------------------------------------------------------------------------------------------------------------------
10.6 Having considered that the facts on which the complaint is based
constitute acts within the meaning of article 16, paragraph 1 of the
Convention, the Committee must analyse other allegations of violations of
the Convention in the light of that finding.
10.7 Concerning the alleged violation of article 12, the Committee recalls
its jurisprudence [FNnn] that a criminal investigation must seek both to
determine the nature and circumstances of the alleged acts and to establish
the identity of any person who might have been involved therein. In the
present case, the Committee notes that, despite the presence of a high
number of Roma during the events of 8 June 2000 and the participation of a
number of uniformed policemen and of a public works inspector, the exact
factual circumstances of the case remain unclear. The Committee is of the
view that the State party's failure to inform the complainant of the results
of the investigation for almost six years by, inter alia, not providing him
with the report of the Internal Affairs Control Section of 2000, nor with
names of the persons who caused bodily injury to the complainant and
verbally abused him, effectively prevented him from assuming "private
prosecution" of his case prior to the expiry of the absolute statute of
limitations for criminal prosecution. In these circumstances, the Committee
finds that the investigation conducted by the authorities of the State party
did not satisfy the requirements of article 12 of the Convention. Nor has
the State party fulfilled its obligation under article 13 of the Convention
to ensure that the complainant has the right to complain to, and to have his
case promptly and impartially investigated by its competent authorities.
---------------------------------------------------------------------------------------------------------------------
[FNnn] See, inter alia, Encarnacion Blanco Abad v. Spain (note n above),
paragraph 8.8.
---------------------------------------------------------------------------------------------------------------------
10.8 Concerning the alleged violation of article 14 of the Convention, the
Committee notes that the scope of application of the said provision only
refers to torture in the sense of article 1 of the Convention and does not
cover other forms of ill-treatment. Moreover, article 16, paragraph 1, of
the Convention while specifically referring to articles 10, 11, 12, and 13,
does not mention article 14 of the Convention. Nevertheless, article 14 of
the Convention does not mean that the State party is not obliged to grant
redress and fair and adequate compensation to the victim of an act in breach
of article 16 of the Convention. The positive obligations that flow from the
first sentence of article 16 of the Convention include an obligation to
grant redress and compensate the victims of an act in breach of that
provision. [FNoo] The Committee is therefore of the view that the State
party has failed to observe its obligations under article 16 of the
Convention by failing to enable the complainant to obtain redress and to
provide him with fair and adequate compensation.
---------------------------------------------------------------------------------------------------------------------
[FNoo] Hajrizi Dzemajl et al. v. Yugoslavia, communication No. 161/2000,
Views adopted on 21 November 2002, paragraph 9.6.
---------------------------------------------------------------------------------------------------------------------
11. The Committee, acting under article 22, paragraph 7, of the Convention,
is of the view that the facts before it disclose a violation of article 16,
paragraph 1; article 12; and article 13 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
12. In pursuance of rule 111, paragraph 5, of its rules of procedure, the
Committee urges the State party to conduct a proper investigation into the
facts that occurred on 8 June 2000, prosecute and punish the persons
responsible for those acts and provide the complainant with redress,
including fair and adequate compensation and to inform it, within 90 days
from the date of the transmittal of this decision, of the steps it has taken
in response to the Views expressed above.
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