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The Committee on
the Elimination of Racial Discrimination, established under article 8 of the
International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 6 March 2006,
Having concluded its consideration of communication No. 29/2003, submitted
to the Committee on the Elimination of Racial Discrimination by Mr. Dragan
Durmic under article 14 of the International Convention on the Elimination
of All Forms of Racial Discrimination.
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts the following decision:
1. The petitioner is Dragan Durmic, a national of Serbia and Montenegro and
of Romani origin. He claims to be a victim of violations of Serbia and
Montenegro of article 2, paragraph 1 (d), read together with article 5 (f),
as well as articles 3, 4 (c) and 6 of the International Convention on the
Elimination of Racial Discrimination. The petitioner is legally represented
by the Humanitarian Law Center and the European Roma Rights Center. Serbia
and Montenegro made the declaration under article 14 of the Convention on 27
June 2001.
The Facts as Presented by the Petitioners
2.1 In 2000, the Humanitarian Law Center (HLC) carried out a series of
"tests" across Serbia, to establish whether members of the Roma minority
were being discriminated against while attempting to access public places.
It was prompted to such action by numerous complaints alleging that the Roma
are denied access to clubs, discotheques, restaurants, cafes and/or swimming
pools, on the basis of their ethnic origin.
2.2 On 18 February 2000, two Roma individuals, one of whom the petitioner,
and three non-Roma individuals, attempted to gain access to a discotheque in
Belgrade. All were neatly dressed, well-behaved and were not under the
influence of alcohol. Thus, the only apparent difference between them was
the colour of their skin. There was no notice displayed to the effect that a
private party was being held and that they could not enter without showing
an invitation. The two individuals of Roma origin were denied entry to the
club on the basis that it was a private party and they did not have
invitations. When the petitioner asked the security guard how he may obtain
an invitation there and then, he was told that it was not possible and that
the invitations were not for sale. He was unwilling to inform the petitioner
how he might obtain an invitation for future events. The three non-Roma
individuals were all allowed to enter, despite having no invitations for the
so called private party and making this clear to the security personnel at
the time.
2.3 On 21 July 2000, on behalf of the petitioner, the HLC filed a criminal
complaint with the Public Prosecutor's Office in Belgrade. It was directed
against unidentified individuals employed by the discotheque in question on
suspicion of having committed a crime under article 60 of the Serbian
Criminal Code. [FN1] The petitioner claimed a violation of his rights as
well as the rights of the other Roma individual to equality, human dignity
and equal access to places intended for the use of the general public. Among
the international provisions invoked, the HLC put special emphases on
article 5 (f) of the ICERD. It requested the Public Prosecutor's Office to
identify the perpetrators and initiate a formal judicial investigation
against them, or file an indictment directly in the competent court.
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[FN1] Article 60 provides "Whoever denies or restricts on the grounds of
distinctions in nationality, race, religion, political or other affiliation,
ethnicity, sex, language, education or social status the rights of citizens
embodied in the Constitution, law, or other regulations or ordinances, or a
ratified international treaty, or whoever grants citizens benefits or
privileges on these grounds, shall be punished with a term of imprisonment
of three months to five years."
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2.4 After 7 months, in the absence of any response, the HLC sent another
letter to the Public Prosecutor stressing that, should the latter dismiss
the criminal complaint, and if the perpetrators had been identified by that
time, the petitioner and the other alleged victim wished to exercise their
legal prerogative to take over the prosecution of the case in the capacity
of private/subsidiary prosecutors. [F2] The Public Prosecutor responded that
he had requested the police on two separate occasions in August 2000 to
investigate this incident but that they had failed to do so.
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[FN2] According to the petitioner, under domestic law, if the Public
Prosecutor finds that there is reasonable suspicion that a certain person
has committed a criminal offence, he will request the investigating judge to
institute a formal judicial investigation. But if not, he must inform the
complainant of this decision, who can in turn exercise his prerogative to
take over the prosecution of the case on his own behalf.
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2.5 On 22 October 2001, the Public Prosecutor informed the HLC that it had
confirmed, through police inquiries, that there had been a private party at
the disco on the date in question, allegedly organised by the owner of the
establishment. He also stated that the police had ignored the order to
identify and question the security personnel on the evening of the incident.
No further information was received from the Public Prosecutor. According to
the petitioner, under articles 153 and 60 of the Criminal Procedure Code, in
circumstances where the Public Prosecutor simply ignores a criminal
complaint filed by a complainant regarding a crime, the complainant can only
wait for the Prosecutor's decision or, alternatively, informally urge him to
take action as provided for by law.
2.6 On 30 January 2002, the petitioner filed a petition in the Federal
Constitutional Court stating that, by failing to identify the perpetrators
and dismissing the criminal complaint, the Public Prosecutor prevented the
petitioner and alleged victim from taking over the prosecution of the case
on their own behalf. More than 15 months after submitting the petition to
the Federal Constitutional Court, the petitioner has not received any
response and thus has obtained no redress for the violations suffered.
The Complaint
3.1 On the issue of ratione temporis, the petitioner acknowledges that the
incident in question predates the State party's declaration under article 14
of the Convention. However, he argues that the Socialist Federal Republic of
Yugoslavia (SFRY) ratified the Convention in 1967 and following its
dissolution the Convention retained its binding effect with respect to all
successor states, including the State party. On 4 February 2003, the Former
Republic of Yugoslavia (FRY) renamed itself the State Union of Serbia and
Montenegro but remained the same subject under international law. In his
view, article 14 is a simple jurisdictional clause and therefore a
declaration made in accordance with this article results merely in the
recognition by the State concerned of another means by which the Committee
can monitor implementation of the Convention. He notes that article 14
contains no express temporal limitation which would prevent the Committee
from examining petitions on the basis of facts that had taken place prior to
the date of deposit of the declaration. In any event, he argues, it is now
more than 21 months following the declaration and the State party has yet to
provide the petitioner with any redress. The petitioner refers to the
jurisprudence of the European Court of Human Rights and of the Human Rights
Committee.
3.2 As to "testing" as a technique used for the collection of evidence on
allegations of discrimination, the petitioner submits that since the 1950s
US courts have recognised testing as an effective means of proving
discrimination. He also refers to the jurisprudence of the CERD which he
purports demonstrates that the Committee itself has confirmed the
admissibility of such cases. [FN3] The petitioner also requests the
opportunity to provide further clarification on this issue if the Committee
considers it necessary.
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[FN3] Lacko v. Slovakia, Case No. 11/1998, Opinion of 9 August 2001, B.J. v.
Denmark, Case No. 17/1999, Opinion of 17 March 2000 and M.B. v. Denmark,
Case No. 20/2000, Opinion 13 March 2002.
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3.3 The petitioner alleges that he has exhausted all effective domestic
remedies available. As to constitutional remedies, he denies that there is
or ever was a constitutional remedy available to individual victims of
discrimination. He acknowledges that, on 27 June 2001, the FRY made a
declaration under article 14, paragraph 2, of the Convention, designating
the country's Federal Constitutional Court as the final domestic judicial
instance entrusted with receiving and considering all complaints alleging
discrimination - "providing all other domestic remedies have already been
exhausted". However, according to the Constitution of the FRY, adopted on 27
April 1992, no such competence was ever granted. In fact, article 128 of the
Constitution expressly stated that "the Federal Constitutional Court shall
decide on a complaint [alleging various individual human right violations,
including discrimination] only when other legal remedies are not available"
- i.e. "when the law provides no other legal remedy for a given kind of
violation".
3.4 The Federal Constitutional Court explained its competence as follows:
"If dissatisfied with the final decision of the Republican Labour Office,
the party is entitled to institute administrative litigation before the
Serbian Supreme Court .…. The Court has established that the person who
filed [this] constitutional complaint had recourse to other means of legal
protection, of which he availed himself... For this reason ... the Court has
decided to dismiss the constitutional complaint." The petitioner alleges
that such legal reasoning led lawyers to conclude that constitutional
complaints were indeed "a purely theoretical remedy since the Yugoslav legal
system nominally provides protection in almost all cases of human rights
violations." The authorities did not amend the Constitution of the FRY, nor
the Federal Constitutional Court Act, which would have been necessary to
formally provide for an expansion of the Federal Constitutional Court's
competence to examine cases of discrimination as the final judicial instance
- once an alleged victim has been unsuccessful in obtaining redress from all
other/regular remedies.
3.5 On 4 February 2003, the FRY adopted a new constitution and renamed
itself the State Union of Serbia and Montenegro. The former Federal
Constitutional Court was to be replaced by the Court of Serbia and
Montenegro. Pursuant to article 46 of the Charter, this court will also be
competent to consider individual complaints alleging human rights
violations, including discrimination, but, like the old Court, only "if no
other recourse has been provided for". Finally, article 62 (1) of the new
Court of Serbia and Montenegro Act, adopted on 19 June 2003, confirmed this
understanding of the competence of the Court by providing that an individual
complaint can be filed only if "no other avenue of legal redress exists"
within either Serbia or Montenegro. Prior to the adoption of the new
Constitutional Charter as well as subsequently, domestic legislation
contained provisions affording other non-constitutional, means of redress to
victims of racial discrimination - including civil and/or criminal remedies.
Therefore, the petitioner argues, notwithstanding the article 14
declaration, there is no (and has never been) a constitutional remedy
available to victims of discrimination. The petitioner adds that the article
14 declaration itself refers to a currently non-existent court i.e. the
Federal Constitutional Court, and not to the Court of Serbia and Montenegro.
3.6 Regardless of the petitioner's view in this regard and to oppose any
possible objections from the State party on exhaustion of domestic remedies,
the petitioner filed a submission in the Federal Constitutional Court and,
in so doing, invoked the article 14 declaration. On exhaustion of domestic
remedies, he concludes that the wrong suffered by him is of such a serious
nature that only a criminal remedy would provide adequate redress and that
he exhausted all domestic criminal remedies, as well as the merely
"hypothetically available" constitutional remedy, and still obtained no
redress. For the preposition that domestic remedies have been exhausted to
the extent that criminal remedies are the only effective remedies to address
the kind of violations at issue, the petitioner refers to the cases of Lacko
v. Slovakia and M.B. v. Denmark, [FN4] both found to be admissible by CERD,
as well as jurisprudence of the European Court of Human Rights. [FN5]
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[FN4] Supra.
[FN5] A v France, Judgment of 23 November 1993, Series A, No. 277-B. See
also Yagiz v. Turkey, App. No. 19092/91, 75 D&R 207 as well as Sargin and
Yagci v. Turkey, App. No. 14116-7/88, 61 D&R 250.
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3.7 As to the six-months rule, the petitioner submits that although he filed
a complaint in the Federal Constitutional Court, this Court never considered
the matter. Moreover, as a result of the adoption of the new Constitutional
Charter, this Court has since ceased to exist and is yet to be replaced by
the new Court of Serbia and Montenegro which, according to the petitioner,
will have no competence to consider individual discrimination cases. For the
petitioner, the six-month time limit has not even started running, and his
communication is therefore both timely and admissible. He invokes the
jurisprudence of the European Court of Human Rights, which has accepted
cases when there is a continuing situation, act or omission that can be
imputed to the authorities.
3.8 The petitioner submits that the allegations of violations ought to be
interpreted against a backdrop of systematic discrimination of Roma in the
State party, as well as the practical absence of any adequate form of
redress. He claims a violation of article 2, paragraph 1 (d), read together
with article 5 (f) of the Convention as the discotheque the petitioner was
prevented from accessing a "place or service intended for use by the general
public," on the basis of his race. The failure of the State party to
prosecute the owners of the discotheque for its discriminatory practice, and
to ensure that such discrimination does not recur, is said to amount to a
violation of article 5 (f), read in conjunction with article 2, paragraph 1
(d).
3.9 The petitioner refers to the Committee's General Recommendation on
article 5, [FN6] in which the Committee noted that, although article 5 "does
not of itself create civil, political, economic, social or cultural rights,
[it] assumes the existence and recognition of these rights. The Convention
obliges States to prohibit and eliminate racial discrimination in the
enjoyment of such human rights." Thus, the Committee looks to the extent to
which States have ensured "the non-discriminatory implementation of each of
the rights and freedoms referred to in article 5 of the Convention."
Moreover, the Committee indicated that States' responsibility to ensure
protection of the "rights and freedoms referred to in article 5 of the
Convention" is not dependent on the good will of each government; it is
mandatory. The scope of this binding obligation is to ensure the "effective
implementation" of the rights contained in article 5. Indeed, CERD has held
that the Convention prohibits discrimination by both private parties and
public authorities. The petitioner also refers to the Human Rights
Committee's interpretation of article 26, the general non-discrimination
provision of the International Covenant on Civil and Political Rights on the
obligation of States parties to protect against discrimination.
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[FN6] CERD/48/Misc.6/Rev. 2 (1996), para. 1.
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3.10 The petitioner claims a violation of article 3 of the Convention, as he
was subjected to a form of racial segregation by being refused entry to the
discotheque solely on grounds of race. The State party's failure to provide
any remedies in this case constitutes a failure to comply with its
obligation under article 3 to "prevent, prohibit and eradicate all practices
of this nature....". He claims a violation of article 4 (c) as by failing to
prosecute the owners of the discotheque or in any way remedy the alleged
discrimination against the petitioner and the other alleged victim, the
prosecuting authorities - the police and the Public Prosecutor's Office -
have promoted racial discrimination. In its General Recommendation on
article 4 of the Convention, the CERD recalled "that the provisions of
article 4 are of a mandatory character. To satisfy these obligations, States
parties have not only to enact appropriate legislation but also to ensure
that it is effectively enforced."
3.11 The petitioner invokes article 6 of the Convention, as the State party
has not provided him with a remedy for the discrimination he suffered, nor
has it taken measures to punish the perpetrators or ensure that such
discrimination does not recur. For the same reasons, the petitioner has to
date been denied his right to civil compensation, which he may only claim in
criminal proceedings. Due to the State party's failure to provide any
remedies in the instant case, and notwithstanding the existing domestic
criminal provisions prohibiting discrimination in access to public places,
the petitioner has been forced to live with continuing uncertainty as to
whether he will be admitted to the discotheque on any given date in the
future.
The State Party's Admissibility Submission
4.1 By submission of 12 August 2003, the State party submitted its response
on admissibility. As to the facts, it stated that, on 20 August 2000 the
Ministry of Internal Affairs was requested to collect the necessary
information and to identify the persons working for the discotheque in
question. Subsequent requests were made to the Ministry on 3 July and, 22
October 2001, 5 February, 2 October, and 23 December 2002, 25 February 2003
and 14 May 2003. On 4 April 2001, the Ministry submitted a report from which
it transpires, based on an interview with the manager of the club, that a
private party for specially invited guests was being held on the night in
question. The manager could not identify the security personnel on duty that
night, given the club's frequent personnel turnover. Consequently, as a
result of the problems in establishing their identity the Public Prosecutor
had difficulty in building up a case.
4.2 According to the State party, articles 124 and 128 of the Constitution
of the Federal Republic of Yugoslavia, in force at the time of the alleged
incident, laid down the competence of the Federal Constitutional Court to
consider claims of violations of the rights and freedoms enshrined therein
and to consider complaints "when other legal remedies are not available". It
is submitted that these provisions are referred to in the article 14
declaration made by the FRY on 27 June 2001, in recognition of the
competence of the Committee to receive and consider communications. The
State party acknowledges that on 30 January 2002, the petitioner submitted a
complaint to the Federal Constitutional Court, as the last instance in the
matter, the consideration of which was postponed by the Court on 2 December
2002. The Court has not examined this matter yet for the following reasons:
following the adoption of the Constitutional Charter of the State Union of
the Serbia and Montenegro on 4 February 2003, the FRY ceased to exist. Under
article 12 of the Law on the Implementation of the Constitutional Charter,
the Federal Constitutional Court transmitted all undecided cases to the
Court of Serbia and Montenegro, the competence of which in this matter is
defined in article 46 of the Constitutional Charter. Considering that the
judges of the Court have not been elected and that, accordingly, the Court
itself has not yet been constituted, the Federal Constitutional Court
continues to work, considering matters of vital importance for the
functioning of the State only and leaving all other cases for consideration
by the Court of Serbia and Montenegro once it is constituted and
operational. In view of the fundamental changes that took place in the
judicial system of the country, the prolongation of the case, the State
party submits, is justifiable.
4.3 The State party contends that in April 2003, the petitioner publicly
disclosed the present communication, allegedly in contravention of article
14, paragraph 4, of the Convention.
Petitioner's Comments on State Party Submission
5.1 On 2 October 2003, the petitioner commented on the State party's
submission. As to the conduct of the investigation, he notes that the
prosecuting authorities have not even identified the security personnel more
than three years after the submission of the criminal complaint and that the
procedure has been prolonged. The excuse offered by the State party seems to
imply that the police are dependent on the good will of the club manager in
order to proceed. In addition, there is no information on the thoroughness
of the investigation undertaken by the police: whether they looked into the
club's internal records to establish the identity of the individuals
employed at the time or whether, in the absence of such records, they
informed other competent authorities in order to hold the club manager
legally accountable for failing to register his employees as required by
domestic labor and tax law. The police and Public Prosecutor have failed to
date to contact the petitioner and/or other witnesses for the purpose of
obtaining a detailed description of the security personnel in question. The
petitioner invokes the jurisprudence of the United Nations Committee against
Torture in support of his claim that the State party has failed to conduct a
comprehensive, prompt, and ultimately effective official investigation into
the incident.
5.2 The petitioner reiterates his initial arguments on the issue of
exhaustion of domestic remedies. Neither he nor his legal representatives
were ever informed about the alleged decision of the former Federal
Constitutional Court of 2 December 2002 to postpone consideration of the
case. To his knowledge, the Court simply did not respond for more than 12
months - or rather, up to the very moment when it actually ceased to exist.
Indeed, he argues, the State party has not provided a copy of the Court's
decision referred to and even if it did this would not address in substance
any of the above issues. The petitioner submits that a long-term backlog of
cases, and a change in a State's legal framework, coupled with its failure
to take remedial measures, cannot be invoked as an excuse for continuing to
deny redress to an individual. On the contrary, States are obliged to
organize their legal systems so that they comply with the requirements of
legal certainty and provide effective remedies to all victims of human
rights abuse. However, in the petitioner's view, his argument is purely
academic, as the only decision the Federal Constitutional Court could have
adopted in this instance, would have been to reject the petitioner's
communication on the grounds that there are other, non-constitutional,
remedies available.
5.3 As to the claim that he violated article 14 of the Convention, the
petitioner submits that the State party misinterpreted the non-disclosure
guarantee contained therein. This provision imposes a burden on the State
party itself to keep the names and other personal details of all petitioners
confidential and relates to "the proceedings before the designated domestic
anti-discrimination body only". In a situation where the petitioner himself
wishes to publicise his petition submitted to the Committee, this cannot be
deemed in violation of article 14, paragraph 4, of the Convention.
Decision on Admissibility
6.1 At its sixty-fifth session the Committee examined the admissibility of
the communication. As to whether the petitioner had submitted the petition
within the time limit set out in rule 91 (f) of the Committee's rules of
procedure, the Committee recalled that, communications must be submitted to
it, except in the case of duly verified exceptional circumstances, within
six months after all available domestic remedies have been exhausted. It
observed that the Court of Serbia and Montenegro had not yet considered the
matter and therefore the six-month rule had not yet begun to run.
6.2 As to the State party's claim that the petitioner violated article 14,
paragraph 4, of the Convention, by publicly disseminating the contents of
his petition, the Committee recalled that paragraph 4 provides that,
"A register of petitions shall be kept by the body established or indicated
in accordance with paragraph 2 of this article, and certified copies of the
register shall be filed annually through appropriate channels with the
Secretary General on the understanding that the contents shall not be
publicly disclosed."
6.3 The Committee was of the view that the obligation to refrain from
publishing information on individual petitions, prior to examination by the
Committee, applies only to the Secretary General of the United Nations,
specifically, acting through the Secretariat, and not to the parties to the
petition who remain at liberty to publish any information at their disposal
relating to a petition.
6.4 As to the question of admissibility ratione temporis, the Committee
noted that although the incident in front of the discotheque (18/2/2000)
took place before the declaration was made under article 14 (27/6/01), what
had to be considered from the point of view of the State party's
obligations, is not the incident itself, which took place between
individuals, but the shortcomings of the competent authorities in conducting
the investigation and the absence of efforts made by the State party to
guarantee an effective remedy to the petitioner, in accordance with article
6 of the Convention. As the State party had so far failed to complete its
investigations, to refer this case to the new Court of Serbia and Montenegro
and to offer other remedies to the petitioner, the alleged violations were
ongoing and had continued since the date of the incident itself and after
the State party's declaration under article 14. Consequently, the Committee
found that this claim was admissible ratione temporis under article 14.
6.5 On the question of exhaustion of domestic remedies, the Committee
observed that a complaint was made to the Federal Constitutional Court on 30
January 2002 and, at least up to the date of consideration by the Committee,
had not been considered either by that Court or by its successor, the new
Court of Serbia and Montenegro. While noting the State party's arguments on
the ongoing changes within its judicial system, the Committee observed that
the petitioner had sought to have his claims of violations of the Convention
by the State party adjudicated for over four and a half years, since the
incident in February 2000. In this regard, the Committee noted that the
State party itself had conceded that the prospect of an early review was
unlikely, given that the new Court of Serbia and Montenegro had not even
been constituted. The Committee recalled that in article 14, paragraph 7, of
the Convention, the requirement to exhaust domestic remedies does not apply
if the application of the remedies is unreasonably prolonged. It considered
that the application of remedies in this case had been unduly prolonged, and
thus found that the requirements of article 14, paragraph 7 (a), had been
met. On 5 August 2004, therefore, the Committee declared the case
admissible.
The State Party's Submission on the Merits and Petitioner's Comments Thereon
7.1 On 10 June 2005, the State party informed the Committee that officers
from Vracar Police Station had again interviewed the witnesses involved in
this case but could take no further action, as it was not possible to
identify the person/s alleged to have committed the offence. Meanwhile, due
to the application of the Statute of Limitations, the lapse of time has
barred any further investigation of the case.
7.2 For the State party, even if criminal proceedings had been instituted,
the petitioner would have been instructed by the Court to pursue a civil
claim, due to the fact that the necessity to call expert evidence to assess
the petitioners request for damages would delay the criminal proceedings and
increase the costs. In cases in which claims are made for non-material
damages in criminal proceedings, the claimant is instructed to pursue
his/her claim through civil proceedings. If the petitioner's complaint had
reached the criminal court, it would have been dismissed because of the high
standard of proof required in criminal proceedings.
7.3 According to the State party, the petitioner could have pursued civil
claims for compensation. The Law on Contracts and Torts and the Law on
Litigation allows a victim to institute civil proceedings independently from
criminal ones. A victim may institute civil proceedings for damages in a
situation where the defendant in criminal proceedings has been acquitted.
The same law would also have permitted the petitioner to institute civil
proceedings against the club itself for which he would not have had to
identify the individual allegedly responsible for the damage. It would
suffice to establish that the individuals responsible were employees of the
club and that the petitioner had been prevented from gaining access to it
because he is a Roma. Provided that the petitioner is successful and is
awarded compensation, the Law also provides publication of the decision. The
State party argues that, as the petitioner did not file such a civil claim,
he has failed to exhaust domestic remedies, the case is thus inadmissible.
7.4 The State party contests the petitioner's position that the Court of
Serbia and Montenegro would have taken a decision in accordance with the
practice of the former Federal Constitutional Court, as the new court is not
bound by the decision of another court, radical changes have taken place in
the judicial system since the Constitutional Court took that position and
the laws and the practice of the courts are increasingly influenced by
international conventions. In any event, the Court of Serbia and Montenegro
has not yet considered this matter.
8.1 On 12 October 2005, the petitioner commented on the State party's
submission, arguing that the State appears to rely on the inefficiency of
the administrative bodes (Vracar Police Station) entrusted with conducting
criminal investigations as an excuse for the Public Prosecutor's inability
to provide redress to the petitioner. The police limited themselves to
recording the statements of the manager of the disco without corroborating
them with any other sources. They failed to take basic investigative steps
to elucidate the circumstances of the incident, such as looking into the
club's internal records to establish the identity of the individuals
employed at the time or, informing other competent authorities to hold the
club legally accountable for failing to register its employees, as required
by law.
8.2 The petitioner submits that the statute of limitations has been invoked
as an excuse for the failure to enforce the law when it is the State itself
which is responsible for the excessive length of the investigation. The
Public Prosecutor has still not issued a decision on the complaint. Under
international law, States are obliged to provide effective remedies to all
victims of human rights violations and excuses such as a large backlog of
cases, a change in the State's legal structure, coupled with its failure to
take remedial measures, or other administrative difficulties of the State's
own making, are no justification for the continued absence of redress. [FN7]
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[FN7] The petitioner refers to the judgements of the European Court of Human
Rights: Pelissier and Sassi v. France, 25 March 1999, Application no.
25444/94; Zimmerman and Steiner v. Switzerland, 13 July 1983, Application
no. 8737/79 and Guincho v. Portugal, 10 July 1984, Application no.
8990/80...
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8.3 As to the State party's argument that if the petitioner's complaint had
reached the criminal court, it would have been thrown out because of the
high standard of proof required in criminal proceedings, the State are
relying on the inefficiency of its investigative bodies to gather sufficient
evidence. In the present case, it has not even passed the investigative
stage.
8.4 As to the arguments that the State party's criminal courts are
ill-equipped to determine damage for non-pecuniary harm, and that conducting
forensic expertise to determine the size of non-pecuniary damage is
time-consuming, the petitioner submits that the State party's courts appear
to be guided by considerations of expediency rather than the desire for
justice for victims of crime.
8.5 It remains unclear for the author why the State party argues that
criminal remedies are inadequate remedies when a crime that caused
non-pecuniary harm has been committed. A criminal court must be able to
provide non-pecuniary damage to the aggrieved party, in addition to the
identification and the punishment of those responsible.
8.6 As to the alternative remedies proposed by the State party, the
petitioner submits that the wrong he suffered is so serious and so clearly
in violation of the Convention that only a criminal remedy could have
provided redress. Consequently, civil and administrative remedies alone are
not sufficiently effective. He invokes the Committee's decision in of Lacko
v Slovakia. [FN8]
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[FN8] Supra
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8.7 On the possibility of introducing an alternative civil action for
damages under articles 154 and 200 of the Law of Obligations, the petitioner
argues that even if he had chosen to seek redress in a civil court, he would
have been barred from doing so, as it is the practice to suspend civil
proceedings for damages arising from criminal offences, until the relevant
criminal proceedings have been completed. In any event, he would have been
obliged to identify the respondent. As to taking a civil action against the
club itself, he submits that this would not have been a substitute for a
criminal action and that the individuals responsible would escape
responsibility. In addition, any such legal action would be destined to
fail, given the potential evidentiary difficulties that the petitioner would
face.
Consideration of The Merits
9.1 Acting under article 14, paragraph 7 (a), of the International
Convention on the Elimination of All Forms of Racial Discrimination, the
Committee has considered the information submitted by the petitioner and the
State party.
9.2 In relation to the State party's request that the Committee should
reconsider its decision on admissibility on the grounds that the petitioner
has not exhausted domestic remedies by failing to institute civil
proceedings against the discotheque in question, the Committee recalls its
jurisprudence established in the case of Lacko v. Slovak Republic, [FN9]
that objectives pursued through a criminal investigation could not be
achieved by means of civil or administrative remedies of the kind proposed
by the State party. Therefore, the Committee sees no reason to review its
decision on admissibility of 5 August 2004.
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[FN9] Supra
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9.3 As to the merits, the Committee considers it unreasonable that the State
party, including the Public Prosecutor, appear to have accepted the claim
that it was impossible to identify the personnel involved in the incident in
question by reason of a high turn over of staff without further
investigation or enquiry on why such information would not be readily
available.
9.4 The Committee does not share the State party's opinion that due to the
Statute of Limitations it is now too late to initiate proceedings against
those considered responsible, as the delays in the investigation appear to
have been wholly attributable to the State party itself. This point supports
the petitioner's argument that the investigation was neither conducted
promptly nor effectively, as nearly 6 years after the incident (and
apparently after the expiry of the time limit under the Statute of
Limitations) no investigation, let alone a thorough one has been carried
out. In this regard, the Committee notes that the Court of Serbia and
Montenegro has still not considered the case and it is noteworthy that the
State party has provided no likely date for its consideration.
9.5 The State party has equally failed to establish whether the petitioner
had been refused access to a public place, on grounds of his national or
ethnic origin, in violation of article 5 (f), of the Convention. Owing to
the police's failure to carry out any thorough investigation into the
matter, the failure of the public prosecutor to reach any conclusion, and
the failure of the Court of Serbia and Montenegro even to set a date for the
consideration of the case, some six years after the incident, the petitioner
has been denied any opportunity to establish whether is rights under the
Convention had been violated.
9.6 The Committee notes that in previous jurisprudence it has found
violations of article 6 of the Convention without finding violations of any
of the substantive articles. [FN10] The State party's response to the claims
of racial discrimination was so ineffective that it had failed to ensure
appropriate protection and remedies pursuant to this provision. According to
article 6, "States parties shall assure to everyone within their
jurisdiction effective protection and remedies, through the competent
national tribunals and other State institutions, against any acts of racial
discrimination which violate his human rights and fundamental freedoms
contrary to this Convention." Although on a literal reading of the provision
it would appear that an act of racial discrimination would have to be
established before a petitioner would be entitled to protection and a
remedy, the Committee notes that the State party must provide for the
determination of this right through the national tribunals and other
institutions, a guarantee which would be void were it unavailable in
circumstances where a violation had not yet been established. While a State
party cannot be reasonably required to provide for the determination of
rights under the Convention no matter how unmeritorious such claims may be,
article 6, provides protection to alleged victims if their claims are
arguable under the Convention. In the current case, the petitioner presented
such an arguable case but the State party's failure to investigate and
adjudicate the case effectively prevented the determination of whether a
substantive violation had occurred.
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[FN10] Habassi v. Denmark, Opinion No. 10/1997, adopted on 17 March 1999 and
Kashif Ahmad v. Denmark, Opinion No. 16/1999, adopted on 13 March 2000.
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10. The Committee concludes that the State party failed to examine the
petitioner's arguable claim of a violation of article 5 (f). In particular,
it failed to investigate his claim promptly, thoroughly and effectively.
Consequently, article 6 of the Convention has been violated.
11. The Committee recommends that the State party provide the petitioner
with just and adequate compensation commensurate with the moral damage he
has suffered. It also recommends that the State party take measures to
ensure that the police, public prosecutors and the Court of Serbia and
Montenegro properly investigate accusations and complaints related to acts
of racial discrimination, which should be punishable by law according to
article 4 of the Convention.
12. The Committee wishes to receive, within six months, information from the
State party about the measures taken in light of the Committee's Opinion.
The State party is requested to give wide publicity to the Committee's
Opinion
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