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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 21 November 2002,
Having concluded its consideration of complaint No. 161/2000, submitted to
the Committee against Torture by Mr. Hajrizi Dzemajl et al. 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, their counsel and the State party,
Adopts the following:
Decision under Article 22, Paragraph 7, of the Convention
1.1 The complainants are 65 persons, all of Romani origin and nationals of
the Federal Republic of Yugoslavia. They claim that Yugoslavia has violated
articles 1, paragraph 1, 2, paragraph 1, 12, 13, 14 and 16, paragraph 1, of
the Convention. They are represented by Mr. Dragan Prelevic, attorney at
law, the Humanitarian Law Center, an NGO based in Yugoslavia, and the
European Roma Rights Center, an NGO based in Hungary.
1.2 In accordance with article 22, paragraph 3 of the Convention, the
Committee transmitted the complaint to the State party on 13 April 2000.
The Facts as Presented by the Complainants
2.1 On 14 April 1995 at around 10 p.m., the Danilovgrad Police Department
received a report indicating that two Romani minors had raped S.B., a minor
ethnic Montenegrin girl. In response to this report, around midnight, the
police entered and searched a number of houses in the Bozova Glavica Roma
settlement and brought into custody all of the young male Romani men present
in the settlement (all of them presently among the complainants to this
Committee).
2.2 The same day, around midnight, two hundred ethnic Montenegrins, led by
relatives and neighbours of the raped girl, assembled in front of the police
station and publicly demanded that the Municipal Assembly adopt a decision
expelling all Roma from Danilovgrad. The crowd shouted slogans addressed to
the Roma, threatening to "exterminate" them and "burn down" their houses.
2.3 Later, two Romani minors confessed under duress. On 15 April, between 4
and 5 a.m., all of the detainees except those who confessed were released
from police custody. Before their release, they were warned by the police to
leave Danilovgrad immediately with their families because they would be at
risk of being lynched by their non-Roma neighbours.
2.4 At the same time, police officer Ljubo Radovic came to the Bozova
Glavica Roma settlement and told the Romani residents of the settlement that
they must evacuate the settlement immediately. The officer's announcement
caused panic. Most residents of the settlement fled towards a nearby
highway, where they could take buses for Podgorica. Only a few men and women
remained in the settlement to safeguard their homes and livestock. At
approximately 5 a.m., police officer Ljubo Radovic returned to the
settlement, accompanied by police inspector Branko Micanovic. The officers
told the remaining Roma still in their homes (including some of the
complainants) to leave Danilovgrad immediately, as no one could guarantee
their safety or provide them with protection.
2.5 The same day, at around 8 a.m., a group of non-Roma residents of
Danilovgrad entered the Bozova Glavica Roma settlement, hurling stones and
breaking windows of houses owned by the complainants. Those Roma who had
still not left the settlement (all of them presently among the complainants
to this Committee) were hidden in the cellar of one of the houses from which
they eventually managed to flee through the fields and woods towards
Podgorica.
2.6 In the course of the morning of 15 April, a police car repeatedly
patrolled the deserted Bozova Glavica settlement. Groups of non-Roma
residents of Danilovgrad gathered in different locations in the town and in
the surrounding villages. Around 2 p.m. the non-Roma crowd arrived in the
Bozova Glavica settlement - in cars and on foot. Soon a crowd of at least
several hundred non-Roma (according to different sources, between 400 and
3,000 persons were present) assembled in the then deserted Roma settlement.
2.7 Between 2 and 3 p.m., the crowd continued to grow and some began to
shout: "We shall evict them!" "We shall burn down the settlement!" "We shall
raze the settlement!" Shortly after 3 p.m., the demolition of the settlement
began. The mob, with stones and other objects, first broke windows of cars
and houses belonging to Roma and then set them on fire. The crowd also
destroyed and set fire to the haystacks, farming and other machines, animal
feed sheds, stables, as well as all other objects belonging to the Roma.
They hurled explosive devices and "Molotov" cocktails that they had prepared
beforehand, and threw burning cloths and foam rubbers into houses through
the broken windows. Shots and explosions could be heard amid the sounds of
destruction. At the same time, valuables were looted and cattle slaughtered.
The pogrom endured unhindered for hours.
2.8 Throughout the course of this pogrom, police officers present failed to
act in accordance with their legal obligations. Shortly after the attack
began, rather than intervening to halt the violence, these officers simply
moved their police car to a safe distance and reported to their superior
officer. As the violence and destruction unfolded, police officers did no
more than feebly seek to persuade some of the attackers to calm down pending
a final decision of the Municipal Assembly with respect to a popular request
to evict Roma from the Bozova Glavica settlement.
2.9 The outcome of the anti-Roma rage was that the whole settlement was
levelled and all properties belonging to its Roma residents burnt or
completely destroyed. Although the police did nothing to halt the
destruction of the Roma settlement, they did ensure that the fire did not
spread to any of the surrounding buildings, which belonged to the non-Roma.
2.10 The police and the investigating magistrate of the Basic Court in
Danilovgrad subsequently drew up an on-site investigation report regarding
the damage caused by those who took part in the pogrom.
2.11 Official police documents, as well as statements given by a number of
police officers and other witnesses alike, both before the court and in the
initial stage of the investigation, indicate that the following non-Roma
residents of Danilovgrad were among those who took part in the destruction
of the Bozova Glavica Roma settlement: Veselin Popovic, Dragisa Makocevic,
Gojko Popovic, Bosko Mitrovic, Joksim Bobicic, Darko Janjusevic, Vlatko
Cacic, Radojica Makocevic.
2.12 Moreover, there is evidence that police officers Miladin Dragas, Rajko
Radulovic, Dragan Buric, Djordjije Stankovic and Vuk Radovic were all
present as the violence unfolded and did nothing or not enough to protect
the Roma residents of Bozova Glavica or their property.
2.13 Several days following the incident, the debris of the Roma settlement
was completely cleared away by heavy construction machines of the Public
Utility Company. All traces of the existence of the Roma in Danilovgrad were
obliterated.
2.14 Following the pogrom, and pursuant to the relevant domestic
legislation, on 17 April 1995, the Podgorica Police Department filed a
criminal complaint with the Basic Public Prosecutor's Office in Podgorica.
The complaint alleged that a number of unknown perpetrators had committed
the criminal offence of causing public danger under article 164 of the
Montenegrin Criminal Code and, inter alia, explicitly stated that there are
"reasonable grounds to believe that, in an organized manner and by using
open flames ... they caused a fire to break out ... on 15 April 1995 ...
which completely consumed dwellings ... and other propert[ies] belonging to
persons who used to reside in ... [the Bozova Glavica] settlement".
2.15 On 17 April 1995 the police brought in 20 individuals for questioning.
On 18 April 1995, a memorandum was drawn up by the Podgorica Police
Department which quoted the statement of Veselin Popovic as follows: "... I
noticed flames in a hut which led me to conclude that the crowd had started
setting fire to huts so I found several pieces of foam rubber which I lit
with a lighter I had on me and threw them, alight, into two huts, one of
which caught fire."
2.16 On the basis of this testimony and the official police memorandum, the
Podgorica Police Department ordered, on 18 April 1995, that Veselin Popovic
be remanded into custody, on the grounds that there were reasons to believe
that he had committed the criminal offence of causing public danger in the
sense of article 164 of the Montenegrin Criminal Code.
2.17 On 25 April 1995, and with respect to the incident at the origin of
this complaint, the Public Prosecutor instituted proceedings against one
person only - Veselin Popovic.
2.18 Veselin Popovic was charged under article 164 of the Montenegrin
Criminal Code. The same indictment charged Dragisa Makocevic with illegally
obtaining firearms in 1993 - an offence unrelated to the incident at issue
notwithstanding the evidence implicating him in the destruction of the Roma
Bozova Glavica settlement.
2.19 Throughout the investigation, the investigating magistrate of the Basic
Court of Danilovgrad heard a number of witnesses all of whom stated that
they had been present as the violence unfolded but were not able to identify
a single perpetrator. On 22 June 1995, the investigating magistrate of the
Basic Court of Danilovgrad heard officer Miladin Dragas. Contrary to the
official memorandum he had personally drawn up on 16 April 1995, officer
Dragas now stated that he had not seen anyone throwing an inflammable
device, nor could he identify any of the individuals involved.
2.20 On 25 October 1995, the Basic Public Prosecutor in Podgorica requested
that the investigating magistrate of the Basic Court of Danilovgrad
undertake additional investigation into the facts of the case. Specifically,
the prosecutor proposed that new witnesses be heard, including officers from
the Danilovgrad Police Department who had been entrusted with protecting the
Bozova Glavica Roma settlement. The investigating magistrate of the Basic
Court of Danilovgrad then heard the additional witnesses, all of whom stated
that they had seen none of the individuals who had caused the fire. The
investigating magistrate took no further action.
2.21 Due to the "lack of evidence", the Basic Public Prosecutor in Podgorica
dropped all charges against Veselin Popovic on 23 January 1996. On 8
February 1996, the investigating magistrate of the Basic Court of
Danilovgrad issued a decision to discontinue the investigation. From
February 1996 up to and including the date of filing of this complaint, the
authorities took no further steps to identify and/or punish those
individuals responsible for the incident at issue - "civilians" and police
officers alike.
2.22 In violation of domestic legislation, the complainants were not served
with the court decision of 8 February 1996 to discontinue the investigation.
They were thus prevented from assuming the capacity of a private prosecutor
and to continue with the prosecution of the case.
2.23 Even prior to the closing of the proceedings, on 18 and 21 September
1995, the investigating magistrate, while hearing witnesses (among them a
number of the complainants), failed to advise them of their right to assume
the prosecution of the case in the event that the Public Prosecutor should
decide to drop the charges. This contravened domestic legislation which
explicitly provides that the Court is under an obligation to advise ignorant
parties of avenues of legal redress available for the protection of their
interests.
2.24 On 6 September 1996, all 71 complainants filed a civil claim for
damages, pecuniary and non-pecuniary, with the first instance court in
Podgorica - each plaintiff claiming approximately US$ 100,000. The pecuniary
damages claim was based on the complete destruction of all properties
belonging to the plaintiffs, while the non-pecuniary damages claim was based
on the pain and suffering of the plaintiffs associated with the fear they
were subjected to, and the violation of their honour, reputation, freedom of
movement and the right to choose their own place of residence. The
plaintiffs addressed these claims against the Republic of Montenegro and
cited articles 154, 180 (1), 200, and 203 of the Federal Law on Obligations.
More than five years after the submission of their claim, the civil
proceedings for damages are still pending.
2.25 On 15 August 1996, eight of the Danilovgrad Roma, all of them among the
complainants in the instant case, who were dismissed by their employers for
failing to report to work, filed a law suit requesting that the court order
their return to work. Throughout the proceedings, the plaintiffs argued that
their failure to appear at work during the relevant time period was
justified by their reasonable fear that their lives would have been
endangered had they come to work so soon after the incident. On 26 February
1997, the Podgorica first instance court rendered its decision dismissing
the claims of the plaintiffs on the grounds that they had been absent from
work for five consecutive days without justification. In doing so the court
cited article 75 paragraph 2 of the Federal Labour Code which inter alia
provides that "if a person fails to report to work for five consecutive days
without proper justification his employment will be terminated". On 11 June
1997, the plaintiffs appealed this decision and almost five months later, on
29 October 1997, the second instance court in Podgorica quashed the first
instance ruling and ordered a retrial. The reasoning underlying the second
instance decision was based on the fact that the plaintiffs had apparently
not been properly served with their employer's decision to terminate their
employment.
2.26 In the meantime, the case went again up to the Montenegrin Supreme
Court which ordered another retrial before the fist instance court in
Podgorica. The case is still pending.
2.27 The complainants, having been driven out of their homes and their
property having been completely destroyed, fled to the outskirts of
Podgorica, the Montenegrin capital, where during the first few weeks
following the incident they hid in parks and abandoned houses. Local Roma
from Podgorica supplied them with basic food and told them that groups of
angry non-Roma men had been looking for them in the Roma suburbs in
Podgorica. From this time on, the banished Danilovgrad Roma have continued
to live in Podgorica in abject poverty, makeshift shelters or abandoned
houses, and have been forced to work at the Podgorica city dump or to beg
for a living.
The Complaint
3.1 The complainants submit that the State party has violated articles 2,
paragraph 1 read in conjunction with article 1, 16, paragraph 1, and 12, 13,
14 taken alone or together with article 16, paragraph 1 of the Convention.
3.2 With regard to the admissibility of the complaint, and more particularly
the exhaustion of local remedies, the complainants submit that, given the
level of wrongs suffered, and alongside the jurisprudence of the European
Court of Human Rights, [FN1] only a criminal remedy would be effective in
the instant case. Civil and/or administrative remedies do not provide
sufficient redress in this case.
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[FN1] See Assenov v. Bulgaria, Judgement of 28 October 1998, paras. 102,
117; Aksoy v. Turkey, Judgement of 18 December 1996; Aydin v. Turkey,
Judgement of 29 September 1997; X and Y v. The Netherlands, 8 EHRR 235
(1985), paras. 21-30.
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3.3 The complainants note further that the authorities had the obligation to
investigate, or at least to continue their investigation if they considered
the available evidence insufficient. Moreover, even though they acknowledge
that they have never filed a criminal complaint against individuals
responsible for the pogrom, they contend that both the police and the
prosecuting authorities were sufficiently aware of the facts to initiate and
conduct the investigation ex officio. The complainants therefore conclude
that there is no effective remedy.
3.4 The complainants also note that since there is no effective remedy in
respect of the alleged breach of the Convention, the issue of exhaustion of
domestic remedies should be dealt with together with the merits of the case
since there is a claim of violation of articles 13 and 14 of the Convention.
3.5 Referring to a number of excerpts from NGO and governmental sources, the
complainants first request that the complaint be considered taking into
account the situation of the Roma in Yugoslavia as victims of systematic
police brutality and dire human rights situation in general.
3.6 The complainants allege that Yugoslav authorities have violated the
Convention under either article 2, paragraph 1 read in conjunction with
article 1, because, during the events described previously, the police stood
by and watched as the events unfolded, or article 16, paragraph 1 for the
same reasons. In this regard, the complainants consider that the
particularly vulnerable character of the Roma minority has to be taken into
account in assessing the level of ill-treatment that has been committed.
They suggest that "a given level of physical abuse is more likely to
constitute 'degrading or inhuman treatment or punishment' when motivated by
racial animus".
3.7 With regard to the fact that the acts have mostly been committed by
non-State actors, the complainants rely on a review of international
jurisprudence on the principle of "due diligence" and remind the current
state of international law with regard to "positive" obligations that are
incumbent on States. They submit that the purpose of the provisions of the
Convention is not limited to negative obligations for States parties but
include positive steps that have to be taken in order to avoid that torture
and other related acts are committed by private persons.
3.8 The complainants further contend that the acts of violence occurred with
the "consent or acquiescence" of the police whose duty under the law was to
secure their safety and afford them protection.
3.9 The complainants then allege a violation of article 12 read alone or, if
the acts committed do not amount to torture, taken together with article 16,
paragraph 1 because the authorities failed to conduct a prompt, impartial,
and comprehensive investigation capable of leading to the identification and
punishment of those responsible. Considering the jurisprudence of the
Committee against Torture, it is submitted that the State party had the
obligation to conduct "not just any investigation" but a proper
investigation, even in the absence of the formal submission of a complaint,
since they were in possession of abundant evidence. [FN2] The complainants
further suggest that the impartiality of the same investigation depends on
the level of independence of the body conducting it. In this case, it is
alleged that the level of independence of the investigative magistrate was
not sufficient.
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[FN2] See Encarnaci�n Blanco Abad v. Spain, 14 May 1998, CAT/C/20/D/59/1996,
para. 8.2; Henri Unai Parot v. Spain, 2 May 1995, CAT/C/14/D/6/1990.
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3.10 The complainants finally allege a violation of article 13 read alone
and/or taken together with article 16, paragraph 1, because "their right to
complain and to have [their] case promptly and impartially examined by [the]
competent authorities" was violated. They also allege a violation of article
14 read alone and/or taken together with article 16, paragraph 1, because of
the absence of redress and of fair and adequate compensation.
State Party's Observations on Admissibility
4. In a submission dated 9 November 1998, the State party contended that the
complaint was inadmissible because the case had been conducted according to
the Yugoslavian legislation and because all available legal remedies had not
been exhausted.
Comments by the Complainants
5. In a submission dated 20 September 2000, the complainants reiterated
their main arguments with regard to the admissibility of the complaint and
underlined that the State party had not explained what domestic remedies
would still be available which the complainants should still exhaust. In
addition, they consider that since the State party has failed to put forward
any other objections in that respect, it has in effect waived its right to
contest other admissibility criteria.
Decision on Admissibility
6. At its twenty-fifth session, the Committee considered the admissibility
of the complaint. The Committee ascertained, as it is required to do under
article 22, paragraph 5 (a) of the Convention, that the same matter had not
been and was not being examined under another procedure of international
investigation or settlement. Regarding the exhaustion of domestic remedies,
the Committee took note of the arguments made by the complainants and noted
that it had not received any argumentation or information from the State
party on this issue. Referring to rule 108, paragraph 7 of its Rules of
Procedure, the Committee declared the complaint admissible on 23 November
2000.
State Party's Observations on the Merits
7. Notwithstanding the Committee's call for observations on the merits,
transmitted by a note of 5 December 2000, and two reminders of 9 October
2001 and 11 February 2002, the State party has not made any further
submission.
Complainants' Additional Comments on the Merits
8.1 By a letter of 6 December 2001, the complainants transmitted to the
Committee additional information and comments on the merits of the case. In
the same submission, the complainants have transmitted detailed information
on different questions that were asked by the Committee, namely, on the
presence and behaviour of the police during the events, the actions that
have been taken towards the local population, the relations between the
different ethnic groups, and their respective titles of property.
8.2 With regard to the presence and behaviour of the police during the
events and the actions that have been taken towards the local population,
the complainants give a detailed description of the facts referred to in
paragraphs 2.1 to 2.29 above.
8.3 With regard to the general situation of the Roma minority in the Federal
Republic of Yugoslavia, the complainants contend that the situation has
remained largely unchanged after the departure of President Milosevic.
Referring to a report that was earlier submitted by the Humanitarian Law
Center to the Committee against Torture and to the 2001 Annual Report of
Human Rights Watch, the complainants submit that the situation of Roma in
the State party is today very preoccupying and emphasize that there have
been a number of serious incidents against Roma over the last few years
while no significant measures to find or prosecute the perpetrators or to
compensate the victims have been taken by the authorities.
8.4 With regard to the property titles, the complainants explain that most
were lost or destroyed during the events of 14 and 15 April 1995 and that
this was not challenged by the State party's authorities during the civil
proceedings.
8.5 The complainants then make a thorough analysis of the scope of
application of articles 1, paragraph 1, and 16, paragraph 1, of the
Convention. They first submit that the European Court of Human Rights has
ascertained in Ireland v. United Kingdom and in the Greek case, that article
3 of the European Convention on Human Rights also covered "the infliction of
mental suffering by creating a state of anguish and stress by means other
than bodily assault". [FN3]
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[FN3] Report of 5 November 1969, Yearbook XII; the Greek case (1969), p.
461.
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8.6 Moreover, the complainants reiterate that the assessment of the level of
ill-treatment also depends on the vulnerability of the victim and should
thus also take into account the sex, age, state of health or ethnicity of
the victim. As a result, the Committee should consider the Romani ethnicity
of the victims in their appreciation of the violations committed,
particularly in Yugoslavia. In the same line, they reiterate that a given
level of physical abuse is more likely to constitute a treatment prohibited
by article 16 of the Convention if it is motivated by racial considerations.
8.7 Concerning the devastation of human settlements, the complainants refer
to two cases that were decided by the European Court of Human Rights and
whose factual circumstances were similar to the one at issue. [FN4] The
European Court considered in both cases that the burning and destruction of
homes as well as the eviction of their inhabitants from the village
constituted acts that were contrary to article 3 of the European Convention.
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[FN4] Mentes and Others v. Turkey, 58/1996/677/867 and Selcuk and Asker v.
Turkey, 12/1997/796/998-999.
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8.8 Concerning the perpetrators of the alleged violations of articles 1 and
16 of the Convention, the complainants submit that although only a public
official or a person acting in an official capacity could be the perpetrator
of an act in the sense of either of the above provisions, both provisions
state that the act of torture or of other ill-treatment may also be
inflicted with the consent or acquiescence of a public official. Therefore,
while they do not dispute that the acts have not been committed by the
police officers or that the latter have not instigated them, the
complainants consider that they have been committed with their consent and
acquiescence. The police were informed of what was going to happen on 15
April 1995 and were present on the scene at the time when the pogrom took
place but did not prevent the perpetrators from committing their wrongdoing.
8.9 With regard to the positive obligations of States to prevent and
suppress acts of violence committed by private individuals, the complainants
refer to General Comment 20 of the Human Rights Committee on article 7 of
the International Covenant on Civil and Political Rights according to which
this provision covers acts that are committed by private individuals, which
implies a duty for States to take appropriate measures to protect everyone
against such acts. The complainants also refer to the United Nations Code of
Conduct for Law Enforcement Officials, the Basic Principles on the Use of
Force and Firearms by law Enforcement Officials and the Council of Europe's
Framework Convention for the Protection of National Minorities, which have
provisions with a similar purpose.
8.10 On the same issue, the complainants cite a decision of the
Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras
according to which
[a]n illegal act which violates human rights and which is initially not
directly imputable to a State (for example, because it is the act of a
private person or because the person responsible has not been identified)
can lead to international responsibility of the State, not because of the
act itself but because of the lack of due diligence to prevent the violation
or to respond to it as required by the Convention. [FN5]
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[FN5] Velasquez Rodriguez v. Honduras, judgment of 29 July 1988, p. 291.
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Similarly, the European Court of Human Rights has addressed the issue in
Osman v. United Kingdom and stated that
[a]rticle 2 of the Convention may also imply in certain well-defined
circumstances a positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the
criminal acts of another individual ... [W]here there is an allegation that
the authorities have violated their positive obligation to protect the right
to life in the context of their above-mentioned duty to prevent and suppress
offences against the person ... it must be established to its satisfaction
that the authorities knew or ought to have known at the time of the
existence of a real and immediate risk to the life of an identified
individual or individuals from the criminal acts of a third party and that
they failed to take measures within the scope of their powers which, judged
reasonably, might have been expected to avoid that risk ... [H]aving regard
to the nature of the right protected by article 2, a right fundamental in
the scheme of the Convention, it is sufficient for an applicant to show that
the authorities did not do all that could be reasonably expected of them to
avoid a real and immediate risk to life of which they have or ought to have
knowledge. [FN6]
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[FN6] Osman v. United Kingdom, paras. 115-116.
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8.11 The complainants further contend that the extent of the obligation to
take preventive measures may increase with the immediacy of the risk to
life. In support of this argument, they extensively rely on the judgement of
the European Court of Human Rights in Mahmut Kaya v. Turkey where the Court
laid down the obligations of States as follows: first, States have an
obligation to take every reasonable step in order to prevent a real and
immediate threat to the life and integrity of a person when the actions
could be perpetrated by a person or group of persons with the consent or
acquiescence of public authorities; second, States have an obligation to
provide an effective remedy, including a proper and effective investigation,
with regard to actions committed by non-State actors undertaken with the
consent or acquiescence of public authorities.
8.12 The complainants also underline that the obligation of the States under
the European Convention on Human Rights goes well beyond mere criminal
sanctions for private individuals who have committed acts contrary to
article 3 of the said Convention. In Z. v. United Kingdom, the European
Commission on Human Rights held that
the authorities were aware of the serious ill-treatment and neglect suffered
by the applicants over a period of years at the hands of their parents and
failed, despite the means reasonably available to them, to take any
effective steps to bring it to an end ... [The State had therefore] failed
in its positive obligation under article 3 of the Convention to provide the
applicants with adequate protection against inhuman and degrading treatment.
[FN7]
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[FN7] Z. v. United Kingdom, para. 98.
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8.13 In conclusion, the complainants submit that "they were indeed subjected
to acts of community violence inflicting on them great physical and mental
suffering amounting to torture and/or cruel, inhuman and degrading treatment
or punishment". They further state that "this happened for the purpose of
punishing them for an act committed by a third person (the rape of S.B.),
and that the community violence (or rather the racist pogrom) at issue took
place in the presence of, and thus with the 'consent or acquiescence' of,
the police whose duty under law was precisely the opposite - to secure their
safety and afford them protection".
8.14 Finally, concerning the absence of observations by the State party on
the merits, the complainants refer to rule 108 (6) of the Committee's rules
of procedure and consider that such principle should be equally applicable
during the phase of the merits. Relying on the jurisprudence of the European
Court of Human Rights and of the Human Rights Committee, the complainants
further argue that, by not contesting the facts or the legal arguments
developed in the complaint and further submissions, the State party has
tacitly accepted the claims at issue.
Issues and Proceedings Before the Committee
9.1 The Committee has considered the complaint in the light of all
information made available to it by the parties concerned, in accordance
with article 22, paragraph 4, of the Convention. Moreover, in the absence of
any submission from the State party following the Committee's decision on
admissibility, the Committee relies on the detailed submissions made by the
complainants. The Committee recalls in this respect that a State party has
an obligation under article 22, paragraph 3, of the Convention to cooperate
with the Committee and to submit written explanations or statements
clarifying the matter and the remedy, if any, that may have been granted.
9.2 As to the legal qualification of the facts that have occurred on 15
April 1995, as they were described by the complainants, the Committee first
considers that the burning and destruction of houses constitute, in the
circumstances, acts of cruel, inhuman or degrading treatment or punishment.
The nature of these acts is further aggravated by the fact that some of the
complainants were still hidden in the settlement when the houses were burnt
and destroyed, the particular vulnerability of the alleged victims and the
fact that the acts were committed with a significant level of racial
motivation. Moreover, the Committee considers that the complainants have
sufficiently demonstrated that the police (public officials), although they
had been informed of the immediate risk that the complainants were facing
and had been present at the scene of the events, did not take any
appropriate steps in order to protect the complainants, thus implying
"acquiescence" in the sense of article 16 of the Convention. In this
respect, the Committee has reiterated on many instances 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" (concluding observations on the initial report of Slovakia,
CAT A/56/44 (2001), paragraph 104; see also concluding observations on the
second periodic report of the Czech Republic, CAT A/56/44 (2001), paragraph
113 and concluding observations on the second periodic report of Georgia,
CAT A/56/44 (2001), paragraph 81). Although the acts referred to by the
complainants were not committed by public officials themselves, the
Committee considers that they were committed with their acquiescence and
constitute therefore a violation of article 16, paragraph 1, of the
Convention by the State party.
9.3 Having considered that the facts described by the complainants
constitute acts within the meaning of article 16, paragraph 1 of the
Convention, the Committee will analyse other alleged violations in the light
of that finding.
9.4 Concerning the alleged violation of article 12 of the Convention, the
Committee, as it has underlined in previous cases (see inter alia
Encarnacion Blanco Abad v. Spain, Case No. 59/1996, decided on 14 May 1998),
is of the opinion 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 participation of at least
several hundred non-Roma in the events of 15 April 1995 and the presence of
a number of police officers both at the time and at the scene of those
events, no person nor any member of the police forces has been tried by the
courts of the State party. In these circumstances, the Committee is of the
view that the investigation conducted by the authorities of the State party
did not satisfy the requirements of article 12 of the Convention.
9.5 Concerning the alleged violation of article 13 of the Convention, the
Committee considers that the absence of an investigation as described in the
previous paragraph also constitutes a violation of article 13 of the
Convention. Moreover, the Committee is of the view that the State party's
failure to inform the complainants of the results of the investigation by,
inter alia, not serving on them the decision to discontinue the
investigation, effectively prevented them from assuming "private
prosecution" of their case. In the circumstances, the Committee finds that
this constitutes a further violation of article 13 of the Convention.
9.6 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. 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 complainants to obtain redress and to provide them
with fair and adequate compensation.
10. The Committee, acting under article 22, paragraph 7, of the Convention,
is of the view that the facts before it disclose a violation of articles 16,
paragraph 1, 12 and 13 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
11. 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 15 April 1995, prosecute and punish the persons
responsible for those acts and provide the complainants 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.
ANNEX
(CASE NO. 161/1999 - HAJRIZI DZEMAJL ET AL. V. YUGOSLAVIA)
INDIVIDUAL OPINION BY MR. FERNANDO MARI�O AND MR. ALEJANDRO GONZ�LEZ POBLETE
UNDER RULE 113 OF THE RULES OF PROCEDURE
We are issuing this opinion to emphasize that, in our judgement, the illegal
incidents for which the Yugoslav State is responsible constitute "torture"
within the meaning of article 1, paragraph 1, of the Convention, not merely
"cruel, inhuman or degrading treatment" as covered by article 16. The
failure of the State authorities to react to violent evictions, forced
displacement and the destruction of homes and property by individuals
amounts to unlawful acquiescence which, in our judgement, violates article
1, paragraph 1, particularly when read in conjunction with article 2,
paragraph 1, of the Convention.
We believe that, in fact, the suffering visited upon the victims was severe
enough to qualify as "torture", because:
(a) The inhabitants of the Bozova Glavica settlement were forced to abandon
their homes in haste given the risk of severe personal and material harm;
(b) Their settlement and homes were completely destroyed. Basic necessities
were also destroyed;
(c) Not only did the resulting forced displacement prevent them from
returning to their original settlement, but many members of the group were
forced to live poorly, without jobs or fixed places of abode;
(d) Thus displaced and wronged, these Yugoslav nationals have still not
received any compensation, seven years after the fact, although they have
approached the domestic authorities;
(e) All the inhabitants who were violently displaced belong to the Romani
ethnic group, which is known to be especially vulnerable in many parts of
Europe. In view of this, States must afford them greater protection;
The above amounts to a presumption of "severe suffering", certainly "mental"
but also inescapably "physical" in nature even if the victims were not
subjected to direct physical aggression.
We thus consider that the incidents at issue should have been categorized as
"torture".
(Signed):
Fernando Mari�o
Alejandro Gonz�lez Poblete
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