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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 24 November 2004,
Having concluded its consideration of complaint No. 207/2002, submitted to
the Committee against Torture by Mr. Dragan Dimitrijevic under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Having taken into account all information made available to it by the
complainant,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1. The complainant is Mr. Dragan Dimitrijevic, a Serbian citizen of Romani
origin born on 7 March 1977. He claims to have been the victim of violations
by Serbia and Montenegro of articles 2, para.1 read in conjunction with
article 1; article 16, para.1; and articles 12, 13 and 14 taken alone and/or
together with article 16, para.1 of the Convention. He is represented by the
non-governmental organizations Humanitarian Law Center, based in Belgrade,
and European Roma Rights Center, based in Budapest.
The Facts as Submitted by the Complainant
2.1 The complainant was arrested on 27 October 1999 at around 11 a.m. at his
home in Kragujevac, Serbia, in connection with the investigation of a crime.
He was taken to the local police station located in Svetozara Markovica
Street. Upon arrival he was handcuffed to a radiator and beaten up by
several police officers, some of whom the complainant knew by their first
names or their nicknames. The police officers kicked and punched him all
over his body while insulting his ethnic origins and cursing his "gypsy
mother". One of the officers struck the complainant with a big metal bar.
Some time later the officers unfastened the complainant from the radiator
and handcuffed him to a bicycle. Then they continued punching and beating
him with their nightsticks and the metal bar. At one point the complainant
began bleeding from his ears, despite which the beating continued until he
was released at about 4.30 p.m.
2.2 As a result of the ill-treatment the author had to stay in bed for
several days. He sustained injuries on both arms and legs, an open wound on
the back of his head and numerous injuries all over his back. For several
days following the incident he bled from his left ear and his eyes and lips
remained swollen. Fearing reprisals by the police the complainant did not go
to hospital for treatment. Consequently, there is no official medical
certificate documenting the injuries referred to above. The complainant,
however, has provided the Committee with written statements from his mother,
his sister and a cousin indicating that the he was in good health when he
was arrested and severely injured at the time of his release.
2.3 On 31 January 2000, the complainant, through counsel, filed a criminal
complaint with the Kragujevac Municipal Public Prosecutor's Office alleging
that he had been the victim of the crimes of slight bodily harm and civil
injury, as provided for under articles 54(2) and 66 of the Serbian Criminal
Code respectively. As there was no response for almost six months following
the submission of the complaint, the complainant wrote a letter to the
Public Prosecutor's Office on 26 July 2000 requesting an update on the
status of the case and invoking, in particular, article 12 of the
Convention. By the time the complainant submitted his case to the Committee,
i.e. more than 23 months after the submission of the criminal complaint, no
response had been received from the Public Prosecutor.
2.4 The complainant claims that he has exhausted available domestic criminal
remedies and refers to international jurisprudence according to which only a
criminal remedy can be considered effective and sufficient in addressing
violations of the kind at issue in the instant case. He also refers to the
relevant provisions of the State Party's Criminal Procedure Code (CPC)
setting forth the obligation of the Public Prosecutor to undertake measures
necessary for the investigation of crimes and the identification of the
alleged perpetrators.
2.5 Furthermore, under article 153 (1) of the CPC, if the public prosecutor
decides that there is no basis for the institution of a formal judicial
investigation he must inform the complainant, who can then exercise his
prerogative to take over the prosecution in the capacity of a "private
prosecutor". However, the CPC sets no time limit in which the public
prosecutor must decide whether or not to request a formal judicial
investigation. In the absence of such decision the victim cannot take over
the prosecution of the case on his own behalf. Prosecutorial inaction
following a complaint filed by the victim therefore amounts to an
insurmountable impediment in the exercise of the victim's right to act as a
private prosecutor and to have his case heard before a court. Finally, even
if there were a legal possibility for the victim himself to file for a
formal judicial investigation because of the inaction of the public
prosecutor, this would in effect be unfeasible if, as in the instant case,
the police and the public prosecutor had failed to identify all of the
alleged perpetrators beforehand. Article 158 (3) of the CPC provides that
the person against whom a formal judicial investigation is requested must be
identified by name, address and other relevant personal data. A contrario,
such a request cannot be filed if the alleged perpetrator is unknown.
The Complaint
3.1 The complainant claims that the acts described constitute a violation of
several provisions of the Convention, in particular articles 2, para.1 read
in conjunction with article 1; article 16, para.1; and articles 12, 13 and
14 taken alone and/or together with article 16, para.1. Such acts were
perpetrated with a discriminatory motive and for the purpose of extracting a
confession or otherwise intimidating and/or punishing him. He also submits
that his allegations should be interpreted in the context of the serious
human rights situation in the State party and, in particular, the systematic
police brutality to which Roma and others are subjected to. In evaluating
his claim the Committee should take into account his Romani ethnicity and
the fact that his membership in a historically disadvantaged minority group
renders him particularly vulnerable to degrading treatment. All else being
equal, 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 than when racial considerations
are absent.
3.2 With respect to article 12 read alone or taken together with article 16,
para. 1 of the Convention, the complainant claims that the State party's
authorities failed to conduct a prompt, impartial and comprehensive
investigation into the incident at issue, notwithstanding ample evidence
that an act of torture and/or cruel, inhuman and degrading treatment or
punishment had been committed. Public prosecutors seldom institute criminal
proceedings against police officers accused of violence and/or misconduct
even though such cases are in the category of those that are officially
prosecuted by the State. When the victims themselves or NGOs on their behalf
file complaints against police misconduct, public prosecutors as a rule fail
to initiate proceedings. They generally restrict themselves to requesting
information from the police authorities and, when none is forthcoming, they
take no further action. Judicial dilatoriness in proceedings involving
police brutality often results in the expiration of the time period
envisaged by law for the prosecution of the case. Notwithstanding the
proclaimed principle of the independence of the judiciary, practice makes
clear that public prosecutor's offices do not operate on this principle and
that both they and the courts are not independent of the agencies and
offices of the Ministry of Internal Affairs. This is especially true with
respect to incidents of police misconduct.
3.3 With respect to article 13 of the Convention the complainant 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. In view of the
fact that he has received no redress for the violations at issue he
concludes that his rights under article 13 taken alone and/or in conjunction
with article 16, para.1 of the Convention have been violated.
3.4 The complainant further claims that his rights under article 14 taken
alone and/or in conjunction with article 16, para. 1, of the Convention have
been violated. By failing to provide him with a criminal remedy the State
Party has barred him from obtaining "fair and adequate compensation" in a
civil lawsuit, "including the means for as full a rehabilitation as
possible." Pursuant to domestic law, the complainant had the possibility of
seeking compensation by way of two different procedures: 1) criminal
proceedings, under article 103 of the Criminal Procedure Code, that should
have been instituted on the basis of his criminal complaint, or 2) in a
civil action for damages under articles 154 and 200 of the Law on
Obligations. Since no formal criminal proceedings followed as a result of
his complaint with the Public Prosecutor, the first avenue remained closed
to him. As regards the second avenue, the author filed no civil action for
compensation given that it is standard practice of the State party's courts
to suspend civil cases for damages arising out of criminal offences until
prior completion of the respective criminal proceedings. Had the complainant
decided to sue for damages immediately following the incident, he would have
faced another insurmountable procedural impediment caused by the inaction of
the public prosecutor office. Namely, articles 186 and 106 of the Civil
Procedure Code stipulate that both parties to a civil action, the plaintiff
and the respondent, must be identified by name, address and other relevant
personal data. Since the complainant to date remains unaware of this
information and as it was exactly the duty of the public prosecutor's office
to establish these facts, instituting a civil action for compensation would
have clearly been procedurally impossible and thus rejected by the civil
court.
State Party's Submissions on the Admissibility and the Merits of the
Complaint
4. The complaint with its accompanying documents was transmitted to the
State party on 17 April 2002. Since the State party did not respond to the
Committee's request, under rule 109 of the rules of procedure, to submit
information and observations in respect of the admissibility and merits of
the complaint within six months, a reminder was addressed to it on 12
December 2002. On 20 October 2003, the State party informed the Committee
that the Ministry on Human and Minority Rights was still in the process of
collecting data from the relevant authorities with a view to responding on
the merits of the complaint. Such response, however, has not been received
by the Committee.
Issues and Proceedings Before the Committee
5.1 The Committee notes the State party's failure to provide information
with regard to the admissibility or merits of the complaint. In the
circumstances, the Committee, acting in accordance with rule 109, paragraph
7 of its rules of procedure, is obliged to consider the admissibility and
the merits of the complaint in the light of the available information, due
weight being given to the complainant's allegations to the extent that they
have been sufficiently substantiated.
5.2 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not the complaint is admissible under
article 22 of the Convention. In the present case the Committee has
ascertained, as it is required to do under article 22, paragraph 5 (a), of
the Convention, that the same matter has not been and is not being examined
under another procedure of international investigation or settlement. With
respect to the exhaustion of domestic remedies, the Committee took note of
the information provided by the complainant about the criminal complaint
which he filed with the public prosecutor. The Committee considers that the
insurmountable procedural impediment faced by the complainant as a result of
the inaction of the competent authorities rendered the application of a
remedy that may bring effective relief to the complainant highly unlikely.
In the absence of pertinent information from the State party the Committee
concludes that the domestic proceedings, if any, have been unreasonably
prolonged. With reference to article 22, paragraph 4 of the Convention and
rule 107 of the Committee's rules of procedure the Committee finds no other
obstacle to the admissibility of the complaint. Accordingly, it declares the
complaint admissible and proceeds to its examination on the merits.
5.3 The complainant alleges violations by the State party of article 2,
para.1 in connection with article 1, and of article 16, para.1 of the
Convention. The Committee notes in this respect the description made by the
complainant of the treatment he was subjected to while in detention, which
can be characterized as severe pain or suffering intentionally inflicted by
public officials in the context of the investigation of a crime, and the
written testimonies of witnesses to his arrest and release that the
complainant has provided. The Committee also notes that the State party has
not contested the facts as presented by the complainant, which took place
more than five years ago. In the circumstances the Committee concludes that
due weight must be given to the complainant's allegations and that the
facts, as submitted, constitute torture within the meaning of article 1 of
the Convention.
5.4 Concerning the alleged violation of articles 12 and 13 of the
Convention, the Committee notes that the public prosecutor never informed
the complainant about whether an investigation was being or had been
conducted after the criminal complaint was filed on 31 January 2000. It also
notes that the failure to inform the complainant of the results of such
investigation, if any, effectively prevented him from pursuing "private
prosecution" of his case before a judge. In these circumstances the
Committee considers that the State party has failed to comply with its
obligation, under article 12 of the Convention, to carry out a prompt and
impartial investigation wherever there is reasonable ground to believe that
an act of torture has been committed. The State party also failed to comply
with its obligation, under article 13, to ensure the complainant's right to
complain and to have his case promptly and impartially examined by the
competent authorities.
5.5 As for the alleged violation of article 14 of the Convention the
Committee notes the complainant's allegations that the absence of criminal
proceedings deprived him of the possibility of filing a civil suit for
compensation. In view of the fact that the State party has not contested
this allegation and given the passage of time since the complainant
initiated legal proceedings at the domestic level, the Committee concludes
that the State party has also violated its obligations under article 14 of
the Convention in the present case.
6. The Committee, acting under article 22, paragraph 7, of the Convention,
is of the view that the facts before it disclose a violation of articles 2,
paragraph 1 in connection with article 1; 12;,13; and 14 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
7. The Committee urges the State party to conduct a proper investigation
into the facts alleged by the complainant and, in accordance with rule 112,
paragraph 5, of its rules of procedure, to inform it, within 90 days from
the date of the transmittal of this decision, of the steps taken in response
to the views expressed above.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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