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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 3 May 2005,
Having concluded its consideration of complaint No. 171/2000, submitted to
the Committee against Torture by Mr. Jovica Dimitrov 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
1.1 The complainant is Jovica Dimitrov, a Serbian citizen of Roma origin,
residing in Serbia and Montenegro. He claims to be a victim of violations of
article 2, paragraph 1 read in connection with articles 1; 16, paragraph, 1;
and articles 12, and 13 and 14 taken alone and/or read in connection with
article 16, paragraph 1, by Serbia and Montenegro, of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by the Humanitarian Law Center (HLC), based in Belgrade and by
the European Roma Rights Center (ERRC), based in Budapest, both
non-governmental organizations.
The Facts as Presented by the Complainant:
2.1 In the early hours of 5 February 1996, the complainant was arrested at
his home in Novi Sad, in the Serbian province of Vojvodina, and taken to the
police station in Kraljevica Marka Street. The arresting officer presented
no arrest warrant nor did he inform the complainant why he was being taken
into custody. The complainant himself made no attempt to resist arrest.
During the ensuing interrogation, the arresting officer struck the
complainant repeatedly with a baseball bat and a steel cable, and kicked and
punched him all over his body. The complainant lost consciousness on several
occasions. Apart from brief breaks, the ill-treatment lasted from 6.30 a.m.
to 7.30 p.m., leaving the complainant with numerous injuries on his buttocks
and left shoulder. After 7.30 p.m., the complainant was released, again
without being given an arrest warrant or a release order; nor was he told of
the reason for his arrest and detention. According to the complainant, this
was in contravention of articles 192 (3), 195 and 196 (3) of the Criminal
Procedure Code (CPC), which deals with police powers of arrest and
detention.
2.2 Following his release, the complainant returned home and spent the next
10 days in bed, being nursed by his sister. On 9 February 1996, he went to
see a doctor who examined him and ordered continued bed rest. He prepared a
report describing his injuries as follows: "Left upper arm: livid-red and
brown discoloration 10 x 8 cm with slightly raised red edges; right shoulder
blade and shoulder: livid-red discolorations in the form of stripes 3 x 11
cm, and 4 x 6 cm on the shoulders; gluteal part of the body: blue-livid
discolorations of the size of a man's palm on both sides; outside of the
left mid-thigh: distinct red stripe 3x5 cm; inside of right knee: light blue
swelling 5x5 cm; area around ankle and soles (both legs): slight, light blue
swelling." The conclusions and opinion was that the "Patient should be
referred to a neurologist and a laboratory for tests." The complainant also
provides a statement from his sister, who states that he was arrested at
6.30 in the morning on 5 February, held in detention until 7.30 pm, and that
upon return his face was swollen, and he had bruises on his shoulders, back,
legs and over his kidneys. There was clotted blood on his legs and his
backside was dark blue all over. He had to stay in bed for ten days and put
on compresses, and take pills for the pain. He told her that he had been
beaten with a steel wire and baseball bats and fainted from the beating.
2.3 Fearing possible reprisals by police and not fully aware of his legal
rights, the complainant did not file a criminal complaint with the Novi Sad
Municipal Public Prosecutor's Office until 7 November 1996, in which he
alleged that an unidentified police officer had committed the crime of
extracting a statement by force in violation of 65 of the Serbian Criminal
Code (SCC). According to the complainant, he had been arrested several times
prior to the incident in question and had been interrogated about several
unrelated criminal offenses. The complainant considers that the
ill-treatment to which he was subjected was intended to obtain his
confession for one or more of these crimes.
2.4 The complaint was immediately registered by the Public Prosecutor's
Office. But only on 17 September 1999 (more than three and a half years (43
months) following the incident at issue and 34 months since the complainant
filed the criminal complaint) did the Public Prosecutor's Office request the
investigating judge of the Novi Sad Municipal Court to undertake preliminary
"investigatory actions". Such investigation precedes the possible subsequent
institution of formal judicial investigations, for which the identity of the
suspect must be ascertained. The investigating judge of the Novi Sad
Municipal Court accepted the public prosecutor's request and opened a case
file. Since that date, the prosecuting authorities have taken no concrete
steps, with a view to identifying the police officer concerned. According to
the complainant, if the intent of the investigating judge was really to
identify the police in question, he could have heard other police officers
present in the police station at the time of the abuse, and especially the
on-duty shift commander who must have known the names of all officers
working that particular shift. Finally, the complainant indicated in his
criminal complaint that during his detention in the police station he was
taken to the Homicide Division, which in and of itself could have served as
one of the starting points for an official investigation into the incident
at issue. No investigation has been undertaken.
2.5 According to the complainant, under article 153 (1) of the CPC, if the
public prosecutor finds on the basis of the evidence, that there is
reasonable suspicion that a certain person has committed a criminal offence,
he should request the investigating judge to institute a formal judicial
investigation further to articles 157 and 158 of the CPC. If he decides that
there is no bases for the institution of a formal judicial investigation, he
should inform the complainant of this decision, who can then exercise his
prerogative to take over the prosecution of the case on his own behalf �
i.e. in his capacity of a "private prosecutor". As the Public Prosecutor
failed formally to dismiss his complaint, the complainant concludes that he
was denied the right personally to take over the prosecution of the case. As
the CPC sets no time limit in which the public prosecutor must decide
whether or not to request a formal judicial investigation into the incident,
this legal provision is open to abuse.
The Complaint:
3.1 The complainant claims that he has exhausted all available criminal
domestic remedies by having filed a complaint with the Public Prosecutor's
Office. In the complainant's view, civil/administrative remedies would not
provide sufficient redress in his case. [FN1]
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[FN1] He refers to international jurisprudence to support this claim.
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3.2 The complainant submits that the allegations of violations of the
Convention should be interpreted against a backdrop of systematic police
brutality to which the Roma and others in the State party are subjected, as
well as the generally poor human rights situation in the State party. [FN2]
He claims a violation of article 2, paragraph 1, read in connection with
articles 1, and 16, paragraph 1, for having been subjected to ill-treatment
for the purposes of obtaining a confession, or otherwise intimidating or
punishing him. [FN3]
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[FN2] In this context, the complainant provides reports from various
national and international non- governmental organisations and the
Concluding Observations of CAT of 1998, A/54/44,paras.35-52.
[FN3] To support his argument that the treatment he received was torture,
cruel, inhuman and/or degrading treatment or punishment, he refers to the
United Nations Code of Conduct for Law Enforcement Officials, the United
Nations Body of Principles for the protection of All Persons under Any Form
of Detention or Imprisonment, the United Nations Basic Principles on the Use
of Force and Firearms by Law Enforcement Officials, the Council of Europe's
Declaration on the Police and the European Court of Human Rights.
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3.3 He claims a violation of article 12 alone and/or read in connection with
16, paragraph 1, as the State party's authorities failed to conduct an
official investigation into the incident, which gave rise to this complaint
for more than three and a half years following the incident in question, and
almost 34 months since the complainant filed a criminal complaint with the
Public Prosecutor's Office. To date, the officer remains unidentified and
consequently the institution of formal judicial investigations is
impossible. Since the public prosecutor's office has failed formally to
dismiss the complainant's criminal complaint, he cannot personally take over
the prosecution of the case in his capacity of a "private prosecutor". The
complainant also alleges that the public prosecutors in Serbia and
Montenegro seldom institute criminal proceedings against police officers
accused of misconduct and delay the dismissal of complaints, sometimes by
years, thereby denying the injured party the right to prosecute his/her own
case.
3.4 The complainant claims a violation of articles 13 alone or read in
connection with article 16 of the Convention, as despite exhausting all
criminal domestic remedies, 54 months following the incident and almost 34
months after the submission of his criminal complaint he has received no
redress for the violation of his rights. To date, the State party's
authorities have not even identified the police officer concerned. [FN4]
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[FN4] The complainant refers to Communication No. 59/1996, Encarnacio Blanco
Abad v. Spain, Views adopted on 14 May 1998.
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3.5 Article 14 is said to be violated since the complainant was denied a
criminal remedy and has thus been barred from obtaining fair and adequate
compensation in a civil lawsuit. The complainant explains that under
domestic law, there are two different procedures, through which compensation
for criminal offences may be pursued: by criminal proceedings under article
103 of the CPC following criminal proceedings, or/and by civil action for
damages under articles 154 and 200 of the Law on Obligations. The first
avenue was not an option, as no criminal proceedings were instituted and the
second was not availed of by the complainant, as it is the practice of the
State party's courts to suspend civil proceedings for damages arising from
criminal offences until prior completion of the respective criminal
proceedings. Even if the complainant had attempted to avail of this
recourse, he would have been prevented from pursuing it, as under articles
186 and 106 of the Civil Procedure Code he would have to identify the name
of the respondent. Since the complainant to date remains unaware of the name
of the officer against whom he is claiming violations of his rights the
institution of a civil action would have been impossible.
The State Party's Submission on Admissibility and Merits and the
Complainant's Comments Thereon:
4.1 On 14 January 2003, the State party provided its submission on the
admissibility and merits of the complaint. It contests the complainant's
allegations and submits that police officers of the Secretariat of Internal
Affairs in Novi Sad attempted three times to deliver a request for an
interview to the complainant to discuss the contents of his complaint. As
the complainant was never at home at the time of delivery, these requests
were delivered to the complainant's wife. The complainant failed to contact
the Secretariat of Internal Affairs.
4.2 The State party submits that the Municipal State Prosecutor's Office in
Novi Sad received a report from the Secretariat of Internal Affairs of Novi
Sad, on 2 October 1997, which confirmed that after checking its files, it
was established that the complainant had not been brought to nor detained in
any of its premises. The Secretariat of Internal Affairs provided the same
information on 4 February 1999, at the request of the Municipal State
Prosecutor's Office of 23 December 1998.
4.3 Finally, the State party submits that the complainant and two other
persons had perpetrated 38 offences in the Czech Republic, for which they
were sentenced to 10 years of imprisonment. The Municipal Court of Novi Sad
ordered that the complainant's name be placed on a list of wanted persons,
to serve prison sentence No. I.K. 265/97 of 5 May 1998. [FN5] It submits
that, on 25 September 2002, the complainant was still in the Czech Republic.
[FN6]
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[FN5] No further information is provided on this conviction.
[FN6] It does not state for how long the complainant has been in the Czech
Republic.
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5.1 On 25 November 2003, the complainant commented on the State party's
submission and argues that it suggests that as a convicted criminal he is
not entitled to complain against police ill-treatment, and that given the
circumstances, the investigating authorities did everything to investigate
the incident at issue and provide redress. He recalls that the authorities
did not interview anyone connected with the incident and ignored the medical
certificate documenting the injuries sustained by the complainant. It did
not interview the complainant's sister, who had nursed him after the
incident, the doctor who examined him, the police officers on duty the day
the incident occurred, or the complainant's lawyers. Neither did they
request the Czech authorities through inter-state legal assistance to
interview the complainant.
5.2 He submits that apart from the State party's failure to investigate the
incident, it has failed to provide the Committee with a plausible
alternative explanation as to how the victim's injuries could have been
inflicted other than through acts of its agents. In the complainant's view,
by failing seriously to contest the facts and/or the legal arguments put
forward, the State party has in effect expressed its tacit, yet clear,
acceptance of both. [FN7]
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[FN7] In this regard, he refers to decisions of the Human Rights Committee
in particular Communication No. 88/1981, Gustavo Raul Larrosa Bequio v.
Uruguay, Views adopted on 29 March 1983, para. 10.1.
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Issues and Proceedings Before the Committee:
Consideration of Admissibility
6.1 Before considering any claim contained in a complaint, the Committee
must decide whether or not it is admissible under article 22 of the
Convention. The Committee has ascertained, as it is required to do under
article 22, 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
impediments 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 in
any event, 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.
Consideration on the Merits
7.1 The complainant alleges violations by the State party of article 2,
paragraph 1 in connection with article 1, and of article 16, paragraph 1, of
the Convention. The Committee notes the complainant's description of the
treatment to which he was subjected during his detention, which can be
characterised as severe pain or suffering intentionally inflicted by public
officials in the context of the investigation of a crime, as well as his
sister's statement and medical report. It also notes the State party's
failure to adequately address this claim and respond to the complainant's
allegations. 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.
7.2 Concerning the alleged violation of articles 12 and 13 of the
Convention, the Committee notes that the Public Prosecutor did not request
the judge to initiate a preliminary investigation until 34 months after
filing the criminal complaint, and that no further action was taken by the
State party to investigate the complainant's allegations after the criminal
complaint was filed on 7 November 1996. The State party has not contested
this claim. The Committee also notes that the failure to inform the
complainant of the results of any investigation effectively prevented him
from pursuing a "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. In the same vein, it also
disregarded 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.
7.3 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.
8. 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, and 13, and 14 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.
9. 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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