Committee on Enforced Disappearances
9 September 2015
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Montenegro on how that country implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
Presenting the report, Zoran Pažin, Minister of Justice of Montenegro, stated that in 2011 Montenegro had ratified the Convention, which had supremacy over national legislation. Montenegro had also recognized the competence of the Committee to receive and consider individual communications. Enforced disappearances were viewed as a crime against humanity. The Commission for Missing Persons of the Government of Montenegro had been formed with a mandate to resolve the problem of persons missing after the armed conflicts in the former Yugoslavia. The Commission cooperated with relevant Ministries, professionals and forensic experts. The negotiations of Montenegro with the European Union had begun with the chapters on the judiciary and fundamental rights. All cases of war crimes that had been prosecuted in Montenegrin courts had been completed in an independent and efficient manner.
In the discussion that followed, Committee Experts wanted to know why enforced disappearances were not defined as an autonomous crime in Montenegrin legislation. More details were asked about the work of the Special State Prosecutor’s Office. Experts also asked questions about the extradition rules, international mutual legal assistance, the statute of limitations on enforced disappearances, reparations and redress provided to the victims and the protection of witnesses. Other issues discussed included cooperation with neighbouring countries, the nature of extended crime, combatting impunity, the existence of secret detention centres, the process of the recovery of cadavers and remains, and the special protection of women and children.
Santiago Corcuera Cabezut, Committee Member and Country Rapporteur for Montenegro, in concluding remarks, noted that the six war-time cases were discussed at length, on which the delegation provided clarity. Information on the detention times and the time to inform families would also be appreciated in writing.
Juan Jose Lopez Ortega, Committee Member and Country Rapporteur for Montenegro, also in concluding remarks, praised the extraordinarily constructive dialogue, which was largely due to the commitment of the delegation, which responded to every single question posed.
In concluding remarks, Nebojša Kaluđerović, Permanent Representative of Montenegro to the United Nations Office at Geneva, said that the fact that the delegation was headed by the Minister of Justice was a sign of the importance that the Government dedicated to the issue. It was of utmost importance that the Committee noted that the vast amount of challenges remained from the time of the conflicts in the former Yugoslavia and that there were no recent cases of enforced disappearances.
The delegation of Montenegro included representatives of the Ministry of Justice, Ministry of Labour and Social Care, Commission for Missing Persons, Supreme Court of Montenegro, Special State Prosecutor’s Office, and the Permanent Mission of Montenegro to the United Nations Office at Geneva.
The next public session of the Committee will take place at 3 p.m. on Thursday, 17 September, when the Committee will meet with States parties, United Nations bodies, specialized agencies, intergovernmental organizations, national human rights institutions, and non-governmental organizations.
The initial report of Montenegro (CED/C/MNE/1) can be read here.
Presentation of the Report
ZORAN PAŽIN, Minister of Justice of Montenegro, said that the initial report provided a snapshot of planned steps aimed at further improvement of the entire system of protection and promotion of human rights and freedoms in the country. In 2011, Montenegro had ratified the Convention, which had supremacy over the national legislation and was applied directly in cases. Montenegro had also recognized the competence of the Committee to receive and consider communications on the persons for whom it was responsible.
Since the renewal of its independence in 2006, Montenegro had achieved significant progress in the improvement of the systems for the realization, protection and promotion of fundamental rights and freedoms. In 2012, Montenegro had begun a negotiation process with the European Union with the aim of its full membership. The negotiations had begun with the chapters on the judiciary and fundamental rights. Montenegro had become a member of the Human Rights Council in 2013. Montenegro was a contracting party to the key Council of Europe conventions in the field of human rights, including the European Convention for the Protection of Human Rights and Fundamental Freedoms. Guaranteed human rights and freedoms could only be restricted by law and only for the purposes for which the limits were prescribed, the extent permitted by the Constitution. Montenegro paid special attention to promoting the rule of law and the protection of human rights.
Missing persons were a powerful symbol of the failure in safeguarding individual rights and the rule of law, and a constant reminder of human vulnerability and arbitrariness. The problem of the missing persons contributed to maintaining an atmosphere of distrust, and clarifying their fate was a legal and moral obligation to the victims, their families and society as a whole. The Commission for Missing Persons of the Government of Montenegro had been formed with a mandate to resolve the problem of persons missing after the armed conflicts in the former Yugoslavia. The Commission cooperated with relevant Ministries, professionals and forensic experts, as well international organizations, such as the International Commission for Missing Persons. The Commission had contacts with the families of the missing persons in order to inform them about the current stage of cases and collect new information. Cooperation had been established with associations that dealt with those issues across the former Yugoslavia. The meeting of governmental institutions in charge of the issue of missing persons in the Western Balkans had been held in May 2015, and had discussed the establishment of a joint list of missing persons in the former Yugoslavia. The Commission had resolved and completed the handover of the remains of 14 persons who had been citizens of Montenegro at the time of their disappearance. Persons who had disappeared in armed conflicts in the former Yugoslavia, searched for by the Commission, included 61 Montenegrin citizens and persons whose seekers had a permanent residence in Montenegro, out of whom 43 persons were searched for in Kosovo, 12 in Bosnia and Herzegovina and six persons in Croatia.
By the ratification of the Convention, Montenegro had confirmed that widespread or systematic commission of enforced disappearances constituted a crime against humanity according to international law. All cases of war crimes that had been prosecuted in Montenegrin courts had been completed in an independent, impartial and efficient manner. All victims of war crimes and their families in Montenegro had been guaranteed effective access to justice and adequate compensation and reparation. The Special State Prosecutor’s Office had at its disposal all the necessary instruments and mechanisms to investigate all cases of alleged forced disappearance and was not subject to any limits on access to places of detention for which there were reasonable grounds to believe that there were missing persons. Montenegro remained committed to further cooperation with regional and international organizations with the view of investigating the fate of persons missing in armed conflicts in the former Yugoslavia.
Questions by Experts
SANTIAGO CORCUERA CABEZUT, Committee Member and Country Rapporteur for Montenegro, expressed appreciation for Montenegro making statements under Article 31 and 32 of the Convention, which showed an open attitude towards the international legal treaty system. The State party was making serious efforts to address issues of persons gone missing in the wars in the former Yugoslavia.
The Expert asked whether non-governmental organizations and other stakeholders had been contacted in the drafting of the report and responses to the list of issues. Why had the Ombudsman not been consulted in the process?
Could enforced disappearances be considered as part of the four cases mentioned in the State party’s reply?
JUAN JOSE LOPEZ ORTEGA, Committee Member and Country Rapporteur for Montenegro, said that three out of four cases mentioned in the reply had been dismissed for lack of evidence. What had gone wrong in those cases – could the delegation provide a frank assessment? Had the wrong people been charged, or had there been flaws in those cases?
Why did the State party think that it was not necessary to include in the legislation the autonomous crime of enforced disappearance? Were enforced disappearances punishable with appropriate sentences which reflected the gravity of those offences? Were heavier sentences applied to private individuals rather than members of the security forces?
The concept of extended crime did not refer to a continuous crime, the Expert said, and asked whether the State party understood that concept as a series of successive acts instead. Did victims of enforced disappearances have access to monetary compensation?
More information was sought on the application of the Law on International Legal Assistance. What was the applicable legal standard if a crime had been committed in a country which was not a party to the Optional Protocol?
The delegation was asked to clarify what prosecutor would be responsible for investigating and prosecuting cases of enforced disappearance provided for in the Convention?
Had Montenegro received any application for extradition in cases of enforced disappearance?
Whenever a person was suspected of taking part in an enforced disappearance, he should not be allowed to participate in the investigation. Was there any domestic legislation which would provide for such prohibition?
The Committee would like to obtain information on the rights which could be suspended in a state of emergency.
Another Expert stressed that the three key pillars of the Convention were prevention of enforced disappearances, fighting impunity and the right to redress for victims. In order to prevent, the State party needed to have an appropriate legal framework. It was concerning that Montenegro believed that there was no need for specific legal provisions on enforced disappearance.
How did the State party expect that the new institution of the Special Prosecutor, established in February 2015, would contribute to fighting impunity, the Expert asked.
Could more information be provided about Montenegro’s efforts to make collaboration with neighbouring countries more effective?
Could the provisions of the Convention related to criminal procedures be applied directly in the national courts when they were different from the national legislation? Was there any case when the provisions had been directly convoked by courts?
Did the Criminal Code cover all cases of enforced disappearances as defined by the Convention? How would an appropriate sentence be defined in such cases, so that it could reflect the gravity of the act? Was the Criminal Code in line with the Convention in that regard? Did the extended offence need to be committed by the same offender?
Another Committee Expert asked for more information about the Special Prosecutor’s Office. How many persons were working there?
Was there a specific mechanism in place to protect witnesses or relatives of disappeared persons?
The issue of the redefinition of the crime was revisited by another Expert. Many deeds which could be part of the crime of enforced disappearance, such as the denial of truth, might be omitted because of the lack of a proper, comprehensive definition.
Replies by the Delegation
Regarding the issue of the criminalization of enforced disappearances as such, the delegation said that its criminalization had been incorporated in other articles of the Criminal Code. The delegation was ready to hear the Committee’s input regarding its possible criminalization.
The Convention had not yet been invoked in Montenegrin courts because those criminal acts had been committed long before the ratification of the Convention.
On the extended criminal offence, it was explained that it consisted of several same or similar offences, which belonged to the same temporal continuum and had been committed by the same individual. The offence would need to consist of at least three criminal offences; the most severe punishment should not exceed 20 years of imprisonment.
The war in the former Yugoslavia had taken place in the early to mid-1990s. In 1993, the first case of enforced disappearance, of a family, had been prosecuted and the first sentence handed down.
With regard to the four cases subject of the written reply, it was explained that the first case was that of Morinj, and it involved prisoners of war. The judgment was final and enforceable. Another case was Bukovica, in which there had been a crime against humanity. There had been no deprivation of liberty or abduction, but rather arson of private property. It had ended in an acquittal for lack of evidence against the charged person. The destroyed houses had been repaired, and a public campaign had taken place to encourage those who had escaped their homes to return. The case of Kaludjerski Laz included war crimes against the civilian population and involved conflict between paramilitary formations. Defenders had been acquitted for lack of evidence. Proceedings in the case of deportation of Muslim refugees to Bosnia and Herzegovina were still pending. The delegation emphasized that maximum sentences had been handed out in the cases when there was sufficient evidence.
The Supreme Court was in charge of providing support to witnesses – physical protection, medical aid, psychological support, etc. Hearings could be carried out in the hearing room or via video link, and the parties could provide for comments at various levels.
Rules on the provision of legal aid were very broad and completely harmonized with European norms.
Montenegro had not actively participated in armed conflicts in the territory of the former Yugoslavia, the delegation emphasized. A lex specialis on legal assistance had been adopted in 2008, and according to it, international legal assistance would be provided in line with international bilateral agreements.
At the moment, there was a process for the extradition of one person, to whom the Convention could possibly be applied.
It was explained that whenever there was a conflict of interest, the person in question could not participate in related procedures.
Regarding the Special Prosecutor’s Office, established this year, the delegation said that there were currently eight prosecutors and the Chief Special Prosecutor, along with experts from various fields, including finance, information technology, etc. In the future a department for international cooperation would be established. The special investigative team was reporting to the Chief Special Prosecutor. The Special Prosecutor was not in charge of unlawful deprivations of liberty.
The initial report presented the comprehensive overview of the normative legislative framework, which was why the report had been prepared by those institutions directly dealing with the issue of enforced disappearance. The civil sector was deeply involved in various activities that Montenegro was conducting in fulfilling its international obligations. The civil sector would be involved in the preparation of future reports.
On the cooperation of the Commission for Missing Persons of Montenegro, it was explained that there were regular contacts and exchanges with commissions in the region. Cooperation would continue with the view of finding the remains of the missing persons.
Mr. Lopez Ortega asked when the statute of limitations began after a person had been abducted and had not reappeared.
The stance of Montenegro was not unique in Europe when it came to not defining enforced disappearance as an autonomous crime, but that was nonetheless in contradiction with Article 4, which requested the country to explicitly do so. What would happen if a new case of enforced disappearance occurred – how would it be classified?
On the character of extended crime, Mr. Corcuera Cabezut said that the description provided by the delegation was closer to that of continuous crime. That was not the same way the Committee understood the crime. Did the concept of extended crime as such exist in the Montenegrin legislation?
Another Expert stressed the need to find all possible ways to combat impunity.
Replies by the Delegation
On the statute of limitations, the delegation informed that the Criminal Code said that the statute of limitations started from the moment the criminal act had been committed. However, crimes of enforced disappearances were not subject to the statute of limitations.
When the same person used the same opportunity to commit the same offence in the same territory, that was considered a continuous crime.
Regarding the mitigating circumstances related to war crimes, the delegation said that the court had analysed all circumstances, both aggravating and mitigating.
Responding to the question on introducing enforced disappearance as an autonomous crime, the delegation said that it could be introduced as such in the legislation, but it would need to be given due attention first.
Questions by Experts
Mr. Corcuera Cabezut asked whether there had been any cases where the principle of non-refoulement had been applied. Which authorities were in charge of determining whether somebody would be deported or expelled?
Mr. Lopez Ortega raised the issue of secret detention and said that the state of Montenegrin legislation in that regard was rather satisfactory. Were there protocols in police stations when it came to informing family members of the detention? What was the delegation’s position on the issue of the 24-hour time period during which family members, or consular offices in case of foreigners, ought to be informed? In what manner were family members informed if the prisoner was transformed from one jail to another?
During which time frame would the detainee receive the legal counsel to which he was entitled?
Were juvenile detention centres and psychiatric wards also used for detention, and was there an oversight body to ensure that detention registries were properly managed? Was there a body empowered to visit detention centres to make sure that no torture was taking place?
A question was asked on whether prosecutors, judges, members of police and armed forces received special training on the Convention.
When it came to recovering cadavers and remains, what were the responsibilities of the Commission for Missing Persons of Montenegro? The Committee had been told that the meetings of the Commission were not frequent enough - could that be clarified?
How many disappeared persons had been found and identified, and what actions had been taken with their remains?
The notion of victim was reportedly equal to that in Article 24 of the Convention. Did the definition in the domestic legislation include family members and relations of the disappeared persons? What would happen if no criminal procedure had been launched – would victims still be protected? Had family members been able to participate in the provision of proof and evidence in investigations of missing persons across the former Yugoslavia?
Questions were asked about procedures to provide redress to the victims, and which body was in charge in that regard. In some cases, victims had reportedly received redress only after going through civil courts, which could be a lengthy procedure. Did domestic legislation contain the concept of comprehensive redress rather than just financial indemnity?
Turning to the issues on women and children, who were a particularly vulnerable group,
the delegation was asked whether such a distinction existed in the legislation of Montenegro. Were women and children particularly protected when it came to enforced disappearances?
What type of coercion or trickery were referred to in the legislation for cases when children were taken away from their mothers before they could make a decision themselves? Had there been any cases of irregular adoptions which had been annulled or nullified?
Another Expert asked whether there was any national law in place which provided for non-refoulement in cases of enforced disappearances.
Could details of the bill amending the Criminal Code be provided? Why would the provision requiring that a person deprived of liberty had to be brought before a judge within 12 hours be changed and extended to 24 hours?
Had there been any cases of disappeared children during the wars in the former Yugoslavia, another Expert inquired.
If there was no express legislation on the rights of victims, that could be in contradiction of the Convention, an Expert noted. If that was the case, victims could invoke direct protection under Article 24.
Another Expert asked whether any possible future asylum requests in Montenegro would be dealt with in accordance with Article 16.
Replies by the Delegation
Regarding secret detention, the delegation explained that Montenegro protected rights and freedoms, and secret detention was prohibited by the Constitution as the supreme legal act in the country. Persons deprived of liberty had to be informed immediately of the reasons for that. The competent body also needed to immediately inform the persons that they could get legal counsel of their choosing. Persons could be held only if that was necessary for the conduct of legal proceedings.
The Ombudsperson was an institution established as an autonomous authority. The law on Ombudsperson defined it as the protection mechanism for those detained. The Ombudsperson was also vested in the protection against torture and other cruel and inhuman treatment. The Ombudsperson directly cooperated with the United Nations Subcommittee for the Prevention of Torture.
In the previous criminal procedure code, the maximum period of 24 hours had been envisaged before the family of the detained person was informed, but the new code, in force as of July 2015, introduced the provision that that should be done immediately. In practice, that was most frequently done by a telephone call; the detainee had the right to call the person of his own choosing. No detainee had ever objected to informing of that kind.
If a detainee was not a national, then the organization of his own choosing, which could be an Embassy or a Consulate, would be informed.
The law stipulated 12 hours as the period between the deprivation of liberty and the moment the detainee had to be brought to a public prosecutor. Sometimes, due to weather conditions and the substandard infrastructure, it was difficult to transport the person to the relevant prosecutor. If there were any delays, they had to be explained in the official minutes.
The delegation stated that the President of the Court, or a judge designated by the President, should make a tour of detention facilities at least twice a year, without the presence of warrants and guards. They could also visit any detained person at any time of day or night, in order to hear their complaints.
The law on the enforcement of criminal sanctions provided for keeping of registers on whom sanctions were imposed and who were kept in detention. The regulation on detailed manners of imprisonment provided that the identity of the person imprisoned needed to be established on the basis of his identity documents; otherwise, the investigative judge was responsible for providing data on his identity.
The delegation stressed that everything listed in the Convention was included in the Montenegrin legislation one way or another. Records in all police stations and courts were kept in the same manner, as they were covered by the same rules of procedures. Oversight of those records was performed by the Ministry of Justice and the Ministry of the Interior.
On training, it was explained that magistrates, prosecutors and police officers – all entities involved in criminal procedures – underwent training on human rights.
Regarding reparations, the delegation provided the following data: in the case of the deportation of Muslims, Montenegro obliged itself to pay more than 4.1 million euro to the complainants; in the case of Štrpci, four procedures for the compensation of victims had been adopted, totalling 126,000 euro; for Kaludjerski Laz, 14 procedures for compensation had been submitted, out of which one had been rejected and 13 withdrawn; in the Bukovica case, all claims had been rejected; and for Morinj, seven claims had been approved for the total amount of close to 120,000 euro; rulings on another 76 cases were to enter into force and would lead to the compensation of 877,000 euro.
Montenegro had been in touch with Kosovar authorities over disappearance cases. The Montenegrin prosecution services could take certain actions and submit data to the competent authorities of Kosovo. The same was the case with disappearances which had occurred in Croatia and Bosnia and Herzegovina. The data collected had not indicated that the perpetrators would have been Montenegrin nationals; otherwise they would have been prosecuted in Montenegro.
The delegation explained that the European Convention on Compensation to the Victims of Violent Crimes had been ratified by Montenegro. According to the Convention and a related law, the victim of a violent crime was the person who had lost life or suffered severe injury, or whose mental and physical capacities had been severely affected or impaired. Compensation procedures for families of victims lasted long, but were given priority by the courts.
Responding to the questions on the Commission for Missing Persons, the delegation said that it was an inter-ministerial body, including representatives of all relevant State bodies and the Red Cross. Procedures of recording missing persons were done in line with the Red Cross guidelines. In cooperation with commissions and associations from neighbouring countries, 14 cadavers had been returned to Montenegro from other countries. Since July 2014, handover had been completed of remains of three persons whose families lived in Montenegro, and who had been on the lists of missing persons of the neighbouring countries. Currently, 61 Montenegrin citizens, or those whose families lived in Montenegro, were missing. The Commission met every two to three months.
All Montenegrin citizens with residency in Montenegro enjoyed the right to social and child protection. The same was applicable to foreigners with a permanent residence permit. There had been no cases of adoptions conducted by the means of fraud or coercion, so there had been no annulations of such procedures. The Ministry of Labour and Social Care was the final instance approving all cases of adoption.
Montenegro had not had asylum seekers from Syria, Afghanistan and other countries, unlike some other countries in the Western Balkans.
The delegation responded that the Police Administration under the Ministry of the Interior was in charge of expulsions and deportations. An appeal could be filed against such a decision to the Ministry of the Interior and to the Administrative Court afterwards. Those whose security would be endangered were not expelled.
Mr. Corcuera Cabezut said that in some cases, it would take more than 24 hours to transport the detainee to the competent authorities and inform the family. Could provisions on the time frame be clarified once again?
On reparations, more information was sought on the concept on comprehensive redress, such as social support to the victim and the restoration of the prior situation.
Was there not a broader definition of victims, which would involve victims of human rights violations and not only those of violent crimes?
More clarity was sought on how the Commission for Missing Persons was actively searching for missing persons.
Was there an alternative to the option of presumed death – could presumed disappearance be used instead?
Mr. Lopez Ortega noted that Montenegro stated that it had not participated in the conflicts of the former Yugoslavia, but had prosecuted cases related to those conflicts, and provided indemnities in several cases. In the case of deportation, had they been residents of Montenegro? Were there any mass graves or disappeared persons in the territory of Montenegro?
Could some rights be suspended in the state of emergency or war, the Expert asked.
Replies by the Delegation
The delegation clarified that every person who committed a criminal offence could be detained by police officers for a maximum of 24 hours, when he had to be handed over to the public prosecutor. Otherwise, the person needed to be released and could not be arrested on the same grounds again. When the person was brought before the public prosecutor, he could decide to have the person kept in detention for a maximum of 72 hours, which included the first 24 hours. If the prosecutor failed to take action in that time frame, the person ought to be released. An investigative judge could impose a 30-day detention period, and this could be prolonged by two months at the maximum.
The police used to inform the family immediately and within 24 hours at the latest. According to the most recent amendments, the family should always be informed immediately and without any delay – thus the 24-hour time frame had been dropped. In the overwhelming majority of cases the detained person was allowed to get in touch with the person of their choosing.
In a state of emergency or a state of war, the exercise of certain human rights and freedoms could be restricted to the extent necessary, but restrictions on hatred incitement, intolerance and discriminations could not be lifted. An emergency situation had been declared only a few years earlier due to massive snowfall.
No war had taken place in the territory of Montenegro, but in all other surrounding parts of the former Yugoslavia. All earlier discussed cases, except for Strpci, had involved citizens of Montenegro. The Strpci case had taken place in Bosnia and Herzegovina, and one of the perpetrators had been captured and prosecuted in Montenegro.
There were no disappeared persons in Montenegro, the delegation explained.
The authorities were keeping track of all persons in juvenile detention centres and psychiatric wards. Doctors in those institutions needed to report to the authorities.
A delegate stated that the Commission for Missing Persons was very proactive; in 2015, there had been six meetings thus far. The Commission was in regular contact with all counterparts across the region. Exhumations were carried out in Croatia, Kosovo and Bosnia and Herzegovina, and the Montenegrin Commission was taking part in identification and transportation procedures. There were no individual or mass graves where excavations could be carried out.
The court could declare a person dead if there was no news on him for the last five years, and he was over 60 years of age. Persons disappeared in wars of whom nothing was heard within one year after a ceasefire were also declared dead.
SANTIAGO CORCUERA CABEZUT, Committee Member and Country Rapporteur for Montenegro, said that a very fruitful debate had taken place and some Experts had expressed opinion why enforced disappearance should be considered an autonomous crime. The six war-time cases were discussed at length, on which the delegation provided clarity. The definition of the victim was also addressed. Information on the detention times and the time to inform families would also be appreciated in writing.
JUAN JOSE LOPEZ ORTEGA, Committee Member and Country Rapporteur for Montenegro, praised the extraordinarily constructive dialogue, which was largely due to the commitment of the delegation, which responded to every single question posed. Recommendations based on the debate would be submitted to the State party. The delegation had been very receptive to the comments, and it was believed that the recommendations would be taken on board and applied at the domestic level.
NEBOJŠA KALUĐEROVIĆ, Permanent Representative of Montenegro to the United Nations Office at Geneva, thanked the Committee for the high-quality constructive dialogue. Every interaction with an international human rights treaty body had a positive impact on Montenegro. The fact that the delegation was headed by the Minister of Justice was a sign of the importance that the Government dedicated to the issue. It was of utmost importance that the Committee noted that the vast amount of challenges remained from the time of the conflicts in the former Yugoslavia and that there were no recent cases of enforced disappearances. The Government was ready to take the recommendations on board.
For use of the information media; not an official record
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