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Experts of the Committee Against Torture Ask Serbia about Overcrowding in Prisons, and about the Effective Punishment of State Agents Accused of Torture

24 November 2021

The Committee against Torture this afternoon concluded its consideration of the third periodic report of Serbia on its efforts to implement the provisions of the Convention against Torture, with Committee Experts asking about overcrowding in prisons and about the effective punishment of State agents accused of torture and other forms of ill-treatment.

A Committee Expert welcomed significant and meaningful steps that had been taken to renovate and increase the capacity of the existing detention infrastructure and to build new detention facilities, aimed at improving the material conditions in detention.  Nevertheless, according to reports, in the pre-trial sections overcrowding remained a serious problem.  Overcrowding became even more pressing during COVID-19, even though State authorities had reduced the number of detainees using alternative, non-custodial measures and conditional release. 

The Expert believed that effective prosecution and punishment of State agents accused of torture and other forms of ill-treatment was not guaranteed in the current legal framework based mainly around the Criminal Procedure Code.  Even though the Public Prosecutor was entitled to govern the pre-investigative and investigative procedure, this body still did not have effective control over the Police.  Thus, the Expert believed that the vast majority of criminal complaints lodged against police officers, prison staff and other state agents never reached the indictment phase of the criminal procedure, and thus, was never examined by the competent court.  The Committee wished to express some concerns at the lack of independence of such oversight bodies.

The delegation, responding to the question on the overcrowding of prisons, said the problem of overcrowding in a large capacity had been resolved by relocating detainees to a newly constructed jail that had been built with the intention of resolving the situation.  The Ministry of Justice had developed a strategy for reducing the overcrowding and considerable success had been met.  The women’s prisons had been reconstructed, and new places constructed in open and semi-open departments.  Progress in prisons had been underlined by the European Committee on Torture in 2021.  The distribution problem would continue to be addressed under the current programme until 2027, and new facilities would continue to be constructed.  A number of persons had been granted early release and paroled.

Serbia had established a working group consisting of members of the Public Prosecutor’s Office and members of the Ministry for Internal Affairs, developing a methodology to investigate allegations of torture, meant for public prosecutors and police officers, and based on relevant international legal documents and the jurisprudence of the European Court of Human Rights.  This was to be used in all cases of abuse, including those by officials employed in detention centres.  The ultimate goal of the methodology was the execution of urgent, independent, impartial and effective investigation in the context of the Convention.  The accent was on the independence and impartiality of the investigations.  The working group
had been established based on international standards to use training courses that were implemented continuously to aim for efficient and independent investigations of abuse and ill-treatment.  The Ombudsman had oversight control of the Ministry of the Interior, carrying out many unannounced controls.  There was a programme of specialisation that trained police officers which was conducted yearly in order to aid them in conversing with the different categories of prisoners. 

Gordana Čomić, Minister for Human and Minority Rights and Social Dialogue of the Republic of Serbia, presenting the third periodic report, said the Republic of Serbia was committed to strengthening a democratic society, which included, above all, respect for human and minority rights, and the very existence of the Ministry was the proof of that.  Serbia was working on developing all means to combat torture, and to ensure that any misuse of power was properly punished according to the legal framework.  There was a lot to do in the Republic of Serbia and a lot to lose if it gave up on what it firmly believed in: namely the policy of human rights to fully investigate any allegation of torture anywhere in Serbia, building up an open space for civil society and their remarks, and building up the Ministry as a place for anyone to come and help make society as a whole a better place.

The delegation of Serbia consisted of members of the Ministry for Human and Minority Rights and Social Dialogue, the Supreme Cassation Court, the Police, the Ministry of the Interior, the Public Prosecutors Office, the Ministry of Justice, the Commissioner for Refugees and Migration, the War Crimes Prosecution, and of the Permanent Mission of the Republic of Serbia to the United Nations Office at Geneva.

The webcast of the Committee against Torture meetings can be found here.  All meeting summaries can be found here.  Documents and reports related to the Committee against Torture’s seventy-second session can be found here.

The Committee will next meet at 3 p.m. on Thursday, 25 November, to start its consideration of the third periodic report of Bolivia (CAT/C/BOL/3).

Introduction of the Report

GORDANA ČOMIĆ, Minister for Human and Minority Rights and Social Dialogue of the Republic of Serbia, presenting the third periodic report, said the Republic of Serbia was committed to strengthening a democratic society, which included, above all, respect for human and minority rights, and the very existence of the Ministry was the proof of that. 

According to the Constitution of the Republic of Serbia, generally accepted rules of international law and ratified international treaties formed an integral part of the domestic legal order and were directly applicable.  The Republic of Serbia had the status of candidate for membership in the European Union.  As part of the comprehensive reform that was taking place in this context, special attention was being paid to promoting the rule of law and protecting human rights.  Serbia was working on developing all means to combat torture, and to ensure that any misuse of power was properly punished according to the legal framework.  Serbia would never cease to fight to build up a democratic society with institutions that worked for all the people.  Reforms made referred to changes in the legislative framework in the direction of adopting the best standards and achievements of modern society, but also to the areas of ​​strengthening institutional capacities, media freedom and the promotion of human rights in every segment of society.

Effective judicial cooperation in criminal matters was one of the key challenges in efforts taken to prevent and combat criminal activities as effectively as possible. Quality mechanisms for combatting these phenomena implied an effective normative and institutional framework.  Strengthening the capacity of judicial bodies for law enforcement remained a priority for the Republic of Serbia.  In October 2019, the implementation of the Law on Free Legal Aid began, providing the right to free legal aid to persons who enjoyed legal protection from torture, inhuman or degrading treatment or punishment or trafficking in human beings.

Over the course of July last year, the National Strategy on the Realisation of the Rights of Victims and Witnesses of Crime for the period 2020-2025 was adopted, providing for the creation of a national network of victim and witness support services during court proceedings.  Recognising previous efforts to improve the position of certain categories of victims through the adoption of special laws and strategic documents, the adoption of this National Strategy was the result of a strategic commitment to provide all victims and witnesses of crimes with an adequate level of procedural rights and systematic, professional and available assistance and support, as well as a special level of protection for particularly vulnerable categories of victims.

In the reporting period, the Ministry of Interior had issued several by-laws aimed at improving the position of persons subject to police powers.  In October 2021, the Government of the Republic of Serbia had adopted a new National War Crimes Prosecution Strategy for the period 2021-2026 with an accompanying action plan.  Preparations had begun for work on the revision of the Prosecutorial Strategy for the Investigation and Prosecution of War Crimes.  In the period from 20 November 2018 to 1 November 2021, the Office of the War Crimes Prosecutor had filed 20 indictments against 21 persons.  Among the indictments were those related to high-ranking perpetrators and events with hundreds of victims.

In the context of the COVID-19 pandemic, in order to prevent the spread of the disease, the Commissariat for Refugees and Migration had implemented intensive preventive measures.  Prescribed instructions intended for both employed persons and accommodated persons that were harmonised with the national algorithm for prevention and treatment in case of infection were being applied.  The result of good cooperation and coordination was especially emphasised through the fact that during the emergency situation, no cases of COVID-19 infection were registered in any asylum or reception centre. 

There was a lot to do in the Republic of Serbia and a lot to lose if it gave up on what it firmly believed in: namely the policy of human rights to fully investigate any allegation of torture anywhere in Serbia, building up an open space for civil society and their remarks, and building up the Ministry as a place for anyone to come and help make society as a whole a better place.

Questions by Committee Experts

BAKHTIYAR TUZMUKHAMEDOV, Committee Co-Rapporteur for Serbia, expressed his appreciation of the efforts invested by the State party in the preparation of the third periodic report.  It appeared, from a recent report of the Protector of Citizens and submissions from non-governmental organizations based in Serbia, that no amendments to address the issue of definition of torture had been introduced so far, despite efforts on the part of the Ombudsman.  The Committee was encouraged by the news that Minister Comic just shared that a Ministry of Justice working group was considering the prospective amendment of article 137 of the Criminal Code.  The Committee should further benefit from an update on the legislative process, and disclosure of reasons for delay, preferably more specific than those indicated in the terse language of the report and the opening statement of the delegation.  A detailed definition in implementing legislation, congruous with one of the core international human rights treaties, would contribute to stronger protection, hence compliance with the Convention.

In section 8 of the report entitled “asylum seekers”, it was stated that “a foreigner may not be forcibly removed to a territory in which he would be under risk of death penalty, torture, inhuman or degrading treatment or punishment, or where he would be under threat of serious violation of rights guaranteed to him by the Constitution”.  Did that imply that protections guaranteed by the Constitution of Serbia, including protection from being subjected to torture, could be extended beyond the sovereign territory of the Republic, and even cover a foreigner, and if so, what were the means by which such protections were enforced, the Co-Rapporteur asked.

It would be appreciated if the delegation could expand on grounds for extradition and/or surrender of its own citizens to foreign States.  Was there a constitutional or other legislative prohibition on extradition of Serbian citizens, if so, how was it overcome?  Had there been such instances during the reporting period, and if so, would the delegation be willing to offer any details?  In respect of war crimes, in 2016, the Government of Serbia had adopted the National Strategy for the Prosecution of War Crimes, which expired earlier this year.  The Committee appreciated Minister Čomić advising that the Strategy was now extended for the new five-year period.  What were the primary outcomes of the initial five years of its implementation, with particular focus on crimes with an element of torture and inhumane treatment?  What lessons were learned?  Had the results been evaluated and the conclusions made public?

With regard to redress and compensation that the Government was providing to victims of persons convicted by the International Criminal Tribunal for the Former Yugoslavia/International Residual Mechanism for Criminal Tribunals, most and foremost when verdicts included counts of torture and inhumane treatment, the delegation was invited to offer specifics, including details of national implementation of judgments of the international jurisdiction with respect to compensations, scale of payable amounts, and numbers of persons that had been covered by the scheme.  On the matter of ensuring rights and protections of foreigners and stateless persons who faced the prospect of forcible removal from Serbia, the delegation should provide an update on statistics of such removals, individual decisions on removals, their destinations, evaluations of safety of destinations, and subsequent monitoring of status of persons so removed.

Furthermore, the delegation should also provide an updated and more specific response to the Committee’s request to “indicate the number of refoulements, extraditions and expulsions carried out during the reporting period on the basis of the acceptance of diplomatic assurances or the equivalent thereof”, as well as any instances in which the State party had offered such diplomatic assurances or guarantees.  What were the minimum contents of such assurances, whether given or received, and what measures had been taken in such cases with regard to subsequent monitoring?

In order to learn more about the information regarding training of immigration officials - personnel dealing with newly arriving foreign persons, in particular refugees and asylum seekers - were immigration officers trained in intercultural communication skills?  Were personnel trained to identify signs of not only physical, but also of enduring mental suffering?  Was access to interpreters ensured?  Did interpreters possess reasonably sophisticated skills to assist medical experts in communication with persons who had been subjected to physical and/or mental torture?

The delegation was asked to provide information about pandemic-imposed circumstances being taken into account in prisons and other locations accommodating detained persons.  Furthermore, how did social care institutions cope with the pandemic?  Were they forced to close down?  If they were, what had happened to patients?  Had the institutions re-opened?

With respect to compliance of national anti-terrorism measures with human rights safeguards in general, and obligations under the Convention against Torture, in particular, the Committee was explicit in its request to provide details about the number and types of persons convicted under such legislation; the legal safeguards and remedies available to persons subjected to anti-terrorist measures in law and in practice; whether there were complaints of non-observance of international standards; and the outcome of these complaints.  None of those issues had been addressed in the report, and the delegation should fill that gap.

ANA RACU, Committee Co-Rapporteur for Serbia, said she understood from the opening remarks and from the materials submitted to the Committee in connection with the review of Serbia that a great deal of change had taken place in Serbia since the last review.  However, while some of these changes were positive, some of the Committee’s recommendations had not been fully implemented or even at all.  According to the civil society report on analysis of the work of the Ombudsman 2015-2019, it was concluded that the work of the Ombudsman was not in compliance with the Paris Principles with regards to two important principles: independence and competencies, as well as that the integrity of the institution had considerably declined, that it was not in line with international standards, and that its efficiency and visibility had been reduced.  It was added that there was a significant decline of cooperation with civil society, and that the ability of the institution to retain qualified and experienced staff had also declined.  These were very serious findings and the Committee needed to clarify some of the issues. 

The Committee would like to know how many detention facilities, including police, migration centres and psychiatric institutions, were visited by the Ombudsman/National Protective Mechanism per year?  Why had the number of visits decreased in the last years?  Were the findings of the Ombudsman’s visits to detention facilities made public?  How frequently?  Were medical professionals, including psychiatric specialists, part of the monitoring team when visiting detention facilities?  Also, it would be interesting for the Committee to find out to what extent the recommendations and opinions made by the Ombudsman Institution had been taken into account by the law enforcement agencies and other State institutions.  Despite improvements to pretrial procedures, prolonged pretrial confinement remained a problem.  There was a need for explanations on the causes of the prolonged pretrial detention, since the State report did not provide any explanation on the subject.

Further, the Co-Rapporteur inquired whether the State party had introduced any procedure regarding the notification on rights, including in a written format in an appropriate language that the prisoners understood, from the very outset of their detention.  Other questions related to fundamental legal safeguards referred to the unified electronic system of custody records and the Co-Rapporteur asked whether the system was fully functional and contained a comprehensive record on custody, meaning all aspects of custody and all measures taken in connection with it.

In the past, Serbia was repeatedly criticised by various human rights international mechanisms for poor conditions of detention and overcrowding.  Over the past few years, significant and meaningful steps had been taken to renovate and increase the capacity of the existing detention infrastructure and to build new detention facilities.  The Committee welcomed all these initiatives aimed at improving the material conditions in detention and commended the State party for the progress that it had made in improving the detention conditions.  Nevertheless, according to the reports, in the pre-trial sections overcrowding remained a serious problem.  Overcrowding became even more pressing during COVID-19, even though State authorities had reduced the number of detainees using alternative, non-custodial measures and conditional release.  Despite all these shortcomings, the Committee welcomed the measures taken by the Serbian authorities to reduce overcrowding by promoting alternative, non-custodial measures and to facilitate conditional release.

The State party had reported, in addition to the control mechanisms established to prevent torture or inhuman and degrading treatment in the penitentiary correctional institutes, that it had introduced a new type of judicial control of the enforcement of criminal sanctions, namely a judge for the enforcement of criminal sanctions.  The Committee would like further information on this matter.

Ms. Racu believed that effective prosecution and punishment of State agents accused of torture and other forms of ill-treatment was not guaranteed in the current legal framework based mainly around the Criminal Procedure Code.  Even though the Public Prosecutor was entitled to govern pre-investigative and investigative procedure, this body still did not have effective control over the Police.

Thus, she believed that the vast majority of criminal complaints lodged against police officers, prison staff and other state agents never reached the indictment phase of the criminal procedure, and thus, was never examined by the competent court.  The Committee wished to express some concerns at the lack of independence of such oversight bodies, which did not allow for a truly reliable and impartial oversight and control over alleged misconduct of the police and correctional authorities.

The Committee would like to ask the State party what were the measures that needed to be taken in order to improve the prison regime of the prisoners serving life sentences and their detention conditions.  Besides the classical causes of violent incidents, which were common for most of the prisons in the world, such as closed spaces, strict rules and bad communication with the staff, the violent clashes in prisons were also a consequence of the overcrowding.  Therefore, the Committee would like to be updated about the measures taken by the State party in order to prevent violent incidents among prisoners, including self-injuries and suicides.

Ms. Racu said the Serbian authorities should take steps to introduce in all prisons clear reporting practices to the judicial authorities of all cases of alleged ill- treatment where injuries were recorded.  The Committee would appreciate details on the actions taken by the prison management during the pandemic, including the number of COVID-19 cases, prevention and treatment and vaccination rate, and would also appreciate an update on the measures that had been taken in order to improve the number of medical staff, including psychiatric specialists within correctional facilities as well other measures aimed at improving the medical care in prisons, including any upgrading of material conditions, and procurement of medical equipment and medicines for the needs of prisoners.

There was a need for measures to improve and expedite the processing of applications, including by establishing a protection sensitive screening mechanism within the Refugee Status Determination process in order to identify persons with specific needs.  In addition, Serbia needed adequate and well-trained staff to ensure fair and effective decision making in line with relevant international standards. 

With regard to the protection of migrants, asylum seekers and refugees, although the Serbian authorities had invested more efforts in developing the asylum system, it was still burdened with some shortcomings, including the asylum adjudication body being integrated in the border police, and a lack of an independent and effective review mechanism at the second instance.  The delegation should describe the procedures in place to ensure that vulnerable persons seeking asylum, such as victims of trafficking or torture, unaccompanied minors, and persons with disabilities were identified and referred to appropriate authorities without delay.  There was a need for additional information, disaggregated by sex, age and country of origin, on the number of persons who had been returned, extradited or expelled.

The situation of persons in psychiatric institutions had attracted the Committee’s attention from several perspectives: procedures, conditions and restraints.  Children with mental disabilities living in residential institutions were exposed to cruel, inhuman and degrading treatment, often mixed with adults and faced a lifetime of segregation.  Infants under the age of 3 years old continued to be admitted and left in institutions.  A specific concern of the Committee were women with mental disability.

Ms. Racu said the Committee was concerned that, despite reports and recommendations by the national prevention mechanism for the prevention of torture, there were reports of the use of coercive measures and excessive anti-psychotic therapy, and the prolonged isolation of adults and children with psychosocial and/or intellectual disabilities, considered as cruel, inhuman or degrading treatment.  Was there a complaint mechanism available for persons in the psycho-social institutions?  Did the staff from psychiatric institutions and residential centres receive necessary training on mechanical restraints and other types of seclusion?  What efforts had the State made to increase the number of psychiatrists working in psychiatric hospitals and residential institutions?  What efforts had the State taken in order to improve the material conditions in residential institutions?

Other Experts then raised such issues as the judicial system and whether there was a lack of judges or whether their workload was excessive; and the appointment of judges by the Parliament and whether this process was politicised.  On the status, role and safety of human rights defenders, did the Government envisage further measures, legislative and otherwise, with a view to strengthening their role in the political process, an Expert asked.  To what extent had the emergency measures related to the pandemic impacted the activities of human rights defenders, and did the Government plan to lift these restrictions?  Free media was another element of the sustainability of democratic activity, and the concept of defamation should be included in the concept of freedom of expression in that context.  Updated information on attacks on journalists was also needed.  There was a significant disparity between filed complaints of domestic violence and convictions, and it was clear that many women did not yet feel protected.  What activities were planned and what budget was allocated to the national strategy on domestic violence, an Expert asked?

Responses by the Delegation

Responding to the issues raised, the delegation said that the delegation had no data on prisoners who were imprisoned for life.  Once they received it, that data would be sent to the Committee.  On the Constitution and politically appointed judges, an amendment in accordance with the Venice Commission would enter Parliament in December 2021 and there would be a referendum on the issue.  As for human rights defenders and the freedom of media and measures concerning COVID-19, the Ministry of Human, Minority Rights and Social Dialogue had gone to Parliament a few days ago, asking it to adopt a strategy for human rights for 2022, which included a chapter regarding human rights defenders and on creating a space for civil society in Serbia.  At the moment, a part of civil society was boycotting the consultation process, but the Ministry was building a place to which they could come. 

Over the last two years, it seemed to be a competition as to who was the most stupid - human beings or viruses, and it sometimes appeared that viruses were more intelligent.  It was hard to harmonise human rights with health and healthcare and the needs linked to the pandemic.  The Serbian Government had done its best, but there had been problems throughout the world in this regard.  Serbia was hoping to make total vaccination possible and effective.  Had civil society been given adequate space?  It would be part of the future mechanisms to ensure that the Serbian Government lived up to its obligations under the Convention against Torture.  On the media, there was a new strategy in force, and a working group had been established to protect journalists, but part of civil society was also boycotting that group, as was their right.  It was up to the Government to build trust so that civil society would return.  The dialogue was ongoing. 

On psychiatric institutions, progress was being made on introducing human rights there.  Serbia would continue to struggle to really fulfil all the strategy on the matter of human rights for all, including those who were not aware of their rights. Everything shared today would be part of the future strategy on human rights. There would be a deadline on this, and if all happened according to the plan, then the strategy would be adopted in December 2022, and in December 2023 Serbia would be able to share this with the Committee.  These strategies should also boost the position of civil society and enable it to have greater trust in the Government and work with it as a partner. 

There were several decisions and very relevant ones that had come recently from the Constitutional Court, including one on human trafficking, which called upon the conclusions of the European Court of Human Rights, dealing with the rights of the victim, including the right to compensation.  On the issue of torture, there were no separated statistics.  There were various decisions of the Supreme Court which referred to decisions of the European Court and to United Nations Conventions.  The application of international law was legal and was a source of law in the Serbian system.  The issue of compensation of victims, in particular for serious crimes, was not treated well in the criminal procedure, and it was not carried out during court cases as it was thought that it would delay the process, however, this was changing. 

The Supreme Court, together with judges and prosecutors, had in 2019 issued the guidelines for compensation of victims and these were proving to be very effective and getting results.  The main issue had been to show that compensation could be included during the criminal procedure, and this avoided coming back to the issue and re-victimising the person concerned.  The values that were breached with human trafficking and torture were the values that had non-material damage, and could be proved on the simple statement of the victim, who had no burden of proof.  On life imprisonment, there was a provision that a person could be released after 27 years in prison, and there was a big legal discussion about this; it was not a mandatory release after 27 years, but a conditional release.  Work was being done to ensure that detainees could achieve these conditions.

The methodology for implementing investigations in situations of police abuse included strategies against torture and the Prosecutor’s Office and the Ministry of the Interior dealt with such strategies.  A working group had been established based on international standards to use training courses that were implemented continuously to aim for efficient and independent investigations of abuse and ill-treatment, implying that when there was an investigation of a police officer who had engaged in abuse, torture, or another illegal action, that police officer could not be included in a new procedure.  This methodology ensured that all evidentiary actions were implemented by the Public Prosecutor, who was the only one who could order the police officers to do something. 

With regard to normative procedures, the authors of this methodology had referred to this and showed a lack of administrative shortcomings in the text.  Punishment was now 10 years, which showed the implementation of investigations.  The aim of all these changes and amendments was to respect the Convention and international standards completely and to make punishments more rigorous.

Serbia had met the conditions set out in the action plan by establishing a working group consisting of members of the Public Prosecutor’s Office and members of the Ministry for Internal Affairs, developing a methodology to investigate allegations of torture, meant for public prosecutors and police officers, and based on relevant international legal documents and the jurisprudence of the European Court of Human Rights.  This was to be used in all cases of abuse, including those by officials employed in detention centres.  The methodology had specific recommendations for the Deputy Public Prosecutor and held numerous answers to the questions asked by the Experts.  The ultimate goal of the methodology was the execution of urgent, independent, impartial and effective investigation in the context of the Convention.  The accent was on the independence and impartiality of the investigations.  The most important part of the methodology was the detailed due process to give the damaged party all the rights as prescribed by the Criminal Code, allowing them to engage a person of trust to be present during the investigation.  Training had been provided on investigating cases of alleged abuse by law enforcement officers for the Public Prosecutor’s Office and for law-enforcement officers.  Evidence had been delivered referring to the total number of claims of abuse and torture.  The national legislation foresaw that the criminal act of abuse or torture could be carried out by any person, including an official. 

From January 2022, the delegation expected that there would be registers containing all the necessary data, including on perpetrators and victims.  Regarding national legislation, a working group had been established to work on the amendments to the Criminal Code, and a decision had been made on certain Acts of the Code, including on forced statements.  What needed to be defined was who could be the perpetrator of the criminal act, as well as a definition of torture and abuse.  There would also be consideration of the minimum and maximum penalties for this act, which was currently between 2 and 10 years for the more severe forms.  The date of the statute of limitations was also under consideration for extension. 

On the protection of the rights of human rights protectors, journalists and members of national minorities, Serbia had made an important step by adopting guidelines on criminal prosecution for hate crimes, which were introduced in 2012 and represented a basis for more severe punishments for the perpetrators of hate crimes.  The Criminal Code stipulated that if the criminal act was carried out due to hate for the victim for being a member of a specific race, ethnic group, sexual orientation or gender identity, the court should, in sentencing and defining sentences, evaluate hate as an important factor in the sentencing.  Serbia was introducing international standards in its legislation in this context.  Guidelines on hate crimes had been developed with the support of the Organization of Security and Cooperation in Europe delegation to Serbia, and this was a very good example of the cooperation between the Governmental sector and the non-governmental organization sector.  All Prosecutor’s Offices had the obligation to keep a special register that would also include measures taken, and the drives that instigated these crimes.  Data showed that most attacks were due to sexual orientation, with slightly fewer for ethnic origin.  It was important that individual cases were presented to the coordinating body, after which an effort was made for such cases to be processed.

Regarding the appointment of the so-called contact points or the liaisons that all Public Prosecutors had, these monitored all cases including those on hate crimes.  With regard to the protection of journalists, the Criminal Code had a special criminal segment on racial and other discrimination, in which it was prescribed sanctions up to five years imprisonment, providing criminal legal protection for all persons fighting for human rights.  On protection and security of journalists, agreements and treaties had been adopted to protect journalists.  There was a cooperation agreement between the Public Prosecutor and the Ministry of the Interior stipulating urgent action in cases where journalists were in danger.  There was a special registry, in accordance with all obligatory recommendations and guidelines, presenting cooperation and measures to raise the levels of security and protection of journalists, aiming to ensure criminal and legal protection for journalists.

Thirty-five criminal acts had been identified that were assumed to endanger the safety of journalists, the delegation said, and improvement had been made.  Special registries for criminal procedures against journalists had also been established.  From 2016 to 2021, over 332 cases had been established regarding the safety of journalists.  In 31 cases there was a condemning judgement.  It was very important that there was information on the status of cases with regard to the murder of journalists - all of these murders and endangerment of journalists were from a long time ago. 

The Criminal Procedure Code prescribed a lot of mechanisms on the role of the Public Prosecutor’s Office with regard to allegations of abuse by police officers, and the Office played a key role in procedures in this context as a body, but not as a party.  It prescribed many opportunities for State bodies to react to the case.  Police officers in situations where they had an order from their boss or the Public Prosecutor should be acting according to the orders of their chiefs.  The Police in pre-trial and in trial procedures implemented activities as prescribed by law and only under the orders of the Prosecutor’s Office. 

On family and gender-related violence, the biggest contribution was in the domain of the victims of family violence.  Every type of violence was a type of torture or ill-treatment.  In May 2021 a law on gender equality was adopted, with an emphasis on gender violence.  Most of the provisions implemented the requests of the Convention on the Prevention of Violence Against Women - the Istanbul Convention - to which Serbia had been one of the first signatories.  The results were really satisfying in this area, although of course they could always be better.  There were two registries in the Public Prosecutor’s Office on the number of reported acts of family violence, and another on the implementation of the law on preventing family violence, which had a preventive nature.  The police and family courts were part of this prevention. 

On the overcrowding of prisons, the Ministry of Justice had developed a strategy for reducing this and considerable success had been met, in part thanks to the construction of new prisons and other places of detention.  The Directorate for Criminal Sanctions had adopted new designs and construction would continue next year.  The women’s prisons had been reconstructed, and new places constructed in open and semi-open departments.  Changes would be made to prisoners’ clothes.  Progress in prisons had been underlined by the European Committee on Torture in 2021.  The distribution problem would continue to be addressed under the current programme until 2027, and new facilities would continue to be constructed.  Work had also been carried out on the Directorate and the Judicial Academy training judges and prosecutors.  A number of persons had been granted early release and paroled.

The European Committee Against Torture, at its visit in 2021, had concluded that law enforcement officers were no longer carrying rubber batons in the jails, and they were only carried in high-security areas.  On the improvement of the health protection, the Directorate had taken measures to improve the adaptation of the health hospital which had been particularly constructive.  The provision of both medicaments and equipment had been resolved, while healthcare workers had been trained and new ones employed.   It was important to stress that the Directorate, in cooperation with the experts of the Council of Europe, had developed a manual for health workers in prisons which contained directives from the first screening until release.  It also contained methodology for keeping records, medical and legal standards, drug addiction measures, hepatitis C and HIV/AIDS testing, and the transmission of communicable diseases.  Additional programmes were implemented, including group work, for addicts. 

The Ministry of Health had developed a plan for the prevention of hepatitis, including prevention and treatment of the virus in prisons, and the treatment of persons infected would take place through clinics under the auspices of the Ministry.  The handbook elaborated in detail the protocols for examining, photographing and registering prisoners in accordance with the recommendations of the Committee. 

There were guidelines for the conduct of the persons in the prison administration if cases of abuse were observed.  There were detailed prescribed procedures, including the collection of necessary evidence, and also compulsory reporting to the Public Prosecutor of all the evidence that had been gathered.  In regard to the First Health Review, this was a systematic review, and all elements had been established in accordance with the manual.  Representatives of prison hospitals had participated in workshops for creating individual programmes, including for those with mental disabilities.  Psychiatrists were present in detention centres, and all persons requiring psychiatric support were sent to special prisons in accordance with determined protocols where they would be provided with appropriate support during their incarceration.  The administration would ensure infrastructure investments in constructing hospitals linked to the two larger penal structures for those with psychiatric issues.  In 2018 there had been no suicides, and there had been five in 2019.

With the aim of decreasing deaths in institutions, efforts had been made in training employees, and there had been cooperation with the Ministry of Health in the reception of individuals in the tertiary health system in prisons.  Training courses were held for wardens of institutions on the elimination and discouragement of violence, and they monitored any appearance thereof.  In every concrete case they had to establish the causes of that violence and whether there had been the shortcoming of an employee and if there was a basis to initiate disciplinary action or procedures.  For members of the security services, there was a training course on the dynamics of security with particular attention to the elimination of violence in the context of persons who were deprived of liberty.  Bearing in mind that Serbia was making efforts to ensure that this approach was multi-disciplinary, efforts were made in this regard.  A complaints mechanism had been established in 2006, and this was a two-tier mechanism.  Judges involved had undergone numerous trainings and regularly made rounds in penal institutions, acting upon specific claims and requests for court protection.  The figures in this regard were falling. 

On the amendments to the law on criminal sanctions from 2019, the competency of the judges had been extended.  On vulnerable groups in jails, including juveniles, detention periods were the shortest for juveniles.  In average, the duration was of three months detention, and cooperation had been established with the Ministry of Education in order to provide education to the children; child psychiatrists were also provided for the juvenile detainees.  The Directorate continuously cooperated with non-governmental organizations and they had the right to visit institutions to talk with detainees without the presence of a third party.  Trainings had also been developed in the field of torture prevention for non-governmental organizations.

The Ministry of the Interior had made enormous efforts with the goal of achieving international standards over the last couple of years, amending the legal framework to significantly improve material conditions in penal institutions, and raising awareness of police officers as to torture and other illegal, inhuman and degrading treatment.  Numerous legal documents had been adopted, aligning the situation with international standards.  A rule book on police authorities was adopted in 2019, superseding the previous instructions, and stipulating the acts of the police towards detained persons and the application of the use of force, including with regard to juveniles, who must be treated whilst respecting international, United Nations and Council of Europe standards by police officers who had been specially trained in that issue.  A rule book on the complaints’ procedure had also been adopted in 2021, and another in 2018 on buildings where detainees could be kept, which latter determined the minimum living space for detainees and the conditions therein, including potable water.  From 2017 to 2020, detainee rooms had been adapted in 10 police administrations. 

All Acts, handbooks and documents to be provided to detained persons had been translated into the national minority languages, the delegation said, noting that procedures of detention were also different in the case of persons who were demonstrably intoxicated.  The Council of Europe had organised a seminar on horizontal support on the procedure for detaining persons, with the aim of developing an agreement with the Ministry of Health, as there was no equal treatment across the country by doctors submitting reports on the health of detained persons.  Within the project of the Council of Europe, Serbia was considering hiring a person who was going to be responsible for the legal treatment of persons who had been detained, and a manual would also be developed on the interviewing of citizens and persons with mental disadvantages.

The Ombudsman had oversight control of the Ministry of the Interior, carrying out many unannounced controls.  There was a programme of specialisation that trained police officers which was conducted yearly in order to aid them in conversing with the different categories of prisoners.  Classes were held on the topic of human rights, and the work of police with disadvantaged and marginalised social groups. Another training course was held on trafficking in persons, and on the topic of asylum seeking in the Republic of Serbia.

On procedures during the pandemic, the health of police officers and persons being processed had been protected, and recommendations issued which police officers were obliged to respect.  On the procedure of asylum, the same legislative framework gave them protection, and this was applied by the Asylum Office, formed in 2015 under the auspices of the Border Police.  It also provided administration and translation services in administering the asylum procedure.  The European Office for Support for Asylum and the United Nations Convention on the Rights of Refugees had also provided training courses on various topics, including interviewing children.  The law on asylum and temporary protection was aligned with the European Union directorate thereon.

In the asylum procedure, there were provisions for minors, unaccompanied minors, victims of trafficking, and very ill persons, and these guarantees provided support to those who requested support, depending on their individual case, in accordance with international standards.  If the decision on the request could not be issued in regulatory time because of temporary conditions in the country of origin, then this was taken into account.  The movements of asylum seekers could be restricted, and they could be put in reception centres, for various reasons.

Questions from Committee Experts

BAKHTIYAR TUZMUKHAMEDOV, Committee Co-Rapporteur for Serbia, said he had not received answers to his questions, and the code of conduct of the European Convention against torture was not the code of conduct of the Committee.  The delegation had referred to the merger of article 36 of the Criminal Code on the extortion of confession with another article on coercion, and the lack of a definition of torture was not exactly logical.  There was a need for further elaboration to the amendments.  Other issues to which he had not received a response included juridical ambiguity of the Constitution with regard to the application of international instruments and whether the way in which the Constitution was worded could be interpreted to allow the Constitution to rule against the Convention against Torture or adjudicate that its provisions were against the Constitution.  Extradition and surrender of Serbian citizens to other States or other jurisdictions was also a matter that remained to be addressed.  The Constitution referred to the expulsion of citizens.  On war crimes, there had been a question on high-ranking individuals, and the request had been to provide details on their indictments and whether the charges included the element of torture, and this had been ignored in the answers provided.

ANA RACU, Committee Co-Rapporteur for Serbia, said the engagement in the protection and promotion of human rights in Serbia was to be commended.  Replies on the following issues were missing: how many people remained in pre-trial detention; whether the Prosecutor’s Offices had effective control over the police; the discrepancy between the large number of complaints against the police and the number of judgements handed down and why so many never reached the situation of being remedied by legal process; and why there were so many complaints against penal staff.  It was the obligation of the State party to monitor the implementation of fundamental legal safeguards, and the lack of complaints did not show that everything was fine - sometimes it was just due to a lack of a complaints’ mechanism or access thereto.  National legislation contained quite progressive provisions when it came to access to a lawyer, but what existed at the practical level?  The Committee noted the lack of confidentiality of medical examinations in certain police centres, and recommended that this, which was a core safeguard under the Convention, should be amended. 

On overcrowding and prison staffing, the information on new facilities was appreciated, and the State party should continue to improve the material conditions and open new prisons.  On incidents of the use of physical force and other means, including the use of rubber batons, how many of these incidents had been investigated to determine whether this was lawful or not and followed restrictions? On inter-prisoner violence, what were the figures on violent incidents in prisons, including self-harm?  Since the overcrowding was a phenomenon that still affected prisons, there was a risk that inter-prisoner violence remained high.  Did the Ministry of Health carry out the inspection of medical health institutions within prisons?  Questions on the Ombudsman Institution, psychiatric institutions, solitary confinement and others also lacked answers.

Responses by the Delegation

Responding to these questions and others, the delegation pointed out that concerning war crimes, extradition could not be applied for domestic citizens.  Not a single State in the region did that.  Serbia had concluded treaties with Croatia and Bosnia and Herzegovina on extradition.  Extradition was possible only in the terms of acts of organized crime and corruption.  However, this did not imply non-punishment of war crimes.  A large number of cases had been taken over from Bosnia and Herzegovina for prosecution, namely 36 cases against 40 persons; 22 convicting verdicts regarding these persons were adopted; 18 persons received final verdicts for war crimes; while in three cases against four persons, the judgements made were not final.  In four cases, the persons were not convicted, and nine cases were still ongoing. 

On conditions of surrender of one’s own citizens to international courts and tribunals, there were agreements made with the Hague Tribunal in 2003, and certain conditions had to be met first, including whether the person was indeed the person who was alleged to have committed the acts and whether these acts were punishable by local law.  It was very important to clarify that there were also indictments against persons who had high positions, but not all of those indicted of war crimes had held high positions.  In the prosecution for war crimes between May 2015 and the present, there were 15 indictments against 19 persons containing allegations of torture and inhuman treatment as part of the criminal offense of war crime.  In the new National Strategy for Processing War Crimes, it referenced the Convention Against Torture and consideration was taken of the recommendations of the Committee in its implementation. 

Trainings had been re-organised for judges, and following these, during 2020 and 2021 there had been cases in which decisions had been taken to not extradite the persons involved in accordance with the standards of the United Nations Convention Against Torture, thus it was clear that the trainings had helped.  A new law had been adopted in 2018 providing free legal aid for persons exercising prevention against torture, and this was available to foreigners as well as nationals.  There were no statistics available on requests for legal aid for protection against torture, but it was available without regard for the financial status of the person involved.  On the concrete results of the implementation of the National Victims Strategy, this provided for the establishment of a comprehensive and full network of protection services, it necessitated the amendment of nine laws, and currently the Ministry of Justice had prepared a list of issues that needed to be covered by these amendments, and working groups were being formed.  The Ministry of Justice would attempt to hire a national coordinator to oversee this, depending on the budget.  A first report would be prepared on implementation strategy, and this should give a better insight on the matter. 

On the use of diplomatic insurances, Serbia did not have a practice of asking for these whilst extraditing persons, but had been asked by Germany, Switzerland and Austria to provide these, and had granted all that had been asked.  On the number of persons extradited to the International War Crimes Court, 45 out of 46 had been extradited – the forty-sixth had died before he could be extradited.  Many documents had also been provided concerning all these cases.

There was another decision of the Constitutional Court from December 2020 regarding the forced deportation of nine refugees from Afghanistan, and the Court judged that there had been a lack of respect for certain rights, including the right to movement and freedom from torture.  The Constitutional Court had referred to the United Nations Convention Against Torture in its decision.  There was a project for the Constitutional Court, supported by the European Union, to have the translation of some of the prominent decisions of the Court available.  Efforts were being made to unify legislation with regards to torture, including all the documents from the United Nations.  There was a programme that had lasted over five years to educate lawyers who were representing clients who had given confessions following torture, and this would be very good in helping lawyers defend their clients. 

On minors and alternatives to detention, the law stipulated that detention was extraordinary for minors and could only last for four months for those under 16, and up to six months for those up to 18; detention was revised every month.  The law said that other measures should be used primarily to ensure that all minors could be put in special institutions for minors and not into detention structures, or that they could be under the supervision of the Organ for Family Care, or could be placed with a family.  There was a provision in the law on minors that they could not be detained with adult detainees unless the minor would be alone in detention and that it would be bad for that minor - in which case a judge could determine that the minor could be placed with an adult who would not harm them.  On ex officio lawyers, the law on criminal procedure contained a new procedure that, thanks to the efforts of the Lawyers’ Bar Association, ex officio lawyers were chosen by agreement with the Bar Association.  It was a duty of the Bar Association to provide a list of lawyers capable of giving good service to their clients, but if this was not the case, then the President of the Court could dismiss that lawyer.

The problem of overcrowding in a large capacity had been resolved by relocating detainees to a newly constructed jail that had been built with the intention of resolving the situation, the delegation said.  Psychiatrists were engaged from the civilian medical centres in which prisons were located.  The Directorate had, based on the analysis of independent experts, decided to abandon the survey on the protection of health services in prisons, considering that it had managed to employ the missing employees and would continue to employ health professionals in prisons.  On inter-detainee violence, this had been increasing in recent years.  On solitary confinement, this punishment could be given to prisoners in cases of severe offences, including escape attempts, attacks on guards and importing of psychoactive substances.  All fundamental rights, including personal visits, reception of correspondence and access to fresh air were respected during solitary confinement.  Detainees could appeal against solitary confinement.

Concluding Remarks

GORDANA ČOMIĆ, Minister for Human and Minority Rights and Social Dialogue of the Republic of Serbia, in concluding remarks, said the recommendations of the Committee were what Serbia was fighting for as well, including the investigation of all allegations of torture, and the recommendations would be fully taken into account.  Serbia was committed to respecting and promoting human rights, and was actively working together with all United Nations human rights mechanisms, treaty bodies, the Universal Periodic Review process and United Nations Special Procedures, which was reflected in regular reporting, which had largely contributed to the establishment of a National Mechanism to Implement Recommendations to assess the implementation of recommendations.  All parts of society were welcome to participate in its work.  Serbia was seeking to implement all recommendations as it was good for its society and institutions, and was grateful for the contribution to building up institutional dialogue within the country.  The National Strategy for Improving Human Rights until 2030 was being drafted, and the work of the Committee would be warmly welcomed in aiding with that plan.

 

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/11/ce-que-la-serbie-manque-de-traiter-correctement-ces-dernieres

 

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