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05 February 2015
5 February 2015
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Serbia on how that country was implementing the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance.
Presenting the report, Veljko Odalović, Secretary General of the Ministry of Foreign Affairs and the Chairperson of the Missing Persons Committee, said that some 40,000 persons went missing during the armed conflicts on the territory of the former Yugoslavia; by the end of 2014, some 10,900 persons were still missing. Reconciliation in the region greatly depended upon resolving that problem. In 2006 the Missing Persons Committee was created, and the Working Group on the Persons Missing on the Territory of the Autonomous Province of Kosovo and Metohija was formed as part of the 2005 Belgrade-Pristina Dialogue. The procedure of identification of missing persons was run according to the criteria and procedures of the International Committee of the Red Cross.
During the dialogue, Experts asked questions about the introduction of enforced disappearance as a separate crime in the Criminal Code, superior responsibility, crimes committed by military personnel, rules on extradition, witness protection procedures, access to the military and police archives, and connections between trafficking in persons and enforced disappearances. Questions were also raised about the definition of victims and their compensation, and the cases of children went missing in the conflicts in former Yugoslavia.
In concluding remarks, Santiago Corcuera Cabezut, Committee Expert and Co-Rapporteur for the report of Serbia, said the Committee noted the delegation’s comments regarding the applicability of the Convention in Kosovo. Kimio Yakushiji, Co-Rapporteur, stated that the Committee’s awareness of many challenges faced by Serbia was renewed, as plentiful information provided by the delegation was very useful to the Committee.
Mr. Odalović, in concluding remarks, stated that lists of missing persons were one thing on which Belgrade and Pristina were in full accordance. Serbia was fully committed to be cooperative in the future and would continue to work on the issue of enforced disappearances in a responsible, comprehensive manner.
The delegation of Serbia included representatives from the National Commission on Missing Persons, Ministry of Justice, Ministry of Foreign Affairs, Ministry of the Interior, Supreme Court of Cassation, Public Prosecutor, Supreme Court, Office of the Prosecutor for War Crimes, Office for Human and Minority Rights and the Permanent Mission of Serbia to the United Nations Office at Geneva.
The Committee will next meet in public at 3 p.m. today to meet with Member States, United Nations bodies, national human rights institutions and non-governmental organizations.
The initial report of Serbia (CED/C/SRB/1).
Presentation of the Report
VELJKO ODALOVIC, Secretary General of the Ministry of Foreign Affairs and President of the National Commission on Missing Persons, stated that since 2006 Serbia had been an independent state committed to the strengthening of a democratic society, which primarily entailed respect for human and minority rights. International treaties ratified by Serbia were part of domestic legislation and were directly applied. Serbia was a member of eight fundamental international human rights treaties. Furthermore, as a candidate state for the European Union, Serbia was undergoing comprehensive domestic reform, with a particular emphasis on the rule of law and human rights protection.
Serbia was unable to implement the Convention and monitor its implementation in Kosovo and Metohija, said Mr. Odalovic, which was why the report did not contain detailed information about those parts of Serbia. The Committee should invite the United Nations Interim Administration Mission in Kosovo (UNMIK) to provide information about the implementation of the Convention in Kosovo and Metohija.
Human rights and freedoms were guaranteed under the Constitution of Serbia, and as such they might only be limited by a statute to the extent permissible by the Constitution and necessary to allow for the purpose of the limitations. Enforced disappearance was included in the Criminal Code corpus of crimes against the freedoms and the rights of men and citizens, such as illegal deprivation of liberty, kidnapping, crimes against humanity and war crimes against civilian population. Judicial reform in 2009 led to the establishment of the High Judicial Council and the State Prosecutorial Council. Serbia was a signatory to the 1959 Convention on Mutual Legal Assistance in Criminal Matters and its additional protocols; mutual legal assistance was thus not conditional upon the existence of bilateral or multilateral treaties. Regarding extradition, Mr. Odalovic said the specific circumstances of the country requesting extradition were evaluated by the Ministry of Justice for every decision.
It was estimated that around 40,000 persons went missing during the armed conflicts on the territory of the former Yugoslavia. At the end of 2014, some 10,900 persons were still reported missing and reconciliation in the regions greatly depended upon resolving that problem. In 2006 Serbia formed the Missing Persons Committee, which, inter alia, held records on missing persons, exhumed identified and non-identified remains and maintained ante mortem and post mortem databases. As part of the 2005 Belgrade-Pristina Dialogue, a Working Group on the Persons Missing on the Territory of the Autonomous Province of Kosovo and Metohija was formed. A consolidated missing persons list had been created and 1,556 cases of missing persons had been solved, said Mr. Odalovic.
In 2010, Serbia formed an International Humanitarian Law Commission in charge of following developments in international humanitarian law and handling matters concerning the adoption of new treaties, and proposing measures for their implementation. A representative of the Missing Persons Committee attended Commission sessions, noted Mr. Odalovic. The procedure of identification of missing persons was run according to the International Committee of the Red Cross (ICRC) criteria and procedures, said Mr. Odalovic. The Missing Persons Committee informed the families of the identified missing persons about the facts surrounding their death and assisted the families in starting identification procedures. It covered the costs of transportation of the remains and a part of the respective funeral costs. The Committee maintained regular contact with the families of missing persons as to provide updates on current cases and gather pertinent new information. Exhumations of bodies at all locations for which the authorities had information had been completed; any new information was checked in a responsible manner.
Questions from Committee Experts
SANTIAGO CORCUERA CABEZUT, Committee Member serving as Co-Rapporteur for Serbia, asked first whether Serbia considered that the Convention contained any provisions incompatible with the Serbian Constitution, and whether any articles of the Convention been invoked by citizens or applied by the judicial authorities. As the Criminal Code did not contain enforced disappearance as a separate crime, could the delegation clarify which part of Article 27 of the Constitution could be suspended and under what conditions? How could the existing provisions of other articles be applied to the autonomous crime of enforced disappearance? Was there an intention to codify enforced disappearance as a separate crime?
What would happen if a crime was incited by an official, in a non-premeditated, but wilful manner, asked an Expert, also enquiring about the concept of so-called superior responsibility and whether the Law on Civil Servants applied to police officers.
KIMIO YAKUSHIJI, Committee Member serving as the Co-Rapporteur for Serbia, asked the delegation which authority would prosecute a case of enforced disappearance committed by a military person while in service. How did the State ensure the impartiality of investigations into cases of enforced disappearance committed by an employee of the Ministry of Defence or the Armed Forces. The Expert asked whether such servicemen could be suspended during investigations against them and whether their commanders and superiors were also prosecuted. Why would courts not apply enforced disappearance as a crime against humanity, the Expert asked.
How long did it take to establish a new witness protection unit, asked an Expert, and how could the independence of such a unit be strengthened? Information was sought on whether the public prosecutor – and families of victims - had unlimited access to police and military archives. Under the legislative framework of Serbia, who could have access to such archives and how had that legal right been exercised in practice?
Concerning extradition, the delegation asked whether the Convention had been used as a basis for an extradition and whether Serbia had ever refused a request for extradition for a case of enforced disappearance? Had Serbia received any requests from other States to cooperate in cases of enforced disappearances, including exhumations and identifications of victims?
An Expert asked about the participation of civil society in the preparation of the report and referred to some of their concerns. The Humanitarian Law Centre from Belgrade, for example, had expressed concern about the Government’s commitment to uncovering mass graves of Kosovo Albanians.
Responses from the Delegation
While enforced disappearance was not encoded as a separate offence, certain actions that might fall under that criminal offence were prosecuted as different criminal offences. It was a crime prosecuted ex officio explained a delegate. Regarding the introduction of enforced disappearance as an autonomous crime, Serbia was preparing an amendment to the Criminal Code, so that the crime listed in the Convention would be listed as such. The law would not be adopted before early 2016, given public debates and all the necessary procedures it had to undergo.
Regarding the issue of war circumstances or other public dangers, while the Constitution protected human rights, it provided for some restrictions during emergencies. Human rights thus might be restricted under war circumstances, in line with orders by relevant authorities, such as the Speaker of the Parliament, explained a delegate.
The crime of unlawful deprivation of liberty or abduction carried a penalty of five years imprisonment; and failure to admit it was also included in the provisions, confirmed a delegate.
The Criminal Code provided for commanding responsibility, as recognized in Protocols to the Geneva Conventions, a delegate explained. They applied to military commanders and could include enforced disappearances. The law provided that police officers should obey all orders except for those to commit a crime. Police officers could ask that an order which they suspected could lead to crime be provided in writing. There were no complaints on enforced disappearance against the police forces.
Regarding consequences of inciting crimes, a delegate said that the Criminal Code prescribed that those ordering crimes would be held responsible as co-offenders, even if they were not directly involved in the crime. If they only conveyed someone else’s order, they could be prosecuted for inciting a crime. The entire case-law of Serbia was based on the principle that one could not excuse oneself on the orders of the superior.
The lack of a definition for the crime of enforced disappearance was not an obstacle to having a criminal prosecution in Serbia. If approved by a public prosecutor, the authorities might undertake prosecution even though it was not prescribed as a criminal offence as such.
The responsibilities of Marshal Courts were transferred to civil judicial bodies in 2004. If an offence was committed by a member of the Serbian Armed Forces, the person would be prosecuted in civil courts. If it was a war crime, the responsibility would lie with the Prosecutor for War Crimes, which had already been the case on several occasions. The Prosecutor was in charge of investigations, while military police could undertake only actions deemed necessary at the very beginning, such as informing the relevant prosecutor’s office.
Mitigating circumstances were the same for a crime of enforced disappearances as for any other criminal offence. If a person contributed to the clarification or resolution of a criminal offence, then that was considered a mitigating circumstance. There were also certain provisions related to agreements with perpetrators, if they provided information relevant for the prosecution.
Serbia had an action plan based on suggestions by the European Commission in relation to the prosecution of war crimes, in which relevant non-governmental organizations had played a role. Serbia envisioned gradual capacity building for the Office of the Prosecutor for War Crimes.
There had been no crimes in Serbia that qualified as crimes against humanity, said a delegate. There had been crimes classified as war crimes, although that did not mean certain crimes could not be qualified as crimes against humanity in future. Since the initial report had been submitted, certain progress had been made in the processing of the case law, including the Gnjilane case, he noted.
Serbia had a fully elaborated witness protection system in place which was to be further enhanced based on recommendations by the European Commission and civil society, such as employing psychologists and social work experts, and providing detailed training for staff of the witness protection unit.
Regarding mutual legal assistance, Serbia had a number of relevant protocols, as well as a law on legal assistance in criminal matters. Requests for legal assistance did not apply to politically or military related criminal offences. Such assistance was regularly provided by the Ministry of Justice.
There were numerous requirements for extradition which were decided by the Ministry of Justice. A person could be extradited for a crime carrying a penalty of one year or more imprisonment. Serbia did not extradite persons if there was a reasonable doubt that they would be in danger of an enforced disappearance, or if there were gross violations of human rights in the requesting State.
The Public Prosecutor’s Office and the Office of the Prosecutor for War Crimes had unlimited access to military and other archives, confirmed a delegate. However, in addition to the archives which had been opened to aid the search for missing persons, many documents had been shared with the Pristina delegation. More than 1,100 documents had been shared with Croatia on the fate of the wounded and ill in the Vukovar Hospital. Serbia was open to receiving further requests on archives.
When exhumations were carried out in Serbia, representatives from Bosnia-Herzegovina, Croatia or Pristina who wished to attend were welcome. Some re-exhumations had been conducted based on requests by neighbouring States, a delegate noted.
The delegation said that both Belgrade and Pristina teams had signed a declaration that there were no illegal prisons and invited anyone interested to check on that fact. Previously, false information on the existence of illegal prisons had been given to family members of missing persons.
Questions from Committee Experts
The obligation of a State party was not only to criminalize enforced disappearance, but to allow the large range of other provisions held in the Convention to be invoked by victims or applied by the authorities. What was the applicability of the Convention by the authorities, asked an Expert. Regarding the statement that the Convention could be directly applied by judges, he wondered how that could be the case when the Convention did not establish and define a penalty as such.
Experts asked for more information on the new Criminal Code, on whether enforced disappearance could be considered a political crime, and if mutual legal assistance would be applicable in that case.
An Expert asked if there had been any complaints or cases of trafficking in persons in Serbia as such crimes often overlapped with enforced disappearances.
Responses from the Delegation
With regard to the provisions of Article 9 of the Convention, a delegate explained that it had been applied in the national legislation and there were no hindrances to its application. Criminal prosecution would not be undertaken if the offender had been fully punished in another country. If such an offender had been pardoned or his punishment had been subject to statute of limitations, he would not be punished.
Pardon was a hindrance only if the punishment, and not the prosecution, had been pardoned, a delegate specified. For criminal prosecutions, a crime also had to be punishable in the country where it had been committed. If enforced disappearance was not considered an autonomous crime, as currently in Serbia, it was still subject to sanctions under different provisions. It was important that elements of foreign crime were in relation to a nationally defined crime. The universal principle was also applicable: if a crime was deemed as such according to general norms of the international law, prosecution might be conducted in Serbia regardless of its national legislation.
Questions by Experts
What progress had been made to investigate the circumstances which led to the disappearance of thousands of people in the conflict in former Yugoslavia? What measures were put in place by the State party to accelerate the search of missing persons? What was the follow-up to the exhumations in Batajnica?
The Expert inquired whether there had been registered any cases of children who had been victims of enforced disappearance during the conflict in ex-Yugoslavia. Could statistics be provided? Were there formal procedures in place for searching missing children and providing support to them and their families?
In practice, in how many cases had extradition been denied because of the State party’s concern over a threat to the person in question in his home country asked an Expert. The delegate was also asked how many asylum claims had been upheld by the appeal body since 2011? Were there any mechanisms applied to verify the risk that a person might be subjected to enforced disappearance if returned home? Would persons about to be expelled or extradited have access to free legal aid? Could diplomatic assurances be accepted when there was reason to believe that a person might be subjected to enforced disappearance? How were the “safe countries” selected?
Did the Ombudsman have power to monitor the implementation of the Convention, and had his Office received any complaints relating to rights stemming from the Convention? Had there been any complaints concerning the failure of officials to record a deprivation of liberty in registers concerning persons deprived of liberty?
Did public officials receive specific training and education on the contents of the Convention, asked an Expert, also wondering why Serbia’s concept of “damaged party” had been equated to the term “victim”.
Did the mandate of the Working Group also include any type of reparation to the relatives of missing persons? What would the threshold be to prove actual damages in civil courts?
Another Expert raised the issue of the system of the compensation of victims. What actions did the State party plan to take in order to include all categories of victims, including those outside of the territory of Serbia?
Would a future law on missing persons improve the situation of victims and their treatment?
Definition of victims was brought up by another Expert. Would the introduction of the term “victim” be in accordance with the broad understanding of the term?
Responses from the Delegation
The delegation stated that an alien could be expelled only into a territory where he would not be under the threat on different grounds. That was also envisioned in the law on asylum; nobody would be sent back where he would be at risk. The Criminal Code provided provisions for an expulsion of persons; the person could appeal to a higher-instance court, and the final decision would be that of the Minister of Justice, which was not appealable. Each case was examined individually through a three-phase procedure.
On the law on missing persons, the delegation stated that Serbia had never said that it would not want to adopt such a law. On the contrary, it was working on preparing a comprehensive law which could cover all cases in Croatia, Bosnia and Herzegovina, and the autonomous province of Kosovo and Metohija. Kosovo was a particular case because Serbia had been in charge until 24 March 1999, then there had been war, and since 10 June 1999 UNMIK had taken over. The State party dedicated some €13 million annually to the needs of the families of missing persons. When such a person was found, the State would undertake all costs, including funeral.
Persons from Croatia and Bosnia and Herzegovina had been, at the moment of their disappearance, citizens of those countries, but their families had since accepted Serbian citizenship, which made matters more complicated.
All persons who could not afford legal counsel were provided free legal aid. They were also given a possibility to contact their families and respective embassies, and were also provided interpretation services.
Responding to the question on the list of countries to which aliens were not expelled, a delegate said that such assessments were made individually, and in cooperation with Interpol and Europol. The State party was also consulting with diplomats when making a decision whether it would be safe to deport or expel somebody to a certain country. There was a list of 54 “safe countries”, and 42 so-called “third safe countries”.
In the reference to the law on international legal assistance, it was explained that convicted or suspected persons could not be prosecuted before their surrender. Preconditions for an extradition were that the person in question was not the citizen of Serbia and had not committed an offence in the territory of Serbia or against its citizens. The Ministry of Justice always examined circumstances on the case-to-case basis, in accordance with article 16 of the Convention.
Ombudsman was a relatively young institution in Serbia, a delegate stated. Ombudsman had access to all places where persons were deprived of liberty and could meet inmates in private. All State authorities were obliged to cooperate with the Ombudsman and to provide him with all the necessary documents. Should an official refuse to cooperate, the Ombudsman could request his dismissal or initiate a court case against him.
Records on detained persons were kept both electronically and in hard copy. Each person deprived of liberty was listed there, along with all the pertinent information, decisions related to their cases. Non-governmental organizations represented one of the monitoring mechanisms of detention facilities.
A delegate said that all detention and custody units were run by the Administration for Executing Criminal Sanctions. When a person was deprived of liberty, the police ought to immediately take him to the prosecutor, after which the prosecutor had 48 hours to decide whether that person would be released or taken to the judge. The person could decide on who would be informed about his detention. Detained foreign nationals were sometimes against that their diplomatic representations be informed.
If the prosecutor did not propose custody within 48 hours, the person would need to be released. The judge would eventually decide whether the person would remain in custody. In the first 48 hours, the person was provided with a counsel, and had the right to appeal. A defence lawyer hired by the family of the detainee could also submit an appeal. The lawfulness of the detention was reviewed by a three-judge panel.
Regarding the national DNA register, a delegate informed that the draft law was in the final stages of preparation. It was currently being edited and it was likely that it could be adopted by the end of 2015, earlier than envisioned. Reform of the law was a definite priority.
In November 2014, a working group had been formed to work on the rules on how police officers should act in case of kidnappings. It contained all necessary provisions.
With regard to trainings of judges and prosecutors, that was being conducted in line with the provisions of the Legal Academy. Training in human rights was particularly emphasized, and the subject of the Convention would certainly be added to the curriculum.
The delegate said that 789 families of missing persons had been provided with psycho-social help. According to Serbian legislation, when a family announced that its member was missing, it would receive certain benefits as if it was a deceased person. It was each family’s individual decision.
At the moment, 1,655 missing persons were still missing from the conflict in Kosovo and Metohija, 136 persons being under the age of 18 years. All the documentation was clear and up-to-date, and the progress was continuous. All bodies exhumed in Batajnica, Rudnica and Petrovo Selo, after identification, had been given over to the families from Kosovo. The location of Rudnica had been found thanks to the cooperation with the United Nations Interim Administration Mission in Kosovo (UNMIK), the European Union Rule of Law Mission in Kosovo (EULEX) and the representatives of Kosovo Albanians. The absence of a definite list of mass graves was making matters much more difficult.
Families of victims had to do a regular civil-case proceeding in order to claim reparations, where they carried the burden of proof. If it was proven that there was a causal relationship between some omissions of the State and the disappearance, reparations would be available.
Regarding the annulation of the adoption of the children of missing persons, the Family Law prescribed that adoption could only be full and complete, and could be annulled only by courts. There had been no such requests thus far.
Responding to the questions on concealment of bodies, the delegation said that Serbia had opened all of its archives to the International Criminal Tribunal for Yugoslavia (ICTY). That cooperation had been acknowledged and praised by the ICTY Chief Prosecutor. Responsibility of those under Vlastimir Djordjevic, who was serving his sentence in the Hague, ought to be established. The War Crimes Prosecutor’s Office naturally had access to all the archives.
Each mass grave had two aspects: criminal law and humanitarian, a delegate stressed. Each opening of mass graves led to a start of a criminal case. For the Batajnica case, all the details were now known. The archives did not contain information on locations of mass graves; information on them was not written, as such actions had been conducted in secrecy. The authorities were now looking for people who might have seen or heard something at the time mass graves had been created, but it was a lengthy and difficult process.
Regarding the rights of victims, it was said that “victim” was not clearly defined in the Serbian legislation. Definition of “injured party” was narrower than the definition of “victim” as provided by the Convention. Thus, the current legislation ought to be amended to that purpose as well. Harmonization of the Serbian legislation with the legislation of the European Union was underway.
Questions from Experts
An Expert said that the Committee’s main concern was not the legal framework but the protection of victims. Families of the disappeared persons should not need to have to start proceedings to declare their family members dead; Serbia could find such examples in South America. The Committee would like to know whether there could be any reparations other than financial. Would cases of enforced disappearances against the State need to be brought up within five years, in accordance with a decision by the Supreme Court?
KIMIO YAKUSHIJI, Committee Member and Co-Rapporteur for Serbia, thanked the delegation and said he was convinced that the scope of understanding had been expanded on both sides. The Committee’s awareness of many challenges faced by Serbia was renewed, as plentiful information provided by the delegation was very useful to the Committee. Concluding observations would be drafted the following week. It was hoped that the State party would manage to accomplish goals listed in its action plan.
SANTIAGO CORCUERA CABEZUT, Committee Member and Co-Rapporteur for Serbia, said that the concluding observations would be written collectively, derived from the information collected during the dialogue. The Committee was aware of the situation regarding Kosovo, and had taken note of the delegation’s comments regarding the applicability of the Convention in that province.
VELJKO ODALOVIC, Secretary General of the Ministry of Foreign Affairs and Chairperson of the Missing Persons Committee, stated that lists of missing persons were one thing on which Belgrade and Pristina were in full accordance. There were numerous meetings organized with representatives of missing persons from both Serbia and Kosovo and Metohija, with the focus being on the humanitarian aspect. The United Nations Interim Administration Mission in Kosovo (UNMIK) and the European Union Rule of Law Mission in Kosovo (EULEX) were also dealing with those challenging issues. He thanked the Committee for the high-quality dialogue, which was aimed at increasing the level of mutual understanding. Serbia was fully committed to be cooperative in the future and would continue to work on the issue of enforced disappearances in a responsible, comprehensive manner.
EMMANUEL DECAUX, Committee Chairperson, said that the dialogue was rich and useful, and thanked the Serbian delegation for providing exhaustive answers to often complex and lengthy questions posed by the Committee. The constructive dialogue was only one part of the process between the State party and the Committee, he concluded.
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