Written Comments of the Humanitarian Law Center concerning FR Yugoslavia
Aware of the measures taken by state agencies since the change of government in October 2000, the Humanitarian Law Center (“HLC”) nonetheless considers them inadequate to ensure effective application in the Federal Republic of Yugoslavia of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”), in particular its Articles 2, 4, 11, 12, 13, and 14. The HLC believes that the 27th session of the Committee against Torture will help to identify the most important problems in the observance of the Convention in this country, which still give rise to serious concern.
Article 2
FR Yugoslavia has not to date complied with its obligation to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” The Government of the Republic of Serbia has not reformed the security forces or carried out the personnel changes in the police force essential for making a clear break with the practices of the former regime and restoring public confidence in law enforcement. Numerous law enforcement officials, of both junior and senior rank, who were involved in the wars in the territory of former Yugoslavia, remain in active service in Serbia. In Montenegro, the police force is under the control of the political party led by the President of the Republic, not the Montenegrin Parliament. Neither of the two constituent republics have established mechanisms for civilian oversight of law enforcement. It has been a year since the new government came into office but the Republic of Serbia has not yet enacted a new legislation on law enforcement. In late October this year, the public was informed of the impending reform of the Federal, Serbian and Montenegrin Ministries of Internal Affairs in accordance with the recommendations of experts with the OSCE Mission in Belgrade. However, the rate at which it will be carried out and when the new law enforcement legislation will be adopted remain unknown.
In contrast to the preceding period in Kosovo, the Sandžak region or during the police campaign in 2000 against members of the Otpor Movement and political opponents, massive violations of the right to freedom from torture have not been registered in the year since the change of government. Nevertheless, the frequency with which law enforcement officers resort to excessive force or outright violence and brutality in the performance of duty remains concerning. Rather than setting up effective mechanisms to prevent acts of torture and taking judicial or disciplinary action against abusive officers, the authorities mainly invest efforts in trying to improve the public image of the police force. Although officials of the Ministry of Internal Affairs are now more responsive to public criticism and maintain contacts with human rights organizations, they endeavor either to deny that a specific case of torture occurred or, if faced with clear evidence of police brutality (medical certificates, photographs, witnesses), to convince the public that the case will be investigated and the perpetrators punished.
In its October 2001 study of policing in FR Yugoslavia, the OSCE Mission in Belgrade noted that the police in FR Yugoslavia, a year after the change of regime, still did not enjoy the confidence of the public: “Brutal assaults with batons on a woman by two police officers were witnessed by members of the OSCE during the period of study of this Study. The re-training needed to make such acts professional anathema is formidable. Provided that trainers possess credibility and that the prime obligation to exercise respect for individuals may be demonstrated to be effective with no loss to practical effectiveness, such change should be insisted upon.”[1]
The situation inherited from the previous regime requires FR Yugoslavia to implement radical reforms of the police, the military and other security forces, government agencies, the judiciary and all other bodies serving the public in order to ensure effective prevention and punishment of torture and other forms of violence.
Article 4
FR Yugoslavia has not to date amended its criminal law in accordance with the recommendations of the Committee against Torture of 11 and 16 November 1996.[2] Hence the Federal Criminal Code does not yet contain a provision specifically defining torture as a criminal offense. With their amendments of the republic Criminal Code, the Ministry of Justice and Government of Serbia have to an extent improved the provisions prohibiting acts of torture. The draft of the new Criminal Code, however, again does not specifically define torture as a criminal offense.
Article 11
Notwithstanding the obligation of the state to “keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture,” the HLC has in the past year documented numerous cases of torture and ill-treatment in the period immediately after a person is taken into custody, and through abuse of arrest, detention and investigatory interrogation as these are defined by statute. Racial prejudice is rife among law enforcement officers in FR Yugoslavia, and is directed in particular against ethnic Albanians and Roma. Thus a 12-year-old Roma boy was subjected to torture at a Belgrade police station, and cases of torture of invalids were registered in Podgorica and Kragujevac.[3]
On 5 March 2001, four plainclothes officers beat Miroslav Milić, a Belgrade Rom, with the intent of extracting from him a confession to stealing from the apartment of his former girl friend. At the Zvezdara district police station, three officers beat Milić on the thighs with a long wooden club for about 20 minutes. They then threw him to the floor and continued beating and kicking him in the head and all over the body. Just as Milić got to his feet, a fourth officer entered the room and struck him on the head with a pistol. After five hours of such severe physical abuse, Milić was allowed to leave the police station. The next day he sought medical assistance for dizziness, nausea and pains all over his body. On 9 March, the HLC filed a criminal complaint, charging four unidentified officers of the Zvezdara police station with beating Miroslav Milić with the intent of extracting a self-incriminating statement from him. Up to late October 2001, the public prosecutor had taken no action on the case.
Two Roma men from Ravno Selo in Vojvodina, Stevan Braničić and Saša Gojkov, were beaten by police in Bačka Topola on 7 May 2001. In this case too, the intent was to force them to confess to stealing. Braničić was beaten with a leather- or rubber-lined club some 50 centimeters long. He was struck first on the palms, with the officers threatening to aim their blows at his head if he moved his hands. He was then ordered to lean against the wall on his hands and beaten savagely on the shoulders, kidney area, buttocks and thighs. When the pain forced him to his knees, an officer continued the abuse by kicking him in the stomach. Gojkov received about a dozen slaps on the face. The HLC filed a criminal complaint against an inspector and two officers of the Bačka Topola police station. The public prosecutor failed to take any action on the case up to late October.
Nenad Filipović was beaten by unidentified police officers in Kragujevac on 26 May 2001, first in the street and in the presence of his children, and then at the local police station. An asthmatic, Filipović spent five hours handcuffed to a banister at the police station and was not allowed to use his inhalator when he suffered a strong attack.
F., a 12-year-old Roma boy, was beaten at the Belgrade Police Department on 21 June 2001. Failing to learn any details about a theft allegedly committed by the boy’s brother, the inspector investigating the case proceeded to slap and hit F. on the head, and beat him on the palms and back with a nightstick. The boy was allowed to go two hours later at the insistence of his mother, who was present at the Police Department the entire time. Fearing reprisals by the police, the family of F. refused to file a complaint against the inspector. On 11 September, a few days after it had issued a press release on this case, the HLC received a letter from the office of the Serbian Minister of Internal Affairs stating that the Ministry had “no knowledge of the event described in the release,” and that “the child named had not been brought to the Juvenile Delinquency Division, which deals with matters involving juveniles.” The letter also accused the HLC of setting out “false and unsubstantiated information.”
Ljubomir Djurković, a dramaturgist from Podgorica, was brutally beaten by police on 2 October 2001. Djurković, a diabetic, was detained at the police station overnight and, when he asked for a glass of water since his mouth was dry because of his disease, he was kicked so hard by an officer that he flew to the other side of the room. This officer then warned him to keep silent about what had happened to him “because you are only a straw and we are fir trees.”
Article 12
The majority of cases investigated brought out that prosecutorial inaction remained the practice in both Serbia and Montenegro following the change of government. Though required to do so by law, prosecutors failed to institute criminal proceedings against persons suspected of torture, and did not take into consideration criminal complaints filed by the injured parties. Notwithstanding the many drastic cases of torture committed against Kosovo Albanians during 1998 and 1999, some of which resulted in death, not one has been officially opened by prosecutors. Inaction by a prosecutor is a insurmountable obstacle to instituting criminal proceedings and to a victim obtaining redress.[4] In the cases, few and far between, in which prosecutors did consider complaints filed against law enforcement officers, their most frequent response was to dismiss them as unfounded, solely on the basis of the statements of the officers concerned, who naturally denied any wrongdoing. Several instances were registered of the police authorities bringing charges, on occasion pre-emptively, against persons who alleged to be victims of officers using excessive force or overstepping their authority; instead of taking steps to establish the responsibility of these officers, the authorities preferred to maintain that the victims assaulted the police, i.e. committed the criminal offense of obstructing a police officer in the performance of his duty. And when such cases do come to trial, the sentences handed down by courts are, in the view of the HLC, in inverse proportion to the seriousness of the offense committed. Thus, in three decisions handed down by courts of first instance since the change of government, law enforcement officers convicted of using excessive force received jail terms of less than six months. It is also noteworthy that, under Serbian labor legislation, a person convicted to a jail term of up to six months may be reinstated in the position he held previously.
The Novi Beograd municipal authorities demolished a Roma settlement in this Belgrade suburb on 8 June 2000, on the grounds that it was unhygienic and built in defiance of zoning regulations. As the bulldozers razed the houses, police beat up a large number of Roma, including women and children. An officer struck nine-year-old I.S. as the child bent to pick up a dropped toy. On 12 August that year, the HLC filed a criminal complaint with the Fourth Municipal Public Prosecutor’s Office against several unidentified police officers, charging them with infliction of slight bodily harm and civil injury. To substantiate the complaint, the HLC also submitted medical certificates on the injuries sustained by the victims, and the names of eyewitnesses. In May 2001, the prosecutor dismissed the HLC’s complaint, saying “the police were only assisting workmen who were demolishing the settlement pursuant to an order issued by the Municipality.” No steps were taken to identify the officers concerned and, solely on the basis of a report furnished by the Novi Beograd police station, the prosecutor concluded that the police had not used excessive force.
About midnight on 11 August 2001, police approached Igor Borišić (21) in a Podgorica cafe and alleged that he was disturbing the public peace by talking too loudly. As they took Borišić to the police station and in the station itself, the officers beat him with their hands and nightsticks and kicked him, inflicting a serious head injury. A criminal complaint against the officers was filed with the competent public prosecutor’s office by an HLC staff attorney on 27 August. Instead of the prosecutor making an investigation and punishing the perpetrators, the police brought charges against Borišić for “assaulting an on-duty police officer.”
Fahrudin Huremović (23) and Rade Paunović (29), horse traders from Berane in Montenegro, were brutally beaten at the Konik market outside Podgorica on 28 August 2001. The police confiscated from Huremović 10,100 deutsche marks and 17 horses. The two men told the HLC that five or six policemen came up to them with pistols drawn, ordered them to lie face down on the ground and started kicking and beating Huremović with nightsticks. Then they ordered Huremović to stand up, handcuffed him, made threats and struck him with their hands about the head, face and ears while pushing him from one to another. This ill-treatment lasted for about half an hour. Paunović was also kicked and beaten with nightsticks. In early September, the HLC addressed Andrija Jovićević, the Montenegrin Minister of Internal Affairs, with a request to institute an investigation into these members of the republic’s police force and determine their responsibility. The HLC has no information on whether any action was taken in this case.
At approximately midnight on 22 September 2001, a police patrol physically abused a group of Roma children who were collecting waste paper in central Novi Sad. A girl of 12 was struck repeatedly on the head with a Motorola and a policeman cursed her “Shiptar mother.” E.M., a 14-year-old boy, was the most severely beaten. Trying to shield his head with his hands as the officers kicked him, the boy had his arm broken. The blows stopped only when he started crying. The HLC immediately issued a press release to inform the public of the incident and, at the same time, filed a criminal complaint against the unidentified policemen with the competent municipal prosecutor’s office. In a statement to Radio B92 on 21 October, Novi Sad Police Chief Major Saša Adamović said the inquiry into the incident “brought out no involvement of members of the police force in the beating of the minor E.M.”
At 5 a.m. on 12 June 2001, two officers of the Novi Sad Police Department stormed into the home of a Roma family displaced from Kosovo. B.R., her four children, aged 9, 6, 5 and 4, and her sister A.S. were in the apartment. Although both B.R. and A.S. know very little Serbian, the policemen brusquely turned down their request to call a neighbor to interpret for them. One of the officers put his hand over B.R.’s mouth, slapped and pulled her by the hair, and asked where her husband was. The same officer punched A.S. in the head and face, giving her a nosebleed, pulled at her clothing so hard that her brassiere snapped, and then started kicking her. Woken by the noise, the children started crying. The officer dragged them into another room and locked them in. In an effort to defend her mother, B.R’s oldest daughter tried to get away from the policeman, who pulled her by the hair into a corner of the room. The officers forced the half-naked women and children into the police car and allowed them to return to their apartment only when neighbors insisted. Accompanied by some neighbors, the two women went to the police station later that day to give statements about their treatment at the hands of these officers. At the station, they recognized the officer who had beaten them. The commanding officer heard them out and promised that the policemen would be punished. Fearing reprisals, the battered women did not file a criminal complaint or a suit for compensation. The HLC has no information on whether any action has been taken against these officers.
On 8 September 2000, three police officers brutally tortured seven activists of the Otpor Movement in Vladičin Han: tied their feet together and beat them on the soles and genitals, choked them with bare hands and a rope, beat them with nightsticks on the palms and body, banged their heads against the wall, pulled them by the earrings, forced them to crouch for long periods with their arms stretched out. In August this year, the Municipal Court sentenced these officers to jail terms ranging from 2.5 to 5 months.
Eighteen months after a complaint had been filed against him, the Municipal Court in Šabac on 6 November 2000 found Officer Marko Blagojević guilty of inflicting slight bodily harm and civil injury, and sentenced him to 45 days in jail. This policeman in April 1999 beat Milan Lazić, a local stonemason, outside the Zlatnik Cafe in Šabac.
On 16 March 2001 The Municipal Court in Kragujevac sentenced Officer Radomir Veljković to three months in jail suspended for one year for beating up, without any provocation, Branko Kostić, a Roma man, on 25 October 1998.
Article 13
Monitoring the observance of the Convention in FR Yugoslavia, the HLC noted the absence of any effective mechanisms “to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.” To the contrary, it has documented at least one case of repeated torture, an act of reprisal by police for the complaint filed against their colleague.
Dragan Šijački, a painter from Novi Sad, Vojvodina, on 24 July 2000 filed against three policemen who had beaten him severely near the art colony in Nadalj village on 14 July, fracturing his jaw in two places. The officers were charged with infliction of serious bodily harm and civil injury, and criminal proceedings against them began on 12 September 2000. At the same time, Šijački filed a civil suit against Serbia for compensation. As soon as the proceedings against the officers were initiated, the Šijački family began receiving threatening telephone calls, with the anonymous callers warning them give up trying to obtain justice. A year after the incident, on 16 June 2001, Šijački was again beaten up by a police patrol in the Fliper Cafe in Nadalj. As soon as they heard the cafe proprietor refer to Šijački as “our art teacher,” the officers dragged him outside and, in full sight of the other guests, punched him until he fell down and then kicked him all over the body.
Article 14
FR Yugoslavia and its constituent republics lack an effective system of legislative and other measures to make it possible for victims of torture to obtain redress and enforce their right to fair compensation and rehabilitation. Civil suits whereby they seek to do so are unduly prolonged, sometimes for years. In their unequal battle against the state, these persons are again victimized, and their right by law to compensation and rehabilitation is made meaningless. Courts frequently abuse the statutory provision allowing civil proceedings to be postponed until the criminal court hands down a final decision in the related case, although the Law on Civil Proceedings envisages this only as a possibility, not the rule.
In the single case of compensation for a victim of torture that has been finally disposed of thus far, the Municipal Court in Vršac on 22 August this year awarded Georg Tani (19), savagely beaten by police in 2000 in Plandište, Vojvodina, to force him to confess to a theft, the equivalent of 250 Euros.
In the compensation suit filed by Dragan Šijački, the Municipal Court in Srbobran, Vojvodina, at the preliminary hearing suspended the proceedings until final disposition of the criminal case against the officers involved.
The seven Otpor activists tortured by police in Vladičin Han also filed for compensation. In this case too the proceedings were suspended on 11 December 2000 until final disposition of the criminal case. Since the court of first instance handed down its decision only in August 2001, there is no telling when the appeal procedure will be concluded and the civil case resumed.
The Ristić case
The Committee against Torture considered an HLC communication on the case of Milan Ristić submitted on 22 July 1998, in which the HLC argued that the absence of a proper investigation into the death of this 19-year-old man constituted an infringement of the rights set out in Articles 12 and 13 of the Convention. On 11 May 2001, the Committee accepted the HLC’s arguments, found FR Yugoslavia in violation of its obligations under the Convention, and urged it to provide the applicants with an appropriate legal remedy and to inform the Committee, within 90 days, of the steps taken in response to the Committee’s observations.[5]
The HLC has on two occasions thus far addressed the Federal and Serbian Ministries of Justice, and the Serbian Public Prosecutor in connection with the Committee’s decision, pointing out that failure to take steps would constitute a violation of both the rights of the injured party and of the international obligations of this country. There has been no reply to date from any of the bodies addressed.
In conclusion
The HLC finds the frequency with which violations of the right to freedom from torture occur in both Serbia and Montenegro, even after the change of government, extremely concerning. Police officers continue to vent their aggression against the weakest and most vulnerable: members of the Roma and other ethnic groups, women, children and the infirm. Acts of violence take place not only in police stations, but also in the streets and even in the homes of victims. The HLC therefore considers it imperative to implement immediately sweeping reforms of the law enforcement and judicial systems in the two constituent republics, set up effective mechanisms of both internal control and external oversight, including civilian, of law enforcement, and to raise the awareness of the public that it can play a powerful, albeit informal, role in supervising the work of government agencies.
[1] Study on Policing in Federal Republic of Yugoslavia, October 2001, page 5, OSCE
[2] At its 348th, 349th and 354th Sessions on 11and 16 November 1998 (CAT/C/SR, 348,349 and 354), the Committee considered the initial report of FR Yugoslavia and addressed its conclusions and recommendations to the competent FRY bodies.
[3] All the cases cited in these Comments are from the documentation of the HLC, gathered through field research of human rights abuses. In each case, HLC researchers interviewed the victims and witnesses and took statements from them. The documentation also includes medical certificates, photographs, etc.
[4] If the public prosecutor decides to dismiss a complaint or to drop a case after initiating proceedings, the Criminal Procedure Code envisages the possibility of the injured party proceeding by assuming the capacity of private prosecutor. He must, however, initiate proceedings within eight days of receiving written notice from the prosecutor of the decision to dismiss a complaint, or from the court of the decision to drop already initiated proceedings. In the absence of such notice, the injured party may under Article 60 (4) proceed as private prosecutor within three months at most of the decision by the prosecutor not to prosecute or to drop the case. If the three-month period is exceeded, even if the injured party does not receive the required notification, he loses all possibility of himself prosecuting his case. Hence, prosecution of an offense defined as prosecuted by the state, requires the prosecutor to either prosecute himself or to notify the injured party that he has dismissed the case. Inaction by a prosecutor inaction in effect makes it impossible for an injured party to proceed as private prosecutor. Amendments to the Criminal Procedure Code proposed by the Federal Government in October 2001 envisage no changes in the pre-trial procedure, i.e. no sanctions for prosecutorial inaction.
[5] CAT/C/26/D/113/1998, 11 May 2001
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