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.