Torture-effective remedies and fact finding procedures… is there such a thing in Serbia? Jovana Zorić Nevena Dičić Kostić Maja Nešović

Ratified International Documents  The ICCPR  The ECHR  The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  Optional Protocol to the Convention against Torture - established a system of supervising places where persons deprived of liberty are or may be. (ratified in 2005)  the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment  the Statute of the International Criminal Court

Legislature The Constitution of Serbia prohibits torture in Article 25 Inviolability of physical and mental integrity Physical and mental integrity is inviolable. Nobody may be subjected to torture, inhuman or degrading treatment or punishment, nor subjected to medical and other experiments without their free consent.

Treatment of persons deprived of liberty Article 28 Persons deprived of liberty must be treated humanely and with respect to dignity of their person. Any violence towards persons deprived of liberty shall be prohibited. Extorting a statement shall be prohibited.  Under the Constitution, measures providing for derogation shall by no means be permitted in terms of the rights guaranteed pursuant to Article 28 (Art. 202 (4)).

 The Constitution guarantees the right to effective court protection in the event of violation of the right to inviolability of physical and psychological integrity, and the right to reverse the consequences of such violations, which also implies the right to compensation in cases of torture or similar treatment, notwithstanding who had inflicted the maltreatment (Art. 22).

The Criminal Code  Article 137 of the Criminal Code incriminates ill-treatment and torture. This crime was introduced in the Serbian legislation in According to para. 1 of the Article: “Whoever ill-treats or treats another person in a humiliating and degrading manner shall be punished by a fine or imprisonment not exceeding one year.” According to para 2: “Whoever inflicts severe pain or suffering to a person by applying force, threat or another inadmissible method for the purpose of obtaining from him or a third person a confession, statement or other information, of intimidating or illegally punishing that person or a third person or for any reason based on discrimination of any kind shall be punished by imprisonment ranging from six months to five years.”  Attempts of torture are not incriminated!

The Criminal Code incriminates torture by the crime of extortion of a confession or statement (Art. 136) “(1) A public official who uses force or threat or another inadmissible method or means for the purpose of extorting a confession or a statement from an accused, witness, expert witness or another person, shall be punished by imprisonment ranging between three months and five years. (2) If the extortion of a confession or statement is accompanied by grave violence or if the extortion resulted in particularly serious consequences for the accused in criminal proceedings, the perpetrator shall be punished by imprisonment ranging from two to ten years.”

Perpetrators of torture can also be charged with the crime of unlawful deprivation of liberty (Article 132).  The simple form of this crime is committed by any person who unlawfully detains another person, keeps that person in custody or otherwise unlawfully deprives him or her of or restricts his or her freedom of movement.  The qualified form of the crime is committed by a public official or in the event the unlawful deprivation of liberty lasted more than 30 days or was committed in a cruel manner or seriously impaired the health of or had other grave effects on the person (para 3).  In the event the qualified form of this crime was committed by a public official or by a person at the order or with the consent of a public official, it can be qualified as torture or another form of ill-treatment in the meaning of the Convention against Torture

The Criminal Procedure Code CPC does not envisage special proceedings in case of torture. It does not stipulate the urgent adjudication of such cases or specify a particular method for documenting facts.  Although practice has shown that physical injuries are best indicators of torture, the national courts do not attach special evidentiary importance to medical documentation.

 The Criminal Procedure Code includes provisions on the respect for the personality of a suspect and the indictee. Any violence against a person deprived of liberty or whose liberty has been restricted is prohibited and punishable, as is any extortion of a confession or another statement from the indictee or another person taking part in the proceedings (Art. 12).  The CPC prohibits resort to force, threats, deceit, promises, coercion, attrition or other methods aimed at obtaining a statement or a confession which may be used as evidence against the accused or for the achievement of any other goals (Art. 89 (8)).

 The Criminal Procedure Code prescribes that court decisions may not be based on evidence when the content of or manner in which it was collected was in contravention of the provisions of the Constitution or a ratified international treaty, or expressly prohibited by the CPC or another law (Art. 18).

Right to have access to a doctor  The Constitution of Serbia does not envisage the right of persons deprived of liberty to have access to a doctor.  Under the Criminal Code, a person deprived of liberty, his/her counsel or family member may ask the investigating judge to order a medical examination. Such a request may also be filed by the public prosecutor; the decision allowing medical examination is taken by the investigating judge.  All persons subjected to solitary confinement must undergo a medical examination. The medical report is submitted to the warden. (Art. 60) (Art. 23).  Serbia’s penal institutions, however, lack doctors who would be at the disposal of persons deprived of liberty round the clock. The shortage of doctors in penitentiary facilities can be ascribed to their substandard working conditions (low salaries, the risks the job entails, lack of adequate protection).

 The underdeveloped system of monitoring police custody sites undoubtedly hinders more efficient prevention and punishment of torture committed by the police.  National Preventive Mechanism  To be fully effective, monitoring visits should be both frequent and unannounced. Further, the monitoring bodies should be empowered to interview detained persons in private and examine all issues related to their treatment.

 With regard to prohibition of torture, inhuman or degrading treatment or punishment, the state has an obligation of non-refoulement of a person to a state where s/he may be exposed to ill- treatment.  M.S.S. vs Belgium and Greece and practice of Serbian Asylum Office – extradiction to Macedonia, to Greece

No effective remedies  Criminal complaint (effective remedy???)  Constitutional complaint (effective remedy???)  Request for damages  Complains to Ombudsperson  Disciplinary proceedings

 The Code of Police Ethics  The Rulebook on Measures for Maintaining Order and Security in Penal Sanctions Enforcement Establishments  Prison rules

ECHR and Serbia  CASE OF STOJANOVIC v. SERBIA  CASE OF DERMANOVIC v. SERBIA