Serbia Aware that Judicial Reform Entails Inherent Challenges, Given Enduring Regional Legacy of Conflict, Delegation Tells Human Rights Committee
Serbia Aware that Judicial Reform Entails Inherent Challenges, Given Enduring Regional Legacy of Conflict, Delegation Tells Human Rights Committee
|Department of Public Information • News and Media Division • New York|
Human Rights Committee
2779th & 2780th Meetings (AM & PM)
Serbia Aware that Judicial Reform Entails Inherent Challenges, Given Enduring
Regional Legacy of Conflict, Delegation Tells Human Rights Committee
Experts Question State Action on War Crimes
Investigations, Prosecutions; Conclude Consideration of Slovakia’s Report
While Serbia had made gains in reforming its judiciary, advancing minority participation in public affairs and generally fostering a “spirit of tolerance and inter-cultural dialogue”, the Government was aware of the challenges it faced in advancing civil and political rights, especially given the enduring legacy of conflict in the region, top officials told the Human Rights Committee today as its experts considered the country’s second periodic report.
Sanja Jašarević-Kužić, Assistant Minister for Human and Minority Rights, Public Administration and Local Self-Government, said everyone was considered equal under the law, and discrimination was prohibited on any grounds, especially those of race, sex, ethnic affiliation, social origin, birth, religion and culture. The 2009 Law on Prohibition of Discrimination prescribed a two-pronged approach to protecting citizens — initiating a lawsuit in a court of law, or lodging a complaint with the Commissioner for the Protection of Equality, a special independent State body. Discrimination was also identified as a crime under the Penal Code, she added.
As for the protection of national minorities, she said the Constitution guaranteed the right to elect national-minority councils for the exercise of the right to self-management in areas relating to culture and education, as well as use of their respective languages and alphabets. To advance their participation in public affairs, Serbia had abolished election thresholds for national-minority political parties participating in republican elections and increased their presence in State administrative organs.
In the ensuing exchange, some Committee experts praised Serbia for creating a solid legal framework, including a Gender Equality Act and a law on the election of parliamentary deputies. However, there still seemed to be a wide gap between those legal provisions and the reality on the ground. Others pressed the delegation for details of what happened to people convicted of violence against ethnic minorities, including the Roma.
Nigel Rodley, expert from the United Kingdom, thanked the delegation for providing detailed information on war crimes prosecutions, but also recalled that only eight former Interior Ministry officials had been prosecuted for 49 crimes associated with the Batajnica massacre, whereas 889 bodies had been found in that area. Was the Special War Crimes Chamber Belgrade’s Higher Court so passive that it had to wait for victims to come forward and declare themselves?
In response, one delegation member said the Special War Crimes Chamber had heard 17 cases so far. There had been 14 cases in the first-instance procedure. “It’s a dynamic process, liable to change,” he said, explaining the emphasis that Serbia placed on investigating war crimes. Those with enforceable judgements were already in prison, he added. As for Batajnica, he said there had been only one request for a new investigation into the massacre.
Referring to the so-called “Kosovo cases”, he explained that to conduct an investigation on an excavated person, their identity and last place of residence must be ascertained, including details about their death. Those tasks could only be undertaken in Kosovo, he emphasized. On the “yellow house” case, which covered “monstrous” crimes concerning the trafficking of human organs in Kosovo, he said Serbia had received no cooperation from its counterparts in Kosovo, adding that the only solution was to establish an inter-regional cooperation body.
Another member of the delegation stressed that the number of ethnically motivated crimes in Serbia was falling as a result of harsher penal policies and faster court procedures. Sentences closer to the legal maximum were being pronounced, whereas only the legal minimum had been enforced in the past. Ethnically motivated violence was unacceptable, he emphasized. When such cases arose, the country’s highest-ranking officials reacted. “The entire State apparatus reacts,” he reiterated, as did the media. “People understand that violence leads to violence.”
Earlier today, the Committee wrapped up its consideration of Slovakia’s third periodic report, with one expert expressing surprise that the eight-person delegation had not made more of the fact that, since its last report, the country had acceded to the European Unionin 2003, and thereby “passed the hurdle of scrutiny” on issues like the rule of law that were also regulated by the Covenant. Experts praised the creation of a commission to review the situation of Roma children in special schools, and said they were encouraged that Serbia now had its first Roma town mayor.
At the same time, they raised concerns about the Roma communities as Slovakia’s “most prominent” human rights problem, especially since questions about the alleged forced sterilization of Roma women had not been adequately answered. Legislation and actions plans must be implemented, said Zonke Zanele Majodina, Committee Chairperson and expert from South Africa, in closing remarks. “They have to be monitored.”
The Committee was also concerned about the 2005 Constitutional Court ruling on positive discrimination, she said, citing police conduct in detention centres and the issue of racial violence, particularly the need to prosecute and punish perpetrators, which needed further implementation. The Committee would provide more detailed observations and conclusions in the hope that today’s dialogue would help put Serbia on track to enhance its human rights situation.
The Human Rights Committee will reconvene at 10 a.m. tomorrow, 18 March, to continue its consideration of Serbia’s second periodic report.
The Human Rights Committee, the 18-member expert body that monitors global implementation of the International Covenant on Civil and Political Rights, continued its 101st session today, concluding its consideration of Slovakia’s third periodic report and taking up the second periodic report of Serbia. See also Press Release HR/CT/729 of 16 March.
Responding to questions posed yesterday about monitoring, one delegation member said her country had introduced controls into legislation through an internal inspection system of the Interior, Justice and Health ministries. Additionally, an internal inspection service provided for independent investigation of crimes allegedly committed by police officials, and reported to the Ministry of the Interior.
Beyond that, she said, the Prosecutor’s Office performed checks at various inspection centres, while the Ombudsman also had the authority to perform similar controls and checks. As a Council of Europe member, Slovakia was subject to regular assessments by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the last of which had been held in 2009.
Turning to domestic violence, she said there had been a change in the relevant legislation, which now considered rape a crime, whether it happened in wedlock or not. The police had gained additional powers to combat domestic violence and could impose a restraining order until a court imposed an interlocutory injunction. A new action plan to fight domestic violence was introduced every three or four years, she added.
Committee Experts’ Comments and Questions
KRISTER THELIN, expert from Sweden, said he was struck by the lack of a strong reference to Slovakia membership of the European Union dating back to 2003. One could say that such membership presupposed that the country had passed the hurdle of scrutiny on issues like the rule of law, which were also regulated by the Covenant. Emphasizing that more mature European Union member States “certainly do have their flaws” in terms of fulfilling their Covenant obligations, he said of the delegation’s statement that it had come to defend its record: “There’s nothing to defend.”
Regarding issue 13 (non-discrimination and freedom from torture), he asked how many complaints of torture and ill-treatment the Prosecutor’s Office and the Ombudsman had dealt with. Given the delegation’s remarks, there did not seem to be very many charges reported, he noted. That could reflect the fact that there were not many, or that “not much is being done” about existing ones. He said he was surprised by the delegation’s response to question 15, on compensation, that 10 per cent of such compensation went to victims of torture and ill-treatment, which made it difficult to reconcile the response to question 13.
Regarding the treatment of the Roma, he recalled that Slovakia had been encouraged in 2003 to establish a mechanism that would provide data on the Roma, and asked what had been done to fulfil that recommendation.
He also asked about the type of sentences handed down to 10 police officers charged with abusing power, and about the compensation awarded to the victims. In another 2009 case, police had been accused of having encircled and abused Roma, shouted at children “in a racist way” and then arrested them. Had disciplinary action been taken against the police in that case?, he asked.
On issue 14, he requested statistics on claims by detainees for medical attention. Commending the use of video monitoring in detention centres, he asked whether the videos were stored, and further, if people detained under the Alien Act were subject to such monitoring.
As for issues 18 and 19, on the rights of aliens, he asked about a statement released by Amnesty International on 28 April 2010 on the Algerian case, which claimed that the then-Interior Minister had taken a “fairly light-hearted view” of that matter. The European Court of Human Rights had decided to stay the proceedings, but the extradition had been executed in spite of the stay. He said the Minister was reputed to have said that the penalty for violating the stay was “only a couple of thousand euros”, giving the perception that human rights could be bought off. Unless that had been a misquote, one could see the concern, he said.
He also asked whether proceedings involving aliens went to the Supreme Court or the Constitutional Court, and whether legal expertise was present in the various levels of the court system, particularly the lower levels.
CHRISTINE CHANET, expert from France, said she felt “somewhat frustrated” because her legal questions about the Constitutional Court ruling from October 2005 had not yet been answered. She noted that while the delegation had made a lot of effort to provide details, she sometimes felt that the answers were more applicable to the Committee on Economic, Social, and Cultural rights than the Human Rights Committee. It was understandable that the Government was looking to education and health care for solutions regarding the Roma, but given that the Committee was charged with reviewing compliance with the International Covenant on Civil and Political Rights, it would appreciate answers relating specifically to those rights, she said.
Slovakia’s written responses regarding the length of time that a person could stay in police custody included timeframes ranging from 24 to 72 hours, depending on the charges, she noted. What was the standard remand time? Who authorized extensions to 72 hours in specific cases? Was arraignment the next step, and when did it occur?, she asked, requesting the delegation to provide clarification regarding the institution before which the detainee would appear.
On the question of legal aid in criminal cases, she requested the cut-off figure, in euros, for determining a defendant’s ability to pay. While report stated that doctors were present during remand, was that also the case for lawyers? Did they appear only when the detainee went before the judge or before? While noting the positive changes in Slovakia’s use of military tribunals, she asked whether there were presently any cases before a military judge.
YUJI IWASAWA, expert from Japan, returned to yesterday’s questions, saying he remained unclear as to why the Covenant was not invoked in the courts. On issue 23, concerning the Press Act, he said the report addressed the Committee needed further details on exactly what parts of it were under question in litigation concerning its compatibility with the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms. He also requested further clarification on a case before the Constitutional Court concerning the protection of media sources, asking whether a decision had been made.
On issue 22, on corporal punishment of children, he said the Committee was pleased to see that Slovakia was trying to accommodate the concluding observations of other United Nations treaty bodies, specifically the Committee on the Rights of the Child, but wished to know whether Slovakia’s Criminal Court protected children from corporal punishment. Was it unlawful in the penal system, alternative care settings and schools, and prohibited as a disciplinary measure in those settings?
Quoting the report as stating that the “boundary between torture, conduct criminalized by the criminal code and corporal punishment was determined by the intensity of action”, he said that was confusing and requested further clarification. Did the Government plan to prohibit corporal punishment explicitly? Surveys showed that parents supported different levels of corporal punishment at home. Could the delegation provide information in that regard?
He further pressed the delegation on dissemination of the Covenant (issue 24), noting that discrimination against minorities, including the Roma, was possibly due to the perpetrators’ ignorance of international human rights treaties. He requested more details on the Government’s efforts to educate the population. He also asked how members of the newly constituted Council for Human Rights, National Minorities and Gender Equality were elected, and what action the Council was expected to take on dissemination of information about the Covenant. What role would it play in preparing periodic reports for international treaty bodies?
He went on to ask whether training on different treaty bodies, including the Covenant, was provided to lawyers and judges. What was the involvement of representatives of ethnic minority groups, civil society, non-governmental organizations and other non-governmental groups in preparing Slovakia’s periodic reports?, he asked, adding that some of those responses could be provided in writing.
IULIA ANTOANELLA MOTOC, expert from Romania, requested more information concerning the Constitutional Court’s ruling regarding on the limits of minority rights. The oral response indicated that efforts to promote the rights of national minorities ceased when those rights reached parity with those of the majority, but the Committee remained concerned about the delegation’s written response, she said, suggesting that the delegation “circle back” to the issue. More specifically on the rights of the Roma, she asked whether sterilization was a systematic practice. While the Government had taken action once the issue had been brought to light, why did it seem not to consider the practice a serious crime?
NIGEL RODLEY, expert from the United Kingdom, said he was encouraged by the delegation’s statement that the number of sterilizations among the Roma was generally lower than those of other groups, but requested information on the source and methodology for those statistics.
Admitting that his next issue was not on the Committee’s list, he noted that Slovakia had promoted conscientious objection in bodies, such as the Human Rights Council, yet soldiers sometimes developed conscientious objection while serving. Did Slovakia have any provision for dealing with such instances?, she asked. Had the country experienced any such cases?
Responding to questions on the Roma, one delegation member said that following the indictment of 10 police officers on abuse of power charges, they had all been laid off. The district court had found them all guilty, a verdict carrying a sentence of four to 10 years’ imprisonment. The ruling had taken the charges of abuse of power, racial hatred and commission of a racially motivated crime into account, but the ruling was not yet final as the defendants could appeal. No action had been taken as yet on indemnification, since any settlement was separate from the criminal proceedings.
Generally speaking, cases of racially motivated violence cases had led the Interior Ministry to increase the number of specially trained police, who were then deployed in communities with a potential for conflict with Roma settlements. There were 230 such officers, he added. As for the question of monitoring, he said a draft action plan on housing, health, education and social inclusion for Roma communities — once finished in May — would focus on their overall integration. A comprehensive strategy document must also be completed as the current one was about to expire. Moreover, as a contribution to the “Decade of Roma Inclusion”, Slovakia had launched action plans for countries, he said, noting that the Czech Republic had proposed a united monitoring system to review all such action plans, as each country approached the issue differently.
“Without data there is no progress,” he said, stressing also that collecting data was a sensitive issue. Ethnic data was available and a map of Roma communities dating back to 2004 was being updated. Touching on social and economic problems, he said his Office focused on the overall well-being of communities, including issues of discrimination. It cooperated with the Budapest-based Roma Rights Centre, which focused on human rights for the Roma in Central and Eastern Europe, as well as with People against Racism, an organization in Slovakia.
Responding to questions on corporal punishment, another delegation member said the 2008 School Act prohibited all physical punishments in educational facilities such as dorms, schools and orphanages. In April 2008, a strategy of solidarity and inclusion had been adopted with a focus on the Roma. It contained deadlines and detailed funding from both State and European Union sources. Also, a quarterly review of the education system was underway, in which the success rate of school children was being monitored, especially those from disadvantaged circumstances. For the 2010-2011 year, the State had allocated €5.8 million for 65,590 such children, she said, adding that the funds would be spent on developing individual curricula, adjusting the education environment and initiating other education reforms. A new category of “teacher specialist” had been created to work with such children, she added.
The Government supported elementary schools — not special schools — where daily education programmes were undertaken, she said, emphasizing the need to retrain specialist teachers with the aim of correcting past shortcomings that had seen children placed in special schools and unable to attain regular educational standards. Intense courses would be offered to enable them to complete their studies.
Addressing a query about statistics on crimes perpetrated by police officers, another delegation member said she only had data for the Interior Ministry, which had received 2,065 complaints of crimes by police officers in 2010. Of that total, 151 officers had been indicted for 183 separate crimes.
As for video recordings in detention centres, she said the issue concerned a detainee’s immediate access to medical care and legal counsel. If police found a detainee intoxicated by medication, psychotropic drugs or other substances, they requested immediate medical care to determine whether the detainee could be taken into custody. If that person became ill or attempted suicide, the police must take measures to protect their health, including by Cardiopulmonary Resuscitation (CPR). The Interior Ministry’s internal regulations stated that immediate notice must be paid to the prosecution and next-of-kin, he said, adding that while the Police Act did not provide for compulsory video recording, it was indeed permitted.
She said the State was obliged to provide immediate access to legal counsel, meaning that detainees could call counsel on a phone from the police station. In facilities for illegal aliens facing extrajudicial proceedings, everyone was required by law to have access to medical care, including persons with illegal aliens, she said. Once placed in a facility, an alien must submit to a medical examination by a doctor. If the detainee’s health required extra medical care, they were taken to hospital by police escort. The State picked up the bill for that treatment, but if the alien caused bodily harm to himself or herself, they would handle any costs incurred, she said.
She went on to add that a legal assistance centre located in the Interior Ministry provided free assistance to illegal aliens and asylum seekers. Describing the legal process, she said an appeal could be filed with a regional court, and if the court rejected the appeal, the ruling could be examined by the Supreme Court, whose decision was final. Beyond that, the Constitution stated that a person could file a complaint with the Constitutional Court, where it would be subjected to review in order to determine the complaint’s compatibility with the Constitution and international treaties to which Slovakia was bound. It could then go to the European Court of Human Rights.
As for the Algerian case, she said the European Court of Human Rights had decided that the person concerned should not be extradited until all remedies had been exhausted. It had been the Interior Ministry spokesman, not the Minister, who had made the aforementioned claim, she said, adding that the Government had responded in such a manner as to avoid lowering the level of the interlocutory injunction imposed by the European Court of Human Rights. It had proceeded in the belief that the rights of the individual had not been violated as the Government had not exposed him to the danger of torture or death to be found in his homeland. Moreover, a precedent had been set in France and Spain, she said, adding that, in the interest of national security, and as a Schengen member State, Slovakia was willing to bear the fine.
Turning to questions about the duration of remand in police custody, she said it depended on the reasons for a suspect’s detention, stressing that the legal maximum was 24 hours, after which the detainee must either be released or placed in the custody of the courts. At that point a judge must decide within 48 hours whether the detainee should be prosecuted while in custody or while free. In some specific cases, the deadline was extended to 72 hours, she added.
She said Slovakia had effectively abolished all military tribunals from 1 April 2009, and all crimes relating to national security were now prosecuted in regular civilian courts. Specialized criminal courts dealt with crimes of corruption or those committed by organized criminal groups, for which the penalty was eight years or more. In criminal cases, a lawyer’s presence was obligatory during remand, if the detained person so desired, she said, adding that, in court, the detainee must have representation, whether willing or not.
Another delegation member then took up questions regarding the composition and powers of the Council for Human Rights, National Minorities and Gender Equality, describing it as a permanent body of experts that coordinated and advised on fundamental rights and freedoms, including political and civil rights, minority rights, economic, social and cultural rights, and environmental rights. It enforced the principle of equality, including gender equality, took positions and considered draft reports on Slovakia’s fulfilment of international obligations, particularly those relating to international covenants and treaties. The Council also reviewed the various rights charters of the European Union, she added.
While coordinating the human rights policies of individual ministries, the Council also coordinated with regional bodies, non-governmental organizations, civil society and scientific and academic groups, she continued, noting that it also submitted policy proposals on the protection of human rights. The Council was chaired by the Deputy Prime Minister for Human Rights and National Minorities and had two vice-chairs: the Minister for Labour and Social Affairs and the Minister for Justice. The Deputy Ministers for Environment, Health and Finance, as well as representatives of municipalities and experts on human rights, also sat on the Council, as did the Ombudsman and the Director of the National Centre for Human Rights, she said.
She further noted that a committee on national minorities addressed issues relating to seniors, disabled persons, gender equality, children and youth. Two new committees had been created, one on research education and training in the area of human rights, and the other dealing with the prevention of discrimination, xenophobia and other forms of intolerance.
Slovakia’s third periodic report had been drafted on the basis of public information, including reports from non-governmental organizations and civil society, she said, adding that those groups had also participated in a period for commenting on the draft. Moreover, the Manifesto for 2010-2014 invited non-governmental organizations to address human rights issues. Governmental advisory bodies were currently being transformed to streamline their structures and increase their efficiency, she said.
On 2 March 2011, she continued, a separate institute of the Plenipotentiary for Development of Civic Society had been established with the aim of intensifying the participation of various public stakeholders through the development of various mechanisms. It would be part of the Council for Human Rights, National Minorities and Gender Equality and chair the Council for Non-Governmental Organizations.
MILOŠ KOTEREC, Permanent Representative to the United Nations and head of the delegation, responded to questions about the Press Act by stating that an important amendment was currently under consideration, estimating that it would be adopted in the next few months, and pledging to provide Committee members with the text.
In response to questions on criminal proceedings relating to forced sterilizations, another delegation member said the specialized investigative team set up within the police force to examine allegations of coerced sterilization had included a member from the Ministry of Health. Criminal proceedings had been concluded in 2003 owing to the “incontrovertible fact” that, in the team’s assessment, no crime had been committed. The Prosecutor had then examined whether ending the investigation was itself a crime, and whether any additional evidence existed to show that forced sterilization was a real crime. Procedural errors had been found during the investigation of alleged forced sterilization, whether in the commission of the crime or in the criminal proceedings, she said.
The errors had been committed by health staff and were exclusively administrative in nature, she said. On that basis, health legislation had been enacted to avoid a repetition of such cases. There was now a 30-day waiting period during which patients could decide to withdraw their sterilization application. That information, including a detailed paper on the Government’s efforts in that regard, had been forwarded to the Committee on the Elimination of Discrimination against Women, which had taken no action under its Optional Protocol, she said, adding that responding further to allegations of such complaints was, therefore, unnecessary.
Experts’ Comments and Questions
Mr. THELIN, expert from Sweden, said he was “more or less satisfied” with the delegation’s responses and “took heart” from the details provided. Noting that the Mustapha Labsi case had now been given a different slant internationally, he said it seemed clear that Amnesty International had largely overstated the facts, he said, noting that the delegation’s nuanced answers on the matter had further allayed his fears. Nevertheless, there might be lingering issues in the Interior Ministry stemming from the legacy of communism, he said requesting written information on allegations of torture and ill-treatment from 2006 to 2010, as well as global figures that could help the Committee better evaluate whether such had been written off or pursued through the legal system.
Mr. IWASAWA, expert from Japan, thanked the delegation for its willingness to provide the text of the Press Act and requested that it note which of its provisions were being contested. While it might not be easy to explain in the absence of a court decision, the delegation should outline the issues in question, he said, adding that the explanation could be submitted in writing.
Mr. KOTEREC said the session had been a “very efficient and useful tool” for evaluating the human rights situation in Slovakia. The Government would give due attention to the experts’ recommendations and duly consider all of their remarks and questions.
ZONKE ZANELE MAJODINA, Chair of the Committee and expert from South Africa, agreed that the dialogue had been constructive, saying the Committee had taken into account the new Government’s frankness regarding the human rights challenges it faced, as well as its persevering efforts to enhance protections in spite of them. The Committee particularly appreciated specific positive developments such as the establishment of the Council for Human Rights, National Minorities and Gender Equality and the creation of a commission to review the situation of Roma children in special schools. It was especially encouraging that Slovakia now had its first Roma town mayor, and that it did not extradite people to countries where they might be subjected to torture.
Nevertheless, the Roma issue had surfaced as the most prominent human rights issue in Slovakia, she emphasized. While the Government had built up a strong legislative framework in that context, the Committee did not think that was enough. Legislation must be implemented, and the delegation had yet to address that fact in full. The Committee was not sure that the delegation’s answers on sterilization had been fully adequate, and it remained concerned about the 2005 judicial decision on positive discrimination, the conduct of police on detentions and the issue of racial violence, particularly the prosecution and punishment of perpetrators, which needed further concrete implementation. The Committee would provide more detailed observations and conclusions in the hope that the dialogue would help put Slovakia on track to further enhance its human rights situation, she said.
Presentation of Report
The Committee then took up the second periodic report of Serbia, which consists of a main section conveying information on certain articles of the Covenant and two annexes. The first includes statistical data on certain fields covered by the Covenant, and the second consists of a report by the Ministry for Kosovo and Metohija, relating to the status of ethnic Serbs in that autonomous province. A draft of the report, prepared by Serbia’s Agency for Human and Minority Rights, with the assistance of a number of Government ministries, has been sent to relevant non-governmental organizations for comments.
SANJA JAŠAREVIĆ-KUŽIĆ, Assistant Minister for Human and Minority Rights, Public Administration and Local Self-Government of Serbia, said that under the Constitution, universally accepted rules of international law and ratified international treaties were integrated into the domestic legal system and directly applied therein. In 2009 alone, more than 160 laws had been passed and various international conventions ratified, including the Convention on the Rights of Persons with Disabilities and its Optional Protocol.
She explained that her country was unable to implement the Covenant or monitor its application in the province of Kosovo and Metohija because its administration had been entrusted to the United Nations Interim Administration Mission in Kosovo (UNMIK). Serbia therefore welcomed the Committee’s 2004 proposal that the Mission submit information on the Covenant’s implementation in that territory, and happy that — having considered its report in 2006 — the Committee had gained insight into the state of civil and political rights in the province. She suggested that the Committee call on UNMIK to submit information once again.
Under Serbia’s constitutional and legal system, everyone had the same legal protection and freedom from discrimination, she said. It was prohibited on any grounds, especially race, sex, ethnic affiliation, social origin, birth, religion, political or other belief and culture. Discrimination was identified as a criminal act under the Penal Code, which also prohibited incitement to hate and violence. The 2009 Law on Prohibition of Discrimination prescribed a two-pronged approach to protecting citizens, by initiating a lawsuit before a court of law, or lodging a complaint with the Commissioner for Protection of Equality, a special independent State body.
In the area of gender equality, she said the Gender Equality Law was intended to create conditions for the pursuit of equality and entailed special measures to eliminate gender-based discrimination. The starting point for all activities was the 2009 National Strategy for Improvement of the Position of Women and Advancement of Gender Equality, which laid out a comprehensive policy for integrating gender equality into all State institutions. It encompassed six areas, including full enjoyment of women’s right to participate equally in decision-making and the eradication of economic inequality between men and women.
Turning to the Roma community, she said the 2002 census showed that 108,193 citizens had declared themselves members of that minority, but other surveys suggested the number might range from 450,000 to 500,000. In 2009-2010 a strategy for advancing the position of the Roma had been adopted as was an action plan covering priority areas such as education, housing, employment, problems relating to readmission, as well as social insurance and protection. About 30 local authorities had also drafted strategies covering those issues, while the Government had set up the Council for Advancement of the Position of Roma and Implementation of the Decade of Roma Inclusion.
She went on to state that judicial reforms launched in 2008 had led to the passage of a set of judiciary-related laws, and the number of judges had been adjusted to suit the reduced number of courts. The establishment of the Judicial Academy was intended to contribute to a professional, independent and unbiased execution of judicial and prosecutorial functions, while the Law on Execution of Penal Sanctions prescribed conditions for the application of coercion on persons deprived of liberty. It guaranteed free health care for convicted persons to the same degree enjoyed by those outside the prison system, she said. Regarding the prohibition of hate speech, she cited a law banning the manifestation or use of neo-Nazi or fascist symbols, as well as the use of computers to promote ideas or theories that incited hatred, discrimination or violence against people on the grounds of race, skin colour, genetic, national or ethnic origin, and religion.
As for the protection of national minorities, she said the Constitution guaranteed those rights, which implied that members of national minorities — either directly or through elected representatives — participated in decision-making relating to their culture and education as well as the use of their language and alphabet. The Constitution also guaranteed the right to elect national minority councils for the exercise of the right to self-management in those fields, which — as institutions of legal and cultural autonomy — were regulated by a 2009 law. Elections for national minority councils had been held on 6 June 2010, and 19 councils had been elected, 16 of them directly and three by “elector assemblies”.
In that context, she said, Serbia had taken measures to advance the participation of national minorities in the management of public affairs, notably by abolishing election thresholds for national-minority political parties in republican elections, and by increasing participation in State administrative organs. That envisaged the publication of vacancy announcements in the print media, in the languages of national minorities, in addition to fostering a “spirit of tolerance and inter-cultural dialogue” that included organizing round tables, conferences and multi-ethnic sporting events in ethnically mixed communities.
Experts’ Comments and Questions
Mr. THELIN, expert from Sweden, noted the near-perfect gender balance in Serbia’s delegation, saying its composition seemed to offer a good opportunity to follow up on the Committee’s questions, as well as the country’s second periodic report. Voicing support for Serbia’s future inclusion to the European Union, he underlined the momentum that accession would give the Covenant’s implementation throughout the country.
Turning to issue 2, on invocation of the Covenant in the courts, he asked about the extent to which it was invoked in Serbia, noting that different non-governmental organizations and expert reports suggested that knowledge of the Covenant was not as great as it could be, that it was somewhat overshadowed by the European Convention on Human Rights.
While praising the quality of information provided by the office of the national Ombudsman, he said it was less than satisfactory when the Ombudsman himself made critical observations about the functioning of Serbia’s court system. Moreover, the Committee was concerned about coordination among the lower levels of ombudsman functions. That had an impact on, among other things, issues relating to the Serbian police, which comprised a national force, rather than a local one, making the function of lower-level ombudsmen more critical.
CORNELIS FLINTERMAN, expert from the Netherlands, said with respect to issue 4 (gender equality) that the Serbian Government had created a solid legal framework, particularly by passing the Gender Equality Act of 2009 and a law on the election of parliamentary deputies. Its National Strategy on the Advancement of Women and Gender Equality was also central in that area. Nevertheless, there still seemed to be a wide gap between those legal provisions and the reality on the ground, he said, requesting information on the financial and human resources allocated to implement those key pieces f legislation.
How was equal opportunity in the judicial and legal system guaranteed for women?, he asked. What actions was the State taking to combat persistent patriarchal and gender stereotypes? Did the new legislative framework of the Gender Equality Act provide for complaint functions, and did the Ombudsman play a role in that area? Were there any special measures for women who suffered discrimination, not only on the basis of sex, but on the basis of race? Could the delegation provide information on its efforts to ensure equal access of minority women to health-care services?
Turning to issue 5 (violence against women, including domestic violence), he commended Serbia’s legislative activity in further protecting women from violence through the Family Law, the Criminal Code and the Gender Equality Act. He recalled that the Committee on the Elimination of Discrimination against Women had recommended the adoption of a specific domestic violence law to consolidate the provisions spread throughout other pieces of legislation, he said, asking what had been done in that regard.
Noting that enforcement of the Family Law was “somewhat lacking”, particularly among a “relatively lax” judiciary, as well as police authorities, he asked what mechanisms existed to address domestic violence. Were police trained in that area? What measures was the State undertaking to help women overcome their fear of reporting domestic violence? Reports from non-governmental organizations suggested there was insufficient Government support for non-governmental organizations struggling against domestic violence, he noted, asking about plans for funding medical centres, shelters, crisis hotlines and other similar institutions. If established, would such shelters also accept children? What was the State doing to regularize its work with non-governmental organizations? Underlying the significant role played by the media in combating domestic violence, he asked what the Government was doing in that area.
GERALD L. NEUMAN, expert from the United States, took up question 6 (situation of internally displaced persons), noting that such persons, particularly members of the Roma minority, faced particular problems in acquiring official personal documentation. Did Serbia recognize those problems, and, if so, what was it doing to solve them? Given the length of time over which those problems had persisted, he wondered what was delaying their resolution.
On question 9, which addressed the State’s response to violence against ethnic minorities, including the Roma, he noted that the report described a decline in such crimes, but did not elaborate on the ensuing consequences, whenever they did occur. Requesting information in that respect, including on the charges on which suspects had been convicted and their subsequent sentences, he expressed concern that there was “effective impunity” whereby complaints were filed but no consequences were forthcoming.
He went on to say that Serbia’s response to the Committee’s question on the implementation of the Law on the Prevention of Discrimination against Persons with Disabilities (question 10) suggested the law’s existence, but not its implementation. He requested further details of the law, including on whether such discrimination existed. With respect to mentally disabled persons, the law was based on the principle that persons with disabilities should be included in decisions relating to their health and situation. Yet reports indicated that Serbian courts regularly made decisions based on the testimony of family members or experts, rather than that of the disabled persons themselves. Was that the case, and if so, what was being done to address it? he asked.
He also asked for an update on access to education by children with mental disabilities. Had Serbia passed the relevant law in anticipation of ratifying the Convention? he asked. Did it constitute the State’s full response to obligations under that Convention, or did the State need to update its legislation on persons with disabilities?
FABIÁN OMAR SALVIOLI, expert from Argentina, asked about the jurisdiction of cases falling under the Law on Prohibition of Discrimination. Were such cases currently underway? What procedures were involved and what was their outcome?
Turning to question 8, on the elimination of ethnically and racially motivated discrimination, he noted the “clear discrimination” against the Roma in Serbia. While the State had taken a number of legislative measures to curtail it, what effect had those measures had, particularly since the situation did not seem to have improved? He also expressed concern about the high level of poverty among the Roma community, which made them highly vulnerable. He also asked about the persistent barriers preventing the Roma from accessing the legal system, noting also that many of their children were sent to special schools, although that circumstance had less to do with their intellectual capabilities than with the difficulties posed by their language. Could the delegation provide an update on Serbia’s actions to address that situation?
Mr. RODLEY, expert from the United Kingdom, focused on articles 6 and 7 of the Covenant, thanking the delegation for the information provided on war crimes prosecutions. Referring to Serbia’s written replies, which outlined the numbers of prosecutions and judgements handed down by the Special War Crimes Chamber of Belgrade’s Higher Court, he said six cases in the Court of Appeals were awaiting a decision, and wondered whether all the other cases were now final, and if those sentenced were serving their terms.
Given the magnitude of the relevant “dark period” of Serbia’s history, respected non-governmental organizations had suggested people were afraid to bring cases forward, he said, noting allegations that the Interior Ministry had treated “insider witnesses” as traitors. As for Serbia’s response to question 11 (b), he recalled that the Batajnica massacre had led to the prosecution of eight members of the Interior Ministry for 49 crimes, though 889 bodies had been found in that area. Was the Special War Crimes Chamber so passive a body that it had to wait for people to come forward and declare themselves victims of crimes?, he asked.
Concerning Serbia’s response to question 11 (c), on compensation, he said claims for indemnification had been directed towards civil action in the proceedings conducted before the Special War Crimes Chamber, since the injured parties had failed to specify their claims within the criminal proceedings. It was not clear on what “failed to specify claims” meant, he said, asking whether it meant that the parties concerned had failed to make a formal complaint in the course of the proceedings. If so, what kind of opportunities had they been given to do so in the first place? Was it to be understood that a “statute of limitations” issue might be involved? To what extent must claims be made against military perpetrators, and why could they not be brought against the State itself?
It seemed there was sufficient evidence of State responsibility in those areas, he continued, noting that he had been told by a non-governmental organization that the Belgrade Municipal Court had rejected a reparation claim filed by the Humanitarian Law Centre in 2009 on behalf of victims of the “Scorpion Unit” of the Serbian police because the statute of limitations on a reparation claim had expired. Was it true that it was not possible to sue the State because it was protected by a statute of limitations? If so, could the State not set up a special fund or administrative body to provide reparations?, he asked, wondering also why the Accountability for Human Rights Violations Act had not been implemented in practice. Presumably it had been passed because there was a need for accountability.
On issue 13 — cooperation with the International Criminal Tribunal for the Former Yugoslavia — he said he was impressed by the level of State cooperation with the Court. However, paragraph 70 (e) of Serbia’s written response stated that information gathered by security services was checked on a daily basis. It would come as no surprise to hear that sources had suggested that the security services might not be as committed to executing outstanding arrest warrants, including that for Ratko Mladić. Perhaps there was an “absence of commitment” to deliver on the State’s obligation, he suggested, wondering whether implementation of the Accountability for Human Rights Violations Act might be helpful if there was a problem.
Referring to paragraph 14, he said he was impressed with the information received from the Ombudsman and non-governmental organizations regarding the State’s sincerity in avoiding abuses in remand and penitentiaries. It was understood that the Ombudsman had conducted some visits and could do more, he said, noting that paragraph 81 of the reply stated that between June 2008 and June 2010, the internal control division of the police had received 299 complaints of excessive abuse of official powers. It had been determined that four of them were founded, 21 partly founded, and 236 unfounded, with 33 forwarded to other organizational units, he said, adding that an “extravagantly” small number of complaints appeared to have been upheld. Additionally, no written replies had been provided to questions 14 (d) and (e), he noted, requesting any relevant information.
As for paragraph 15, he asked about the statute of limitations for bringing prosecutions against those accused of torture or ill-treatment. What was included in “other goods” protected by international law, and did it include war crimes and crimes against humanity?, he asked. What kind of follow-up had been made regarding the 12 complaints judged as founded?
Ms. MARTOC, expert from Romania, said she was surprised at the existence of “very traditional practices” with regard to women and wondered what they were. It was strange that a republic outside Kosovo was described as retaining typical practices. Apart from the Roma community, and Kosovo, the status of which was “ambiguous”, were there still traditional practices in Serbia?, she asked.
LAZHARI BOUZID, expert from Algeria, focused on question 13 and the mention of human rights violations. Had an independent commission been created under the provisions of article 5, and if so, what was its composition? What was the binding nature of its decision that had been followed by an appeal? In line with a 2003 law, what sentences had been recommended? Had the individuals concerned been suspended, and would any human rights violators be brought to trial?
Ms. JAŠAREVIĆ-KUŽIĆ thanked the Committee for their keen interest in the situation of human rights in Serbia before turning the floor over to a delegation member from the Supreme Court of Cassation, who said that, following a decision of the Supreme Court on a number of torture cases, there had been a change in the civil procedures for reinstituting indemnity claims.
Noting that his country had previously been more focused on the European Convention in training its judiciary, he said that in the last year Serbia had instituted, with support from United Nations agencies, a number of training curricula touching on the rights covered by the Covenant, as well as other human rights, including in the area of domestic violence and protection against discrimination. The Covenant and other international treaties were cited in some Serbian court decisions, he said, adding that the right of appeal had been declared an effective legal remedy by the European Court of Human Rights.
Another member of the delegation said that while Serbia had three levels of ombudsmen, there was no hierarchy. Indeed, the various levels cooperated with each other. The relevant law allowed for the opening of local offices, and the local ombudsmen visited minority communities, including the Roma. State budgetary support was increasing, he said, noting that the budget for the office of Ombudsman had totalled €870,000 in 2008, €1 million in 2009, and €1.057 million in 2010. Local municipalities had provided additional funds for lower level ombudsman offices. The national Ombudsman had four deputies, one of whom dealt with the rights of detained persons. In addition, the National Ombudsman operated informally in implementing the Convention against Torture.
Ms. JAŠAREVIĆ-KUŽIĆ added that the National Ombudsman already performed the work of a national preventive mechanism against torture with the help of one deputy. The formal establishment of such a mechanism would simply recognize what already existed in practice.
The delegation member from the Supreme Court of Cassation took up the question of domestic violence, describing it as an “ex officio crime”. The jurisdiction of family judges over the offence was defined by the Family Law, which contained a provision for evicting the perpetrator from his house to protect the victim. Serbia had also adopted a special protocol to protect children from abuse and neglect, he said, adding that it was based on the Juvenile Law which addressed both juvenile offenders and juvenile victims.
Reiterating that domestic violence training was part of the regular curriculum for prosecutors and judges, he said the police were also being educated on the topic, as were social service providers, in order to raise awareness. In practice, victims who were also privileged witnesses could leave the proceedings, preventing any conclusion to a case, he explained. For its part, the State was working to eliminate patriarchal stereotypes, particularly where instances of gender-based violence were ignored. That effort included media awareness campaigns, among other initiatives.
Another member of the delegation noted that only a few of the existing counselling services and crisis hotlines were free of charge, the majority being provided by non-governmental organizations. Children were tracked in shelters, which were often run by non-governmental organizations and funded by national donors, he said, adding that a number of shelters had recently been constructed. Additionally, a crisis hotline for children had been set up in 2005 with State funding. To date it had taken more than 42,000 calls, with a smaller proportion resulting in advisory sessions. The State was working to develop a strategy to combat sexual and gender-based violence and to raise awareness through media campaigns, he said, noting that a number of round-table discussions had already been held.
The delegation member from the Supreme Court of Cassation said the State recognized the need to educate victims so that they could leave their safe houses, thereby escaping the vicious cycle of dependency which could prevent them from living normal lives. Noting that judges took a slow, patient approach when dealing with child victims, he said that although Serbia’s efforts were evolving slowly, the country was going in the right direction.
Ms. JAŠAREVIĆ-KUŽIĆ agreed that the problems cited by the Committee regarding internally displaced persons continued, underscoring the Government’s commitment to resolving them. The rights of the internally displaced were governed by United Nations rules, she said, noting that they received an identification card allowing them to enjoy the same rights as Serbian citizens. If they requested accommodation, they were given shelter in special centres, including 17 in Kosovo and others in Serbia. A new law on records sought to address the trouble that internally displaced persons faced in accessing social services, due largely to their lack of required personal documents.
She said that, as a result of research conducted by the United Nations Development Programme (UNDP) and the Serbian Government on the needs of internally displaced persons in collective centres, one such centre had been closed and new registration books created. According to the latest data, 120,000 registrations had been renewed in Kosovo and Metohija, with some appeals. She underscored the State’s intention to simplify the procedures enabling the majority of the so-called “invisible people” to access personal documents. While non-governmental organizations had proposed a new law, the Government did not consider it a good solution because the number of people without legal status remained unknown. Indeed, the lack of hard data and population figures was the biggest problem, she said, adding that simplifying the registration process would be most effective.
Another delegation member said that in cases where people were deprived of working capacity, the interested party initiated the legal proceedings. While it was true that there were some cases wherein the deprived person was not consulted, that did not apply to all of them. Criminal acts were more severely punished if the victim was disabled, but in civil cases, the voice of the disabled was heard less frequently due to the set-up of those types of proceedings. He also noted that such cases applied more often to the elderly, rather than children or youth.
He went on to say that children with both mental and physical disabilities had been included in regular school programmes as of 2010, adding that funding for the initiative had been increased this year. It was part of a trend of inclusion, he said, noting that some special schools were being abolished. Moreover, homes and dorms intended to foster independent living among persons with disabilities were being established in Serbia’s larger cities and would be expanded to other locations, he said. A rule book on mandatory support for pupils with disabilities through additional health care and social services had been adopted. They were provided with schoolbooks in Braille, personal digital assistants and other technologies to help them better adapt to schooling, he said, adding that the funding came from the national and local budgets, as well as from the World Bank.
One delegation member said the reduction in ethnically motivated crimes was the result of harsher penalties, due in many cases to the increasing imposition of the legal maximum rather than the legal minimum sentence. Strikingly, the general climate had changed, and ethnically motivated violence was now frowned upon. That change had been encouraged by Serbia’s highest ranked officials and the media, he said, noting that, in combination with the changes in penal policies, it had made Serbians far less tolerant of violence. “People understand that violence leads to violence,” he said, underlining the notion of a chain of violence in which hooliganism might eventually result in ethnically based violence.
Another member of the delegation underscored the importance of annual Government funding for the various strategies intended to help the Roma, including employment policies. Suggesting that the strategy was paying off, she said the Roma had shown an increased interest in accessing employment support, including employment orientation training and job fairs. A number of public works programmes targeted the Roma, she added.
Ms. JAŠAREVIĆ-KUŽIĆ said the Government was working to register the Roma in order to grant them recognition in legal and political terms. One Government working group specifically addressed the manner in which a lack of fixed residence prevented Roma people from gaining the legal foothold provided by official documentation. Recent efforts in that regard suggested that people who said they were not registered often were, in fact, registered, she said. Serbia’s ministries were working to address such “invisible populations”, including through field work.
Another delegation member said the number of enforceable proceedings had increased by four. In one torture case in which there had been 200 victims, 15 people had been sentenced to a total of 207 years in prison. In a separate torture case, one person had been jailed for five years, and in a third case, 18 people had been imprisoned for a total of 323 years.
The delegation member from the Supreme Court of Cassation said there were 17 cases before the Belgrade Higher Court and 14 before the first-instance chamber. “It’s a dynamic process liable to change,” he said, underlining the emphasis that Serbia placed on investigating war crimes. Those with enforceable judgements were already in prison, he added.
As for the Batajnica massacre, there had been only one request for a new investigation, he said. Referring to the so-called “Kosovo cases”, he said the problem was evident: in order to conduct an investigation on an excavated person and to assemble the details of their death, their identity and last place of residence must be ascertained, and someone must be found to provide other relevant information. Those tasks could only be undertaken in Kosovo, he stressed. As for the “yellow house” case, which covered “monstrous” crimes concerning trafficking in human organs, he said Serbia had not received any cooperation from its counterparts in Kosovo. The only solution, he suggested, was to establish an inter-regional cooperation body.
He went on to state the laws had been amended to include witness-protection mechanisms in order to encourage witnesses to testify. As someone who had prosecuted war crime cases in the Higher Court, he assured the Committee that there was no instance of a witness having been prevented from enjoying such protections as long as they could state why it was needed.
Turning to question 11 (b), he said that according to Serbia’s procedure law, indemnity claims did not necessarily forestall civil proceedings. Giving an example, he said such cases entailed “a special problem of reimbursement”. According to a Supreme Court decision, there were two aspects of indemnification: the first targeted the perpetrator, in which case there was no statute of limitation; in the second — in which the claim was forwarded to the State — a five-year statute of limitations applied. While the Supreme Court decision was “debatable”, the newly established Supreme Court of Cassation had not yet taken a position on war indemnity claims and no claims had been filed before it. A resolution of the problem was therefore pending.
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