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Human Rights Committee
2781st & 2782nd Meetings (AM & PM)
Committee Experts Press Serbia to Do More in Ensuring Protection of Minority
Rights, Tackling Violence against Journalists, Human Rights Defenders
Delegation Concede Need to Enhance Investigations, Strengthen Penalties
Citing critical gaps between a number of admittedly excellent laws and proposed legislative amendments on the one hand, and the actual status of civil and political rights in Serbia on the other, experts of the Human Rights Committee pressed that country today to do more on several fronts, including the protection of minority rights, the effective functioning of its courts and grave instances of violence against journalists and human rights defenders.
“The situation on the ground does not give the Committee too much cause to be happy,” said Zonke Zanele Majodina, Chair of the Committee and expert from South Africa, as the 18-member body charged with monitoring compliance with the International Covenant on Civil and Political Rights concluded its consideration of Serbia’s second periodic report.
While noting that the delegation had been forthcoming on the problems of implementation and how much work was still required to advance the human rights of the Serbian people, she emphasized that many minorities, including the Roma, internally displaced persons and the “legally invisible”, still faced significant difficulties.
Suggesting that Serbia’s administration of justice appeared to be flawed, Krister Thelin, expert from Sweden, highlighted complaints from citizens about the length of proceedings, the scarcity of judges, untimely decision-making and the absence of legally based decision-making. The country’s Constitution provided for an independent judiciary, but recent “serious” reforms would cut the number of judges to 330, seemingly worsening the situation, he said.
At the same time, he said, according to reports from non-governmental organizations, significant percentages of Serbians convicted of criminal offences — and even higher numbers in civil cases — had not been represented by a lawyer. Expressing concern at those figures, he also pressed the delegation to review reforms in its legal aid system. He also suggested that the Government had wielded an “inappropriate” tool in prosecuting the Director of the Humanitarian Law Centre for defamation.
Cornelis Flinterman, expert from the Netherlands, said it was commendable that Serbia considered any declaration of ethnic affiliation to be a personal right, rather than an obligation. Yet that meant no information could be provided on minority representation in Government service, which made it difficult to adopt policies to promote the representation of minorities, who were very much underrepresented in the public sector.
Also commending Serbia’s efforts to eliminate human trafficking, including its ratification of the Council of Europe Convention on Action against Trafficking in Human Beings, he nevertheless pressed the delegation to provide the Committee with an update on specific actions taken to address the issues raised in its previous concluding observations in 2004 over the State’s failure to notify victims of their rights.
Gerald L. Neuman, expert from the United States, said he was concerned that the spectre of impunity was eroding a number of vital human rights protections among certain groups — from journalists and human rights defenders to lesbian, gay, bisexual and transgender persons.
In a similar vein, Nigel Rodley, expert from the United Kingdom, said he had been “taken aback” by news that the gravest form of torture attracted a penalty of only eight years in prison under the Criminal Code, which seemed low for a crime considered a grave offence in terms of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Responding to the Committee’s comments, a member of the Serbian delegation said it had tried to paint a picture of a country firmly committed to and deeply engaged in reforming its laws to better protect the civil and political rights of its citizens. The delegation conceded a number of shortcomings in implementing recent judicial reforms, specifically in terms of the transparency of judicial selections.
One delegation member said that two models for providing free legal aid had been drafted by one working committee, which was currently weighing how to balance such a provision with the Government’s ability to fund it. Another said that while judicial procedures were long, tolerance for that state of affairs was growing short, and the Serbian saying “justice is slow but attainable” was rapidly being replaced by the slogan “slow justice is no justice”.
Another member of the delegation said that despite clear political will to ensure full protection for human rights defenders and journalists, there was still a need to enhance the efficiency of those investigating such attacks, and strengthen sanctions handed down to the perpetrators. Agreeing that eight years was an insufficient penalty for torture, another delegation member said that a working group on reforming the Criminal Code would consider the Committee’s comments in that regard.
In the afternoon, the Committee began the second reading of its draft “general comment 34” on article 19 of the International Covenant on Civil and Political Rights, which deals with the right to freedom of opinion and expression. It moved swiftly through the first 10 paragraphs, adopting some of them with changes proposed during the day’s discussions.
The Human Rights Committee will reconvene at 3 p.m. on Monday, 21 March, to consider the fifth periodic report of Mongolia.
The Human Rights Committee continued its 101st session this morning, concluding its review of the second periodic report of Serbia. See also Press Release HR/CT/730 of 17 March.
Taking up unanswered questions from yesterday, a member of the Serbian delegation said there was no statute of limitations for six criminal acts: genocide, crimes against humanity, war crimes against civilians, war crimes against injured and ill prisoners, war crimes against prisoners of war, and the instigation of war crimes or genocide. However, he acknowledged a certain “imprecision” in the use of the term “public goods in international law”, as noted by the Committee.
Another delegation member said the families of war crimes victims were invited to attend court trials. There had been no incidents whatsoever, and all witnesses were extended full protection. That also applied to the families of victims from Kosovo and Croatia, he added.
Outlining the official responses to complaints of ill treatment by the police, a third member of the delegation said such complaints were first considered by the head of the organizational unit. The citizen making an application of complaint was then invited to review that unit’s subsequent actions and, if satisfied, they signed off on them. However, if they were not satisfied, the complaint would be forwarded to a State commission for review. He stressed that a reply to the person filing the complaint must be made within 30 days. Moreover, separate criminal procedures could be undertaken in court, although only 299 such complaints were made on a yearly basis. Complaints could also be made to the police branch offices, and if a police officer’s violation amounted to a criminal act, criminal charges were filed and a suspension imposed pending the legal proceedings.
Turning to the Sabre operation, he said one of the six officers in question had been prosecuted in criminal court, while the rest had been found to have violated their competencies. In the case of the latter, the police force had been ordered to sanction the officers concerned.
Another member of the delegation addressed implementation of the action plan of the National Strategy for Women’s Advancement and Gender Equality and the Anti-Discrimination Act, saying that the National Strategy covered six areas: decision-making processes, economic inequality, education, health care, media and domestic violence. In 2010, the budget for implementing the National Strategy had totalled €1.049 million, with funds to tackle domestic violence funds coming from donations. In 2011, that allocation had grown to €1.065 million, with $1.4 million for domestic violence.
She said the law on the election of women to Parliament stipulated that 30 per cent of the candidates must be women. A special temporary measure in the Anti-Discrimination Act also addressed the employment of women’s in public entities. As a result of the National Strategy and the Anti-Discrimination Act, there were now 51 women in Parliament, comprising just over 20 per cent of the total number of seats. At the local level, women held 27 per cent of the seats in local authorities, she said, adding that one third of Serbia’s 2,399 judges were women.
There was a “double protection” mechanism in discrimination cases, she said, noting that they were handled by a State commission that could issue a rebuke to the person or persons found responsible for discrimination. If the target of the rebuke did not reform, the public could be informed, and the victim could also institute a case in the courts, with the general court in the relevant municipality having jurisdiction. Under certain circumstances, complaints could be filed on behalf of the commissioner, she said, noting also that the higher court had upheld some instances of “situational testing”, in which a complaint could be filed by a person who deliberately exposed themselves to discrimination in order to test the law. In such cases, however, the claimant could not file for damages, she noted.
Committee Experts’ Comments and Questions
KRISTER THELIN, expert from Sweden, said figures for the appropriation of funds for the Ombudsman over the last three years showed a “promising” increase, but he wondered whether the Ombudsman had received all he had requested. The Ombudsman’s February submission contained “interesting” figures relating to police detentions, he said, asking why Page 16 of that report noted an “amazing” jump in the number of complaints by people deprived of liberty. While the Office of Ombudsman might be a victim of its own success, the Government bore the responsibility of conducting its own assessment of why those complaints had arisen and take appropriate action.
NIGEL RODLEY, expert from the United Kingdom, discussing issue 14, said he was grateful for the “utterly satisfactory” explanation of what was meant by “publicgoods” in international law. He added that he did not know the general rule used in respect of the statute of limitations, as it applied to crimes under article 137 of the Criminal Code.
Responding, one delegation member invited Committee experts to participate in training programmes at the Judicial Academy. As for the increase in complaints to the Ombudsman, he said people had become aware of their rights and responsibilities. Statistics from the Supreme Court’s Administration Department showed that 70 per cent of complaints dealt with detainees who were not satisfied with the food, for example. As for the report of the Committee against Torture, which had recently visited Serbia, he said “real” violence against prisoners had not increased. The report noted that the State had taken measures to investigate such cases, he said, adding that the increased number of complaints meant people were brave and aware enough to alert the authorities.
Adding to that, another delegation member said brochures on how to file a complaint had been published and the relevant forms distributed in prisons.
Fielding a question about the Ombudsman’s budget, another member of the delegation said the Ombudsman prepared proposals for his budgetary year, which was then merged with the State budget and sent to the State Assembly for approval. The Ombudsman had returned part of the funds in 2010 because he had employed fewer people than expected.
Another delegation member said that each year, an analysis of complaints against police was conducted, adding that the Ministry had “excellent” cooperation with the Ombudsman in that regard.
As for abuse and torture under article 137, another delegation member first described the relative level of the statute of limitations, saying that article 103 of the Criminal Code stipulated that a crime could not be prosecuted after a certain amount of time. The time limit was longer if the crime was among the most severe of criminal acts. According to article 103 of the Criminal Code, such acts could not be prosecuted after 25 years had elapsed, he said, adding that 20 years must pass for crimes that drew a 15-year sentence.
Article 104 of the Code foresaw an absolute level of the statute of limitations, he continued, explaining that a crime could not be prosecuted if exactly double the amount of time stipulated for the relative statute of limitations had expired. Torture, in its most severe form, carried a prison sentence of eight years, and applying the statute of limitations meant the sentence was 10 years. The absolute statute would certainly apply after 20 years had elapsed because it was double the time foreseen for the relative statute of limitation.
Experts’ Comments and Questions
CORNELIS FLINTERMAN, expert from the Netherlands, referring to issue 16, said article 8 of the Covenant obliged States to prohibit the slave trade and slavery. Trafficking in human beings was a contemporary form of that behaviour, he said, commending Serbia for taking important steps, including its ratification of the Council of Europe Convention on Action against Trafficking in Human Beings, and its adoption of a national strategy and action plan. He asked how many criminal procedures had been initiated against trafficking perpetrators, and how many procedures trans-border trafficking entailed. What sentences had been imposed?
He recalled that, in concluding observations in 2004, it had been noted that the State party had failed to notify victims of their rights, he recalled, wondering whether legal assistance was now provided to trafficking victims. Noting also that victims were entitled to temporary residence, he asked about the situation of the victim if no criminal proceedings were started. What was situation of victim after proceedings were completed? He said many trafficked women were exploited as prostitutes and asked what Serbia had done to encourage them, at the risk of prosecution, to alert the authorities that they had been trafficked. What plans did the Government have to support financially the activities of non-governmental organizations?
On issue 17 (treatment of persons in detention), he said the written replies were of a “general” nature, and requested more precise information about special services available to detainees with mental or physical disabilities, how prisoners requiring access to legal or medical services were notified of their rights, and how the State monitored such notification.
As for issue 27 (protection of minorities), which was also related to Covenant articles 25 and 27, he noted that according to Serbia’s written replies, no information could be given on minority representation in Government service, as the declaration of ethnic affiliation was a personal right, not an obligation. While commendable, that also made it difficult to adopt policies for the promotion of representation. He said he had information that minorities were very much under-represented in State-level employment. What strategies were in place to improve national, provincial and other Government institutions, including the judiciary and police force?, he asked. Did those strategies include affirmative action plans?
Mr. RODLEY, expert from the United Kingdom, took the floor again to address issue 18, asking about overcrowding in State prisons. He had noted that new construction and alternatives to imprisonment were being implemented and wondered what impact those initiatives were having on the incidence of overcrowding.
He said he was grateful for the detailed information provided on the statute of limitations, but had been “taken aback” by news that the gravest form of torture, under article 137, attracted a penalty of only eight years. That seemed low for a crime considered a grave offence by the Convention against Torture, he said, asking whether there have been any intention to introduce a sentence for torture and similar ill-treatment that was more reflective of the gravity of the offence.
Mr. THELIN, expert from Sweden, asked about issues 19, 20 and 21, which dealt with justice, saying that the Constitution provided for an independent judiciary, which had recently undergone “serious” reform. He said he was concerned that when those reforms were taken, the number of judges would be cut to 330. He said he had heard from the Ombudsman and non-governmental organizations that the criteria for the reduction lacked transparency and clarity and did not answer the question as to how those not found fitting could have their cases reviewed. Why had that happened, and what was being done to rectify the situation?, he asked. The composition of the High Judicial Council was not clear, and neither was the role of national parties, he said, warning that if political parties had an influence, there was a risk of politicizing the Council.
On issue 19, he said with regard to the general state of affairs in the courts that citizens complained about the length of proceedings, the absence of judges, untimely decision-making and an absence of legally based decision-making. There seemed to be a flaw in the whole administration of justice, he added, asking about plans to rectify it. The Ombudsman had recounted instances whereby the Government’s executive arm had tried to influence the courts, a “gross infringement” on that sphere.
As for issue 20, on war crimes, he asked what was being done to secure the important functioning of the war crimes office. On a related point relating to article 25, on freedom of expression, he said he had received information that the Director of the Humanitarian Law Centre, Natasa Kandic, had been the subject of defamation proceedings. He called attention to the draft General Recommendation on article 19, which the Committee was about to adopt, in which paragraph 49 recommended decriminalizing defamation laws. They should not be used to stifle freedom of expression, he stressed, noting that the case appeared to be an abuse of such laws to instil fear in those wishing to exercise their right to freedom of expression.
Moving on to issue 21 (legal aid), he said that at least one “shadow” report from non-governmental organizations cited significantly high percentages in which those convicted of criminal offences were not represented by a lawyer. In civil suits the percentages were even worse, he noted, expressing concern about those figures and asking the delegation to provide information on overall reforms in the area of legal aid.
On question 26 (rights of minorities), he further expressed concern about the implementation of the Law on Protection of Rights and Freedoms of National Minorities with respect to the Bosnian National Minority Council. Indeed, it seemed that the regular thresholds were not applied to that national minority council because the State had changed it from 50 per cent to roughly 66.6 per cent, he said. If the reports were correct, that would mean that the Ministry could change the “rules of the game” to prevent a minority council from forming. Could the delegation provide clarification?
Turning to question 28, which addresses dissemination of information on the Covenant and its Optional Protocol, he requested clarification as to whether the comments from non-governmental organizations invited to review the draft second periodic had been incorporated into the final version. He also asked how information and communications technology was used in educating Serbians on the Covenant. In which languages was information on the Covenant provided? Were the Committee’s findings also made known inside and outside the legal community?
FABIÁN OMAR SALVIOLI, expert from Argentina, noted with regard to question 23 (conscientious objection) that compulsory military service had been suspended, and asked whether the suspension, which seemed provisional, would become permanent. Would conscientious objection be enshrined by the State? Could an individual who had left Serbia benefit from the suspension, as well as from the State’s approach to conscientious objection?
On question 24 (freedom of religion), he said the report indicated that traditional churches and communities were treated differently from other types. The Special Rapporteur on freedom of religion or belief had treated that distinction with specific concern in a recent report, which suggested that different treatment of religious communities could lead to discrimination. He said that he himself believed there was a problem with registration, and asked whether the State had considered measures to simplify the procedure for non-traditional religious communities to eliminate barriers that appeared to be incompatible with the Covenant.
GERALD L. NEUMAN, expert from the United States, noted that in its reply on question 25 (violence against journalists and human rights defenders), the delegation had cited examples from the period 2005 to 2010. Reports from non-governmental organizations, which looked at wider timeframes, cited among their tally of violence the murder of journalists, he said. Indeed, the Belgrade Centre for Human Rights had referred the Committee to a number of unsolved cases concerning the murder of journalists, as well as an almost-fatal 2007 attack on a journalist.
There were also concerns in the international human rights community about a lack of impunity regarding attacks against lesbian, gay, bisexual and transgender persons, he said. Indeed, it seemed that even the National Ombudsman’s office had recently been attacked on those grounds. He asked the delegation to provide further detail on the State’s approach to such cases. Had it stopped with the mere arrest of suspected attackers, or had it conducted trials? If so, what were the charges and sentences?
He welcomed the Constitutional Court’s July 2010 invalidation of certain amendments to the law on public information, but asked the delegation to provide further details of that decision. Specifically, had the decision had any consequences beyond the simple invalidation of the law? Had the Government’s conduct changed? Was any further legislation in the offing?, he asked, stressing that the Committee was concerned about violence against the press.
IULIA ANTOANELLA MOTOC, expert from Romania, said she wished to know more about the situation of the Roma, which was clearly a regional problem, asking what kind of protections Serbia offered to them.
A delegation member clarified that article 137 of the Criminal Code carried a maximum prison sentence of eight years and the statute of limitations was 10 years plus 10, amounting to 20 years overall. While agreeing that eight years was an insufficient penalty in light of the crime, he said it was the punishment stipulated by the Criminal Code. Serbia was constantly reviewing the Code, he said, adding that a working group on reforming the Criminal Code would consider the Committee’s recommendation in that regard.
Turning to questions about efforts to combat human trafficking, a delegation member from the Interior Ministry said that a special body had been established in 2004 and 2005 for that purpose. Serbia had also adopted the National Strategy and an accompanying action plan to curb human trafficking. Of the victims identified during the period from 2008 to 2010, the majority were citizens, with percentages ranging from 87 per cent of total victims in 2008 to 96 per cent in 2009. The perpetrators were usually also citizens, while the most common form of exploitation was sexual, and especially worrying aspect for the Interior Ministry, he stressed.
He went on to state that the Interior Ministry had initiated criminal proceedings against 725 criminal defendants from 2009 to 2010, noting that those cases sometimes involved citizens of neighbouring countries. As part of its efforts to protect victims, the Ministry had made a number of agreements towards the sustainability of assistance for victims, he said, noting that Serbian citizens were provided with accommodation, education, as well as professional training and development. Victims of foreign citizenship were given temporary accommodation and their hygiene needs were met, he said. Cases in which people found in the space between States claimed to be trafficking victims were investigated and, if they were found genuinely to be victims, they were returned to their home countries.
Serbia was open to collaboration with non-governmental organizations working to eliminate trafficking, he said. While located in the Ministry of Justice, the service for the coordination and protection of trafficking victims was considered independent. Members of one high-profile group involved in trafficking had recently been sentenced to between five and 12 years in prison.
He said the Interior Ministry was working to enforce the national plan against trafficking, as well as with international partners such as the United Nations to build capacity and create a sustainable framework to combat trafficking of especially vulnerable groups. Among other things, it hoped to improve trials against perpetrators. October was considered the official anti-human trafficking month and a number of public awareness campaigns were undertaken during that month, he said. In other areas, the Interior Ministry had set up a hotline for reporting human trafficking, he said, adding that Serbia’s improvements in curbing human trafficking had been noted in a recent European report.
Another delegation member turned to the issue of psychiatric care provided to detainees and prisoners, saying that criminal proceedings against defendants identified suffering mental disabilities were suspended and other care was provided. In general, those receiving psychiatric care received a variety of services, from therapy and rehabilitation to basic health care. To address the various needs of prisoners with physical disabilities, seven prisons had been retrofitted and three more were being refurbished, she said, adding that Belgrade’s Psychiatric Hospital was now fully refurbished.
Agreeing that prisons were overcrowded and very little had been done effectively to address that situation, she said new efforts had been initiated in 2010. Among other things, five offices for alternative sentences had been set up, joining the three already existing ones. In addition, home detentions were now possible in Serbia, and judges, as well as the public, were being educated on alternative sentencing. New parole procedures were being incorporated into forthcoming amendments to the Criminal Code, and by June 2011, a new prison would be completed, with plans for the construction of four others by 2014. Some of that construction was being funded through the Council of Europe, with Serbia covering the balance, she said. Overall, the Serbian Government was working to expand existing prison capacities, with the first improvements to be completed by 2011 and more visible ones expected to be in place by 2013.
Replying to question 19, another delegation member said Serbia had organized judge selection in line with a new law, which required a reduction in the number of judges to align with the caseload. Some judges were not re-elected and they could query a certain court as to the reason why. Conceding shortcomings in the transparency of the first selection round, he said the Government had worked to rectify that in 2010, especially in cooperation with the European Union and the Venice Commission.
He said the law on the State Council and the State Prosecutor’s Council had been amended, he said. Complaints filed with the Supreme Court would be referred to the newly composed High Judiciary Council, which would now have 11 permanent members — three of whom were the President of the Supreme Court of Cassation, the Justice Minister, and the President of Parliament’s Justice Committee. Three members outside the judiciary included a lawyer proposed by the Bar Association, a prominent law expert and six judges directly elected on 5 March and “rubber stamped” by Parliament, he said, adding that they represented all levels of courts and would review the cases of the judges not re-elected in 2010.
As for transparency, he explained that the judge candidates for the permanent High Judiciary Council were well known and some had carried out “mini-campaigns” to “stump” the courts. The process was transparent and could be followed on the High Judiciary Council’s website, among other places. Reforms targeted the future selection of judges, he explained. When the High Judiciary Council and the State Council determined the judges, the Academy admitted the first generation through a written and oral exam, as well as a mock trial, he said. Those judges would undergo two months of training and a mentorship process guided by the experiences of France, Spain and the Netherlands. Judges would be ranked according to the position in class at graduation, so that Parliament could confirm the list it received from the High Judiciary Council. During their training, judges received 70 per cent of the salary paid to a basic court judge.
As for the length of procedures, he cited the saying, “justice is slow but attainable”, adding: “Now we’re saying ‘slow justice is no justice’.” Serbia was amending both its civil and criminal procedures, and working with donors on a “case management” programme. The Government was awaiting results, he said.
As for the statement by the State Secretary in the Ministry of Economy on “judgement enforcement”, as related to workers’ salary arrears, he said the issue was about forced payment. That concept created a “vicious circle” because when a company behaved in such a way, it went bankrupt and workers lost their jobs.
Discussing the protection of war crime prosecutors, the Deputy Prosecutor for War Crimes said he had been in that Office since its 2003 founding. Protection was two-tiered: there were safeguards for movement from home to work, and for the place of residence. That protection was carried out by the police, and included 24-hour physical security for prosecutors, deputy prosecutors, as well as judges and their families.
Regarding the freedom of expression and concern about bribery allegations against the Director of the Humanitarian Law Centre, he said the War Crimes Prosecutor’s Office had asked Ms. Kandic for evidence, as such severe allegations demanded solid evidence. If the charges were about money, questions must be asked about who had given it, for what action and in what case. Absent that, “we need to demand information regarding this allegation,” he stressed, adding that if evidence was provided, the Prosecutor would start an investigation. “We by no means want to challenge freedom of expression here,” he emphasized, saying he wanted Ms. Kandic to provide evidence, not to challenge the freedom of expression.
Responding to other queries, another delegation member cited a meeting of all judges of the Supreme Court of Cassation, in which they had taken a position on the State Secretary’s statement.
As for legal aid, he said a working committee was drafting law on the provision of free legal aid. Two models had been drafted, and the basic concern was that if legal aid was provided, then care must be taken to ensure that the Government could provide the funds to enable citizens to exercise that right.
He went on to state that if an accused person could not afford a defender, one would be provided ex officio. Juvenile offenders must have a lawyer before their first court hearing and, according to law, that person must be specialized in juvenile offenders. There was no obligatory defence in civil procedures, but a law to be submitted to Parliament in May would regulate that aspect, he said. It was envisaged that the State would pay for the defence in cases involving criminal acts, and for less serious crimes, the State could decide whether it wished to provide a defender for accused tax evaders, for example
Noting that conscientious objection was guaranteed under the Constitution, another delegation member said the National Assembly had abolished obligatory national military service and adopted a law on amnesty. The Department of Defence had submitted an amnesty plan for those not covered by the amnesty law. Among other things, amnesty encompassed releasing people from criminal prosecution for non-service.
She went on to say that passage of a law on the registration of churches and religious communities regulated the legal position of those entities, while also making a distinction between them. That difference did not exist in legal terms, but only in registration procedures, and with registration they became legal entities, she said. Under the previous socialist Government, traditional churches had enjoyed legal status and the current registration process provided continuity.
The status of other religious communities had been regulated by two federal laws from 1953 and 1977, which required religious communities to report to the Interior Ministry, she said. At the time, there had been no way to register them, but today, those groups were required to prove that they had been reported previously. Accordingly, the Government had prepared a draft authentic interpretation of the law on religious communities. By entering the registry, their status was now recognized, she said. To be registered they only had to prove that their legal subjectivity had been regulated in socialist Yugoslavia and enumerate a certain number of believers. A contingent registration issue was that the groups were not allowed to register under the names of churches and religious communities already registered.
SANJA JAŠAREVIĆ-KUŽIĆ, Assistant Minister for Human and Minority Rights, Public Administration and Local Self-Government of Serbia and head of the delegation, said human rights defenders were afforded the highest social status, but they were also attacked sometimes. Members of the press had also been attacked, she noted, emphasizing that in all such assaults, all State institutions had reacted promptly, in some cases at the highest levels. Indeed, the State did not tolerate violence and, in the case of one journalist whose apartment had been attacked, the President himself had visited and shown public support.
Despite clear political will to protect human rights defenders and journalists fully, however, the efficiency of investigations into such attacks, and the sanctions handed out to the perpetrators, must be raised, she stressed. Most of the attackers were members of conservative groups, such as neo-Nazis. In the case of one attack against a magazine journalist, the Interior Minister had actually submitted information to the Prosecutor, which was qualified as a terrorist act under the Criminal Code, she said, adding that the proceedings in that case were ongoing. Emphasizing that journalists enjoyed a higher degree of criminal and legal protection under article 138, she said that the delegation nevertheless had no fresh information on the assassinations of two journalists referred to by the Committee.
She went on to stress that Serbia guaranteed the position of all minorities, adding that the election of all national minority councils had recently been regularized. Shortcomings were to be expected the first time that such elections were held, she noted. With the Bosnian National Minority Council, changes had been made to the rules of procedure exclusively to meet the will of the Bosnians, who had wanted to present three electoral lists when only one was possible. Irregularities had been detected, including by the Ombudsman, and new elections were planned for the Bosnian National Minority Council.
Taking up the question of minority participation and representation in public entities, another member of the delegation stressed that there were no legal grounds for a person to declare themselves part of a national minority. To that end, there were no central databases on public employees, and such data was not registered. Yet some records were kept in one autonomous province to show the staff structure and identify the language used by employees. She also noted that for the upcoming census, questions on national minority and the mother tongue would be open.
Experts Comments and Questions
Mr. THELIN, expert from Sweden, said that in view of the time constraints, he was happy to receive the outstanding responses on question 21 in writing. Expressing the highest regard for the War Crimes Office, he noted the gravity of the allegations made by Ms. Kandic, emphasizing that use of the defamation law was, in that case, an inappropriate tool.
He requested that the delegation identify in its forthcoming written answers what mechanism Serbia was using to deal with reparations claims. Also, they should identify how they were addressing the Committee’s findings in the last case from 2010, which he noted was still an open case.
Ms. JAŠAREVIĆ-KUŽIĆ expressed hope that the Committee would respond positively to the delegation’s suggestion that the United Nations Interim Administration Mission in Kosovo (UNMIK) submit a separate report on compliance with the Covenant in Kosovo and Metohija.
Emphasizing that delegation members had tried to answer questions as best they could, she said they would submit written responses to all outstanding questions so as to allow the Committee a full and complete image of the situation of civil and political rights in Serbia. The delegation had tried to convey that Serbia was in the process of reforming its laws to improve the protection of those rights. “ Serbia is firmly committed to creating a system that allows a high enjoyment of human rights,” she asserted. To that end, it was focused on developing strategies and action plans in line with European standards. It was also trying hard to pay special attention to the most vulnerable groups, including minorities, such as the Roma, and internally displaced persons.
ZONKE ZANELE MAJODINA, Chair of the Committee and expert from South Africa, said she appreciated that the delegation had been so forthcoming on the problems of implementation, as well as the fact that Serbia still had a lot of work to do in advancing its people’s human rights. She noted, in particular, the difficulties faced by the Roma, internally displaced persons, and the “legally invisible”. The Committee was also concerned about the gap between Serbia’s “very excellent” laws, some of which had been passed fairly recently, and a number of proposed amendments and their implementation, she said. “The situation on the ground does not give the Committee too much cause to be happy.”
One last area of concern involved defamation laws and the protections afforded to journalists, she said, expressing the Committee’s hope that the delegation would take the Committee’s concluding observations as seriously as it had taken the dialogue. She reminded the delegation that it would have 48 hours to submit written responses.
Discussion on Draft General Comment 34
MICHAEL O'FLAHERTY, expert from Ireland, kicked off the second reading of draft General Comment 34 (document CCPR/C/GC/34/CRP.5), by recalling that in March 2009, the Committee had decided to develop a General Comment on article 19. The first draft had begun in October 2009, with the first reading completed in October 2010. Before the Committee was the document agreed at the first reading, which included minor stylistic adjustments.
The Committee had received many comments by States, human rights institutions, academics and other actors outside the Committee following the 31 January deadline, he said, noting that a small number had emphasized the confidential nature of their submissions. In terms of tone, the comments were largely complementary, characterized by expressions of support and broad satisfaction with the “thrust” of the draft, he said, adding that he had found the commentary useful. Many comments relating to paragraphs had provided “quite solid” suggestions for deletion or addition.
Following a paragraph-by-paragraph discussion of General Comment 34, the Committee adopted paragraph 1 “as is”. It also decided to leave intact the wording of paragraph 2 — which describes freedom of opinion and expression as indispensable conditions for the full development of the person and essential for any society — but to incorporate into a paragraph 2 bis, language proposed by Mr. Rodley, expert from the United Kingdom, which referred to the enjoyment of those freedoms as a necessary condition for realizing the principles of transparency, among other things.
Among those supporting Mr. Rodley’s proposal were Mr. Thelin, expert from Sweden; Christine Chanet, expert from France; and Yuji Iwasawa, expert from Japan.
Debate on paragraph 2 centred on the proposed use of the word “peace”, which some experts described as a political and ambiguous word, used in different circumstances. The Committee also focused on a proposal to include the notion of “national stability” in the paragraph, which some said did not exist in the Covenant.
Ms. CHANET, expert from France, described the proposal as a risky philosophical concept that did not necessarily fit into article 19.
Protracted debate also centred on paragraph 3, which cites Covenant articles containing guarantees for freedom of opinion and/or expression. Some experts took issue with the inclusion of article 17, which outlines the right of privacy, saying it was not clear how it related to article 19. Mr. Rodley stressed that that it did relate, while also providing a “counterweight” to article 19 rights, rather than serving as a “possessor” of article 19 values.
A proposal to include a reference to article 24, which outlines the right to nationality, failed to gain traction, with Mr. Thelin contending that it would open discussion as to why other articles were not included.
Mr. IWASAWA, expert from Japan, and Ms. CHANET, expert from France, both expressed misgivings about the articles relationship to article 19.
Similarly, proposals to specify which rights were based on the freedoms of opinion and expression fell flat as many experts argued for using minimalist rather than expansive language.
Mr. NEUMAN, expert from the United States, echoed those calls, saying there were “contrary pressures” to make the draft increasingly specific and concise. He suggested leaving the world “to guess” about the Committee’s thinking. Other experts said it would be a good idea to include a reference to economic, social and cultural rights, which would be in line with clear trends in “freedom of expression of organs” that had used those rights as a basis for the enjoyment of other human rights.
In the end, the Committee adopted paragraph 3, deciding to delete the reference to article 17, and adding language to the effect that freedom of expression was integral to the exercise of the right to vote.
Paragraph 4 was retained without change, after Mr. Neuman’s expressed his fears about putting forth an expansive interpretation of the right to freedom of opinion were eased. He had argued that freedom of opinion was a non-derogable right that differed from the right never to disclose opinions.
The Committee sailed through its discussion of paragraph 5, adopting it without change. It also adopted paragraphs 7 and 8, agreeing to wording that captured all the procedures of the Committee, including reports pursuant to article 40 of the Covenant.
The Committee then turned to paragraph 9, the first under the “freedom of opinion” heading and concerning the protection of the right to hold opinions without interference.
Following a discussion on the clarity and meaning of the phrase “any form of discrimination” and the need to include it in the sentence “No person may be subjected to any form of discrimination and impairment of any rights…”, the Committee agreed with the Rapporteur’s argument that the phrase was ambiguous, but the “impairment of any rights” was not, deleting the former. The paragraph was then adopted as revised.
Following a debate on the placement of the second sentence of paragraph 10, which some argued might be more appropriate in the next section, the Committee elected to retain it while deleting the last half. It also amended the first sentence slightly before adopting the paragraph as whole, as revised.
When the Committee turned to paragraph 11, the first under the “freedom of expression” heading, the Rapporteur said it was a “heavy” paragraph dealing with a number of issues. Several suggestions had been made that would prompt varying levels of debate. The Committee agreed with the first suggestion to remove the brackets around the term “commercial advertising”, by making a reference to that kind of expression in a separate sentence rather than as part of the current list: “It may also include commercial advertising”.
After the Committee agreed that such expressions should not enjoy the same level of protection as other levels of speech, it decided to delete a footnote reference to the decision Ballantyne v. Canada, Nos. 359/1989 and 385/1989 on the basis that it claimed that commercial advertising was as strongly protected as other forms of expression.
The Committee then agreed to a number of minor textual revisions to that paragraph before further discussion.
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