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Torture-effective remedies and fact

finding procedures…
is there such a thing in Serbia?

Jovana Zorić
Nevena Dičić Kostić
Maja Nešović
Ratified International Documents
 The ICCPR
 The ECHR
 The UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or
Punishment
 Optional Protocol to the Convention against
Torture - established a system of supervising
places where persons deprived of liberty are or
may be. (ratified in 2005)
 the European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or
Punishment
 the Statute of the International Criminal Court
Legislature
The Constitution of Serbia prohibits torture
in Article 25

Inviolability of physical and mental integrity

Physical and mental integrity is inviolable.


Nobody may be subjected to torture,
inhuman or degrading treatment or
punishment, nor subjected to medical and
other experiments without their free
consent.
Treatment of persons deprived of liberty
Article 28
Persons deprived of liberty must be treated
humanely and with
respect to dignity of their person. Any violence
towards persons deprived of liberty shall be
prohibited.
Extorting a statement shall be prohibited.

 Under the Constitution, measures providing for


derogation shall by no means be permitted in
terms of the rights guaranteed pursuant to
Article 28 (Art. 202 (4)).
 The Constitution guarantees the right to
effective court protection in the event of
violation of the right to inviolability of
physical and psychological integrity, and
the right to reverse the consequences of
such violations, which also implies the
right to compensation in cases of torture
or similar treatment, notwithstanding who
had inflicted the maltreatment (Art. 22).
The Criminal Code
 Article 137 of the Criminal Code incriminates ill-treatment and torture. This
crime was introduced in the Serbian legislation in 2006. According to para. 1
of the Article:
“Whoever ill-treats or treats another person in a humiliating and degrading
manner shall be punished by a fine or imprisonment not exceeding one
year.”
According to para 2:

“Whoever inflicts severe pain or suffering to a person by applying force, threat


or another inadmissible method for the purpose of obtaining from him or a
third
person a confession, statement or other information, of intimidating or
illegally
punishing that person or a third person or for any reason based on
discrimination of any kind shall be punished by imprisonment ranging from six
months to five years.”

 Attempts of torture are not incriminated!


The Criminal Code incriminates torture by the crime
of extortion of a
confession or statement (Art. 136)
“(1) A public official who uses force or threat or another
inadmissible method
or means for the purpose of extorting a confession or a
statement from an accused,
witness, expert witness or another person, shall be
punished by imprisonment ranging
between three months and five years.
(2) If the extortion of a confession or statement is
accompanied by grave violence or if the extortion
resulted in particularly serious consequences for the
accused
in criminal proceedings, the perpetrator shall be punished
by imprisonment ranging
from two to ten years.”
Perpetrators of torture can also be charged with the crime
of unlawful deprivation of liberty (Article 132).
 The simple form of this crime is committed by
any person who unlawfully detains another person, keeps
that person in custody or
otherwise unlawfully deprives him or her of or restricts his
or her freedom of movement.
 The qualified form of the crime is committed by a public
official or in the
event the unlawful deprivation of liberty lasted more than
30 days or was committed in a cruel manner or seriously
impaired the health of or had other grave effects
on the person (para 3).
 In the event the qualified form of this crime was
committed by a public official or by a person at the order
or with the consent of a public official, it can be qualified
as torture or another form of ill-treatment in the
meaning of the Convention against Torture
The Criminal Procedure Code

CPC does not envisage special proceedings


in case of torture.
It does not stipulate the urgent adjudication
of such cases or specify a particular
method for documenting facts.
 Although practice has shown that physical
injuries are best indicators of torture, the
national courts do not attach special
evidentiary importance to medical
documentation.
 The Criminal Procedure Code includes
provisions on the respect for the personality of
a suspect and the indictee. Any violence
against a person deprived of liberty or whose
liberty has been restricted is prohibited and
punishable, as is any extortion of a confession
or another statement from the indictee or
another person taking part in the proceedings
(Art. 12).
 The CPC prohibits resort to force, threats,
deceit, promises, coercion, attrition or other
methods aimed at obtaining a statement or a
confession which may be used as evidence
against the accused or for the achievement of
any other goals (Art. 89 (8)).
 The Criminal Procedure Code
prescribes that court decisions may
not be based on evidence when the
content of or manner in which it
was collected was in contravention
of the provisions of the Constitution
or a ratified international treaty, or
expressly prohibited by the CPC or
another law (Art. 18).
Right to have access to a doctor

 The Constitution of Serbia does not envisage the right of


persons deprived of liberty to have access to a doctor.

 Under the Criminal Code, a person deprived of liberty, his/her


counsel or family member may ask the investigating judge to
order a medical examination. Such a request may also be
filed by the public prosecutor; the decision allowing medical
examination is taken by the investigating judge.

 All persons subjected to solitary confinement must undergo a


medical examination. The medical report is submitted to the
warden. (Art. 60) (Art. 23).
 Serbia’s penal institutions, however, lack doctors who would
be at the disposal of persons deprived of liberty round the
clock. The shortage of doctors in penitentiary facilities can
be ascribed to their substandard working conditions (low
salaries, the risks the job entails, lack of adequate
protection).
 The underdeveloped system of
monitoring police custody sites
undoubtedly hinders more efficient
prevention and punishment of torture
committed by the police.
 National Preventive Mechanism
 To be fully effective, monitoring visits
should be both frequent and
unannounced. Further, the monitoring
bodies should be empowered to
interview detained persons in private and
examine all issues related to their
treatment.
 With regard to prohibition of torture,
inhuman or degrading treatment or
punishment, the state has an obligation
of non-refoulement of a person to a state
where s/he may be exposed to ill-
treatment.
 M.S.S. vs Belgium and Greece and
practice of Serbian Asylum Office –
extradiction to Macedonia, to Greece
No effective remedies
 Criminal complaint (effective remedy???)
 Constitutional complaint (effective
remedy???)

 Request for damages


 Complains to Ombudsperson
 Disciplinary proceedings
 The Code of Police Ethics
 The Rulebook on Measures for
Maintaining Order and Security in
Penal Sanctions Enforcement
Establishments
 Prison rules
ECHR and Serbia

 CASE OF STOJANOVIC v. SERBIA

 CASE OF DERMANOVIC v. SERBIA