Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 939/2019 * , **

Communication submitted by:Jasmina Cubrilov Jovic, Milunka Cubrilov and Marina Cubrilov (represented by counsel, Milorad Djukić)

Alleged victims:The complainants

State party:Serbia

Date of complaint:23 May 2016 (initial submission)

Document references:Decision taken pursuant to rule 115 of the Committee’s rules of procedure, transmitted to the State party on 9 July 2019(not issued in document form)

Date of adoption of decision:12 November 2021

Subject matter:Torture and death in detention; lack of investigation

Procedural issues :Exhaustion of domestic remedies; another procedure of international investigation or settlement

Substantive issues:Torture; prompt and impartial investigation; right to complain, and to have the case promptly and impartially examined; right to a remedy and compensation

Articles of the Convention:2, 6, 12–14 and 16

1.The complainants are Milunka Cubrilov, Jasmina Cubrilov Jovic and. Marina Cubrilov, nationals of Serbia, born on 6 October 1948, 29 July 1974 and 15 December 1981, respectively. They are the widow and daughters, respectively, of Bozidar Cubrilov, of unstated nationality, who was born in 1948 and died on 16 June 1996. They claim that the State party has violated their rights under articles 6, 12, 13, 14 and 16 of the Convention, as well as Mr. Cubrilov’s rights under article 13 of the Convention. While not invoked explicitly, the communication also raises issues under article 2 of the Convention. The State party confirmed the declaration of Yugoslavia made pursuant to article 22 (1) of the Convention, upon succession on 12 March 2001, with immediate effect. The complainants are represented by counsel.

Facts as submitted by the complainants

2.1On 5 April 1996, following the issuance of an indictment for offences of fraud and falsification, Mr. Cubrilov was arrested and detained in the Belgrade District Prison. The next day, an examination at the Clinical Centre of Serbia revealed an injury to his chest, which had been inflicted during the arrest.

2.2Mr. Cubrilov was medically examined on 9 April 1996, at the infirmary of the Belgrade District Prison; a hematoma of 20 cm by 15 cm on the left side of his chest was documented, as well as hematomas covering both buttocks, a hematoma of 10 cm by 4 cm on his left thigh and injuries to his head. During his detention in prison, Mr. Cubrilov mentioned to the complainants that he was being subjected to torture by police officers, who would, on occasion, transport him from the Belgrade District Prison to the Belgrade Police Department. He told the complainants that police officers had hit him in the head with a lamp and a walkie-talkie and that he consequently had horrible headaches and nausea. The complainants and Mr. Cubrilov observed that, since his arrest, he began to seem “lost”. Other detainees confirmed to the complainants that Mr. Cubrilov had been beaten.

2.3On 28 May 1996, Mr. Cubrilov was transferred, unconscious, to the prison infirmary. On 5 June 1996, while in a coma, he was transferred from detention to the Emergency Centre of the Neurological Clinic in Belgrade, where he underwent surgery. On the same day, his detention was revoked by the Belgrade District Court. The Belgrade District Prison informed the complainants of Mr. Cubrilov’s release from detention but not of his transfer to the Emergency Centre or of his comatose condition. On 16 June 1996, after 11 straight days in a coma, Mr. Cubrilov died.

2.4An autopsy was performed on Mr. Cubrilov on 18 June 1996. In the autopsy report, which was not delivered to the Office of the District Public Prosecutor in Belgrade until June 2003, the examiner concluded that Mr. Cubrilov’s death had been violent and that it had occurred due to damage caused by a blunt instrument to vital brain centres and pressure on the brain from blood spilled between the two layers of hard meninges from torn blood vessels of the meninges. In a report dated 25 May 2004, a forensic expert found that Mr. Cubrilov’s death had occurred as a direct consequence of the injuries inflicted on him, which had been delivered by blunt instruments, heavy mechanical instruments or human body parts, at about the same time or immediately prior to his detention in the Belgrade District Prison. On 26 June 1996, criminal proceedings against Mr. Cubrilov were discontinued.

2.5On 16 January 2004, the complainants and DusicaCubrilov,Mr.Cubrilov’smother, filed a request with the Office of the District Public Prosecutor in Belgrade to investigate the death of Mr. Cubrilov. Subsequently, they filed a request for compensation for damages for mental suffering due to the death of a close relative, compensation for pecuniary and non-pecuniary damages for mental suffering as a result of police torture of a close relative, for the sustained fear for the life and health of a close relative and for mental suffering due to the deterioration of the health of a close relative. In its judgment of 17 November 2006, the First Municipal Court of Belgrade ordered the Ministry of the Interior to pay each of the petitioners 500,000 dinars as compensation for non-pecuniary damages due to the mental suffering caused by the death of a close relative.

2.6On 16 July 2007, the complainants and Mr.Cubrilov’smother filed a complaint against the Ministry of the Interior, claiming compensation for non-pecuniary damages for mental pain suffered because of the lack of an investigation and effective remedy. They noted that no action had been taken following their request to investigate the torture and death of Mr. Cubrilov, and that they had learned from the Registry of the Office of the District Public Prosecutor that the case had been archived on 8 March 2004. By judgment of 18 March 2009, the First Municipal Court of Belgrade, accepting the petitioners’ statements of the facts, found, inter alia, that the State party’s authorities had not conducted an adequate investigation and that the damage suffered by the petitioners was a consequence of the authorities’ irregular conduct. Pursuant to articles 154 and 172 of the Civil Procedure Code, articles 12 and 25 of the Constitution of Serbia and articles 2, 12, 13 and 14 of the Convention, the Court ordered the State party to pay each of the petitioners 300,000 dinars as compensation for non-pecuniary damages.

2.7On 27 October 2009, the Belgrade District Court partially overturned the First Municipal Court’s judgment of 18 March 2009 and denied the claim lodged by the complainants and Mr.Cubrilov’smother for compensation for non-pecuniary damages for violations of freedoms and individual rights due to illegal and improper conduct of State bodies. The Court found that the claim could not succeed. because it had been Mr. Cubrilov who had been arrested, and not the petitioners, and that the lack of an investigation undertaken by the Office of the District Public Prosecutor could not serve as a basis for recognizing such a compensation under article 172 (1) of the Law on Obligations. The Court considered that, notwithstanding the petitioners’ right to know who was responsible for the death of Mr. Cubrilov, they had a right to compensation for emotional suffering based on article 201 (1) of the Law on Obligations based on the emotional suffering due to the death of a close relative, not because of the failure to identify those responsible. Moreover, the Court found that, in the present case, the rights arising from the Convention pertained to Mr. Cubrilov personally, rather than his relatives, and the right to compensation for the death of a torture victim had already been recognized by the First Municipal Court’s judgment of 17 November 2006.

2.8The Supreme Court of Cassation dismissed the appeal lodged by the complainants and Mr.Cubrilov’smother on 8 December 2011. It found that article 14 of the Convention did not apply, because the petitioners had already exercised their right to compensation for damages due to the death of a close relative in the proceedings validly terminated by the judgment of 17 November 2006. It concurred with the Belgrade District Court that the petitioners had a right to compensation on said grounds, rather than on the grounds that those responsible for his death had not been identified.

2.9On 14 November 2013, the Constitutional Court dismissed the appeal lodged by the complainants and themotherofMr.Cubrilov against the judgment of the Supreme Court of Cassation as untimely. It refused to grant restitutio ad integrum, which they had requested because their counsel was on sick leave during the legal period for submitting an appeal. The Constitutional Court considered that their counsel had not justified his failure to file a timely appeal, given that he had not acted with due diligence owing to his failure to file, within 30 days of the first day of sick leave, a reasoned request for the temporary discontinuation of his practice, with appropriate evidence and information, as required under article 39 of the Law on Advocacy, to the bar association, which would have been obliged to delegate a temporary deputy counsel.

2.10On 28 February 2014 and 28 May 2014, the complainants and themotherofMr.Cubrilov submitted applications to the European Court of Human Rights. By single judge decisions of 10 April and 4 September 2014, respectively, the Court declared the applications inadmissible, given that the conditions of admissibility established in articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) had not been met.

Complaint

3.1The complainants argue that the State party has violated their rights under article 6 of the Convention, given that it has not arrested those responsible for torturing Mr. Cubrilov. They contend that the continued lack of a criminal investigation and accountability, despite indications of torture resulting in Mr. Cubrilov’s death, constitutes a breach of article 12 of the Convention. The complainants note that the authorities of the State party delivered the autopsy report to them only seven years after Mr. Cubrilov’s death and that the authorities failed to interrogate those who had been detained together with Mr. Cubrilov and who knew about the torture inflicted on him.

3.2The complainants claim that the State party has violated article 13 of the Convention with respect to Mr. Cubrilov and themselves, given that their right to lodge a complaint with regard to the torture inflicted on Mr. Cubrilov, and to have his case promptly and impartially examined by the competent authorities, was not respected.

3.3The complainants argue that the State party breached article 14 of the Convention, given its failure to award them compensation for the lack of an investigation into Mr. Cubrilov’s torture and death.

Stateparty’sobservations

4.1On 3 February 2020, the State party provided its observations on admissibility and the merits of the communication. The State party observes that, in total, eight criminal complaints of fraud and forgery were filed against Mr. Cubrilov. It recalls that he was arrested on 5 April 1996 by officers of the Property Crime Prevention Unit of the Secretariat of Internal Affairs and was detained. On 28 May 1996, according to a medical report by the prison doctor on guard, he was transferred to the Emergency Centre, due to a stroke, where he died. The State party recalls that an autopsy report was issued.

4.2The State party observes that, on 9 February 2004 and 9 December 2008, the Office of the District Public Prosecutor in Belgrade submitted requests to the Belgrade City Police Department for information regarding the alleged unlawful conduct of the police officers during the arrest of Mr. Cubrilov and during his detention. On 2 March 2004 and 17 February 2009, the Department reported that police officers, acting in their official capacity in relation to Mr. Cubrilov, had been interviewed and that no indications had been found to confirm the allegations. Case files concerning the criminal proceedings against Mr. Cubrilov had been destroyed after the expiry of the requirement for keeping them on file, in accordance with article 241 of the Court Rules of Procedure.

4.3The State party submits that the communication is inadmissible on the grounds that the complainants submitted applications to the European Court of Human Rights on 28 February 2014 and 28 May 2014 concerning the same parties and the same material rights as the present communication. On 10 April 2014 and 4 September 2014, respectively, the Court found that the conditions of admissibility, prescribed in articles 34 and 35 of the European Convention on Human Rights, had not been met. The Court therefore declared the applications inadmissible. Although the Court did not give precise reasons, the State party observes that some of the possible grounds would have included a certain degree of examination of the substance of the application. The communication is therefore inadmissible under article 22 (5) (a) of the Convention.

4.4In addition, the State party notes that there is no information that either the complainants or Mr. Cubrilov have brought proceedings against the State party authorities for violations of the Convention. Based on article 17 of the Criminal Procedure Code, Mr. Cubrilov could have requested the institution of an impartial and timely investigation, if the Public Prosecutor had failed to initiate criminal proceedings. Even if the Criminal Code in force at the time did not criminalize torture, he could have invoked grievous bodily harm (article 53 of the Criminal Code), light injury (art. 54) or mistreatment or brutality by law enforcement officers (art. 66). The communication is therefore also inadmissible under article 22 (5) (b) of the Convention.

4.5The State party submits that the allegations made by the complainants are unfounded, because there is no evidence to support them.

Complainants’commentsontheStateparty’sobservations

5.1On 18 June 2020, the complainants submitted their comments on the State party’s observations. The complainants assume that the European Court of Human Rights did not examine the same matter, but instead denied their applications for a lack of exhaustion of domestic remedies, given that they had not filed a timely appeal against the judgment of the Supreme Court of Cassation to the Constitutional Court. However, their counsel was prevented from filing an appeal in a timely manner because he was on sick leave, from 15 June 2011 until 31 May 2012, with an illness requiring hospitalization. The judgment was delivered to the counsel’s office on 14 March 2012, while he was still on sick leave. He filed an appeal with a request for restitutio ad integrum on 12 June 2012, within the time limit of 15 days from the day of the termination of the reason that caused the failure to appeal. In addition, the complainants note that they wished to be represented only by the counsellor who was on sick leave.

5.2The complainants argue that Mr. Cubrilov did not have an opportunity to file a documented complaint to report the relevant police officers while he was detained and being subjected to torture. They note that their counsel filed a request with the Office of the District Public Prosecutor, following receipt of the autopsy report.

5.3The complainants express surprise at the destruction of the criminal case files concerning Mr. Cubrilov. In Serbia, files may only be destroyed if the case is not disputable, but not if the case relates to a disputable criminal offence, if it contains possible evidence of a crime or if it is the reason for new court proceedings. Moreover, in practice, case files are often not destroyed after the expiry date, especially for political purposes. The complainants note their suspicion of the State party’s observation that the files were destroyed in 2009, i.e. at the time of the civil proceedings and 13 years after the conclusion of the criminal proceedings, whereas the Court Rules of Procedure prescribe destruction after 10 years. They claim that there would have been no reason to destroy the case files other than to hide the cause of Mr. Cubrilov’s death, in particular given the delay of seven years in submitting the autopsy report to the Office of the District Public Prosecutor.

5.4The complainants note that they were not summoned for the interrogation of the police officers by the Belgrade City Police Department and therefore could not ask any questions. They have not obtained copies of the testimonies of the police officers or of the Police Department’s reports. They are unaware of whether the Office of the District Public Prosecutor heard testimony from Mr. Cubrilov’s cellmate, even though the latter had told the complainants that Mr. Cubrilov had been beaten. Furthermore, they were not informed of any actions taken by the Office.

5.5The complainants note that, according to the autopsy report and the report of the forensic expert, Mr. Cubrilov’s death was caused by damage to vital brain centres and other injuries inflicted with the blow of a blunt instrument, not by a stroke as the State party claims. They argue that the State party’s denial of liability is inconsistent with the payment by its authorities of compensation for damages, as ordered by the First Municipal Court of Belgrade.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any complaint submitted in a communication, the Committee must decide whether the communication is admissible under article 22 of the Convention. The Committee takes note of the State party’s argument that the communication is inadmissible, given that the European Court of Human Rights has already examined the matter raised in the present communication. The Committee recalls that it considers that a communication has been or is being examined by another procedure of international investigation or settlement, if the examination by the procedure relates or related to the same matter within the meaning of article 22 (5) (a), which must be understood as relating to the same parties, the same facts and the same substantive rights. The Committee notes that the complainants do not contest that the applications submitted to the Court related to the same parties, the same facts and the same substantive rights as the present communication. However, the Committee observes that, on 10 April 2014 and 4 September 2014, the European Court of Human Rights, sitting in a single-judge formation, declared the complainants’ applications inadmissible given that the admissibility criteria set out in articles 34 and 35 of the European Convention on Human Rights had not been met, without providing any explanation as to the specific reasons that had led it to reach such a finding. The Court’s decisions do not allow the Committee to verify the extent to which the Court examined the complainants’ applications, including whether it conducted a thorough analysis of the elements related to the merits of the case. The Committee therefore considers that it is not precluded by article 22 (5) (a) of the Convention from examining the communication.

6.2The Committee takes note of the State party’s submission that the complaint should be declared inadmissible for failure to exhaust domestic remedies, because Mr. Cubrilov failed to request an investigation into the treatment inflicted on him, pursuant to article 17 of the Criminal Procedure Code. The Committee observes, however, that the State party has not explained how Mr. Cubrilov could have requested in practice an investigation into his torture, pursuant to article 17 (3) of the Criminal Procedure Code, while he was being detained and in the light of his later death in custody. The Committee recalls the State party’s obligation under article 12 of the Convention to ensure that its competent authorities proceed ex officio to a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed. Given the circumstances, the Committee finds an insufficient basis for concluding that such remedy was in fact available to Mr. Cubrilov during or following his arrest. The Committee therefore concludes that Mr. Cubrilov’s having not used article 17 (3) of the Criminal Procedure Code does not preclude the Committee from examining the complaint. Given that the State party has not presented any other remedies that may have been accessible and effective that the authors would have failed to exhaust, the Committee finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.

6.3The Committee takes note of the State party’s submission that the communication is unfounded. The Committee considers, however, that the allegations put forward by the complainants, in particular those related to the State party’s responsibility for the alleged torture and death of Mr. Cubrilov and the lack of a prompt and impartial investigation in that regard, raise substantive issues under the Convention, which have been sufficiently substantiated for the purpose of admissibility. Overall, the Committee is satisfied that it has jurisdiction to consider the complaint under article 22 of the Convention. Accordingly, the Committee declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the complaint in the light of all the information made available to it by the parties concerned, in accordance with article 22 (4) of the Convention.

7.2The Committee takes note of the complainants’ claims that: (a) upon the arrest of Mr. Cubrilov and during his detention, police officers beat him, including on his head, which resulted in his death on 16 June 1996; (b) the authorities of the State party have not adequately investigated the treatment inflicted on Mr. Cubrilov, nor held those responsible to account; (c) Mr. Cubrilov and his family members were not allowed to lodge a complaint or have the case promptly and impartially examined; and (d) the authorities of the State party have failed to provide the complainants with compensation for the lack of an investigation.

7.3The Committee takes note of the State party’s observations that the complainants’ claims are unfounded because there is no supporting evidence and that Mr. Cubrilov died as a result of a stroke. The Committee observes, however, that the State party has not commented on or contested the documentation provided by the complainants, including translations of a discharge summary from a neurosurgery emergency room in Belgrade, the autopsy report of 18 June 1996, and the report of the forensic expert of 25 May 2004. The Committee notes that those documents contain details indicating that Mr. Cubrilov’s death was violent and that it occurred as a direct consequence of the injuries inflicted on him, which had been delivered by blunt instruments, heavy mechanical instruments or human body parts, at about the same time or immediately prior to his detention. The Committee observes that, in 2004, the complainants filed a request for an investigation into the acts of torture inflicted upon Mr. Cubrilov and which resulted in his violent death and that the First Municipal Court of Belgrade, in its judgment of 17 November 2006, found the State party responsible for the violent death of Mr. Cubrilov. Therefore, the Committee concludes that the judicial authorities of the State party did not fulfil the State party’s obligation to take effective measures to prevent acts of torture under article 2 of the Convention.

7.4In that connection, the Committee recalls the State party’s obligation under article 12 of the Convention to ensure that its competent authorities proceed ex officio to a prompt and impartial investigation wherever there are reasonable grounds to believe that an act of torture has been committed. The Committee considers that the omission in the present case is particularly serious considering that the victim was in the custody of the authorities presumably responsible for the acts of torture perpetrated against him. The Committee notes the following: that, according to the findings of the First Municipal Court of Belgrade in its judgment of 18 March 2009, an interview was held with only one of the inspectors who arrested and interrogated Mr. Cubrilov, who denied the use of force; that the inspector was not asked about the identity of the officers who escorted Mr. Cubrilov or the circumstances surrounding the reasons for which Mr. Cubrilov was taken to the Clinical Centre of Serbia the day after his arrest with an injury to his chest; that the autopsy report was delivered only seven years after his death; and that no efforts were made to collect additional evidence, such as hearing testimony from his cellmate. The Committee takes note of the complainant’s assertion that the case was archived on 8 March 2004. Given the circumstances, the Committee concludes that no prompt and impartial investigation was undertaken into the torture and death of Mr. Cubrilov, in violation of article 12 of the Convention.

7.5The Committee takes note of the complainants’ assertion of a violation under article 13 of the Convention and of their refutation of the State party’s observation that Mr. Cubrilov could have requested an investigation into his torture pursuant to article 17 (3) of the Criminal Procedure Code. The Committee notes that the State party has not effectively contested that the treatment inflicted on Mr. Cubrilov prevented him from gaining access to such a remedy (see para. 6.2 above). Moreover, in the case of the complainants, their ability to file a substantiated request for an investigation was undermined by the delay of seven years in issuing the autopsy report. Given the circumstances, the Committee finds that the State party has not fulfilleditsobligationunderarticle13oftheConventiontoensurethatMr.Cubrilovandthecomplainantshadtherighttolodgeacomplaintandtohavehiscasepromptlyandimpartiallyinvestigatedbyitscompetentauthorities.

7.6The Committee takes note of the complainants’ claim that the State party has breached article 14 of the Convention, given that its authorities refused to provide them with compensation for the lack of an investigation. The Committee recalls its general comment No. 3 (2012) on the implementation of article 14 and notes that article 14 is applicable to all victims of torture or ill-treatment. The Committee also recalls that article 14 not only recognizes the right to fair and adequate compensation, but also requires States parties to ensure that the victim of an act of torture or ill-treatment obtains redress. The Committee considers that redress should cover all the harm suffered by the victim, including restitution, compensation, rehabilitation of the victim and measures to guarantee that there is no recurrence of the violations, while always bearing in mind the circumstances of each case. However, theCommitteeobservesthat,inthepresentcase,thecomplainantsreceivedcompensationfromtheStatepartyasaresultofthejudgmentoftheFirstMunicipalCourtofBelgradeof17November2006.Inthatregard,giventhefactsavailabletotheCommitteeaboutthetreatmentinflictedonMr.Cubrilovandthecomplainants’claimsforcompensation,theCommitteefindsinsufficientbasisforconcludingthattheStatepartyhasbreacheditsobligationsunderarticle14oftheConvention.

8.The Committee, acting under article 22 (7) of the Convention, decides that the facts before it reveal a violation by the State party of articles 2, 12 and 13 of the Convention. Having reached that conclusion, the Committee will not examine the complainants’ remaining claims.

9.Pursuant to rule 118 (5) of its rules of procedure, the Committee urges the State party to:

(a)Launch a prompt, impartial and independent investigation into the torture and death of Mr. Cubrilov, including, where appropriate, the filing of specific torture charges against perpetrators, and the application of the corresponding penalties under domestic law;

(b)Take the steps necessary to provide guarantees of non-repetition in connection with the facts in the present complaint. To that end, the Committee urges the State party to review its criminal procedures in law and practice to ensure that cases of torture are promptly and adequately investigated ex officio by the authorities, even if victims or their relatives have not requested an investigation, and to report, within 180 days of the date of transmission of the present decision, on the steps or initiatives taken in that regard;

(c)Make public the present views and disseminate its content widely, in the official language of the State party, in particular among members of the police force and prison personnel who are in charge of persons deprived of their liberty.

10.In accordance with rule 118 (5) of its rules of procedure, the Committee requests the State party to inform it, within 90 days of the date of transmission of the present decision, of the steps it has taken in response to the above findings.