Committee against Torture
Summary record of the 1862nd meeting
Held at the Palais Wilson, Geneva, on Tuesday, 23 November 2021, at 10 a.m.
Consideration of reports submitted by States parties under article 19 of the Convention (continued)
Third periodic report of Serbia
The meeting was called to order at 10.05 a.m.
Consideration of reports submitted by States parties under article 19 of the Convention (continued)
Third periodic report of Serbia(CAT/C/SRB/3; CAT/C/SRB/QPR/3)
1. At the invitation of the Chair, the delegation of Serbia joined the meeting.
2.Ms. Čomić (Serbia) said that she wished to begin by pointing out that, although Kosovo and Metohija was an integral part of the territory of Serbia, the administration of that province was entirely entrusted to the United Nations Interim Administration Mission in Kosovo (UNMIK); for that reason, the third periodic report contained no information on the implementation of the Convention in that area. Nevertheless, her Government stood ready to provide the Committee with all the information in its possession to supplement any information UNMIK could provide in that regard.
3.According to the Constitution of the Republic of Serbia, generally accepted rules of international law and ratified international treaties formed an integral part of the domestic legal order and were directly applicable. As a member of the Council of Europe, Serbia had ratified a number of conventions in the field of human and minority rights, including the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. It was also adapting its legislation with a view to membership of the European Union, paying special attention to the promotion of the rule of law and the protection of human rights. Serbia fully applied the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which had been incorporated into domestic legislation.
4.Outlining the developments in Serbia since the submission of the third periodic report, she said that an amendment to the Criminal Code had entered into force in December 2019, whereby the prison sentence for the criminal offence of torture, when committed by an official in the course of their duties, had been increased from between 1 and 8 years to between 2 and 10 years, and the criminal investigation of such acts had been made mandatory. In May 2021, the Ministry of Justice had established a working group to analyse the effectiveness of the criminal justice system and prepare draft legislation on amendments to the Criminal Code. On 8 November 2021, the working group had decided to analyse articles 136 and 137 of the Criminal Code, on extortion of confession, and ill-treatment and torture, respectively.
5.In October 2019, the law on free legal aid had taken effect, and, in July 2020, the national strategy on the realization of the rights of victims and witnesses of crime for the period 2020–2025 had been adopted, with the aim of providing all victims and witnesses of crime with adequate procedural rights and systematic, professional assistance, including for particularly vulnerable categories of victims. New legislation on missing persons was also being drawn up.
6.The Administration for the Enforcement of Penal Sanctions was obliged to register every possible case of torture and other cruel, inhuman or degrading treatment, to immediately establish the facts and initiate proceedings, and to file a criminal complaint with the competent prosecutor’s office if there were grounds for suspecting a criminal offence had been committed. While it was impossible to completely eradicate cases of torture, or abuse of power, her Government was committed to establishing institutions and legislation to investigate and punish such acts, and to working together with civil society representatives and human rights organizations to achieve that aim.
7.Good results had been achieved with the development strategy and action plan for the enforcement of criminal sanctions and the strategy for reducing overcrowding in institutions. Prison capacity had increased from 10,300 places to 11,450 places; the current number of persons deprived of liberty was 10,410. Measures had been introduced to increase the number of prison staff. Guidelines on the conduct of employees in the event of allegations of ill-treatment, and a handbook for prison health workers, had been drawn up. Health care provided to persons deprived of their liberty was of the same quality as that provided by any other clinic; successful preventive measures had protected them from coronavirus disease (COVID-19), and all those who so requested had been vaccinated. A number of by-laws had been issued to improve the situation of persons being held by the police, including in relation to ill-treatment by the police. In addition, conditions inside the detention rooms of the Ministry of the Interior had been improved and work had started on fitting out interrogation rooms with audio and video recording equipment, as recommended by the national preventive mechanism.
8.In cooperation with the European Border and Coast Guard Agency (FRONTEX), the Ministry of the Interior was actively working to combat irregular migration from Serbia to Bulgaria and North Macedonia, and was committed to a rights-based approach to the treatment of migrants, asylum seekers and refugees. The capacity of the Centre for the Protection of Victims of Trafficking had been strengthened, and a crisis shelter for women victims of trafficking had been opened. A strategy for combating gender-based and domestic violence had been adopted for the period 2021–2025, in addition to the general strategy on gender equality adopted in October 2021. Strategies had also been introduced to protect children from violence and improve the situation of persons with disabilities.
9.In October 2021, the Government had adopted a new national strategy for the prosecution of war crimes for the period 2021–2026, accompanied by a corresponding action plan. Between November 2018 and November 2021, the Office of the War Crimes Prosecutor had filed 20 indictments against 21 persons, including some high-ranking officials, for incidents involving hundreds of victims. The number of prosecutorial staff at the Office had also been increased.
10.The Commissariat for Refugees and Migration had taken steps to prevent the spread of COVID-19 among staff and inmates of its asylum or reception centres, and not a single case of the disease had been registered. Measures had also been introduced to protect such persons from exploitation and abuse, in particular children and other vulnerable people.
11.Mr. Tuzmukhamedov (Country Rapporteur) said that, while he welcomed the fact that amendments to article 137 of the Criminal Code were under consideration, it was disappointing that that was the extent of the progress made towards bringing the definition of torture into line with international standards in the two years since submission of the State party’s third periodic report. What were the reasons for the lack of progress? Given that ratified international treaties were integrated into the domestic legal system, he had been surprised to hear that the Constitutional Court had the power to decide whether such treaties complied with the Constitution. In that regard, he wished to have information on any cases brought before the Constitutional Court in which a party had invoked the Convention against Torture or the Court itself had referred to the Convention. Similarly, he would appreciate details of cases brought before courts of general jurisdiction in which the Convention had been cited as a reference, or even as the basis of a decision.
12.Recalling the assertion in the periodic report that it was prohibited to forcibly remove foreign nationals to a territory in which they would be at risk of the death penalty, torture or inhuman or degrading treatment or punishment, or where there was a risk of a serious violation of their constitutional rights, he asked whether that implied that the protections guaranteed by the Constitution could be extended beyond the sovereign territory of Serbia, and even cover foreign nationals. If so, he wished to know by what means such protections were enforced.
13.Ms. Racu (Country Rapporteur) said that, according to information obtained by the Committee, the Ombudsman’s Office was not fully in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles), despite having been accredited with category A status by the Global Alliance of National Human Rights Institutions. In 2020, the Alliance had deferred its review of the Ombudsman’s Office for one year owing to concerns about the selection and appointment of the Ombudsman, the Office’s effectiveness in addressing human rights violations, and its cooperation with civil society and other human rights bodies. The Office’s staffing and funding levels and its interaction with the international human rights system also gave rise to concerns. She would welcome the delegation’s comments on those issues.
14.She wished to know why the number of visits conducted by the Ombudsman’s Office to places of detention, including police facilities, migrant centres and psychiatric institutions, had decreased from 50 in 2014 to 5 in 2018, and how many such visits had been conducted since 2018. It was unclear whether the findings of such visits were made public and whether monitoring teams included medical professionals and psychiatrists. She would be grateful for examples of how the Office’s recommendations had been taken into account by law enforcement agencies and other State institutions. She would appreciate clarification of whether non-governmental human rights organizations were permitted by law to access places of detention. How many such organizations were part of the national preventive mechanism?
15.Despite improvements in the State party’s procedures, prolonged pretrial detention remained a problem. Moreover, following its visit to the State party in 2018, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment had raised concerns about the practical application of the provisions of the Code of Criminal Procedure governing fundamental legal safeguards, including the right to contact a family member and to have effective access to legal counsel from the outset of detention. It had also received complaints about individuals having court-appointed lawyers imposed on them, and about the inadequate performance of those lawyers, who reportedly appeared more interested in maintaining good relationships with the police than in representing their clients. She would welcome the delegation’s comments on those issues. It would be useful to know whether the State party had improved its procedure for notifying detainees of their rights from the outset of detention. She also wished to know whether the unified electronic system for custody records was fully functional and whether it contained comprehensive information.
16.She would welcome confirmation that a police officer must be present during medical examinations of detainees and that information on persons displaying injuries upon admission to prison or claiming to have been ill-treated by the police was systematically shared with the investigating judge and prosecutor. The Committee would appreciate information on efforts to ensure that detainees received a medical examination on admission to police detention facilities. It was unclear to which authority doctors performing such examinations communicated their findings and how possible cases of torture or ill-treatment were reported. She wished to receive details of the number of such cases that had arisen during the reporting period and the results of any related investigations, prosecutions and punishments.
17.She was glad to see that the authorities had made significant progress in improving conditions of detention. During his visit to the State party in 2017, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment had found that some refurbished and newly built facilities met international standards. She would welcome the delegation’s comments on the extent to which the Nelson Mandela Rules and the recommendations of the European Committee for the Prevention of Torture regarding living space for prisoners had been taken into account in the design of the new facilities and the adaptation of older ones. She would appreciate details of the capacity of the new facilities and an update on plans to upgrade other police detention units and prisons.
18.In addition, she wished to receive updated statistical data on capacity rates per prison, the average number of prisoners per cell and the average amount of cell space per prisoner, as well as on the causes of deaths among inmates, disaggregated by sex, age and ethnic origin or nationality. She would also welcome additional information on the State party’s development strategy for the prison system and its strategy for reducing overcrowding in prisons.
19.Mr. Tuzmukhamedov said that he would like to know on what grounds the State party extradited or surrendered its own citizens to foreign States or international jurisdictions. He would be interested to know whether there was any constitutional or other legislative prohibition on the extradition of Serbian citizens. He would welcome details of any such extraditions that had been carried out during the reporting period.
20.In paragraph 127 of its report, the State party asserted that war crimes were “complex crimes with several potential acts of execution”. It was unclear to him whether the term “execution” was intended to refer to deprivation of life or simply the completion of a non-injurious process. The Committee would welcome more details about the indictments filed by the Office of the War Crimes Prosecutor against 21 high-ranking individuals, including whether any of the cases had involved charges of torture or ill-treatment and whether the Office had invoked the Convention. He would appreciate an account of the outcomes of the initial five-year period of the national strategy for the prosecution of war crimes, with a particular focus on any such crimes involving torture or ill-treatment. It was unclear whether the results of the strategy had been evaluated and the conclusions made public.
21.He wished to receive an update on any developments and outstanding issues in the State party’s cooperation with the International Residual Mechanism for Criminal Tribunals since the submission of the periodic report, particularly in the case of Petar Jojić and Vjerica Radeta, in which the surrender orders issued in 2017 had still not been executed. He would be grateful for details of the redress and compensation provided to the victims of persons convicted by the International Tribunal for the Former Yugoslavia or the Residual Mechanism, including with regard to the national implementation of judgments relating to compensation, the scale of payable amounts and the number of persons covered by the scheme. He also wished to learn about any non-pecuniary measures that had been provided and about any victim or witness protection programmes. He would welcome information on the number of compensation requests that had been made and granted and the amounts ordered and actually provided.
22.The Committee would welcome an update on the activities and results of the working group set up by the Supreme Court to develop guidelines on the provision of compensation to victims of serious offences. It would also be useful to hear about the results of the national strategy on the rights of victims and witnesses of crime.
23.He would be grateful for updated statistics on forcible removals of foreigners and stateless persons since the submission of the State party’s report, including their destinations, any evaluations of the safety of those destinations and any subsequent monitoring of the persons removed. He would welcome a detailed account of the number of refoulements, extraditions and expulsions that had been carried out during the reporting period on the basis of the acceptance of diplomatic assurances or their equivalent, as well as any instances in which the State party had offered such diplomatic assurances or guarantees.
24.Lastly, he would appreciate an update on the case of Mr. Cevdet Ayaz, in which the Committee had found violations of articles 3 and 22 following consideration of an individual communication (CAT/C/67/D/857/2017). Following Mr. Ayaz’s removal to Turkey, had the State party authorities monitored the complainant’s situation in an objective, impartial and reliable manner? Had it provided him with redress, including in the form of adequate compensation for non-pecuniary damage resulting from the physical and mental harm caused?
25.Ms. Racu said that the Committee wished to know about any changes in the previously inadequate staffing levels in the prison system. It would be interesting to hear about any steps taken to train prison officers in the areas of crisis management and the prevention of violence. She would also be grateful for statistics on the use of physical force by prison staff.
26.She would be interested to hear more about the role of judges responsible for enforcing criminal sanctions. She would also welcome information on complaints procedures in prisons and data on the number of complaints received per prison, the number of visits to each prison and the results of any related judicial proceedings.
27.The Special Rapporteur on torture, during his visit to Serbia in 2017, had found that there was inadequate internal oversight of the police with regard to acts of torture and other cruel, inhuman or degrading treatment and punishment in police custody; another source had indicated that there was little effective prosecution of State agents accused of torture and other forms of ill-treatment. However, it would seem from the State party’s report that a substantial number of civil servants had been suspended in response to allegations of abuse and torture in the period between 2015 and 2018. She would therefore like the delegation to provide updated, disaggregated data on all complaints relating to torture and inhuman treatment in prisons, as well as information on any criminal proceedings that had been initiated, the length of investigations into complaints, any penalties imposed and the redress received by victims. She would also appreciate receiving disaggregated data on the number of prison guards who had been punished for the use of excessive force. Were they given any guidance on what constituted excessive force and were prisoners informed about their right to report abuse?
28.In view of the amendments that had been introduced to the Criminal Code to prohibit parole for persons serving life sentences for the gravest criminal offences, and notwithstanding the opinion of the Commissioner for Human Rights of the Council of Europe that such a measure was incompatible with article 3 of the European Convention on Human Rights, the Committee would like the delegation to explain the State party’s current position on life imprisonment. It further wished to know how many prisoners had been handed down life sentences to date and whether they were able to submit complaints or to speak to monitoring bodies in private. She asked whether those prisoners were subject to a prison regime that allowed them to work, pursue their education or engage in other activities. She wondered whether individual sentence plans were drawn up to take account of the needs of each inmate serving a life sentence. Were they kept in solitary confinement or did they share their cell with other inmates? What measures were envisaged to improve the prison regime and detention conditions of prisoners serving life sentences?
29.She would like to hear about the State party’s long-term strategy for tackling violence among prisoners and to be updated on measures to prevent such violence, self-harm and suicide. She wished to know how many such incidents had been recorded in prisons during the reporting period and what procedures were in place for their investigation. Was there any legislation dealing with the prevention and investigation of violence in prisons? She would be grateful for a description of the mechanism for recording and reporting violent incidents. She also wished to know what steps were taken to prevent reprisals and to protect vulnerable categories of inmates. She would welcome information on any psychosocial programmes to reduce the level of violence in prisons.
30.She was curious to know whether all categories of prisoners, including minors, could be placed in solitary confinement, either as a punishment or as a protective measure. Was any legal provision made for an appeal against a decision ordering solitary confinement? She enquired as to whether the State party had any plans to reduce the maximum period of solitary confinement and to allow family visits during that period. The Committee would appreciate data on the frequency of the use of solitary confinement, its duration and the behaviour that entailed it.
31.Although the Committee was aware of the State party’s impressive efforts to reform the juvenile justice system, it was unclear whether national legislation provided for any alternatives to juvenile detention and whether the number of young people in detention had increased since the previous report. She would like to know if they were offered any social or educational programmes and whether they could engage in sport, art therapy and other rehabilitation programmes to reduce recidivism and promote prosocial behaviour.
32.Mr. Tuzmukhamedov said that the Committee would like to receive updated information on the training given to police, immigration and border protection officials. He asked whether they were trained to identify signs of physical torture and long-lasting psychological distress. Were asylum seekers provided with interpreters with the appropriate qualifications who could help medical experts communicate with persons who had been subjected to physical and mental torture? The Committee would appreciate details of the basic legal training given to military cadets and of the instruction in international law received by mid-career military officers. It would also like to be informed about the training undergone by Serbian military units before they joined international missions where they might be deployed in situations of armed conflict. Were they given detailed, specific instruction in how to abide by the Convention? Who provided the instruction? He wondered what manuals were used, what courses were offered and whether any lessons had been learnt from earlier deployments on international missions.
33.He wished to know what steps had been taken by the State party during the COVID-19 pandemic to ensure that its policies and actions complied with its obligations under the Convention, in particular in prisons and other places where persons were detained. How had social care institutions coped with the pandemic? He asked whether they had been forced to close and, if so, what had happened to patients and how they had received treatment.
34.The delegation was kindly requested to explain how national counter-terrorism measures complied with human rights safeguards in general and the State party’s obligations under the Convention in particular. The Committee would be grateful for details about persons convicted under counter-terrorism legislation and the de jure and de facto legal safeguards and remedies available to them. Had there been any complaints of non-observance of international standards and, if so, what had been the outcome of those complaints? With reference to the case mentioned in paragraph 229 of the report, the Committee wished to know the nationality, ethnicity, gender and age of the accused and to be given more information about the relevant jurisprudence.
35.Ms. Racu said that the Committee would like to hear more about the training of prison medical staff and the centralized procurement of medicines and medical equipment for places of deprivation of liberty. She would be interested to find out what the delegation thought about the possible transfer of responsibility for health care in prisons to the Ministry of Health. She wished to emphasize that medical screening to record injuries suffered by persons before they were admitted to prison was a vital means of preventing any subsequent ill-treatment of inmates. She asked whether there was a strategy for treating prisoners who were drug addicts or alcoholics. She would appreciate information on total COVID-19 transmission rates in prisons and on action taken to treat prisoners who had contracted the virus. The Committee would be grateful for an update on measures to increase the number of medical staff and improve medical care in prisons. In that connection, she wished to know the ratio of doctors to prisoners and how many health-care workers there were in each prison. Had the development strategy for the enforcement of criminal sanctions been extended? If so, she wished to know what funds had been allocated to it and who would be responsible for implementing it. She wondered what goals had been set for improving health care in prisons and what indicators were used to measure success.
36.She noted that there was a need to improve and expedite the processing of asylum applications and to make it easier to apply for asylum at Belgrade airport. The Committee would appreciate an update on the removal procedures applicable to foreigners. In particular, she would like to have a description of the procedures in place to ensure that vulnerable persons seeking asylum were identified and referred without delay to the appropriate bodies. The delegation was requested to provide additional information, disaggregated by sex, age and country of origin, on persons who had been returned, extradited or expelled. She wished to know what steps had been taken to compile data on the grounds on which refugees had been turned away, the countries to which they had been returned and the criteria used to determine which countries were safe or unsafe.
37.The Committee was concerned by reports that human rights violations still occurred in residential institutions for children with mental disabilities and that women in psychiatric institutions faced multiple discrimination, abuse and gender-based violence. It was also worried by reports that the national preventive mechanism had been unable to visit social care institutions in the first half of 2020. It therefore invited the delegation to express its views on the draft strategy on deinstitutionalization and the draft law on the rights of residents in social care institutions.
38.The Committee was concerned about reports of the use of coercive measures in institutions, including physical and chemical restraints and excessive antipsychotic therapies, and the prolonged isolation of adults and children with psychosocial or intellectual disabilities. She would be grateful for up-to-date information on the use of such restraints and therapies. In addition, she wished to know on what basis staff decided to use mechanical restraints, who made and reviewed such decisions and what protocols were used to determine the duration of the restraint and to ensure the supervision of restrained patients. She also wondered whether patients in psychosocial institutions were able to lodge complaints. Lastly, she would be interested to hear whether staff in psychiatric institutions and residential facilities received adequate training on the use of mechanical restraints and seclusion, and what efforts the State party was making to improve material conditions and increase the number of psychiatrists in psychiatric hospitals and residential facilities.
39.Ms. Belmirsaid that, although she appreciated the progress made towards reforming the judicial system, she would like to know what steps the State party was taking to expedite the handling of cases by domestic courts. In addition, she wished to know whether the State party planned to amend the articles of the Constitution providing for the appointment of judges by parliament, particularly in the light of the denunciation of that practice by the European Commission for Democracy through Law.
40.Mr. İşcan said that he would be grateful for up-to-date information on the involvement of human rights defenders in developing laws and policies on the elimination of torture and ill-treatment. He wished to know whether the Government planned to take any legislative or administrative measures to strengthen the role and ensure the safety of human rights defenders, to what extent the emergency measures taken in response to the COVID-19 pandemic had restricted the activities of human rights defenders, and when such restrictions would be lifted.
41.In January 2017, the Commissioner for Human Rights of the Council of Europe, expressing concern about the potentially negative impact on media freedom of a Belgrade High Court decision, had stated that the concept of defamation should not be interpreted in such a way as to “provide far-reaching remedies or sanctions that [could] have a chilling effect on freedom of expression and public debate”. He would be interested to hear how the domestic courts had handled defamation cases since then. Additionally, he wished to have the delegation’s response to reports that there had been over 100 attacks against journalists so far in 2021 and that such incidents were not routinely investigated. Finally, he would like to know what progress had been made in identifying, investigating and prosecuting the perpetrators in the cases of Slavko Ćuruvija, Milan Pantić, Radislava Vujasinović and Davor Pašalić since the publication of the State party report.
42.Ms. Pūcesaid that she wished to know whether, as the Committee had been given to believe, the Public Prosecutor’s Office had dismissed a large number of criminal complaints of domestic violence without providing any justification to the complainants. In that connection, she wondered why, according to the Statistical Office of the Republic of Serbia, less than half of the 6,000 or so reports of domestic violence made over the previous year had led to convictions. She welcomed the adoption in mid-2021 of a new strategy for combating gender-based and domestic violence but would like to know what activities were included in the strategy and what proportion of the State budget had been allocated to implementing it. In particular, she would be interested to hear whether there was adequate funding for crisis shelters for victims of domestic or sexual violence and whether the State funded legal assistance for those victims. While welcoming the criminalization of enforced marriage and female genital mutilation in the 2016 amendment of the Criminal Procedure Code, she was keen to learn how many allegations of such crimes had been investigated since the amendment had been made, what kind of legal aid and safeguards had been provided to the victims, how many of those investigations had led to convictions, and how many of those convictions had led to suspended prison sentences.
43.Lastly, she wished to know the outcome of the investigation into a high-profile case in which a Serbian politician had allegedly been implicated in child prostitution in Jagodina and intimidated witnesses. What measures had been taken to protect and provide effective legal assistance to the victims?
44.Ms. Čomić(Serbia), opening her delegation’s replies to the questions raised by Committee members, said that the bill amending the Constitution was due to be tabled before parliament in December 2021, following which a constitutional referendum would be held. The draft revised constitution implemented the recommendations of the European Commission for Democracy through Law.
45.In the case of Petar Jojić and Vjerica Radeta, contempt of the International Tribunal for the Former Yugoslavia did not constitute sufficient grounds for their extradition. The Ministry for Human and Minority Rights and Social Dialogue was working with the Ministry of Justice to bring that case to a conclusion.
46.The Ministry for Human and Minority Rights and Social Dialogue was taking steps to develop a human rights strategy for adoption in late 2022. The Government recognized the valuable contribution of, and was open to working with, human rights defenders and civil society organizations. Like many other Governments around the world, it had struggled to strike a balance between protecting its citizens and restricting freedoms during the COVID-19 pandemic. However, it was committed to ensuring the safety and freedom of human rights defenders. The Ministry had also established a working group for the protection of journalists and was due to hold a dialogue on 30 November 2021 on freedom of the media and the social and economic rights of journalists.
47.Ms. Dragičević-Dičić (Serbia) said that the Constitutional Court had cited international and regional treaties to which Serbia was a party – including the Convention against Torture – in a number of its decisions. The guidelines and recommendations for the more effective application of legal norms in procedures for compensating victims of serious crimes were yielding positive results; a number of seminars had been held over the past two years to raise judges’ and public prosecutors’ awareness of those guidelines. The Criminal Code provided for the conditional release, after 27 years, of detainees sentenced to life imprisonment. Recent case law demonstrated that the conditions for release were increasingly being met.
48.Ms. Kiurski (Serbia) said that the methodology for conducting investigations into cases of abuse by the police, established in 2017, set out clear steps to be taken by public prosecutors in such cases. In addition, training had been provided to public prosecutors on how to conduct efficient and independent investigations. The maximum sentences for torture and extortion of confessions, provided for in articles 136 and 137 of the Criminal Code, would be reviewed by the working group set up to analyse the effectiveness of the criminal justice system and prepare draft legislation on amendments to the Criminal Code.
The meeting rose at 1 p.m.