COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF BOSNIA AND HERZEGOVINA
The Committee against Torture this morning began its consideration of the initial report of Bosnia and Herzegovina on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Slobodan Nagradic, Assistant Minister in the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, introduced the report, saying that it referred to a considerable period of time, over ten years, of which three were years of war. The report contained certain conclusions that could not correspond exactly to the precise situation of human rights today in Bosnia and Herzegovina. It also covered the time period until 2003, since which time many important things had happened, far more favourable not only for preparing and collecting information on implementation of the Convention, but also the actual atmosphere for the promotion and protection of human rights and public debate on these matters. In the past few years in Bosnia and Herzegovina, and especially in the last three years, significant results had been achieved with important implications for the processes and effects of the promotion and protection of human rights in the areas covered by the Convention.
Serving as Rapporteur for the report of Bosnia and Herzegovina was Committee Expert Felice Gaer, who said the presented information demonstrated the complexity of the legal structure in Bosnia and Herzegovina. The criminal code of Bosnia and Herzegovina seemed to a large measure to be patterned after that of the Convention, however, the concept of torture needed to be further clarified, in particular with regards to the different legal entities making up Bosnia and Herzegovina, some of which had not incorporated a special definition of torture into their respective criminal codes. The report also lacked information on the use of measures of compulsion with regard to the use of force by prison personnel. The lack of data became a problem in trying to be helpful in identifying effective measures that were implemented or adopted to help prevent torture under the Convention, and further information as to who was involved in the different complaints would be appreciated, and whether there were issues which the Committee could helpfully address during the session.
Wang Xuexian, the Committee Expert serving as Co-Rapporteur for the report, noted that what was said in the report with regard to the past three years and what had been achieved in implementing the Convention was appreciated, however, there were discrepancies between the report submitted to the Committee and reports submitted to other bodies. An effective solution to the problem would not only help to heal the wounds of the past and be conducive to reconciliation, but would also help in moving forward and building a better future. More effective measures needed to be taken, as this would be in the interests of the people as well as the country. Victims of torture during the war period needed redress.
Other Committee Experts raised questions on issues pertaining to, among other things, whether there were cases of police officers or prison guards who were being pensioned due to suffering from post-traumatic stress disorder due to their experiences during the war period; whether the legislation on torture, inhumane and cruel and degrading treatment and punishment contained gender as an aggravating component; issues related to trafficking and return or extradition or expulsion of the trafficked persons to their countries of origin; and war crimes and how many people had been investigated, prosecuted and convicted in connection with these. An Expert also expressed considerable sympathy with the difficulties that Bosnia and Herzegovina had gone through, and the constraints under which it was operating.
The delegation of Bosnia and Herzegovina was also made up of representatives of the Permanent Mission to United Nations Office at Geneva, the Ministry of Justice, the Ministry of the Interior, and the Ministry of Health and Social Welfare.
The delegation will return to the Committee at 3 p.m. on Wednesday, 9 November to provide its response to the questions raised this morning.
Bosnia and Herzegovina is among the 140 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 10 a.m. on Wednesday, 9 November, it will begin its review of the second periodic report of Nepal (CAT/C/33/Add.6).
Report of Bosnia and Herzegovina
The initial report of Bosnia and Herzegovina (CAT/C/21/Add.6) refers, to a certain extent, to all the camp prisoners in Bosnia and Herzegovina. The status of camp prisoner belongs to any person, a citizen of Bosnia and Herzegovina or a foreign citizen who, during the war in Bosnia and Herzegovina, was forcibly taken away or interned to certain places of imprisonment or concentration camps in and out of the borders of Bosnia and Herzegovina by the soldiers of the military and paramilitary formations that acted in the territory of Bosnia and Herzegovina within the period from 1992 to 1995, and who was deprived of the elementary human rights guaranteed by the Universal Declaration on Human Rights and the Convention on Preventing and Punishing the Crime of Genocide. Camp prisoners were the most typical victims of torture in the recent war, and so, according to the Convention against Torture and other conventions, there are all the prerequisites to incorporate the report of the camp prisoners into the report as its integral part, because, according to the stated conventions, there was the obligation to protect all categories of citizens, especially camp prisoners.
Torture is one of the worst crimes and violations of human rights. It is the attack against the essence of human personality and dignity. It makes the victim be an ordinary weapon in the hands of the perpetrator, but at the same time it also deprives the torturer of any humanity. Such torture in different forms and modalities was committed by official persons in the camps and other places of imprisonment. Camp prisoners were exposed to all so far known and new methods of torture and cruel deprivation of all human rights in all three basic modes of torture: psychological, physical and sexual torture (single or multiple). Within the post-war period, there had not been a law in Bosnia and Herzegovina which comprised or to which this category of the population could be assigned. A great number of camp prisoners still have a problem of unresolved basic existential issues such as employment, housing, social and health care, schooling, sustainable return, and others.
During the war in Bosnia and Herzegovina, massive torture was inflicted mostly on the civilian population, within the strategy and war objectives. The characteristics of the torture fell into the group of torture inflicted in military conflicts and committed by the military, paramilitary personnel, former police personnel and joined sympathisers who were given the necessary instructions and promises of gaining material profit. The perpetrators belonged to ethnic groups different from those of the victims. The methods of torture were universal physical, psychological and psycho-sexual, and the same methods were used in both rural and urban areas. The objectives of torture were the objectives of the war: creating ethnically clean territories with material profit through destruction of the personality of the victim and destruction of the family as the cell of each social community. The prohibition of torture had been raised to the level of constitutional law in the Constitution of Bosnia and Herzegovina and that of both entities. Persons claiming to have been the victims of torture or any other cruel, inhuman or degrading treatment can address the institution of the Ombudsman for Human Rights of Bosnia and Herzegovina for the protection of his or her rights. Other legal means of protection of rights are allowed by the law.
Presentation of Report
Slobodan Nagradic, Assistant Minister in the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, said Bosnia and Herzegovina was grateful for the understanding and support that had been expressed by the Committee so far, in particular in view of the fact that Bosnia and Herzegovina had a very serious delay in fulfilling its commitment with regards to the submission of the report, and the authorities regretted this. However, they were convinced that in the forthcoming period, this cooperation would improve and become more fruitful to mutual satisfaction and benefit. The initial report was here before the Committee, and it contained several key segments. The delay in the submission happened because of domestic reasons, due to the internal organization of the State and its authorities, as well as other relevant factors, which were covered by the core document, which presented the complex multifaceted composition of Bosnia and Herzegovina.
The report referred to a considerable period of time, over ten years, of which three were years of war. In addition to this, Bosnia and Herzegovina recognised that there were certain subjective shortcomings in the organization of authorities, which proved to be an obstacle to more rapid construction of the report and the submission of other documents. Until mid-2000, Bosnia and Herzegovina was not even sure who to task with the report on the implementation of the Covenant. However, that year the responsibility to respond to international obligations was given to the Ministry of Human Rights, although it took some time for the Ministry to be equipped for such complex tasks. The procedure by the authorities of adoption of reports already drafted was also long and complex. In the process of drafting, there had been considerable difficulties in gathering, selecting and synthesising data, assessments and other relevant information, notably statistics, in order to create a mosaic presenting the situation with regards to the implementation of the Convention and the overall situation of human rights in this regard in Bosnia and Herzegovina. The reform of the judiciary had not yet been implemented, and human resources had been inadequate to respond to the needs of the drafting process.
The report contained certain conclusions that could not correspond exactly to the precise situation of human rights today in Bosnia and Herzegovina. It also covered the time period until 2003, since which time many important things had happened, far more favourable not only for preparing and collecting information on Convention implementation, but also the actual atmosphere for the promotion and protection of human rights and public debate on these matters. In the past few years in Bosnia and Herzegovina, and especially in the last three years, significant results had been achieved with important implications for the processes and effects of the promotion and protection of human rights in the areas covered by the Convention, namely in the areas of legislation, strengthening institutional capacities and mechanisms for the protection of human rights, changing and raising awareness on the significance of the problems covered by the Convention, strengthening the NGO section, and drafting numerous documents of strategic importance identifying responsibilities.
MINKA SMAJEVIC, Counsellor-Expert at the Ministry of Human Rights and Refugees of Bosnia and Herzegovina, said that many different bodies and organizations had been involved in the elaboration of the report. Terrible consequences of torture had been seen among many groups of the population, including women and children. A great number of the victims of torture were still suffering from problems of a widely varied nature. The authorities in Bosnia and Herzegovina were doing their best to provide for the needs of the victims, but a lot remained to be done. In the post-war period, there had been no law covering the category of tortured population. There was no comprehensive approach or system for dealing with the needs of the tortured. The issue of compensation had been raised.
Today, it could be stated that in the past year and this year, all the necessary activities had been implemented as had been thought necessary to uphold the duties of Bosnia and Herzegovina to introduce European standards to identify the deficiencies concerning these issues and others. Prohibition of torture had been raised to a constitutionally-defined right, and the right of any person not to be subjected to torture or any inhuman or degrading treatment was explicitly included in the Constitution, and any person who alleged he had been a victim of torture had regular as well as extraordinary legal remedies as well as access to the Ombudsman on Human Rights to achieve redress. The aim was harmonisation with European standards, and the provisions of the Convention were included in the Constitution in order to protect the rights of all individuals, and criminal legislation served as the best proof as to how much human rights were protected in reality.
The law on criminal procedure in Bosnia and Herzegovina included judicial procedures to be applied in the case of acts of torture, and thus criminal legislation was the basic tool for the protection of the human rights of the individual.
Questions by Experts
FELICE GAER, the Committee Expert serving as Rapporteur for the report of Bosnia and Herzegovina, said one of the reasons the Committee was so pleased with the initial report was because the signing of a Convention was an act of commitment to certain human rights principles, but until the State’s existing and current laws were reviewed in order to see how they applied to the Convention, it was difficult to evaluate how the Convention itself was being implemented. It was difficult to make this assessment in Bosnia and Herzegovina, as the State structure was so complex. There was a very substantial and most unusual involvement of international personnel in a variety of the national judicial and policing structures, and this presented a number of new possibilities, which required an explanation of how these overarching complex legal structures impacted on the implementation of the Convention and how the significant presence of the international personnel had aided or impeded this process.
The report, Ms. Gaer said, presented information that demonstrated the complexity of the legal structure. The criminal code of Bosnia and Herzegovina seemed to a large measure to be patterned after that of the Convention, however, the concept of torture needed to be further clarified, in particular with regards to the different legal entities making up Bosnia and Herzegovina, some of which had not incorporated a special definition of torture into their respective criminal codes. These distinctions regarding the different entities making up the State led to a query on how the definition of torture in the Convention was in fact part of the criminal code and operational approach to preventing and punishing torture in all parts of the country and how did Bosnia and Herzegovina harmonise the differences on a federal level. How did Bosnia and Herzegovina intend to work to harmonise the legal provisions related to the Convention in general at the State level, Ms. Gaer asked, and how would this be put into conformity with the provisions of the Convention. The argument of superior orders could not be invoked as a justification of torture, she noted.
Regarding preventative measures, Ms. Gaer said that many things could be effective, for example the collection of data, which was used very often to highlight or identify problems in a way which allowed for the adoption of policies and corrective measures that would make policy and the implementation of laws more effective. The report also lacked information on the use of measures of compulsion with regard to the use of force by prison personnel. The lack of data became a problem in trying to be helpful in identifying effective measures that were implemented or adopted to help prevent torture under the Convention, and further information as to who was involved in the different complaints would be appreciated, and whether there were issues which the Committee could helpfully address during the session. In Bosnia and Herzegovina’s history, one of the key issues had been judicial prosecutions related to war crimes, and the issue of war crimes tribunals also needed to be addressed further. Allegations of ethnic bias in prosecutions also required discussion. Issues related to the independence of the judiciary were also of interest, as were those of witness protection. Further issues raised included penal issues, trafficking, processes related to repatriation to countries where torture took place, and sexual abuse, including rape, which was tantamount to torture in certain circumstances linked to trafficking of women.
WANG XEUEXIAN, the Committee Expert serving as Co-Rapporteur for the report of Bosnia and Herzegovina, said the initial report was appreciated, despite the very complex and difficult domestic situation. What was said with regard to the past three years and what had been achieved in implementing the Convention was also appreciated. The report in paragraph 539 said that presently there were no recorded cases where suspected acts of torture had taken place against an prisoner by the authorities. That statement was welcomed, but there was a gap in the statement with the report of the European Union delegation to the country. That report discussed torture and other forms of ill-treatment, and noted that accusations of torture at time of apprehension were not sufficient in number to warrant investigation at the institutional level. It also noted that some people were ill-treated by instruments of force present in police stations such as baseball bats. However, the report before the Committee said that there were no such incidents. This matter required further clarification, as did the current situation in the prisons and the means of force used by the police.
The report noted that a large number of people became victims of torture during the war period. An effective solution to the problem would not only help to heal the wounds of the past and be conducive to reconciliation, but would also help in moving forward and building a better future. However, complaints had been received from various sources with regards to victims and the lack of redress and compensation. The report said this was largely due to financial constraints, rather than a lack of political will, and Mr. Xeuexian said he understood this fully. However, more effective measures needed to be taken, as this would be in the interests of the people as well as the country. The victims of this period needed to be recognised as victims of torture through legislation, and this could be one means of moving forwards. More funds needed to be allocated, and victims given redress.
Other Committee Experts also raised a series of questions, including whether there were cases of police officers or prison guards who were being pensioned due to suffering from post-traumatic stress disorder due to their experiences during the war period, and an Expert said it was of paramount importance to instruct the police as to procedure during the initial process of arrests and to include this in training, as this was an important instrument for preventing any kind of torture and ill-treatment. Another Expert inquired whether command responsibility in particular with regard to cases of torture was recognised by Bosnia and Herzegovina.
Other questions focused on how many criminal cases had been undertaken against public officials under the new Criminal Code; whether the legislation on torture, inhumane and cruel and degrading treatment and punishment contained gender as an aggravating component; issues related to trafficking and return or extradition or expulsion of the trafficked persons to their countries of origin; whether the position of Special Prosecutor on War Crimes had been established and filled; war crimes and how many people had been investigated, prosecuted and convicted in connection with these; what would happen with respect to the other overdue reports; what legal sanctions could cause pain and suffering, as these were allowed according to the Criminal Code; and methods for protecting the judiciary from intimidation and other attempts on their impartiality.
Another Expert also expressed considerable sympathy with the difficulties that Bosnia and Herzegovina had gone through, and the constraints under which it was operating.
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