COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF MONTENEGRO
The Committee against Torture this morning began its consideration of the initial report of Montenegro 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.
Introducing the report, Miras Radovic, Minister of Justice of Montenegro, noted that the new Constitution, adopted on 19 October 2007, had elaborated a whole set of guarantees of human rights and freedoms, including the inviolability of the individual's physical and mental integrity. Moreover, the Constitution stipulated that no once could be subjected to torture and other cruel, inhuman or degrading treatment or punishment; that no one could be kept in slavery or a servile position; and that any form of violent, inhuman or degrading behaviour against persons deprived of liberty or whose liberty had been limited, and any extortion of confession and statements was prohibited and punishable. The Strategy for the Reform of the Judiciary for the period 2007 to 2012 had also been adopted, which also provided for prison reform, including the creation of conditions for separating certain categories of convicts; the provision of adequate accommodation facilities; professional training and testing of knowledge of prison staff; and the improvement of treatment of convicts. Other areas that had been subject to strategic reform plans were mental health; social and child protection; and the Roma.
Another additional step by Montenegro to fulfil its obligations under the Convention had been drafting the law for the ratification of the Optional Protocol to the Convention against Torture, Mr. Radovic said. It was expected that Parliament would adopt that law by the end of the year, thus creating an important precondition for the establishment of a national mechanism for the prevention of torture. It had been proposed that the Protector of Human Rights and Freedoms might perform the function of the national mechanism, following adequate adjustments to the legal and institutional framework of that office.
Serving as Rapporteur for the report of Montenegro, Committee Expert Fernando Mariño Menendez asked for further information in a number of areas, including on the right to habeas corpus; the right of a detainee to examination by a doctor of his choice; and at what point detainees had access to a lawyer. A particular concern was that, despite the fact that a no-return policy was specifically guaranteed in asylum law, there were many situations in which the vulnerability of foreigners was quite severe. There were many displaced persons in Montenegro, particularly from Kosovo, most of them Roma. As these were considered internally displaced persons, they could be sent back at any time. Another category of people, of Bosnian or Croatian origin, also did not appear to have a clear status.
Myrna y. Kleopas, the Committee Expert serving as Co-Rapporteur for the report of Montenegro, said she was impressed by the action taken by Montenegro with regard to the adoption of legislation, in particular the law on domestic violence. A particular area of concern was reports by non-governmental organizations of continuous police abuse in connection with arrests which were not investigated. Amnesty International had said that cases of police abuse were widespread, and another NGO had documented 23 such cases between September and October alone, none of which had been investigated. Moreover, it was said that a climate of impunity existed around violence or abuse against human rights defenders, journalists and others, including murders. In the same vein, more information on prosecutions in war crimes cases was needed.
Also representing the delegation of Montenegro was the Permanent Representative of Montenegro to the United Nations Office at Geneva, Milomir Mihaljevic, and representatives from the Ministry of Health, Labour and Social Welfare; the Ministry of Justice; the Police Directorate; the Penitentiary Service; and the Ministry of Foreign Affairs.
The delegation will return to the Committee at 3 p.m. on Wednesday, 12 November to provide its responses to the questions raised today.
Montenegro is among the 145 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 in public, at 10 a.m. on Wednesday, 12 November, it will begin its consideration of the second periodic report of Belgium (CAT/C/BEL/2).
Report of Montenegro
The initial report of Montenegro (CAT/C/MNE/1), says that, during their preparation for performance of their duties, authorized official persons go through special training intended to qualify them in the use of firearms and other coercive devices. A report is always made on the usage of corrective devices in cases of alleged exceeding of their authorized use, which within three days must be delivered to the Minister of Justice. Regulations on using of other corrective devices are prescribed by the Rule Book on the performance of security measures, and the arms and equipment of security officers. Regarding the training of officers of the House of Correction, education on human rights and including on the prohibition of torture and the Convention, is a part of the continuing education of personnel. Education is performed within premises which are intended exclusively for education. For these needs, a centre for officer training with permanently employed officers has been established.
Regarding the request submitted by 63 Roma persons to the Committee against Torture following the incident which occurred on 15 April 1995 in Danilovgrad, the Committee, at its session of 21 November 2003, made the decision that Montenegro had violated articles of the Convention and obliged it to perform an investigation, to prosecute the responsible persons and to provide fair compensation to persons who had suffered a loss. Following a review, the Government concluded that the event in Danilovgrad was without political background. The event happened as a spontaneous revolt and reaction to the act of rape of the Montenegrin little girl by two non-adult Roma. Considering possibilities for a new set of proceedings, the Government concluded that such proceedings could not be performed in an appropriate way to establish if all measures were undertaken because of the lack of time and the impossibility of realizing all events. Thus, it was not possible to start proceedings taking into consideration that for establishing of criminal offences of abuse of official posts the [statute of limitations had already run out]; however, there were legal possibilities for starting new proceedings in a case of severe offence against general security. However, the condition for that is to provide new evidence, which according to available data was not possible because of the lack of time and the impossibility of providing new evidence. Aiming at the implementation of recommendations of the Committee, the Government concluded that those who suffered a loss (representatives of Roma) were entitled to an extrajudicial settlement, and about 985,474 euros were paid to them for material and non-material loss. The Government also proposed to the Public Communal Company from Danilovgrad that it consider the possibility of returning workers to work before the ending of court proceedings (labour dispute), which is in progress.
Presentation of Report
MIRAS RADOVIC, Minister of Justice of Montenegro, said that, after regaining State independence and assuming full legal personality, Montenegro had continued to build itself as a civil state based, inter alia, on the principle of respect for and the protection of human rights and freedoms, accepting the principles established in the instruments of the United Nations, the Council of Europe, the Organization for Security and Cooperation in Europe and other international organizations. That concept had been improved by the adoption of the new Constitution on 19 October 2007 by the Constituent Assembly. The guarantee in the new Constitution for the protection of human rights and freedoms was elaborated in a whole set of provisions, which guaranteed the dignity of the individual with regard to the application of biology and medicine; the dignity and security of the individual; the inviolability of the individual's physical and mental integrity; and privacy and individual rights. Moreover, with regard to the respect for the human personality and dignity in criminal or other procedures in case of deprivation or limitation of liberty and during the enforcement of sentence, the Constitution stipulated that no one could be subjected to torture and other cruel, inhuman or degrading treatment or punishment; that no one could be kept in slavery or a servile position; and that any form of violence, inhuman or degrading behaviour against persons deprived of liberty or whose liberty had been limited, and any extortion of confession and statements was prohibited and punishable.
Here, Mr. Radovic stressed that the right to life, the right to legal aid and the right to dignity of and respect for the individual had been classified in the Constitution within the group of rights which could not be limited even during a proclaimed state of war or emergency.
Montenegro had also endeavoured to reform its legal framework treating issues important for the prevention of and protection from torture and other cruel, inhuman or degrading treatment or punishment, Mr. Radovic continued. To that end, in 2003, Montenegro had adopted the Criminal Code in which abuse and torture were treated as a separate criminal offence within the group of offences against human and citizens' freedoms and rights. In 2005, as a result of continuous monitoring of international standards in the field of protection of human rights, the actions and consequences of those criminal offences had been expanded and specified. Furthermore, the length of punishment prescribed for the criminal offence of torture had also been changed, and was now punishable by imprisonment ranging from six months to five years, and if torture were committed by a person acting in an official capacity while carrying out his duty, the offence was punishable by imprisonment ranging from one to eight years (previously, the term limit for both offences had been up to three years), while abuse was punishable by imprisonment ranging from three months to three years.
The codification of criminal legislation also included the adoption of the Criminal Procedure Code, which provided, inter alia, that no judicial decision could be based on the confession or statement obtained through extortion, torture or inhuman treatment or on evidence which had been obtained in contradiction with its provisions for those of other laws. The Criminal Procedure Code also prohibited offences against the personal integrity and dignity of persons held in detention, Mr. Radovic added.
The final activities regarding the drafting of the new Criminal Procedure Code were under way at the moment and the new Code was also based on the principles of the punishability of torture and the legal invalidity of evidence obtained through torture. The new Code would give the prosecutor a new role in terms of entrusting investigations to that institution. Montenegro believed that such a legal solution would considerably improve the conduct of investigations, which surely also concerned the processing of cases of the criminal offences of torture and abuse. The reform covered those areas where the issue of torture was extremely sensitive, i.e. the situation of citizens who were deprived of liberty based on decisions of the police authorities and based on orders of the judicial authorities on detention, on the enforcement of prison sentences, and on forced hospitalisation. The reform of the legal framework in those areas was also being placed on development and improvement of supervisory mechanisms the functioning of which should preclude the potential occurrence of torture and other cruel, inhuman or degrading treatment or punishment.
Along those lines, a set of laws had been passed in the period 2003 to 2005, Mr. Radovic said. Those included the Law Amending and Supplementing the Law on Enforcement of Criminal Sanctions; the Law on the Protector of Human Rights and Freedoms (Ombudsman); the Law on Protection and Realization of the Rights of Mentally Ill Persons; and the Law on Police. Certain control mechanisms had also been defined to carry out the function of supervision and control over the treatment of persons who had been deprived of liberty by the competent State authorities.
Since the proper comprehension of human rights and freedoms and the obligation to respect them was especially important for those segments of the social system that concerned persons deprived of liberty, Mr. Radovic stressed that that issue had been attributed great importance by Montenegro, in the way of education, and professional training of civil servants had been raised to the level of a legal obligation under the Law on Civil Servants and State Employees from 2005.
The Strategy for the Reform of the Judiciary for the period 2007 to 2012 had been adopted. In it, the prison system was treated as a separate segment and its improvement was linked to specific objectives relating to the creation of conditions for supervision over the enforcement of suspended sentence, conditional release and community service; the creation of conditions for separating certain categories of convicts; providing adequate accommodation facilities; improvement of the security systems; in-service training; professional training and testing of knowledge of prison staff; and the improvement of treatment of convicts. Other areas that had been subject to strategic reform plans were mental health; social and child protection; and the protection of disabled persons.
Mr. Radovic recalled that, in 2004, Montenegro had received a visit by the Council of Europe's Committee for the Prevention of Torture, and observed that Montenegro had started undertaking concrete activities in order to comply with the recommendations of that Committee. A second visit had been made by that Committee from 15 to 22 September 2008, and Montenegro had formed an interdepartmental working group to draw up planned activities of the competent authorities based on the recommendations from that visit, including an Action Plan for the Prevention of Torture, within the defined deadlines.
Another additional step by Montenegro to fulfil its obligations under the Convention had been the drafting the law for the ratification of the Optional Protocol to the Convention against Torture, Mr. Radovic said. It was expected that Parliament would adopt that law by the end of this year, thus creating an important precondition for the establishment of the national mechanism for the prevention of torture. It had been proposed that the Protector of Human Rights and Freedoms might perform the function of the national mechanism, following adequate adjustments to the legal and institutional framework of that office.
Finally, Mr. Radovic noted that the new Constitution, adopted in 2007, provided for the supremacy of ratified international instruments over national legalization. They had also adopted a law on the Constitutional Court of Montenegro, to rule on cases involving constitutionally defined human rights and freedoms. Other new legislation relevant in this area were the law on provision of legal assistance and the rule on no extradition of persons wanted by foreign States, where that person might be subject to torture or other violations of his human rights and freedoms. In the Police Directorate of Montenegro a separate unit on internal control had also been established.
Questions Raised by Committee Experts
FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Montenegro, said that the legal context with respect to the Convention against Torture was fluid in the sense that the Constitution had been newly adopted and there was a strengthening with regard to machinery and arrangements that was ongoing. Montenegro had a plethora of new laws in a number of areas related to the Convention: with the introduction of new categories of crimes, including war crimes and genocide; a series of rules and regulations for the treatment of foreigners, including the law on nationality, the law on the employment of foreigners, and the bill on aliens, currently under review; as well as the law on legal aid. In addition to all that, Montenegro had acceded to a number of international instruments, was part of a stabilization pact with Europe and, as had just been heard, was planning to accede to the Optional Protocol to the Convention later this year. That was an encouraging picture. Montenegro was making efforts to establish itself as a State in compliance with fully accepted international standards.
Turning to other issues, Mr. Mariño Menendez emphasized that the definition of torture as currently embodied in Montenegro's Criminal Code did not explicitly address torture in the case of acquiescence or abstention on the part of officials. It also left open whether mental torture was covered in practice. In that connection, he wondered if the definition of torture as set out in the Convention could fill in the gaps in domestic legislation, that is, if the elements set out could be the basis for claims where the domestic legislation was silent.
Mr. Mariño Menendez was also concerned about the right to habeas corpus, which was not included in the Constitution, and asked for clarification of that right in Montenegro.
On medical expertise, how was the right of a detainee to examination by a doctor of his choice guaranteed, Mr. Mariño Menendez asked. And what training existed for forensic doctors?
Regarding access to a lawyer, Mr. Mariño Menendez asked from what moment did that right run? Did detainees have access to a lawyer from the first moment of detention?
Mr. Mariño Menendez was concerned about the interaction of the Government with NGOs. Despite a long list of national NGOs, apparently only 10 per cent of them were active. No NGOs had come to Geneva to speak with the Committee, which pointed to the fact that either they were not active, or they did not have sufficient funds to travel to Geneva.
Regarding minorities, Mr. Mariño Menendez specifically wondered if Roma had denounced the forced evictions they had been subject to, and what had been the outcome of those claims. The Danilovgrad case was noted. What policies had been enacted to protect this minority and to promote their rights?
On independence of the judiciary, Mr. Mariño Menendez asked for further information on judicial appointments and terms, and what discretion they had to treat cases of torture claims.
With respect to the asylum law, a no-return policy was specifically guaranteed, and Mr. Mariño Menendez identified that as a major accomplishment. There were many situations in which the vulnerability of foreigners was quite severe, and that could lead to torture and other cruel, inhuman or degrading treatment. There were many displaced persons in Montenegro, particularly from Kosovo, most of them Roma. While these were considered internally displaced persons, it appeared they could be sent back at any time. What was the status of those people? Another category of people, of Bosnian or Croatian origin, did not appear to have a clear status as refugees, displaced or other. Sometimes they were not in the civil registry. Their nationality was in an indefinite situation, which obviously threatened their rights, in particular, the right not to be expelled. Were there bilateral agreements in this area? Did Montenegrin nationality laws allow for such persons to become citizens?
With regard to cooperation with the International Criminal Court for the Former Yugoslavia, Mr. Mariño Menendez wondered about the bilateral agreement with the United States that it would not extradite American citizens but would try them in Montenegrin instances. How did that impact the domestic legal system?
With reference to laws on immunity, Mr. Mariño Menendez noted that, in February 2006, there had been forced disappearance of 83 Bosnian civilians. He noted that six officers had been indicted for those disappearances, but the case had not moved forward, and there had been no investigation. Moreover, what had happened to the case of the Bosnian Muslims that had disappeared in 1992, or cases in 1996? Another specific case on which he would appreciate more information was the case of a murdered journalist.
Finally, with reference to the national mechanism for the prevention of torture required by the Optional Protocol, Mr. Mariño Menendez noted that the mechanism was to be entrusted to the Ombudsman's office. Would there be increased funding for the Ombudsman as a result, and would the office be made fully independent?
MYRNA Y. KLEOPAS, the Committee Expert serving as Co-Rapporteur for the report of Montenegro, said she was impressed by the action taken by Montenegro with regard to the adoption of legislation, in particular the information that it would adopt the Optional Protocol to the Convention, and the law on domestic violence.
On the issue of training, Ms. Kleopas asked for clarification on training, in particular if it was extended to all professionals at all levels, and not just judicial officials, and whether it covered, among others, interrogation rules, how to identify torture, and required evidence of torture to be reported. Furthermore, were the training programmes conducted on a systematic and regular basis and was there an evaluation mechanism in place to assess its effectiveness. She would specifically appreciate information on training for medical personnel on how to identify and document signs of torture.
Concerning mental health, Ms. Kleopas understood that the law on complaints by mental health patients had been adopted, which she welcomed. However, it appeared that there were some gaps between law and practice. She had a report of a visit made to Montenegro in October 2008 on conditions in Montenegro's only psychiatric hospital, which noted that patients had very little contact from family members, and also cited cases where persons were kept in facilities for lack of another place to put them, rather than owing to the gravity of their cases.
With regard to data, Ms. Kleopas appreciated the list of the number of detained persons for the last three years. Unfortunately, that showed an upward trend.
Regarding the Ombudsman, Ms. Kleopas noted that the Ombudsman did not regularly visit prison facilities or other places of detention, but did so at the prisoner's request.
On the duty to provide prompt and impartial investigations on allegations of torture, Ms. Kleopas said that the Committee had continuous reports of police abuse in connection with arrests which were not investigated. Amnesty International had said that cases of police abuse were widespread, and another NGO had documented 23 such cases between September and October alone, none of which had been investigated. Moreover, it was said that a climate of impunity existed around violence or abuse against human rights defenders, journalists and others, including murders.
In the same vein, Ms. Kleopas asked for more information on prosecutions in war crimes cases, such as the case of the forced disappearance of 83 Bosnians, in which charges had been filed only against five low–level police officers, while the planners of that act had remained undiscovered. Moreover, the prosecutions had not moved forward.
Ms. Kleopas was further concerned that the mechanism for complaints for police abuse was under the Ministry of the Interior, and thus was not sufficiently independent; she was also concerned about the rights of victims to claim compensation for such crimes.
With regard to corporal punishment, Ms. Kleopas asked if that was prohibited in all settings, including in schools, in the home, as well as an administrative or judicial punishment.
Other Committee Experts asked questions related to forced disappearances; war crimes relating to the wars in the former Yugoslavia during the 1990s; the situation of disabled persons; compensation mechanisms and compensation for torture victims, including non-financial compensation; a breakdown in the figures of complaints against the police on how many of those were for torture; and whether there were monitoring mechanisms for sexual violence in prisons, including inter-prisoner violence.
An Expert also asked about a specific incident where allegedly there had been mass beatings of prisoners carried out in Spuz Prison in September 2005, where apparently no investigation had been carried out. What triggered such an investigation, she asked? Another Expert asked about a specific incident that had been reported by the Youth Initiative on Human Rights where apparently Roma youth were beaten and abused by the police, and whether an investigation had taken place.
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