COMMITTEE AGAINST TORTURE HEARS RESPONSE OF MONTENEGRO

The Committee against Torture this afternoon heard the response of Montenegro to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Tuesday, 11 November, Miras Radovic, Minister of Justice of Montenegro, said that the right of habeas corpus was envisaged in the Criminal Code for the initial deprivation of liberty and it was also provided for in the Constitution. The initial custody by police was for 48 hours, and the registration of the arrest had to take place within two hours. Deprivation of liberty was counted as of the moment of apprehension, the very beginning of the deprivation of liberty.

Regarding cases of forced disappearances raised by Experts, Mr. Radovic observed that Montenegro had signed the United Nations Convention on the Protection of All Persons from Forced Disappearance, and was currently reviewing its legislation with a view to ratification. In the case of disappearance of 15 citizens between the border of Kosovo and Montenegro in 1999, it should be emphasized that the incident had occurred during at a time when NATO was carrying out air strikes and that Montenegro had not supported the policy that had led to those air strikes. Indeed, Montenegro had resisted the mobilization of the Yugoslav Army and did not exert any influence or control over the Federal Army. The persons mentioned had been taken away in a bus operated by the Federal Yugoslav Army. Montenegro had submitted a report on the event to the Working Group on enforced disappearances. It was not a case that could in any way be attributed to the Montenegrin Authorities, but the Montenegrin Police were helping to gather information, and Montenegro re-emphasized its willingness to continue that cooperation.

As for the investigation into the deportation of 83 Muslims to Bosnia and Herzegovina, Mr. Radovic said the case had been the subject of an investigation by the Prosecutor General and five suspects had been identified. The decision as to whether charges would be brought had been subject to the proposal by the Prosecutor General that additional information should be sought on three further individuals, including the former head for public security of Montenegro, the former head of security for Bosnia and Herzegovina, and another high-level security official. The Prosecutor General expected that information would be submitted to the public Prosecutor by the end of the year, when indictments would be issued.

At the end of the meeting, Committee Experts asked additional questions and made comments, including a reiteration of concern about the thousands of internally displaced persons from Kosovo, many of them Roma who had been earlier displaced, and their status; confirmation that State funding for NGOs was not tied in any way; and further investigation into the case of the newspaper editor Dusko Jovanovic who had been murdered, as the sole culprit indicted had been found not guilty. Experts were concerned about reports by NGOs and other international instances of abuses by police, especially during the trial period, that were not investigated, despite the fact that the State had reasonable information that those abuses were being committed. Perhaps that was owing to a lack of a formal independent complaint mechanism.

The Committee will submit its conclusions and recommendations on the report of Montenegro towards the end of the session on Friday, 21 November 2008.

As one of the 145 States parties to the Convention against Torture, Montenegro is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Thursday, 13 November, it is scheduled to begin consideration of the initial report of Kenya (CAT/C/KEN/1).

Response of Montenegro

Responding to a series of questions raised by Committee Experts on Tuesday, 11 November, MIRAS RADOVIC, Minister of Justice of Montenegro, emphasized that, with regard to the relation between national and international legislation, that international conventions were directly applicable in the courts and that the provisions of international conventions had priority over domestic law, where there was a conflict. When it came to a criminal offence, it was true that it had to be clearly defined in the criminal law. In the amendments to the Criminal Code made in 2006, they had tried to harmonize the definition of torture with that provided in the Convention. Mental torture was included in the wording "or all other forms of suffering" in that definition. One of the provisions did include wording on culpability on the basis of negligence or incitement. Moreover, the Convention would be used in interpreting the law to cover also acts of omission or incitement to torture.

Habeas corpus was envisaged in the Criminal Code for the initial deprivation of liberty and it was also provided for in the Constitution, Mr. Radovic said. The initial custody by police was for 48 hours, the registration of the arrest had to take place within two hours. The detainee or his counsel could question the basis of detention in a petition before the court.

Deprivation of liberty was counted as of the moment of apprehension, the very beginning of the deprivation of liberty, Mr. Radovic affirmed.

On the independence of the judiciary, Mr. Radovic said that the Constitution envisaged the basic principles for the independence of the courts and the Prosecutor's Office, establishing a Judicial Council, which had begun its work in April 2008. Most of the members of the Judicial Council were judges, and they were responsible for the appointment and dismissal of judges and for disciplinary cases. Progress had been made with regard to funding for the Council, as the Supreme Court was now able to challenge the budget for the Council directly in Parliament if it was not satisfactory.

Regarding confidential communications between defendants and their counsel, Mr. Radovic noted that there had been limitations to that right in the Criminal Code of 2006. However, since then the law had been amended to provide for confidential communications between lawyers and their clients, both before their interrogation and during the course of their detention. No complaints had been received from counsellors that that right was being violated. A technical problem was that there had not been the proper facilities to provide for such communications, i.e. rooms where the lawyer and the defendant could be watched, but not overheard. That deficit had been corrected and the facilities were now available.

Concerning the judgement issued in Podogorica on the case of the Roma citizens of Danilovgrad, Mr. Radovic noted that the compensation paid, 1 million euros was more than the material damage. As for criminal prosecutions, that had not been possible as by the time the complaint had been lodged, the statute of limitations had already run.

Regarding cases of forced disappearances, including the deportations of Muslim citizens in 1992, and the disappearance of 15 citizens between the border of Kosovo and Montenegro, Mr. Radovic observed that Montenegro had signed the United Nations Convention on the Protection of All Persons from Forced Disappearance. With a view to ratification, the Government was currently reviewing its legislation to ensure that it was in harmony with that Convention's provisions.

Turning to the case of disappearance of 15 citizens between the border of Kosovo and Montenegro, Mr. Radovic emphasized that that event had taken place in 1999, at a time of NATO air strikes and a time when Montenegro, as a member of the Federal Republic of Yugoslavia did not support the policy that had led to those air strikes. That had led to tense relations between the Army of the Federal Republic and Montenegro, which had resisted the mobilization of the Yugoslav Army. Montenegro did not exert any influence or control over the Federal Army. The persons mentioned had been taken away in a bus operated by the Federal Army. Montenegro had submitted a report on the event to the Working Group on enforced disappearances. Basically, it was not a case that could in any way be attributed to the Montenegrin Authorities, but the Montenegrin Police were helping to gather information and try and clarify what had happened, and Montenegro re-emphasized its willingness to continue that cooperation.

As for the investigation into the deportation of 83 Muslims to Bosnia and Herzegovina, and allegations that Montenegro was obstructing that process, Mr. Radovic felt those allegations were overly strict. The case had been the subject of an investigation by the Prosecutor General and five suspects had been identified. In the course of the proceedings, one of the five – all of them staff from the Ministry of the Interior – had died and proceedings against him had been stopped. Two of the remaining individuals had been municipal security chiefs. The decision as to whether charges would be brought had been subject to the proposal by the Prosecutor General that additional information should be sought on three further individuals, including the former head for public security of Montenegro, the former head of security for Bosnia and Herzegovina, and another high-level security official. According to information obtained from the Prosecutor General, the investigation in this case should be finalized and the decision on indictments made by the end of this year.

In parallel, Montenegro had undertaken efforts to provide compensation to the 83 persons who had been deported to Bosnia and Herzegovina, as soon as they had information on their whereabouts from the other side, and it was expected that would happen soon, Mr. Radovic said.

Regarding the payment of compensation for torture, under the national law, the State was liable to pay compensation for all cases of torture or abuse by public officials, Mr. Radovic explained. As for data, there was one case in which compensation was paid (the case of the Roma in Danilovgrad), but there had not lately been any claims for compensation by torture victims, despite their right to make such claims.

Mr. Radovic noted that the law on education and upbringing included a prohibition against all forms of violence in the schools. Any teacher who humiliated or used corporal punishment against a pupil was subject to dismissal.

As for domestic violence, the 2006 amendments to the Criminal Code defined domestic violence as a criminal offence. Currently, the Government was preparing the Law on Protection from Domestic Violence, which would contain protective provisions for victims, as well as preventive measures. The draft was being prepared by an inter-Ministerial Committee from the Ministries of Health, Labour and Justice, and should be ready soon. It was also hoped to define a national strategy for combating domestic violence, Mr. Radovic added.

On the issue of violations that had occurred during a declared state of emergency in Serbia, Mr. Radovic noted that that was a situation that had no implication for Montenegro, first and foremost because Serbia was the successor of the former Union of Serbia and Montenegro. Secondly, Montenegro would soon by adopting its new Criminal Code and was doing everything to harmonize its legislation with the European Council and the United Nations provisions.

It was the duty of the Public Prosecutor to investigate allegations of torture, not just on the basis of direct complaints, but on the basis of any information received or any awareness of the existence of such a case, Mr. Radovic affirmed.

Regarding minority rights, Mr. Radovic said that Montenegro supported intercultural dialogue and had, even during turbulent times, managed to protect the balance and harmony of minority groups in the country. The law on the protection of minority rights was currently being amended, and in the new draft provisions on affirmative action would be strengthened and additional provisions would define their right to representation in the Parliament.

MILOMIR MIHALJEVIC, Permanent Representative of Montenegro to the United Nations Office at Geneva, addressing the issue of cooperation with the International Criminal Court, stressed that Montenegro was doing everything in its power to do that, just as it had cooperated fully with the International Criminal Tribunal for the Former Yugoslavia. In 2007, Montenegro had concluded the arrangement with the United States regarding extradition. Montenegro was fully aware of all the implications of that agreement, and was fully ready to carry out its responsibility to prosecute United States citizens in its own instances in lieu of the International Criminal Court (ICC). The agreement was in no way an attempt to flout the rules of the ICC. So far, there had been no cases of concrete implementation of the agreement. It was hoped that the situation would be clarified in the context of Montenegro's further integration into the European Union. Later this year, Montenegro intended to adopt its law on the ratification of the Rome Statute of the ICC.

Another member of the delegation, turning to the question of protections for defendants in national security cases, noted that none of the security services, except for the Police Directorate, had powers to interrogate or interview any individual save when provided for by law. Therefore, the Police was authorized to collect information from citizens. Individuals were informed of the reasons for the interrogation. Citizens considered as suspects had the right to a lawyer of their choice. The Law on the National Security Agency deprived the Agency of police powers, and its staff could no longer detain or interrogate citizens.

On the situation of NGOs, the delegation observed that Montenegro had 5,470 NGOs. So, if the allegation that only 10 per cent of Montenegrin NGOs were active, that meant there were 547 active NGOs in the country, or 1 NGO per 1,000 persons. Moreover, the Government had a close relationship with NGOs, including in the area of human rights. The Government had an Office for Cooperation with NGOs and, soon, the strategy for cooperation with NGOs would be promulgated. NGOs had played a key role in discussions on the accession of Montenegro to the European Union. Another evidence of good cooperation with NGOs was the fact that NGOs took part in all key working committees of the Government, including in the Parliament and in the National Commission Responsible for Combating Corruption and Organized Crime.

Regarding the situation of asylum seekers, the Government was currently working with the other members of the former Yugoslavia to establish bilateral agreements regarding returns.

As for complaints of torture, everyone in a deprivation of liberty situation had the right to complain that they had been a victim of torture, the delegation said. Persons subject to torture could complain to the Police, to the Council for the Civic Control of the Operation of the Police, or to the Ethics Committee of the Minister of the Interior.

All persons in custody had the right to a medical examination if they requested it, and to submit that documentation as evidence that they had been a victim of torture, the delegation added.

Human trafficking was on the decline in Montenegro. In comparison to other forms of criminal offences it was negligible, the delegation stressed. In 2001, Montenegro had been the first in the region to adopt a strategy to combat trafficking in human beings, and it had also adopted an inter-ministerial action plan to that end. The action plan elaborated the duties of all the institutions that participated in the strategy. In addition, in combating trafficking, the Government had established strong links with NGOs, in particular to provide help and shelter for victims of trafficking. The action plan for fighting corruption and organized crime also contained provisions for combating trafficking and there was a code of ethics for the prevention of child sexual exploitation in the travel and tourism sector.

Out of 491 complaints against police, in 22 cases disciplinary action was taken for violation of human rights or abuse of authority. With regard to criminal prosecutions of police officers for torture, in 2006, there had been one criminal case involving an allegation of torture and abuse handed over to the Prosecutor's office; in 2007, there had been 2 cases; and in 2008, so far there had been one case.

On psychiatric care for detainees, the delegation said that there were facilities in the prisons, or if facilities were not available, prisoners were sent to outside facilities for health care. A new prison hospital was opened in September 2005, which had three permanent doctors and 14 nurses on staff.

Additional Questions and Comments by Committee Experts

FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of Montenegro, thanked the delegation for its detailed replies. There was reason for optimism if one looked at the new legislation being enacted and efforts to bring Montenegro in line with European and international standards.

Mr. Mariño Menendez reiterated his concern about the thousands of internally displaced persons from Kosovo, many of them Roma who had been earlier displaced, and their status. Despite what they had heard about the bilateral agreements and the possibility of obtaining nationality, what was planned for those people, who appeared to be in a very hazy position.

On NGOs, Mr. Mariño Menendez asked for confirmation that State funding for NGOs was not tied in any way.

Regarding the specific case of the newspaper editor Dusko Jovanovic who had been murdered, Mr. Mariño Menendez had heard that the sole culprit indicted had been found not guilty, and he asked if the investigation into that murder was therefore continuing.

Regarding the Optional Protocol, the national mechanism for prevention of torture had been given to the Ombudsman. What had been done to ensure that the Ombudsman had the additional funding and mandate to carry out that mission, Mr. Mariño Menendez asked?

MYRNA Y. KLEOPAS, the Committee Expert serving as Co-Rapporteur for the report of Montenegro, noted the big gap between law and practice in Montenegro. A major concern was reports by NGOs and other international instances of abuses by police, especially during the trial period, that were not investigated, despite the fact that the State had reasonable information that those abuses were being committed. She understood that the reason for that was a lack of a formal complaint mechanism that regularly visited places of detention. The Ombudsman had that power, but it was not exercised regularly.

Ms. Kleopas was impressed by the judicial reform strategy, but asked if there was a monitoring mechanism envisaged.

With regard to war crimes, Ms. Kleopas understood that two cases were now proceeding to trial and that another two or three were awaiting the final results of the investigation. However, the delay in those investigations was critical, and she urged a more speedy resolution. Justice delayed was justice denied.

Ms. Kleopas was surprised that, for a detainee to receive a copy of their medical report, the court had to approve that procedure. They should not need to have to petition for that right to be enforced.

On terrorism laws, Ms. Kleopas wondered if there were any laws in this area that might affect the rights of suspects. The rights of detainees could not be restricted in any way, whatever the situation, she recalled.

Other Experts then asked questions, including whether Montenegro was considering ratifying the United Nations Convention on the Prevention of Statelessness; the legal responsibility of Montenegro for actions taken on its territory when it was a part of the former Yugoslavia and then as a member the Union of Serbia and Montenegro; and the lack of an independent mechanism to verify complaints against the police, prison and immigration officials.

Response by Delegation

Briefly responding to some of the additional questions raised, the delegation of Montenegro noted that the Court of Appeal in Podgorica had ordered a new trial with different judges in the murder of Dusko Jovanovic and the authorities were trying to find further members who might have been involved.

For internally displaced persons and refugees, the Government had provided accommodation for them. In 16 municipalities there were centres for collective accommodation of refugees and the displaced. The Government had also provided funds to support that population, as well as providing health insurance and education. The Law on Employment of Foreigners provided for licenses or permits to be issued to persons subject to subsidiary protection orders to work in the country.

For use of the information media; not an official record

CAT08033E