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Communication No 161/2000 :
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CAT/C/29/D/161/2000. (Jurisprudence) |
Convention Abbreviation: CAT
Committee Against
Torture
Twenty-ninth session
11 -
ANNEX
Views of the Committee Against Torture under article 22 of the
Convention against Torture and Other
Cruel,
Inhuman or Degrading Treatment or
Punishment
- Twenty-ninth session -
Complaint No. 161/2000
Submitted by: Hajrizi Dzemajl et al. (represented by counsel)
Alleged victim: Hajrizi Dzemajl et al.
State Party:
Date of complaint:
Date of present decision:
The Committee against Torture,
established under Article 17 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
Meeting on
Having concluded its consideration of complaint No.
161/2000, submitted to the Committee against Torture by Mr. Hajrizi
Dzemajl et al. under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to
it by the complainants, their counsel and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention
1.1 The complainants are 65 persons, all of Romani
origin and nationals of the
1.2 In accordance with article 22, paragraph 3 of the Convention,
the Committee transmitted the complaint to the State party on
The facts as presented by the complainants
2.1 On
2.2 The same day, around
2.3 Later, two Romani minors confessed
under duress. On 15 April, between 4 and
2.4 At the same time, police officer Ljubo
Radovic came to the Bozova Glavica Roma settlement and told the Romani
residents of the settlement that they must evacuate the settlement immediately.
The officer's announcement caused panic. Most residents of the settlement fled
towards a nearby highway, where they could take buses for Podgorica.
Only a few men and women remained in the settlement to safeguard their homes
and livestock. At approximately
2.5 The same day, at around
2.6 In the course of the morning of 15 April, a police car
repeatedly patrolled the deserted Bozova Glavica settlement. Groups of non-Roma residents of Danilovgrad gathered in different locations in the town and
in the surrounding villages. Around
2.7 Between 2 and
2.8 Throughout the course of this pogrom, police officers present
failed to act in accordance with their legal obligations. Shortly after the
attack began, rather than intervening to halt the violence, these officers
simply moved their police car to a safe distance and reported to their superior
officer. As the violence and destruction unfolded, police officers did no more
than feebly seek to persuade some of the attackers to calm down pending a final
decision of the Municipal Assembly with respect to a popular request to evict
Roma from the Bozova Glavica
settlement.
2.9 The outcome of the anti-Roma rage was that the whole
settlement was levelled and all properties belonging
to its Roma residents burnt or completely destroyed. Although the police did
nothing to halt the destruction of the Roma settlement, they did ensure that
the fire did not spread to any of the surrounding buildings, which belonged to
the non-Roma.
2.10 The police and the investigating magistrate of the
2.11 Official police documents, as well as statements given by a
number of police officers and other witnesses alike, both before the court and
in the initial stage of the investigation, indicate that the following non-Roma
residents of Danilovgrad were among those who took
part in the destruction of the Bozova Glavica Roma settlement: Veselin Popovic, Dragisa Makocevic, Gojko Popovic, Bosko Mitrovic, Joksim Bobicic, Darko Janjusevic, Vlatko Cacic, Radojica Makocevic.
2.12 Moreover, there is evidence that police officers Miladin Dragas, Rajko Radulovic, Dragan Buric, Djordjije
Stankovic and Vuk Radovic were all present as the violence unfolded and did
nothing or not enough to protect the Roma residents of Bozova
Glavica or their property.
2.13 Several days following the incident, the debris of the Roma
settlement was completely cleared away by heavy construction machines of the
Public Utility Company. All traces of the existence of the Roma in Danilovgrad were obliterated.
2.14 Following the pogrom, and pursuant to the relevant domestic
legislation, on
2.15 On
2.16 On the basis of this testimony and the official police
memorandum, the Podgorica Police Department ordered,
on
2.17 On
2.18 Veselin Popovic
was charged under article 164 of the Montenegrin Criminal Code. The same
indictment charged Dragisa Makocevic
with illegally obtaining firearms in 1993 - an offence unrelated to the
incident at issue notwithstanding the evidence implicating him in the
destruction of the Roma Bozova Glavica
settlement.
2.19 Throughout the investigation, the investigating magistrate of the Basic Court of Danilovgrad
heard a number of witnesses all of whom stated that they had been present as
the violence unfolded but were not able to identify a single
perpetrator. On
2.20 On
2.21 Due to the "lack of evidence", the Basic Public
Prosecutor in Podgorica dropped all charges against Veselin Popovic on
2.22 In violation of domestic legislation, the complainants were
not served with the court decision of
2.23 Even prior to the closing of the proceedings, on 18 and 21
September 1995, the investigating magistrate, while hearing witnesses (among
them a number of the complainants), failed to advise them of their right to
assume the prosecution of the case in the event that the Public Prosecutor
should decide to drop the charges. This contravened domestic legislation which
explicitly provides that the Court is under an obligation to advise ignorant
parties of avenues of legal redress available for the protection of their
interests.
2.24 On
2.25 On 15 August 1996, eight of the Danilovgrad
Roma, all of them among the complainants in the instant case, who were
dismissed by their employers for failing to report to work, filed a law suit
requesting that the court order their return to work. Throughout the
proceedings, the plaintiffs argued that their failure to appear at work during
the relevant time period was justified by their reasonable fear that their
lives would have been endangered had they come to work so soon after the
incident. On
2.26 In the meantime, the case went again up to the Montenegrin
Supreme Court which ordered another retrial before the fist instance court in Podgorica. The case is still pending.
2.27 The complainants, having been driven out of their homes and
their property having been completely destroyed, fled to the outskirts of Podgorica, the Montenegrin capital, where during the first
few weeks following the incident they hid in parks and abandoned houses. Local
Roma from Podgorica supplied them with basic food and
told them that groups of angry non-Roma men had been looking for them in the
Roma suburbs in Podgorica. From this time on, the
banished Danilovgrad Roma have continued to live in Podgorica in abject poverty, makeshift shelters or
abandoned houses, and have been forced to work at the Podgorica
city dump or to beg for a living.
The Complaint
3.1 The complainants submit that the State party has violated
articles 2, paragraph 1 read in conjunction with article 1, 16, paragraph 1,
and 12, 13, 14 taken alone or together with article 16, paragraph 1 of the
Convention.
3.2 With regard to the admissibility of the complaint, and more
particularly the exhaustion of local remedies, the complainants submit that,
given the level of wrongs suffered, and alongside the
jurisprudence of the European Court of Human Rights, (1) only a criminal
remedy would be effective in the instant case. Civil and/or administrative
remedies do not provide sufficient redress in this case.
3.3 The complainants note further that the authorities had the
obligation to investigate, or at least to continue their investigation if they
considered the available evidence insufficient. Moreover, even though they
acknowledge that they have never filed a criminal complaint against individuals
responsible for the pogrom, they contend that both the police and the
prosecuting authorities were sufficiently aware of the facts to initiate and
conduct the investigation ex officio. The complainants therefore
conclude that there is no effective remedy.
3.4 The complainants also note that since there is no effective
remedy in respect of the alleged breach of the Convention, the issue of
exhaustion of domestic remedies should be dealt with together with the merits
of the case since there is a claim of violation of articles 13 and 14 of the
Convention.
3.5 Referring to a number of excerpts from NGO and governmental
sources, the complainants first request that the
complaint be considered taking into account the situation of the Roma in
3.6 The complainants allege that Yugoslav authorities have
violated the Convention under either article 2, paragraph 1 read in conjunction
with article 1, because, during the events described previously, the police
stood by and watched as the events unfolded, or article 16, paragraph 1 for the
same reasons. In this regard, the complainants consider that the particularly
vulnerable character of the Roma minority has to be taken into account in
assessing the level of ill-treatment that has been committed. They suggest that
"a given level of physical abuse is more likely to constitute 'degrading
or inhuman treatment or punishment' when motivated by racial animus".
3.7 With regard to the fact that the acts have mostly been committed
by non-State actors, the complainants rely on a review of international
jurisprudence on the principle of "due diligence" and remind the
current state of international law with regard to "positive"
obligations that are incumbent on States. They submit that the purpose of the
provisions of the Convention is not limited to negative obligations for States
parties but include positive steps that have to be taken in order to avoid that
torture and other related acts are committed by private persons.
3.8 The complainants further contend that the acts of violence
occurred with the "consent or acquiescence" of the police whose duty
under the law was to secure their safety and afford them protection.
3.9 The complainants then allege a violation of article 12 read
alone or, if the acts committed do not amount to torture, taken together with
article 16, paragraph 1 because the authorities failed to conduct a prompt,
impartial, and comprehensive investigation capable of leading to the
identification and punishment of those responsible. Considering the
jurisprudence of the Committee against Torture, it is submitted that the State
party had the obligation to conduct "not just any investigation" but
a proper investigation, even in the absence of the formal submission of a
complaint, since they were in possession of abundant evidence. (2) The
complainants further suggest that the impartiality of the same investigation
depends on the level of independence of the body conducting it. In this case,
it is alleged that the level of independence of the investigative magistrate
was not sufficient.
3.10 The complainants finally allege a violation of article 13
read alone and/or taken together with article 16, paragraph 1, because
"their right to complain and to have [their] case promptly and impartially
examined by [the] competent authorities" was violated. They also allege a
violation of article 14 read alone and/or taken together with article 16,
paragraph 1, because of the absence of redress and of fair and adequate compensation.
State party's observations on admissibility
4. In a submission dated
Comments by the complainants
5. In a submission dated
Decision on admissibility
6. At its twenty-fifth session, the Committee considered the
admissibility of the complaint. The Committee ascertained, as it is required to
do under article 22, paragraph 5 (a) of the Convention, that the same matter
had not been and was not being examined under another procedure of
international investigation or settlement. Regarding the exhaustion of domestic
remedies, the Committee took note of the arguments made by the complainants and
noted that it had not received any argumentation or information from the State
party on this issue. Referring to rule 108, paragraph 7 of its Rules of
Procedure, the Committee declared the complaint admissible on
State party's observations on the merits
7. Notwithstanding the Committee's call for observations on the
merits, transmitted by a note of
Complainants' additional comments on the merits
8.1 By a letter of
8.2 With regard to the presence and behaviour
of the police during the events and the actions that have been taken towards
the local population, the complainants give a detailed description of the facts
referred to in paragraphs 2.1 to 2.29 above.
8.3 With regard to the general situation of the Roma minority in
the
8.4 With regard to the property titles, the complainants explain
that most were lost or destroyed during the events of 14 and
8.5 The complainants then make a thorough analysis of the scope of
application of articles 1, paragraph 1, and 16, paragraph 1, of the Convention.
They first submit that the European Court of Human Rights has ascertained in Ireland
v. United Kingdom and in the Greek case, that article 3 of the
European Convention on Human Rights also covered "the infliction of mental
suffering by creating a state of anguish and stress by means other than bodily
assault". (3)
8.6 Moreover, the complainants reiterate that the assessment of
the level of ill-treatment also depends on the vulnerability of the victim and
should thus also take into account the sex, age, state of health or ethnicity
of the victim. As a result, the Committee should consider the Romani ethnicity of the victims in their appreciation of the
violations committed, particularly in
8.7 Concerning the devastation of human settlements, the
complainants refer to two cases that were decided by the European Court of
Human Rights and whose factual circumstances were similar to the one at issue. (4)
The
8.8 Concerning the perpetrators of the alleged violations of
articles 1 and 16 of the Convention, the complainants submit that although only
a public official or a person acting in an official capacity could be the
perpetrator of an act in the sense of either of the above provisions, both
provisions state that the act of torture or of other ill-treatment may also be
inflicted with the consent or acquiescence of a public official. Therefore,
while they do not dispute that the acts have not been committed by the police
officers or that the latter have not instigated them, the complainants consider
that they have been committed with their consent and acquiescence. The police
were informed of what was going to happen on
8.9 With regard to the positive obligations of States to prevent
and suppress acts of violence committed by private individuals, the
complainants refer to General Comment 20 of the Human Rights Committee on
article 7 of the International Covenant on Civil and Political Rights according
to which this provision covers acts that are committed by private individuals,
which implies a duty for States to take appropriate measures to protect
everyone against such acts. The complainants also refer to the United Nations
Code of Conduct for
8.10 On the same issue, the complainants cite a decision of the
Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras
according to which
[a]n illegal act which violates
human rights and which is initially not directly imputable to a State (for
example, because it is the act of a private person or because the person
responsible has not been identified) can lead to international responsibility
of the State, not because of the act itself but because of the lack of due
diligence to prevent the violation or to respond to it as required by the
Convention. (5)
Similarly, the European Court of
Human Rights has addressed the issue in Osman
v. United Kingdom and stated that
[a]rticle
2 of the Convention may also imply in certain well-defined circumstances a
positive obligation on the authorities to take preventive operational measures
to protect an individual whose life is at risk from the criminal acts of
another individual … [W]here there is an allegation that the authorities have
violated their positive obligation to protect the right to life in the context
of their above-mentioned duty to prevent and suppress offences against the
person … it must be established to its satisfaction that the authorities knew
or ought to have known at the time of the existence of a real and immediate
risk to the life of an identified individual or individuals from the criminal
acts of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that
risk ... [H]aving regard to the nature of the right
protected by article 2, a right fundamental in the scheme of the Convention, it
is sufficient for an applicant to show that the authorities did not do all that
could be reasonably expected of them to avoid a real and immediate risk to life
of which they have or ought to have knowledge. (6)
8.11 The complainants further contend that the extent of the
obligation to take preventive measures may increase with the immediacy of the
risk to life. In support of this argument, they extensively rely on the judgement of the European Court of Human Rights in Mahmut Kaya v. Turkey
where the Court laid down the obligations of States as follows: first, States
have an obligation to take every reasonable step in order to prevent a real and
immediate threat to the life and integrity of a person when the actions could
be perpetrated by a person or group of persons with the consent or acquiescence
of public authorities; second, States have an obligation to provide an
effective remedy, including a proper and effective investigation, with regard
to actions committed by non-State actors undertaken with the consent or
acquiescence of public authorities.
8.12 The complainants also underline that the obligation of the
States under the European Convention on Human Rights goes well beyond mere
criminal sanctions for private individuals who have committed acts contrary to
article 3 of the said Convention. In Z. v. United Kingdom, the European
Commission on Human Rights held that
the authorities were aware of the
serious ill-treatment and neglect suffered by the applicants over a period of
years at the hands of their parents and failed, despite the means reasonably available
to them, to take any effective steps to bring it to an end ... [The State had
therefore] failed in its positive obligation under article 3 of the Convention
to provide the applicants with adequate protection against inhuman and
degrading treatment. (7)
8.13 In conclusion, the complainants submit that "they were
indeed subjected to acts of community violence inflicting on them great
physical and mental suffering amounting to torture and/or cruel, inhuman and
degrading treatment or punishment". They further state that "this
happened for the purpose of punishing them for an act committed by a third
person (the rape of S.B.), and that the community violence (or rather the
racist pogrom) at issue took place in the presence of, and thus with the 'consent
or acquiescence' of, the police whose duty under law was precisely the opposite
- to secure their safety and afford them protection".
8.14 Finally, concerning the absence of observations by the State
party on the merits, the complainants refer to rule 108 (6) of the Committee's
rules of procedure and consider that such principle should be equally
applicable during the phase of the merits. Relying on the jurisprudence of the
European Court of Human Rights and of the Human Rights Committee, the
complainants further argue that, by not contesting the facts or the legal
arguments developed in the complaint and further submissions, the State party
has tacitly accepted the claims at issue.
Issues and proceedings before the Committee
9.1 The Committee has considered the complaint in the light of all
information made available to it by the parties concerned, in accordance with
article 22, paragraph 4, of the Convention. Moreover, in the absence of any
submission from the State party following the Committee's decision on
admissibility, the Committee relies on the detailed submissions made by the
complainants. The Committee recalls in this respect that a State party has an
obligation under article 22, paragraph 3, of the Convention to cooperate with
the Committee and to submit written explanations or statements clarifying the
matter and the remedy, if any, that may have been
granted.
9.2 As to the legal qualification of the facts that have occurred
on 15 April 1995, as they were described by the complainants, the Committee
first considers that the burning and destruction of houses constitute, in the
circumstances, acts of cruel, inhuman or degrading treatment or punishment. The
nature of these acts is further aggravated by the fact that some of the
complainants were still hidden in the settlement when the houses were burnt and
destroyed, the particular vulnerability of the alleged victims and the fact
that the acts were committed with a significant level of racial motivation.
Moreover, the Committee considers that the complainants have sufficiently
demonstrated that the police (public officials), although they had been
informed of the immediate risk that the complainants were facing and had been
present at the scene of the events, did not take any appropriate steps in order
to protect the complainants, thus implying "acquiescence" in the
sense of article 16 of the Convention. In this respect, the Committee has
reiterated on many instances its concerns about "inaction by police and
law-enforcement officials who fail to provide adequate protection against
racially motivated attacks when such groups have been threatened"
(concluding observations on the initial report of Slovakia, CAT A/56/44 (2001),
paragraph 104; see also concluding observations on the second periodic report of
the Czech Republic, CAT A/56/44 (2001), paragraph 113 and concluding
observations on the second periodic report of Georgia, CAT A/56/44 (2001),
paragraph 81). Although the acts referred to by the complainants were not
committed by public officials themselves, the Committee considers that they
were committed with their acquiescence and constitute therefore a violation of
article 16, paragraph 1, of the Convention by the State party.
9.3 Having considered that the facts described by the complainants
constitute acts within the meaning of article 16, paragraph 1 of the
Convention, the Committee will analyse other alleged
violations in the light of that finding.
9.4 Concerning the alleged violation of article 12 of the
Convention, the Committee, as it has underlined in previous cases (see inter alia Encarnacion Blanco
Abad v. Spain, Case No. 59/1996, decided on 14
May 1998), is of the opinion that a criminal investigation must seek both to
determine the nature and circumstances of the alleged acts and to establish the
identity of any person who might have been involved therein. In the present
case, the Committee notes that, despite the participation of at least several
hundred non-Roma in the events of 15 April 1995 and the presence of a number of
police officers both at the time and at the scene of those events, no person
nor any member of the police forces has been tried by the courts of the State
party. In these circumstances, the Committee is of the view that the
investigation conducted by the authorities of the State party did not satisfy
the requirements of article 12 of the Convention.
9.5 Concerning the alleged violation of article 13 of the
Convention, the Committee considers that the absence of an investigation as
described in the previous paragraph also constitutes a violation of article 13
of the Convention. Moreover, the Committee is of the view that the State
party's failure to inform the complainants of the results of the investigation
by, inter alia, not serving on them the decision to
discontinue the investigation, effectively prevented them from assuming
"private prosecution" of their case. In the circumstances, the
Committee finds that this constitutes a further violation of article 13 of the
Convention.
9.6 Concerning the alleged violation of article 14 of the
Convention, the Committee notes that the scope of application of the said
provision only refers to torture in the sense of article 1 of the Convention
and does not cover other forms of ill-treatment. Moreover, article 16,
paragraph 1, of the Convention while specifically referring to articles 10, 11,
12, and 13, does not mention article 14 of the Convention. Nevertheless,
article 14 of the Convention does not mean that the State party is not obliged
to grant redress and fair and adequate compensation to the victim of an act in
breach of article 16 of the Convention. The positive obligations that flow from
the first sentence of article 16 of the Convention include an obligation to
grant redress and compensate the victims of an act in breach of that provision.
The Committee is therefore of the view that the State party has failed to
observe its obligations under article 16 of the Convention by failing to enable
the complainants to obtain redress and to provide them with fair and adequate
compensation.
10. The Committee, acting under article 22, paragraph 7, of the
Convention, is of the view that the facts before it disclose a violation of
articles 16, paragraph 1, 12 and 13 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
11. In pursuance of rule 111, paragraph 5, of its rules of
procedure, the Committee urges the State party to conduct a proper
investigation into the facts that occurred on 15 April 1995, prosecute and
punish the persons responsible for those acts and provide the complainants with
redress, including fair and adequate compensation and to inform it, within 90
days from the date of the transmittal of this decision, of the steps it has
taken in response to the views expressed above.
Annex
(Case No. 161/1999 - Hajrizi Dzemajl
et al. v. Yugoslavia)
Individual opinion by Mr. Fernando Mariño and Mr. Alejandro González
Poblete
under rule 113 of
the Rules of Procedure
We are issuing this opinion to emphasize that, in our judgement, the illegal incidents for which the
We believe that, in fact, the suffering visited upon the victims
was severe enough to qualify as "torture", because:
(a) The inhabitants of the Bozova Glavica settlement were forced to abandon their homes in
haste given the risk of severe personal and material harm;
(b) Their settlement and homes were completely destroyed. Basic
necessities were also destroyed;
(c) Not only did the resulting forced displacement prevent them
from returning to their original settlement, but many members of the group were
forced to live poorly, without jobs or fixed places of abode;
(d) Thus displaced and wronged, these Yugoslav nationals have
still not received any compensation, seven years after the fact, although they
have approached the domestic authorities;
(e) All the inhabitants who were violently displaced belong to the
Romani ethnic group, which is known to be especially
vulnerable in many parts of
The above amounts to a presumption of
"severe suffering", certainly "mental" but also inescapably
"physical" in nature even if the victims were not subjected to direct
physical aggression.
We thus consider that the incidents at issue should have been
categorized as "torture".
(Signed):
Fernando Mariño
Alejandro González Poblete
Notes
1. See Assenov v. Bulgaria,
Judgement of
2. See Encarnación Blanco Abad v. Spain,
3. Report of
4. Mentes and Others v.
5. Velasquez Rodriguez v.
6. Osman v.
7. Z. v.
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©1996-2001
Office
of the United Nations High Commissioner for Human Rights