Communication No. 207/2002 :
CAT/C/33/D/207/2002. (Jurisprudence)
Convention Abbreviation: CAT
Committee Against
Torture
Thirty-third session
8 - 26 November 2004
Decisions of the Committee Against Torture under article 22 of the
Convention against Torture and Other
Cruel,
Inhuman or Degrading Treatment or
Punishment
- Thirty-third session -
Communication No. 207/2002
Submitted by: Mr. Dragan Dimitrijevic
(Represented by counsel)
Alleged victims: The complainant
State party:
Date of the complaint: 20 December 2001
The
Committee against Torture, established under Article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 24
November 2004,
Having
concluded its consideration of complaint No. 207/2002, submitted to the
Committee against Torture by Mr. Dragan Dimitrijevic 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 complainant,
Adopts the
following:
Decision of the Committee against Torture
under article 22 of the Convention
1. The
complainant is Mr. Dragan Dimitrijevic,
a Serbian citizen of Romani origin born on 7 March
1977. He claims to have been the victim of violations by
The facts as
submitted by the complainant
2.1 The
complainant was arrested on 27 October 1999 at around 11 a.m. at his home in
2.2 As a
result of the ill-treatment the author had to stay in bed for several days. He
sustained injuries on both arms and legs, an open wound on the back of his head
and numerous injuries all over his back. For several days following the
incident he bled from his left ear and his eyes and lips remained swollen.
Fearing reprisals by the police the complainant did not go to hospital for
treatment. Consequently, there is no official medical certificate documenting
the injuries referred to above. The complainant, however, has provided the
Committee with written statements from his mother, his sister and a cousin
indicating that the he was in good health when he was arrested and severely
injured at the time of his release.
2.3 On 31
January 2000, the complainant, through counsel, filed a criminal complaint with
the Kragujevac Municipal Public Prosecutor's Office
alleging that he had been the victim of the crimes of slight bodily harm and
civil injury, as provided for under articles 54(2) and 66 of the Serbian
Criminal Code respectively. As there was no response for almost six months
following the submission of the complaint, the complainant wrote a letter to
the Public Prosecutor's Office on 26 July 2000 requesting an update on the
status of the case and invoking, in particular, article 12 of the Convention.
By the time the complainant submitted his case to the Committee, i.e. more than
23 months after the submission of the criminal complaint, no response had been
received from the Public Prosecutor.
2.4 The
complainant claims that he has exhausted available domestic criminal remedies
and refers to international jurisprudence according to which only a criminal
remedy can be considered effective and sufficient in addressing violations of
the kind at issue in the instant case. He also refers to the relevant
provisions of the State Party's Criminal Procedure Code (CPC) setting forth the
obligation of the Public Prosecutor to undertake measures necessary for the
investigation of crimes and the identification of the alleged perpetrators.
2.5 Furthermore,
under article 153 (1) of the CPC, if the public prosecutor decides that there
is no basis for the institution of a formal judicial investigation he must
inform the complainant, who can then exercise his prerogative to take over the
prosecution in the capacity of a "private prosecutor". However, the
CPC sets no time limit in which the public prosecutor must decide whether or
not to request a formal judicial investigation. In the absence of such decision
the victim cannot take over the prosecution of the case on his own behalf.
Prosecutorial inaction following a complaint filed by the victim therefore
amounts to an insurmountable impediment in the exercise of the victim's right
to act as a private prosecutor and to have his case heard before a court. Finally,
even if there were a legal possibility for the victim himself to file for a
formal judicial investigation because of the inaction of the public prosecutor,
this would in effect be unfeasible if, as in the instant case, the police and
the public prosecutor had failed to identify all of the alleged perpetrators
beforehand. Article 158 (3) of the CPC provides that the person against whom a
formal judicial investigation is requested must be identified by name, address
and other relevant personal data. A contrario, such a
request cannot be filed if the alleged perpetrator is unknown.
The
complaint
3.1 The
complainant claims that the acts described constitute a violation of several
provisions of the Convention, in particular articles 2, para.1 read in conjunction
with article 1; article 16, para.1; and articles 12, 13 and 14 taken alone
and/or together with article 16, para.1. Such acts were perpetrated with a
discriminatory motive and for the purpose of extracting a confession or
otherwise intimidating and/or punishing him. He also submits that his
allegations should be interpreted in the context of the serious human rights
situation in the State party and, in particular, the systematic police
brutality to which Roma and others are subjected to. In evaluating his claim
the Committee should take into account his Romani
ethnicity and the fact that his membership in a historically disadvantaged
minority group renders him particularly vulnerable to degrading treatment. All
else being equal, a given level of physical abuse is more likely to constitute
"degrading or inhuman treatment or punishment" when motivated by
racial animus and/or coupled with racial epithets than when racial
considerations are absent.
3.2 With
respect to article 12 read alone or taken together with article 16, para. 1 of the Convention, the complainant claims that the
State party's authorities failed to conduct a prompt, impartial and
comprehensive investigation into the incident at issue, notwithstanding ample
evidence that an act of torture and/or cruel, inhuman and degrading treatment
or punishment had been committed. Public prosecutors seldom institute criminal
proceedings against police officers accused of violence and/or misconduct even
though such cases are in the category of those that are officially prosecuted
by the State. When the victims themselves or NGOs on their behalf file
complaints against police misconduct, public prosecutors as a rule fail to
initiate proceedings. They generally restrict themselves to requesting information
from the police authorities and, when none is forthcoming, they take no further
action. Judicial dilatoriness in proceedings involving police brutality often
results in the expiration of the time period envisaged by law for the
prosecution of the case. Notwithstanding the proclaimed principle of the
independence of the judiciary, practice makes clear that public prosecutor's
offices do not operate on this principle and that both they and the courts are
not independent of the agencies and offices of the Ministry of Internal
Affairs. This is especially true with respect to incidents of police
misconduct.
3.3 With
respect to article 13 of the Convention the complainant submits that the right
to complain implies not just a legal possibility to do so but also the right to
an effective remedy for the harm suffered. In view of the fact that he has
received no redress for the violations at issue he concludes that his rights
under article 13 taken alone and/or in conjunction with article 16, para.1 of
the Convention have been violated.
3.4 The
complainant further claims that his rights under article 14 taken alone and/or
in conjunction with article 16, para. 1, of the
Convention have been violated. By failing to provide
him with a criminal remedy the State Party has barred him from obtaining
"fair and adequate compensation" in a civil lawsuit, "including
the means for as full a rehabilitation as possible." Pursuant to domestic
law, the complainant had the possibility of seeking compensation by way of two
different procedures: 1) criminal proceedings, under article 103 of the
Criminal Procedure Code, that should have been instituted on
the basis of his criminal complaint, or 2) in a civil action for damages under
articles 154 and 200 of the Law on Obligations. Since no formal criminal
proceedings followed as a result of his complaint with the Public Prosecutor,
the first avenue remained closed to him. As regards the second avenue, the
author filed no civil action for compensation given that it is standard
practice of the State party's courts to suspend civil cases for damages arising
out of criminal offences until prior completion of the respective criminal
proceedings. Had the complainant decided to sue for damages immediately
following the incident, he would have faced another insurmountable procedural
impediment caused by the inaction of the public prosecutor office. Namely,
articles 186 and 106 of the Civil Procedure Code stipulate that both parties to
a civil action, the plaintiff and the respondent, must
be identified by name, address and other relevant personal data. Since the
complainant to date remains unaware of this information and as it was exactly
the duty of the public prosecutor's office to establish these facts,
instituting a civil action for compensation would have clearly been
procedurally impossible and thus rejected by the civil court.
State
party's submissions on the admissibility and the merits of the complaint
4. The
complaint with its accompanying documents was transmitted to the State party on
17 April 2002. Since the State party did not respond to the Committee's
request, under rule 109 of the rules of procedure, to submit information and
observations in respect of the admissibility and merits of the complaint within
six months, a reminder was addressed to it on 12 December 2002. On 20 October
2003, the State party informed the Committee that the Ministry on Human and
Minority Rights was still in the process of collecting data from the relevant
authorities with a view to responding on the merits of the complaint. Such
response, however, has not been received by the Committee.
Issues and
proceedings before the Committee
5.1 The
Committee notes the State party's failure to provide information with regard to
the admissibility or merits of the complaint. In the circumstances, the
Committee, acting in accordance with rule 109, paragraph 7 of its rules of
procedure, is obliged to consider the admissibility and the merits of the
complaint in the light of the available information, due weight being given to
the complainant's allegations to the extent that they have been sufficiently
substantiated.
5.2 Before
considering any claims contained in a complaint, the Committee against Torture
must decide whether or not the complaint is admissible under article 22 of the
Convention. In the present case the Committee has ascertained, as it is
required to do under article 22, paragraph 5 (a), of the Convention, that the
same matter has not been and is not being examined under another procedure of
international investigation or settlement. With respect to the exhaustion of
domestic remedies, the Committee took note of the information provided by the
complainant about the criminal complaint which he filed with the public
prosecutor. The Committee considers that the insurmountable procedural
impediment faced by the complainant as a result of the inaction of the
competent authorities rendered the application of a remedy that may bring
effective relief to the complainant highly unlikely. In the absence of
pertinent information from the State party the Committee concludes that the
domestic proceedings, if any, have been unreasonably prolonged. With reference
to article 22, paragraph 4 of the Convention and rule 107 of the Committee's
rules of procedure the Committee finds no other obstacle to the admissibility
of the complaint. Accordingly, it declares the complaint admissible and
proceeds to its examination on the merits.
5.3 The
complainant alleges violations by the State party of article 2, para.1 in
connection with article 1, and of article 16, para.1 of the Convention. The
Committee notes in this respect the description made by the complainant of the
treatment he was subjected to while in detention, which can be characterized as
severe pain or suffering intentionally inflicted by public officials in the
context of the investigation of a crime, and the written testimonies of
witnesses to his arrest and release that the complainant has provided. The
Committee also notes that the State party has not contested the facts as presented
by the complainant, which took place more than five years ago. In the
circumstances the Committee concludes that due weight must be given to the
complainant's allegations and that the facts, as submitted, constitute torture
within the meaning of article 1 of the Convention.
5.4
Concerning the alleged violation of articles 12 and 13 of the Convention, the
Committee notes that the public prosecutor never informed the complainant about
whether an investigation was being or had been conducted after the criminal
complaint was filed on 31 January 2000. It also notes that the failure to
inform the complainant of the results of such investigation, if any,
effectively prevented him from pursuing "private prosecution" of his
case before a judge. In these circumstances the Committee considers that the
State party has failed to comply with its obligation, under article 12 of the
Convention, to carry out a prompt and impartial investigation wherever there is
reasonable ground to believe that an act of torture has been committed. The
State party also failed to comply with its obligation, under article 13, to
ensure the complainant's right to complain and to have his case promptly and
impartially examined by the competent authorities.
5.5 As for
the alleged violation of article 14 of the Convention the Committee notes the
complainant's allegations that the absence of criminal proceedings deprived him
of the possibility of filing a civil suit for compensation. In view of the fact
that the State party has not contested this allegation and given the passage of
time since the complainant initiated legal proceedings at the domestic level,
the Committee concludes that the State party has also violated its obligations
under article 14 of the Convention in the present case.
.
6. 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 2, paragraph 1
in connection with article 1; 12;,13; and 14 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
7. The
Committee urges the State party to conduct a proper investigation into the
facts alleged by the complainant and, in accordance with rule 112, paragraph 5,
of its rules of procedure, to inform it, within 90 days from the date of the
transmittal of this decision, of the steps taken in response to the views
expressed above.