Communication No. 172/2000 :
CAT/C/35/D/172/2000. (Jurisprudence)
Convention Abbreviation: CAT
Committee Against
Torture
Thirty-fifth session
7 - 25 November 2005
Decisions of the Committee Against Torture under article 22 of the
Convention against Torture and Other
Cruel,
Inhuman or Degrading Treatment or
Punishment
- Thirty-fifth session
Communication No. 172/2000
Submitted by: Mr. Danilo Dimitrijevic
(represented by counsel)
Alleged victims: The complainant
State party:
Date of the complaint: 7 August 2000 (initial submission)
The Committee against Torture, established under Article
17 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
Meeting on 16 November 2005,
Having concluded its consideration of complaint No.
172/2000, submitted to the Committee against Torture by Mr. Danilo
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
1.1 The complainant is Danilo Dimitrijevic a Serbian citizen of Roma origin, residing in
The facts as presented by the complainant:
2.1 At around noon on 14 November 1997, the complainant was
arrested at his home in
2.2 The complainant spent the next three days, from 14 to 17
November 1997, during the day, in the same room where he had been beaten.
During that time, he was denied food and water, and the possibility of using
the lavatory. Although the complainant requested medical attention, and his
injuries visibly required such attention, he was not provided with any. During
the night, he was taken from the police station to the Novi Sad District Prison
in the Klisa neighbourhood.
He was not ill-treated there. At no time was he told why he had been brought to
the police station, in contravention of articles 192 (3), 195 and 196 (3) of
the Criminal Procedure Code (CPC), which deals with police powers of arrest and
detention.
2.3 On 17 November 1997, the complainant was brought before
the investigating judge of the Novi Sad District Court, Savo
Durdić, for a hearing on the charges of larceny
against him, in accordance with Article 165 of the Serbian Criminal Code (Case
file No. Kri. 922/97). Upon noticing the
complainant's injuries, the judge issued a written decision ordering the police
immediately to escort him to a forensic specialist for the purpose of
establishing their nature and severity. (2) In particular, the judge
ordered that a forensic medial expert examine the "injuries visible in the
form of bruises on the outside of the suspect's legs.…" The judge did not
inform the public prosecutor of the complainant's injuries, even though,
according to the complainant, he should have done so in accordance with Article
165 (2) of the CPC. Rather than taking the complainant to a specialist, as
instructed, the police presented him with a release order, on which the
required internal registration number was missing and which incorrectly stated
that his detention started at 11 p.m. on 14 November 1997, although he had been
taken into custody eleven hours earlier. (3) In
the complainant's view, this was an effort to evade responsibility for
subjecting him to the physical abuse he had been subjected to during that
period.
2.4 Upon his release, and being ignorant of his rights under the
law and frightened by his experiences in the preceding three days, the
complainant did not seek immediate medical assistance. He did, however, go to a
privately owned photographic studio and had photographs taken of his injuries.
He has provided these photos, dated 19 November 1997. On 24 November 1997, and
having consulted a lawyer, the complainant attended the Clinical Centre of the
Novi Sad Forensic Medicine Institute for an examination. However, he never
received the report and was told that it had been sent to the investigating judge.
The case file (No. Kri. 922/97) was examined on
several occasions by the complainant's counsel but did not contain the report.
In response to queries from counsel, the Medical Institute stated in a letter,
dated 30 September 1999, that the report had been forwarded to the judge of the
Novi Sad District Court. (4) To date this report has not been found in
the case file.
2.5 Also on 24 November 1997, the complainant filed a criminal
complaint with the Municipal Public Prosecutor's Office in
2.6 According to the complainant, under article 153 (1) of the
CPC, if the public prosecutor finds on the basis of the evidence, that there is
reasonable suspicion that a certain person has committed a criminal offence, he
should request the investigating judge to institute a formal judicial
investigation further to articles 157 and 158 of the CPC. If he decides that
there is no basis for the institution of a formal judicial investigation, he
should inform the complainant of this decision, who can then exercise his
prerogative to take over the prosecution of the case on his own behalf – i.e.
in his capacity of a "private prosecutor". As the Public Prosecutor
did not formally dismiss his complaint, the complainant concludes that he was
denied the right personally to take over prosecution of the case. As the CPC
sets no time limit in which the public prosecutor must decide whether or not to
request a formal judicial investigation into the incident, this provision is
open to abuse.
The complaint:
3.1 The complainant claims that he has exhausted all available
criminal domestic remedies by having filed a complaint with the Public
Prosecutor's Office. In the complainant's view, civil/administrative remedies
would not provide sufficient redress in his case. (5)
3.2 The complainant submits that the allegations of violations of
the Convention should be interpreted against a backdrop of systematic police
brutality to which the Roma and others in the State party are subjected, as
well as the generally poor human rights situation in the State party. (6)
He claims a violation of article 2, paragraph 1, read in connection with
articles 1, and 16, paragraph 1, for having been subjected to police brutality
inflicting on him great physical and mental suffering amounting to torture,
cruel, inhuman and/or degrading treatment or punishment, for the purposes of
obtaining a confession, or otherwise intimidating or punishing him. (7)
3.3 He claims a violation of article 12 alone and/or read in
connection with 16, paragraph 1, as the State party's authorities failed to
conduct an official investigation into the incident, which gave rise to this
complaint and failed to respond to queries on the status of the complaint.
Since the public prosecutor's office failed formally to dismiss his criminal
complaint, he cannot personally take over the prosecution of the case. The
complainant alleges that public prosecutors in Serbia and Montenegro seldom
institute criminal proceedings against police officers accused of misconduct
and delay the dismissal of complaints, sometimes by years, thereby denying the
injured party the right to prosecute his/her own case.
3.4 The complainant claims a violation of articles 13 alone or
read in connection with article 16 of the Convention, as despite exhaustion of
domestic remedies all criminal domestic remedies, he has received no redress
for the violation of his rights. The State party's authorities have not even
identified the police officer concerned. (8)
3.5 Article 14 is also said to be violated, since the complainant
was denied a criminal remedy and has thus been barred from obtaining fair and
adequate compensation in a civil lawsuit. The complainant explains that under
domestic law, two different procedures exist, through which compensation for
criminal offences may be pursued: by criminal proceedings under article 103 of
the CPC following criminal proceedings, or/and by civil action for damages
under articles 154 and 200 of the Law on Obligations. The first avenue was not
an option, as no criminal proceedings were instituted and the second was not
availed of by the complainant, as it is the practice of the State party's
courts to suspend civil proceedings for damages arising from criminal offences
until prior completion of the respective criminal proceedings. Even if the complainant
had attempted to avail of this recourse, he would have been prevented from
pursuing it, as under articles 186 and 106 of the Civil Procedure Code he would
have to identify the name of the respondent. Since the complainant to date
remains unaware of the name of the officer against whom he is claiming
violations of his rights the institution of a civil action would have been
impossible.
The State party's submission on admissibility and merits and the
complainant's comments thereon:
4.1 On 14 January 2003, the State party provided a submission,
merely stating that it "accepts" the complaint. Following a request
for clarification from the Secretariat, the State party made another
submission, on 20 October 2003, in which it states that the
"acceptance" of the complaint implied that the State party recognised the competence of the Committee to consider the
complaint, "but not the responsibility of the State concerning the
complaint in question". In addition, it submitted that the Ministry on
Human and Minority Rights of Serbia and
5.1 On 25 November 2003, the complainant commented on the State
party's submissions. He submits that by failing seriously to contest the facts
and/or his claims, the State party has in effect expressed its tacit acceptance
of both. (9)
Issues and proceedings before the Committee:
Consideration of admissibility
6.1 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 under 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.
6.2 Before considering any claim contained in a complaint, the
Committee must decide whether or not it is admissible under article 22 of the
Convention. 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
has taken note of the information provided by the complainant about the
criminal complaint, which he filed with the public prosecutor. It considers
that the insurmountable procedural impediments faced by the complainant due to
the inaction of the competent authorities made recourse to 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 in any
event, domestic proceedings, if any, have been unreasonably prolonged since the
end of November 1997. 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.
Consideration of the merits
7.1 The complainant alleges violations by the State party of
article 2, paragraph 1, in connection with article 1, and of article 16,
paragraph 1, of the Convention. The Committee notes in this respect the
complainant's description of the treatment he was subjected to while in
detention, which can be characterized as severe pain or suffering intentionally
inflicted by public officials for such purposes as obtaining from him
information or a confession or punishing him for an act he has committed, or
intimidating or coercing him for any reason based on discrimination of any kind
in the context of the investigation of a crime. The Committee also notes the
observations of the investigating judge with respect to his injuries, and
photographs of his injuries provided by the complainant. It observes that the
State party has not contested the facts as presented by the complainant, which
took place more than seven years ago, and observes that the medical report
prepared after the examination of the complainant and pursuant to an order of
the Novi Sad District Court Judge, has not been integrated into the complaint
file and could not be consulted by the complainant or his counsel. 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.
7.2 In light of the above finding of a violation of article 1 of
the Convention, the Committee need not consider
whether there was a violation of article 16, paragraph 1, as the treatment
suffered by the complainant under article 1 exceeds the treatment encompassed
in article 16 of the Convention.
7.3 Concerning the alleged violation of articles 12 and 13 of the
Convention, the Committee notes that the public prosecutor never informed the
complainant whether an investigation was being or had been conducted after the
criminal complaint was filed on 24 November 1997. It also notes that the
failure to inform the complainant of the results of such investigation, if any,
effectively prevented him from pursuing a "private prosecution" of
his case. 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 whenever 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.
7.4 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.
8. 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.
9. The Committee urges the State party to prosecute those
responsible for the violations found and to provide compensation to the
complainant, 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.
___________________________
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as part
of the Committee's annual report to the General Assembly.]
Notes
1. The
2. This order has been provided.
3. This release order has been provided.
4. This letter has been provided.
5. He refers to international jurisprudence to support this claim.
6. In this context, the complainant provides reports from various
national and international non- governmental organisations
and the Concluding Observations of CAT of 1998, A/54/44,paras.35-52.
7. To support his argument that the treatment he received was
torture, cruel, inhuman and/or degrading treatment or punishment, he refers to
the United Nations Code of Conduct for Law Enforcement Officials, the United
Nations Body of Principles for the protection of All Persons under Any Form of
Detention or Imprisonment, the United Nations Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials, the Council of Europe's
Declaration on the Police and the European Court of Human Rights.
8. The complainant refers to Communication No. 59/1996, Encarnacio Blanco Abad v. Spain, Views adopted
on 14 May 1998.
9. In this regard, he refers to decisions of the Human Rights
Committee in particular Communication No. 88/1981, Gustavo Raul Larrosa Bequio v. Uruguay,
Views adopted on 29 March 1983, para.
10.1.