Communication No. 113/1998
by: Radivoje Ristic [represented by counsel]
victim: Milan Ristic (deceased)
communication: 22 July 1998
against Torture, established under Article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
on 11 May 2001,
concluded its consideration of communication No. 113/1998, submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
taken into account all information made available to it by the author
of the communication, his counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
1. The author
of the communication, dated 22 July 1998, is Mr. Radivoje Ristic, a
citizen of Yugoslavia, currently residing in Šabac, Yugoslavia.
He claims that an act of torture resulting in the death of his son,
Milan Ristic, was committed by the police and that the authorities have
failed to carry out a prompt and impartial investigation. The communication
was transmitted to the Committee, on behalf of Mr. Ristic, by the Humanitarian
Law Center, a non-governmental organization based in Belgrade.
as submitted by the author
2.1 The author
alleges that on 13 February 1995 three policemen (Dragan Riznic, Uglješa
Ivanovic and Dragan Novakovic) arrested Milan Ristic in Šabac while
looking for a murder suspect. One of the officers struck his son with
a blunt object, presumably a pistol or rifle butt, behind the left ear,
killing him instantly. The officers moved the body and, with a blunt
instrument, broke both thighbones. It was only then that they called
an ambulance and the on-duty police investigation team, which included
a forensic technician.
2.2 The policemen
told the investigators that Milan Ristic had committed suicide by jumping
from the roof of a nearby building and that they had an eyewitness to
that effect (Dragan Markovic). The medical doctor who came with the
ambulance pronounced Milan Ristic dead. The ambulance then left, leaving
the body to be collected by a mortuary van. The author claims that after
the departure of the ambulance the policemen struck the deceased on
the chin, causing injury to his face.
2.3 The author provides a copy of the autopsy report, which concluded
that the death was violent and caused by an injury to the brain as a
result of a fall on a hard surface. The fall also explained the fractures
described in the report. The author also provides a copy of the report
by the doctor who came with the ambulance. That report says: "By exterior
examination I found weak bleeding from the injury behind the left ear.
Through the trousers above the right knee an open fracture of thighbone
could be seen with small blood signs; around the wound there were no
traces of blood."
2.4 The author
contends that the medical reports do not fully tally with each other.
The ambulance doctor explicitly states that he noticed no injuries on
the face while the autopsy report lists a laceration and bruise on the
chin. He challenges the reports, noting that it is hardly possible that
a person could fall from a height of 14.65 metres without suffering
any injury to the face, heels, pelvis, spine or internal organs and
without internal haemorrhaging, leaving only bruises on the left elbow
and behind the left ear. Moreover, he notes that there was no blood
on the ground.
2.5 At the
request of the parents, two forensic experts examined the autopsy report
and found it superficial and contradictory, especially in the part referring
to the cause of death. According to their report, the autopsy was not
performed in accordance with the principles of forensic and medical
science and practice and the conclusion is not in agreement with the
findings. They proposed the exhumation of the remains and another autopsy
by a forensic expert. The author further states that on 16 May 1995
they spoke with the pathologist who had performed the autopsy and visited
the alleged scene of the incident. They noted that the autopsy report
and the scene had nothing in common, which suggested that the body had
been moved. In a written statement dated 18 July 1995 addressed to the
Public Attorney's Office, the pathologist agreed that the remains should
be exhumed for forensic examination and pointed out that, as he was
not a specialist in forensic medicine, he might have made a mistake
or missed some details.
2.6 The parents
of the victim filed criminal charges against a number of police officers
before the Public Prosecutor in Šabac. On 19 February 1996, the
Public Prosecutor dismissed the charges. Under Yugoslav law, following
dismissal of a criminal complaint, the victim or the person acting on
his behalf may either request the institution of investigative proceedings
or file an indictment and proceed directly to trial. In the present
case, the parents presented their own indictment on 25 February 1996.
2.7 The investigating
judge questioned the policemen allegedly involved as well as witnesses
and found no grounds for believing that the alleged criminal offence
had been committed. The Criminal Bench of the Šabac District Court
endorsed the investigating judge's decision. The Court did not find
it necessary to hear the testimony of the two forensic experts and did
not consider the possibility of ordering an exhumation and a new autopsy.
Besides, the investigating judge delivered to the parents an unsigned
statement which the pathologist allegedly made in court when they were
not present and which contradicts the one he had made in writing on
18 July 1995. The author further explains that, in addition to the medical
contradictions, there were many other conflicting facts that the judicial
investigation failed to clarify.
2.8 The parents
appealed the decision of the District Court to the Serbian Supreme Court,
which on 29 October 1996 dismissed the appeal as unfounded. According
to the ruling, the testimony of Dragan Markovic showed without any doubt
that Milan Ristic was alive at the time when police officers Sinisa
Isailovic and Zoran Jeftic appeared in front of the building in which
Mr. Markovic lived. They were responding to a telephone call from a
person named Zoran Markovic who had noticed a man at the edge of the
terrace from whose behaviour it could be concluded that he was about
to commit suicide. Dragan Markovic and the two policemen actually saw
Milan Ristic jump from the terrace. There was nothing they could do
to stop him.
2.9 The parents
again tried to bring the case before the judiciary, but on 10 February
1997 the Šabac District Court ruled that prosecution was no longer
possible in view of the decision of the Supreme Court of Serbia. On
18 March 1997, the Supreme Court dismissed their further appeal and
confirmed the District Court's ruling.
3.1 The author
considers that first the police and, subsequently, the judicial authorities
failed to ensure a prompt and impartial investigation. All domestic
remedies were exhausted without the court ever having ordered or formally
instituted proper investigative proceedings. The preliminary investigation
by the investigating judge, which consisted of questioning of the accused
and some witnesses, did not produce sufficient information to clarify
the circumstances of the death and the court never ordered a forensic
examination. The court did not order either the hearing of other witnesses,
such as the employees of the funeral home, whose testimony could have
been relevant to establish the chronology of events. The author further
contends that the investigation was not carried out in accordance with
the provisions of the Criminal Procedure Code. For instance, the police
failed to inform the investigating judge immediately of the incident,
although obliged to do so by article 154. The entire on-site investigation
was therefore conducted by the police without the presence of a judge.
The author further contends that every action aimed at clarifying the
incident was initiated by the parents of Milan Ristic and that the competent
government bodies failed to take any effective steps to that end.
3.2 On the
basis of the above, the author claims that the State party has violated
several articles of the Convention, in particular articles 12, 13 and
14. He states that although the parents had the possibility of seeking
compensation, the prospect of their being awarded damages was de facto
non-existent in the absence of a criminal court judgement.
by the State party
4. On 26 October
1998 the State party informed the Committee that, although all domestic
remedies had been exhausted, the communication does not fulfil other
necessary conditions provided for by the Convention. It stated, in particular,
that no act of torture had been committed, since the deceased did not
have any contact at all with State authorities - the police. Accordingly,
the communication was not admissible.
decision on admissibility
6. At its twenty-second
session, in April-May 1999, the Committee considered the question of
the admissibility of the communication and ascertained that the same
matter had not been and was not being examined under another procedure
of international investigation or settlement. The Committee noted the
State party's statement that all domestic remedies had been exhausted,
and considered that the communication was not an abuse of the right
of submission or incompatible with the provisions of the Convention.
The Committee therefore decided, on 30 April 1999, that the communication
party's observations on the merits
7.1 In a submission
dated 15 December 1999, the State party gave to the Committee its observations
on the merits of the communication.
7.2 The State
party reiterates its opinion that the alleged victim was not subjected
to torture because he had at no time been in contact with the law enforcement
officers, i.e. the police officers. It therefore considers that there
is no violation of the Convention whatsoever.
7.3 The State
party also underlines that the courts of its country operate independently
and have concluded rightfully and in accordance with the law that no
investigation should be initiated against the alleged authors of the
acts of torture. It points in this regard to the fact that the author
of the communication has not submitted all the court decisions and other
judicial documents that may bring some additional light to the Committee's
consideration of the communication. The said documents were submitted
to that effect by the State party.
7.4 The State
party then gave its version of the facts. First, it alleges that the
alleged victim took alcohol and drugs (Bromazepan) and had already tried
to commit suicide some time before. During the afternoon preceding his
death, on 12 February 1995, the alleged victim had taken some drugs
(in the form of pills) and was in a very bad mood because of an argument
he had had with his mother. These elements were, according to the State
party, confirmed by four of his friends who spent the afternoon of 12
February 1995 with the alleged victim. The State party also notes that
the parents and girlfriend of the alleged victim stated exactly the
7.5 With respect
to the events surrounding the death of the alleged victim, the State
party refers to the statement made by the eyewitness, Dragan Markovic,
who explained that he had seen the victim standing on the edge of the
terrace, 15 metres from the ground and immediately called the police.
When the police arrived, the victim jumped from the terrace and neither
Dragan Markovic nor the police could prevent it. The State party notes
also that the three policemen who are accused of the alleged murder
of the victim arrived on the premises after the victim had jumped and
therefore concludes that none of them could have taken any action.
7.6 The above
elements demonstrate, according to the State party, that the death of
the alleged victim was the result of a suicide and that no acts of torture
had therefore been committed.
the State party notes that the impartiality of witness Dragan Markovic,
as well as of S. Isailovic and Z. Jetvic, the two police officers who
arrived first on the scene, is indisputable and confirmed by the fact
that the request for an investigation filed by the author of the communication
was directed not against these persons but others.
the judicial proceedings that followed the death of the victim, the
State party recalls the various steps of the procedure and notes that
the main reason that an investigation had not been ordered was the lack
of strong evidence to prove a causal link between the behaviour of the
three defendant police officers and the death of the victim. The State
party contends that the procedure has been scrupulously respected at
all steps and that the complaint has been carefully considered by all
the magistrates who have had to deal with the case.
the State party emphasizes that certain omissions that may have occurred
during the events immediately following the death of the alleged victim
and that have been referred to by the author of the communication were
not important because they do not prove that the alleged victim died
as a result of torture.
submitted by the author on the merits
8.1 In a submission
dated 4 January 1999, the author refers to relevant jurisprudence of
the European Court of Human Rights. In a further submission dated 19
April 2000, the author confirmed the assertions he had made in his communication
and gave to the Committee additional observations on the merits of the
8.2 The author
first makes some remarks on specific issues raised or ignored by the
State party in its observations. In this regard, the author mainly points
to the fact that the State party limited itself to arguing that the
three police officers allegedly responsible for the murder were not
involved in the death of the alleged victim and fails to address the
main issue of the communication, which is the failure to carry out a
prompt, impartial and comprehensive investigation.
8.3 The author
focuses on the following factual elements supporting his claim:
(a) The inspector
in charge of the case took three months to collect the information needed
for the investigation;
(b) The District
Court was only requested to initiate an investigation seven months after
the death of the alleged victim;
(c) The District
Court failed to take as a starting point for establishing the relevant
facts the police report that had been made at the time of the death;
(d) The eyewitness
Dragan Markovic did mention in his only statement the presence at the
scene of police officers Z. Jeftic and S. Isailovic and not the presence
of the three defendant police officers;
(e) The Šabac
Police Department failed to provide the photographs taken at the scene
of the incident, as a result of which the investigating judge transmitted
incomplete documentation to the public prosecutor;
(f) When the
parents of the alleged victim proceeded in the capacity of private prosecutor,
the investigating judge failed to order the exhumation of the body of
the alleged victim and a new autopsy, at the same time agreeing that
the original autopsy "had not been performed in line with all the rules
of forensic medicine";
prosecuting authorities failed to hear numerous other witnesses proposed
by the author.
the State party's contention that the alleged victim had previously
attempted to commit suicide, the author indicates that the State party
does not substantiate its claim with medical records or police reports,
which are usually available in such cases. With regard to other rumours
concerning the alleged victim, inter alia that he was addicted
to drugs, the author notes that they have always been denied by the
family. The author does not know when or whether the four friends of
his son were interrogated and neither he nor his lawyer was ever notified
of such an interrogation. Moreover, the author notes that three of these
witnesses may have been subjected to pressure and influenced for various
the obligation to investigate incidents of torture and cruel, inhuman
or degrading treatment or punishment, the author refers to the jurisprudence
of the Committee in the case Encarnación Blanco Abad v. Spain
(CAT/C/20/D/59/1996), where the Committee observed that "under article
12 of the Convention, the authorities have the obligation to proceed
to an investigation ex officio, wherever there are reasonable grounds
to believe that acts of torture or ill-treatment have been committed
and whatever the origin of the suspicion". He also refers to the decision
in the case Henri Unai Parot v. Spain (CAT/C/14/D/6/1990), according
to which the obligation of a prompt and impartial investigation exists
even when torture has merely been alleged by the victim, without the
existence of a formal complaint. The same jurisprudence is confirmed
by the European Court of Human Rights (Assenov and Others v. Bulgaria
the principle of prompt investigation of incidents of alleged torture
or other ill-treatment, the author refers to the Committee's jurisprudence
stating that a delay of 15 months before the initiation of an investigation
is unreasonable and contrary to article 12 of the Convention (Qani
Halimi-Nedzibi v. Austria, CAT/C/11/D/8/1991).
the principle of the impartiality of the judicial authorities, the author
states that a body cannot be impartial if it is not sufficiently independent.
He refers to the case-law of the European Court of Human Rights to define
both the impartiality and the independence of a judicial body in accordance
with article 6 (1) and 13 of the European Convention on Human Rights
and underlines that the authority capable of providing a remedy should
be "sufficiently independent" from the alleged responsible author of
the existence of reasonable grounds to believe that an act of torture
or other ill-treatment has been committed, the author, again relying
on the jurisprudence of the European Court of Human Rights, points to
"the existence of facts or information which would satisfy an objective
observer that the person concerned may have committed the offence".
the principle of compensation and rehabilitation for an act of torture
or other ill-treatment, the author mentions that an effective remedy
entails also the payment of compensation.
8.10 The author
stresses that, at the time of his submission, five years had already
elapsed since his son's death. He contends that, notwithstanding strong
indication that grave police brutality had caused the death of Milan
Ristic, the Yugoslav authorities have failed to conduct a prompt, impartial
and comprehensive investigation able to lead to the identification and
punishment of those responsible, and have thus failed to provide the
author with any redress.
on a significant amount of sources, the author explains that police
brutality in Yugoslavia is systematic and considers that public prosecutors
are not independent and rarely institute criminal proceedings against
police officers accused of violence and/or misconduct towards citizens.
In such cases, the action is very often limited to a request for information
directed to the police authorities alone and the use of dilatory tactics
the author specifically refers to the most recent examination of the
periodic report submitted by Yugoslavia to the Committee and the latter's
subsequent concluding observations, in which it stated that it was "extremely
concerned over the numerous accounts of the use of torture by the State
police forces that it has received from non-governmental organizations"
(A/54/44, para. 46) and "gravely concerned over the lack of sufficient
investigation, prosecution and punishment by the competent authorities
… of suspected torturers or those breaching article 16 of the
Convention, as well as with the insufficient reaction to the complaints
of such abused persons, resulting in the de facto impunity of the perpetrators
of acts of torture" (ibid., para. 47).
and proceedings before the Committee
9.1 The Committee
has considered the communication in the light of all information made
available to it by the parties concerned, in accordance with article
22, paragraph 4, of the Convention. It regrets in this regard that the
State party has only provided the Committee with a different account
of the event, and notes that more precise information concerning the
conduct of the investigation was necessary, including an explanation
of why a new autopsy was not carried out.
9.2 It also
notes that the author of the communication claims that the State party
has violated articles 2, 12, 13, 14 and 16 of the Convention.
9.3 With regard
to articles 2 and 16, the Committee first considers that it does not
fall under its mandate to assess the guilt of persons who have allegedly
committed acts of torture or police brutality. Its competence is limited
to considering whether the State party has failed to comply with any
of the provisions of the Convention. In the present case, the Committee
will therefore not pronounce itself on the existence of torture or ill-treatment.
9.4 With regard
to articles 12 and 13 of the Convention, the Committee notes the following
elements, on which both parties have been able to submit observations:
are apparent differences and inconsistencies between the statement made
on 18 August 1995 by the doctor who came with the ambulance as to the
premise of the cause of death of the alleged victim, the autopsy report
of 13 February 1995 and the report made on 20 March 1995 by two forensic
experts at the request of the parents of the alleged victim;
the investigating judge in charge of the case when the parents of the
alleged victim proceeded in the capacity of private prosecutor stated
that the autopsy "had not been performed in line with all the rules
of forensic medicine", there was no order of exhumation of the body
for a new forensic examination;
is a difference between the statement made on 13 February 1995 by one
of the three police officers allegedly responsible for the death of
the alleged victim according to which the Police Department had been
called for a person who had committed suicide and the statements
made by another of the above-mentioned police officers, as well as by
two other police officers and the witness D. Markovic, according to
which the Police Department had been called for a person who might
jump from the roof of a building;
(d) The police
did not immediately inform the investigating judge on duty of the incident
in order for him to oversee the on-site investigation in compliance
with article 154 of the Code of Criminal Procedure of the State party.
the Committee is especially concerned by the fact that the doctor who
carried out the autopsy admitted in a statement dated 18 July 1995 that
he was not a specialist in forensic medicine.
the above elements, the Committee considers that the investigation that
was conducted by the State party's authorities was neither effective
nor thorough. A proper investigation would indeed have entailed an exhumation
and a new autopsy, which would in turn have allowed the cause of death
to be medically established with a satisfactory degree of certainty.
the Committee notes that six years have elapsed since the incident took
place. The State party has had ample time to conduct a proper investigation.
9.8 In the
circumstances, the Committee finds that the State party has violated
its obligations under articles 12 and 13 of the Convention to investigate
promptly and effectively allegations of torture or severe police brutality.
9.9 With regard
to allegations of a violation of article 14, the Committee finds that
in the absence of proper criminal investigation, it is not possible
to determine whether the rights to compensation of the alleged victim
or his family have been violated. Such an assessment can only be made
after the conclusion of proper investigations. The Committee therefore
urges the State party to carry out such investigations without delay.
10. In pursuance
of rule 111, paragraph 5, of its rules of procedure, the Committee urges
the State party to provide the author of the communication with an appropriate
remedy, 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 observations