1. The Federal Republic
of Yugoslavia (FRY) comprises Serbia and Montenegro as its member
Republics; it is situated in south-east Europe and occupies the
central part of the Balkan peninsula, covering an area of 102,173
square kilometres. According to the latest statistics (the 1991
census and the estimates based on the natural birth rate) Yugoslavia
has a population of 10,574,000.
is a multiethnic, multilingual and multiconfessional State. Serbs
and Montenegrins account for the largest part of the population,
a total of 67.6 per cent, whereas members of various minorities
account for nearly a third (32.4 per cent) of the total.
3. As regards
the general political structure in Yugoslavia, the core document
(HRI/CORE/1/Add.40 of 22 July 1994, paras. 23-65) should be consulted.
signed the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment on 18 April 1989 and ratified
it on 20 June 1991. The Law Ratifying the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment was
published on 2 August 1991 (Official Gazette of the SFRY
- International Treaties, No. 9/1991) and came into effect on 10
August 1991. Yugoslavia deposited the instruments of ratification
of the Convention with the Secretary-General of the United Nations
on 10 September 1991. On the occasion of the ratification of the
Convention, the Assembly of Yugoslavia also issued the following
in accordance with paragraph 2 of article 21 of the Convention,
the jurisdiction of the Committee against Torture to receive
and consider communications in which one Member State claims
that another Member State is in default on its obligations under
"In accordance with
paragraph 1 of article 22 of the Convention, Yugoslavia recognizes
the jurisdiction of the Committee against Torture to receive
and consider communications submitted to it by or on behalf
of individuals who are under its jurisdiction and who claim
to be victims of violations of the provisions of the Convention
by a Member State."
Constitution of the Federal Republic of Yugoslavia (Official
Gazette of FR Yugoslavia No. 1/1992) devotes one third of the
constitutional text to the freedoms, rights and duties of individuals
and citizens (sect. II, arts. 19-68) and contains, in conformity
with international standards, the complete corpus of human rights
attention is drawn to provisions of the Constitution as stated in
the following articles:
21, para. 1: "Man's life shall be inviolable."
Article 22: "The
inviolability shall be guaranteed of man's physical and mental
integrity, his privacy and personal rights. Man's personal dignity
and security shall be guaranteed."
Article 23, paragraph
1: "Everyone shall have the right to personal freedom."
"Respect for the
human personality and human dignity shall be guaranteed in criminal
and in any other proceedings in the case of deprivation or restriction
of liberty and during the enforcement of a penalty.
"Any violence against
a person deprived of liberty or whose liberty has been restricted,
as well as any extortion of a confession or statement shall
be forbidden and punishable. No one may be subjected to torture,
degrading treatment or punishment.
"Medical and other
experiments on man without his permission shall be forbidden."
31, paragraph 1: "Dwellings shall be inviolable."
Article 32, paragraph
1: "Secrecy of mail and of other means of communication shall
Article 33, paragraph
1: "Protection of personal data shall be guaranteed."
Article 35: "Freedom
of conviction, conscience, thought and public expression of
views shall be guaranteed."
Article 36, paragraph
1: "Freedom of the press and other mass media shall be guaranteed."
Article 38, paragraph
1: "Censorship of the press and other mass media shall be prohibited."
39: "Freedom of speech and public address shall be guaranteed."
Article 40, paragraph
1: "Citizens shall be guaranteed freedom of assembly and other
peaceful gatherings, subject to prior notification to the competent
Article 41, paragraph
1: "Citizens shall be guaranteed freedom of political, trade
union and other association and action, subject to registration
with the competent authority."
"Freedom of belief,
private or public profession of religion and practising of religious
rites shall be guaranteed.
shall be bound to declare their religious convictions."
"Freedom to declare
one's national affiliation and culture as well as freedom to
use one's own language and script is guaranteed.
shall be bound to declare their national affiliation."
6. In the
context of the drafting of this report, we would like to stress,
among the above-mentioned as well as other constitutional provisions
on the freedoms, rights and duties of individuals and citizens,
the provisions of paragraph 3 of article 25 ("No one may be subjected
to torture, degrading treatment or punishment"), which has been
taken from article 7 of the International Covenant on Civil and
Political Rights. A formulation identical to that of the above provision
of the Constitution of Yugoslavia is also found in the Constitution
of the Republic of Serbia (Official Gazette of the Republic of
Serbia, No. 1/1990), in article 26, paragraph 2, as well as
in the Constitution of the Republic of Montenegro (Official Gazette
of the Republic of Montenegro, No. 48/1992), in paragraph 3
of article 24. The Constitutions of the Republics of Serbia and
Montenegro also contain arrangements identical or similar to those
in the Constitution of Yugoslavia in respect of the entire corpus
of freedoms, rights and duties of individuals and citizens.
against torture and/or degrading treatment or punishment is laid
down primarily in the criminal legislation of Yugoslavia, in both
substantive and adjective law. The Criminal Code of Yugoslavia,
the Criminal Code of Serbia and the Criminal Code of Montenegro
are implemented in Yugoslavia at present. The adoption of a single
Criminal Code for Yugoslavia, is under way to regulate, on a comprehensive
and uniform basis, for the entire territory of Yugoslavia, all issues
falling within the domain of substantive criminal law. The Law on
Criminal Procedure is uniform for the entire territory of Yugoslavia.
Although the term "torture" does not exist in the criminal legislation
of Yugoslavia, protection against torture, ill-treatment and/or
degrading treatment and punishment has been regulated under a number
of statutory provisions which describe and sanction acts encompassed
by the Convention.
Criminal Code of Yugoslavia (1976) contains a number of criminal
offences with sanctions envisaged for torture and/or degrading treatment
and punishment (arts. 174-199). We draw attention to the following
criminal offences in particular:
189: Unlawful deprivation of freedom
"Whosoever in an
official capacity unlawfully detains, keeps in detention or
in other ways restricts the freedom of movement of another person,
shall be punished by imprisonment from three months to five
"If the unlawful
deprivation of liberty exceeds 30 days or is carried out in
a cruel way, or if the unlawful deprivation of liberty seriously
impairs the health of the person concerned or entails other
serious consequences, the perpetrator shall be punished by imprisonment
between one and eight years.
"If the person unlawfully
deprived of liberty lost his/her life on that account, the perpetrator
shall be punished with imprisonment of at least three years."
190: Extortion of depositions
"Whosoever in an
official capacity resorts to force, threat or other impermissible
means or impermissible way with the intention of extorting a
deposition or other statement from the accused, witnesses, experts
or other persons, shall be punished by imprisonment from three
months to five years.
"If the extortion
of the deposition or statement is attended by severe violence
or if, due to the extortion of a statement, particularly grave
consequences have arisen for the accused in criminal proceedings,
the perpetrator shall be punished by imprisonment of at least
191: Maltreatment in the discharge of office
"Whosoever in an
official capacity ill-treats, insults or generally treats another
person in a way outrageous to human dignity, he/she shall be
punished by imprisonment from three months to three years."
to the above criminal offences, in our view the following also need
to be pointed out: abuse of office (art. 174); dereliction of duty
(art. 182); infringement upon the inviolability of dwellings (art.
192) and unlawful search (art. 193).
Criminal Code of Serbia (1977), chapter 8, "Criminal Offences Against
the Freedoms and Rights of Man and the Citizen", contains 18 criminal
offences (arts. 60-76) with formulations similar to those in the
Criminal Code of Yugoslavia, namely: unlawful deprivation of freedom
(art. 63), extortion of statements (art. 65), ill-treatment in the
line of duty (art. 66). The Criminal Code of Serbia, like the Criminal
Code of Montenegro sanctions as a criminal offence the abuse of
office to carry out intercourse or indecent assault (art. 107).
Criminal Code of Montenegro (1993) also contains formulations similar
or identical to those in the Criminal Code of Yugoslavia and the
Criminal Code of Serbia, namely: unlawful deprivation of freedom
(art. 45), extortion of statements (art. 47), ill-treatment in the
line of duty (art. 48) and the abuse of office to carry out intercourse
or indecent assault (art. 90).
though the same or similar formulations of the above criminal offences
feature in the Criminal Code of Yugoslavia, the Criminal Code of
Serbia and the Criminal Code of Montenegro, we wish to emphasize
that the provisions of the Criminal Code of Yugoslavia refer to
the officials in the federal bodies, while the mentioned provisions
of the republican criminal codes apply to any other persons acting
in an official capacity.
Constitution of Yugoslavia contains the basic arrangements concerning
deprivation of liberty, detention and the right to counsel, as follows:
"Everyone shall be
entitled to personal freedom.
"No one may be deprived
of liberty except in cases and by the procedure specified by
federal statute. Whosoever has been deprived of liberty shall
be immediately informed in his/her own language or a language
that he/she understands, of the reasons therefore and shall
have the right to demand the authorities to inform his next
of kin of such deprivation of liberty. A person deprived of
liberty must be informed thereof, while he/she is under no obligation
to make any statements. A person deprived of liberty shall have
the right to a defence counsel of his/her own choosing. Any
unlawful deprivation of liberty shall be punishable."
"A person for whom
there are grounds for suspicion that he has committed a criminal
offence may be detained and held in detention on the basis of
a decision of the competent court of law, providing it is indispensable
for the conduct of criminal proceedings."
"A written order
with a statement of grounds must be served on a person detained
at the moment of detention or not later than 24 hours thereafter.
The person detained may lodge an appeal against this order,
which must be decided upon by the court within 48 hours. The
duration of detention shall be kept within the shortest necessary
period of time.
by a court of first instance shall be in force not more than
three months as of the date of detention. A court of higher
instance may extend this period for another three months. If
until the expiry of these time limits no indictment has been
filed, the accused shall be released."
29, paragraph 1:
"Every person shall
be entitled to defence and to retain a defence counsel to act
on his behalf before the court or other body conducting the
Law on Criminal Procedure (1976) is applicable throughout Yugoslavia.
Article 10 of the Law contains the following general provision:
"Any extortion of a confession or statement from an accused person
or any other person involved in the proceedings shall be forbidden
and punishable." The Law lays down the following stages of the criminal
procedure: (a) Pre-trial procedure (i) investigation and (ii) indictment;
and (b) main procedure: (i) main hearing and (ii) action upon legal
remedies. Not every criminal case has to go through all these stages
(e.g. legal remedies may be waived). The Law on Criminal Procedure
specifies the legal course of the entire criminal proceedings and
precludes torture or degrading punishment and treatment. On this
occasion we draw attention to the provisions of the Law on Criminal
Procedure referring to detention (arts. 190-200) and treatment of
detainees (arts. 201-205) which meets the standards of the Convention
and other international documents, primarily the Standard Minimum
Rules for the Treatment of Prisoners.
190 and 191 of the Law on Criminal Procedure set out the basic prerequisites
and conditions for ordering detention (detention may only be ordered
in keeping with the conditions precisely defined in this law). Articles
192, 194, 195 and 196 specify which bodies are competent to order
detention (as a rule detention is ordered by the investigating magistrate
in charge, in close cooperation with law enforcement bodies and
the trial chamber). Articles 193 and 200 regulate the rights of
persons deprived of liberty (the right to a defence counsel and
to assistance in retaining defence counsel, keeping in detention
for the shortest time possible, informing the family). Articles
198 and 199 regulate the expiry of detention (approval of the investigating
magistrate and public prosecutor; in the absence of such approval
the decision revoking the detention order is brought by the trial
chamber). Article 197 regulates the duration of detention (one month,
on the basis of a magistrate's order, which may be extended for
another two months on the basis of a decision of the trial chamber;
however, if the proceedings are being conducted for a criminal offence
punishable by a sentence of five years of imprisonment or a more
severe sentence, detention may be extended for another three months
on the basis of a decision of the chamber of the republican Supreme
practice, detention is not ordered frequently. For example, in the
five-year period from 1991 to 1995, persons accused of having committed
one of the 59 criminal offences from the group of criminal offences
against the freedoms and rights of individuals and the citizens
(24 criminal offences in the Criminal Code of Yugoslavia, 18 offences
in the Criminal Code of Serbia and 17 offences in the Criminal Code
of Montenegro), detention for a total of 218 cases was ordered on
the basis of criminal charges. These criminal offences have been
described, i.e. some of them have been cited in paragraphs 8-10
of this report. Persons accused of these offences were ordered to
be detained, as a rule, between 3 and 30 days, with detention exceeding
30 days only in individual cases.
201, paragraph 1, states: "During detention, neither the personality
nor the dignity of an accused may be offended." Article 202 stipulates
an uninterrupted eight-hour resting period every 24 hours as well
as the right of a detainee to be self-sustaining in food, to wear
his/her own clothes, to use his/her own bed-linen and to be supplied
with newspapers and books. Article 203 allows visits by family members,
doctors and other persons to detainees, as well as correspondence,
all supervised by an authority and/or person in charge of the investigation.
Article 204 allows the possibility to inflict disciplinary punishments
on detainees for violations of discipline, and article 205 governs
the manner in which the President of the court exercises supervision
17. A search
of an apartment and a person (arts. 206-210) shall be carried out
only if there is a probability of finding evidence of a criminal
offence; on the basis of a valid warrant or a summons issued to
the owner of an apartment or other persons living in it, or neighbours,
to be present. An apartment may be searched in the presence of two
adult citizens as witnesses. There is an obligation to carefully
search an apartment or a person. A police officer may search an
apartment even without a warrant if somebody cries for help, if
that is indispensable in order to catch a perpetrator in the act,
if it is necessary to protect the safety of life or property. A
police officer may search a person even without a warrant in cases
of taking him/her to a police station or an arrest, where there
is reasonable suspicion that the perpetrator possesses weapons or
instruments for an attack, that he will conceal or destroy an object
which can serve as evidence in criminal proceedings. After each
search without a warrant, police officers have to submit a special
211-215 cover temporary seizure of objects. Articles 216-217 cover
procedure with respect to suspicious objects.
the interrogation of an accused (arts. 218-224), the personality
of the accused shall be fully respected; the accused must not be
subjected to coercion, threats or other similar means, nor to deception
with purpose of obtaining his statement or confession. In the questioning
of witnesses (arts. 225-237), there is an obligation to respond
to a summons to testify, but at the same time it must be stated
who is not obliged to testify. A witness has the right not to answer
to certain questions. The summons must be served in an orderly fashion
and witnesses questioned correctly.
the investigation (arts. 238-240), the reconstruction of events
must not be performed in a manner offensive to public order and
morals or dangerous for people's lives or health.
241-260 cover the giving of an expert opinion.
II. INTERNATIONAL INSTRUMENTS
16 of the Yugoslav Constitution lays down that: "The Federal Republic
of Yugoslavia shall fulfil in good faith the obligations contained
in international treaties to which it is a Contracting Party. International
treaties ratified and promulgated in conformity with the present
Constitution and generally accepted rules of international law shall
be a constituent part of the internal legal order." The Law on Ratification
of International Treaties is adopted by the Federal Assembly at
the proposal of the Federal Government, and the President of the
Federal Republic of Yugoslavia issues documents on confirmed (ratified)
international treaties. Duly ratified and published international
treaties are a constituent part of the internal legal order and
as such can be immediately enforced.
has ratified a large number of international treaties, especially
in the field of human rights. These include: International Covenant
on Civil and Political Rights; International Covenant on Economic,
Social and Cultural Rights; International Convention on the Elimination
of All Forms of Racial Discrimination; International Convention
on the Suppression and Punishment of the Crime of Apartheid; International
Convention against Apartheid in Sports; Convention on the Prevention
and Punishment of the Crime of Genocide; Convention on the Rights
of the Child; Convention on the Elimination of All Forms of Discrimination
against Women; Convention on the Political Rights of Women; Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment; Slavery Convention; Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions and Practices
Similar to Slavery; Convention for the Suppression of the Traffic
in Persons and of the Exploitation of the Prostitution of Others;
Convention relating to the Status of Stateless Persons; Convention
relating to the Status of Refugees and its Protocol.
III. COMPETENT AUTHORITIES
Courts of law
in Yugoslavia protect the freedoms and rights of citizens, the rights
and interests laid down by law, constitutionality and legality.
These judicial functions are performed by the courts of general
jurisdiction and by specialized courts.
courts considering cases involving protection of human rights and
freedoms are, as a rule, courts of general jurisdiction, namely:
municipal courts in the Republic of Serbia and basic courts in the
Republic of Montenegro and district courts in the Republic of Serbia,
and higher-instance courts in the Republic of Montenegro. There
is a supreme court in each of the member republics; the Federal
Court is a judicial authority of the federal State. When cases involve
a criminal offence against military personnel and certain criminal
offences committed by military personnel, they are tried before
military courts. The Yugoslav legal system enables everyone to take
legal action before the Federal Constitutional Court in order to
annul a decision or prohibit an act violating the freedom or right
guaranteed by the Constitution.
i.e. basic, courts, as first-instance courts, are competent not
only in civil, labour relations and other cases, but also in criminal
cases, to try criminal offences which, under the law, entail as
a main sentence a fine or imprisonment up to 10 years, unless the
law envisages a district court, i.e. higher-instance court, as competent
for such cases; to try criminal offences which fall within their
competence according to a special law; to conduct investigations,
consider appeals against rulings of an investigating judge and objections
against indictments for criminal offences within their jurisdiction;
to decide disputes involving indemnification against persons unjustly
convicted and arbitrarily arrested; to carry out proceedings and
to put forward proposals following requests for the quashing of
verdicts and for the termination of security measures or for the
termination of the legal consequences of a sentence; and to adopt
decisions on those matters when pronouncing such a sentence or a
measure. In criminal proceedings such courts sit in a three-member
panel, consisting of a judge and two lay-assessors, unless they
try cases involving criminal offences for which the statutory sentence
is one year in prison or a fine (such cases are tried by a single
judge). Investigation is entrusted to an investigating judge, and
only exceptionally to police forces (mostly upon orders of an investigating
judge), while appeals against a decision of the investigating judge
are decided upon by the three-member panel.
i.e. higher-instance, courts are primarily courts of appeal. In
special cases spelled out by the law, these courts are also first-instance
courts, namely when they try criminal offences for which a statutorily
defined sentence is imprisonment for more than 10 years or capital
punishment, as well as criminal offences which fall within their
jurisdiction under the law; when they conduct an investigation,
consider appeals against a decision of an investigating judge, consider
objections against indictments for criminal offences which fall
within their jurisdiction; decide upon a request for the quashing
of a verdict based on a court ruling and an appeal for the termination
of security measures or for the termination of the legal consequences
of a sentence relating to the ban on acquiring certain rights, if
the verdict or the measure were pronounced by that court; carry
out proceedings and decide upon a request for extradition of convicted
or indicted persons.
the highest courts, which, by rule, act upon legal remedies lodged
against lower-instance court decisions, there are supreme courts
in the Republic of Serbia and the Republic of Montenegro. In the
majority of cases, they serve as the last-instance courts for judicial
proceedings, i.e. at the level of the judicial authorities in the
member republics. A supreme court is, inter alia, competent
to: decide on regular legal remedies against decisions of district,
i.e. higher-instance, courts; decide on extraordinary legal remedies
against valid decisions in statutorily defined cases; decide on
third-degree appeals against second-degree verdicts of the republican
courts; decide on legal remedies against decisions of the supreme
courts' Chamber. It should be pointed out in particular that a supreme
court is competent to decide in the first degree on requests for
protection of the freedoms and rights laid down in the Constitution,
if such freedoms and rights are violated by a final individual act,
and there is no other judicial protection provided for such cases.
wish to emphasize in particular that there may be three-degree proceedings
only providing that a second-degree court pronounces capital punishment
or a sentence of 20 years of imprisonment or if it confirms a verdict
by a first-degree court pronouncing such a sentence. The proceedings
will also be three-degree proceedings when a second-degree court
modifies a verdict of a first-degree court acquitting the defendant,
and pronounces its own verdict convicting him.
Federal Court is a federal State's court, the jurisdiction of which
is laid down in Yugoslavia's Constitution, the Federal Court Act
and laws on judicial proceedings (criminal proceedings and litigations).
As regards the jurisdiction of this court in the field of protection
of human rights and freedoms, this court decides on the use of an
extraordinary legal remedy against court decisions in the member
republics and decisions of military courts relating to the enforcement
of the federal law and on the legality of final administrative enactments
of the federal authorities.
addition to courts of general jurisdiction, military courts also
have a certain degree of jurisdiction in the protection of human
rights and freedoms. Military courts in Yugoslavia are part of the
judicial system; they apply the same procedures and substantive
regulations which are applied by the courts of general jurisdiction,
namely, they are not, as in most countries, a separate system of
courts before which special legal acts are applied. These courts
exist in the country in time of both peace and war. Military courts
are, inter alia, responsible for pronouncing judgements for
all criminal offences committed by military persons; prisoners of
war - for all offences committed by them as prisoners of war; civilians
who serve as civil persons in the Yugoslav Army - for offences committed
by them in their line of duty or in connection with their line of
authorities are particular State authorities responsible for issues
covered by the Convention. Reference is made to the Federal Ministry
of Justice, which has the Human Rights Sector and is responsible
for issues relating to the exercise of freedoms and rights of individuals
and citizens established by the Constitution, including rights of
national minorities; monitoring and work intended to develop and
promote the legal system in the field of human rights; administrative
supervision over the implementation of federal laws and other federal
regulations in the field of exercise and protection of human rights;
monitoring of the situation in the fields of the freedoms and rights
of specific population categories; monitoring of the implementation
of the adopted international acts and documents in the field of
freedoms and rights, including national minority rights, and preparation
of related reports; as well as other affairs within the scope of
work of the Federal Ministry of Justice in the field of human rights.
Within this overall scope of activity, the Federal Ministry for
Foreign Affairs, the Federal Ministry for Internal Affairs and the
Ministries of Justice and Police of the two republics have corresponding
competencies over the issues covered by the Convention.
Federal Assembly has a permanent committee for the exercise of freedoms,
rights and duties of individuals and citizens which, inter alia,
monitors the implementation and protection of freedoms, rights and
duties established by the Constitution, laws, other regulations
and general enactments; monitors the implementation of obligations
assumed by Yugoslavia by the signature and ratification of international
acts on human rights and freedoms; gives opinions and proposals
for more complete and efficient implementation and protection of
the established freedoms and rights of man and citizen.
the Federal Assembly and the republican assemblies have permanent
parliamentary committees for representations and proposals of citizens.
These committees consist of representatives of the parliamentary
political parties. Their main responsibility is to look into citizens'
representations, petitions, proposals and complaints and to propose
to the competent assembly chamber and other competent authorities
the measures for resolving the respective issues. Thus, for example,
the Committee for Representations and Proposals of the Federal Assembly
received in 1996 a total of 1,400 representations addressed to the
highest authorities of Yugoslavia. Under article 44 of the Constitution,
a citizen is entitled to publicly criticize the work of State and
other authorities and organizations and officials, to submit to
them representations, petitions and proposals and to receive an
answer upon request. Of the 1,400 citizen representations in 1996,
928 were submitted for the first time, 272 were resubmitted representations
and 200 citizens were received directly and submitted their representations
that the largest number of representations was submitted by citizens
who had addressed the federal authorities for the first time it
is noteworthy that 528 of them were addressed to the President of
Yugoslavia, 379 were submitted to the Federal Assembly and 21 to
the Federal Government.
the contents of these representations, the largest number (297)
concerned problems of a property/legal nature or administrative
and legislative problems, while the number of representations in
the fields of socio-economic and socio-political relations was somewhat
lower and totalled 263.
IV. COURT AND POLICE PROCEDURES
police in Yugoslavia act on the basis of law and legal enactments
which, inter alia, establish the terms and conditions for
the use of coercion, as well as the use of other powers in the line
of duty. The said regulations also include provisions which sanction
all measures, actions and acts which would be contrary to the provision
of the Convention. If a police officer acts contrary to the said
regulations, disciplinary and other measures are taken, including
termination of employment, but criminal charges can also be brought.
The following table shows the number of complaints brought for specific
criminal offences in 1991-1996.
Abuse in the
line of duty
for example, in the 1993-1996 period, the Ministry of Internal Affairs
of the Republic of Serbia brought 9 criminal charges against 12
authorized officers, based on reasonable suspicion that they committed
10 criminal offences of abuse in the line of duty, one criminal
offence of rape and indecent assault by abusing their official position
and one criminal offence of illegal arrest. Out of this number,
three criminal charges were brought in 1993 against four police
officers, four criminal charges were brought against the same number
in 1994, and one in 1995 and 1996 each, against two police officers.
Criminal charges were also brought against 11 uniformed workers
and one criminal police inspector.
cases concern irregular use or overstepping of powers relating to
the use of coercion - physical force or rubber stick, rather than
acts with elements of torture. In four cases, coercion was used
in official premises during the interviews. Of the total number
of reported persons, seven were convicted in criminal proceedings.
All the officers of the Ministry of Internal Affairs of Serbia who
were found guilty were sentenced to serve time in prison.
addition to the criminal charges, disciplinary procedures were also
undertaken against 10 reported officers. In two cases, employment
was terminated, three were fined, one was relocated to another job,
one was released from disciplinary responsibility. All officers
who underwent disciplinary proceedings were suspended from this
Ministry before the end of the proceedings. Two officers terminated
employment by agreement.
addition to the legal measures taken ex officio by the Ministry
of Internal Affairs of the Republic of Serbia, the injured parties
brought criminal charges directly to the competent public prosecutor's
offices. Citizens brought 230 criminal charges against 300 authorized
officers of this Ministry, in most cases for the criminal offences
of abuse in the line of duty (280), extorted testimonies (44) and
illegal arrest (15). Almost all cases were based on unfounded reports
and complaints of citizens under criminal prosecution. The competent
public attorney offices were duly informed about the proceedings
undertaken and in most cases rejected the charges as unfounded.
the grounds of abuse and overstepping of powers in the use of coercion,
the Ministry of Internal Affairs of the Republic of Montenegro pronounced
measures of termination of employment as follows: 4 terminations
in 1993; 15 in 1994; 18 in 1995 and 7 in 1996. In the 1993-1996
period, the Ministry brought five criminal charges against its employees
for extortion of testimonies.
V. INFORMATION ON ARTICLES 2-16 OF
provisions of article 2 of the Convention have been basically implemented
and consistently carried out in the legal system of Yugoslavia.
Constitutional and legal provisions quoted in this report, as well
as action taken by the competent authorities as described in this
report, clearly show the measures taken for the purposes of protection
against torture and/or degrading punishment and treatment.
Constitution of Yugoslavia as well as the relevant regulations contain
provisions relating to the expulsion and extradition of Yugoslav
citizens and aliens. We quote the following constitutional and legal
17, paragraph 3 of the Constitution of Yugoslavia:
"A Yugoslav citizen
may not be deprived of his citizenship, deported from the country
or extradited to another State."
66 of the Constitution of Yugoslavia:
"Aliens in the Federal
Republic of Yugoslavia shall enjoy the freedoms and the rights
and duties laid down in the Constitution, federal law and international
"An alien may be
extradited to another State only in cases provided for under
international treaties which are binding on the Federal Republic
"The right of asylum
shall be guaranteed to foreign citizens and stateless persons
who are being persecuted for their advocacy of democratic views
or for participation in movements for social or national liberation,
for the freedom and for the rights of the human personality,
or for scientific or artistic freedom."
70 paragraphs 1 and 2, of the Criminal Law of Yugoslavia:
"A court may pronounce
expulsion from the territory of the Federal Republic of Yugoslavia
to an alien for a period ranging from 1 to 10 years or for ever.
"In assessing whether
to pronounce the measure mentioned in paragraph 1 of this article
the court shall take into account the motives behind the criminal
offence, the manner of its commission and other circumstances
pointing to the undesirability of the alien's further stay in
the Federal Republic of Yugoslavia.
"The agencies of
government administration, in particular the court, the agencies
of the police and the Federal Ministry for Foreign Affairs,
shall have jurisdiction in connection with the provisions of
this article of the Convention."
addition to the already quoted constitutional provisions, in particular
those set out in articles 22 and 25 of the Constitution, as well
as legal arrangements, in particular those of articles 189, 190
and 191 of the Criminal Law of Yugoslavia and article 10 of the
Law on Criminal Procedure, we here wish to also point to the following
provisions of the Law on Criminal Procedure:
218, items 7 and 8:
be conducted in such a manner as to fully respect the personality
of the defendant.
"The use of force,
threats or similar means with a view to obtaining a statement
or a confession from the defendant shall be prohibited."
259, paragraph 3:
or the giving to the defendant or a witness medicaments so as
to affect their will in making statements shall not be allowed."
regulations contain further elaboration of the Principles of Medical
Ethics relevant to the Role of Health Personnel, particularly Physicians,
in the Protection of Prisoners and Detainees against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
criminal legislation of Yugoslavia sanctions as punishable any aiding
and abetting of criminal offences that are the subject of this report.
basic principles of the validity of the Yugoslav criminal legislation
are regulated by article 104 of the Criminal Law of Yugoslavia:
"The Yugoslav criminal
legislation shall be valid for anyone who commits a crime in
the territory of the Federal Republic of Yugoslavia. The Yugoslav
criminal legislation shall also be valid for anyone who commits
a criminal offence on a domestic shipping vessel, regardless
of where the vessel was at the time of the commission of such
an offence. The Yugoslav criminal legislation shall also be
valid for anyone who commits a criminal offence in a domestic
civilian aircraft while in flight or a military aircraft regardless
of where the aircraft was at the time of its commission."
from this, the criminal legislation of Yugoslavia shall also be
valid for anyone who commits abroad a criminal offence falling within
the group of criminal offences against the constitutional order
and security of the Federal Republic of Yugoslavia. The criminal
legislation of Yugoslavia is likewise applicable to citizens of
the Federal Republic of Yugoslavia when they commit any other criminal
offence abroad, except those from the group of criminal offences
against the constitutional order and security of the Federal Republic
of Yugoslavia, if found in the territory of the Federal Republic
of Yugoslavia or extradited to it.
criminal legislation of Yugoslavia shall further be applicable to
any alien who commits a criminal offence affecting the Federal Republic
of Yugoslavia or any of its citizens outside the territory of Yugoslavia
even when the offences concerned do not fall into the group of criminal
offences against the constitutional order and security of the Federal
Republic of Yugoslavia, and when such a person is found in the territory
of the Federal Republic of Yugoslavia or extradited to it.
regard to this article of the Convention, apart from the provisions
of the Law on Criminal Procedure relating to: a complaint about
a criminal offence (arts. 148-181), measures to ensure the defendant's
presence (arts. 182-205) and investigative activities (arts. 206/260),
which have already been discussed at length in this report, we point
here in particular to articles 522 and 523 of the Law on Criminal
Procedure. According to the provisions of these two articles, if
a criminal offence is committed in the territory of Yugoslavia by
an alien with residence in a foreign country, then all criminal
documents may be ceded to that State for the purpose of criminal
prosecution and trial, if that State has nothing against it. The
decision to cede the documents shall be taken by the public prosecutor
prior to opening the investigation or by the investigating judge
in the course of investigation, or by the court chamber prior to
the opening of the main hearing. To cede the documents may be allowed
in respect of criminal offences punishable by up to 10 years in
prison and in respect of traffic offences. If the injured party
is a Yugoslav citizen, the ceding of documents shall not be allowed
if he expresses himself against it. If the defendant is detained,
the State involved shall be requested to inform within 15 days whether
it intends to prosecute or not. In practice, this most often applies
to traffic offences.
52. A foreign
country may likewise request that Yugoslavia prosecute a Yugoslav
citizen or person residing in Yugoslavia and in doing so address
the relevant documents to the competent public prosecutor in whose
territory the said person is residing.
have mentioned on a number of occasions in this report the main
constitutional and legal provisions governing the equality of all
before the law and the applicability of the Yugoslav criminal legislation
to all who have committed a criminal offence in the territory of
the Federal Republic of Yugoslavia. Apart from the earlier quoted
constitutional arrangements (art. 17, para. 3 and art. 66, paras.
1 and 2 of the Constitution), an important principle in the field
of extradition is that the extradition of defendants or of convicts
is requested and effected pursuant to the provisions of the Law
on Criminal Procedure, unless otherwise regulated by international
issue of extradition of defendants and convicts is regulated by
the Law on Criminal Procedure (arts. 524-540). The main extradition
requirements are the following: that the person whose extradition
is requested is not a citizen of Yugoslavia; that the offence for
which extradition is requested was not committed in the territory
of Yugoslavia, against it or against any of its citizens; that the
offence for which extradition is requested is a criminal offence
both under domestic law and under the law of the State in which
it was committed; that under the domestic law the criminal prosecution
has not fallen under the statute of limitations or that the execution
of the punishment has not fallen under the statute of limitations
before the alien was detained or the defendant interrogated; that
the alien whose extradition is requested has not already been sentenced
for the same offence by a domestic court or that a domestic court
has not acquitted him for the same offence in a legally binding
decision or that no criminal proceedings have been instituted against
the alien on account of the same offence committed against Yugoslavia;
that the legal identity of the person whose extradition is requested
has been established and that there is a sufficient body of evidence
to serve as the grounds for the assumption that the alien whose
extradition is being requested has committed a particular criminal
offence or that there is a binding court decision in that connection.
procedure for the extradition of accused or convicted aliens is
instituted at the request of a foreign State. The request should
be appropriately documented and submitted through diplomatic channels.
Extradition of an alien is prohibited if the alien enjoys the right
of asylum in Yugoslavia and/or if he is held responsible for political
or military criminal offences (article 533, item 2, of the Law on
(as per articles 524-540 of the Law on Criminal Procedure) is effected
under the provisions of that law unless otherwise stipulated by
an international treaty. In Yugoslavia bilateral agreements on extradition,
signed with the following countries, are in force: Albania, Algeria,
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, France,
Germany, Greece, Hungary, Iraq, Italy, Mongolia, Netherlands, Poland,
Romania, Russian Federation, Slovakia, Spain, Switzerland, Turkey,
Ukraine, United Kingdom of Great Britain and Northern Ireland, United
States of America.
of international criminal-legal assistance is regulated by the Law
on Criminal Procedure (arts. 517-523) and is carried out pursuant
to the provisions of this Law, unless otherwise stipulated by an
international treaty. In Yugoslavia bilateral agreements regulating
the provision of legal assistance in criminal matters are in force
with the following countries: Albania, Algeria, Austria, Belgium,
Bulgaria, Cyprus, Czech Republic, France,
Greece, Hungary, Iraq, Italy, Mongolia, Netherlands, Poland, Romania,
Russian Federation, Slovakia, Spain, Switzerland, Turkey, Ukraine,
United Kingdom of Great Britain and Northern Ireland, United States
addition to pointing continually to the constitutional and legal
provisions banning torture and ill-treatment or degrading treatment
and punishment, the competent authorities conduct frequent checks
and analyse the behaviour of the members of the police and the army,
medical personnel, as well as the persons discharging public functions
or those who are in contact with detainees or prisoners. For example,
the personnel of the Ministry of the Interior of the Republic of
Serbia is acquainted with and informed about the ban on ill-treatment
or behaviour involving certain elements of torture in two ways:
by means of professional education, training and additional training
and by means of everyday work and treatment. In the course of education
at the secondary and post-secondary schools for internal affairs
and at the Police Academy, at seminars and courses, particular attention
is paid to professional training aimed at correct and legal treatment,
especially in the case of the use of coercive measures and certain
other powers. In addition, all employees of this Ministry, as part
of their compulsory professional education, receive additional training
in correct and legal treatment and use of powers. The employees
of this Ministry are acquainted with all abuses upon the completion
of the relevant disciplinary or criminal procedures for the sake
of prevention and control of such practices. Further to this, when
allocating tasks, chief officers keep giving the necessary instructions
on a daily basis.
take this opportunity to point as well to the republican laws and
by-laws regulating the conduct of officials towards detainees. Namely,
officials empowered to use coercive means may only do so under precisely
prescribed conditions. Such officials must take an appropriate professional
exam and are checked constantly and directly in relation to their
knowledge regarding the use of these powers. Apart from individual
and rather rare cases of overstepping of these powers in the use
of coercive means, as is also the case with police officers, there
have not been any cases of torture and/or ill-treatment, or degrading
treatment and punishment of detainees.
practices relating to interrogations have already been dealt with
in this report and we shall therefore discuss here the legal framework
for the keeping and treatment of arrested, detained or incarcerated
persons, as well as the practical arrangements.
relevant republican laws regulating the execution of criminal sanctions
lay down the right of convicted, detained and the criminally punished
persons to receive humane treatment and be treated in a manner which
ensures respect for their personality and dignity and maintains
their physical and mental health. The convict is treated in a manner
which is in harmony with his personality to the maximum possible
extent while due account is given to the achieved degree of his
re-education and resocialization. Attempts are made to develop a
feeling of personal responsibility in the convict and to encourage
him to re-educate himself.
accommodation of convicts is in compliance with hygienic requirements
and the premises are heated. Each convict has at least 8 m2
of space in the premises where they are accommodated. Medical check-ups
are a regular practice as well as checks of food and water.
basic rules of conduct of the competent authorities in terms of
their obligation to open an urgent and impartial investigation as
well as to carry out investigating practices are regulated in the
Law on Criminal Procedure (arts. 206-260), as has already been explained
in this report.
right of appeal is a constitutional right. The Constitution stipulates
that everyone shall be guaranteed the right of appeal or any other
legal remedy against a decision concerning his rights or his legal
interests. The use of appeal as a legal remedy in criminal affairs
is regulated in the Law on Criminal Procedure (arts. 359-399).
basic principles the court follows in connection with an appeal
are as follows: an appeal is as a rule made against a first-instance
judgement (other possibilities include an appeal against a ruling,
against a second-instance judgement as well to the Federal Court);
an appeal is to be submitted by an authorized person as a rule within
15 days from the day of the communication of the judgement; a duly
made appeal postpones the execution of a judgement; an appeal must
contain an elaborated basis for the refutation of the judgement
(relevant violations of the provisions of the Criminal Procedure
Code, a violation of the Criminal Code, incorrect or incomplete
facts); when acting upon an appeal, the court faces the ban reformatio
regard to the protection of the right to submit an appeal, we wish
to point first of all to the general commitment set out in the Constitution
to the effect that the freedoms and rights recognized and guaranteed
by the Constitution, including the right of appeal, enjoy court
protection. The competent authorities, the police in particular,
are also obliged to provide physical protection to citizens, especially
in cases when they establish that persons who have submitted an
appeal or made a statement have been subjected to threats, intimidation
and the like.
27, paragraph 4, of the Constitution stipulates the following: "A
wrongfully convicted or wrongfully detained person shall be entitled
to rehabilitation and to compensation for damages from the State,
and to other rights as envisaged by federal law."
Constitution further stipulates in article 123 the following:
"Everyone shall be
entitled to compensation for damages sustained as a result of
unlawful or improper actions of an official of a State agency
or organization which exercises public powers, in conformity
with the law.
"The State shall
be obliged to pay compensation for damages.
"The injured party
shall have the right, in accordance with the law, to demand
compensation directly from the individual responsible for the
addition to the above constitutional provisions, one of the chief
principles of the Law on Criminal Procedure is that whoever has
been wrongfully convicted of a criminal offence or wrongfully detained
shall be entitled to rehabilitation, to compensation for damages
and to other rights spelled out by law. This principle is reflected
in the provisions of the Law on Criminal Procedure (arts. 541-549)
which lay down unequivocally that a person is entitled to compensation
for damages on account of any mistake or illegal work of State agencies.
In such cases the provisions of the Law on Criminal Procedure (art.
546) and the Criminal Code of Yugoslavia (art. 91) further envisage
the right to rehabilitation as well.
take this opportunity to point once more to the provisions of article
25, paragraph 2 of the Constitution and article 190 of the Criminal
Code which were referred to earlier in this report. A ban on the
extortion of statements from the defendant, witnesses, expert witnesses
and others as well as a ban on the use of such evidence is also
envisaged by republican laws (article 65 of the Criminal Law of
Serbia and article 47 of the Criminal Law of Montenegro). The same
subject is covered by the Law on Criminal Procedure (in art. 218,
item 8) which has already been cited in this report.
extorted statement may be used, in accordance with the general principles
of Yugoslav criminal legislation, only as the basis for the laying
of charges by anyone from whom a statement has been extorted and
who may on that basis sue the official who has extorted the statement.
adoption of regulations, documents or general or individual enactments
introducing cruel, inhuman or degrading treatment or punishment
shall be in contravention not only of the Constitution and the law
but of the overall nature and spirit of the Yugoslav legislature
and the legal system as a whole. This cannot happen even by means
of a "play on words" whereby the existing terms would be replaced
by certain other words. In any case, the existing criminal legislation
of Yugoslavia never makes any mention of the term "torture", regulating
and laying down instead protection against torture and ill-treatment,
i.e. degrading treatment and punishment.
long practice of all competent agencies in Yugoslavia (the courts,
agencies of government administration, the police) shows that there
has not been any ill-treatment, i.e. acts involving certain elements
of torture, but that there have only been individual cases of overstepping
of powers and that in such cases appropriate legal and sub-legal
measures have been undertaken by the said agencies.