The Human Rights Committee has considered
the initial report of Serbia and Montenegro on how that country implements
the provisions of the International Covenant on Civil and Political Rights.
Introducing the report, Jelena Markovic,
the Assistant Minister at the Ministry of Human and Minority Rights of
Serbia and Montenegro, said that with the emergence of democratic authorities
in October 2000, Serbia and Montenegro began to put an end to all forms
of human rights violations, to abrogate all discriminatory laws and legislation
contravening international law, to accede to international organizations
and to actively cooperate with them in the area of human rights protection.
Despite the aforementioned positive steps and progress, Ms. Markovic said that the situation of human rights in Kosovo and Metohija remained grave. The violations of human rights, in particular of minorities, were systematic and permanent. Bearing in mind that the international administration had not done enough in terms of protection of human and minority rights, Serbia and Montenegro was of the opinion that the Committee should call upon the United Nations Interim Administration Mission in Kosovo (UNMIK) to produce a report, which would be an integral part of Serbia and Montenegro's report under consideration.
Committee Experts congratulated the State party for the comprehensive and detailed report. One Expert said that the delegation's suggestion that UNMIK be asked to present a report to the Committee on the situation in Kosovo was interesting. Experts also raised the issue of criticism of Serbia and Montenegro's cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY).
At the end of the consideration of the report over three meetings, Abdelfattah Amor, the Chairman of the Committee, praised the quality and seriousness of the report as well as the written replies. He highlighted the State party's abolition of capital punishment which the Committee welcomed and commended. He said the delegation had spoken about the draft law on discrimination and the Committee hoped that it could be passed by the end of the year to help to contain discrimination and if possible to totally abolish discrimination against the Roma, displaced persons and women.
Among other things, Mr. Amor said that there still remained impunity for many people in Serbia and Montenegro who had committed crimes and had violated the provisions of the Covenant. This matter could be discussed in legal or political terms, but there remained the ethical dimension of criminals who should have been prosecuted and victims who had not received redress. Concerning Kosovo, the Chairman said he took careful note of the proposal of the delegation in connection with an individual report on Kosovo. The State party had to take the necessary measures to provide the Committee with information on the situation of human rights in Kosovo. As for cooperation with the ICTY, cooperation with the tribunal must be given beyond political consequences.
The 17-member delegation of Serbia and Montenegro included representatives of the Ministry of Foreign Affairs, the Ministry of the Interior, the Supreme Court of the Republic of Serbia and the Superior Court of the Republic of Montenegro, the Ministry of Justice, and the Ministry of Human and Minority Rights.
The Committee will issue its formal, written conclusions and recommendations on the report of Serbia and Montenegro towards the end of its session which will conclude on 30 July. The country is among the 152 States parties to the Covenant and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty.
The Committee will reconvene at 10 a.m. on Thursday, 22 July, to consider the situation in the Central African Republic in the absence of a report.
Report of Serbia and Montenegro
The initial report of Serbia and Montenegro (CCPR/C/SEMO/2003/1) outlines the implementation of the provisions of the International Covenant on Civil and Political Rights on an article-by-article basis. It states that Serbia and Montenegro is determined to fulfil its international obligations, which holds particularly true for the Dayton Agreement to which a specific contribution is being made by accelerated development of relations with Bosnia and Herzegovina, and for overcoming the problem of Kosovo and Metohija. Although it is not satisfied with the position of the non-Albanian population in Kosovo and Metohija, Serbia and Montenegro is resolved to cooperate constructively with international representatives.
The report also states that Serbia and Montenegro is ready to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia (ICTY). Very significant steps have been taken thus far. The Law on Cooperation with the Tribunal has been passed and the former President of the Federal Republic of Yugoslavia, Slobodan Milosevic, and a number of other indicted persons have been handed over to the ICTY.
By United Nations Security Council resolution 1244, Kosovo and Metohija has been placed under the interim administration of the United Nations. Serbia and Montenegro has been a firm advocate of a consistent implementation of this resolution. Serbia and Montenegro is ready for cooperation with the United Nations Interim Administration Mission in Kosovo (UNMIK) and dialogue with the provisional organs in Kosovo and Metohija. However, UNMIK puts on the agenda for negotiations only technical issues and brings decisions most often without consultations with the organs for Serbia and Montenegro or refuses to respect objections. The Albanian politicians from Kosovo and Metohija do not show readiness to commence dialogue, on the pretext that time for that has not yet arrived.
Introduction to the Report
JELENA MARKOVIC, Assistant Minister at the Ministry of Human and Minority Rights of Serbia and Montenegro, said the report covered a very complex period in the history of the country, marked by ethnic conflicts, isolation, broken relations with the neighbours and the international community, internal instability and constitutional reconstruction. For that reason, the report could be divided into two periods, the period until 2000, and the period after the democratic changes in Serbia in October of that year. The cut-off point was also amplified by the fact that in the year 2000, the building of democratic institutions and democratic society had begun, and that in the field of human rights protection, a u-turn had been made, as well as the first tangible breakthroughs. For the period before 2000, one could say that it was a period of systematic violations of human rights. With the emergence of the democratic authorities, they began to put an end to all forms of human rights violations, to abrogate all discriminatory laws and legislation contravening international law, to accede to international organizations and to actively cooperate with them in the area of human rights protection.
Ms. Markovic said that the country had acceded to the ten basic United Nations human rights instruments, including the International Covenant on Civil and Political Rights and both its protocols in 2001. Significant changes had been made in domestic legislation. This referred primarily to the adoption of the Charter on Human and Minority Rights and Civil Liberties which governed, at the highest level and in a uniform manner, all fundamental human rights. The institution of the Ombudsman was established in Vojvodina in 2002 and in Montenegro in 2003 and was an additional mechanism for the protection of human rights. Another of the discriminatory and restrictive laws, the Electoral Law of the Republic of Serbia, was amended in early 2004.
Despite the aforementioned positive steps and progress, Ms. Markovic said that the situation of human rights in Kosovo and Metohija remained grave. The violations of human rights, in particular of minorities, were systematic and permanent. There were no security conditions in place for the return of Serbs and other non-Albanians, freedom of movement was limited, access to court was severely restricted and there were more than 11,000 claims for damages for destroyed property filed since the arrival of the international forces. Bearing in mind that the international administration had not done enough in terms of protection of human and minority rights, Serbia and Montenegro was of the opinion that the Committee should call upon the United Nations Interim Administration Mission in Kosovo (UNMIK) to produce a report, which would be an integral part of Serbia and Montenegro's report under consideration.
In conclusion, Ms. Markovic said that in spite of legislative reform and positive practice, Serbia and Montenegro continued to face major problems. They were mostly a result of the legacy of the past and a long-standing practice of violations of human rights. The democratic authorities in Serbia and Montenegro were committed to international integration, which implied full cooperation with international organizations and institutions, including the International Criminal Tribunal for the Former Yugoslavia ICTY.
Response to Questions on the Constitutional and Legal Framework for the Implementation of the Covenant
In response to a question on whether the provisions of the Covenant were invoked before the courts, the delegation said that the legal system allowed for the courts to directly apply provisions of international agreements, provided that they had been ratified. International law had supremacy over domestic law. However, courts preferred to pass their decisions based on domestic laws. In civil matters, courts directly invoked international provisions. In criminal matters, there was almost no implementation of provisions of international agreements. However, these provisions were indirectly applied. The State wished to rectify the mistakes of the past, and persons had the right to demand the re-opening of cases; even if the person was dead, his family could make this demand. Serbia and Montenegro was aware of its mistakes from the past.
The delegation said that every person had the right to a fair trial during a reasonable time, which was a constitutional right, and Serbia and Montenegro was trying to apply this.
Concerning access of victims to accessible, effective and enforceable remedies, the delegation said that in the legal system of Serbia and Montenegro, victims were entitled to accessible and effective remedies regarding any violations. With regards to the criminal procedure, no one could be deprived of liberty without a court deciding on this. Police detention could not continue for more than 48 hours without the detained person appearing before a court. A defendant was entitled to an attorney. If the defendant gave a statement without the presence of an attorney, no court decision could be based on this statement. The right to legal remedy was a constitutional right.
The institution of the Ombudsman had jurisdiction over violations of human rights and took steps to eliminate them. Among its competencies, the Ombudsman could launch action or start cases before the Constitutional court and he could visit persons deprived of liberty and provide recommendations. The Ombudsman could also seek reception by the President, the head of the Parliament, and other senior members of Government, and they were obliged to receive him and discuss the issues he wished to raise.
With regards to the issue of ensuring that allegations of human rights violations were investigated promptly, the delegation said that the Republic of Serbia passed a law in June 2003 on the responsibility of the violation of human rights. This law was completely in accordance with the provisions of the International Covenant on Civil and Political Rights. Through this law, conditions had been created for establishing responsibility for violations of human rights dating back to 1976 when the Covenant came into effect. Concerning compensation, the country had laws and regulations to provide compensation to victims whose rights had been violated. As for war crimes, the State had passed regulations regarding war crimes. A special council for war crimes had been formed. Serbian legislation did not put up any obstacles to try war crimes, and the State had the expert manpower to do so.
To initiate proceedings before the war crimes court, there was a special detention unit which served exclusively for the detention of persons indicted or investigated for war crimes. All efforts had been carried out with the basic aim of allowing the legal system of the State to be raised to allow it to take over all court proceedings from the ICTY. The Government and other competent authorities had assessed that the legal system was capable of doing so. Since the establishment of the war crimes court, proceedings were continuing in 16 cases. The trials had been completed in 7 cases and the defendants had been sentenced to prison terms. The delegation specifically noted the trial of four policemen who had abducted 17 members of the Bosniak minority and had later tortured and killed them. Three perpetrators had been sentenced to 20 years imprisonment and a fourth had been sentenced to 15 years.
The office of the Attorney General had the mandate to look into allegations of violations of the rules and abuse of power by individual police officers. From 2001 to 2002, there had been 260 charges brought against police officers for overstepping their authority. The Ministry of the Interior had acted upon 20 final and absolute judgements. The other proceedings were still pending.
The Commission on Truth and Reconciliation which was created in 2001 was no longer in existence after the State Union of Serbia and Montenegro was constituted on 4 February 2003. Its duties had not been transferred to any other authorities. None of the projects before it had been completed. There was discussion of creating an independent Commission for Truth and Reconciliation. The Kosovo Albanians had not expressed readiness to be involved in the process before the Commission was terminated.
With regards to another question, the delegation said that responsibility of the implementation of the Covenant in Kosovo and Metohija lay with the international community which was in charge of the United Nations Interim Administration Mission in Kosovo (UNMIK). In the past five years, the provisions of the Covenant had been abused in Kosovo and Metohija. A report on human rights in the province had spoken about legal chaos there. Serbia and Montenegro was ready to cooperate on the implementation of the Covenant in Kosovo and Metohija. The Government was not saying this only for the protection of the human rights of the non-Albanian population, it was necessary to ensure the civil rights of all in the area.
In less than one month from June to July in 1999, with no guilt whatsoever, more than 240,000 Serbs and other non-Albanians had been evicted from their homes in Kosovo and Metohija. At least 160 non-Albanians had been murdered, more than 400 had disappeared, and more than 1,000 monasteries and churches had been pillaged or burnt or destroyed.
In response to a question on cooperation with the ICTY, the delegation said that relations between Serbia and Montenegro and the Tribunal came within the framework of respect for human rights. This framework took into consideration that the relationship had prime political consequences and a direct impact on democratisation in Serbia and Montenegro. Almost all the indicted persons had been handed over after October 2000. Among those who had been encouraged to hand themselves over were the former President and high-ranking officials of the army and the State. In the past year, there had been positive developments. Nine indicted persons had been sent to The Hague in 2003. Concerning access of the ICTY to documents and archives, especially in the case of Slobodan Milosevic, the ICTY had not been granted general access to all archives. It had to submit specific requests and the Government responded to them within a limited frame time. In this case, the Government had received more than 7,000 requests for documents by the office of the General prosecutor. Cooperation with the ICTY was an ongoing and long-term process. Serbia and Montenegro respected the work of the tribunal and would fulfil all its obligations towards the court. So far, Serbia and Montenegro had handed over 24 indicted persons and it had issued arrest warrants for another 14 persons.
Commenting further on cooperation between Serbia and Montenegro and the ICTY, the delegation reiterated that the issue of cooperation with the ICTY was a political issue par excellence in the country. Since 2003, Serbia had gone through a number of very important political developments. Now, the new Government was reconfirming the intention to continue cooperation with the tribunal. Concerning the indictments against four generals, including one who was outside the country, the transfer procedures had been put in motion. Also, 200 persons had been released from their duty to observe confidentiality so that they could cooperate with the Tribunal.
In response to a question on derogations initiated by the Serbian Government under the state of emergency declared following the assassination of the Serbian Prime Minister on 12 March 2003, the delegation said that the Constitutional Court of Serbia had reviewed the constitutionality of this state of emergency, especially concerning extending police detention without a court order to 30 days, and had declared that parts of the state of emergency were not in order with the Constitution and law. Practically, this meant that all persons who had been affected by this order had the right to compensation. The Ministry of Justice had decided that a commission should be formed and that adequate compensation would be offered. Until now, 75 cases had been received, four cases had been compensated and the others were still being considered.
Questions and Responses on Non-discrimination and Equality Between the Sexes
Asked about women's rights, the delegation said that in local elections, at least 30 per cent of the candidates had to be women. Experimental centres had been established in local communities since 2002 on women's issues and there were now 35 focal points. AP Vojvodina was the most advanced on the issue of women's rights.
In response to another question on guaranteeing equal treatment of men and women, the delegation said that the whole legal system of Serbia and Montenegro lay on the equality of men and women, excluding any type of discrimination. However, there were certain limits with regards of the State upholding the principles of gender equality, especially since an employer had the right to choose who to hire.
Questions and Comments Raised by Committee Experts
Committee Experts congratulated the State party for the comprehensive and detailed report. Among other things, one Expert said that the Ombudsman's report said that Kosovo was a human rights black hole in Europe. It was the responsibility of the Human Rights Committee to look into this issue. Another Expert said that it was an interesting suggestion that UNMIK be asked to present a report to the Committee on the situation in Kosovo.
One Expert saluted cooperation between Serbia and Montenegro with the ICTY, adding that there was still criticism which needed to be addressed. A series of United Nations officials had recently decried consistent failure of Serbia and Montenegro to carry out its obligations, adding that the level of cooperation with the ICTY had declined.
Response to Questions on the Right to Life, Prevention from Torture, Treatment of Detainees and of the Judiciary
In response to a question on the immediate application of the provisions of the Covenant in domestic legislation, the delegation said that the Constitution Charter related to civil rights had taken provisions from the European Convention for Human Rights. All these provisions, which were also part of the International Covenant on Civil and Political Rights, were embedded in the system of Serbia and Montenegro. As for effective legal remedy, the country had legal mechanisms regarding effective remedies.
The Court of the State Union was created two weeks ago as the successor of the Federal Court and the Supreme Court. So far, it had taken no decisions. Its jurisdiction was over the infringement of rights committed at the level of the State Union.
Asked if the ruling of the Constitutional Court that the state of emergency was not consistent with law and order could affect the trials of members of organized crime, the delegation said that since the evidence given in certain trials concerning organized crime was given in the presence of an attorney, it could be used in a court.
With regards to a question on extradition of persons, the delegation said that Serbia and Montenegro had abolished the capital punishment and it stipulated that if a person was to be extradited to a country which had the capital punishment, that person must not face the death penalty. Concerning the witness protection programme, Serbia and Montenegro did not have such a programme because it was very expensive. However, the authorities were drafting such a programme. The Ministry of the Interior gave certain protection to witnesses. Serbia and Montenegro would also host an international gathering on the issue of witness protection programmes soon. On another issue, the delegation said that there was no statute of limitation concerning war crimes.
Further, concerning the suggestion that UNMIK produce a report, the delegation said that while its members understood the legal complexity of the issue, this should not discourage the production of such a report. At the European Union, UNMIK delegations had participated in meetings on behalf of Kosovo but on political issues, this issue dealt with legal issues. The delegation would try to give more suggestions to the Committee on how this legal issue can be resolved or addressed.
Concerning the discovery of mass graves of Kosovans in Batajnica and two other sites outside of the territory of Kosovo and Metohija, the delegation said that the authorities had undertaken a string of tactical measures to protect these sites. In all, 830 bodies had been found and exhumed and identification was underway. So far, in this very complex process, the mortal remains of 76 Albanians had been identified. The delegation also pointed out that a lot of mass graves of non-Albanians had been discovered in Kosovo and Metohija. Serbia and Montenegro had received the mortal remains of only 80 Serbs.
In response to a question on the implementation of the new Code of Criminal Procedure and allegations of ill-treatment by law enforcement officials, in particular allegations of torture of detainees by security forces in connection with operation saber, the delegation said that according to the new provisions, a suspect had the right to the presence of an attorney from the first moment of interrogation, not within the first 48 hours. Thus, the possibility of the application of coercion and force to get a confession was eliminated. This right had been suspended by the now-proclaimed unconstitutional measure during the state of emergency.
Concerning indiscretions carried out during operation saber, the delegation noted that the assassination of the first democratically elected Prime Minister of Serbia in 2003 had been a shock to all democratically inclined persons and to the international community. A total of 11,364 persons were arrested. Eleven per cent of them were immediately released. The others were involved in criminal activities. During this period, several dangerous organized crime groups were disassembled, and there was a significant decrease in criminal cases.
As for the percentage of cases of torture during operation saber, the delegation said that Amnesty International said that it had discovered that torture was carried out against 16 persons. The Ministry of the Interior had investigated the cases and had established that there had been means of coercion applied in six cases. The office of the inspector-general had ordered that the police officers responsible should be identified as soon as possible and that appropriate punitive measures should be eliminated.
With regards to a question on alleged police brutality against the Roma, the delegation said that all citizens had equal rights and responsibilities and were equal under the law. Strong measures were taken against law enforcement officers who breached the law. However, no cases of brutality against the Roma minority had been raised; such allegations were arbitrary and unfounded. There had been some attacks by skinhead groups on Roma some years ago. Efforts had been intensified to improve the relations with the Roma. The basic problem affecting the Roma minority displaced from Kosovo and Mitohija in Serbia and Montenegro was the lack of means to create adequate collective accommodation for many of them. The number of attacks against the Roma was not high and was not alarming compared to the number of Roma residing in the Republic of Serbia. Only three cases against Roma had been found to involve instigating racial hatred against that minority.
In further responses to questions on the status of the Roma in Serbia and Montenegro, the delegation said that discrimination against the Roma was no longer systemic in the country. Indeed, there were now positive discrimination measures being taken to help Roma. Attacks against the Roma were now reported and processed, and there was a significant decrease in the number of these attacks. In 2003 and 2004, there were 67 reported attacks against Roma. Twenty-four criminal charges were brought by the Ministry of the Interior. Nineteen of the cases involved skinheads, and 19 concerned police officers.
In response to another question, the delegation said that the judiciary was independent from the executive branch.
Concerning violence against women, the delegation said that this issue had been a taboo until 1991. Thanks to the activities of non-governmental organizations, the public in Serbia and Montenegro was now more aware of this issue as a problem of the highest urgency. There was a need to change legislation on this issue. In 2002, legislation had been changed to ensure the criminalization of domestic violence, including rape within marriage.
Response to Questions Concerning the Elimination of Slavery and Servitude
In response to a question on human trafficking, the delegation said that in February 2001, a coordinator for anti-trafficking had been created. In 2002, human trafficking had become defined as a separate crime and the perpetrator could be sentenced to up to 15 years. In the same year, national teams to combat human trafficking were created. A new national action plan against human trafficking was being drafted, with the participation of all national team members, with a special section on child trafficking. Shelters provided secure accommodation and medical and legal aid to victims of trafficking. The delegation commended the efforts of non-governmental organizations in this field and praised governmental cooperation with them. Public awareness of this problem was not at an adequate level and one non-governmental organization had carried out a public awareness campaign called "open your eyes".
Response to Questions on Freedom of Movement
In 1999, more than 240,000 Serbs and other non-Albanians had left Kosovo and Metohija because of Kosovan violence against them. These internally displaced persons had equal status with other citizens of the Republic of Serbia. Regarding the absence of respect for human rights in Kosovo and Metohija, Serbia and Montenegro had serious problems concerning the return of these internally displaced persons. Thousands of their houses had been damaged or destroyed or had been unlawfully occupied. As for internally displaced persons who were not citizens of Serbia and Montenegro, they had the right to employment and education and were in no way discriminated against.
Citizenship of Serbia and Montenegro was given to persons who were over 18 and who had been residing in the country for at least 10 years, or to persons who had married a national and had been residing in the country for at least five years. There was no possibility for internally displaced persons living in the country to acquire citizenship.
Response to Questions on Freedom of Religion
In response to a question on conscientious objection, the delegation said that conscientious objection was provided for in Serbia and Montenegro after the legal system had been harmonized with the European Union laws regarding this issue in 2002. Persons under the legal obligation to carry out military service were offered non-military alternatives. Any pacifists or others who did not want to carry arms for other reasons had the right to request conscientious objections. There was no need for the person to provide evidence, it was enough that they state their reasons and state where they would like to serve. Increasing numbers of persons have been requesting conscientious objection, with only one rejection. Conscientious objection was revoked if that person attacked another with a weapon in cold blood.
Response to Questions