Experts of the Committee against Torture Commend Montenegro on the Adoption of a Law against Refoulement, Ask about War Crimes and Penalties for Torture
The Committee against Torture this afternoon concluded its consideration of the third periodic report of Montenegro on its efforts to implement the provisions of the Convention against Torture, with Committee Experts commending Montenegro for the adoption of a law that protected persons in need of international protection against refoulement, and asking about the investigation of war crimes and low penalties in the Criminal Code for torture.
Ana Racu, Committee Vice-Chairperson and Country Rapporteur for Montenegro, commended Montenegro for the adoption of the law on temporary and international protection of foreigners that protected persons in need of international protection against refoulement, in response to the Committee’s concluding observations in 2014.
Ms. Racu noted that since Montenegro became an independent State, Montenegrin State prosecutors had not initiated a single war crime investigation on their own initiative. One explanation for the ineffectiveness of war crimes investigations was the lack of political will. Could the State party provide its views and possible solutions that may speed up the process?
Existing penalties were not commensurate to the gravity of the torture offence and should be increased to encompass forms of torture that implied severe bodily injuries or fatal outcomes, Ms. Racu said. Imprisonment sentences were also still too low for torture. Did the State party intend to increase penalties for acts of torture and exclude the statute of limitations?
Responding to questions on war crimes, the delegation said that the Supreme Court had investigated cases of war crimes, and in one case had sentenced a perpetrator to 14 years in prison. In 2020, the prosecutor’s office collected evidence regarding war crimes committed against civilians, by nationals of Montenegro, and formed a case to prosecute perpetrators of war crimes. Meetings were held with specific information exchanged, helping to establish the facts of the case in relation to suspected war crimes.
Bojan Božović, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation, said that the maximum sentence for torture was 10 years, according to Montenegro’s Criminal Code. The delegation said that the penal policy needed to be stricter.
Presenting the report, Mr. Božović said that work was underway to amend the law on legal aid, which would recognise victims of torture as privileged beneficiaries of the right to legal aid. The law on amendments to the Criminal Code of Montenegro, adopted in December 2021, prescribed stricter penalties for criminal offences of domestic violence or extended family violence, with a body being set up to take special care of victims of this crime. To reduce overcrowding in prisons and improve the conditions of persons deprived of liberty, four new facilities were planned.
In concluding remarks, Mr. Božović said that Montenegro’s intention was to present steps forward that were made, while acknowledging that there was room for improvement. The State was looking forward to the Committee’s comments and suggestions and all future engagements.
Claude Heller, Committee Chairperson, said the Committee was grateful that the delegation was present in Geneva and had appreciated the constructive contributions provided in the dialogue with the Committee. There was still work to be done, but there was political will and there was a resolve to move forward, which was positive.
The delegation of Montenegro consisted of representatives from the Ministry of Justice, Human and Minority Rights; the Ministry of Finance and Social Affairs; the Ministry of the Interior; the Ministry of Health; the Directorate for Execution of Criminal Sanctions; the Supreme Court; and the Permanent Mission of Montenegro to the United Nations Office at Geneva.
The webcast of the Committee against Torture meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Committee against Torture’s seventy-third session can be found here.
The Committee will next meet at 10 a.m. on Friday, 29 April, to conclude its review of the third periodic report of Cuba (CAT/C/CUB/3).
Report
The Committee has before it the third periodic report of Montenegro (CAT/C/MNE/3).
Presentation of Report
BOJAN BOŽOVIĆ, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation, said that the draft law on amendments to the Criminal Code of Montenegro had been aligned with the 2018 United Nations recommendation received during the Universal Periodic Review, on the non-applicability of statutory limitations to torture and ill-treatment. It also introduced the mandatory imposition of the security measure of disqualification from a profession, activity, or duty, of officials punished for criminal offences of torture committed with wrongful intent. Work was under way to amend the law on legal aid, which would recognise victims of torture as privileged beneficiaries of the right to legal aid.
The law on amendments to the Criminal Code of Montenegro, adopted in December 2021, prescribed stricter penalties for criminal offences of domestic violence or extended family violence. A body was being set up to take special care of persons who had been victims of domestic violence. The right to legal aid could be exercised by nationals of Montenegro, as well as stateless persons legally residing in Montenegro and persons seeking asylum in Montenegro, among others. In March 2022, the Government of Montenegro adopted a decision granting temporary protection to persons from Ukraine for a period of one year, which covered those who could not return to Ukraine due to armed conflicts.
Mr. Božović said that Montenegro had established the Committee for Missing Persons to monitor, study and determine proposals for resolving the issue of missing persons from the territory of Montenegro in armed conflicts in the former Yugoslavia. This Committee had resolved several cases and engaged in the handover of the remains of 33 persons.
Police had resolved all attacks on journalists and media outlets in 2021, however, an issue remained regarding several old cases, with the Government investing additional efforts to have these cases resolved.
To reduce overcrowding in prisons and improve the conditions of persons deprived of liberty, four new facilities were planned. These included a special health facility, a multifunctional facility, a reception office and an open department, as well as the construction of a prison for the northern region of Montenegro in the municipality of Mojkovac. In the context of improving the living conditions of persons deprived of liberty, the Department for Juveniles was put into operation in 2020. In addition to accommodation facilities, it was furnished with equipment for cultural, sports and educational activities. This new juvenile prison met all international standards for the accommodation of juvenile delinquents.
Mr. Božović underlined that Montenegro had one of the most modern legislative frameworks for the protection of the rights of minority peoples, however, issues remained in terms of Roma exercising their rights. In September 2021, the Government of Montenegro had adopted the 2021-2025 Strategy for Social Inclusion of Roma and Egyptians in Montenegro and the corresponding action plan, to improve the socio-economic and legal position of Roma and Egyptians in Montenegro.
Mr. Božović concluded by saying that the delegation would do its best to provide the Committee with answers over the next two days, and would reach conclusions in the best interest of human rights in Montenegro.
Questions by Committee Experts
ANA RACU, Committee Vice-Chairperson and Country Rapporteur for Montenegro, asked about the definition of torture, noting that the definition was still too wide regarding perpetrators. Montenegro had failed to amend article 167 of the Criminal Code, despite the Committee’s previous observation. Existing penalties were not commensurate to the gravity of the torture offence and should be increased to encompass forms of torture that implied severe bodily injuries or fatal outcomes. Imprisonment sentences were also still too low for torture. Could the delegation indicate whether a definition of torture which covered all the elements contained in article 1 of the Convention had been adopted? Did the State party intend to increase penalties for acts of torture and exclude the statute of limitations?
Ms. Racu noted that there had been improvements in the way the Ombudsman was elected, but the way in which other members of the team were elected remained non-transparent. According to reports, the problem was caused by the role and position that the national preventive mechanism had within the Ombudsman office. How could the State secure the role of the national preventive mechanism within the Ombudsman’s office financially and concerning legal measures to define procedures in relation to the election of members to the national preventive mechanism? What specific budgetary resources had been allocated to the national preventive mechanism so that it could fulfil its mandate? What could be done to improve the process of implementation of the Ombudsman’s recommendations by the authorities?
Did the national preventive mechanism have unhindered access to all places of detention, including social care homes, psychiatric institutions and military units? How many monitoring visits had taken place over the past two years in the context of the pandemic? The access of non-governmental organizations during pandemic restrictions was a concern. Views on how to ensure these organizations access to places of detention would be welcome.
Ms. Racu said it was commendable that Montenegro had taken actions in fundamental legal safeguards, such as the electronic database “On-call service” established in all police stations; this was a positive development. However, there were still issues which needed improvement. Prisoners were not always afforded all fundamental legal safeguards from the very outset of their deprivation of liberty, including the right to have access to an independent lawyer and an independent doctor of their choice, and to contact a relative. Reports also stated that persons apprehended by the police faced a significant risk of ill-treatment. Although the Criminal Procedure Code stated that the police would take the person to the State prosecutor without delay, there was no sanction for police officers for delay and they abused this window of opportunity. Had progress been made in this regard?
It was noted that in the police stations visited by the delegation during its last visit to Montenegro, interviews with detained persons confirmed that they had had no access to a lawyer prior to being brought before a prosecutor. What was happening in this regard today? How was access to a lawyer currently being implemented? Was there an intention to amend the Criminal Procedural Code in order to provide that all persons had the right of access to an independent lawyer and to an independent doctor, and that the police should immediately bring the person to the State prosecutor upon arrest?
Ms. Racu said that on a positive note, Montenegro had amended the law on free legal aid, allowing more people to receive free legal aid. It had also introduced the category of victims of domestic violence as beneficiaries. Was free legal aid provided during administrative proceedings and throughout the criminal procedure, including at the initial stage of police custody?
Did the State party intend to provide for obligatory audio and video recording of all interviews that the police and State prosecutors conducted with citizens, regardless of whether they were being questioned in their capacity as suspects, witnesses or other?
Could relevant information about the State party’s efforts to ensure medical examination on admission in police detention units be provided? What were the internal provisions on reporting cases of possible torture and ill-treatment? Were there any specific registers for injuries or violent incidents? How many cases were reported during the reporting period? What were the results of the reported cases in terms of investigations, prosecutions and punishments?
The custody registers devoted a specific section to the notification of custody to a third party, signed by the detained person and the police custody officer. Was the implementation of this safeguard monitored and how did the monitoring take place? What measures had been put into place to ensure that detained foreign nationals who do not understand Montenegrin were provided with the services of an interpreter and were not requested to sign any statements or other documents without such assistance?
Ms. Racu said that the Committee would appreciate an update on the number of allegations on acts of torture and ill-treatment submitted to the investigative authorities in the last four years. Could the State party provide data on how many of these complaints had resulted in investigations, prosecutions and punishments?
Could the delegation comment on the discrepancy between the number of complaints and sentences handed down? According to research, in 2020 and 2021, at least 45 criminal complaints were filed with the State prosecutors against more than 90 police officers for criminal offences that could be classified as forms of torture and other ill-treatment. What measures were being taken to make sure that all complaints of acts constituting torture were investigated promptly, impartially and effectively, and that they were prosecuted and punished?
Was there a standard protocol for the investigation of torture and ill-treatment? Were the standards set out in the Istanbul Protocol in torture investigations observed and applied systematically? Were there clear regulations for disciplinary investigations within the National Police and the penitentiary system?
How was the work of the prosecutor's office assessed, including the training of prosecutors in investigating criminal cases of torture?
Relating to investigations of the cases that related to the armed conflicts in the former Yugoslavia, Ms. Racu asked about the measures taken to establish the truth and determine the fate and whereabouts of all the individuals reported missing? Since Montenegro became an independent State, Montenegrin State prosecutors had not initiated a single war crime investigation on their own initiative. However, Montenegro had become the first country in the region to dismiss a Minister for relativising genocide and had adopted two parliamentary acts condemning the Srebrenica genocide. One explanation for the ineffectiveness of war crimes investigations was the lack of political will. Could the State party provide its views and possible solutions that may speed up the process?
In 2011, Montenegro had ratified the United Nations International Convention for the Protection of All Persons from Enforced Disappearance that imposed some positive obligations for the State. However, enforced disappearance were still not criminalised as a separate criminal offense and Montenegro still did not have a law on missing persons. Was there an intention to amend the legislation to criminalise enforced disappearance as a separate criminal offense and to adopt a specific law on missing persons?
Ms. Racu said that the Committee commended the State party for the adoption in 2016 of the law on temporary and international protection of foreigners that protected persons in need of international protection against refoulement, in response to the Committee’s concluding observations in 2014. Were there standard operating procedures for effective referral of persons who expressed their intention to apply for asylum to the responsible authorities in line with the law? How did the State party ensure that the State Border Guards were properly trained and competent to assess applications?
What measures had been taken by the Government to improve the procedure to identify victims of torture among refugees who fled their countries and resided in Montenegro, and document signs of torture, as well as measures that guaranteed access of these persons to medical care? How many complaints had been submitted by migrants and how many of them had been investigated?
Ms. Racu noted with appreciation the many legislative, policy and awareness-raising and educational measures undertaken by the State party to prevent and combat gender-based violence against women, such as the 2014 amendments to the law on protection from domestic violence, among others, and thanked the State for the data on criminal cases on gender-based violence and domestic violence. These figures indicated a trend that there were many suspended sentences in the last years applied to perpetrators. Also, the lenient sentences handed down for perpetrators of gender-based violence against women were increasing, despite the recent decision by the Judicial Council to implement more severe sentences. Could an explanation be provided concerning this trend and what was behind this approach?
Could an update on gender-based violence and domestic violence over the past four years be provided, including the measures taken by the Government to combat this? What measures had been taken to establish medical and psychological support, as well as shelter and legal assistance for victims of gender-based and domestic violence? How did courts ensure the adequate enforcement of protection orders in cases of domestic abuse?
Since the consideration of Montenegro’s previous report, had the State party rejected any request for extradition by another State for an individual suspected of having committed an offence of torture, and started prosecution proceedings as a result? If so, could information be provided on this?
ILVIJA PUCE, Committee Expert and Co-Rapporteur for Montenegro, asked about education and training for personnel on the prohibition of torture and how the system was organised. It was not enough to attend one seminar or workshop to change the path. For this reason, a training system should be developed which was comprehensive, sustainable and continuous. Training should be provided to police covering different topics, including adequate use of force for apprehended people. How much training had been provided during the last few years to police, medical staff, and staff dealing with juveniles? Was the training continuous? Were police officers or other personnel obliged to attend training once a year, or once every few years? Could the delegation explain about the training of staff of the prosecutor’s office in relation to cases of torture?
It had been reported that the prosecutor’s office had a lack of training in this regard, and that it was transferring cases of torture to police, who were often the perpetrators. Could information on the training of the judiciary be provided? What was the situation of the training of medical staff in psychiatric establishments, particularly when patients became aggressive? Information had been received that in some instances, security at these establishments was provided by a private company. Had these guards received proper training on how to deal with psychiatric patients? There had been instances of staff abuse of patients in various institutions. What was the status of this situation and what had been learned from such events?
A new law had been adopted about criminal issues related to children in 2011, with a new department opened in 2020 for holding juveniles. Could more information on the new department be provided? How was it organised? How many people did it accommodate? Did the children there receive education? What staff were allocated to the juveniles and what level of training did they receive?
Ms. Puce was pleased to hear that there had been no issues with the women’s units in the prison system. However, in terms of the prison conditions for long sentences, there were some parts of the prison which were dilapidated and in bad condition, and hygiene conditions were not always satisfactory. What measures were being taken to prevent overcrowding in the prison system? At present, it was believed that the space in prison cells was not in compliance with international standards. Check-ups in prison of a crucial nature were quite superficial, with a lack of charts filled out, which was not in conformity with the Istanbul Protocol. This should be improved and should be one of the priorities for the State. What was the State’s strategy in this sense? How would the State improve check-ups before admission to detention?
Reports had been received about prisoners being handcuffed to the bed and other mistreatment. Did these activities still take place? Was there more staff allocated to the places of detention where inter-prisoner violence occurred more frequently? What steps were being taken in this regard and what was the strategy to address this issue?
The conditions of those detained in police stations was noted as poor, with no food being provided, or opportunities for showers, among other issues. What was the current situation in police stations in Montenegro? What were the plans to introduce outdoor exercise yards in police stations? What steps were being taken to change people’s perceptions of the State institutions to improve the investigations of torture cases?
There were plans to build a prison psychiatric hospital. Could more information about those plans be provided? It was noted that Dobrata hospital was quite dilapidated; were improvements planned?
Could more information on the regime applied in migration centres be provided? Who provided legal aid to migrants, and if no legal aid was provided, did the State intend to do this?
Ms. Puce noted that there was nothing substantial in the report about redress for torture victims. Monetary compensation alone was not adequate, and instead holistic care, including medical and psychological care, as well as family support, were required. Were there any plans to provide redress and rehabilitation to torture victims?
Was there a strategy to prevent attacks on journalists? What steps was the Government taking to prevent such occurrences? It seemed that this was a widespread practice, which had become systematic.
A Committee Expert asked about the torture preventive mechanism. When reports were issued, they were adopted by the parliament, which ran contrary to the confidentiality agreement. Could the reasons behind this be explained? Could the State party describe measures taken to strengthen measures of prevention of torture?
Could more information be provided on the establishment of a mechanism for the earlier identification at borders of victims of torture among asylum seekers? Could the number of appeals filed against extradition decisions, where persons were at risk of being victims of torture, be provided? What was the number and the ethnic origin of those in pretrial detention? Could the number of people who had died in detention and the causes of their deaths be provided?
Responses by the Delegation
BOJAN BOŽOVIĆ, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation, said the next amendments to the Code of Criminal Procedure of Montenegro would entail the definition of the crime of torture as mentioned by the Rapporteur. Political circumstances had slowed down the work of Parliament in Montenegro, which was the reason this had not yet been enacted. Mr. Božović agreed that some of the issues raised this morning had not been treated properly because of the lack of political will, including the building of new prison and multifunctional facilities to improve prison conditions.
The delegation said that since 2018, the President of Montenegro had not made a positive decision on requests for amnesty for persons convicted of criminal offences. The 2020 law on amnesty did not apply to persons who had received final decisions on the criminal offences of war crimes against civilians, of terrorism, of trafficking in human beings and of others under the Criminal Code of Montenegro.
The Government had not been satisfied with the penal policy related to domestic violence. Changes and amendments had been adopted in December 2021 to the Criminal Code of Montenegro. Once they became part of the Criminal Code in the coming months, violence and criminal offences would not be treated leniently in terms of penal policy.
The delegation said that the Ombudsman acted primarily on reports filed by detained persons, on his own initiative. The Ombudsman then came unhindered to the administration for the enforcement of criminal sanctions and had a private conversation with the detained person. The Ombudsman was not obliged to provide any information about his visit and submitted his report upon leaving the facility. The person managing the institution did not sign the report and was unaware of what took place in the conversation.
It was believed that the measures for supressing the COVID-19 pandemic were quite efficient. Prisoners were quarantined for the recommended time and during this time were not allowed visits, however, they were allowed to contact their families via video call. The delegation said the multifunctional prison facility would be completed by the end of 2024. The centre planned to cater for religious, sports and cultural activities.
Regarding the special prison hospital, this was a facility which would have the necessary capacities for accommodation and medical treatment of mentally ill detained persons. This included patients in Dobrata prison hospital. The State of Montenegro planned to borrow funds of around 15 million euros to improve the conditions of persons deprived of liberty. The delegation said that the Ministry of the Interior was providing a significant contribution to all the anti-torture aspects of the State.
A lot had been invested, both financially and strategically, when it came to the training of police officers, including a division created to serve as a coordinating point. A training plan was adopted at the beginning of each year, with police offices designated to attend training sessions, depending on their personalised files. A record of training sessions was kept on file, as well as the outcomes of the training sessions. Police training was mandatory, and the officers were obligated to attend.
BOJAN BOŽOVIĆ, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation, said when it came to the definition of torture, the draft law stipulated that the criminal offence of torture was barred from a statute of limitations, and mandatory expulsion of officials had been added. The amendments and changes to the Criminal Code would hopefully mean the definition of torture adhered to the standards of the Committee.
The delegation said that domestic violence and violence in the extended family were defined in the Criminal Code. There were more than 500 cases of domestic violence which appeared before the courts in 2020 and 2021, with over 150 of these cases receiving prisons sentences. There had been an increase in measures such as restraining orders and removal from the premises.
An analysis of the Penal Code found it was lenient and there was a disbalance between sentences and criminal acts committed, indicating that judges still failed to be sensitised towards gender-related crimes. The Supreme Court of Montenegro had issued recommendations to all criminal judges to make the Penal Code stricter, especially when it related to cases of violence. The training programmes for judges took place on a continuous basis and respected the Istanbul Protocol. There were 10 training programmes over the course of 2020 and 2021, carried out in conjunction with other organizations.
When there were suspicions on the use of torture in court cases, the public prosecutor was required to investigate this. Evidence could not be obtained by violating human rights or breaching the criminal procedure, meaning testimonies based on torture could not be used tin court. Whenever the witness claimed that any form of torture was enacted, the case needed to be referred to the public prosecutor for investigating.
The delegation said that in line with the Constitution, the special prosecutor’s office was an independent body, whose independence was ensured by the prosecutorial counsel. In cases of torture, there was no link between the perpetrators of these offences and public prosecutors. This was how the independence of the service was ensured when acting in criminal cases, including in cases of torture. When acting in these cases, all prosecutors followed instructions issued by the Supreme Prosecutor, and they attended training sessions on how to use their knowledge and skills in such cases.
There had been no reports by physicians which caused the prosecutor’s office to open a case. One case had been opened against a dentist who had inflicted a grave bodily injury, with the prosecutor carrying out the preliminary procedure and then filing a motion to indict this person, who was then sentenced. The prosecutor’s office had addressed several police stations to see whether any officers had performed acts of torture throughout their duties.
The Supreme Court had investigated cases of war crimes, and in one case had convicted a perpetrator to 14 years in prison. In 2020, the prosecutor’s office collected evidence regarding war crimes committed against civilians, by nationals of Montenegro, and formed a case to prosecute perpetrators of war crimes. Meetings were held with specific information exchanged, helping to establish the facts of the case in relation to suspected war crimes.
The prosecutor’s office in Montenegro recognised media freedoms as a key issue and this needed to remain a priority in their actions. Concerning injuries inflicted on a journalist, the special prosecutor’s office had initiated proceedings against seven persons, and evidence was collected, which gave grounds to expand on further actions relating to the investigation.
Regarding juvenile prison, the delegation said this prison had been established in 2020 and had all the necessary amenities. There was a psychologist who worked with the juvenile department, and experienced employees who had been designated to work with juveniles. Training sessions were continually organised for staff and were also rolled out to the juveniles, which included training on social skills, abilities, aggression and control, counselling, and sports activities, among others.
There was no contact with adult detainees, as all juveniles were performing activities within the juvenile department, however, some contact could be had through sport activities. Those who had not graduated from primary school were given the opportunity to attend school. Judges could visit the department and talk to the juveniles, as well as the officers working there, to make sure accommodation was up to standard. One of the juveniles had graduated from high school while in detention, while others had taken on vocational training such as learning to be a chef.
Hygiene items were provided to all detained persons who did not have funds to purchase them. Conditions of stay in remand prisons had improved significantly. The premises had been refurbished, and the number of walking circles had been expanded, with amenities included for physical exercise. It was noted that there was still overcrowding in prisons, but Montenegro planned to overcome this by building a prison in Mojkovac. A lot had been done to improve the conditions of stay in long-term prison, including refurbishments, replacing roofs, and making sure there were significant sporting facilities.
On the issue of inter-prison violence, the delegation said that training on mediation had been provided to officers. Special attention was paid to the topic of dynamic security. It was noted that Montenegro was below the European standard, when it came to numbers of staff. To improve the rights of persons deprived of their liberty, training was organised for staff on human rights issues. The delegation said that to reduce overcrowding in prisons, the State had been working on an alternative sanctions system. The new strategy on preventing violence and torture among prisoners was planned for the third quarter of 2022.
In accordance with the law on free legal aid, this meant providing the necessary funds to cover the costs of legal advice fully or partially. Free legal aid was provided at the expense of the State of Montenegro. The exercise of the right to free legal aid did not limit the provision of aid by other organizations.
BOJAN BOŽOVIĆ, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation , said it was indisputable that the law on free legal aid did not include victims of torture as beneficiaries of free legal aid, but the Government had recognised the need to expand free legal services to include this group. These amendments would be finalised in the fourth quarter of 2022.
The delegation said that the provision of healthcare and medical examinations to persons deprived of liberty, and the updating of registers and records, had all been greatly improved. Every newly admitted person was examined by the prison physician within 24 hours, with their health entered into their file on the system. On finding injuries, a description was made and entered in detail in the medical file. The prison physician was also advised to draw up a special report which had to state to what extent the existing injuries corresponded to the allegations made by the patient, and whether they needed to be treated further outside of the prison.
When a prisoner had bodily injuries, photos were taken and described in the prisoner’s personal file and in the protocol of injuries. Injuries were marked on charts and described in detail, and notes were made on the way they were determined to be inflicted. The article which stated that security officers had to attend medical sessions of detainees was to be amended to be brought in line with international standards. This meant officers would no longer be allowed to be present unless the physician requested their attendance.
The delegation said that due to negative experiences, and in line with the Ombudsman’s recommendations, the only restraint measures being used were canvas belts. Medical staff and officers were trained on how to use these belts and this training had been carried out by psychiatrists. When patients had mental issues, such measures as fixation were applied, so long as they were not humiliating or degrading and did not deprive any basic living needs or inflict physical pain. These measures were applied exclusively in the best interests of patients with mental issues, and only in emergency situations, when such measures were justified e.g. in cases of self-harm, or if these people were at risk of inflicting harm on others.
Before these measures were applied, the psychiatrist would explain to the person with mental issues the reasons for applying these measures and the duration the measures would be decided. During these measures, the vital parameters of the patients were measured. During physical restraint and isolation measures, persons with mental issues had to be intensively supervised by healthcare employees. The aim was to ensure that these measures were terminated as soon as possible. There was a protocol of fixation, where the employee needed to describe the mental state of the patient, who ordered them to be fixated, the duration of the measures, and other data. This document was then signed by the head of the healthcare department. There had not been a single case of human mechanical fixation since 2018.
The delegation said that in line with the Istanbul Convention, Montenegro had established a free helpline which provided information and advice on safehouses. Shelters were stationed throughout the country aimed to provide victims of violence with 24/7 access and quality protection. A sick or injured person who needed medical help would not be accommodated in the holding premise and would be transported to receive medical assistance.
Persons deprived of their liberty remained always entitled to legal defence and healthcare, including in holding premises and at police stations. It was important to note that these actions were included in the personal file of the detained person. There was no data that police officers went beyond the 24-hour period and failed to bring a detainee before the prosecutor.
The delegation said the interview with a detained person was undertaken by the prosecutor, except in extraordinary circumstances where this hearing was carried out by police. The recorded material of this interview became an integral part of the case file. It was mandatory to provide translators in all cases where the person did not understand the official language. Only documents signed with the interpreter present were considered legally valid.
Those who believed that their rights had been violated in police work were entitled to judicial protection and compensation. Citizens were encouraged to report any cases of violations by police officers. When performing internal control tasks, police offices could initiate proceedings at their own initiative, in relation to the abuse of power, based on various analysis and information from other groups.
The delegation said that officers within the internal control department could take statements from the police and citizens and request information and data from the police. They could also examine the premises used by the police and the instruments police used during their work.
Questions by Committee Experts
ANA RACU, Committee Expert and Country Rapporteur for Montenegro, thanked the head of the delegation for the clarification on the amendment of the Penal Code. She hoped that current and previous recommendations of the Committee would be considered. Ms. Racu asked if the prosecutor’s office had effective control over the police? The main concern was that the majority of complaints against police rarely reached the indictment phase of the criminal procedure. What were the number of complaints on torture and ill-treatment submitted to the prosecutor’s office in the last year?
The meeting regarding war crimes was noted as a positive development, however, what were the number of cases investigated, cases handed down, and families of victims who received compensation? What were the actions taken by the Government on the issue of missing persons? Were there plans to introduce a specific offence in the Criminal Code on enforced disappearance? Impunity was unacceptable. What were the main causes of impunity? Was it the legal framework, or the lack of training of relevant officers?
The number of cases of domestic violence seemed to be increasing, which was occurring all over the world. Ms. Racu called for the Government to make more efforts to combat and prevent domestic violence. Could clarification be provided about a specific register for violent incidents or cases of torture? The Committee hoped to receive written answers on the important questions about the Ombudsman.
ILVIJA PUCE, Committee Expert and Co-Rapporteur for Montenegro, asked what happened if a doctor established that a case of torture had happened in the prison? What were the obligations of the doctor? Was there any procedure established by law? If a person was already imprisoned, but the incident occurred, what were the obligations of the doctor in this case?
Regarding inter-prisoner violence, Ms. Puce asked if the new strategy could be elaborated on and the key directions outlined, and what steps were envisaged to eliminate this phenomenon. Did the free legal aid also apply to migrants in the country who were seeking asylum? It was mentioned that victims of torture had a right to compensation; could the delegation elaborate on this? How many cases of compensation had been provided to torture victims? In the case of the journalist, were there still no charges pressed? Could the delegation clarify this?
A Committee Expert asked about war crimes, saying this was a very important set of issues, with deep concern being expressed around the perpetrators of war crimes. What happened to the four cases which were being considered? Were these still being preliminarily investigated and had progress been made? It was noted that there was legislation pending to help Montenegro pursue cases coming from the residual mechanism. What was that legislation meant to do? Was there anything else needed beside this legislation to pursue these cases?
Responses by the Delegation
BOJAN BOŽOVIĆ, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation, said that war crimes were a serious issue. There was an aggravating legal circumstance in Montenegro’s legal system which meant closer cooperation was needed with the residual mechanism. All the evidence used in The Hague would be used in the courts of Montenegro which would allow prosecutors to engage further in prosecuting these cases.
Mr. Božović said there was no need to separate the actions of enforced disappearance and define them as separate criminal events, as this would not contribute to any substantial changes within Montenegro’s legal system. Regarding the work of the Ombudsmen, despite the way they were appointed, all the Ombudsmen and their deputies in the past were highly qualified, and could be easily appointed by virtue of a two-thirds majority as per the Paris Principles. However, the changes in this regard could not be promised.
The delegation said that once detained persons came to a detention unit, each person who was admitted to remand prison was examined by a doctor, and in cases where injuries were found - even if the person denied their causes - the competent prosecutor service would be informed in writing. On juvenile imprisonment, when juveniles were placed in prison, they were placed separately from adults.
Non-governmental organizations always had access to premises where persons deprived of liberty were held. Some procedures had to be followed, and during the pandemic there was a period where it was prohibited to visit persons deprived of liberty. The doors of Montenegro’s prisons were always open to non-governmental organizations.
Mr. Božović said that the maximum sentence for torture was 10 years, according to Montenegro’s Criminal Code. The delegation said that all complaints from prisoners could be submitted to the competent bodies monitoring the prison establishment, to non-governmental organizations, and to the Ombudsman, via a private conversation or through letter boxes which were placed around prisons. Programmes would continue to be initiated to prevent inter-prisoner violence and prevention training would be improved. All injuries would be recorded systematically without exception and all alleged issues of mistreatment would be recorded without exception. The law on free legal aid covered migrants.
The delegation said that the penal policy needed to be stricter. The prosecutor’s office was separate from the police and did not control the work of the police. The prosecutor’s office prosecuted the perpetrators of all offences. Regarding the case of the journalist whose indictment was raised, the investigation was pending and evidence was being collected. Substantial evidence had been submitted after the investigation had begun.
The delegation said that employees working for the internal control department were the ones that initiated criminal proceedings against police officers. In the future there would be an overview of disciplinary actions, detailed hearings carried out and police officers who were suspended because of citizen complaints. There was no registry regarding victims of police torture or ill treatment. This registry would be a useful recommendation for the State to carry out.
Closing Remarks
BOJAN BOŽOVIĆ, State Secretary, Ministry of Justice, Human and Minority Rights of Montenegro and head of the delegation , thanked every member of the Committee and delegation. Montenegro’s intention was to present steps taken, while acknowledging that there was room for improvement. This must be observed to bring the respect of human rights up to a higher level in Montenegro. The State was looking forward to the Committee’s comments and suggestions and all future engagements.
CLAUDE HELLER, Committee Chairperson, said the Committee was grateful that the delegation was present in Geneva and had appreciated the constructive contributions provided in the dialogue with the Committee. There was still work to be done in Montenegro, but there was political will and there was a resolve to move forward, which was positive. Mr. Heller reiterated the openness of the Committee to contribute to the State party’s efforts to fulfil the obligations of the Convention.
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