Drugi periodični izvještaj crne gore komitetu protiv torture

Montenegro

GOVERNMENT OF MONTENEGRO

(As received on 24 December 2012)

SECOND PERIODIC REPORT OF MONTENEGRO TO THE COMMITTEE AGAINST TORTURE
Under Article 19 of the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment

Podgorica, October 2012


Contents
Introduction
Background information
Constitutional framework
International treaties and generally accepted rules of international law
Responses to questions related to Articles of the Convention:

Responses to questions related to Articles 1 to 4 of the Convention (question no. 1)

Responses to questions related to Articles 2 of the Convention² (questions nos. 2-10)

Responses to questions related to Articles 3 of the Convention (questions nos. 11-14)

Responses to questions related to Articles 5 and 7 of the Convention (questions nos. 15, 16)

Responses to questions related to Article 10 of the Convention (questions nos. 17, 18)

Responses to questions related to Article 11 of the Convention (questions nos. 19, 20)

Responses to questions related to Articles 12 and 13 of the Convention (questions nos. 21-26)

Responses to questions related to Article 14 of the Convention (questions nos. 27-28)

Responses to questions related to Article 16 of the Convention (questions nos. 29-34)

Other questions (question no.35)

General information on the situation of human rights at the national level, including new measures and developments regarding the implementation of the Convention (questions nos.36-38)

Additional responses to the concluding observations

Annexes

Introduction
Since its declaration of independence on 3 June 2006, in accordance with the Decision on the declaration of independence of Montenegro (Official Gazette of the Republic of Montenegro 36/2006) adopted by the Parliament of Montenegro, Montenegro applies and assumes all international treaties and international agreements concluded and acceded by the State Union of Serbia and Montenegro, which are related to Montenegro and which are in accordance with its juridical system.

Montenegro is a contracting party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Official Gazette of Montenegro - International Treaties, 9/2008) (hereinafter: the Convention) and the Additional Protocol to the Convention (Official Gazette of Montenegro - International Treaties, 9/2008).

The reporting obligations to the Committee against Torture (hereinafter referred to as CAT), were defined by Article 19 of the Convention. Initial report on the measures taken by Montenegro to fulfil its obligations under the Convention was submitted to the United Nations on 3 May 2006. Once adopted, the initial report was released by the United Nations - CAT/C/MNE/1¹ on 6 October 2008. In accordance with Article 19 of the Convention, the second periodic report was prepared on all new measures taken for the purpose of effective implementation of the Convention, which is also a representation of the results achieved in the exercise of rights guaranteed by the Convention in Montenegro. Pursuant to the new procedure for periodic reporting, the Report contains answers to 38 questions submitted prior to the submission of the second periodic report of Montenegro (CAT/C/MNE/2)*². While preparing the report, special attention was given to the concluding observations of the Committee against Torture CAT/C/MNE/CO/1³ of 19 January 2009.

The following authorities participated in developing the second periodic report to CAT: Ministry of Justice and Human Rights, Ministry of Interior, Ministry of Labour and Social Welfare, Ministry of Education and Sports, Ministry of Foreign Affairs and European Integration, Supreme Court of Montenegro, Supreme Public Prosecutor's Office, Police Directorate, the Ombudsman, Police Academy, Judicial Training Centre (JTC), Refugee Care and Support Office. A contribution to this report was provided by the Human Rights Action, which is an NGO active in Montenegro in the field of human rights.

Background information

Montenegro is a member state of the United Nations, the Council of Europe and other international organizations and regional initiatives, as well as the contracting party of the most important international instruments on human rights, among which: The International Covenant on Civil and Political Rights (including the Optional Protocol to the International Covenant on Civil and Political Rights aimed at the abolition of the death penalty), The International Covenant on Economic, Social and Cultural Rights, The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (including the Optional Protocol), The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (including the Optional Protocol), the Convention on the Rights of the Child, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the Second Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography to the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities (including the Optional Protocol), the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the International Convention against Apartheid in Sports.

By depositing its instrument of succession, Montenegro became a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Also, Montenegro was among the first countries to sign the International Convention for the Protection of All Persons from Enforced Disappearance and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

Montenegro is contracting party to 69 ILO conventions.

Montenegro actively cooperates with the Council of Europe (CoE) and the Organization for Security and Cooperation in Europe (OSCE) in the field of protection of human and minority rights and fundamental freedoms, as well as in promoting the rule of law and the further democratization of society. It has ratified a large number of Council of Europe conventions on human and minority rights, including the most important - the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages.

As a member of the most important human rights agreements, Montenegro clearly shows support for achieving their goals, but also actively participates in the creation and implementation of new standards for the promotion and protection of human rights.

Montenegro is a country with the candidate status for European Union membership. In this context, Montenegro conducts numerous activities in partnership with the European Commission, the European Union Delegation to Montenegro, as well as bilateral activities with European Union member states. These obligations are defined by a number of documents including the most important: the SAA - Stabilisation and Association Agreement, Action Plan for Implementation of Recommendations from the European Partnership, Action Plan for Implementation of Recommendations from the revised European Partnership, National Program for Integration of Montenegro into the EU (NPI) for the period 2008-2012 etc.

In the context of a comprehensive reform which takes place in Montenegro in this field, special attention is paid to promoting the rule of law and protecting human rights. Reform is aimed at amending the legislative framework so as to adopt the best standards and achievements of the modern society, but also in the area of institutional capacity building, media freedom, human rights promotion in every segment of the society.

Constitutional framework

Montenegrin Constitution guarantees human rights and freedom. The basic constitutional principles of human and minority rights are: the basis for exercise of rights and freedoms, equality before the law, gender equality, the right to equal protection of rights and freedoms, the right to legal remedy against the decision ruling on the right or legally based interest, the right to legal aid, the right to local self-government, the right to a healthy living environment. Guaranteed human rights and freedoms may be limited only by law, within the scope permitted by the Constitution, to the extent necessary in an open and democratic society in order to satisfy the purpose for which the limitation has been permitted. Limitations will not be introduced for purposes other than the ones for which they were prescribed.

During a proclaimed state of war or emergency, the exercise of certain human rights and liberties may be limited to the necessary extent. Limitations may not be introduced by virtue of sex, ethnic origin, race, religion, language, ethnic or social origin, political or other beliefs, financial standing or any other personal capacity. There will be no limitations imposed on the rights to: life, legal remedy and legal aid; dignity of and respect for a person; fair and public trial and the principle of legality; presumption of innocence; defence; compensation of damage for illegal or ungrounded deprivation of liberty and groundless conviction; freedom of thought, conscience and religion; entry into marriage. There will be no abolishment of the prohibition of: inflicting or encouraging hatred or intolerance; discrimination; retrial and multiple punishments for same offense; forced assimilation. Measures of limitation may be in effect at the longest for the period of duration of the state of war or emergency.

The Constitution guarantees the protection of personal rights and freedoms, political rights and freedoms, as well as the protection of economic, social and cultural rights and freedoms. The Constitution also guarantees the protection of a set of special minority rights. The Constitution prohibits forced assimilation of members of national minorities and other minority ethnic groups and stipulates duty of the state to protect members of national minorities and other minority ethnic groups against all forms of forced assimilation.

The Constitution stipulates that Montenegro guarantees inviolability of the physical and mental integrity of a person, his/her privacy and individual rights thereof. No person will be subject to torture or inhuman or degrading treatment. No one will be held in slavery or servitude (Article 28). Everyone has the right to personal liberty. Deprivation of liberty is allowed only on grounds and within procedures prescribed by law. Person deprived of liberty has to be notified immediately of the reasons for his arrest, in his own language or in the language he understands. Concurrently, person deprived of liberty has to be informed that s/he is not obliged to give any statement. Upon the request of the person deprived of liberty, the authority will immediately inform the person of his own choosing about his deprivation of liberty. Person deprived of liberty has the right to have a defence counsel of his own choosing present at his hearing. Unlawful deprivation of liberty is punishable.

In accordance with the Constitution of Montenegro, the Protector of Human Rights and Freedoms is an autonomous and independent body which takes measures to protect human rights and freedoms. The Protector of Human Rights and Freedoms exercises his office on the basis of the Constitution, laws and the ratified international agreements, observing also the principles of justice and fairness.

In accordance with Article 145 of the Constitution, laws must be compliant to the Montenegrin Constitution and ratified international treaties, and other pieces of regulations must be compliant with the Constitution and the law.
International treaties and generally accepted rules of international law

Article 9 of the Constitution provides that ratified and published international treaties and generally accepted rules of international law make an integral part of the domestic juridical system, supersede national legislation and are directly applicable in cases when they govern relations differently than the national legislation. Owing to this definition, the legal effect of international treaties (including the Convention and the Optional Protocol thereto) is not only confirmed by considering them part of the domestic juridical system which has supremacy over the national legislation, but government agencies are also instructed about the need to harmonize domestic legislation with international law, primarily in the field of guaranteeing, promoting and protecting fundamental human rights and freedoms.

In the period since the adoption of its Initial Report, Montenegro has acceded to significant international treaties: Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)⁴, the United Nations Convention on the Rights of Persons with Disabilities and the Optional Protocol thereto⁵, the Convention on Cybercrime⁶ and Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems⁷ (Council of Europe), the European Convention on the Compensation of Victims of Violent Crimes⁸ (Council of Europe), the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes⁹ (Council of Europe), the International Convention for the Protection of All Persons from Enforced Disappearance¹⁰.
Responses to questions related to Articles of the Convention

This article provides a list of questions to answer before submission of the second periodic report of Montenegro (CAT/C/MNE/2) and display activities undertaken taking into account the conclusions and recommendations contained in the concluding observations of the Committee against Torture (CAT/C/MNE/CO/1) of 19 January 2009.

Responses to questions related to Articles 1 to 4 of the Convention (question no. 1)

1. Further to the recommendation of the Committee in the previous concluding observations (paragraph 5)¹, please provide information on measures taken by the State party to bring its definition of torture in accordance with article 1 of the Convention and to ensure that all acts of torture are offences under criminal law and are punishable by appropriate penalties which take into account their grave nature.

Constitution of Montenegro (Official Gazette of Montenegro 1/2007), Article 28, guarantees the dignity and security of the person, inviolability of physical and mental integrity of the person, privacy and individual rights. No one may be subjected to torture or to inhuman or degrading treatment and may not be held in slavery or servitude. Article 27 guarantees the right of a person and the dignity of the human being in respect of application of biology and medicine, and Article 28 guarantees respect for the human personality and dignity in criminal or other proceedings in the case of deprivation or restriction of liberty and during sentence execution. All forms of violence, inhuman or degrading treatment of a person deprived of liberty or whose liberty has been restricted, and any extortion of confession and statements are prohibited. Death penalty is prohibited in Montenegro.

Criminal Code¹¹ contains a special Title which prescribes criminal offences against freedoms and rights of persons and citizens. Article 165 prescribes coercion as the use of force or threat to compel someone to act or refrain from acting or to endure something. The stipulated prison term for the basic form of this offence ranges from three months to three years, whereas it can be up to twelve years even for particularly serious forms. Extortion of testimony is defined by Article 166. This offence is committed when a public official uses force or threat or other inadmissible means or inadmissible manner while acting in his official capacity with the intention to extort a testimony or another statement from an accused, witness, expert witness or other person. The sentence prescribed for this offense ranges from three months to five years, and for particularly serious forms it is prison term from two to ten years.

Amendments to the Criminal Code of 2010 divided the former crime of torture and ill-treatment into two separate crimes: ill-treatment (Article 166a) and torture (Article 167). Ill-treatment has been stipulated as an act of abusing others or treating them in a manner that offends human dignity. A prison term is stipulated of up to one year (for particularly serious forms of three months to three years).

Torture is laid down in Article 167 of the Code. Anyone who inflicts to another severe pain or heavy suffering, whether bodily or mental, in order to obtain from him or a third party a confession or other information or in order to unlawfully punish or intimidate him, or to exert pressure over him or to intimidate or exert pressure over a third party, or does so for other reasons based on discrimination will be punished by a prison term from six months to five years. Prison term of one to eight years is stipulated for particularly serious forms of this offence.

The crime of endangering safety is defined by Article 168. Anyone who endangers the safety of another person by threatening to attack his life or body or a person close to him will be punished by a fine or a prison term up to one year (particularly serious forms by a prison term from three months to three years).

Prohibition of torture is also included in offences from the group of criminal offences against humanity and other values guaranteed by international law (Title XXXV, Art. 426 - 449a) in: Art. 426 genocide, Art. 427 crimes against humanity; Art.428 war crime against civilian population, Art. 429 war crime against the wounded and sick; Art. 430 war crime against prisoners of war, Art. 431 organization and instigation to commit genocide and war crimes.

Article 11 of the Criminal Procedure Code¹² prohibits to threaten or exert violence over a suspect, accused person or another person participating in the procedure, as well as to extort confession or another statement from such persons. Judicial decision may not be based on any confession or other statement obtained by extortion, torture or inhuman or degrading treatment.

Responses to questions related to Article 2 of the Convention² (questions nos. 2-10)

2. Please provide updated information on the measures taken to guarantee in law and in practice that a person under arrest is immediately informed of his/her right to consult with counsel and to receive independent and free legal aid when he/she cannot afford private counsel.³

Please also provide information on the rights of detained persons to have access as from the outset of detention to an independent doctor and to notify a relative.⁴ Please also indicate whether a statement of detainee rights is available at all places of detention for consultation by detainees.

Article 5 of the Criminal Procedure Code (Official Gazette of Montenegro, 57/2009 and 49/2010) stipulates that persons placed under arrest by a competent state body will be immediately informed in their language or in a language they understand about the grounds for placing them under arrest and, at the same time, informed that they are not obliged to make any statement, that they have a right to a defence counsel of their own choice and to request that a person of their choosing be informed on their placement under arrest as well as a diplomatic-consular representative of a state whose nationals they are or a representative of appropriate international organization if they are stateless persons or refugees. Article 69 lays down that the accused placed in detention will have a defence counsel while in detention. Article 180 stipulates that immediately after a person has been placed under arrest and within a term of 24 hours at the latest, police authority, the public prosecutor or the court will inform the family of the person under arrest or their common law spouse thereon, except where the person under arrest expressly object thereto. The competent social welfare authority will be informed about the deprivation of liberty if necessary to take measures for the care of children and other family members of whom the person under arrest takes care. Article 183 stipulates that upon the approval of the judge in charge of investigation and where appropriate and under the judge's supervision or the supervision of a person designated by the judge, the detainees may, in compliance with the rules of conduct, be visited by their spouse or common law spouse and their close relatives and upon their requests – by a physician and other persons. Some visits may be prohibited if they could detrimentally affect the conduct of proceedings.

Accused persons have the right to defend themselves, as defined in Article 12, in person or with the professional assistance of a defence counsel of their own choice from the ranks of attorneys-at-law. The accused are entitled to have a defence counsel present during their hearing. Prior to the first hearing, the accused will be instructed of their right to retain a defence counsel, to agree with the defence counsel on the manner of defence and told that a defence counsel may be present during their hearing. They will be cautioned that everything they state may be used as evidence against them. If the accused persons do not retain a defence counsel by themselves, the court will appoint a defence counsel to them, when stipulated so by this Code. The accused will be ensured enough time and possibilities to prepare their defence. The suspects will be entitled to a defence counsel in compliance with this Code.

Article 66 lays down that the accused persons have the right to a defence counsel. The accused’s legal representative, spouse, direct blood relative, adoptant parent, adopted child, siblings or foster-parent as well as his/her common law spouse may engage a defence counsel on behalf of the accused. Only an attorney-at-law may be engaged as defence counsel. Defence counsels are obliged to submit their power of attorney to the authority before which the procedure is conducted. The accused may also give a power of attorney to the defence counsel verbally, which is entered into a record before the authority conducting the procedure.

Article 70 stipulates appointment of defence counsel due to adverse financial situation. When conditions for mandatory defence are not met, but it is required so by the interests of fairness, upon the request of the accused, they may be appointed a defence counsel if they are not able to bear the costs of defence under their financial standing. In preliminary investigation and in investigation, the decision upon the request will be taken by the competent public prosecutor, whereas after the pressing of charges, the President of the Court takes the decision in compliance with the order on the list of the Bar Association.

In addition to that, Law on Legal Aid¹³ was adopted in 2011 and its application started on 1 Jan 2012. The Law stipulated that persons entitled to legal aid are beneficiaries of family cash benefits or other social security right, children without parental care, persons with special needs, victims of the crime of domestic violence and persons of unfavourable financial situation. In order to start creating the preconditions for the commencement of application of this Law, in September 2011 the Government adopted an Implementation plan for the Law on Legal Aid. In accordance with the obligations laid down in the Implementation plan, the following results were achieved:

-         The adoption of: Rulebook on the records of legal aid¹⁴, Rulebook on the form of legal advice record¹⁵ and Rulebook on the form of legal aid application and referral form¹⁶ which entered into force on 14/12/2011.

-         Legal aid services have begun to operate in 15 basic courts.

-         Donor assistance made ​​it possible to equip the offices of basic courts in Podgorica, Kotor, Pljevlja, Rožaje, Nikšić, Danilovgrad, whereas the office in the Basic Court in Berane was equipped in cooperation with the Bar Association.

-         Trainings were organized for presidents of basic courts and advisers working in the services concerning the commencement of implementation of the Law on Legal Aid.

The Law specified that the rights of persons deprived of liberty are recorded in the duty report made by a police officer as evidence that the person was informed of them, further to Article 264 of the above Code. Owing to cooperation of the Police Directorate with the nearest medical facilities in all police regional units and outposts, medical aid is provided immediately once the person requests it. Medical aid is also provided in cases where the police officer determines that the person needs medical aid, because the situation of persons deprived of liberty is constantly monitored.

Under Art. 268 of the CPC, where a person placed under arrest is brought to the public prosecutor, that person, his/her defence counsel, family member, or a common law spouse may request the public prosecutor to order a medical examination. The decision on appointing a medical doctor who will perform medical checks and the record on the detainee’s hearing are attached to criminal case file by the public prosecutor.

There is a factsheet in all holding facilities which was printed in several languages, containing rights of persons held. Laws and by-laws that define the rights of detained persons are available in dayrooms of facilities where detainees are held, so that they can be informed of them.