Drugi periodični izvještaj crne gore komitetu protiv torture

3. Please provide information on the measures undertaken by the Member States for registration of all detainees under its jurisdiction, documenting the identity of a detained person, the date, time and place of detention, identifying the authority that ordered the detention of persons, grounds for arrest, the date and time of receipt persons in an institution where management detention and health detainee after receipt and any changes thereof, place and time of testing, stating the names of all persons present during the interrogation, and the date and time of release from prison or transfer to another detention facility.

Law on Execution of Criminal Sanctions and by-laws that have been enacted on the basis of the said Law govern the receipt of detainees, establishing their identity, etc. Thus, the Rulebook on more detailed manner of execution of detention provides that upon receipt of a detainee, his identity is determined pursuant to the available data from the detention order, as well as on the basis of identity card and passport, or pursuant to other appropriate documents. If the detainee does not have documents or there are doubts concerning his identity, prison authorities will immediately ask the judge in charge of investigation to submit the data required to identify the detainee.

The following are entered into the detainee's personal record file: prison register number; date and time of receipt to prison; surname, father's name and name; day, month and year of birth; PIN – personal identification number; place, municipality and country of birth; place of permanent residence or place of temporary residence; nationality; occupation; name and Article prescribing the offense; name of the court which either imposed or prolonged detention (decision number and date); data on the indictment raised; date and time of release from prison; name of the court which approved release from detention (decision number and date), date of referral to another organizational unit.

General medical examination of the detainee is done within 24 hours upon receipt. The detained person will be provided with adequate health care immediately upon receipt, if this is necessary or upon request. When the prison doctor determines that the detainee is suicide-prone, things suitable for suicide shall be seized from him and temporarily held and other appropriate surveillance measures will be taken. Medical file card  is created for the detainee including all data relevant to his health upon receipt, during detention, and when released from prison. In accordance with Article 12 of this Rulebook, health care services are provided during detention by the Prison Health Service i.e. prison doctor. Upon the authorisation of the judge in charge of investigation and, if necessary, under his supervision or supervision of the person nominated by the judge in charge of investigation, within the limits of rules of conduct, upon request of the detainee and at his own cost, the detainee may be examined by a doctor chosen by him. At the suggestion of the prison doctor and upon the authorisation of the judge in charge of investigation or the presiding judge, detainee may purchase pharmaceuticals at his own expense.

Surgical and other medical interventions on a detained person may be taken only at the suggestion of the prison doctor and specialist physician and with the prior consent of the detainee, and in the case of a juvenile, with the prior consent of the parent or guardian. In urgent cases, the head of the prison takes a decision whether to send the detainee to an appropriate medical institution, upon a proposal of the prison doctor, of which the judge in charge of investigation and the presiding judge need to be informed without delay. The prison doctor is obliged to keep separate records of detained persons who use methadone maintenance treatment. Medical and dental examinations of detainees are performed at the prison clinic during regular business hours, whereas they are performed in urgent cases outside regular working hours as well, upon the order of the head of the prison. Detainee reports to the prison health officer and security officer, who are obliged to keep records thereon and draw up a record. Prison doctor or dentist is required to keep daily records of examinations in the medical file card and in the record book of examinations. The prison doctor enters a description of the existing situation and the identified inadequacies into the medical rounds records. Prison doctor immediately informs the head of the prison about the identified inadequacies. According to a daily schedule, detainees must maintain personal hygiene and cleanliness of the rooms in which they reside. The prison administration provides supplies and equipment necessary to maintain cleanliness.

Pursuant to the recommendations given in the first cycle, in order to record all the detained persons under its jurisdiction, documenting the identity of persons detained, the date, time and place, identifying the authority that ordered detention of the person in question, grounds for detention, date and time of receipt into a detention institution and health of person detained after receipt and any changes thereof, location and time of testing, stating the names of persons authorized to take over the detained person, and the date and time of release from detention facility or transfer to another detention facility, the following was conducted in the previous period:

- In addition to written records, records in electronic form were set up for detained persons, which are comprehensive and contain all the requested information. At the moment, the requested data can be assessed in a very accurate and precise manner on the basis of custody records which are kept in all the regional units and local units.

4. Further to the recommendation of the Committee in the previous concluding observations (paragraph 7), please provide information on any legal measures taken by the State party to ensure the full independence of the Ombudsman and on the adequate human and financial resources provided to enable the office to carry out the mandate to independently and impartially monitor and investigate alleged acts of torture and ill-treatment perpetrated by law enforcement personnel. Does the State party speedily pursue the recommendations issued by the Ombudsman?⁵

In accordance with the 2007 Constitution of Montenegro, the Protector of Human Rights and Freedoms of Montenegro (Ombudsman) is an autonomous and independent body which takes measures to protect human rights and freedoms. Law on Protector of Human Rights and Freedoms of Montenegro¹⁷ governs the competence, powers, manner of work and proceedings of the Ombudsman while protecting human rights and freedoms enshrined in the Constitution, laws, ratified international human rights treaties and generally accepted rules of international law, and other issues of importance to his work. Among other things, this Law stipulates that the Ombudsman takes measures to protect human rights and freedoms autonomously and independently, based on the principles of justice and fairness, in cases when they are violated by acts, actions or lack of actions of government agencies, public administrative bodies, local self government bodies and local government bodies, public services and of other holders of public authorities, as well as measures to prevent torture and other forms of inhuman or degrading treatment or punishment and measures for protection against discrimination (Article 2, paragraph 2 of the Law).

Unlike the 2003 Law on the Protector of Human Rights and Freedoms, the new 2011 Law lays down the Ombudsman as a national mechanism for the protection of persons deprived of liberty against torture and other forms of cruel, inhuman or degrading treatment or punishment. In addition to the powers and responsibilities he had in accordance with the previous law and which he has under the valid law, Ombudsman is also entrusted with the taking of measures for the prevention of torture and other forms of inhuman or degrading treatment or punishment (prevention of torture) in accordance with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. While performing the function of the national mechanism for the protection of persons deprived of liberty against torture and other cruel, inhuman or degrading treatment or punishment, the Ombudsman directly cooperates with the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ('SPT').

The 2012 Budget of Montenegro also allocated to the Ombudsman funds for the execution of duties of an independent and impartial monitoring and research of cases of torture and other forms of inhuman or degrading treatment or punishment.

Under the Budget Law, funds allocated for the needs of new mechanisms of the Protector of Human Rights and Freedoms amounted to € 93,496 for the anti-discrimination program and € 105,117 for the anti-torture program.

Rulebook on internal organisation and job descriptions of the Professional Support Service within Ombudsman's Office¹⁸ provides additional specialized duties for Ombudsman's Office related to it being a national preventive mechanism, in charge of protection against torture and the right to trial within a reasonable time. Hence, the Ombudsman is in charge of protecting human rights and freedoms of persons deprived of their liberty and persons whose freedom of movement has been restricted, preventing torture and other forms of inhuman or degrading treatment or punishment, protecting against torture and other forms of inhuman or degrading treatment or punishment by police officers, staff of the criminal sanctions enforcement authorities, or authorities, organizations and institutions accommodating persons whose freedom of movement has been restricted, and protection in the event of delays in proceedings, obvious abuse of procedural powers or failure to enforce judicial decisions.

For the purpose of its national preventive mechanism duties, the Rulebook lays down the positions of 2 new advisors and a deputy. Deputy Protector for Prevention of Torture was appointed in early June 2012. One adviser was employed, and the hiring of another adviser is under way. In addition to the above mentioned new positions, two advisor positions in charge of protection against torture were planned and one advisory position in charge of the right to trial within a reasonable time.

Given that the Law provides for a number of measures in the event of non-compliance with Ombudsman's recommendations within the set deadline, in most cases state bodies, public administrative bodies and public institutions to which the Ombudsman sends its recommendations act upon them and report regularly to the Ombudsman¹⁹. In case of non-compliance with the recommendation within the set deadline, the Ombudsman can inform thereof the directly superior authority, submit a special report to the Parliament of Montenegro or inform the public (Art. 42, para. 2 of the Law). The fulfilment of certain recommendations often requires a longer period of time, so that the Ombudsman continually monitors activities related to their fulfilment.

5. According to information before the Committee, the Council of Europe’s Venice Commission in October 2009 voiced concerns about an amendment to the Law on the Protector of Human Rights. The amendment proposed that the Parliament would appoint the Protector of Human Rights on the proposal of President of Montenegro and designates the Protector of Human Rights as National Preventive Mechanism (NPM). Please provide information on whether this draft law was finally adopted and on the content of its provisions.

Following the proposed amendments to the 2009 Law on the Protector of Human Rights and Freedoms, due to many changes (more than 50% of the text of the Law), it was decided that a completely new version of the Law would be drafted. Several versions were made and the Venice Commission gave its opinion to the new draft Law in 2011. Finally, a new Law on the Protector of Human Rights and Freedoms of Montenegro was passed in July 2011, which partially took into consideration the opinions of the Venice Commission. The Ombudsman is appointed by the Parliament by a simple majority, upon the proposal of the President of Montenegro. Moreover, the institution of the Ombudsman has been appointed as the NPM and as an institutional mechanism for protection against all forms of discrimination.

As for its duties relating to the prevention of torture, the Ombudsman takes measures to prevent torture and other forms of inhuman or degrading treatment and punishment in accordance with the OPCAT. Specifically, the Ombudsman inspects without notice the premises within bodies, organizations, institutions and other places where there is a person placed under arrest or where such a person may be; visits the person placed under arrest and checks the respect of his/her rights without prior notification or authorisation; talks to the person under arrest, as well as with another person who might provide the Ombudsman with the necessary information, without the presence of an official or other person, personally or through an interpreter.

The authority, organization or institution shall, without delay, i.e. within the given time limit, implement the recommendations of the Ombudsman for the prevention of torture and other forms of inhuman or degrading treatment or punishment (Art.25). Establishment of an advisory body with special tasks and powers for the functioning of the NPM is planned in accordance with Article 25. It will be established pursuant to a separate act.

The Ombudsman directly cooperates with the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Art.26).
6. Further to the recommendation of the Committee in the previous concluding observations (paragraph 21 (a) and (b)), has the State party adopted the draft law on domestic violence (Bill on Protection from Domestic Violence)? Please provide detailed information on the measures taken by the State party to prevent combat and punish violence against women, including domestic violence and provide inter alia, free legal aid to the victims. Please provide statistical data on the number of complaints received and investigated during the reporting period, as well as the number of prosecutions and convictions and penalties imposed⁶.

Law on Domestic Violence Protection²⁰ was adopted on 27 July 2010 and entered into force on 14 August 2010. This Law defines domestic violence as "omission or commission by a family member in violating physical, psychological, sexual or economic integrity, mental health and peace of other family member, irrespective of where the incident of violence has occurred" (Article 2). The law governs protection of victims of violence in misdemeanour proceedings and provides five types of protection orders as types of misdemeanour sanctions (Article 20 and Article 26): order of removal from place of residence, restraining order; prohibition of harassment and stalking, mandatory addiction treatment and mandatory psycho-social therapy. The principle of urgency in proceedings relating to protection against violence is also laid down. The obligation to report violence by government agencies, other bodies, health, educational and other institutions has also been introduced.

By adopting the Strategy on domestic violence protection, in July 2011, the Montenegrin government has shown its determination to improve domestic violence protection by providing support to all institutional and non-institutional actors which participate in prevention of domestic violence. The Strategy specifically promotes the application of international standards that protect human rights, promote gender equality and prohibit all forms of violence, including domestic violence. While observing international standards in this field, the Strategy envisages: harmonizing preventive action of all actors in the society (family, educational institutions, health and social services, judicial bodies, the police, NGOs, etc.) in order to prevent domestic violence; public awareness raising on domestic violence issues; continuous education of all entities participating in the process of preventing domestic violence; establishment of a single statistical database on victims of violence as well as on violent persons; identifying and establishing the necessary services that work to prevent domestic violence and provide assistance to victims, but also to violent persons.

The Protocol on Treatment, Prevention and Domestic Violence Protection was signed in November 2011. It defines the procedures and institutional co-operation in relation to domestic violence and violence against women. Signatories of the protocol are the Ministry of Justice, Supreme Court, Supreme Public Prosecutor's Office, Ministry of Education and Sports, Ministry of Labour and Social Welfare, Ministry of Health, Police Directorate, Misdemeanour Panel. In the framework of the campaign The 16 Days of Activism against Gender Violence, which was conducted in 2010, Government of Montenegro adopted the Declaration Proclaiming the 2010 Year of the Fight against Gender Violence and Domestic Violence in Montenegro. Title XIX of the Criminal Code criminalizes both violence against family members or members of a family community²¹ and breach of family obligations and omission to provide maintenance. For example, the Criminal Code prescribes the crime of violence against family members or members of a family community which stipulates that anyone who uses gross violence to violate bodily or mental integrity of his family members or members of a family community will be punished by a fine or a prison term up to one year. Where the above offence was committed by means of weapons, dangerous tools or other instruments suitable for inflicting serious bodily injury or for seriously impairing one’s health the perpetrator will be punished by a prison term from three months to three years. Where the offence in question resulted in serious bodily injury or harm to one’s health or where such offences were committed against a minor, the perpetrator will be punished by a prison term from one to five years. In addition to that, where the offence resulted in the death of a family member of a member of family community, the perpetrator will be punished by a prison term from three to twelve years. Anyone who violates the measures which were ordered on the basis of law by court or other state authority as domestic violence protection will be punished by a fine or a prison term up to six months.

In Montenegro, there are 3 shelters which provide accommodation, assistance and support to potential victims and victims of trafficking in human beings. These shelters are run by NGOs: Crnogorski ženski lobi (Montenegrin Women's Lobby), Sigurna ženska kuća (Safe Women's House) and SOS Nikšić.

The Government is devoting great attention to the protection of victims of trafficking in human beings; therefore, since 2006, it has fully assumed through the Office for Fight against Trafficking in Human Beings the funding of the Shelter for Victims of Trafficking in Human Beings, run by the activists of NGO Montenegrin Women's Lobby. That is to say, further to the agreement signed between the Office for Fight against Trafficking in Human Beings and the NGO Montenegrin Women's Lobby, on the project to protect victims of trafficking in Montenegro, the Office committed to cover from its own resources all the expenses that are necessary for the smooth functioning of the Shelter.

According to statistics obtained from the NGO Montenegrin Women's Lobby, the Government's Shelter accommodated 45 wards in the period since 2009 to date (in 2009 - 18, in 2010 - 16, in 2011 - 6 and in 2012 - 5 wards). Of this number, on the basis of final convictions, there were 3 victims of trafficking in human beings.

STATISTICAL DATA ON THE NUMBER OF RECEIVED AND INVESTIGATED REPORTS OF DOMESTIC VIOLENCE DURING THE REPORTING PERIOD AND THE NUMBER OF PROSECUTIONS, CONVICTIONS AND PENALITES IMPOSED - ANNEX I

Pursuant to the provisions of the Law on Legal Aid (Official Gazette of Montenegro 20/2011), the victim of the crime of violence in the family or family community is entitled to free legal aid.

Within the scope of the IPA 2010 Gender Equality Programme implemented by the Montenegrin Gender Equality Department (Ministry of Minority Rights) and the UNDP, with EU financial assistance, a special segment of the activities relates to the fight against domestic violence. In this connection, the project Advisory Committee has been established in this field, which consists of representatives of institutions and NGOs dealing with this issue. The establishment of multidisciplinary teams at the local level is on-going. They will provide a complete and coordinated protection of victims of domestic violence, in conformance to the Law on Domestic Violence Protection. Teams are established within the 10 centres for social welfare.
7. Further to the recommendation of the Committee in the previous concluding observations (paragraph 23), please provide information on measures taken by the State party to make trafficking in persons a criminal offence and to prosecute and punish perpetrators and ensure the provision of free legal aid, recovery and reintegration services to victims of trafficking. Please provide statistical data on the number of complaints received and investigated during the reporting period, as well as the number of prosecutions and convictions and punishment imposed⁷.      

In Title XXXV the Criminal Code of Montenegro prescribes criminal offences against humanity and other values guaranteed by international law. A number of these offenses are related to trafficking in human beings: trafficking in persons (Art. 444), trafficking in children for adoption (Art. 445) submission to slavery and transportation of enslaved persons (Art. 446). Title XVIII - Crimes against Sexual Freedom criminalises offenses of solicitation and making arrangements for sex act (Article 209) and pandering (Article 210). Title XXXII - Criminal Offences against Public Law and Order includes primarily heterogeneous criminal offenses. Very important criminal offenses are laid down under Article 399 - violent behaviour, criminal association (401), establishment of criminal organization (401a) and illegal crossing of state border and smuggling of persons (Article 405).

Further to the provisions of the Law on Legal Aid²² a victim of a crime of trafficking in persons is entitled to free legal aid. Government's 2012 Programme of Work established the obligation of preparing a proposal for a Law on the Compensation of Victims of Serious Crimes. This Law will govern the right to financial compensation for victims of violent crimes committed with wrongful intention, conditions and procedure for exercising the right to compensation, decision making bodies and bodies that participate in the decision making on the right to compensation, the authorities and the procedure to be used in cross-border cases.

The Government of Montenegro was among the first in the region to adopt the National strategy to combat trafficking in human beings, as the basic document containing guidelines for the conduct of all relevant stakeholders in the fight against trafficking in human beings in Montenegro, through prevention, protection and prosecution of perpetrators. The National Strategy is divided into three parts: prosecution, protection and prevention, and has a comprehensive approach to the problem of trafficking in human beings. Implementation of the National strategy and of individual Action plans are monitored by the Working Group formed as a multi-agency body, consisting of representatives of the judiciary, Public Prosecution Office, Ministry of Justice and Human Rights, Ministry of Health, Ministry of Labour and Social Welfare, Ministry of Education and Science, Police Directorate, Ministry of Foreign Affairs and European Integration, Ministry of Interior, Ministry of Minority Rights, Ministry of Culture and Media at the level of assistant ministers, as well as representatives of the U.S. Embassy, ​​international organizations - OSCE and IOM, UNICEF and European Delegation representatives as observers.

For the purpose of achieving the objectives given in the National strategy to combat trafficking in human beings 4 action plans have been adopted and implemented (from 2003, 2006, 2009, 2010-2011). A Monitoring Working Group is tasked with monitoring the implementation of the National strategy to combat trafficking in human beings and action plans; among other things, it is tasked with preparing semi-annual reports on the implementation of the above-mentioned documents.

The last report on the implementation of the National strategy to combat trafficking in human beings and the Action plan for the period 1 July to 31 December 2011 was adopted at the session of the Government on 21 June 2012.

Taking into account the assessment of members of the Monitoring Working Group, that the 2003 National strategy to combat trafficking in human beings was fully implemented, in 2011 the Office for Fight against Trafficking in Human Beings presented an initiative to develop a new strategic document. Numerous representatives of state bodies and institutions that are directly or indirectly involved in fighting trafficking in human beings were involved in developing this document, as well as representatives of non-governmental and international organizations.