Drugi periodični izvještaj crne gore komitetu protiv torture

22. Further to the recommendation of the Committee in the previous concluding observations (paragraph 18 and 19), please provide information on measures taken by the State party to ensure that any individual who alleges that he/she has been subjected to torture or ill-treatment has the effective right to file a complaint with the competent authorities without any impediment, including threat of prosecution, and that protection is provided to such complainants.²

Art. 120-132 of the Criminal Procedure Code provide for the protection of witnesses against intimidation, special modes for protected witnesses' procedural participation and hearing, the manner of taking a decision on special modes of participating and hearing witnesses, data protection, probative value of the testimony of a protected witness and protection of the injured party while giving testimony to whom the provisions of Art. 120-123 apply accordingly regarding his participation and hearing. These Articles also concern the protection of cooperative witnesses, the manner of determining the cooperative witness status and the evidentiary significance of his statement.

On such terms as provided for by the Law on Enforcement of Criminal Sanctions, every sentenced person has the right to: legal aid, work, information, health care, correspondence, visits, receiving shipments, married life, religious life, as well as other rights stipulated by law and by-laws. Sentenced persons have the right to complain, if they find that one of their rights were violated in connection with the execution of sentence or due to other irregularities they had to suffer. Sentenced persons are ensured protection of the rights guaranteed under this law at the level of the organization responsible for sentence execution - Institution for Enforcement of Criminal Sanctions. Hence, a complaint may be submitted against the decision of the head of the organizational unit, of which the head of the Institution takes a decision. Court protection of the rights of sentenced persons is also provided in administrative disputes (action against the head of the Institution). Where means of force are used against the sentenced person, the Institution for Enforcement of Criminal Sanctions has to draw and submit to the Ministry of Justice and Human Rights a report including the findings and assessment concerning police powers overstepping.

Cooperation with the civil society takes place by organizing meetings with a significant number of NGO sector attendees and working on the basis of memoranda of cooperation signed: project Monitoring Respect for Human Rights in Closed Institutions in Montenegro with the NGO Human Rights Action; MoU between the Ministry of Justice and NGO Juventas and NGO Centre for Monitoring (CEMI) - the goal of the project is to reduce the level of human rights violation in Montenegro, as well as to identify and document cases of human rights violations of drug addicts in the legal system of Montenegro, in terms of applying domestic and international standards of fair criminal proceedings; MoU between the Montenegrin Ombudsman and the Institution for Enforcement of Criminal Sanctions, governing the placement of complaint boxes within the prison facilities and their use by detainees and sentenced persons, in order to send complaints to the Montenegrin Ombudsman. The placement of complaint boxes and associated activities are supported by the OSCE Mission to Montenegro through a project aiming to strengthen national institutions for the protection of human rights and NGO-4 Life – which is implementing a project for the treatment of drug addiction, providing psychosocial support and mediation services while testing and treating hepatitis C.

The Ombudsman acts and takes measures in accordance with Art. 24-44 of the Law on the Protector of Human Rights and Freedoms of Montenegro. The Ombudsman has the right to visit a person placed under arrest without prior notification or authorisation and to verify the respect of his rights, to talk to the person under arrest in the absence of an official or another person and to talk to other persons whom the Ombudsman believes to be in possession of the needed information. A person under arrest has the right to file a complaint to the Ombudsman in a sealed envelope. Authorized person of the authority, organisation or institution in which a person under arrest is placed has to deliver to the Ombudsman immediately the complaint or another document of that person, unopened and unread. Upon finalising its examination of violation case of human rights and freedoms, the Ombudsman issues an opinion on whether, how and to what extent violation of human rights and freedoms occurred. When the Ombudsman finds that there has been a violation of human rights and freedoms, his opinion contains as well a recommendation as to what needs to be done in order to remedy the said violation, as well as a time limit for its elimination. The head or the person managing the authority to whose work the recommendation relates will submit to the Ombudsman, within the given time limit, a report stating the actions taken in order to enforce the recommendation. Should the head or the person managing the authority fail to comply with the recommendation within a given time limit, the Ombudsman may inform the immediate superior authority, submit a special report or inform the public thereon. The Ombudsman will notify the complainant of the results of examining situations of violations of human rights and freedoms by submitting its opinion.

On the objective of facilitating access to the Ombudsman to persons placed under arrest and monitoring the level of protection of their rights (including protection against torture and other cruel, inhuman or degrading treatment or punishment), the Ombudsman, in cooperation with OSCE, placed complaint boxes in early 2012 within the Institution for the Enforcement of Criminal Sanctions (in Podgorica and Bijelo Polje) and within institutions accommodating persons whose freedom of movement has been restricted. These persons can use them to complain to the Ombudsman, if they believe that their rights and freedoms have been violated, including torture and other forms of illegal behaviour. The keys of the boxes are kept by the persons authorised by the Ombudsman, and the takeover of complaints is done once in 15 days. So far, a total of 46 complaints were taken from the boxes, of which 39 in Podgorica and 7 in Bijelo Polje. Complaints were mostly related to the work of prison administration and staff, the work of courts, prosecution office and Police Directorate officers, the work of the Parole Commission and inadequate health care. A couple of complaints had the form of a letter asking the Ombudsman to pay the person a visit or addressed to another agency or NGO.

23. Further to the recommendation of the Committee in the previous concluding observations (paragraph 19), please provide information on the implementation and enforcement of the Law on Witness Protection of 2005, including statistical data on the number of complaints received and investigated, as well as the number of prosecutions and convictions.²¹

As for the implementation of the Protection Programme, during 2008 Witness Protection Unit was in charge of bringing safely 17 persons to the hearings scheduled before the courts of appropriate jurisdiction. These activities were carried out under special written orders of the Head of Unit. In one case, at the request of the person included in the protection program, the program was terminated. In terms of the Protection Programme implementation, during 2009 Witness Protection Unit was in charge of bringing 64 witnesses to the hearings scheduled before the courts of appropriate jurisdiction who attended the hearings on 70 occasions. Protection was provided to one person while being brought to the prison to serve his sentence. In the course of these activities, the Unit had positive experiences in cooperation with the High Court in Podgorica, High Court in Bijelo Polje, Basic Court in Rožaje, Prison in Bijelo Polje, NGO Montenegrin Women's Lobby (Government's Shelter for THB victims) and Police Department of Dubrovnik-Neretva County (Croatia). These activities were carried out under special written orders of the Head of Unit and in line with predetermined plans approved by the Assistant Director in charge of the Criminal Police Department. The Witness Protection Program Commission took a decision at its session to apply the protection program towards one person. Complying with that decision, an interview was held with the said person during which he gave a statement that he did not wish to be the subject of the protection program. He also stated that he was satisfied with the protection provided to him by the local police and that he is interested in that kind of protection only. In terms of its witness protection activities, during 2010, Witness Protection Unit was in charge of bringing 3 witnesses to the hearings scheduled before the courts of appropriate jurisdiction who attended criminal case hearings on 3 occasions. In terms of its witness protection activities, during 2011, Witness Protection Unit was in charge of bringing 4 witnesses to the hearings scheduled before the courts of appropriate jurisdiction. Assistance was provided to the Witness Protection Unit of the Republic of Serbia regarding one person included in the Witness Protection Program, during that person's stay in the territory of Montenegro (in total five persons towards whom non-procedural protection measures were taken). The Unit did not have any activities in the first half of 2012 in terms of provision and implementation of measures to protect witnesses.

24. Please provide detailed information on measures taken to eradicate all forms of ill-treatment by law enforcement officials, and to ensure prompt, thorough, independent and impartial investigations into all allegations of torture and ill-treatment, prosecute and punish perpetrators and provide effective remedies to the victims. Please include statistical data on the number of complaints received and investigated, as well as the number of prosecutions and convictions.²²
The strategic goal of the Police Directorate, in the process of implementing reforms, is the establishment of a professional, depoliticized and efficient organization subject to democratic control, in line with European standards, with the primary objective to respect human rights and freedoms. Law on Home Affairs laid down control of police work within the police itself, but also the external form of control at the state level. Three forms of control were established as standards: parliamentary, civic and internal control of police work. Internal control is a separate organizational unit within the Ministry of Interior tasked with controlling the legality of performing police duties, especially with regard to the respect and protection of human rights while carrying out policing tasks and applying police powers (Art.114 of the Law on Home Affairs). External control over the legality of the work of police is exercised by the Parliament of Montenegro, through its competent bodies. This form of external control is regulated in the manner appropriate to European standards. The Security and Defence Committee exercises parliamentary control of the work of police and of the National Security Agency. In addition to external and internal controls, the civic form of control was set up, via the Council for Civic Control of the Police, which consists of five members appointed by: the Bar Association of Montenegro, Chamber of Physicians of Montenegro, Association of Lawyers of Montenegro, University of Montenegro and NGOs dealing with human rights. Upon the request of the Council, the Police Directorate provides the necessary information and notifications. Finally, it is certain that the most important control of the Police Directorate is the one performed daily by citizens who can directly see the actions of the police and their results.

On the basis of Article 10 para. 3 of the Law on Police and upon the proposal of the Police Director, Ministry of Interior passed the Code of Police Ethics.²⁹ Currently valid Law on Home Affairs states in Art. 15 para. 2 that the Code is adopted by the Ministry. Under Article 21 of the Code of Ethics, Minister of Interior issued a Decision on the establishment of the Ethics Committee in charge of investigating police conduct. The committee consists of seven members: 4 officers of the Police Directorate, 1 representative of the Ministry of Interior, 1 representative of the NGO sector and 1 representative of the Police Academy.

Police Directorate is paying more attention and investing visible efforts to develop the personal and professional integrity of police officers and not any less important, to ensure institutional integrity. It does so via professional training of staff at courses, seminars, workshops, etc.

STATISTICAL DATA ON THE NUMBER OF COMPLAINTS RECEIVED AND INVESTIGATED, AS WELL AS THE NUMBER OF PROSECUTIONS OF TORTURE AND CONVICTIONS - ANNEX V

In accordance with the Law, the Ombudsman may present an initiative to commence disciplinary proceedings or dismissal proceedings against persons whose commission or omission breached human rights and freedoms. As regards the misdemeanours prescribed, the Ombudsman may submit a request to commence misdemeanour proceedings (Article 44). In 3 cases the Ombudsman recommended to the Institution for Enforcement of Criminal Sanctions to commence disciplinary proceedings: in the first case against 5 persons (the Institution initiated proceedings against 3 persons), in the second case against 1 person and in the third case against 2 persons.

25. Please provide detailed information on measures taken to ensure the efficient and effective investigation of complaints and reports of alleged torture, including statistical data, disaggregated by crime, ethnicity and gender, on complaints relating to torture, attempted torture and complicity or participation in torture, which have been filed during the reporting period, as well as related investigations, prosecutions, convictions and penal and disciplinary sentences.²³

Accountability of police officers

Accountability for breaching the law and acting contrary to the powers is established in each case during disciplinary proceedings before the police bodies. Disciplinary responsibility of police officers is outlined in detail in Art. 104-109 of the Law on Home Affairs (formerly Art.79-85 of the Law on Police). Police officers who are perpetrators of crimes are held responsible before the courts of appropriate jurisdiction as all other citizens. A person who believes that his rights or freedoms were violated by the performance of police duties or that performance of police duties inflicted him damage is entitled to court protection and compensation.

Where means of force are used against the detained person, the Institution for Enforcement of Criminal Sanctions has to draw up and submit to the Ministry of Justice and Human Rights a report including the findings and assessment concerning powers overstepping. In turn, the head of the Institution is obliged to inform thereof the president of the court who exercised control concerning the lawful treatment of detainees. Activities of the Institution's administration are aimed at eliminating any form of torture by the staff of the Institution, focusing on training, especially of the security staff, concerning the topics related to human rights, with emphasis on the fight against torture and inhuman or degrading treatment or punishment of persons under arrest. Sentenced persons and detainees are enabled to report possible cases of torture to the competent instances at the Institution, by using complaint boxes that were set up in all organizational units, as well as government bodies and NGOs representatives.

Law on Enforcement of Criminal Sanctions also prescribes the legality of prison term enforcement via the authorised employee of the Ministry of Justice. Having interviews with sentenced persons, determining the necessary facts and acting upon sentenced persons' complaints is an extremely successful form of suppressing all forms of torture. Job descriptions of these officers clearly state that they would be performing tasks related to protection against torture. Based on the reports filed by authorized staff, the Minister of Justice orders measures to eliminate the irregularities found and the head of the organization has to comply with the order immediately.

STATISTICAL DATA, DISAGGREGATED BY CRIME, ETHNICITY AND GENDER, ON COMPLAINTS RELATING TO TORTURE, ATTEMPTED TORTURE AND COMPLICITY OR PARTICIPATION IN TORTURE, WHICH HAVE BEEN FILED DURING THE REPORTING PERIOD, AS WELL AS RELATED INVESTIGATIONS, PROSECUTIONS, CONVICTIONS AND PENAL AND DISCIPLINARY SENTENCES - ANNEX VI

26. Please provide information on the measures taken to investigate and prosecute those responsible of the alleged torture of Aleksandar Pejanović and of the alleged ill-treatment of Dalibor Nikezić, Igor Milić and Vladana Kljajić.

In relation to the torture case against Aleksandar Pejanović, Basic Public Prosecutor’s Office in Podgorica formed the case Kt.br.829/09 and filed a bill of indictment on 01/09/2009 against Ivica Paunović, Goran Stanković, Milan Kljajević, Bojan Radunović, Milanko Leković and Dobrivoje Djuričić on the account of the crime - torture and ill-treatment under Article 167, para. 3 in conjunction with paragraph 2 of the Criminal Code. The judgment K.br.09/1172 of 08/06/2010 of the Basic Court in Podgorica declared Ivica Paunović, Milan Kljajević and Milanko Leković guilty. Paunović was sentenced to a prison term of 3 months, while Kljajević and Leković were sentenced to prison terms of 5 months each. However, the prosecutor withdrew from further prosecution of Goran Stanković, Bojan Radunović and Dobrivoje Djuričić, issued a judgment dismissing the charge. Basic Public Prosecutor's Office appealed to the High Court in Podgorica against the said judgment. The High Court issued a decision Kž.br.2387/10 of 23/10/2010 upholding the appeal and the case was remanded for retrial. The procedure is on-going.

In relation to the torture case against Dalibor Nikezić and Igor Milić, on 27/10/2009 in Podgorica Prison, the Basic Public Prosecutor's Office in Podgorica opened three cases:

1) Case Kt.br.189/10 under criminal complaints filed by parents of the injured parties, against Igor Marković, Radovan Todorović and several unidentified perpetrators on account of the crime of ill-treatment under Article 166a of the Criminal Code. After conducting preliminary investigation, the criminal complaint was dismissed due to lack of a reasonable doubt that the reported crime or another crime which is prosecuted ex officio had been committed. The injured parties were delivered a decision dismissing the criminal complaint and instructed of their right to assume prosecution. The injured parties have assumed prosecution by submitting a request to investigate to the Basic Court in Danilovgrad. The Criminal Chamber of the Basic Court in Danilovgrad upheld the disagreement of the investigating judge with the request to investigate. The High Court in Podgorica dismissed the appeal of the injured parties and confirmed the said decision.

2) The case Kt.br.684/10 was opened pursuant to the complaint of injured parties filed against 10 persons on account of the crime of torture under Article 167 of the Criminal Code, in concurrence with the crime of grievous bodily injury under Article 151 of the Criminal Code. After conducting preliminary investigation, the criminal complaint was dismissed due to lack of a reasonable doubt that the reported crime or another crime which is prosecuted ex officio had been committed. The injured parties were delivered a decision dismissing the criminal complaint and instructed of their right to assume prosecution.

3) The case Kt.br.66/10 pursuant to the criminal complaint filed by Milijana Milić, mother of the injured Igor Milić, against one person on account of the crime of torture under Article 167 of the CC and on account of the crime coercion under Article 165 of the CC. After conducting preliminary investigation, the criminal complaint was dismissed and the injured party was delivered a decision instructing him of the right to assume prosecution.

In relation to the torture case against Vladana Kljajić, the Basic Public Prosecutor's Office in Podgorica opened the case Kt.br.1542/08 and filed a bill of indictment on 06/04/2009 against Vukica Vukićević and Sandra Brajović, security staff at the Institution for the Execution of Criminal Sanctions, on account of the crimes of torture and ill-treatment under Article 167, para. 3, in conjunction with para. 2 of the CC in concurrence with the crime of light bodily injury under Art. 152, para. 2 in conjunction with para. 1 of the CC, committed to the detriment of Vladana Kljajić. The judgment of the Basic Court in Danilovgrad K.br.13/09 of 31/01/2011 declared the accused Vukica Vukićević and Sandra Brajović guilty and sentenced them to suspended sentences involving prison terms of 4 months each. The judgment also specified that the prison terms will not be enforced if they do not commit a new criminal offence within two years after the judgment becomes final. The Basic Public Prosecutor's Office filed a complaint against this judgment on 25/03/2011, which the High Court in Podgorica rejected by its decision Kž.br.806/11 of 26/05/2011 and confirmed the first instance judgment.

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

27. Further to the recommendation of the Committee in the previous concluding observations (paragraph 20), please provide detailed information on measures taken by the State party to ensure that victims of acts of torture have an enforceable right to claim from the State party fair and adequate compensation, including the means for full rehabilitation. Please include the number of requests filed, the number granted, the amounts ordered and those actually provided in each case.²⁴  

Title XXX of the Criminal Procedure Code³⁰ stipulates the proceedings for rehabilitation, termination of legal consequences of conviction and security measures while Title XXXI stipulates the proceedings for compensation of damages, rehabilitation and exercise of other rights of unjustifiably convicted persons, persons illegally or groundlessly deprived of liberty. Hence, Art. 498-506 stipulate that persons who have been unlawfully or groundlessly placed under arrest of unjustifiably sentenced shall be entitled to rehabilitation, the right to damages from the state, as well as other rights laid down by law. The right to damages for groundless conviction is one of the basic rules laid down by the Criminal Procedure Code. In addition to this right, another stipulated right is the one to damages for persons groundlessly placed under arrest. As regards the above right, persons groundlessly placed under arrest are obliged to submit to the Ministry of Justice and Human Rights a request for damage agreement including the type and amount of compensation. If an agreement is not reached with the Ministry of Justice and Human Rights, persons may bring an action before the court of appropriate jurisdiction. The right to damages becomes barred by limitation within three years. There are also provisions on the inheritance of the right to compensation of damages, provided that the injured party died before the period of limitation expired and that the injured party did not waive this claim.

An overview of the Criminal Procedure Code provisions relating to compensation of damages, rehabilitation and exercise of other rights of unjustifiably convicted persons, persons illegally or groundlessly deprived of liberty (Art. 498-506).