CAT/C/33/D/207/2002
Page 3
The facts as submitted by the complainant
2.1
The complainant was arrested on 27 October 1999 at around 11 a.m. at his
home in Kragujevac, Serbia, in connection with the investigation of a crime. He was
taken to the local police station located in Svetozara Markovica Street. Upon arrival
he was handcuffed to a radiator and beaten up by several police officers, some of
whom the complainant knew by their first names or their nicknames. The police
officers kicked and punched him all over his body while insulting his ethnic origins
and cursing his “gypsy mother”. One of the officers struck the complainant with a big
metal bar. Some time later the officers unfastened the complainant from the radiator
and handcuffed him to a bicycle. Then they continued punching and beating him with
their nightsticks and the metal bar. At one point the complainant began bleeding from
his ears, despite which the beating continued until he was released at about 4.30 p.m.
2.2
As a result of the ill-treatment the author had to stay in bed for several days.
He sustained injuries on both arms and legs, an open wound on the back of his head
and numerous injuries all over his back. For several days following the incident he
bled from his left ear and his eyes and lips remained swollen. Fearing reprisals by the
police the complainant did not go to hospital for treatment. Consequently, there is no
official medical certificate documenting the injuries referred to above. The
complainant, however, has provided the Committee with written statements from his
mother, his sister and a cousin indicating that the he was in good health when he was
arrested and severely injured at the time of his release.
2.3
On 31 January 2000, the complainant, through counsel, filed a criminal
complaint with the Kragujevac Municipal Public Prosecutor’s Office alleging that he
had been the victim of the crimes of slight bodily harm and civil injury, as provided
for under articles 54(2) and 66 of the Serbian Criminal Code respectively. As there
was no response for almost six months following the submission of the complaint, the
complainant wrote a letter to the Public Prosecutor’s Office on 26 July 2000
requesting an update on the status of the case and invoking, in particular, article 12 of
the Convention. By the time the complainant submitted his case to the Committee, i.e.
more than 23 months after the submission of the criminal complaint, no response had
been received from the Public Prosecutor.
2.4
The complainant claims that he has exhausted available domestic criminal
remedies and refers to international jurisprudence according to which only a criminal
remedy can be considered effective and sufficient in addressing violations of the kind
at issue in the instant case. He also refers to the relevant provisions of the State
Party’s Criminal Procedure Code (CPC) setting forth the obligation of the Public
Prosecutor to undertake measures necessary for the investigation of crimes and the
identification of the alleged perpetrators.
2.5
Furthermore, under article 153 (1) of the CPC, if the public prosecutor decides
that there is no basis for the institution of a formal judicial investigation he must
inform the complainant, who can then exercise his prerogative to take over the
prosecution in the capacity of a “private prosecutor”. However, the CPC sets no time
limit in which the public prosecutor must decide whether or not to request a formal
judicial investigation. In the absence of such decision the victim cannot take over the
prosecution of the case on his own behalf. Prosecutorial inaction following a