A/HRC/40/59/Add.1
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (12
March 2001), the Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (26 September 2006) and the International
Covenant on Civil and Political Rights (12 March 2001). Serbia accepts the inquiry
procedure and the individual complaints procedure under the Convention against Torture.
9.
At the regional level, Serbia is party to the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights) (3 March
2004) and the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment and receives regular visits from the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment.
2.
National level
Criminalization of torture and ill-treatment
10.
Articles 25 and 28 of the Serbian Constitution, articles 136 and 137 of the 2005
Criminal Code and articles 9 and 16 of the 2013 Criminal Procedure Code provide legal
standards for the prevention and investigation of torture and other forms of ill-treatment and
for the exclusion of evidence extracted under torture.
11.
The Special Rapporteur noted with concern, however, that articles 136 and 137 of
the Criminal Code still do not expressly criminalize acts of torture and other cruel, inhuman
or degrading treatment or punishment perpetrated at the instigation, or with the consent or
acquiescence of a public official or other person acting in an official capacity. The Special
Rapporteur also noted with concern that the upper limits of the penalties provided for in the
Criminal Code are not commensurate with the potential gravity of the crime of torture and
other cruel, inhuman or degrading treatment or punishment. Criminal accountability for acts
of torture and other ill-treatment is further restricted by the currently applicable statute of
limitations.
12.
In order to ensure full compliance with international standards on the prohibition of
torture and other cruel, inhuman or degrading treatment or punishment, the Special
Rapporteur strongly recommends that the responsible authorities take urgent action: (a) to
amend the Criminal Code so as to penalize the full spectrum of acts covered by articles 1
and 16 of the Convention against Torture, (b) to significantly increase the maximum
penalties for such offences and (c) to remove all statutes of limitations for such offences.
Fundamental safeguards
13.
Sections 291, 294 and 69 of the Criminal Procedure Code provide sufficient
safeguards against arbitrary arrest and detention, which the Special Rapporteur found to be
generally well observed.
14.
Formally, the right to have access to a lawyer is guaranteed from the arrest to the
conviction or acquittal of any individual. However, the Special Rapporteur and his team
have received persistent allegations from a number of individuals claiming to have been
tried and sentenced without any assistance from a lawyer, despite their request for ex
officio counsel, and from several other individuals claiming that the ex officio counsel
provided to them had insufficient expertise and motivation to ensure an effective legal
representation. The Special Rapporteur also received several allegations that, after
sentencing, convicts were presented with invoices not only for the court fees, but also for
the services of their ex officio defence counsel.
15. While medical examinations seem to be routinely carried out at the outset of custody,
the forensic expert accompanying the mission was able to confirm that the medical doctors
performing such examinations generally had not received specialized training and did not
have sufficient expertise in the investigation and documentation of physical and
psychological signs of torture and other ill-treatment and in the interpretation of the
resulting injuries.
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