Jan. 27: Trigger for War - MOBILIZE FOR JAN. 18!

From: "Andrej Tisma" <[email protected]>
> > January 27 - the Trigger for War
> > WHY WE MUST ACT NOW!
> > MOBILIZE FOR JANUARY 18:
> > National March on Washington
> > to Stop Bush's War on Iraq

Well Andrej Tisma, instead of sticking your head in the sand, you might want
to mobilize against the torture of ethnic minorities (Romani) in your own
homeland, instead of maintaining your posture of denial and blaming of
foreigners.
=================================================
From: Panayote Dimitras <panayote@g…>
Date: Tue Dec 31, 2002 2:45 pm
Subject: UN CAT: Yugoslavia Violated Treaty in 1995 Danilovgrad
(Montenegro) Roma Families Eviction

Communication No 161/2000 : Yugoslavia. 02/12/2002.
CAT/C/29/D/161/2000. (Jurisprudence)

http://www.unhchr.ch/tbs/doc.nsf/0ac7e03e4fe8f2bdc125698a0053bf66/b5238fc275
3697
19c1256c95002fca4f?OpenDocument

Convention Abbreviation: CAT
Committee Against Torture Twenty-ninth session 11 - 22 November 2002

ANNEX

Decisions of the Committee Against Torture under article 22 of the
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment

- Twenty-ninth session


Complaint No. 161/2000
Submitted by: Hajrizi Dzemajl et al. (represented by counsel)
Alleged victim: Hajrizi Dzemajl et al.

State Party: Yugoslavia

Date of complaint: 11 November 1999

Date of present decision: 21 November 2002

The Committee against Torture, established under Article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment
or Punishment,

Meeting on 21 November 2002,

Having concluded its consideration of complaint No. 161/2000,
submitted to
the Committee against Torture by Mr. Hajrizi Dzemajl et al. under
article
22 of the Convention against Torture and Other Cruel, Inhuman or
Degrading
Treatment or Punishment,

Having taken into account all information made available to it by the
complainants, their counsel and the State party,

Adopts the following:


Decision under article 22, paragraph 7, of the Convention

1.1 The complainants are 65 persons, all of Romani origin and
nationals of
the Federal Republic of Yugoslavia. They claim that Yugoslavia has
violated
articles 1, paragraph 1, 2, paragraph 1, 12, 13, 14 and 16, paragraph
1, of
the Convention. They are represented by Mr. Dragan Prelevic, attorney
at
law, the Humanitarian Law Center, an NGO based in Yugoslavia, and the
European Roma Rights Center, an NGO based in Hungary. 1.2 In
accordance
with article 22, paragraph 3 of the Convention, the Committee
transmitted
the complaint to the State party on 13 April 2000.


The facts as presented by the complainants 2.1 On 14 April 1995 at
around
10 p.m., the Danilovgrad Police Department received a report
indicating
that two Romani minors had raped S.B., a minor ethnic Montenegrin
girl. In
response to this report, around midnight, the police entered and
searched a
number of houses in the Bozova Glavica Roma settlement and brought
into
custody all of the young male Romani men present in the settlement
(all of
them presently among the complainants to this Committee). 2.2 The same
day,
around midnight, two hundred ethnic Montenegrins, led by relatives and
neighbours of the raped girl, assembled in front of the police station
and
publicly demanded that the Municipal Assembly adopt a decision
expelling
all Roma from Danilovgrad. The crowd shouted slogans addressed to the
Roma,
threatening to "exterminate" them and "burn down" their houses. 2.3
Later,
two Romani minors confessed under duress. On 15 April, between 4 and 5
a.m., all of the detainees except those who confessed were released
from
police custody. Before their release, they were warned by the police
to
leave Danilovgrad immediately with their families because they would
be at
risk of being lynched by their non-Roma neighbours. 2.4 At the same
time,
police officer Ljubo Radovic came to the Bozova Glavica Roma
settlement and
told the Romani residents of the settlement that they must evacuate
the
settlement immediately. The officer's announcement caused panic. Most
residents of the settlement fled towards a nearby highway, where they
could
take buses for Podgorica. Only a few men and women remained in the
settlement to safeguard their homes and livestock. At approximately 5
a.m.,
police officer Ljubo Radovic returned to the settlement, accompanied
by
police inspector Branko Micanovic. The officers told the remaining
Roma
still in their homes (including some of the complainants) to leave
Danilovgrad immediately, as no one could guarantee their safety or
provide
them with protection.

2.5 The same day, at around 8 a.m., a group of non-Roma residents of
Danilovgrad entered the Bozova Glavica Roma settlement, hurling stones
and
breaking windows of houses owned by the complainants. Those Roma who
had
still not left the settlement (all of them presently among the
complainants
to this Committee) were hidden in the cellar of one of the houses from
which they eventually managed to flee through the fields and woods
towards
Podgorica. 2.6 In the course of the morning of 15 April, a police car
repeatedly patrolled the deserted Bozova Glavica settlement. Groups of
non-Roma residents of Danilovgrad gathered in different locations in
the
town and in the surrounding villages. Around 2 p.m. the non-Roma crowd
arrived in the Bozova Glavica settlement - in cars and on foot. Soon a
crowd of at least several hundred non-Roma (according to different
sources,
between 400 and 3,000 persons were present) assembled in the then
deserted
Roma settlement. 2.7 Between 2 and 3 p.m., the crowd continued to grow
and
some began to shout: "We shall evict them!" "We shall burn down the
settlement!" "We shall raze the settlement!" Shortly after 3 p.m., the
demolition of the settlement began. The mob, with stones and other
objects,
first broke windows of cars and houses belonging to Roma and then set
them
on fire. The crowd also destroyed and set fire to the haystacks,
farming
and other machines, animal feed sheds, stables, as well as all other
objects belonging to the Roma. They hurled explosive devices and
"Molotov"
cocktails that they had prepared beforehand, and threw burning cloths
and
foam rubbers into houses through the broken windows. Shots and
explosions
could be heard amid the sounds of destruction. At the same time,
valuables
were looted and cattle slaughtered. The pogrom endured unhindered for
hours. 2.8 Throughout the course of this pogrom, police officers
present
failed to act in accordance with their legal obligations. Shortly
after the
attack began, rather than intervening to halt the violence, these
officers
simply moved their police car to a safe distance and reported to their
superior officer. As the violence and destruction unfolded, police
officers
did no more than feebly seek to persuade some of the attackers to calm
down
pending a final decision of the Municipal Assembly with respect to a
popular request to evict Roma from the Bozova Glavica settlement. 2.9
The
outcome of the anti-Roma rage was that the whole settlement was
levelled
and all properties belonging to its Roma residents burnt or completely
destroyed. Although the police did nothing to halt the destruction of
the
Roma settlement, they did ensure that the fire did not spread to any
of the
surrounding buildings, which belonged to the non-Roma. 2.10 The police
and
the investigating magistrate of the Basic Court in Danilovgrad
subsequently
drew up an on-site investigation report regarding the damage caused by
those who took part in the pogrom. 2.11 Official police documents, as
well
as statements given by a number of police officers and other witnesses
alike, both before the court and in the initial stage of the
investigation,
indicate that the following non-Roma residents of Danilovgrad were
among
those who took part in the destruction of the Bozova Glavica Roma
settlement: Veselin Popovic, Dragisa Makocevic, Gojko Popovic, Bosko
Mitrovic, Joksim Bobicic, Darko Janjusevic, Vlatko Cacic, Radojica
Makocevic. 2.12 Moreover, there is evidence that police officers
Miladin
Dragas, Rajko Radulovic, Dragan Buric, Djordjije Stankovic and Vuk
Radovic
were all present as the violence unfolded and did nothing or not
enough to
protect the Roma residents of Bozova Glavica or their property. 2.13
Several days following the incident, the debris of the Roma settlement
was
completely cleared away by heavy construction machines of the Public
Utility Company. All traces of the existence of the Roma in
Danilovgrad
were obliterated. 2.14 Following the pogrom, and pursuant to the
relevant
domestic legislation, on 17 April 1995, the Podgorica Police
Department
filed a criminal complaint with the Basic Public Prosecutor's Office
in
Podgorica. The complaint alleged that a number of unknown perpetrators
had
committed the criminal offence of causing public danger under article
164
of the Montenegrin Criminal Code and, inter alia, explicitly stated
that
there are "reasonable grounds to believe that, in an organized manner
and
by using open flames & they caused a fire to break out … on 15 April
1995
& which completely consumed dwellings & and other propert[ies]
belonging to
persons who used to reside in & [the Bozova Glavica] settlement".
2.15 On 17 April 1995 the police brought in 20 individuals for
questioning.
On 18 April 1995, a memorandum was drawn up by the Podgorica Police
Department which quoted the statement of Veselin Popovic as follows:
"… I
noticed flames in a hut which led me to conclude that the crowd had
started
setting fire to huts so I found several pieces of foam rubber which I
lit
with a lighter I had on me and threw them, alight, into two huts, one
of
which caught fire."
2.16 On the basis of this testimony and the official police
memorandum, the
Podgorica Police Department ordered, on 18 April 1995, that Veselin
Popovic
be remanded into custody, on the grounds that there were reasons to
believe
that he had committed the criminal offence of causing public danger in
the
sense of article 164 of the Montenegrin Criminal Code. 2.17 On 25
April
1995, and with respect to the incident at the origin of this
complaint, the
Public Prosecutor instituted proceedings against one person only -
Veselin
Popovic. 2.18 Veselin Popovic was charged under article 164 of the
Montenegrin Criminal Code. The same indictment charged Dragisa
Makocevic
with illegally obtaining firearms in 1993 - an offence unrelated to
the
incident at issue notwithstanding the evidence implicating him in the
destruction of the Roma Bozova Glavica settlement. 2.19 Throughout the
investigation, the investigating magistrate of the Basic Court of
Danilovgrad heard a number of witnesses all of whom stated that they
had
been present as the violence unfolded but were not able to identify a
single perpetrator. On 22 June 1995, the investigating magistrate of
the
Basic Court of Danilovgrad heard officer Miladin Dragas. Contrary to
the
official memorandum he had personally drawn up on 16 April 1995,
officer
Dragas now stated that he had not seen anyone throwing an inflammable
device, nor could he identify any of the individuals involved. 2.20 On
25
October 1995, the Basic Public Prosecutor in Podgorica requested that
the
investigating magistrate of the Basic Court of Danilovgrad undertake
additional investigation into the facts of the case. Specifically, the
prosecutor proposed that new witnesses be heard, including officers
from
the Danilovgrad Police Department who had been entrusted with
protecting
the Bozova Glavica Roma settlement. The investigating magistrate of
the
Basic Court of Danilovgrad then heard the additional witnesses, all of
whom
stated that they had seen none of the individuals who had caused the
fire.
The investigating magistrate took no further action. 2.21 Due to the
"lack
of evidence", the Basic Public Prosecutor in Podgorica dropped all
charges
against Veselin Popovic on 23 January 1996. On 8 February 1996, the
investigating magistrate of the Basic Court of Danilovgrad issued a
decision to discontinue the investigation. From February 1996 up to
and
including the date of filing of this complaint, the authorities took
no
further steps to identify and/or punish those individuals responsible
for
the incident at issue - "civilians" and police officers alike.

2.22 In violation of domestic legislation, the complainants were not
served
with the court decision of 8 February 1996 to discontinue the
investigation. They were thus prevented from assuming the capacity of
a
private prosecutor and to continue with the prosecution of the case.
2.23
Even prior to the closing of the proceedings, on 18 and 21 September
1995,
the investigating magistrate, while hearing witnesses (among them a
number
of the complainants), failed to advise them of their right to assume
the
prosecution of the case in the event that the Public Prosecutor should
decide to drop the charges. This contravened domestic legislation
which
explicitly provides that the Court is under an obligation to advise
ignorant parties of avenues of legal redress available for the
protection
of their interests. 2.24 On 6 September 1996, all 71 complainants
filed a
civil claim for damages, pecuniary and non-pecuniary, with the first
instance court in Podgorica - each plaintiff claiming approximately
US$
100,000. The pecuniary damages claim was based on the complete
destruction
of all properties belonging to the plaintiffs, while the non-pecuniary
damages claim was based on the pain and suffering of the plaintiffs
associated with the fear they were subjected to, and the violation of
their
honour, reputation, freedom of movement and the right to choose their
own
place of residence. The plaintiffs addressed these claims against the
Republic of Montenegro and cited articles 154, 180 (1), 200, and 203
of the
Federal Law on Obligations. More than five years after the submission
of
their claim, the civil proceedings for damages are still pending. 2.25
On
15 August 1996, eight of the Danilovgrad Roma, all of them among the
complainants in the instant case, who were dismissed by their
employers for
failing to report to work, filed a law suit requesting that the court
order
their return to work. Throughout the proceedings, the plaintiffs
argued
that their failure to appear at work during the relevant time period
was
justified by their reasonable fear that their lives would have been
endangered had they come to work so soon after the incident. On 26
February
1997, the Podgorica first instance court rendered its decision
dismissing
the claims of the plaintiffs on the grounds that they had been absent
from
work for five consecutive days without justification. In doing so the
court
cited article 75 paragraph 2 of the Federal Labour Code which inter
alia
provides that "if a person fails to report to work for five
consecutive
days without proper justification his employment will be terminated".
On 11
June 1997, the plaintiffs appealed this decision and almost five
months
later, on 29 October 1997, the second instance court in Podgorica
quashed
the first instance ruling and ordered a retrial. The reasoning
underlying
the second instance decision was based on the fact that the plaintiffs
had
apparently not been properly served with their employer's decision to
terminate their employment. 2.26 In the meantime, the case went again
up to
the Montenegrin Supreme Court which ordered another retrial before the
fist
instance court in Podgorica. The case is still pending. 2.27 The
complainants, having been driven out of their homes and their property
having been completely destroyed, fled to the outskirts of Podgorica,
the
Montenegrin capital, where during the first few weeks following the
incident they hid in parks and abandoned houses. Local Roma from
Podgorica
supplied them with basic food and told them that groups of angry
non-Roma
men had been looking for them in the Roma suburbs in Podgorica. From
this
time on, the banished Danilovgrad Roma have continued to live in
Podgorica
in abject poverty, makeshift shelters or abandoned houses, and have
been
forced to work at the Podgorica city dump or to beg for a living.

The Complaint 3.1 The complainants submit that the State party has
violated
articles 2, paragraph 1 read in conjunction with article 1, 16,
paragraph
1, and 12, 13, 14 taken alone or together with article 16, paragraph 1
of
the Convention. 3.2 With regard to the admissibility of the complaint,
and
more particularly the exhaustion of local remedies, the complainants
submit
that, given the level of wrongs suffered, and alongside the
jurisprudence
of the European Court of Human Rights, (1) only a criminal remedy
would be
effective in the instant case. Civil and/or administrative remedies do
not
provide sufficient redress in this case. 3.3 The complainants note
further
that the authorities had the obligation to investigate, or at least to
continue their investigation if they considered the available evidence
insufficient. Moreover, even though they acknowledge that they have
never
filed a criminal complaint against individuals responsible for the
pogrom,
they contend that both the police and the prosecuting authorities were
sufficiently aware of the facts to initiate and conduct the
investigation
ex officio. The complainants therefore conclude that there is no
effective
remedy. 3.4 The complainants also note that since there is no
effective
remedy in respect of the alleged breach of the Convention, the issue
of
exhaustion of domestic remedies should be dealt with together with the
merits of the case since there is a claim of violation of articles 13
and
14 of the Convention. 3.5 Referring to a number of excerpts from NGO
and
governmental sources, the complainants first request that the
complaint be
considered taking into account the situation of the Roma in Yugoslavia
as
victims of systematic police brutality and dire human rights situation
in
general.
3.6 The complainants allege that Yugoslav authorities have violated
the
Convention under either article 2, paragraph 1 read in conjunction
with
article 1, because, during the events described previously, the police
stood by and watched as the events unfolded, or article 16, paragraph
1 for
the same reasons. In this regard, the complainants consider that the
particularly vulnerable character of the Roma minority has to be taken
into
account in assessing the level of ill-treatment that has been
committed.
They suggest that "a given level of physical abuse is more likely to
constitute 'degrading or inhuman treatment or punishment' when
motivated by
racial animus". 3.7 With regard to the fact that the acts have mostly
been
committed by non-State actors, the complainants rely on a review of
international jurisprudence on the principle of "due diligence" and
remind
the current state of international law with regard to "positive"
obligations that are incumbent on States. They submit that the purpose
of
the provisions of the Convention is not limited to negative
obligations for
States parties but include positive steps that have to be taken in
order to
avoid that torture and other related acts are committed by private
persons.
3.8 The complainants further contend that the acts of violence
occurred
with the "consent or acquiescence" of the police whose duty under the
law
was to secure their safety and afford them protection. 3.9 The
complainants
then allege a violation of article 12 read alone or, if the acts
committed
do not amount to torture, taken together with article 16, paragraph 1
because the authorities failed to conduct a prompt, impartial, and
comprehensive investigation capable of leading to the identification
and
punishment of those responsible. Considering the jurisprudence of the
Committee against Torture, it is submitted that the State party had
the
obligation to conduct "not just any investigation" but a proper
investigation, even in the absence of the formal submission of a
complaint,
since they were in possession of abundant evidence. (2) The
complainants
further suggest that the impartiality of the same investigation
depends on
the level of independence of the body conducting it. In this case, it
is
alleged that the level of independence of the investigative magistrate
was
not sufficient.

3.10 The complainants finally allege a violation of article 13 read
alone
and/or taken together with article 16, paragraph 1, because "their
right to
complain and to have [their] case promptly and impartially examined by
[the] competent authorities" was violated. They also allege a
violation of
article 14 read alone and/or taken together with article 16, paragraph
1,
because of the absence of redress and of fair and adequate
compensation.

State party's observations on admissibility 4. In a submission dated 9
November 1998, the State party contended that the complaint was
inadmissible because the case had been conducted according to the
Yugoslavian legislation and because all available legal remedies had
not
been exhausted.

Comments by the complainants 5. In a submission dated 20 September
2000,
the complainants reiterated their main arguments with regard to the
admissibility of the complaint and underlined that the State party had
not
explained what domestic remedies would still be available which the
complainants should still exhaust. In addition, they consider that
since
the State party has failed to put forward any other objections in that
respect, it has in effect waived its right to contest other
admissibility
criteria.

Decision on admissibility 6. At its twenty-fifth session, the
Committee
considered the admissibility of the complaint. The Committee
ascertained,
as it is required to do under article 22, paragraph 5 (a) of the
Convention, that the same matter had not been and was not being
examined
under another procedure of international investigation or settlement.
Regarding the exhaustion of domestic remedies, the Committee took note
of
the arguments made by the complainants and noted that it had not
received
any argumentation or information from the State party on this issue.
Referring to rule 108, paragraph 7 of its Rules of Procedure, the
Committee
declared the complaint admissible on 23 November 2000.

State party's observations on the merits 7. Notwithstanding the
Committee's
call for observations on the merits, transmitted by a note of 5
December
2000, and two reminders of 9 October 2001 and 11 February 2002, the
State
party has not made any further submission.

Complainants' additional comments on the merits 8.1 By a letter of 6
December 2001, the complainants transmitted to the Committee
additional
information and comments on the merits of the case. In the same
submission,
the complainants have transmitted detailed information on different
questions that were asked by the Committee, namely, on the presence
and
behaviour of the police during the events, the actions that have been
taken
towards the local population, the relations between the different
ethnic
groups, and their respective titles of property. 8.2 With regard to
the
presence and behaviour of the police during the events and the actions
that
have been taken towards the local population, the complainants give a
detailed description of the facts referred to in paragraphs 2.1 to
2.29
above. 8.3 With regard to the general situation of the Roma minority
in the
Federal Republic of Yugoslavia, the complainants contend that the
situation
has remained largely unchanged after the departure of President
Milosevic.
Referring to a report that was earlier submitted by the Humanitarian
Law
Center to the Committee against Torture and to the 2001 Annual Report
of
Human Rights Watch, the complainants submit that the situation of Roma
in
the State party is today very preoccupying and emphasize that there
have
been a number of serious incidents against Roma over the last few
years
while no significant measures to find or prosecute the perpetrators or
to
compensate the victims have been taken by the authorities. 8.4 With
regard
to the property titles, the complainants explain that most were lost
or
destroyed during the events of 14 and 15 April 1995 and that this was
not
challenged by the State party's authorities during the civil
proceedings.
8.5 The complainants then make a thorough analysis of the scope of
application of articles 1, paragraph 1, and 16, paragraph 1, of the
Convention. They first submit that the European Court of Human Rights
has
ascertained in Ireland v. United Kingdom and in the Greek case, that
article 3 of the European Convention on Human Rights also covered "the
infliction of mental suffering by creating a state of anguish and
stress by
means other than bodily assault". (3)
8.6 Moreover, the complainants reiterate that the assessment of the
level
of ill-treatment also depends on the vulnerability of the victim and
should
thus also take into account the sex, age, state of health or ethnicity
of
the victim. As a result, the Committee should consider the Romani
ethnicity
of the victims in their appreciation of the violations committed,
particularly in Yugoslavia. In the same line, they reiterate that a
given
level of physical abuse is more likely to constitute a treatment
prohibited
by article 16 of the Convention if it is motivated by racial
considerations. 8.7 Concerning the devastation of human settlements,
the
complainants refer to two cases that were decided by the European
Court of
Human Rights and whose factual circumstances were similar to the one
at
issue. (4) The European Court considered in both cases that the
burning and
destruction of homes as well as the eviction of their inhabitants from
the
village constituted acts that were contrary to article 3 of the
European
Convention. 8.8 Concerning the perpetrators of the alleged violations
of
articles 1 and 16 of the Convention, the complainants submit that
although
only a public official or a person acting in an official capacity
could be
the perpetrator of an act in the sense of either of the above
provisions,
both provisions state that the act of torture or of other
ill-treatment may
also be inflicted with the consent or acquiescence of a public
official.
Therefore, while they do not dispute that the acts have not been
committed
by the police officers or that the latter have not instigated them,
the
complainants consider that they have been committed with their consent
and
acquiescence. The police were informed of what was going to happen on
15
April 1995 and were present on the scene at the time when the pogrom
took
place but did not prevent the perpetrators from committing their
wrongdoing. 8.9 With regard to the positive obligations of States to
prevent and suppress acts of violence committed by private
individuals, the
complainants refer to General Comment 20 of the Human Rights Committee
on
article 7 of the International Covenant on Civil and Political Rights
according to which this provision covers acts that are committed by
private
individuals, which implies a duty for States to take appropriate
measures
to protect everyone against such acts. The complainants also refer to
the
United Nations Code of Conduct for Law Enforcement Officials, the
Basic
Principles on the Use of Force and Firearms by law Enforcement
Officials
and the Council of Europe's Framework Convention for the Protection of
National Minorities, which have provisions with a similar purpose.
8.10 On
the same issue, the complainants cite a decision of the Inter-American
Court of Human Rights in Velasquez Rodriguez v. Honduras according to
which

[a]n illegal act which violates human rights and which is initially
not
directly imputable to a State (for example, because it is the act of a
private person or because the person responsible has not been
identified)
can lead to international responsibility of the State, not because of
the
act itself but because of the lack of due diligence to prevent the
violation or to respond to it as required by the Convention. (5)

Similarly, the European Court of Human Rights has addressed the issue
in
Osman v. United Kingdom and stated that

[a]rticle 2 of the Convention may also imply in certain well-defined
circumstances a positive obligation on the authorities to take
preventive
operational measures to protect an individual whose life is at risk
from
the criminal acts of another individual & [W]here there is an
allegation
that the authorities have violated their positive obligation to
protect the
right to life in the context of their above-mentioned duty to prevent
and
suppress offences against the person & it must be established to its
satisfaction that the authorities knew or ought to have known at the
time
of the existence of a real and immediate risk to the life of an
identified
individual or individuals from the criminal acts of a third party and
that
they failed to take measures within the scope of their powers which,
judged
reasonably, might have been expected to avoid that risk … [H]aving
regard
to the nature of the right protected by article 2, a right fundamental
in
the scheme of the Convention, it is sufficient for an applicant to
show
that the authorities did not do all that could be reasonably expected
of
them to avoid a real and immediate risk to life of which they have or
ought
to have knowledge. (6)

8.11 The complainants further contend that the extent of the
obligation to
take preventive measures may increase with the immediacy of the risk
to
life. In support of this argument, they extensively rely on the
judgement
of the European Court of Human Rights in Mahmut Kaya v. Turkey where
the
Court laid down the obligations of States as follows: first, States
have an
obligation to take every reasonable step in order to prevent a real
and
immediate threat to the life and integrity of a person when the
actions
could be perpetrated by a person or group of persons with the consent
or
acquiescence of public authorities; second, States have an obligation
to
provide an effective remedy, including a proper and effective
investigation, with regard to actions committed by non-State actors
undertaken with the consent or acquiescence of public authorities.
8.12 The complainants also underline that the obligation of the States
under the European Convention on Human Rights goes well beyond mere
criminal sanctions for private individuals who have committed acts
contrary
to article 3 of the said Convention. In Z. v. United Kingdom, the
European
Commission on Human Rights held that

the authorities were aware of the serious ill-treatment and neglect
suffered by the applicants over a period of years at the hands of
their
parents and failed, despite the means reasonably available to them, to
take
any effective steps to bring it to an end … [The State had
therefore]
failed in its positive obligation under article 3 of the Convention to
provide the applicants with adequate protection against inhuman and
degrading treatment. (7)

8.13 In conclusion, the complainants submit that "they were indeed
subjected to acts of community violence inflicting on them great
physical
and mental suffering amounting to torture and/or cruel, inhuman and
degrading treatment or punishment". They further state that "this
happened
for the purpose of punishing them for an act committed by a third
person
(the rape of S.B.), and that the community violence (or rather the
racist
pogrom) at issue took place in the presence of, and thus with the
'consent
or acquiescence' of, the police whose duty under law was precisely the
opposite - to secure their safety and afford them protection". 8.14
Finally, concerning the absence of observations by the State party on
the
merits, the complainants refer to rule 108 (6) of the Committee's
rules of
procedure and consider that such principle should be equally
applicable
during the phase of the merits. Relying on the jurisprudence of the
European Court of Human Rights and of the Human Rights Committee, the
complainants further argue that, by not contesting the facts or the
legal
arguments developed in the complaint and further submissions, the
State
party has tacitly accepted the claims at issue.

Issues and proceedings before the Committee
9.1 The Committee has considered the complaint in the light of all
information made available to it by the parties concerned, in
accordance
with article 22, paragraph 4, of the Convention. Moreover, in the
absence
of any submission from the State party following the Committee's
decision
on admissibility, the Committee relies on the detailed submissions
made by
the complainants. The Committee recalls in this respect that a State
party
has an obligation under article 22, paragraph 3, of the Convention to
cooperate with the Committee and to submit written explanations or
statements clarifying the matter and the remedy, if any, that may have
been
granted. 9.2 As to the legal qualification of the facts that have
occurred
on 15 April 1995, as they were described by the complainants, the
Committee
first considers that the burning and destruction of houses constitute,
in
the circumstances, acts of cruel, inhuman or degrading treatment or
punishment. The nature of these acts is further aggravated by the fact
that
some of the complainants were still hidden in the settlement when the
houses were burnt and destroyed, the particular vulnerability of the
alleged victims and the fact that the acts were committed with a
significant level of racial motivation. Moreover, the Committee
considers
that the complainants have sufficiently demonstrated that the police
(public officials), although they had been informed of the immediate
risk
that the complainants were facing and had been present at the scene of
the
events, did not take any appropriate steps in order to protect the
complainants, thus implying "acquiescence" in the sense of article 16
of
the Convention. In this respect, the Committee has reiterated on many
instances its concerns about "inaction by police and law-enforcement
officials who fail to provide adequate protection against racially
motivated attacks when such groups have been threatened" (concluding
observations on the initial report of Slovakia, CAT A/56/44 (2001),
paragraph 104; see also concluding observations on the second periodic
report of the Czech Republic, CAT A/56/44 (2001), paragraph 113 and
concluding observations on the second periodic report of Georgia, CAT
A/56/44 (2001), paragraph 81). Although the acts referred to by the
complainants were not committed by public officials themselves, the
Committee considers that they were committed with their acquiescence
and
constitute therefore a violation of article 16, paragraph 1, of the
Convention by the State party.

9.3 Having considered that the facts described by the complainants
constitute acts within the meaning of article 16, paragraph 1 of the
Convention, the Committee will analyse other alleged violations in the
light of that finding. 9.4 Concerning the alleged violation of article
12
of the Convention, the Committee, as it has underlined in previous
cases
(see inter alia Encarnacion Blanco Abad v. Spain, Case No. 59/1996,
decided
on 14 May 1998), is of the opinion that a criminal investigation must
seek
both to determine the nature and circumstances of the alleged acts and
to
establish the identity of any person who might have been involved
therein.
In the present case, the Committee notes that, despite the
participation of
at least several hundred non-Roma in the events of 15 April 1995 and
the
presence of a number of police officers both at the time and at the
scene
of those events, no person nor any member of the police forces has
been
tried by the courts of the State party. In these circumstances, the
Committee is of the view that the investigation conducted by the
authorities of the State party did not satisfy the requirements of
article
12 of the Convention. 9.5 Concerning the alleged violation of article
13 of
the Convention, the Committee considers that the absence of an
investigation as described in the previous paragraph also constitutes
a
violation of article 13 of the Convention. Moreover, the Committee is
of
the view that the State party's failure to inform the complainants of
the
results of the investigation by, inter alia, not serving on them the
decision to discontinue the investigation, effectively prevented them
from
assuming "private prosecution" of their case. In the circumstances,
the
Committee finds that this constitutes a further violation of article
13 of
the Convention. 9.6 Concerning the alleged violation of article 14 of
the
Convention, the Committee notes that the scope of application of the
said
provision only refers to torture in the sense of article 1 of the
Convention and does not cover other forms of ill-treatment. Moreover,
article 16, paragraph 1, of the Convention while specifically
referring to
articles 10, 11, 12, and 13, does not mention article 14 of the
Convention.
Nevertheless, article 14 of the Convention does not mean that the
State
party is not obliged to grant redress and fair and adequate
compensation to
the victim of an act in breach of article 16 of the Convention. The
positive obligations that flow from the first sentence of article 16
of the
Convention include an obligation to grant redress and compensate the
victims of an act in breach of that provision. The Committee is
therefore
of the view that the State party has failed to observe its obligations
under article 16 of the Convention by failing to enable the
complainants to
obtain redress and to provide them with fair and adequate
compensation. 10.
The Committee, acting under article 22, paragraph 7, of the
Convention, is
of the view that the facts before it disclose a violation of articles
16,
paragraph 1, 12 and 13 of the Convention against Torture and Other
Cruel,
Inhuman or Degrading Treatment or Punishment. 11. In pursuance of rule
111,
paragraph 5, of its rules of procedure, the Committee urges the State
party
to conduct a proper investigation into the facts that occurred on 15
April
1995, prosecute and punish the persons responsible for those acts and
provide the complainants with redress, including fair and adequate
compensation and to inform it, within 90 days from the date of the
transmittal of this decision, of the steps it has taken in response to
the
views expressed above.


Annex


(Case No. 161/1999 - Hajrizi Dzemajl et al. v. Yugoslavia)

Individual opinion by Mr. Fernando Marino and Mr. Alejandro Gonzalez
Poblete

under rule 113 of the Rules of Procedure

We are issuing this opinion to emphasize that, in our judgement, the
illegal incidents for which the Yugoslav State is responsible
constitute
"torture" within the meaning of article 1, paragraph 1, of the
Convention,
not merely "cruel, inhuman or degrading treatment" as covered by
article
16. The failure of the State authorities to react to violent
evictions,
forced displacement and the destruction of homes and property by
individuals amounts to unlawful acquiescence which, in our judgement,
violates article 1, paragraph 1, particularly when read in conjunction
with
article 2, paragraph 1, of the Convention. We believe that, in fact,
the
suffering visited upon the victims was severe enough to qualify as
"torture", because: (a) The inhabitants of the Bozova Glavica
settlement
were forced to abandon their homes in haste given the risk of severe
personal and material harm; (b) Their settlement and homes were
completely
destroyed. Basic necessities were also destroyed; © Not only did the
resulting forced displacement prevent them from returning to their
original
settlement, but many members of the group were forced to live poorly,
without jobs or fixed places of abode; (d) Thus displaced and wronged,
these Yugoslav nationals have still not received any compensation,
seven
years after the fact, although they have approached the domestic
authorities; (e) All the inhabitants who were violently displaced
belong to
the Romani ethnic group, which is known to be especially vulnerable in
many
parts of Europe. In view of this, States must afford them greater
protection; The above amounts to a presumption of "severe suffering",
certainly "mental" but also inescapably "physical" in nature even if
the
victims were not subjected to direct physical aggression. We thus
consider
that the incidents at issue should have been categorized as "torture".
(Signed):

Fernando Marino
Alejandro Gonzalez Poblete

Notes
1. See Assenov v. Bulgaria, Judgement of 28 October 1998, paras. 102,
117;
Aksoy v. Turkey, Judgement of 18 December 1996; Aydin v. Turkey,
Judgement
of 29 September 1997; X and Y v. The Netherlands, 8 EHRR 235 (1985),
paras.
21-30. 2. See Encarnacion Blanco Abad v. Spain, 14 May 1998,
CAT/C/20/D/59/1996, para. 8.2; Henri Unai Parot v. Spain, 2 May 1995,
CAT/C/14/D/6/1990. 3. Report of 5 November 1969, Yearbook XII; the
Greek
case (1969), p. 461. 4. Mentes and Others v. Turkey, 58/1996/677/867
and
Selcuk and Asker v. Turkey, 12/1997/796/998-999. 5. Velasquez
Rodriguez v.
Honduras, judgment of 29 July 1988, p. 291. 6. Osman v. United
Kingdom,
paras. 115-116. 7. Z. v. United Kingdom, para. 98.