Belgrade Centre for Human Rights alarms the public on the problems that can be caused by conducting court hearings using technical means of transmitting sound and images (Skype) in light of the absolute prohibition of torture, inhuman or degrading treatment or punishment. According to the Centre, conducting hearings using technical means of transmitting sound and images would erode guarantees for protection against ill-treatment arising from Article 25 of the Constitution of the Republic of Serbia and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which are of non-derogable nature.

A defendant who has been a victim of ill-treatment and who is during the hearing under control by officers who ill-treated him or are in a close hierarchical or organizational relationship with the perpetrators, may be discouraged from disclosing allegations of ill-treatment to the court. Furthermore, the situation whereby the defendant does not make a personal contact with his defence counsel but rather communicates through technical means of transmitting sound and images, as requested by the Protector of Citizens in a recently issued opinion, would significantly contribute to the discouragement of the defendant to bring out the ill-treatment allegations.

Moreover, according to the European Court of Human Rights’ case-law, even when strictly speaking no complaint of ill-treatment has been made, an investigation must be initiated if there are sufficiently clear indications that ill-treatment occurred, i. e. bruises and injuries on the defendant’s body (Stanimirovic v. Serbia, App. no. 26088/06, Judgment of 18 October 2011, § 39). In this respect, the possibility of a judge to notice injuries into the defendant’s body during the hearing, in which the defendant is present only via technical means of transmitting sound and image, is questionable. In some cases, European Court of Human Rights took into consideration such possibility of the judge during the hearing when examining the violation of the material aspect of Article 3 of the Convention (Almaši v. Serbia, App. no. 21388/15, Judgment of 8 October 2019, § 82).

Since the state of emergency was declared in Serbia on 15 March 2020, Belgrade Centre for Human Rights filed three criminal charges against police officers on suspicion of committing torture and ill-treatment (Article 137 of the Criminal Code) by using unjustified force against citizens who violated the prohibition of movement.

The Belgrade Centre for Human Rights (BCHR) hereby alerts the Serbian Government to the detrimental effects of the regulations enacted during the state of emergency and providing for the imposition of misdemeanour penalties against individuals violating the Order Restricting and Prohibiting the Movement of Individuals in the Territory of the Republic of Serbia (hereinafter: Order).

To recall, BCHR is of the view that the Order is unconstitutional, because it does not constitute valid grounds for derogations from constitutionally guaranteed human and minority rights (notably, the right to liberty and security of person and the freedom of movement) and that the Decree on Misdemeanour Violations of that Order provides for violations of the ne bis in idem principle. It therefore reminds the Serbian Government of the legal obstacles to convicting citizens of misdemeanours under the Order.

On 20 March 2020, the Serbian Government enacted a Decree on Statutory Limitations in Court Proceedings Conducted during the State of Emergency. Under this Decree, statutory limitations for appeals of misdemeanour decisions shall not run during the state of emergency, which was declared on 15 March 2020. This means that the statutory limitations for appeals of first-instance decisions convicting individuals of violating the Order will start running only once the state of emergency is lifted. However, pursuant to Article 202(3) of the Constitution, the Decree on Misdemeanour Violations shall cease to be effective when the state of emergency is lifted.

Article 6 of the Misdemeanour Act lays down that misdemeanour offenders shall be tried under the law that was in force at the time they committed the offence, or, in the event it was amended in the meantime, under the law more favourable to them. Therefore, the BCHR is of the view that individuals prosecuted for violating the Order will be exculpated after the state of emergency is lifted. In other words, misdemeanour courts will be unable to punish them and will be forced to discontinue all ongoing misdemeanour proceedings for violations of the Order.

Furthermore, the criteria for determining whether the individuals who violated the Order should be charged with a criminal offence (non-compliance with health regulations during epidemics) or with a misdemanour under the Decree remain unclear given that the elements of these offences are identical, while the penalties they warrant and their other legal consequences differ. This brings into question both equality before the law and legal certainty in criminal law, which the Constitution does not allow even in a state of emergency.

BCHR regrets the inadequate legal formulation of the numerous regulations the Serbian Government has enacted during the state of emergency, which will have grave consequences on the human rights and, ultimately, the budgets of Serbia’s citizens.

We draw the attention of the domestic and international public to the unacceptable recent moves by the state authorities in Serbia during the state of emergency introduced due to the COVID-19 pandemic, which undermine democracy, rule of law, basic human rights and especially freedom of media.

We condemn the arrest of  Nova.rs journalist Ana Lalić, to whom the Novi Sad Police Department imposed a measure of detention of up to 48 hours on April 1, 2020 because, as her lawyer stated, she is suspected that she could repeat the crime, publishing articles which are causing panic and chaos. This kind of treatment of journalists not only directly represents a violation of media freedom, but also creates an intimidating effect for all journalists in Serbia, which are the key point for adequate information of citizens in this country.

In a difficult situation we are in, combating a contagious COVID-19 disease that threatens all of us, the activities and measures of state bodies even in the state of emergency must be in accordance with the Constitution of Serbia, the European Convention on Human Rights and the international acts to which Serbia committed itself to. One of them is certainly the freedom of media, and above all the right of the public on accurate, true and timely information, especially in a situation where the public health of the entire population is endangered.

Announcement by the Prime Minister of Serbia Ana Brnabić that today, on 2 April 2020, just four days after the adoption, the Government will withdraw its Conclusion on informationduring the coronavirus pandemic, which stipulated that all information regarding the pandemic is provided exclusively by the Crisis response team headed by the Prime Minister of Serbia, is a positive step. We hope that the decision to withdraw the Conclusion was made by the Government of Serbia after listening to the opinion of the profession, journalist associations, legal experts and international organizations whose mandate is the protection of human rights, who considered that this kind of centralization of information represents censorship and drastic violation of the rights and freedoms guaranteed by the Constitution – freedom of expression, freedom of media and the right to be informed. On the other hand, we think that the Prime Minister’s statement that she will appeal to the relevant authorities not to make similar arrests is not in accordance with the Constitution and the principle of separation of powers, therefore it can be considered as pressure on the prosecution by the executive branch, which has become a frequent practice to which we have pointed out before.

While we believe it is important that the Government of Serbia and the Crisis response team continue to publish information on the number of tested, infected, hospitalized, deceased and citizens in home isolation, quarantine and similar accommodation in Serbia, and on the measures that the state intends to introduce and provide interpretations of intended and existing measures, we also consider it necessary that not only national, but also institutions at the local level (mayors, emergency staffs, etc.), as well as health institutions and health workers, provide information to the public that may be relevant for the suppression of the infection. It should be noted that the health and lives of people depend on the timely response of the authorities.

At the same time, we urge the Government of Serbia to introduce all measures it adopts during the state of emergency imposed due to the COVID-19 pandemic, in particular those relating to the derogation from human and minority rights, in the form required by the Constitution of Serbia and in proportion to the need for their introduction.

Signatories:

• Belgrade Centre for Security Policy
• Belgrade Centre for Human Rights
• Lawyers’ Committee for Human Rights YUCOM
• Civic Initiatives
• Center for Practical Politics
• Helsinki Committee for Human Rights
• Centre for Contemporary Politics
• A11 – Initiative for Economic and Social Rights
• CEPRIS
• National Convention on the EU

The Belgrade Centre for Human Rights (BCHR) vehemently condemns the protest of the residents of Deliblat at Kovin in response to the announcement of the Commissariat for Refugees and Migration that a group of migrants would be accommodated in the School Recreational Centre Čardak pavilions in the Deliblato Sands Special Nature Reserve. The protest and road blockade by a group of residents in Deliblat has regrettably been staged at a time when both Serbia and the world are in dire need of solidarity, tolerance, help and support to successfully combat the coronavirus pandemic that has rocked the foundations of the whole world.

Unfortunately, the protest organised in Deliblat demonstrates the high degree of xenophobia, intolerance and discrimination in our society. Migrants and asylum seekers are among the most vulnerable groups in Serbia and protests such as this one merely stoke the atmosphere of hate and lynch of migrants that has been on the rise lately. Rather than keeping mum, the relevant state authorities must react swiftly and efficiently, especially in light of the fact that the coronavirus pandemic has led Serbia to declare a state of emergency and limit the freedom of movement and assembly to protect the health of the population.

The BCHR is thus all the more surprised that the authorities allowed the assembly of a large number of people in Deliblat and their blockade of the roads with their farm machinery, notwithstanding the risks such actions pose to public health. Has the state demonstrated its impotence when it gave in to the protesters’ demands and abandoned the idea to accommodate the migrants in Čardak? Will protesters foment hate and intolerance of migrants across Serbia? To recall, it is in the interest of public health that migrants and asylum seekers, who are not granted permission to rent private accommodation, live in the centres run by the Commissariat for Refugees and Migration, which is
under the obligation to provide them with the requisite accommodation.

The BCHR calls on the relevant state authorities to condemn the incident and again appeals to all Serbia’s citizens to show their solidarity and humanity in these difficult times, not only towards each other, but also towards migrants and asylum seekers. Although we are under a state of emergency, all of us, nationals of the Republic of Serbia, must not forget that our Constitution protects fundamental human rights even during a state of emergency. We hope that the Deliblat protest was an isolated incident and that the state will clearly and unambiguously respond to all such events in the future and protect everyone’s human rights.

The Coronavirus disease (COVID-19) pandemic has created extraordinary challenges for the authorities of all member States of the Council of Europe. There are specific and intense challenges for staff working in various places of deprivation of liberty, including police detention facilities, penitentiary institutions, immigration detention centres, psychiatric hospitals and social care homes, as well as in various newly-established facilities/zones where persons are placed in quarantine. Whilst acknowledging the clear imperative to take firm action to combat COVID-19, the CPT must remind all actors of the absolute nature of the prohibition of torture and inhuman or degrading treatment. Protective measures must never result in inhuman or degrading treatment of persons deprived of their liberty. In the CPT’s view, the following principles should be applied by all relevant authorities responsible for persons deprived of their liberty within the Council of Europe area.

1) The basic principle must be to take all possible action to protect the health and safety of all persons deprived of their liberty. Taking such action also contributes to preserving the health and safety of staff.

2) WHO guidelines on fighting the pandemic as well as national health and clinical guidelines consistent with international standards must be respected and implemented fully in all places of deprivation of liberty.

3) Staff availability should be reinforced, and staff should receive all professional support, health and safety protection as well as training necessary in order to be able to continue to fulfil their tasks in places of deprivation of liberty.

4) Any restrictive measure taken vis-à-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time. Persons deprived of their liberty should receive comprehensive information, in a language they understand, about any such measures.

5) As close personal contact encourages the spread of the virus, concerted efforts should be made by all relevant authorities to resort to alternatives to deprivation of liberty. Such an approach is imperative, in particular, in situations of overcrowding. Further, authorities should make greater use of alternatives to pre-trial detention; commutation of sentences, early release and probation; reassess the need to continue involuntary placement of psychiatric patients; discharge or release to community care, wherever appropriate, residents of social care homes; and refrain, to the maximum extent possible, from detaining migrants.

6) As regards the provision of health care, special attention will be required to the specific needs of detained persons with particular regard to vulnerable groups and/or at-risk groups, such older persons and persons with pre-existing medical conditions. This includes, inter alia, screening for COVID-19 and pathways to intensive care as required. Further, detained persons should receive additional psychological support from staff at this time.

7) While it is legitimate and reasonable to suspend nonessential activities, the fundamental rights of detained persons during the pandemic must be fully respected. This includes in particular the right to maintain adequate personal hygiene (including access to hot water and soap) and the right of daily access to the open air (of at least one hour). Further, any restrictions on contact with the outside world, including visits, should be compensated for by increased access to alternative means of communication (such as telephone or Voice-overInternet-Protocol communication).

8) In cases of isolation or placement in quarantine of a detained person who is infected or is suspected of being infected by the SARS-CoV-2 virus the person concerned should be provided with meaningful human contact every day.

9) Fundamental safeguards against the ill-treatment of persons in the custody of law enforcement officials (access to a lawyer, access to a doctor, notification of custody) must be fully respected in all circumstances and at all times. Precautionary measures (such as requiring persons with symptoms to wear protective masks) may be appropriate in some circumstances.

10) Monitoring by independent bodies, including National Preventive Mechanisms (NPMs) and the CPT, remains an essential safeguard against ill-treatment. States should continue to guarantee access for monitoring bodies to all places of detention, including places where persons are kept in quarantine. All monitoring bodies should however take every precaution to observe the ‘do no harm’ principle, in particular when dealing with older persons and persons with pre-existing medical conditions.

The Belgrade Centre for Human Rights calls on the relevant state authorities to ensure that all measures involving derogation of human and minority rights guaranteed by the Serbian Constitution and ratified international treaties that are imposed during the state of emergency declared due to the SARS CoV-2 (coronavirus) pandemic are proportionate to the purpose of their introduction, in compliance with binding provisions on the state of emergency and anti-discrimination principles. The Serbian Government’s response to the pandemic must be based on respect for human rights and the provisional measures imposed by the state must be prudential, proportionate, based on the law, accessible and comprehensible to all individuals they affect.

Restrictions of the freedom of movement, which entered into force on 18 March 2020, pursuant to an order of the Minister of Internal Affairs, have given rise to a number of dilemmas, thus creating room for arbitrary interpretations and potential abuse. The prohibition of movement of all people over 65 in urban areas and of all people over 70 in settlements with a population under 5,000, as well as the curfew applicable to all people irrespective of their age from 8 pm to 5 am, with the exception of those issued individual permits by the MIA and those in urgent need of medical assistance, needs to be elaborated in greater detail and explained officially and in writing.

The Serbian Government decision limiting the movement of people living in asylum and reception centres in Serbia outside these centres to 24 hours, except in “justified cases”, also needs to be elaborated in greater detail and clarified. The people living in such centres must be adequately notified of all the measures undertaken by the Serbian Government to prevent the spread of coronavirus. 

Article 15 of the European Convention on Human Rights prohibits derogations of the right to life, prohibition of torture and ill-treatment, prohibition of slavery and no punishment without law. Article 202 of the Serbian Constitution lays down that derogations of human and minority rights enshrined in the Constitution shall be permitted only to the extent deemed necessary and that measures providing for derogation may not bring about distinction on grounds of race, sex, language, religion, national affiliation or social origin. The BCHR also draws attention to a statement issued by UN human rights experts, who emphasised that “[R]estrictions taken to respond to the virus must be motivated by legitimate public health goals and should not be used simply to quash dissent” and that the emergency declarations should not be used “to target particular groups, minorities, or individuals” or “to silence the work of human rights defenders”.

The BCHR therefore believes that the Serbian authorities must: 

• Issue an official written document specifying how the daily needs of people, whose movement is restricted all day, will be met;

• Impose the same regime applicable to people over 65/70 on people suffering from chronic diseases (such as asthma, diabetes, et al) who are more vulnerable to coronavirus with a view to protecting their health;

• Lay down the rules of safe hygienic behaviour at public venues during the coronavirus state of emergency;

• Individually assess the need to restrict the freedom of movement of people seeking international protection in the same manner and under the same conditions as other categories of the population (depending on the country they came from, their contacts with other individuals, age, existence of chronic illnesses, et al);

• Provide all individuals in collective accommodation facilities with protection kits and familiarise each of them individually with the protection measures in a language they understand;

• Perform larger-scale coronavirus testing in all collective accommodation facilities (not only in asylum and reception centres, but also in homes for the elderly, penitentiaries, psychiatric institutions, et al) under easier conditions than in the case of people living in private accommodation facilities (and especially of people with mental disabilities);

• Officially translate all Government decisions adopted during the state of emergency into English and make them available in all collective accommodation facilities and officially translate all these decisions into a language individuals who do not speak either Serbian or English understand.

The BCHR hereby offers the relevant Serbian authorities its expertise to help in the common fight against the coronavirus. Its staff is engaged in volunteering and other projects extending assistance and support to the most vulnerable groups of people.

Please feel free to contact us by e-mail at [email protected] or by phone at +381 11 3085 328 should you require any additional information.