Acting on the complaint of the Belgrade Center for Human Rights and A 11 – Initiative for Economic and Social Rights, the Commissioner for the Protection of Equality determined that Raiffeisen Bank a.d. Belgrade, violated the provisions of Article 6 of the Law on Prohibition of Discrimination of the Republic of Serbia when it refused to open accounts for persons with granted asylum, ie recognized refugee status in Serbia. In the opinion, the Commissioner stated that it is not possible to exclude in advance the possibility of opening bank accounts for certain categories of persons solely based on citizenship, i.e. the country of origin of a natural person or nationality. This is a new decision of the Commissioner in proceedings on complaints against banks, since it was previously established in early July that Banca Intesa discriminated against refugees and asylum seekers.

After the information that some banks refuse to open a bank account for persons with granted asylum in Serbia, with Iranian origin, Initiative A 11 and the Belgrade Center for Human Rights conducted testing of discrimination in Raiffeisen Bank in May 2021. As the discriminatory situation was confirmed during testing, we filed a complaint due to discrimination. Namely, in this case, banks refused to open accounts to persons who have an ID card issued by the Asylum Office – Internal Affairs Serbia with recognized refugee status, and thus intend to settle permanently in Serbia, with the excuse of the bank’s internal procedures. The Commissioner states that during this procedure Raiffeisen Bank did not submit evidence from which it would be established that this denial was for justified reasons, i.e. to open an account for a person of Iranian origin with granted asylum in Serbia. The Commissioner states that the refusal to open an account, i.e. to establish or terminate a business relationship is possible only if the bank has determined that there is a high risk in establishing a business relationship, and could not apply intensified actions and measures in accordance with the law and the bank’s internal act.

The Commissioner also recommended that the bank, without negative generalizations, in each specific case, assess and consider the requirements for opening an account and not violate the regulations on the prohibition of discrimination. The Commissioner notes that by its actions the bank indisputably denied the application of the corpus of rights guaranteed by the Law on Asylum and Temporary Protection, but also by the Geneva Convention Relating to the Status of Refugees from 1951, such as the right to access the labor market, integration assistance, property rights, and social security.

The Belgrade Center for Human Rights and Initiative A 11 welcome the Commissioner`s response to the joint complaint and point out the importance that in any future similar situation, banks must justify their actions without flat and discriminatory assessments, and that regardless of procedures, rules and risk assessments, the bank must operate in accordance with the laws of Serbia. We also remind you of the stand taken by the National Bank of Serbia after the request for an opinion sent by the Belgrade Center for Human Rights at the beginning of the year, stating that regulations in the field of banking do not provide grounds for excluding the possibility of establishing business relations with the entire category of persons, with a reminder of the provisions of national legislation concerning the prohibition of discrimination.

The Equality Commissioner Opinion and recommendation is here in serbian.

The National Bank of Serbia response to BCHR’s request is here in serbian.

Organizations gathered around the “Three Freedoms” platform caution the National Assembly and the Serbian public that the Law on Protection against Noise in the Environment, adopted yesterday in the parliamentary procedure, is not in compliance with the Law on Public Assembly and international standards governing the right to freedom of assembly. At a time when a large number of public debates are taking place in Serbia on changes to the laws that affect the rule of law and human rights, leaving a very short deadline for analyzing regulations and sending comments, the Serbian government’s proposal restricting the right to public assembly went almost unnoticed.

Article 20 of the Law stipulates that local self-government decides on holding gatherings that may exceed the limit values of noise indicators. Additionally, the deadline for registration of such gatherings is 20 days. Local self-government, by a decision, regulates the streets, parts of streets and settlements, and other locations intended for such gatherings. This decision is contrary to the Law on Public Assembly, which prescribes that the deadline for reporting a public assembly is five days before the time set for the beginning of the assembly. The Law on Public Assembly regulates in detail the gathering place, ways, and conditions for restricting public gatherings, so that the place of gathering could be any place that is accessible unconditionally or under the same conditions to an individually indefinite number of persons.

The introduction of additional obligations for organizers of gatherings towards local self-governments, as well as extended deadlines for registration of gatherings, significantly complicates the holding of public gatherings. The proposer of the Law in the justification of the Proposal did not explain the reason for setting the deadline of 20 days, which is extremely long, especially taking into account the upcoming election campaign in 2022. Putting local self-government units in charge of deciding on holding of public gatherings that potentially exceed the noise limit, as well as on the places of these public gatherings, leaves room for abuse of noise protection regulations to limit political rallies.

Justifying this by protecting the environment, the Law also limits the ability of the participants to convey their message loudly, which means that the restrictions do not only apply to the use of sound systems but also any other way of making noise (shouting slogans, banging on pots, etc.). The Law doesn’t make a clear distinction between cultural and sporting events and political gatherings and regulates the confiscation of the object of the commission of the offense (speakers, megaphones, drums, etc.).

We request that the mentioned Article 20 of the Law on Protection against Noise in the Environment be aligned with the Law on Public Assemblies in terms of the deadline for registration of the gathering and the place of the gathering.

Freedom of public assembly implies that all peaceful assemblies are allowed. Restrictions on gatherings are not only a direct ban on a gathering but also any excessive and unnecessary imposition of obligations on the organizers of the gathering, which makes it difficult to organize the gathering. The adoption of regulations contrary to the already existing Law on Public Assembly creates a collision of legal norms that are detrimental to the freedom of public assembly as one of the basic civil and political right

The Three Freedoms Platform aims to contribute to the democratization of society, the rule of law, and the active participation of citizens through the protection and promotion of freedom of association, assembly, and information. The platform consists of:

• Autonomous Women’s Center
• Belgrade Center for Security Policy
• Belgrade Center for Human Rights
• Catalyst Balkans
• Center for Research, Transparency and Accountability (CRTA)
• Center for Cultural Decontamination
• Center for Practical Policy
• Civic Initiatives
• Helsinki Committee for Human Rights
• A11 – Economic and Social Rights Initiative
• Youth Initiative for Human Rights
• Lawyers’ Committee for Human Rights-YUCOM
• National Coalition for Decentralization
• Our Endowment
• New Optimism
• Partners Serbia
• Slavko Ćuruvija Foundation
• Serbia on the Move
• Trag Foundation
• Transparency Serbia

The Belgrade Centre for Human Rights (BCHR) alerts to the main deficiencies of the Draft Internal Affairs Act (hereinafter: Draft) that may have far-reaching negative consequences on civil rights and freedoms.

First of all, the definition of the police in Article 25 of the Draft as “an organised force of coercion” is unsuitable in a democratic society based on human rights, in which the police should be a professional and politically neutral service protecting civil rights and freedoms; however, according to the Draft, the main attribute of the police is its entitlement to use coercion in specific cases. Another concerning entitlement is the one given to a senior government official (the Minister of Internal Affairs) to allow “other entities” to use the word “police” in their names, as it provides ample ground for abuse. 

The Draft either fails to include or waters down specific safeguards against police abuse provided for in the valid Police Act. For instance, as opposed to Article 65 of the current Police Act, Article 58 of the Draft fails to mention the right of citizens to require that a person they trust be present during the exercise of police powers.

Article 59 of the Draft prohibits “publication of information about the identity” of police officers exercising police powers, without any valid explanation; fines for violating this ban range from 30,000 to one million RSD. This provision is not in compliance with Article 82 of the Public Information and Media Act, under which private information or personal record may be exceptionally published without the consent of the person at issue if in a particular case the public interest to know the information or the record overrides the interest to prevent their publication;  public interests shall prevail especially in cases where the information or record pertains to a person, event, or occurrence that is of interest to the public, especially if it pertains to a holder of a public office or political function, and the publishing of the information is in the interest of national security, public safety, prevention of disorder or crime, protection of health or morality, or the protection of rights and freedoms of others, or in the event the person has attracted the public attention by their statements or behaviour in private, family or professional life and therefore given rise to the publication of such information or record. The protection of the identity of police officers violating human rights or engaging in other misconduct while performing their duties is unjustified and may greatly impinge on people’s decision whether or not to take part in protests and record illegal actions by the police, which, to recall, is often the only and strongest evidence victims of police ill-treatment have. 

Furthermore, the Draft lays down that police officers shall wear on their uniforms visible identification insignia comprised of “a combination of letters and/or numbers”. In addition to the fact that the Draft does not specify the complexity or length of the combination of letters and/or numbers identifying the officers (there is, e.g. a major difference between the “Belgrade 2255” and “X4Y17Z25”), there is no doubt that this method of identification will not facilitate bringing to justice police officers violating the law and human rights given that victims or witnesses of such events can hardly be expected to remember combinations of letters and/or numbers as easily as they would the officer’s first and last names. The irrationality of the provision is stark given that Article 59 of the Draft obligates police officers to show their official IDs (with their first and last names) before or after exercising their police powers. The crucial importance of enabling the efficient and simple identification of police officers violating the law and human rights is vividly illustrated by the numerous cases of police ill-treatment during the July 2020 protests, the perpetrators of which have not only gone unpunished, but – with the exception of  one case – have gone unidentified as well.    

Article 74 of the Draft lays down that only police summons issued to suspects shall specify that they have the right to a lawyer. This provision is not in accordance with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe (CPT), which has repeatedly emphasised the importance of the right to a lawyer, specifying that the enjoyment of the right should not be made dependent on the person having been formally declared to be a “suspect” and on how “minor” the offence of which they are suspected is.[1]

Article 81 of the Draft, under which persons being deprived of liberty shall be notified of their rights, needs to be elaborated. It should specify that people deprived of liberty shall be notified of their rights safeguarding them against torture and other forms of ill-treatment, notably, the right to contact and access their lawyer as soon as possible; the right to notify a person of their choice of their deprivation of liberty; the right to be examined by a doctor of their own choosing; and the right to legal aid irrespective of their financial standing, if they require such aid to protect them against torture or inhuman or degrading treatment under Article 4 of the Legal Aid Act (hereinafter: LAA).

The BCHR is also of the view that the adoption of the new law on internal affairs is a good opportunity to initiate amendments to the LAA to facilitate expedient access to the procedure by which people deprived of liberty can apply for legal aid to protect them against ill-treatment. The LAA  provisions on access to legal aid by persons deprived of liberty in the police or other institutions, who are entitled to and need such aid to protect them against ill-treatment by the officials in the institutions they are held in, are inadequate.

Articles 71 and 156 of the Draft provide for massive audio-video police surveillance and use of facial recognition biometric software, which is disputable in terms of the necessity and proportionality of interfering in the right to privacy of a large number of citizens in a democratic society. On the other hand, the Draft does not provide for audio-video surveillance of police offices in which people, who have been summoned or deprived of liberty, are interviewed. In its latest (2018) Report on its visit to Serbia, the CPT said that the Serbian authorities should establish dedicated interview rooms with audio and/or video equipment for recording police interviews.[2] The National Assembly and Government have not taken any steps in response to an initiative the former Protector of Citizens submitted to them in 2016, to mandate the recording of police interviews.

Article 93 of the Draft enumerates the reasons why the police may enter people’s homes and other premises without a court warrant, which go beyond those set out in Article 40(3) of the Constitution. Whereas the Constitution allows the police to enter a person’s home or other premises without a court warrant only if necessary to deprive of liberty a criminal offender or eliminate a direct and grave risk to people or property in a manner stipulated by the law, the Draft unjustifiably extends this entitlement to several other situations requiring a court warrant under Article 152 of the Criminal Procedure Code (e.g. if the police suspect that a person they are looking for – the accused is in the premises or in order to secure evidence of a committed crime).

The provisions of the Draft on security checks are imprecise and possibly unconstitutional. Article 108 of the Draft lays down that security checks shall entail checking and processing data entered in response to the questions in the questionnaire on identification data; some of the data that must be entered in the questionnaire include “contact details (telephone number and e-mail)” and “data of household members”. A mere linguistic interpretation of these provisions provides a glimpse of the huge potential for abuse of collecting and processing numerous personal data (e.g. data concerning telephone numbers and e-mails may include, e.g. data on communication traffic, while data of household members may include any of their personal data). Furthermore, under Article 111 of the Draft, the security check procedure and the questionnaire template are to be laid down by the Minister, although Article 42 of the Constitution requires that the collection, storage, processing and use of personal data must be governed by a law, not by a by-law. Finally, Article 108 of the Draft, under which job applicants and applicants for police and firefighting training and others, who refuse to consent to a mandatory security check, shall be deemed to have abandoned their application or realisation of their right, is inadequate from the perspective of balancing conflicting interests at stake.

The Draft does not put provide adequate grounds for conducting effective investigations of police ill-treatment. The proclaimed independence of the Internal Control Sector (in Article 199 of the Draft) can in practice be undermined by the Minister’s powers to “put in place conditions for independent internal control” (Article 189) and to control the work of all Sector staff by establishing a special commission (Article 201), the composition of which is not defined. The Sector’s independence is also brought into question by the fact that, like the valid Police Act, the Draft does not specify who shall be employed in this Sector (which is mostly staffed by former police officers).

The provisions on suspension and dismissal of police officers in the Draft are not in compliance with valid standards on the prohibition of torture and other forms of ill-treatment. The CPT and the European Court of Human Rights have repeatedly underlined that public officials accused of torture or other forms of ill-treatment must be suspended during investigation and trial and dismissed if they are found guilty, which is crucial for preserving public trust in the work of state authorities. The Draft, however, does not provide for mandatory suspension and dismissal in such cases. Article 345 of the Draft sets out that police officers “may be” suspended on the reasoned proposal of their superiors if they are prosecuted for a crime prosecuted ex officio or subject to disciplinary proceedings  for a grave violation “if their presence at work would prejudice the interests of the service, obstruct the collection of evidence or the course of the criminal or disciplinary proceedings” and that their suspension will be ordered by the Minister or a person s/he designates. On the other hand, dismissal of police officers found guilty of a crime depends on the type and severity of the penal sanction (minimum six months’ imprisonment, suspended six-month jail term or sentence of imprisonment under six months) and/or the qualification of the offence as one rendering the officer unworthy of performing the duties of a public official (the list of crimes rendering a police officer unworthy is to be drawn up by the Minister of Internal Affairs).[3]

The Draft was published in late August 2021 on the MIA’s website and the public debate on it lasted only 20 days. The BCHR expects of the MIA to extend the public debate, as requested by the National Convention on the European Union Working Groups for Chapter 23 – Judiciary and Fundamental Rights and Chapter 24 – Justice, Freedom and Security. The proposer of the Draft will thus have the opportunity to clarify the starting points guiding the development of the Draft and to eliminate the disputable provisions alerted to by civil society organisations and experts.  

[1] “For example, under many legal systems in Europe, persons can be obliged to attend – and stay at – a law enforcement establishment for a certain period of time in the capacity of a “witness” or for “informative talks”; the CPT knows from experience that the persons concerned can be at serious risk of ill-treatment.” CPT, Extract from the 21^st General Report of the CPT, §§ 19-21, available at: www.coe.int/en/web/cpt/access-lawyer.

[2] CPT Report to the Government of Serbia, 21 June 2018, CPT/Inf (2018) 21, § 16, available at: https://rm.coe.int/16808b5ee7

[3] In July 2020, the BCHR filed an initiative with the MIA to amend the Police Act, in which it alerted to the same deficiencies of that law and the need to bring them into compliance with the valid human rights standards and recommendations issued by international institutions monitoring compliance with the prohibition of torture. The BCHR’s initiative is available in Serbian at: www.bgcentar.org.rs/podneta-inicijativa-mup-u-srbije-za-izradu-nacrta-zakona-o-dopunama-zakona-o-policiji/.