For that reason, Human Rights Watch is monitoring closely the manner in which your government is implementing the measures applicable during the state of emergency, declared on March 12, 2003 by the Acting President of the Republic of Serbia, Natasa Micic. Human Rights Watch understood and did not contest the government’s initial decision to introduce a state of emergency following Prime Minister Djindjic’s assassination. We did have some reservations regarding the scope of the measures imposed by the government, however; and our concerns have deepened in recent days as we observe the manner in which they are being implemented. We are writing to you now to voice those concerns and identify ways in which we believe your government might address those concerns without jeopardizing its legitimate need to pursue an investigation into the assassination and otherwise secure the rule of law.
Under international human rights law, a government may declare a state of emergency in the event of a public emergency that “threatens the life of the nation.” Even at such times, however, there are limits on the extent to which a state can deviate from international human rights standards. Certain standards—the prohibition against torture, for example—are nonderogable, even under a state of emergency. Other measures derogating from international standards must be limited to “the extent strictly required by the exigencies of the situation.” (International Covenant on the Civil and Political Rights (ICCPR), article 4(1)). As the United Nations Human Rights Committee concluded in 2001 in its authoritative comment on ICCPR article 4, states should be able to “provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measure based on such a proclamation.” (Human Rights Committee, General Comment 29, States of Emergency (article 4), para. 5)
While the security threat has not disappeared in the two weeks since the state of emergency was declared, the Serbian government claims to be in control of the security situation, and state institutions appear able to conduct their normal functions. Under such circumstances, the government should consider ceasing to use or amending measures that restrict or preclude altogether the enjoyment of basic rights.
We are particularly concerned about the absence of any safeguards against ill-treatment of the more than 1000 individuals detained under the March 12 Order of the Acting President of the Republic of Serbia. The order authorizes the police to detain for up to thirty days an individual who “endangers security of other citizens of the Republic,” and it deprives the detainee of access to legal counsel and contact with family (article 2 of the Order).
Sustained incommunicado detention is impermissible under international human rights law, as it raises substantially the risk of torture and ill-treatment of detainees. In that respect, we would like to draw your attention to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1984), which stipulate that, in times of public emergency, “no person shall be held in isolation without communication with his family, friend, or lawyer for longer than a few days, e.g., three to seven days.” (para. 70) The Siracusa Principles were developed by a panel of thirty-one international law experts who met at Siracusa, Sicily, to adopt a uniform set of interpretations of the limitation clauses contained in the ICCPR. While they do not have the force of law, they offer important, authoritative guidance on these aspects of the ICCPR. The suggested limitation of incommunicado detention to three to seven days reflects the consensus of international jurists that this extreme derogation should be strictly limited.
Our concerns regarding incommunicado detention in Serbia are heightened by the persistence of police practices inherited from the Milosevic regime. Serbian and international human rights groups have in the past two years frequently reported torture and ill-treatment of detainees, most often inflicted in order to extract a confession to the commission of a crime.
Against this backdrop, Human Rights Watch believes that the government should consider rescinding the ban on contacts between detainees and lawyers and family. In addition, we believe that it is in the interest of the Serbian government to open the treatment of the detainees to the scrutiny of independent outside actors. Such transparency would confirm the government’s general commitment to respect for human rights. It would also enhance prospects for effective prosecution of any detainees brought to trial, since defendants may otherwise credibly allege at trial that any confession before the investigating judge was extracted under threat of torture or ill-treatment by police during their incommunicado detention.
For these reasons, we would encourage the government to consider inviting independent monitors to regularly visit its detention facilities. The monitoring could take the form of visits by an inter-party parliamentary commission, the OSCE Advisory panel for the prevention of torture, or representatives of leading human rights groups in Serbia. Serbia and Montenegro might also accelerate its accession to the European Convention for the Prevention of Torture and its confidential monitoring mechanism. Several of these options could be arranged on a confidential basis so as to obviate concerns that the government might have about such access impinging its investigation.
Another aspect of the state security measures that is a cause of concern is the absence of judicial review of the lawfulness of the detention. The Order of the Acting President of Serbia, of March 12, only provides for an appeal against the decision to the Ministry of Interior. If detention lasts unreasonably long, the lack of judicial review runs contrary to the authoritative U.N. Human Rights Committee General Comment on article 4 of the ICCPR, which notes that “a state party may not depart from the requirement of effective judicial review of detention.” The 1984 Siracusa Principles also state that during a public emergency, “where persons are detained without charge the need of their continued detention shall be considered periodically by an independent review tribunal.” In light of this standard, Human Rights Watch believes that the thirty-day period specified in the Order of the Acting President, during which detainees are unable to contest the detention before a judicial body, is impermissibly long. The government should propose to the Acting President to amend the Order and provide for a judicial review of detention shortly after the deprivation of liberty.
Mr. Prime Minister, as we are certain you appreciate, the state obligation to respect the right to life applies fully even under the state of emergency. Nonetheless, on March 12, the minister of interior Dusan Mihajlovic stated that, in the search for those responsible for the assassination of Zoran Djindjic, the police would “liquidate everybody who resists the police.” These words suggest that the police claim a sweeping power to use lethal force against anybody who “resists,” even if the police have other means at their disposal to apprehend a suspect, and even if what they face is unarmed resistance.
Such a broad authority to use firearms would not be in line with the relevant international law instruments. The United Nations Code of Conduct for Law Enforcement Officials, adopted by General Assembly resolution 34/169 in December 1979, states that police may use force only when strictly necessary and to the extent required for the performance of their duties. (article 3) The comment on this provision clarifies that “firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender.” The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), which serve as a guide for the implementation of the Code of Conduct, stipulate: “Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, and . . . intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.” Human Rights Watch strongly urges your government to clarify Minister of Interior Mihajlovic’s comments and make clear to all security force personnel and the general public that the government remains committed to upholding its international obligations regarding the use of lethal force.
Finally, Mr. Prime Minister, we believe that the government should reconsider the restrictions it has imposed on freedom of media. The media is currently prohibited from publishing any articles or reports, other than government statements, about the reasons for the state of emergency. The same rule applies to reporting on the measures implementing the state of emergency. While it is possible to argue that the latter provision is defensible in order to prevent disclosure of information that might affect the ongoing investigation of the Djindjic murder, it is difficult to understand how discussion of the social and political circumstances leading to the March 12 assassination could hinder the investigation. In fact, the newspapers in Serbia have published quite a few articles analyzing the developments that led to this crime, and the authorities have refrained from censoring this commentary. The government should codify this de facto policy by rescinding the ban.
We also hope that the government will refrain from banning and imposing fines on media outlets unless the media clearly hinder the investigation into the Djindjic assassination or obstruct police efforts to apprehend the perpetrators. In that regard, the government should be able to offer a careful justification of every sanction it imposes. At least with regard to the recent closure of the newspaper “Nacional” and the ban of the distribution of the Montenegrin daily “Dan,” the government has in our view failed to offer a sufficient explanation.
We hope, Mr. Prime Minister, that you will give serious consideration to the points addressed in this letter, and, together with other officials in the government, make an unequivocal choice in favor of protecting human rights and fundamental freedoms even in this turbulent period in Serbia.
Europe and Central Asia division