On July 2, 2002, president of the Council of Europe Parliamentary Assembly Peter Schieder handed to the Chamber of Citizens of the Federal Republic of Yugoslavia (FR Yugoslavia) a list of commitments that the country must be "determined to honour" following its accession to the Council of Europe. The FR Yugoslav authorities undertook to accept this list of commitments on August 29, 2002, in anticipation of the next plenary session of the Parliamentary Assembly, to take place in the period September 23-27, 2002. An Assembly vote in favor of FR Yugoslavia's accession would allow the Committee of Ministers to invite the country to join the organization as its forty-fifth member state.
Human Rights Watch does not take a position on FR Yugoslavia's accession per se, but is concerned about the omission from the list of a number of key human rights requirements where urgent progress is warranted. These include fair and independent war crimes proceedings before national courts; preventing and punishing police violence; and protecting the Romani minority from discriminatory treatment. Genuine improvement in the human rights situation in FR Yugoslavia will not be possible unless these issues are addressed. Human Rights Watch urges the Parliamentary Assembly and the authorities of the FR Yugoslavia to ensure that references pertaining to these important areas, as detailed below, be included in the list of FR Yugoslavia's post-accession commitments:
Prosecution of War Crimes Before National Courts
The Assembly list rightly insists on continued cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY). A democratic society, dedicated to respect for human rights, cannot develop unless accountability for the most serious violations of human rights-war crimes-is established. However, the ICTY can only deal with a fraction of the war crimes cases. The tribunal's statute contemplates that where it deems appropriate, it may defer cases to competent national courts. As such, in June 2002, the tribunal devised a program of action whereby it would focus on the prosecution of the highest-ranking political and military figures, while the intermediary- and mid-level accused should be tried before national courts.
The issue of domestic war crimes trials in FR Yugoslavia should, therefore, figure on the list of its post-accession commitments. While the list of commitments includes requests that the authorities "cooperate to establish the facts concerning the fate of missing people and giving all information concerning mass graves," and that they "largely inform the people of Serbia about the crimes committed by the regime of Slobodan Milosevic," these requirements fall well below measures that would establish accountability in judicial proceedings of those responsible for the crimes.
To date, only two war crimes trials have been held in FR Yugoslavia, although hundreds of perpetrators of war crimes in Croatia, Bosnia and Herzegovina, and Kosovo live in the country. In just one additional case, the public prosecutor has filed an indictment against two suspects, one of whom has been detained while the other is still at large. There is a clear need for the Yugoslav authorities to commit to accountability for war crimes, including by creating competent and independent legal institutions that meet European fair trial standards and bring to justice individuals responsible for war crimes not being prosecuted before the ICTY.
In view of the foregoing, PACE members and the authorities of the FR Yugoslavia should consider amending the list of post-accession commitments, following the references to cooperation with the ICTY, to include language pertaining to the Yugoslav government's commitment:
To establish accountability of war crimes perpetrators before national courts, in full cooperation with the ICTY and with deference to its complementary jurisdiction, and in particular:
- take an unequivocal public position that the prosecution of war crimes are a fundamental aspect of the rule of law and the principle of justice and a basic moral obligation owed to the victims;
- where evidence indicates that war crimes have been committed, apply existing law and promptly and determinedly initiate war crimes proceedings, in accordance with fair trial standards contained in the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.
The new authorities have not used police violence against the political opposition, but police abuses against ordinary citizens are still commonplace. The Serbian Ministry of Interior has either ignored allegations of police torture and ill-treatment made in the media and human rights reports, or claimed that it had no knowledge of the alleged events. Of the six known court decisions since October 2000 dealing with excessive use of force by the police, the convicted law enforcement officers received sentences of less than six months in prison, with the exception of one case in which an August 2002 verdict sentenced the two accused to eighteen and ten months imprisonment respectively.
The Belgrade Center for Human Rights registered cases of torture and inhuman or degrading treatment in ten cities in Serbia during 2001. The reports by the Belgrade-based Humanitarian Law Center suggest that the trend has continued unabated in 2002. (Detailed descriptions of some of these cases, all of which date from 2002, are available in the enclosed Human Rights Watch briefing paper).
Despite recommendations by international monitoring bodies such as the U.N. Committee against Torture, FR Yugoslavia has not to date introduced a provision into its criminal law specifically defining torture as a criminal offense.
The new federal Criminal Procedure Act, which entered into force on March 28, 2002, obligates the police to provide an arrested person with immediate access to a lawyer. The police must also immediately inform the investigating judge about the arrest, and the judge may request to see the detained person at once. These provisions are intended to prevent arbitrary and excessive use of force by the police. However, the climate of impunity inherited from the previous regime and barely confronted by the current government raises doubts about the implementation of these new rules.
Human Rights Watch suggests that, in addition to the existing references to required improvements in policing structures and practices, the list of post-accession commitments pertaining to law enforcement also include an undertaking to:
Investigate and punish, through criminal or disciplinary proceedings, law enforcement officials who use excessive force or otherwise abuse their powers and, in particular:
- end the practice of denying outright the occurrence of police violence and promptly launch criminal investigations when allegations are made, including in cases of abuse targeting Roma;
- strictly enforce existing laws on internal affairs that provide for disciplinary proceedings and sanctions against law enforcement officials who abuse their powers;
- amend federal criminal law to specifically define torture as a criminal offense;
- undertake a vetting procedure for all members of law enforcement structures; dismiss and, where appropriate, bring to justice those found to have committed human rights abuses and humanitarian law violations;
Violations of the Rights of Roma
Since the change of government in October 2000, the authorities in Belgrade have enacted a law that recognizes the Romani population as a national minority, and they have increased the use of the Romani language in state television and radio programs. However, police brutality against Roma continues to be common, and discrimination in various fields of public life remains widespread. (For recent examples of police abuse against Roma, see Human Rights Watch briefing paper appended to this letter).
In addition to violent abuse and harassment on the part of law enforcement authorities, Roma in FR Yugoslavia also continue to suffer widespread discrimination in all fields of public life, including in education, housing, employment, health care, and access to public goods and services. Denial of access for Roma to privately owned restaurants and sports facilities is also commonplace. Although public prosecutors are duty bound to prosecute such cases ex officio, they routinely dismiss discrimination complaints or simply fail to take any action to address them.
Thousands of Romani families in FR Yugoslavia live in makeshift settlements in the vicinity of towns, left to survive without electricity, running water, or sewers. The position of displaced Roma from Kosovo has been particularly difficult because this group has suffered from both the lack of housing and police abuse. Roma displaced from Kosovo are also particularly vulnerable to arbitrary evictions from their makeshift homes, while the authorities have failed to provide them with alternative accommodation. (See appended Human Rights Watch briefing paper for details).
Human Rights Watch suggests that the authorities of the FR Yugoslavia and members of the Parliamentary Assembly explicitly address the discriminatory treatment of Roma in the list of post-accession commitments, including, for example, undertakings by the government to:
- adopt effective measures to prevent and punish discrimination against Roma in all fields of public life, including in the judicial system, access to housing, education, employment, health care, and social services; and
- adopt a comprehensive body of legislation prohibiting ethnic, racial and other forms of discrimination in all fields of public life and providing effective civil, criminal and administrative remedies for breach thereof.