Radivoje Ristic v. Yugoslavia · Contents Introduction 007 Views of the Committee Against Torture...

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Humanitarian Law Center

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Introduction 007

Views of the CommitteeAgainst Torture 009

Convention against torture and other cruel, inhuman or degrading treatment or punishment 027


The Humanitarian Law Center (HLC) wishes to bring topublic notice two very important decisions of the UNCommittee against Torture (the Committee) set up underthe UN Convention against Torture and other Cruel,Inhuman or Degrading Treatment or Punishment (theConvention against Torture).1 The Committee adoptedthese decisions pursuant to communications submitted onbehalf of citizens of Serbia and Montenegro who claim thattheir rights guaranteed by the Convention against Torturewere violated by state authorities of Serbia andMontenegro.

Article 22 of the Convention against Torture provides thatcommunications from or on behalf of individuals may besubmitted to the Committee under specified conditions.2

Radivoje Ristic v. Yugoslavia (UN Committee against Torture)

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1 The SFRY ratified the Convention against Torture on 10 September1991. At the same time, our country made a declaration underArticle 22 that it ‘recognizes the competence of the Committee toreceive and consider communications from or on behalf of individ-uals’ who claim to be victims of a violation by a state party of theprovisions of the Convention. Following its readmission to theUnited Nations, the FRY, one of the five successor states to the SFRY,on 12 March 2001 reaffirmed its commitment to the Conventionagainst Torture including the above provision of Article 22. UnderArticle 63 of the Constitutional Charter of the State Union of Serbiaand Montenegro, the rights and obligations of the SFRY are trans-ferred to Serbia and Montenegro.

2 Article 22 (2) of the Convention against Torture: ‘The Committeeshall consider inadmissible any communication under this Articlewhich is anonymous or which it considers to be an abuse of theright of submission of such communications or to be incompatiblewith the provisions of this Convention.’Article 22 (5): ‘The Committee shall not consider any communica-tions from an individual under this Article unless it has ascertained


This publication contains the Committee’s ruling in the caseof Milan Ristic versus the Federal Republic of Yugoslavia,while the Committee’s ruling in the Danilovgrad case,which dealt with the destruction of an entire Roma settle-ment in 1995, was published in another Humanitarian LawCenter publication.


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that: (a) The same matter has not been, and is not being, examinedunder another procedure of international investigation or settle-ment; (b) The individual has exhausted all available domesticremedies; this shall not be the rule where the application of theremedies is unreasonably prolonged or is unlikely to bring effectiverelief to the person who is the victim of the violation of thisConvention.’


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The UN Committee against Torture (the Committee) on 11May 2001 adopted the Humanitarian Law Center (HLC)communication on behalf of Milan Ristić against the FederalRepublic of Yugoslavia (FRY). The Committee found the FRYin breach of its obligations under the Convention againstTorture and other Cruel, Inhuman or Degrading Treatmentor Punishment (the Convention against Torture).

On 13 February 1995, nineteen-year-old Milan Ristić died aviolent death in the Serbian town of Šabac. His parentsrequested the competent Office of Public Prosecutor toorder an investigation because they had reason to believethat the police were responsible for the death of their son.The proceedings against the suspected police officers werediscontinued on 18 March 1997 by a decision of theSupreme Court of Serbia although the circumstances of theincident had not been fully clarified.

On 22 July 1998, the HLC submitted the communication tothe Committee on behalf of Radivoje Ristić, the father of thedeceased. The HLC presented the facts of the case alongwith relevant legal arguments to show that the competentpolice and judicial authorities of the FRY had violated therelevant provision of the Convention against Torture by notcarrying out a full, timely and impartial investigation.

By its decision of 11 May 2001, the Committee accepted allthe points made in the HLC communication and deter-mined that in this particular case the FRY had failed to hon-our its obligations under the Convention against Torture.


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The Committee noted that the competent FRY authoritieshad failed fully, timely and impartially to investigate thewell-founded allegation of police brutality as a possiblecause of the death of Milan Ristić. The Committee alsoinstructed the FRY to provide the parents of the deceasedwith an effective legal remedy for the loss they suffered, tocarry out an effective and full investigation to clarify all thecircumstances of the incident, and to advise the Committeewithin ninety days of the steps it has taken to this effect.

The HLC wishes to point out that the Committee decisionbeing hereby brought to public notice is the first such deter-mination adopted by an international human rights author-ity in connection with a communication from or on behalfof an individual against the FRY.


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CCoommmmuunniiccaattiioonn NNoo 111133//11999988 :: YYuuggoossllaavviiaa.. 1111//0055//22000011..CCAATT//CC//2266//DD//111133//11999988.. ((JJuurriisspprruuddeennccee))

Convention Abbreviation: CATCommittee Against TortureTwenty-sixth session(30 April - 18 May 2001)

AANNNNEEXX

Views of the Committee Against Torture under article 22 of the

Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment

-- TTwweennttyy--ssiixxtthh sseessssiioonn --

[Excerpt from A/56/44]Communication No. 113/1998

Submitted by: Radivoje Ristic [represented by counsel]

Alleged victim: Milan Ristic (deceased)


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State party: Yugoslavia

Date of communication: 22 July 1998

The Committee against Torture, established under Article17 of the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment,

Meeting on 11 May 2001,

Having concluded its consideration of communication No.113/1998, submitted to the Committee against Tortureunder article 22 of the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment orPunishment,

Having taken into account all information made available toit by the author of the communication, his counsel and theState party,

Adopts its Views under article 22, paragraph 7, of theConvention.


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1. The author of the communication, dated 22 July 1998,is Mr. Radivoje Ristic, a citizen of Yugoslavia, currently resid-ing in Šabac, Yugoslavia. He claims that an act of tortureresulting in the death of his son, Milan Ristic, was commit-ted by the police and that the authorities have failed tocarry out a prompt and impartial investigation. The com-munication was transmitted to the Committee, on behalf ofMr. Ristic, by the Humanitarian Law Center, a non-govern-mental organization based in Belgrade.

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2.1 The author alleges that on 13 February 1995 threepolicemen (Dragan Riznic, Uglješa Ivanovic and DraganNovakovic) arrested Milan Ristic in Šabac while looking fora murder suspect. One of the officers struck his son with ablunt object, presumably a pistol or rifle butt, behind theleft ear, killing him instantly. The officers moved the bodyand, with a blunt instrument, broke both thighbones. It wasonly then that they called an ambulance and the on-dutypolice investigation team, which included a forensic techni-cian.

2.2 The policemen told the investigators that Milan Ristichad committed suicide by jumping from the roof of a near-by building and that they had an eyewitness to that effect(Dragan Markovic). The medical doctor who came with theambulance pronounced Milan Ristic dead. The ambulancethen left, leaving the body to be collected by a mortuaryvan. The author claims that after the departure of the ambu-lance the policemen struck the deceased on the chin, caus-ing injury to his face.


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2.3 The author provides a copy of the autopsy report,which concluded that the death was violent and caused byan injury to the brain as a result of a fall on a hard surface.The fall also explained the fractures described in the report.The author also provides a copy of the report by the doctorwho came with the ambulance. That report says:

"By exterior examination I found weak bleeding from theinjury behind the left ear. Through the trousers above theright knee an open fracture of thighbone could be seenwith small blood signs; around the wound there were notraces of blood."

2.4 The author contends that the medical reports do notfully tally with each other. The ambulance doctor explicitlystates that he noticed no injuries on the face while theautopsy report lists a laceration and bruise on the chin. Hechallenges the reports, noting that it is hardly possible thata person could fall from a height of 14.65 metres withoutsuffering any injury to the face, heels, pelvis, spine or inter-nal organs and without internal haemorrhaging, leavingonly bruises on the left elbow and behind the left ear.Moreover, he notes that there wasno blood on the ground.

2.5 At the request of the parents, two forensic expertsexamined the autopsy report and found it superficial andcontradictory, especially in the part referring to the cause ofdeath. According to their report, the autopsy was not per-formed in accordance with the principles of forensic andmedical science and practice and the conclusion is not inagreement with the findings. They proposed the exhuma-tion of the remains and another autopsy by a forensic


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expert. The author further states that on 16 May 1995 theyspoke with the pathologist who had performed the autop-sy and visited the alleged scene of the incident. They notedthat the autopsy report and the scene had nothing in com-mon, which suggested that the body had been moved. In awritten statement dated 18 July 1995 addressed to thePublic Attorney's Office, the pathologist agreed that theremains should be exhumed for forensic examination andpointed out that, as he was not a specialist in forensic med-icine, he might have made a mistake or missed somedetails.

2.6 The parents of the victim filed criminal charges againsta number of police officers before the Public Prosecutor inŠabac. On 19 February 1996, the Public Prosecutor dis-missed the charges. Under Yugoslav law, following dis-missal of a criminal complaint, the victim or the person act-ing on his behalf may either request the institution of inves-tigative proceedings or file an indictment and proceeddirectly to trial. In the present case, the parents presentedtheir own indictment on 25 February 1996.

2.7 The investigating judge questioned the policemenallegedly involved as well as witnesses and found nogrounds for believing that the alleged criminal offence hadbeen committed. The Criminal Bench of the Šabac DistrictCourt endorsed the investigating judge's decision. TheCourt did not find it necessary to hear the testimony of thetwo forensic experts and did not consider the possibility ofordering an exhumation and a new autopsy. Besides, theinvestigating judge delivered to the parents an unsignedstatement which the pathologist allegedly made in court


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when they were not present and which contradicts the onehe had made in writing on 18 July 1995. The author furtherexplains that, in addition to the medical contradictions,there were many other conflicting facts that the judicialinvestigation failed to clarify.

2.8 The parents appealed the decision of the District Courtto the Serbian Supreme Court, which on 29 October 1996dismissed the appeal as unfounded. According to the rul-ing, the testimony of Dragan Markovic showed without anydoubt that Milan Ristic was alive at the time when policeofficers Sinisa Isailovic and Zoran Jeftic appeared in front ofthe building in which Mr. Markovic lived. They wereresponding to a telephone call from a person named ZoranMarkovic who had noticed a man at the edge of the terracefrom whose behaviour it could be concludedthat he wasabout to commit suicide. Dragan Markovic and the twopolicemen actually saw Milan Ristic jump from the terrace.There was nothing they could do to stop him.

2.9 The parents again tried to bring the case before thejudiciary, but on 10 February 1997 the Šabac District Courtruled that prosecution was no longer possible in view of thedecision of the Supreme Court of Serbia. On 18 March 1997,the Supreme Court dismissed their further appeal and con-firmed the District Court's ruling.

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3.1 The author considers that first the police and, subse-quently, the judicial authorities failed to ensure a promptand impartial investigation. All domestic remedies were


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exhausted without the court ever having ordered or formal-ly instituted proper investigative proceedings. The prelimi-nary investigation by the investigating judge, which con-sisted of questioning of the accused and some witnesses,did not produce sufficient information to clarify the circum-stances of the death and the court never ordered a forensicexamination. The court did not order either the hearing ofother witnesses, such as the employees of the funeral home,whose testimony could have been relevant to establish thechronology of events. The author further contends that theinvestigation was not carried out in accordance with theprovisions of the Criminal Procedure Code. For instance, thepolice failed to inform the investigating judge immediatelyof the incident, although obliged to do so by article 154.The entire on-site investigation was therefore conducted bythe police without the presence of a judge. The author fur-ther contends that every action aimed at clarifying the inci-dent was initiated by the parents of Milan Ristic and thatthe competent government bodies failed to take any effec-tive steps to that end.

3.2 On the basis of the above, the author claims that theState party has violated several articles of the Convention,in particular articles 12, 13 and 14. He states that althoughthe parents had the possibility of seeking compensation,the prospect of their being awarded damages was de factonon-existent in the absence of a criminal court judgement.

OObbsseerrvvaattiioonnss bbyy tthhee SSttaattee ppaarrttyy

4. On 26 October 1998 the State party informed theCommittee that, although all domestic remedies had been


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exhausted, the communication does not fulfil other neces-sary conditions provided for by the Convention. It stated, inparticular, that no act of torture had been committed, sincethe deceased did not have any contact at all with Stateauthorities - the police. Accordingly, the communicationwas not admissible.

TThhee CCoommmmiitttteeee''ss ddeecciissiioonn oonn aaddmmiissssiibbiilliittyy

5. At its twenty-second session, in April-May 1999, theCommittee considered the question of the admissibility ofthe communication and ascertained that the same matterhad not been and was not being examined under anotherprocedure of international investigation or settlement. TheCommittee noted the State party's statement that alldomestic remedies had been exhausted, and consideredthat the communication was not an abuse of the right ofsubmission or incompatible with the provisions of theConvention. The Committee therefore decided, on 30 April1999, that the communication was admissible.

TThhee SSttaattee ppaarrttyy''ss oobbsseerrvvaattiioonnss oonn tthhee mmeerriittss

6.1 In a submission dated 15 December 1999, the Stateparty gave to the Committee its observations on the meritsof the communication.

6.2 The State party reiterates its opinion that the allegedvictim wasnot subjected to torture because he had at notime been in contact with the law enforcement officers, i.e.the police officers. It therefore considers that there is no vio-lation of the Convention whatsoever.


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6.3 The State party also underlines that the courts of itscountry operate independently and have concluded right-fully and in accordance with the law that no investigationshould be initiated against the alleged authors of the acts oftorture. It points in this regard to the fact that the author ofthe communication has not submitted all the court deci-sions and other judicial documents that may bring someadditional light to the Committee's consideration of thecommunication. The said documents were submitted tothat effect by the State party.

6.4 The State party then gave its version of the facts. First,it alleges that the alleged victim took alcohol and drugs(Bromazepan) and had already tried to commit suicidesome time before. During the afternoon preceding hisdeath, on 12 February 1995, the alleged victim had takensome drugs (in the form of pills) and was in a very badmood because of an argument he had had with his mother.These elements were, according to the State party, con-firmed by four of his friends who spent the afternoon of 12February 1995 with the alleged victim. The State party alsonotes that the parents and girlfriend of the alleged victimstated exactly the contrary.

6.5 With respect to the events surrounding the death of thealleged victim, the State party refers to the statement madeby the eyewitness, Dragan Markovic, who explained that hehad seen the victim standing on the edge of the terrace, 15metres from the ground and immediately called the police.When the police arrived, the victim jumped from the terraceand neither Dragan Markovic nor the police could prevent it.


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The State party notes also that the three policemen who areaccused of the alleged murder of the victim arrived on thepremises after the victim had jumped and therefore con-cludes that none of them could have taken any action.

6.6 The above elements demonstrate, according to theState party, that the death of the alleged victim was theresult of a suicide and that no acts of torture had thereforebeen committed.

6.7 Moreover, the State party notes that the impartiality ofwitness Dragan Markovic, as well as of S. Isailovic and Z.Jetvic, the two police officers who arrived first on the scene,is indisputable and confirmed by the fact that the requestfor an investigation filed by the author of the communica-tion was directed not against these persons but others.

6.8 Concerning the judicial proceedings that followed thedeath of the victim, the State party recalls the various stepsof the procedure and notes that the main reason that aninvestigation had not been ordered was the lack of strongevidence to prove a causal link between the behaviour ofthe three defendant police officers and the death of the vic-tim. The State party contends that the procedure has beenscrupulously respected at all steps and that the complainthas been carefully considered by all the magistrates whohave had to deal with the case.

6.9 Finally, the State party emphasizes that certain omis-sions that may have occurred during the events immediate-ly following the death of the alleged victim and that havebeen referred to by the author of the communication were


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not important because they do not prove that the allegedvictim died as a result of torture.

CCoommmmeennttss ssuubbmmiitttteedd bbyy tthhee aauutthhoorr oonn tthhee mmeerriittss

7.1 In a submission dated 4 January 1999, the author refersto relevant jurisprudence of the European Court of HumanRights. In a further submission dated 19 April 2000, theauthor confirmed the assertions he had made in his com-munication and gave to the Committee additional observa-tions on the merits of the communication.

7.2 The author first makes some remarks on specific issuesraised or ignored by the State party in its observations. Inthis regard, the author mainly points to the fact that theState party limited itself to arguing that the three police offi-cers allegedly responsible for the murder were not involvedin the death of the alleged victim and fails to address themain issue of the communication, which is the failure tocarry out a prompt, impartial and comprehensive investiga-tion.

7.3 The author focuses on the following factual elementssupporting his claim:

(a) The inspector in charge of the case took three monthsto collect the information needed for the investigation;

(b) The District Court was only requested to initiate aninvestigation seven months after the death of thealleged victim;


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(c) The District Court failed to take as a starting point forestablishing the relevant facts the police report thathad been made at the time of the death;

(d) The eyewitness Dragan Markovic did mention in hisonly statement the presence at the scene of police offi-cers Z. Jeftic and S. Isailovic and not the presence of thethree defendant police officers;

(e) The Šabac Police Department failed to provide thephotographs taken at the scene of the incident, as aresult of which the investigating judge transmittedincomplete documentation to the public prosecutor;

(f) When the parents of the alleged victim proceeded inthe capacity of private prosecutor, the investigatingjudge failed to order the exhumation of the body of thealleged victim and a new autopsy, at the same timeagreeing that the original autopsy "had not been per-formed in line with all the rules of forensic medicine";

(g) Yugoslav prosecuting authorities failed to hear numer-ous other witnesses proposed by the author.

7.4 Regarding the State party's contention that the allegedvictim had previously attempted to commit suicide, theauthor indicates that the State party does not substantiateits claim with medical records or police reports, which areusually available in such cases. With regard to otherrumours concerning the alleged victim, inter alia that hewas addicted to drugs, the author notes that they havealways been denied by the family. The author does not


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know when or whether the four friends of his son wereinterrogated and neither he nor his lawyer was ever notifiedof such an interrogation. Moreover, the author notes thatthree of these witnesses may have been subjected to pres-sure and influenced for various reasons.

7.5 Concerning the obligation to investigate incidents oftorture and cruel, inhuman or degrading treatment or pun-ishment, the author refers to the jurisprudence of theCommittee in the case Encarnación Blanco Abad v. Spain(CAT/C/20/D/59/1996), where the Committee observedthat "under article 12 of the Convention, the authoritieshave the obligation to proceed to an investigation ex officio,wherever there are reasonable grounds to believe that actsof torture or ill-treatmenthave been committed and whatev-er the origin of the suspicion". He also refers to the decisionin the case Henri Unai Parot v. Spain (CAT/C/14/D/6/1990),according to which the obligation of a prompt and impar-tial investigation exists even when torture has merely beenalleged by the victim, without the existence of a formalcomplaint. The same jurisprudence is confirmed by theEuropean Court of Human Rights (Assenov and Others v.Bulgaria (90/1997/874/1086)).

7.6 Concerning the principle of prompt investigation ofincidents of alleged torture or other ill-treatment, theauthor refers to the Committee's jurisprudence stating thata delay of 15 months before the initiation of an investigationis unreasonable and contrary to article 12 of the Convention(Qani Halimi-Nedzibi v. Austria, CAT/C/11/D/8/1991).


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7.7 Concerning the principle of the impartiality of the judi-cial authorities, the author states that a body cannot beimpartial if it is not sufficiently independent. He refers tothe case-law of the European Court of Human Rights todefine both the impartiality and the independence of ajudicial body in accordance with article 6 (1) and 13 of theEuropean Convention on Human Rights and underlinesthat the authority capable of providing a remedy should be"sufficiently independent" from the alleged responsibleauthor of the violation.

7.8 Concerning the existence of reasonable grounds tobelieve that an act of torture or other ill-treatment has beencommitted, the author, again relying on the jurisprudenceof the European Court of Human Rights, points to "the exis-tence of facts or information which would satisfy an objec-tive observer that the person concerned may have commit-ted the offence".

7.9 Concerning the principle of compensation and rehabil-itation for an act of torture or other ill-treatment, the authormentions that an effective remedy entails also the paymentof compensation.

7.10 The author stresses that, at the time of his submission,five years had already elapsed since his son's death. He con-tends that, notwithstanding strong indication that gravepolice brutality had caused the death of Milan Ristic, theYugoslav authorities have failed to conduct a prompt,impartial and comprehensive investigation able to lead tothe identification and punishment of those responsible, andhave thus failed to provide the author with any redress.


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7.11 Relying on a significant amount of sources, the authorexplains that police brutality in Yugoslavia is systematic andconsiders that public prosecutors are not independent andrarely institute criminal proceedings against police officersaccused of violence and/or misconduct towards citizens. Insuch cases, the action is very often limited to a request forinformation directed to the police authorities alone and theuse of dilatory tactics is common.

7.12 Finally, the author specifically refers to the most recentexamination of the periodic report submitted by Yugoslaviato the Committee and the latter's subsequent concludingobservations, in which it stated that it was "extremely con-cerned over the numerous accounts of the use of torture bythe State police forces that it has received from non-govern-mental organizations" (A/54/44, para. 46) and "gravely con-cerned over the lack of sufficient investigation, prosecutionand punishment by the competent authorities … of suspect-ed torturers or those breaching article 16 of the Convention,as well as with the insufficient reaction to the complaints ofsuch abused persons, resulting in the de facto impunity ofthe perpetrators of acts of torture" (ibid., para. 47).

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8.1 The Committee has considered the communication inthe light of all information made available to it by the par-ties concerned, in accordance with article 22, paragraph 4,of the Convention. It regrets in this regard that the Stateparty has only provided the Committee with a differentaccount of the event, and notes that more precise informa-tion concerning the conduct of the investigation was neces-


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sary, including an explanation of why a new autopsy wasnot carried out.

8.2 It also notes that the author of the communicationclaims that the State party has violated articles 2, 12, 13, 14and 16 of the Convention.

8.3 With regard to articles 2 and 16, the Committee firstconsiders that it does not fall under its mandate to assessthe guilt of persons who have allegedly committed acts oftorture or police brutality. Its competence is limited to con-sidering whether the State party has failed to comply withany of the provisions of the Convention. In the present case,the Committee will therefore not pronounce itself on theexistence of torture or ill-treatment.

8.4 With regard to articles 12 and 13 of the Convention,the Committee notes the following elements, on whichboth parties have been able to submit observations:

(a) There are apparent differences and inconsistenciesbetween the statement made on 18 August 1995 bythe doctor who came with the ambulance as to thepremise of the cause of death of the alleged victim, theautopsy report of 13 February 1995 and the reportmade on 20 March 1995 by two forensic experts at therequest of the parents of the alleged victim;

(b) Although the investigating judge in charge of the casewhen the parents of the alleged victim proceeded inthe capacity of private prosecutor stated that theautopsy "had not been performed in line with all the


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rules of forensic medicine", there was no order ofexhumation of the body for a new forensic examina-tion;

(c) There is a difference between the statement made on13 February 1995 by one of the three police officersallegedly responsible for the death of the alleged vic-tim according to which the Police Department hadbeen called for a person who had committed suicideand the statements made by another of the above-mentioned police officers, as well as by two otherpolice officers and the witness D. Markovic, accordingto which the Police Department had been called for aperson who might jump from the roof of a building;

(d The police did not immediately inform the investigat-ing judge on duty of the incident in order for him tooversee the on-site investigation in compliance witharticle 154 of the Code of Criminal Procedure of theState party.

8.5 Moreover, the Committee is especially concerned bythe fact that the doctor who carried out the autopsy admit-ted in a statement dated 18 July 1995 that he was not a spe-cialist in forensic medicine.

8.6 Noting the above elements, the Committee considersthat the investigation that was conducted by the Stateparty's authorities was neither effective nor thorough. Aproper investigation would indeed have entailed an exhu-mation and a new autopsy, which would in turn have


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allowed the cause of death to be medically established witha satisfactory degree of certainty.

8.7 Moreover, the Committee notes that six years haveelapsed since the incident took place. The State party hashad ample time to conduct a proper investigation.

8.8 In the circumstances, the Committee finds that theState party has violated its obligations under articles 12 and13 of the Convention to investigate promptly and effective-ly allegations of torture or severe police brutality.

8.9 With regard to allegations of a violation of article 14,the Committee finds that in the absence of proper criminalinvestigation, it is not possible to determine whether therights to compensation of the alleged victim or his familyhave been violated. Such an assessment can only be madeafter the conclusion of proper investigations. TheCommittee therefore urges the State party to carry out suchinvestigations without delay.

9. In pursuance of rule 111, paragraph 5, of its rules ofprocedure, the Committee urges the State party to providethe author of the communication with an appropriate rem-edy, and to inform it, within 90 days from the date of thetransmittal of this decision, of the steps it has taken inresponse to the observations made above.


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CCOONNVVEENNTTIIOONN AAGGAAIINNSSTT TTOORRTTUURREE AANNDD OOTTHHEERRCCRRUUEELL,, IINNHHUUMMAANN OORR DDEEGGRRAADDIINNGG TTRREEAATTMMEENNTT OORRPPUUNNIISSHHMMEENNTT

The States Parties to this Convention,

Considering that, in accordance with the principles pro-claimed in the Charter of the United Nations, recognition ofthe equal and inalienable rights of all members of thehuman family is the foundation of freedom, justice andpeace in the world,

Recognizing that those rights derive from the inherent dig-nity of the human person,

Considering the obligation of States under the Charter, inparticular Article 55, to promote universal respect for, andobservance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration ofHuman Rights and article 7 of the International Covenanton Civil and Political Rights, both of which provide that noone shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment,

Having regard also to the Declaration on the Protection ofAll Persons from Being Subjected to Torture and OtherCruel, Inhuman or Degrading Treatment or Punishment,adopted by the General Assembly on 9 December 1975,


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Desiring to make more effective the struggle against tortureand other cruel, inhuman or degrading treatment or pun-ishment throughout the world,

Have agreed as follows:

PPAARRTT II

Article I

1. For the purposes of this Convention, the term "torture"means any act by which severe pain or suffering, whetherphysical or mental, is intentionally inflicted on a person forsuch purposes as obtaining from him or a third personinformation or a confession, punishing him for an act he ora third person has committed or is suspected of havingcommitted, or intimidating or coercing him or a third per-son, or for any reason based on discrimination of any kind,when such pain or suffering is inflicted by or at the instiga-tion of or with the consent or acquiescence of a public offi-cial or other person acting in an official capacity. It does notinclude pain or suffering arising only from, inherent in orincidental to lawful sanctions.

2. This article is without prejudice to any internationalinstrument or national legislation which does or may con-tain provisions of wider application.


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Article 2

1. Each State Party shall take effective legislative, adminis-trative, judicial or other measures to prevent acts of torturein any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether astate of war or a threat of war, internal political instability orany other public emergency, may be invoked as a justifica-tion of torture.

3. An order from a superior officer or a public authority maynot be invoked as a justification of torture.

Article 3

1. No State Party shall expel, return ("refouler") or extraditea person to another State where there are substantialgrounds for believing that he would be in danger of beingsubjected to torture.

2. For the purpose of determining whether there are suchgrounds, the competent authorities shall take into accountall relevant considerations including, where applicable, theexistence in the State concerned of a consistent pattern ofgross, flagrant or mass violations of human rights.


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Article 4

1. Each State Party shall ensure that all acts of torture areoffences under its criminal law. The same shall apply to anattempt to commit torture and to an act by any personwhich constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable byappropriate penalties which take into account their gravenature.

Article 5

1. Each State Party shall take such measures as may be nec-essary to establish its jurisdiction over the offences referredto in article 4 in the following cases:(a) When the offences are committed in any territory

under its jurisdiction or on board a ship or aircraft reg-istered in that State;

(b) When the alleged offender is a national of that State;(c) When the victim is a national of that State if that State

considers it appropriate.

2. Each State Party shall likewise take such measures as maybe necessary to establish its jurisdiction over such offencesin cases where the alleged offender is present in any territo-ry under its jurisdiction and it does not extradite him pur-suant to article 8 to any of the States mentioned in para-graph 1 of this article.


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3. This Convention does not exclude any criminal jurisdic-tion exercised in accordance with internal law.

Article 6

1. Upon being satisfied, after an examination of informationavailable to it, that the circumstances so warrant, any StateParty in whose territory a person alleged to have committedany offence referred to in article 4 is present shall take himinto custody or take other legal measures to ensure his pres-ence. The custody and other legal measures shall be as pro-vided in the law of that State but may be continued only forsuch time as is necessary to enable any criminal or extradi-tion proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiryinto the facts.

3. Any person in custody pursuant to paragraph 1 of thisarticle shall be assisted in communicating immediately withthe nearest appropriate representative of the State of whichhe is a national, or, if he is a stateless person, with the rep-resentative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a personinto custody, it shall immediately notify the States referredto in article 5, paragraph 1, of the fact that such person is incustody and of the circumstances which warrant his deten-tion. The State which makes the preliminary inquiry con-templated in paragraph 2 of this article shall promptly


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report its findings to the said States and shall indicatewhether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction aperson alleged to have committed any offence referred to inarticle 4 is found shall in the cases contemplated in article5, if it does not extradite him, submit the case to its compe-tent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the samemanner as in the case of any ordinary offence of a seriousnature under the law of that State. In the cases referred toin article 5, paragraph 2, the standards of evidence requiredfor prosecution and conviction shall in no way be less strin-gent than those which apply in the cases referred to in arti-cle 5, paragraph 1.

3. Any person regarding whom proceedings are brought inconnection with any of the offences referred to in article 4shall be guaranteed fair treatment at all stages of the pro-ceedings.

Article 8

1. The offences referred to in article 4 shall be deemed to beincluded as extraditable offences in any extradition treatyexisting between States Parties. States Parties undertake to


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include such offences as extraditable offences in everyextradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional onthe existence of a treaty receives a request for extraditionfrom another. State Party with which it has no extraditiontreaty, it may consider this Convention as the legal basis forextradition in respect of such offences. Extradition shall besubject to the other conditions provided by the law of therequested State.

3. States Parties which do not make extradition conditionalon the existence of a treaty shall recognize such offences asextraditable offences between themselves subject to theconditions provided by the law of the requested State.

4. Such offences shall be treated, for the purpose of extradi-tion between States Parties, as if they had been committednot only in the place in which they occurred but also in theterritories of the States required to establish their jurisdic-tion in accordance with article 5, paragraph 1.

Article 9

1. States Parties shall afford one another the greatest meas-ure of assistance in connection with criminal proceedingsbrought in respect of any of the offences referred to in arti-cle 4, including the supply of all evidence at their disposalnecessary for the proceedings.


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2. States Parties shall carry out their obligations under para-graph I of this article in conformity with any treaties onmutual judicial assistance that may exist between them.

Article 10

1. Each State Party shall ensure that education and informa-tion regarding the prohibition against torture are fullyincluded in the training of law enforcement personnel, civilor military, medical personnel, public officials and otherpersons who may be involved in the custody, interrogationor treatment of any individual subjected to any form ofarrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rulesor instructions issued in regard to the duties and functionsof any such person.

Article 11

Each State Party shall keep under systematic review interro-gation rules, instructions, methods and practices as well asarrangements for the custody and treatment of personssubjected to any form of arrest, detention or imprisonmentin any territory under its jurisdiction, with a view to prevent-ing any cases of torture.


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Article 12

Each State Party shall ensure that its competent authoritiesproceed to a prompt and impartial investigation, whereverthere is reasonable ground to believe that an act of torturehas been committed in any territory under its jurisdiction.

Article 13

Each State Party shall ensure that any individual whoalleges he has been subjected to torture in any territoryunder its jurisdiction has the right to complain to, and tohave his case promptly and impartially examined by, itscompetent authorities. Steps shall be taken to ensure thatthe complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his com-plaint or any evidence given.

Article 14

1. Each State Party shall ensure in its legal system that thevictim of an act of torture obtains redress and has anenforceable right to fair and adequate compensation,including the means for as full rehabilitation as possible. Inthe event of the death of the victim as a result of an act oftorture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victimor other persons to compensation which may exist undernational law.


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Article 15

Each State Party shall ensure that any statement which isestablished to have been made as a result of torture shallnot be invoked as evidence in any proceedings, exceptagainst a person accused of torture as evidence that thestatement was made.

Article 16

1. Each State Party shall undertake to prevent in any territo-ry under its jurisdiction other acts of cruel, inhuman ordegrading treatment or punishment which do not amountto torture as defined in article 1, when such acts are com-mitted by or at the instigation of or with the consent oracquiescence of a public official or other person acting in anofficial capacity. In particular, the obligations contained inarticles 10, 11, 12 and 13 shall apply with the substitutionfor references to torture of references to other forms of cruel,inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudiceto the provisions of any other international instrument ornational law which prohibits cruel, inhuman or degradingtreatment or punishment or which relates to extradition orexpulsion.


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PPAARRTT IIII

Article 17

1. There shall be established a Committee against Torture(hereinafter referred to as the Committee) which shall carryout the functions hereinafter provided. The Committee shallconsist of ten experts of high moral standing and recog-nized competence in the field of human rights, who shallserve in their personal capacity. The experts shall be electedby the States Parties, consideration being given to equitablegeographical distribution and to the usefulness of the par-ticipation of some persons having legal experience.

2. The members of the Committee shall be elected by secretballot from a list of persons nominated by States Parties.Each State Party may nominate one person from among itsown nationals. States Parties shall bear in mind the useful-ness of nominating persons who are also members of theHuman Rights Committee established under theInternational Covenant on Civil and Political Rights andwho are willing to serve on the Committee against Torture.

3. Elections of the members of the Committee shall be heldat biennial meetings of States Parties convened by theSecretary-General of the United Nations. At those meetings,for which two thirds of the States Parties shall constitute aquorum, the persons elected to the Committee shall bethose who obtain the largest number of votes and anabsolute majority of the votes of the representatives ofStates Parties present and voting.


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4. The initial election shall be held no later than six monthsafter the date of the entry into force of this Convention. At.Ieast four months before the date of each election, theSecretary-General of the United Nations shall address a let-ter to the States Parties inviting them to submit their nomi-nations within three months. The Secretary-General shallprepare a list in alphabetical order of all persons thus nom-inated, indicating the States Parties which have nominatedthem, and shall submit it to the States Parties.

5. The members of the Committee shall be elected for aterm of four years. They shall be eligible for re-election ifrenominated. However, the term of five ofthe memberselected at the first election shall expire at the end oftwoyears; immediately after the first election the names of thesefive members shall be chosen by lot by the chairman of themeeting referred to in paragraph 3 of this anicle.

6. If a member of the Committee dies or resigns or for anyother cause can no longer perform his Committee duties,the State Party which nominated him shall appoint anotherexpert from among its nationals to serve for the remainderof his term, subject to the approval of the majority of theStates Parties. The approval shall be considered given unlesshalf or more of the States Parties respond negatively withinsix weeks after having been informed by the Secretary-General of the United Nations of the proposed appoint-ment.

7. States Parties shall be responsible for the expenses of themembers of the Committee while they are in performanceof Committee duties.


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Article 18

1. The Committee shall elect its officers for a term of twoyears. They may be re-elected.

2. The Committee shall establish its own rules of procedure,but these rules shall provide, inter alia, that:(a) Six members shall constitute a quorum;(b) Decisions of the Committee shall be made by a major-

ity vote of the members present.

3. The Secretary-General of the United Nations shall providethe necessary staff and facilities for the effective perform-ance of the functions of the Committee under thisConvention.

4. The Secretary-General of the United Nations shall con-vene the initial meeting of the Committee. After its initialmeeting, the Committee shall meet at such times as shall beprovided in its rules of procedure.

5. The States Parties shall be responsible for expensesincurred in connection with the holding of meetings of theStates Parties and of the Committee, including reimburse-ment to the United Nations for any expenses, such as thecost of staff and facilities, incurred by the United Nationspursuant to paragraph 3 of this article.


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Article 19

1. The States Parties shall submit to the Committee, throughthe Secretary-General of the United Nations, reports on themeasures they have taken to give effect to their undertak-ings under this Convention, within one year after the entryinto force of the Convention for the State Party concerned.Thereafter the States Parties shall submit supplementaryreports every four years on any new measures taken andsuch other reports as the Committee may request.

2. The Secretary-General of the United Nations shall trans-mit the reports to all States Parties.

3. Each report shall be considered by the Committee whichmay make such general comments on the report as it mayconsider appropriate and shall forward these to the StateParty concerned. That State Party may respond with anyobservations it chooses to the Committee.

4. The Committee may, at its discretion, decide to include anycomments made by it in accordance with paragraph 3 of thisarticle, together with the observations thereon received fromthe State Party concerned, in its annual report made in accor-dance with article 24. If so requested by the State Party con-cerned, the Committee may also include a copy of the reportsubmitted under paragraph I of this article.


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Article 20

1. If the Committee receives reliable information whichappears to it to contain well-founded indications that tor-ture is being systematically practised in the territory of aState Party, the Committee shall invite that State Party to co-operate in the examination of the information and to thisend to submit observations with regard to the informationconcerned.

2. Taking into account any observations which may havebeen submitted by the State Party concerned, as well as anyother relevant information available to it, the Committeemay, if it decides that this is warranted, designate one ormore of its members to make a confidential inquiry and toreport to the Committee urgently.

3. If an inquiry is made in accordance with paragraph 2 ofthis article, the Committee shall seek the co-operation of theState Party concerned. In agreement with that State Party,such an inquiry may include a visit to its territory.

4. After examining the findings of its member or memberssubmitted in accordance with paragraph 2 of this article,the Commission shall transmit these findings to the StateParty concerned together with any comments or sugges-tions which seem appropriate in view of the situation.

5. All the proceedings of the Committee referred to in para-graphs I to 4 of this article shall be confidential, and at allstages of the proceedings the co-operation of the StateParty shall be sought. After such proceedings have been


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completed with regard to an inquiry made in accordancewith paragraph 2, the Committee may, after consultationswith the State Party concerned, decide to include a summa-ry account of the results of the proceedings in its annualreport made in accordance with article 24.

Article 21

1. A State Party to this Convention may at any time declareunder this article that it recognizes the competence of theCommittee to receive and consider communications to theeffect that a State Party claims that another State Party is notfulfilling its obligations under this Convention. Such com-munications may be received and considered according tothe procedures laid down in this article only if submitted bya State Party which has made a declaration recognizing inregard to itself the competence of the Committee. No com-munication shall be dealt with by the Committee under thisarticle if it concerns a State Party which has not made sucha declaration. Communications received under this articleshall be dealt with in accordance with the following proce-dure;(a) If a State Party considers that another State Party is not

giving effect to the provisions of this Convention, itmay, by written communication, bring the matter tothe attention of that State Party. Within three monthsafter the receipt of the communication the receivingState shall afford the State which sent the communica-tion an explanation or any other statement in writingclarifying the matter, which should include, to theextent possible and pertinent, reference to domestic


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procedures and remedies taken, pending or availablein the matter;

(b) If the matter is not adjusted to the satisfaction of bothStates Parties concerned within six months after thereceipt by the receiving State of the initial communica-tion, either State shall have the right to refer the matterto the Committee, by notice given to the Committeeand to the other State;

(c) The Committee shall deal with a matter referred to itunder this article only after it has ascertained that alldomestic remedies have been invoked and exhaustedin the matter, in conformity with the generally recog-nized principles of international law. This shall not bethe rule where the application of the remedies isunreasonably prolonged or is unlikely to bring effec-tive relief to the person who is the victim of the viola-tion of this Convention;

(d) The Committee shall hold closed meetings whenexamining communications under this article;

(e) Subject to the provisions of subparagraph (c), theCommittee shall make available its good offices to theStates Parties concerned with a view to a friendly solu-tion of the matter on the basis of respect for the obliga-tions provided for in this Convention. For this purpose,the Committee may, when appropriate, set up an adhoc conciliation commission;

(f) In any matter referred to it under this article, theCommittee may call upon the States Parties concerned,referred to in subparagraph (b), to supply any relevantinformation;

(g) The States Parties concerned, referred to in subpara-graph (b), shall have the right to be represented when


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the matter is being considered by the Committee andto make submissions orally and/or in writing;

(h) The Committee shall, within twelve months after thedate of receipt of notice under subparagraph (b), sub-mit a report:

(i) If a solution within the terms of subparagraph (e) isreached, the Committee shall confine its report to abrief statement of the facts and of the solution reached;

(ii If a solution within the terms of subparagraph (e) isnot reached, the Committee shall confine its report toa brief statement of the facts; the written submissionsand record of the oral submissions made by the StatesParties concerned shall be attached to the report. Inevery matter, the report shall be communicated to theStates Parties concerned.

2. The provisions of this article shall come into force whenfive States Parties to this Convention have made declara-tions under paragraph 1 of this article. Such declarationsshall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copiesthereof to the other States Parties. A declaration may bewithdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consid-eration of any matter which is the subject of a communica-tion already transmitted under this article; no further com-munication by any State Party shall be received under thisarticle after the notification of withdrawal of the declarationhas been received by the Secretary-General, unless the StateParty concerned has made a new declaration.


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Article 22

1. A State Party to this Convention may at any time declareunder this article that it recognizes the competence of theCommittee to receive and consider communications fromor on behalf of individuals subject to its jurisdiction whoclaim to be victims of a violation by a State Party of the pro-visions of the Convention. No communication shall bereceived by the Committee if it concerns a State Party whichhas not made such a declaration.

2. The Committee shall consider inadmissible any commu-nication under this article which is anonymous or which itconsiders to be an abuse of the right of submission of suchcommunications or to be incompatible with the provisionsof this Convention.

3. Subject to the provisions of paragraph 2, the Committeeshall bring any communications submitted to it under thisarticle to the attention of the State Party to this Conventionwhich has made a declaration under paragraph I and isalleged to be violating any provisions of the Convention.Within six months, the receiving State shall submit to theCommittee written explanations or statements clarifyingthe matter and the remedy, if any, that may have been takenby that State.

4. The Committee shall consider communications receivedunder this article in the light of all information made avail-able to it by or on behalf of the individual and by the StateParty concerned.


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5. The Committee shall not consider any communicationsfrom an individual under this article unless it has ascer-tained that:(a) The same matter has not been, and is not being, exam-

ined under another procedure of international investi-gation or settlement;

(b) The individual has exhausted all available domesticremedies; this shall not be the rule where the applica-tion of the remedies is unreasonably prolonged or isunlikely to bring effective relief to the person who isthe victim of the violation of this Convention.

6. The Committee shall hold closed meetings when examin-ing communications under this article.

7. The Committee shall forward its views to the State Partyconcerned and to the individual.

8. The provisions of this article shall come into force whenfive States Parties to this Convention have made declara-tions under paragraph 1 of this article. Such declarationsshall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copiesthereof to the other States Parties. A declaration may bewithdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consid-eration of any matter which is the subject of a communica-tion already transmitted under this article; no further com-munication by or on behalf of an individual shall bereceived under this article after the notification of with-drawal of the declaration has been received by the


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Secretary General, unless the State Party has made a newdeclaration.

Article 23

The members of the Committee and of the ad hoc concilia-tion commissions which may be appointed under article 21,paragraph I (e), shall be entitled to the facilities, privilegesand immunities of experts on mission for the UnitedNations as laid down in the relevant sections of theConvention on the Privileges and Immunities of the UnitedNations.

Article 24

The Committee shall submit an annual report on its activi-ties under this Convention to the States Parties and to theGeneral Assembly of the United Nations.

PPAARRTT IIIIII

Article 25

1. This Convention is open for signature by all States. 2. ThisConvention is subject to ratification. Instruments of ratifica-tion shall be deposited with the Secretary-General of theUnited Nations.


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Article 26

This Convention is open to accession by all States. Accessionshall be effected by the deposit of an instrument of acces-sion with the SecretaryGeneral of the United Nations.

Article 27

1. This Convention shall enter into force on the thirtieth dayafter the date of the deposit with the Secretary-General ofthe United Nations of the twentieth instrument of ratifica-tion or accession.

2. For each State ratifying this Convention or acceding to itafter the deposit of the twentieth instrument of ratificationor accession, the Convention shall enter into force on thethirtieth day after the date of the deposit of its own instru-ment of ratification or accession.

Article 28

1. Each State may, at the time of signature or ratification ofthis Convention or accession thereto, declare that it doesnot recognize the competence of the Committee providedfor in article 20.

2. Any State Party having made a reservation in accordancewith paragraph I of this article may, at any time, withdrawthis reservation by notification to the Secretary-General ofthe United Nations.


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Article 29

1 . Any State Party to this Convention may propose anamendment and file it with the Secretary-General of theUnited Nations. The Secretary General shall thereuponcommunicate the proposed amendment to the StatesParties with a request that they notify him whether theyfavour a conference of States Parties for the purpose of con-sidering and voting upon the proposal. In the event thatwithin four months from the date of such communication atleast one third of the States Parties favours such a confer-ence, the Secretary General shall convene the conferenceunder the auspices of the United Nations. Any amendmentadopted by a majority of the States Parties present and vot-ing at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.

2. An amendment adopted in accordance with paragraph Iof this article shall enter into force when two thirds of theStates Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it inaccordance with their respective constitutional processes.

3. When amendments enter into force, they shall be bind-ing on those States Parties which have accepted them, otherStates Parties still being bound by the provisions of thisConvention and any earlier amendments which they haveaccepted.


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Article 30

1. Any dispute between two or more States Parties concern-ing the interpretation or application of this Conventionwhich cannot be settled through negotiation shall, at therequest of one of them, be submitted to arbitration. If with-in six months from thc date of the request for arbitration theParties are unable to agree on the organization of the arbi-tration, any one of those Parties may refer the dispute to theInternational Court of Justice by request in conformity withthe Statute of the Court.

2. Each State may, at the time of signature or ratification ofthis Convention or accession thereto, declare that it doesnot consider itself bound by paragraph I of this article. Theother States Parties shall not be bound by paragraph I ofthis article with respect to any State Party having made sucha reservation.

3. Any State Party having made a reservation in accordancewith paragraph 2 of this article may at any time withdrawthis reservation by notification to the Secretary-General ofthe United Nations.

Article 31

1. A State Party may denounce this Convention by writtennotification to the Secretary-General of the United Nations.Denunciation becomes effective one year after the date ofreceipt of the notification by the Secretary-General .


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2. Such a denunciation shall not have the effect of releasingthe State Party from its obligations under this Convention inregard to any act or omission which occurs prior to the dateat which the denunciation becomes effective, nor shalldenunciation prejudice in any way the continued consider-ation of any matter which is already under consideration bythe Committee prior to the date at which the denunciationbecomes effective.

3. Following the date at which the denunciation of a StateParty becomes effective, the Committee shall not com-mence consideration of any new matter regarding thatState.

Article 32

The Secretary-General of the United Nations shall inform allStates Members of the United Nations and all States whichhave signed this Convention or acceded to it of the follow-ing:(a) Signatures, ratifications and accessions under articles

25 and 26;(b) The date of entry into force of this Convention under

article 27 and the date of the entry into force of anyamendments under article 29;

(c) Denunciations under article 31.


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Article 33

1. This Convention, of which the Arabic, Chinese, English,French, Russian and Spanish texts are equally authentic,shall be deposited with the Secretary-General of the UnitedNations.

2. The Secretary-General of the United Nations shall trans-mit certified copies of this Convention to all States.


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EEnngglliisshh TTrraannssllaattiioonn::Dragan Novaković

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Nasl. str. prištampanog engl. prevoda :Radivoje Ristic v. Yugoslavia. - Upor. tekstna srp. i engl. jeziku. - Oba rada štampana u međusobno obrnutim smerovima. - Tiraž 500

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Radivoje Ristic v. Yugoslavia · Contents Introduction 007 Views of the Committee Against Torture...

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