Belgrade Centre for Human Rights HUMAN RIGHTS IN SERBIA

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1 Belgrade Centre for Human Rights HUMAN RIGHTS IN SERBIA 2013

2

3 Series Reports 21

4 Series Reports HUMAN RIGHTS IN SERBIA 2013 LAW, PRACTICE AND INTERNATIONAL HUMAN RIGHTS STANDARDS Publisher The Belgrade Centre for Human Rights Beogradska Str. 54, Belgrade, Tel/fax. (011) , For the publisher Dr. Vesna Petrović Editor Dr. Vesna Petrović Translation Duška Tomanović Cover photograph Una Vukićević ISBN Prepress and printing Dosije studio, Belgrade

5 HUMAN RIGHTS IN SERBIA 2013 LAW, PRACTICE AND INTERNATIONAL HUMAN RIGHTS STANDARDS Belgrade Centre for Human Rights Belgrade, 2014

6 The translation and printing of this Report was supported by the donations of the Belgrade Centre for Human Rights staff

7 Content CONTENT Abbreviations Preface Research Methodology Introduction SUMMARY AND RECOMMENDATIONS Serbia and Its International Obligations Recommendations Constitutionality, Legality and Effectiveness of Legal Remedies 29 Recommendations Independent Human Rights Protection Authorities Recommendations Right to Life Recommendations Prohibition of Ill-Treatment and Status of Persons Deprived of Liberty Recommendations Prohibition of Slavery and Forced Labour Recommendations Right to Liberty and Security of Person Recommendations Judicial Reform Recommendations Right to Privacy and Confidentiality of Correspondence Recommendations Personal Data Protection and Protection of Privacy Recommendations Freedom of Expression Recommendations Freedom of Association Recommendations

8 Human Rights in Serbia Freedom of Peaceful Assembly Recommendations Status of Asylum Seekers in Serbia Recommendations Right to Work Recommendations Right to Just and Favourable Conditions of Work Recommendations Right to Social Security Recommendations National Minorities and Minority Rights Recommendations Status of Roma Recommendations Status of Persons with Disabilities Recommendations LGBT Population Recommendations Gender Equality and Special Protection of Women Recommendations I GENERAL CONDITIONS FOR THE ENJOYMENT OF HUMAN RIGHTS International Treaties and Serbia Correlation between National and International Law International Human Rights Treaties and Serbia Fulfilment of Obligations Arising from Membership of International Organisations and Accession to International Treaties Serbia before the European Court of Human Rights in Statistics Impact of ECtHR Case Law on the Jurisprudence of Serbia s Courts with General Jurisdiction Noteworthy 2013 ECtHR Judgments against Serbia Constitution of the Republic of Serbia and Provisions on Human Rights, Human Rights Restrictions and Derogations General Restrictions of Human Rights Derogation of Human Rights

9 Content 3. Constitutionality and Legality Constitutional Court of Serbia Composition, Election of Judges and Jurisdiction Reviews of Constitutionality and Legality before the Constitutional Court of Serbia Effectiveness of Legal Remedies for the Protection of Human Rights Provided by the Serbian Legal System General Ordinary and Extraordinary Legal Remedies in Serbia s Legal System Constitutional Appeals and Effectiveness of Constitutional Appeals Prohibition of Discrimination, War Propaganda and Advocacy of National, Racial or Religious Hatred Prohibition of Discrimination Prohibition of Propaganda for War, Advocacy of National, Racial or Religious Hatred and Hate Crime Independent Human Rights Protection Authorities General Working Conditions of Independent Authorities Legislative and Executive Authorities Reactions to Initiatives and Proposals of Independent Authorities II INDIVIDUAL RIGHTS Right to Life General State s Obligation to Refrain from the Deprivation of Life State s Positive Obligation to Take Measures to Protect Life Obligation to Conduct Effective Investigations into Deaths Not Due to Natural Causes or Deaths of Persons Deprived of Liberty Judgment of the Constitutional Court of Serbia in the Case of Jakovljević and Milovanović Prohibition of Ill-Treatment and Status of Persons Deprived of Liberty General

10 Human Rights in Serbia Use of Force by State Agents Judgments Based on Evidence Obtained under Duress Living Conditions in Penitentiaries and Detention Units Prohibition of Slavery and Forced Labour General Trafficking in Human Beings Trafficking in Human Organs Smuggling of People Forced Labour Right to Liberty and Security of Person Prohibition of Arbitrary Arrest and Detention Deprivation of Liberty under the Criminal Procedure Code in Force as of 1 October Excessive Resort to Pre-Trial Detention of Criminal Defendants Strategy for the Development of the Penal Sanctions Enforcement System in the Republic of Serbia until Deprivation of Liberty under the Act on the Protection of People with Mental Disorders Right to a Fair Trial General Judicial System Independence and Impartiality of Courts Election and Appointment of Judges Termination of Judicial Office and Disciplinary Proceedings Guarantees of Judicial Independence (Recusal, Case Assignment, Non-Transferability) Pressures on the Judiciary Incompatibility Judicial Training Fairness Trial within a Reasonable Time E-Justice Public Character of Hearings and Judgments Equality before the Law Guarantees to Defendants in Criminal Cases

11 Content Presumption of Innocence Prompt Notification of Charges, in a Language Understood by the Defendant Prohibition of Trials in Absentia and the Right to Defence Prohibition of Self-Incrimination Status of Witnesses Right to Privacy and Confidentiality of Correspondence General Families and Family Life Abortion Confidentiality of Correspondence Personal Data Protection and Protection of Privacy General Other Provisions Relevant to Personal Data Protection Commissioner for Information of Public Importance and Personal Data Protection Freedom of Thought, Conscience and Religion General Legislative Framework, Status of Religious Communities and Exercise of the Right to Freedom of Thought, Conscience and Religion Religious Communities Freedom of Expression General Media Law Reform Public Information and Media Act Public Service Media and Electronic Media Status of Media and Media Professionals Financial Status of the Media and Media Professionals Trials of and Assaults and Pressures on the Media Conduct by Media and Media Professionals Freedom of Peaceful Assembly General Public Assembly Act

12 Human Rights in Serbia Assembly Venues Assembly Notification Restrictions of the Freedom of Assembly Legal Remedies Responsibilities of the Organisers and Penalties The Role of the Police Constitutional Court Case Law on the Right to Freedom of Assembly Freedom of Association General Associations of Citizens (Non-Government Organisations) Restriction and Prohibition of the Work of Associations Association of Aliens Associations of Civil Servants and Security Forces Status of Civic Associations and Individuals Involved in the Protection of Human Rights Political Life General Electoral Rights Electoral Procedures Party Participation in Executive Government Influence of Parties on Authorities Relations within the Ruling Coalition and the Opposition Elections in Financing of Political Parties Right to Asylum General Access to the Territory of the Republic of Serbia and to the Asylum Procedure First-Instance Procedure Appeals Procedure Application of the Safe Third Country Concept and Violations of the Prohibition of Refoulement Statistics and General Assessment Rights and Obligations of Asylum Seekers, Refugees and People Granted Subsidiary Protection

13 Content Accommodation Integration Unaccompanied Minor Asylum Seekers Right to Work General Employment Rates in Serbia Labour Legislation Right to Assistance in Employment and in the Event of Unemployment Workers Rights Concerning Termination of Employment Oversight of the Respect of the Right to Work and Work-Related Rights Right to Just and Favourable Conditions of Work Fair Wages and Equal Remuneration for Work Right to Rest, Leisure and Limited Working Hours Occupational Safety Freedom to associate in trade unions Right to Strike Right to Social Security General Protection Accorded to Family III STATUS OF MINORITIES National Minorities and Minority Rights General Ethnic Breakdown of the Population of the Republic of Serbia Prohibition of Discrimination against Persons Belonging to National Minorities Equal Participation in Public Affairs and Political Life Right to Preservation of Identity Right to Nurture Culture and Tradition Freedom to Express One s National Affiliation Use of Languages The Right to Full and Impartial Information in National Minority Languages

14 Human Rights in Serbia National Councils of National Minorities Prohibition of Forced Assimilation Protection of the Rights of Persons Belonging to National Minorities before Independent Regulatory Authorities Status of Roma General Discrimination against Roma Education of Roma Children Some Incidents of Ethnically Motivated Violence against and Assaults on Roma Status of Persons with Disabilities General Social Services Health Care Deinstitutionalisation Employment Education Accessibility LGBT Population General Rights of Same-Sex Partners Freedom of Assembly and Freedom of Expression Violence Court Proceedings Discrimination in the Education System Discrimination against Transsexuals Gender Equality and Special Protection of Women General Special Protection of Women and Maternity Institutional Gender Equality Protection Mechanisms Participation of Women in Political and Public Life Appendix I The Most Important Human Rights Treaties Binding on Serbia Appendix II Legislation in Serbia Concerning Human Rights and Mentioned in the Report

15 Abbreviations Report BCHR Annual Reports on Human Rights in Serbia AEAD Act on the Election of Assembly Deputies ANEM Association of Independent Electronic Media APC Asylum Protection Center APV Autonomous Province of Vojvodina BCHR Belgrade Centre for Human Rights BIA Security Intelligence Agency CaT UN Committee against Torture CC Criminal Code CC decision Constitutional Court decision CCA Constitutional Court Act CESCR Committee for Economic, Social and Cultural Rights CoE Council of Europe CPA Civil Procedure Act CPC Criminal Procedure Code CPT CoE Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment DEVD Decision on the Election of AP Vojvodina Assembly Deputies doc. UN UN document DS Democratic Party DSS Democratic Party of Serbia EC European Commission ECHR European Convention on Human Rights ECtHR-ECHR European Court of Human Rights ECmHR European Commission of Human Rights ESC European Social Charter (Revised) EU European Union FNRJ Federal People s Republic of Yugoslavia 13

16 Human Rights in Serbia 2013 FREN Foundation for the Advancement of Economics GSA Gay Straight Alliance Hague Tribunal/ICTY International Criminal Tribunal for the Former Yugoslavia HCA Health Care Act HIA Health Insurance Act HJC High Judicial Council HLC Humanitarian Law Center ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights IJAS/NUNS Independent Journalists Association of Serbia IJAV Independant Journalists Association of Vojvodina ILO International Labor Organization IMF International Monetary Fund January-June 2013 Report Periodic Report on the Right to Asylum in 2013 JAS/UNS Journalists Association of Serbia June-October 2013 Report Periodic Reports on the Right to Asylum in 2013 LA Labour Act LDP Liberal Democratic Party LEA Local Elections Act LGBT Lesbian Gay Bisexual Transgender Media Strategy 2011 Strategy for the Development of the Public Information System in the Republic of Serbia until 2016 MIA Ministry of Internal Affairs NALED National Alliance for Local Economic Development NCPA Non-Contentious Procedure Act NES National Employment Service NGO non-government organisation NPM National Preventive Mechanism NSBNM National Council of the Bosniak National Minority ODIHR Office for Democratic Institutions and Human Rights OSCE Organisation for Security and Cooperation in Europe 14

17 Abbreviations PSEA Penal Sanctions Enforcement Act PUPS Party of United Pensioners of Serbia RATEL Republican Telecommunications Agency RBA Republican Broadcasting Agency RHIF Republican Health Insurance Fund RS Republic of Serbia RTV Radio Television Vojvodina RTS Radio Television of Serbia SAI State Audit Institution SaM Serbia and Montenegro Sl. glasnik Official Gazette (of the SRS and, subsequently, the RS) Sl. list Official Herald (of the SFRY and, subsequently, SAM) SNS Serbian Progressive Party SOC Serbian Orthodox Church SORS Statistical Office of the Republic of Serbia SPC State Prosecutorial Council SPS Socialist Party of Serbia SRJ/FRY Federal Republic of Yugoslavia SRS Socialist Republic of Serbia UN United Nations UNESCO United Nations Educational, Scientific and Cultural Organization UNHCR United Nations High Commissioner for Refugees URS United Regions of Serbia VBA Military Security Agency Venice Commission European Commission for Democracy through Law of the Council of Europe VOA Military Intelligence Agency YUCOM Lawyers Committee for Human Rights 15

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19 Preface The Belgrade Centre for Human Rights associates have been regularly monitoring the legislative activities with the aim of analysing the conformity of the Serbian laws with international standards. In-depth analyses of the laws adopted before 2013 were provided in the prior Reports and are referred to in this Report where appropriate. This Report analyses in greater detail the laws and legal amendments adopted in The authors of the Report also aimed to analyse all the collected information about the events and actions affecting the state of human rights in the country and to highlight the problems and difficulties citizens have been encountering in exercising their human rights. They also drew attention to the state s failure to implement strategies and plans geared at promoting human rights and the implementation of laws, instances of discrimination, the status of specific categories of the population, which are at a disadvantage vis-à-vis the majority, and many other circumstances affecting the full enjoyment of human rights and having simultaneously strong political implications and effects on the state of human rights in the country. The following associates of the Belgrade Centre for Human Rights took part in the preparation of this Report: Milan Antonijević, Nevena Dičić Kostić, Andrea Čolak, Nikola Kovačević, Radoš Keravica, Anđelka Marković, Žarko Marković, Nevena Nikolić, Lena Petrović, Vesna Petrović, Dušan Pokuševski, Dragan Popović, Ivan Protić, Una Protić, Imola Soros, Duška Tomanović, Sonja Tošković and Jovana Zorić. The Report does not offer final assessments; rather, it presents data published by the media and in human rights reports. The masculine pronoun is used in the Report to refer to an antecedent that designates a person of either gender unless the Report specifically refers to a female. Both the authors of the Report and the BCHR advocate gender equality and in principle support gender neutral language. The translation and printing of this Report was supported by the donations of the Belgrade Centre for Human Rights staff given that no-one funded its preparation or costs of translation into English. I take this opportunity to thank them for supporting the efforts of the Belgrade Centre for Human Rights to contribute to the improvement of human rights and human rights reporting. Editor Vesna Petrović 17

20 Research Methodology The methodology applied in the preparation of this Report is based on the analysis of the regulations in effect in the given year. A number of laws affecting the scope in which human rights are exercised had been analysed in detail in the previous BCHR annual reports and the readers are referred to them where necessary. This year s Report analyses the regulations in force in 2013 and some of the relevant draft laws that had not been adopted by the end of the year. The draft laws were analysed to alert the expert public to their shortcomings and with the intention of indirectly influencing their improvement during the adoption procedure in the National Assembly of the Republic of Serbia. BCHR s associates have regularly monitored the reports, press releases and recommendations of the independent human rights authorities the Protector of Citizens, the Commissioner for Information of Public Importance and Personal Data Protection and the Commissioner for the Protection of Equality given that their recommendations aim to improve the legislation and help introduce good practices to ensure the full enjoyment of the constitutionally guaranteed human rights. In order to review the state of human rights in as accurately as possible, BCHR s associates also perused all other available sources indicating the situation in practice and monitored and analysed court case law related to human rights protection. The information in the Report is based on BCHR s research, the information of public importance it obtained upon request from the public authorities, on the reports and press releases of Serbian and international NGOs and all other information that came into the possession of BCHR s associates during the implementation of projects and programmes. The BCHR associates, who prepared the Report, monitored the following print media in 2013: Politika, Danas, Blic, Večernje novosti and Kurir (dailies) and Vreme, Novi magazin and NiN (weeklies). They also followed the reports on the Tanjug, BETA and Fonet wires, the B92 website, press releases and posts on the websites of media associations and the ANEM Legal Monitoring of the Serbian Media Scene bulletins. A total of 8,395 media reports, or 5% more than in 2012 (7,950) were read during the preparation of this Report. Like in 2012, most of them dealt with political rights and democracy (28.63%, vis-à-vis 28.86% in 2012), which can be attributed to local elections, reshuffles in many local governments, talks on Kosovo and Metohija and the continuous and fierce clashes between the ruling and opposition parties. Reports on the right to a fair trial again ranked second (23.05% in 2013 compared to 22.11% in 2012); many of them regarded the government campaign 18

21 Research Methodology against corruption, which was politically tainted on occasion, and the investigations of the controversial privatisations in Serbia. Reports on violence ranked third in 2013, their number increasing by around 55% (from 7.68% in 2012, when they ranked sixth to 11.94% in 2013). Such a surge in reports (from 2.85% in 2011) cannot only be attributed to a rise in violence, but also to the fact the outlets readily report on this topic to attract audiences and readership. Many of these reports violate professional ethical standards. Reports on economic and social rights came next (9.40% in 2013, as opposed to 9.30% in 2012, when they ranked third). The further deterioration of the economic situation was not accompanied by an increase in economic reporting, probably because some economic data have become less accessible and, perhaps, because this subject does not attract new readers and audiences. Reports on freedom of expression ranked fifth (8.95% in 2013, compared to 8.33% in 2012) while the number of reports on confrontation with the past fell by a quarter over 2012 (from 8.42% to 6.45%) and took sixth place. The continuous fall in the share of these reports is due to lesser pressures on Serbia to cooperate with the ICTY, which was practically completed when it transferred the last war crimes fugitive to The Hague, fewer war crime trials in Serbia and the slow process of rehabilitating political convicts. Like in 2012, reports about discrimination ranked seventh (2.96% in 2013, 3.24% in 2012). Next came reports about minority rights (2.50% in 2012 vis-àvis 2.12% in 2013), the status of independent bodies (1.20% in 2013, compared to 2.50% in 2012), freedom of movement and including asylum seekers (1.10% in 2013, 1.20% in 2012), the work of the Constitutional Court (0.87% in 2013, 1.48% in 2012), human trafficking (0.83% in 2013, 0.98% in 2012), judicial reform (0.81% in 2013, 1.54% in 2012), and the status of religious communities (0.71% in 2013, 1.31% in 2012). The percentages of reports dealing with the following issues increased but they still accounted for the fewest rights-related reports: Serbia before international bodies, including about applications submitted to the ECtHR against Serbia (0.44% in 2013, compared to 0.30% in 2012), restitution of property (0.40% in 2012, vis-àvis 0.32% in 2012), on NGOs (0.29% in 2013, 0.17% in 2012) and the criminal law reform (0.28% in 2013, compared to 0.18% in 2012). The human rights situation in Serbia did not change significantly in 2013 although the number of reports perused during the preparation of the Report increased slightly, by 5% over The fact that 50% of the reports regarded human rights areas under strong influence of politics political rights and the right to a fair trial and the way these issues had been dealt with lead to the conclusion that the Serbian media were increasingly acting as the mouthpieces of political groups and economic power centres rather than safeguarding public interests and democratic values. The conclusion about the rapid tabloidisation of the Serbian media is corroborated by 19

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