Preliminary observations and recommendations of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr. Nils Melzer* on the official visit to Serbia and Kosovo, 1 – 13 to 24 November 2017

Geneva, 27 November 2017

I. Introduction

From 13 – 24 November 2017, I visited Serbia and Kosovo to assess the prevailing situation, developments and challenges concerning torture and other cruel, inhuman or degrading treatment or punishment.

At the outset, I would like to express my sincere appreciation to the authorities in Belgrade and Pristina for the excellent cooperation my team and I enjoyed throughout the mission. I would also like to thank the Office of the United Nations Resident Coordinator in Serbia and the United Nations Mission in Kosovo for supporting my team before and during the visit. The discussions I had with officials in Belgrade and Pristina were open and constructive.

In Belgrade, I had open and constructive discussions with the Ministers of Justice and of Labour, Employment, Veteran and Social Affairs, with the Assistant Ministers of Foreign Affairs and of Health, with the Director of Police within the Ministry of Interior, the Director of the Office for Human and Minority rights, the Deputy Director of the Office for Kosovo and Metohija, the Commissioner for Refugees and Migrants, the Presidents of the Constitutional Court and the Court of Cassation, as well as with the Deputy Ombudsman and the Head of the National Preventive Mechanism. I also had the opportunity to meet with civil society representatives, including human rights organisations, lawyers and medical doctors.

In Pristina, I had open and constructive discussions with the Special Representative of the Secretary General and with representatives of the justice and human rights sections of UNMIK, as well as with the Prime Minister and his office of Good Governance, with the Kosovo Correction Service and the Inspectorate of the Ministry of Justice, with the Kosovo Police, and the Inspectorate of the Ministry of Internal Affairs, the Head of the Prison Health Department at the Ministry of Health, the Head of the Forensic Psychiatric Institute, and with the Ombudsperson and the Director of the National Preventive Mechanism Unit. I also had the opportunity to meet with representatives of the Council of Europe and of civil society organizations active in Kosovo.

Throughout my visit to Serbia and Kosovo, my team and I enjoyed unrestricted access to all relevant places and institutions, including all places where people are deprived of their liberty.

II. Preliminary findings

The observations I am presenting today are preliminary and non-exhaustive. Based on the information collected during my mission, I will draft a more comprehensive and updated report that will be presented to the United Nations Human Rights Council in March 2019.

A. Serbia

While in Belgrade, from 13 to 20 November 2017, my team and I visited the holding premises of the border police in Belgrade International Airport, including in the transit zone, the police stations in New Belgrade, in the urban municipality of Zemun, and in the city centers of Belgrade (Bulevar 29. Novembar) and of Niš, the transit centres for migrants and refugees in Obrenovac, Adaševci and Preševo, the correctional institutions (KPZ) of Sremska Mitrovica and Niš, Belgrade Central Prison, the special Prison Hospital in Belgrade, the centre for children and youths with development disabilities in Veternik and the social care home in Oton, Stara Moravica. Throughout my visit, we were able to meet with representatives of the respective institutions, including management, security and medical staff, and to interview inmates and residents of our choosing in private, in full compliance with the terms of reference of my mandate.

1. Legal and institutional framework

During our meetings with the authorities, all officials emphasized their commitment to the absolute and non-derogable prohibition of torture and other cruel, inhuman and degrading treatment or punishment.

a) Legal framework: In terms of the legislative framework, the Serbian Constitution, Criminal Code (2005) and Criminal Procedure Code (2013) provide legal standards for the prevention, investigation and punishment of torture and other cruel, inhuman or degrading treatment or punishment and for the exclusion of evidence extracted under torture. However, I note with concern:

• that Articles 136 and 137 of the Criminal Code do not expressly criminalize acts of torture and other cruel, inhuman or degrading treatment or punishment perpetrated at the instigation, or with the consent or acquiescence of a public official or other person acting in an official capacity;
• that the possible maximum penalties for acts of torture and other cruel, inhuman and degrading treatment or punishment are not commensurate with the potential gravity of such offences;
• that criminal accountability for acts of torture and other cruel, inhuman and degrading treatment or punishment remains temporally restricted by the statute of limitations.

Recommendation: I therefore strongly recommend that steps be taken with a view to: (a) amending the Criminal Code so as to criminalize the full spectrum of acts covered by Articles 1 and 16 of the UNCAT, (b) significantly increasing the maximum penalties for such offences, and (c) removing all statutes of limitations for such offences.

b) Fundamental safeguards: Formally, the fundamental safeguards against torture and other ill-treatment, namely the right to notify relatives of an arrest, and the rights of access to a lawyer and to a medical doctor are granted.

However, I have received several allegations from individuals claiming to have been tried and sentenced without any assistance from a lawyer despite their request for ex-officio counsel, and from several other individuals claiming that the expertise and efforts of their ex-officio counsel were clearly insufficient to ensure effective legal representation. I also received several allegations that, after sentencing, convicts were presented with invoices from the authorities not only for the Court fees, but also for the services of ex-officio defense counsels.

Although medical examinations are routinely carried out upon transfer to remand custody, the forensic expert accompanying my mission observed that the medical doctors performing these examinations generally have not received any specialized training and, therefore, lack the expertise required for the investigation, interpretation and documentation of physical and psychological signs of torture and other ill-treatment. As a consequence, routine medical examinations do not meet the requirements of adequate and reliable forensic examination and the resulting medical reports fall short of internationally recognised standards as reflected in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”).

Recommendations: I strongly recommend that steps be taken with a view to: (a) ensuring the right of access to a lawyer to any person before being first questioned by the police; (b) introducing an institutionally independent roster-system for the selection and appointment of certified ex-officio counsels in order to ensure minimum standards of expertise, experience, and conduct for criminal defence lawyers; (c) implementing systematic training programs on the Istanbul Protocol for all health professionals who may be called to examine persons deprived of their liberty, as well as for all lawyers, prosecutors and judges who may be involved in relevant judicial cases, so as to strengthen their understanding of the potential and limitations of the medical examination in the identification and documentation of torture and other forms of ill-treatment.

c) Complaints mechanisms and accountability: I commend the existence of complaints mechanisms, which allow individuals to directly file complaints regarding alleged human rights violations, including torture and other forms of ill-treatment, to the administrative or judicial authorities responsible for their detention and, as a subsidiary remedy, to the Constitutional Court. In particular, the Law on the Execution of Penal Sanctions provides for internal control by the respective departments of the Ministry of Justice. Similarly, the 2005 Police Act established the Internal Control Sector within the Ministry of Interior, with operative units in all municipalities.

While I strongly welcome these mechanisms and their formal independence from the respective service they are tasked to oversee, each of them still depends on the same Ministry as the service in question, which raises serious concern as to their ability to ensure truly independent, reliable and impartial oversight and investigation of alleged malpractice on the part of the police and the correctional authorities. Relevant information made available to me also suggests that, in practice, the number of complaints received and processed about alleged acts of torture and other ill-treatment remains low and the conviction of officials for such acts exceptional.

At the same time I very much welcome the establishment of the office of the Ombudsperson and, in particular, would like to commend the function and work of the Deputy Ombudsperson as the National Preventive Mechanism against torture and other cruel, inhuman or degrading treatment or punishment foreseen in OPCAT.

Recommendation: In order to reliably prevent impunity for acts torture and other cruel, inhuman or degrading treatment or punishment, I strongly recommend: (a) that all relevant investigations be undertaken by bodies enjoying full independence from the executive branch and reporting to the legislative or judicative branches; (b) the National Preventive Mechanism be further strengthened, particularly in terms of independent and adequate funding and staffing. At the same time, I strongly encourage the Deputy Ombudsperson to continue to assume his crucial role as National Preventive Mechanism against torture and other cruel, inhuman and degrading treatment or punishment.

d) Role of the prosecution and judiciary: During my visit, I received numerous and consistent complaints from detainees about the perceived excessiveness of their pre-trial detention and the prolonged absence of any meaningful investigative or judicial action taken on the part of the prosecuting or adjudicating authorities for periods ranging from several months to several years, even in cases where the detainee claimed to have confessed and shown full cooperation. I also received numerous complaints from convicts about not having been considered for conditional release despite having served two thirds of their sentence with good conduct. While the short duration of my visit did not allow me to collect more comprehensive data in this respect, and to examine the accuracy of individual allegations, their consistency among each other and with reports from civil society nevertheless suggests, at a minimum, a certain pattern of inefficiency in prosecutorial and judicial practice in Serbia which, in cases exceeding the margins of reasonableness, may well result in arbitrary detention and may even amount to cruel, inhuman and degrading treatment.

Recommendation: While fully recognizing that deprivation of liberty in accordance with international standards remains a necessary and legitimate investigative measure and sanction in any system governed by the rule of law, I urge the prosecuting and judicial authorities of Serbia to take all necessary and appropriate measures to reform their practice with a view to reducing and avoiding unnecessary, excessive or otherwise arbitrary deprivation of liberty.

2. Material conditions of detention

a) In general: In the past, Serbia has repeatedly been criticized by international mechanisms for poor conditions of detention and overcrowding. During my visit, it became clearly visible that, in the course of the past few years, significant and meaningful steps have been taken to renovate and increase the capacity of existing detention infrastructure and to build new detention facilities. During my visit, I was able to verify that large parts of the correctional centres in Sremska Mitrovica and Nis and of the Belgrade Central Prison have been completely renovated and now fully meet international standards, and that further large scale renovations and construction works were visibly in process. The sanitary and hygienic conditions observed in the visited facilities were satisfactory, except for the shortcomings outlined below.

b) Overcrowding: I very much welcome the measures taken by the authorities to reduce the overcrowding by promoting alternative, non-custodial measures and to facilitate conditional release in line with the Strategy for the Development of the Penal Sanctions Enforcement System in the Republic of Serbia until 2020 and the Action Plan for its implementation. These tools being in place, I now urgently call on the judicial institutions of Serbia to significantly increase the use of such measures in order to alleviate the broad spectrum of negative consequences of overcrowding and unnecessary incarceration. Overcrowding remains a major problem in KPZ Sremska Mitrovica, with an occupancy rate of up to 150% of the official capacity, most notably in the “reception section” where convicts are initially accommodated before being assigned to a cell, and where inmates suffer from unacceptable conditions including overpopulation, problems of lice and bedbugs, dust and respiratory problems. Urgent renovation or replacement is also needed regarding pavilion 4 of the same institution, and the “reception section” of the KPZ Nis, both of which are seriously outdated and clearly fall short of international standards. While the management of KPZ Nis assured that, by the end of 2017, their reception section will be moved to a newly built, expanded pavilion that was found to meet highest international standards during my visit, I was informed by the management of KPZ Sremska Mitrovica that the renovation or replacement of their pavilion 4 is expected within the coming 12 months.

c) Access to health care: Although access to basic health care and dental and psychiatric support is guaranteed in principle, there is still a large margin for improvement, and further efforts are required. In particular, the large facilities we visited have an insufficient number, or presence time, of health professionals compared to the number of detainees they are required to care for, and there do not seem to be special programmes for detainees affected with long-term illnesses, including cancer and HIV.

d) Police holding cells: While the holding cells in the visited police stations generally offered acceptable material conditions for short-term detention up to 48 hours, the two cells in the basement of New Belgrade police station were found to be in very poor condition, without adequate access to natural light and ventilation, and in deplorable sanitary and hygienic conditions. It is my considered opinion that the detention of human beings in these holding cells could amount to cruel, inhuman or degrading treatment or punishment and should be immediately discontinued.

Recommendation: While the material conditions of detention still are not satisfactory in all of the visited institutions, I would like to expressly commend the authorities for their genuine, sustained and successful efforts towards significantly improving the conditions of detention throughout Serbia and urge them to persist with the same determination in the future. At the same time, I urgently call on Serbian judicial institutions to significantly increase their use of measures alternative to detention in line with applicable law.

3. Torture and other forms of ill-treatment

I am pleased to report that, as far as penitentiaries and remand prisons under the authority of the Ministry of Justice are concerned, apart from a few isolated allegations of excessive use of force in disciplinary situations, I did not receive any complaints of ill-treatment.

I note with grave concern, however, that my team and I have received numerous and consistent allegations of ill-treatment at the hands of the police, most notably as a means of coercing confessions during interrogation in police custody. Detainees reported to have been slapped and beaten with fists and truncheons, kicked and threatened with firearms. While time constraints did not allow for a systematic and comprehensive collection of relevant data, the alleged ill-treatment seemed to be particularly targeted at persons suspected of offences related to narcotics, and of affiliation with terrorist organizations and other organized crime.

I received several allegations of detainees claiming to have been forced to sign confessions they had been unable to read beforehand, sometimes not only for the crime they had been arrested for, but for several additional offences that had remained unresolved, but to which they reportedly had no connection whatsoever.

Based on these confessions, they alleged to have been offered plea bargains which would allow them to avoid or shorten their deprivation of liberty through the confirmation of their confession and payment of a monetary fine. According to allegations received, when detainees reported such ill-treatment and the resulting injuries to the judge or prosecutor, the police would generally argue to have acted in self-defence and be given the benefit of the doubt without any forensic medical examination, thus leaving victims of abuse without effective remedy. Based on interviews conducted with health professionals at penitentiaries and remand prisons, and based on his own analysis of individual medical records, the forensic expert accompanying my mission was able to confirm trauma injuries consistent with these allegations that are unlikely to have occurred in situations of self-defence.

Having collected and evaluated these allegations to the best of my ability and judgement, I conclude that there are credible indications of frequent, but not systematic or widespread, ill-treatment occurring in police custody in Serbia, in conjunction with the absence of effective independent oversight, and with insufficient expertise on the part of the examining medical personnel in the investigation, documentation and interpretation of physical and psychological signs of torture and other ill-treatment.

Recommendation: In order to correct this alarming situation and prevent impunity for any and all forms of ill-treatment on the part of the police, I urge the Serbian authorities to ensure fully independent, expedient and effective complaints-, oversight- and investigative mechanisms, and to ensure systematic medical examinations by independent medical personnel trained in the effective investigation, interpretation and documentation of the signs of physical and psychological ill-treatment.

4. Institutions for persons with psycho-social disabilities

My team and I visited two social care institutions for persons with psycho-social disabilities, the Oton center (Stara Moravica) and the Veternik center. In both institutions, the material conditions of accommodation and care seemed to be modest but generally acceptable. However, both institutions suffered from serious understaffing, thus not allowing for the continued, individual attention that would be required for the development of residents’ personal capacities. Nevertheless, I am pleased to report that, despite an obvious shortage of human resources, the staff of the visited institutions showed an impressive level of commitment and care. Their relationship with residents appeared to be genuinely warm, relaxed and natural and all residents were found in hygienically satisfactory condition.

I note with serious concern, however, that the decision of the responsible authorities to institutionalize persons with psycho-social disabilities appears to be taken exclusively based on a medical report by the treating psychiatrist, and generally without any individual encounter with the concerned person. Reportedly, many of the Centres for Social Work, which have placed individuals in social care institutions, fail to regularly visit the concerned residents in order to review or reconsider the continued necessity of their institutionalization. As most residents are completely stripped of their legal capacity, their subsequent institutionalization with the agreement of their legal guardian is automatically considered to be "voluntary", and there seems to be no effective legal remedy against such a decision. As a result, residents generally remain institutionalized for the rest of their life without any serious review, in clear contradiction to international standards on the rights of persons affected by disabilities. Furthermore, based on information received from management and staff of the visited centres, I am deeply worried that many of their current residents would not need to be institutionalized if alternative, community-based structures and services were developed.

Finally, I expressly welcome the fact that, in the visited institutions, the social and sexual rights of residents with psycho-social disabilities are being respected. I am concerned, however, that the prescription of contraceptives to all female residents appears to be generalized and automatic.  While I appreciate that this may be an appropriate measure for the prevention of unwanted pregnancies, such measure should always be based on an individual assessment involving, to the maximum extent possible, the concerned resident herself.

Recommendation: I strongly recommend that steps be taken with a view to: (a) establishing effective, independent, and multidisciplinary mechanisms for the supervision and regular review of any decision to institutionalize persons affected by psycho-social disabilities; (b) facilitating de-institutionalization, particularly by introducing in the social welfare law a clear categorization of various forms of assisted living that may be available to persons in need.

5. The situation of refugees and migrants

a) Border decisions:During my visit to the Belgrade International Airport, I received full and unrestricted access to a room located in the transit zone of the airport, where persons who have been refused immigration by the Serbian Border Police are held pending their return to their airport of departure, generally within 24 hours of arrival. The material conditions in this room clearly are not adequate for the purposes of detention, the main shortcomings being the absence of beds and heating, deplorable hygienic and sanitary conditions and constant artificial lighting. During my visit, I further observed that the tap water was not running, that the premises visibly had not been cleaned for an extended period of time, and that the all seven persons who were held there were obliged to spend the night sitting in armchairs.

During my visit, I noted that the considerations based on which the Border Police had decided to refuse a person's entry and to return them to the airport of departure were not documented with sufficient precision in individual case files, and that the deportation decision did not appear to be subject to a legal remedy involving an evaluation of the risk of refoulement to a situation where the person in question might be subjected to torture or other cruel, inhuman or degrading treatment or punishment. All seven persons held at in the transit zone at the time of my visit, two Turkish, two Iranian and three Indian nationals, claimed that their rights had not been explained to them.

While fully recognizing the sovereign right of Serbia to control immigration, I am seriously concerned that refusals of entry and, more importantly, deportation decisions based on the personal perception of individual border guards, if not properly documented and subjected to independent judicial review, bears a great risk of arbitrariness and, in certain cases, may well result in refoulement to situations or places where persons may be exposed to the risk of torture or other ill-treatment.

Recommendation: I strongly recommend that steps be taken with a view to ensuring: (a) adequate material conditions in any holding area where persons may be held pending their deportation or return to their airport of departure; (b) that refusals of entry and, more importantly, deportation decisions are carefully documented and subjected to independent judicial review; (c) that any person affected by such measure be informed of their rights, including the right to legal remedy and legal counsel, in a language they understand.

b) Conditions in reception camps: Serbia has undertaken significant and meaningful efforts in dealing with the challenges arising from the influx of migrants travelling along the so called “Balkan route”. I expressly commend the great investments made by the authorities, with the support of the international community, in terms of developing infrastructure and humanitarian assistance capacities significantly exceeding the current number of approximately 5'500 migrants and asylum seekers accommodated in official reception and transit centres. I also commend the authorities for respecting migrants' right to liberty and freedom of movement throughout Serbia. My team and I have visited the temporary reception centres of Adaševci, Obrenovac, and Preševo which are managed by the Commissariat for Refugees and Migrants, and where basic humanitarian and medical support is provided. Material conditions and medical care within these centres are basic but generally acceptable.

Most of the migrants accommodated in these centres do not request asylum in Serbia but are waiting for possibilities of onward travel to EU-States. According to information received from individual migrants and civil society organizations these States give entry priority to families with children, whereas single men reportedly have almost no prospect of crossing the border through regular channels. In order to avoid prolonged waiting periods, and to avoid being transferred to reception centres further away from the border, an unknown number of single men chooses to live outside official centres, in forests and other sites in open nature close to the international borders (the so-called “jungle”), from where they repeatedly attempt to cross into Croatia or Hungary, often with the help of smugglers and at the cost of their safety. While generally the capacity of these centres significantly exceeded the number of accommodated migrants, temporary situations of slight overcrowding giving rise to potential risks of tension and abuse among the migrants have been observed in smaller units where several families are accommodated together in the same spaces.

During our visits, I did not receive any serious allegations about ill-treatment or other abusive behaviour on the part of Commissariat staff or other persons within Serbia. Nevertheless, I am concerned that the procedure for individual complaints, which remains within the hierarchical structure of the Commissariat, does not provide for sufficient independence to ensure a reliable and impartial investigation.

Recommendation: I therefore recommend that steps be taken with a view to: (a) strengthening the independence of the Commissariat complaints and oversight mechanism; (b) ensuring that all service providers coming in direct contact with migrants receive training, commensurate with their function, on relevant international human rights standards, including the principle of non-refoulement and the Istanbul Protocol for the investigation and documentation of the signs of torture and other ill-treatment.

Lastly, I note with grave concern that I have received numerous and consistent allegations by single male migrants of having suffered ill-treatment at the hands of the border police of Croatia, Hungary and Bulgaria when attempting to cross the border from Serbia into these states. The migrants concerned reported to have been beaten with fists and truncheons, kicked or even hunted and injured by dogs. Based on interviews conducted with health professionals at migrant reception centres, and on his own analysis of individual medical records, the forensic expert accompanying my mission was also able to confirm physical traumatic injuries consistent with the allegations received.

Recommendation: While Serbia is not alleged to be responsible for any ill-treatment of migrants, I strongly encourage its authorities to further strengthen their ongoing efforts of providing adequate medical and psychological support and rehabilitation to all victims of torture and other ill-treatment present on Serbian territory and, in any event, to abstain from any push-back of migrants into territories where they may be exposed to the risk of torture or other ill-treatment.  

B. Kosovo

While in Pristina, from 21 to 23 November 2017, my team and I visited the holding premises of the police station in Pristina, the High Security Prison in Podujevo, the correctional institution of Dubrava, and the examination and treatment wards of the Psychiatric Institute of the Pristina University Hospital. Throughout our visit, we were able to meet with representatives of the respective institutions, including management, security and medical staff, and to interview inmates of our choosing in private, in full compliance with the terms of reference of my mandate.

1. Legal and institutional framework

During our meetings with the authorities, all officials emphasized their commitment to the absolute and non-derogable prohibition of torture and other cruel, inhuman and degrading treatment or punishment.

a) Legal framework: In terms of the legislative framework, the Constitution of Kosovo (2008) provides that no one shall be subject to torture, cruel, inhuman or degrading treatment or punishment (Art. 27), and expressly guarantee all of the human rights and fundamental freedoms guaranteed in several international human rights instruments including, among others, the Universal Declaration of Human Right, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, the International Covenant on Civil and Political Rights and its Protocols, and the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (Art. 22). Article 199 of Kosovo’s Criminal Code criminalizes torture in full compliance with international human rights standards, and Article 10 of the Code of Criminal Procedure prohibits and criminalises forced confessions. However, I note with concern:

• that cruel, inhuman or degrading treatment or punishment other than torture is not expressly criminalized in the same comprehensive terms as torture;
• that the admissibility of evidence obtained through torture or other cruel, inhuman or degrading treatment or punishment does not appear to be expressly excluded.

Recommendation: I therefore strongly recommend that steps be taken with a view to: (a) criminalizing other cruel, inhuman or degrading treatment or punishment in the same comprehensive terms as torture, (b) expressly excluding the admissibility of evidence obtained through torture or other cruel, inhuman or degrading treatment or punishment.

b) Fundamental safeguards: Formally, the fundamental safeguards against torture and other ill-treatment, namely the right to notify relatives of an arrest, and the rights of access to a lawyer and to a medical doctor are granted.

However, I received several allegations from individuals claiming to have been allowed to meet with their lawyer for the first time only after having been questioned by the police, and from several other individuals claiming that the efforts of their ex-officio counsel were clearly insufficient to ensure effective legal representation.

I also received several allegations from individuals claiming that they had no access to a medical doctor while in police custody. Although medical examinations are routinely carried out upon transfer to remand custody, and although sophisticated standard forms are systematically used for this purpose, the forensic expert accompanying my mission observed that the medical doctors performing these examinations generally have not received any specialized training and, therefore, lack the expertise required for the investigation, interpretation and documentation of physical and psychological signs of torture and other ill-treatment. As a consequence, routine medical examinations do not meet the requirements of adequate and reliable forensic examination and the resulting medical reports fall short of internationally recognised standards as reflected in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Istanbul Protocol”).

Recommendations: I strongly recommend that steps be taken with a view to: (a) ensuring the right of access to a lawyer to any person before being first questioned by the police; (b) introducing an institutionally independent roster-system for the selection and appointment of certified ex-officio counsels in order to ensure minimum standards of expertise, experience, and conduct for criminal defence lawyers; (c) ensuring the right of access to a medical doctor to all persons from the moment of arrest; (d) implementing systematic training programs on the Istanbul Protocol for all health professionals who may be called to examine persons deprived of their liberty, as well as for all lawyers, prosecutors and judges who may be involved in relevant judicial cases, so as to strengthen their understanding of the potential and limitations of the medical examination in the identification and documentation of torture and other forms of ill-treatment.

c) Complaints mechanisms and accountability: I commend the creation of the Inspectorates of the Ministry of Justice and of the Police, which are executive institutions tasked to oversee the practice of the Kosovo Correction Service, and the Kosovo Police, including investigations into allegations of torture and other ill-treatment. While I strongly welcome these mechanisms and their formal independence from the respective service they are tasked to oversee, each of them still depends on the same Ministry as the service in question, which raises serious concern as to their ability to ensure truly independent, reliable and impartial oversight and investigation of alleged malpractice on the part of the police and the correctional authorities. Relevant information made available to me also suggests that, in practice, the number of complaints received and processed about alleged acts of torture and other ill-treatment remains low and the conviction of officials for such acts exceptional.

At the same time. I very much welcome the adoption of the Law on the Ombudsperson in July 2015 and, in particular, would like to commend the function and work of the Ombudsperson as the independent preventive mechanism in Kosovo against torture and other cruel, inhuman or degrading treatment or punishment.

Recommendation: In order to reliably prevent impunity for acts torture and other cruel, inhuman or degrading treatment or punishment, I strongly recommend: (a) that all relevant investigations be undertaken by bodies enjoying full independence from the executive branch and reporting to the legislative or judicative branches; (b) the NPM be further strengthened, particularly in terms of independent and adequate funding and staffing. At the same time, I strongly encourage the Ombudsperson to continue to assume his crucial role as independent preventive mechanism in Kosovo against torture and other cruel, inhuman and degrading treatment or punishment.

d) Role of the prosecution and judiciary: During my visit, I received numerous and consistent complaints from detainees about the perceived excessiveness of their pre-trial detention and the prolonged absence of any meaningful investigative or judicial action taken on the part of the prosecuting or adjudicating authorities of both Kosovo and EULEX², for periods ranging from several months to several years, even in cases where the detainee claimed to have confessed and shown full cooperation. I also received numerous complaints from convicts about not having been considered for conditional release despite having served two thirds of their sentence with good conduct. I also received several allegations of the perceived politicization of criminal trials, including those conducted under the auspices of by EULEX. While the short duration of my visit did not allow me to collect more comprehensive data in this respect, and to examine the accuracy of individual allegations, their consistency among each other and with reports from civil society suggests, at a minimum, a certain pattern of inefficiency in prosecutorial and judicial practice in Kosovo (including on the part of EULEX) which, in cases exceeding the margins of reasonableness, may well result in arbitrary detention and may even amount to cruel, inhuman and degrading treatment.

Recommendation: While fully recognizing that deprivation of liberty in accordance with international standards remains a necessary and legitimate investigative measure and sanction in any system governed by the rule of law, I urge the prosecuting and judicial authorities of both Kosovo and EULEX to take all necessary and appropriate measures to reform their practice with a view to reducing and avoiding unnecessary, excessive or otherwise arbitrary deprivation of liberty.

2. Material conditions of detention

a) The High Security Prison: The material conditions of detention at the newly built High Security Prison in Podujevo meet the highest international standards and are fully satisfactory. All inmates are held in single bed cells with shared access to common areas during daytime from 8:00 to 18:00 hrs.

b) Pristina Police Station: The four holding cells visited in the Pristina police station were found to offer acceptable material conditions for short-term detention up to 48 hours.

c) Dubrava: The correctional centre in Dubrava dates from the 1980’ and has been partly rebuilt after the damage caused by NATO airstrikes in 1999. Some pavilions have recently been renovated and, according to the management, one additional pavilion is being refurbished every year (currently pavilion 4). The superfluous use of razor wiring within the walled confinements of the prison, particularly in the outdoor spaces around each pavilion, currently does not appear to serve any security purpose and, in my considered view, creates an unnecessarily hostile environment that may negatively impact on the mental well-being of inmates and the overall atmosphere within the centre. While the medical facilities of the centre are in excellent condition and well organised and equipped, prison staff reported a lack of security cameras in some pavilions and a shortage of adequate detectors to prevent contraband.

Generally, the infrastructure and material conditions of detention in the facility are acceptable, and in the semi-open section in pavilion 7 the atmosphere was positive and relaxed. However, in the other visited pavilions (1 and 5) and among all other categories of inmates (pre-trial section, disciplinary section, reception section, standard regime section), there was a clearly perceptible atmosphere of tension and frustration. Although inmates confirmed that they were being well treated by the prison staff, we received a broad range of complaints regarding issues such as the quality of the food, overused mattresses, difficulties in accessing health care, allegations of corruption and nepotism, and the use of transfers between different detention centers as a disciplinary measure or threat. An issue of particular concern, which seems to have significantly contributed to the rising tension and frustration among inmates, were the prohibition on food parcels from families and the significant reduction of “weekend-leaves” from previously 21 to only 7 days per year, both of which reportedly had been introduced in summer 2017 by revisions in the application of the law on execution of criminal sanctions. I note with concern that, during my visit, I encountered several inmates who had recently inflicted injuries on themselves, generally cuts with razor blades, in order to draw attention to their needs, which may be indicative of the general sense of desperation.

Without prejudice to the accuracy of the great variety of individual allegations received, I would like to express my serious concern with regard to the mounting tension and frustration in Dubrava prison. In my view, the resulting working conditions for prison staff and detention conditions for inmates are very difficult and, if not addressed in an adequate and timely manner, may contribute to producing a situation conducive to violence and escalation.

Recommendation: I would like to expressly commend the authorities for the exemplary material conditions provided in the High Security Prison and the genuine and sustained efforts towards significantly improving the conditions of detention in the Dubrava Prison. Given the generalized tension and frustration observed in the latter institution, however, I urge the authorities to consider retracting or significantly re-adjusting recently introduced restrictions concerning the reception of food parcels and other relevant benefits for all categories of inmates. I also encourage the authorities to establish a system of regular and frequent medical visits in all corridors of Dubrava prison and to take other appropriate measures to remedy the situation.

3. Torture and other forms of ill-treatment

I am pleased to report that, as far as penitentiaries and remand prisons under the authority of the Ministry of Justice are concerned, apart from a few isolated allegations of excessive use of force in disciplinary situations, I did not receive any complaints of ill-treatment.

I note with grave concern, however, that my team and I have received numerous and consistent allegations of ill-treatment at the hands of the police, most notably as a means of coercing confessions during interrogation in police custody. Detainees reported to have been threatened, slapped, kicked and beaten with fists and truncheons. While time constraints did not allow for a systematic and comprehensive collection of relevant data, the alleged ill-treatment seemed to be particularly targeted at persons suspected of offences related to narcotics, and of affiliation with terrorist organizations and other organized crime. I also received several allegations of detainees claiming to have been pressured into confessing crimes they had not committed in exchange for shorter prison sentences or conditional release, sometimes by the ex officio lawyers assigned to them.

Having collected and evaluated these allegations to the best of my ability and judgement, I conclude that there are credible indications of frequent, but not systematic or widespread, ill-treatment occurring in police custody in Kosovo, in conjunction with the absence of effective independent oversight, and with insufficient expertise on the part of the examining medical personnel in the investigation, documentation and interpretation of physical and psychological signs of torture and other ill-treatment.

Recommendation: In order to correct this alarming situation and prevent impunity for any and all forms of ill-treatment on the part of the police, I urge the authorities in Kosovo to ensure fully independent, expedient and effective complaints-, oversight- and investigative mechanisms, and to ensure systematic medical examinations by independent medical personnel trained in the effective investigation, interpretation and documentation of the signs of physical and psychological ill-treatment.

4. Institutions for persons with psycho-social disabilities

My delegation carried out a brief visit to the admission ward of the Psychiatric Institute of the Pristina University Hospital, and was able to confirm that material conditions there are generally satisfactory, with adequate staffing and access to medical care.

Recommendation: While not having received any complaints in this respect, I take this opportunity to recall the importance of ensuring the highest legal safeguards and an effective monitoring mechanism concerning any involuntary institutionalization of persons suffering from psycho-social disabilities.

5. Asylum Seekers and Foreigners

Due to time constraints, I have been unable to examine in depth the situation of asylum seekers and migrants in Kosovo or to conduct a visit to an asylum centre or deportation detention facility. Based on reports received from civil society organizations, and after examination of the legal framework on the law on foreigners, I will aim to include in my final report specific recommendations regarding the need for legal safeguards and monitoring of the treatment and conditions of foreigners in these centres.

Notes:

1. Throughout this document, the reference to Kosovo shall be understood in full compliance with United Nations Security Council Resolution 1244 (1999) and without prejudice to the status of Kosovo.

2. European Union Rule of Law Mission in Kosovo.