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28 March 2001
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Human Rights Committee
Seventy-first Session
28 March 2001
1913th Meeting (PM)
The Human Rights Committee met this afternoon to continue its consideration of the initial report of Croatia on compliance with the International Covenant on Civil and Political Rights.
During the meeting, expert members of the Committee praised the detailed nature of Croatia’s report, as well as of the answers given during the morning session. The Constitution was a well drafted document and clearly showed the direction Croatia was taking towards democracy and respect for human rights.
Members sought further clarification on a number of issues, including the status of the Covenant in the domestic legal system, national reconciliation efforts, the return of refugees, criminal offences against the freedom of citizens, the justice system, freedom of religion, and fair and equal treatment of ethnic Serbs.
Responding to the first point, Branko Smerdel, member of the Zagreb Law Faculty and Croatia’s delegation, said that according to the Constitution, the Covenant had stronger legal force than domestic law. He noted that international human rights standards -- including the Covenant and the International Declaration on Human Rights -- had been taken into account during the drafting of the Constitution.
Branko Socanac, of the Croatian Ministry of Foreign Affairs, said there had been a number of activities to promote reconciliation within Croatia recently. Without confidence-building measures, he stressed, it would be very difficult to rebuild the confidence-level of society. A committee, which would shortly convene for the first time, had been set up to deal with the issue. He added that the return of refugees to Croatia was a very important issue, and there had been significant improvements in the situation. The Government had shown its willingness to open the door for all those who wanted to return.
The delegation also provided information on, among other things, derogation from the Covenant during states of emergency, the recourse of citizens who felt they had suffered human rights violations during such times, and the number of officially determined criminal offences against the freedoms and rights of citizens, as well as question regarding detention and legal representation.
The Committee will meet again tomorrow, Thursday, at 10 a.m., to conclude its consideration of Croatia’s report.
Background
The Human Rights Committee met this afternoon to continue its consideration of the initial report of Croatia on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/HRV/99/1). The Committee, 18 expert members serving in their individual capacity, took up the report at its morning meeting.
(For more information and summary of the report see Press Release HR/CT/602 of 28 March, for background on the session see Press Release HR/CT/590 issued 19 March.)
Questions and Comments by Experts
An expert said the delegation’s report had come late, but it was very well researched. However, there were a few things missing from it concerning the reality of the situation after the war. It was a young republic and there had recently been a significant change in Government, she noted. Following a decision in 1992 during the crisis, Croatia had submitted a report on some aspects of the Covenant. Today’s exchange was, therefore, a continuation of that discussion.
She noted that in the replies given during the morning session, nothing had been said about the legal possibility for individuals who felt that they wished to invoke the Covenant’s first Optional Protocol. She asked for further clarification on the hierarchy of laws -– Constitution, domestic legislation and the Covenant -- in the country.
Turning to the issue of freedom of movement in Croatia, she asked what was the influence of the concept of minorities within the concept of nationalities. What was the criteria for recognition of identity papers and citizenship? Who was regarded as a foreigner and who was not?
She asked if it was true that in times of war children as young as 15 could be required to work for the armed forces. What were the regulations governing detention under Croatian legislation? Could a lawyer interview detainees or bring the matter before courts to determine the validity of the detention? Was there any secret detention?
She asked for further elucidation of the Amnesty Law of 1996. She then turned the judicial system in Croatia, asking for information on the appointment of judges and the disciplinary regulations. What was the difference between the old and new prosecutor’s offices? she asked.
Another expert commended the delegation for having supplied the Committee with a comprehensive and detailed report. The Constitution was largely a well drawn-up document and clearly showed the direction Croatia was taking towards democracy and respect for human rights. The Committee, however, was also interested in what was actually happening in practice to protect human rights in Croatia.
He drew the Committee’s attention to the list of criminal offences against the freedom of citizens from 1995 to 1998 in paragraph 29 of the report. There were reports from other sources listing numerous other crimes allegedly committed by persons in authority. Those reports alleged that next to nothing had been done to investigate and prosecute those accused. What was the delegation’s view on the matter?
He noted that very few cases were listed concerning violations of the equality of citizens. He asked for the delegation’s opinion on the question and for statistical information. What sort of abuses were reported, indicted and convicted, and by whom had the abuses had been committed? he asked. What punishment, including terms of imprisonment, had been given in cases of conviction?
Another expert expressed some concerns about the state of exception. The state of emergency was covered in two different parts of the Croatian Constitution. Article 17 of the Constitution made mention of situations where some basic freedoms and rights of citizens could be suspended as a result of war or another emergency by decree of the President. Usually it was up to the Parliament and not the President to decide on such a situation. He asked for further clarification on that point. He also asked what recourse a citizen had as a result of curtailed freedoms. Was there any right to damages?
He was also concerned about measures the State could take in the case of infringements committed by police or armed forces. In the case of infringements by the police, he asked what behaviour was subject to penalty and what sanctions would be imposed if found guilty. What special legal basis was there in the case of abuses by the armed forces? he asked.
An expert mentioned the destruction of a large number of houses of returnees in 1995 and evictions of people in 1995 and 1996. Those people were Serbs, she said. She asked what had happened subsequently, as she had information that those acts had gone unpunished. According to information she had, that had also happened in some cases of murder and torture. She also asked for clarification on matters of detention. The detention on authority of the police was not in conformity with the Covenant, she said.
She asked for clarification about suspension of cases brought against the police and armed forces, and what reasons there were for delays in handling those cases, as the statute of limitations had been invoked. She also asked for clarification about the fact that minors of 14 years of age could be condemned and detained in prison for up to 10 years.
An expert said he was grateful for the detailed written report and the oral response to the Committee’s questions. Croatia, he noted, was one of the very few countries that had succeeded -– rather than acceded -- to the Covenant following the collapse of the previous regime, which had prevented the formation of a legal vacuum.
He too asked about the status of the Covenant in the domestic legal system. In the jurisprudence of the Constitutional Court there was only indirect reference to the Covenant. What were the implications of that? He also asked for further clarification on Croatia’s derogation from the Covenant.
He then turned to the issue of equality of persons before the law. What was the composition of the country’s bar and the nature of its independence from the Government? he asked.
A great amount of work had gone into the report, an expert said. Information before the Committee indicated that there had been a great improvement in the human rights situation in Croatia in the past two years. He wished, therefore, to focus on the present and future situation. He also, however, recognized the need to prosecute war crimes and the importance of Croatia’s cooperation with the International Criminal Tribunal for the Former Yugoslavia.
Since Croatia’s independence, what was the citizenship of persons born in the territory of Croatia while it was part of the former Yugoslavia, especially Serbs? he asked. Did State succession have any impact on the issue of citizenship?
He noted that the Constitution stated that members of all nations and minorities would have equal rights in Croatia. What exactly was the definition of “nations” in that context? He was still concerned about the difficulties placed in the way of people who had fled during the war and now wished to return, especially those of Serb background. Were there plans to establish a programme of national reconciliation of all ethnic and religious groups in the country? he asked. In that context, he said he had been struck by an anecdote in the materials before the Committee of a librarian in Croatia who had burned all the books in her library written by Serb authors or in Cyrillic.
Another expert said he was aware that the new Government coalition had promised reform and had signaled respect for human rights. In connection with those radical reforms, he had some concerns, however. The Croatian reaction to the situation before the war was easy to understand, but the rule of law did not include vengeance, he said. The Croat authorities were still resisting the return of thousands of Serb refugees. What steps had the new Government taken to ensure a smooth and safe return of Serb refugees who wished to return to the areas they had lived? he asked.
He wondered whether the Covenant was applicable by courts in Croatia and what happened in the event of a conflict between State laws and Covenant provisions. He also wanted more information on freedom of movement. Regarding mandatory military service, he asked if freedom of conscience was protected, and if there was a possibility for alternative service. He asked for more information on current incidents of ethnic violence. He also wanted information about possible abuse of an individual by special police forces and the death of a Croatian citizen of Bosnian origin, due to actions by the Croatian police. What was the position of the current authorities regarding The Hague Tribunal? he asked. What was the Government’s position on supporting the work of a sub-commission seeking missing persons in the Croatian Danube area?
An expert said all were aware of the positive political changes in Croatia. In listening to the detailed statements in the morning, he had been impressed by efforts to redress the problems of the previous regime. Most of the issues he had wished to raise had already been brought up, but he wished to emphasize a few points.
He noted that the Covenant had been in effect in Croatia for a long time and wanted to hear more on what Croatia had done to redress the very serious human rights violations during the war. He wanted information on the trials that had actually taken place and who had been put on trial for what reasons. What had their sentences been? How many had been convicted and how many acquitted? He also wanted a breakdown of the ethnic affiliation of those tried.
What was the standing within the Croatian army today of officers or soldiers suspected of being implicated in war crimes of the past? he asked. Were there still people serving at the senior or mid-levels who were suspected?
He noted information before the Committee on abuse of prisoners by other prisoners. What had been done to address the problem? What form of recourse did prisoners have in such cases? He asked for more information on pre-trial detention, since no details had been provided on how many people were being held before being tried. How long did detainees have to spend before a decision on their case was made?
Another expert said that, while the report had been limited in some respects, it was extremely informative, especially for a first report. The responses to most questions had been extremely detailed, as well. He also noted his approval of the enshrinement in the Constitution of a prohibition on the death penalty and the right to object to military service.
The Committee’s written questions 5 and 9, on legal measures taken to bring to justice perpetrators of human rights crimes, had not been adequately answered in the morning, he said. He hoped that the delegation would provide hard information about who had been prosecuted, for what, what the results of appeals had been, and so forth.
On question 8, on the kinds of charges brought against law enforcement officials, he asked why the maximum sentence for torture -- 6 months to 5 years -- was so much less than that for seriously bodily harm -– 10 years.
He said useful information had been provided on safeguards in Croatian law regarding the need to bring detainees before a judge within 24 hours. Once detention was authorized, where was the person detained? he asked. Were those arrested told of their right to have a lawyer? he asked.
On Article 7 of the Covenant, on torture, he noted with pleasure that while there were allegations of violations, information from non-governmental organizations, among other sources acknowledged that there was a reduction in the number of complaints. Turning to the question of medical experimentation, he asked if any volunteers for such experimentation had been prisoners.
One expert asked if there was a hierarchy between the Constitution and treaties and, if so, how was that hierarchy established and how could it be justified. What was, for instance the position of a judge when two conventions relating to human rights were invoked? He also needed more information on situations where there was no appeal provided.
Also, what was the interpretation given by the State party of the expression “return to their own country”, he asked. According to available information, there were people who felt that Croatia was their country, but they encountered many obstacles. The same applied to the choice of domicile. As permanent and temporary residents in Croatia could be subject to restriction, what was the scope of those restrictions?
He said that, according to the report, a passport might be denied for reasons of national security or protection of public order. He wanted to know what the criteria were to determine national security or protection of the public order. Regarding freedom of religion, he noted that the State gave protection and assistance to several religions. What were those religions and were so-called new religious movements also given protection and assistance by the State? He also asked about the protection of religious sites and monuments, many of which had suffered from the war.
Another expert would welcome more reassurance on fair and equal treatment of Serbs. He asked for more information about the statute of limitations and if there were immunities for crimes committed in the past, including crimes against humanity. He also asked about trials in absentia and the situation of the Roma in Croatia.
Response by Delegation
BRANKO SMERDEL, Zagreb Law Faculty, Croatia, apologizing for his insufficient answer earlier, said that according to the Constitution the Covenant had stronger legal force than domestic law. International treaties in force in Croatia were a part of the domestic legal order in the country and they had a stronger legal force than domestic legislation.
He said that under the institute of constitutional complaint, individuals who felt their rights had been violated were entitled to address their petition to the Constitutional Court after exhausting all other legal remedies. Noting that he had participated in the drafting of the Constitution, he said that the instruction from the Parliament was that all international human rights standards should be included, including the Covenant and the Universal Declaration of Human Rights, among others. In some articles of the Constitution, in fact, there were stipulations directly transcribed from international legal documents.
The European Convention for the Protection of Human Rights and Basic Freedoms included a mechanism that offered judicial protection to petitioners who had not succeeded in seeking protection before domestic legal bodies, he continued. Petitioners could seek further protection from the European Court of Human Rights in Strasbourg, France. He apologized that his earlier response could have been construed as speaking about hierarchies and added that the Constitutional Court had become very aware that if it did not consider complaints seriously, it exposed its decisions to the risk of being overturned by, for example, the European Court.
He agreed with the Committee that the problems of the Constitution lay in implementation. On advice from experts of the Council of Europe, in article 14 of the Constitution, covering discrimination, the word “citizens” had been changed into “everyone”. After accepting a Constitution, work continued with legislation and the practice of the courts. The term “living constitution” was often heard.
Regarding derogations, he said article 101 of the Constitution authorized the President to undertake by decree the measures required by emergency situations, ranking from a state of war to a situation where governmental bodies were not able to perform their functions. Those decrees had the force of law. Serious derogations, however, would fall under article 17, which defined situations of emergencies and authorized only the Parliament to suspend, by a two-thirds majority, the rights of citizens.
Unfortunately, invoking provisions for a state of emergency had happened under article 101, he said. Article 17 had never been applied, nor had the state of war been declared. Article 101 was seen as the lesser in importance of the two. Military judiciary and prosecution had been introduced from 1991 until 1996. In emergency situations, such as a city under artillery fire, there had been a problem with maintaining law and order. But, citizens could still have gone to court and the ombudsman’s office had been very active since 1995. There were no cases pending of citizens seeking compensation for their violations of rights under emergency situations. However, there were people seeking compensation for their destroyed property, he said.
BRANKO SOCANAC, Ministry of Foreign Affairs of Croatia, said there was one pending case under the Covenant’s first Optional Protocol before the Human Rights Committee. He did not want to speculate on why more people went directly to the European Court in Strasbourg, rather than to the Committee. As for the mechanism in place for implementing the recommendations of the Committee, he noted that there was a Human Rights Department within the Ministry of Foreign Affairs which served as a focal point. A commission on human rights had been established to deal with that issue, as well.
He said that recently there had been a number of activities to promote reconciliation within Croatia. Without confidence-building measures, he stressed, it would be very difficult to rebuild the confidence-level of society. A committee, which would shortly convene for the first time, had been set up to deal with the issue.
The return of refugees to Croatia was a very important issue, he said, noting that there had been significant improvement in the situation. The Government had shown its willingness to open the door for all those who wanted to return. He had explained earlier that the whole process had been accelerated and the majority of requests for return had been granted. Most obstacles had been removed for the issue of Croatian documents. The problem of refugees was not a political one, it was economical, he stressed.
He said there were various estimates of the number of Roma in Croatia; a census would be conducted soon, so a definitive answer would be obtained. A national programme for Roma was being prepared, under which they would be treated as a national minority. The Government was seeking to provide health care, education and housing. There were efforts under way to tackle the problem of xenophobia.
MARIN MRCELA, Judge, Zagreb Country Court, Croatia, said trial in absentia was possible in rare cases in Croatia. The court was very careful in such circumstances. The Criminal Procedure Act stipulated that there be mandatory repetition of procedure, if the accused appeared after being tried in absentia. In his experience, such instances were quite rare.
As experts had noted, not all criminal offences had been mentioned in the report, he said. Chapter 11 of the Criminal Code described some 28 criminal offenses against the freedoms and rights of citizens, and three more in the chapter on rights protected by international law. Responding to another question on the length of punishment for bodily assault, he said that a 10-year punishment was prescribed if the bodily assault in question was fatal. That was why it appeared to be more severe than punishment prescribed for torture.
He said there had been no reported cases of slavery or transportation of slaves.
Regarding the question about the armed forces involvement in criminal procedure, he said that a military court had been established, under the emergency decrees under article 101 of the Constitution, during 1995 and 1996. Since then, Croatia had abolished military courts.
Answering questions regarding detention, he said there were several measures to ensure the presence of accused in criminal procedures. They included a summons and compulsory appearance process where the police would bring the accused to the court. Those were not considered as arrests. In article 94 of the Criminal Code, police could only hold someone they arrested for 24 hours. After that period, the person had to be released or brought before the court. The accused had the right to have defence counsel present, and the police had to inform the accused of that. Police were keen to ensure the presence of defence counsel, since everything the accused said in his presence could be used in the court. Anything said in his absence could not be used as evidence.
After 24 hours expired, there was a possibility for provisional confinement, which could only be ordered by an investigative judge, and could only last an additional 48 hours. The detainee would then be under the full jurisdiction of the court. Mandatory detention did not exist anymore in Croatia. Detention could be ordered by a court and could last only six months. After one month, the court must review the substance of the detention, and could extend detention for an additional two months. After that, it could be extended for another three months. If after six months investigation was not concluded, the detainee must be released.
Detention was the ultimate measure in the procedure and could be ordered only if all other measures of investigation had been exhausted, he said. The court also had to pay attention to the proportionality of the offence with regard to detention. The duration of detention could differ in relation to the seriousness of the offence and the length of imprisonment that could result from a guilty verdict. Six months detention was allowed if there was a possibility of imprisonment of less than three years, one year in case of imprisonment of five years, one year and six month in case of eight years, two years if imprisonment of more than eight years was possible, and two years and six months in cases where there was the possibility of a long-term imprisonment.
He said he had no knowledge about secret detention in Croatia. He was qualified to address the issue, as he had been in charge of supervision of detention in the Zagreb district court -- the largest pre-trial facility in Croatia. In his experience, there had only been one case of a person being detained without legal reasons for longer than the prescribed period, and that issue had been addressed as soon as it had come to light.
He said that there were two categories of juveniles under law in Croatia. Those aged 14 to 16 were classified as younger juveniles, and from 16 to 18, they were classified as older juveniles. There was also a younger adult category for 18-to-21-year olds. That system dated to 1975. Juveniles could not be tried as adults in Croatia. They could only be imprisoned in juvenile facilities and only for a maximum of three years.
The State judicial counsel had the authority to appoint judges, he said. There were now amended procedures under the new law and constitution. Some 24 decisions of the counsel had been reversed in the past by the Constitutional Court because of procedural mistakes, he noted. That had led to the changes. He then gave an overview of the structure of the judicial system in Croatia.
The State judicial counsel had jurisdiction over judges who did not perform their duties, he said. There had been a number of cases in the past five years.
Croatian courts were still not implementing the Covenant and other international instruments as they should, he noted. There had been, however, some decisions that had directly implemented the treaties. Laws must be changed and the education of judges on the international instruments must be improved.
* *** *
Seventy-first Session
28 March 2001
1913th Meeting (PM)
The Human Rights Committee met this afternoon to continue its consideration of the initial report of Croatia on compliance with the International Covenant on Civil and Political Rights.
During the meeting, expert members of the Committee praised the detailed nature of Croatia’s report, as well as of the answers given during the morning session. The Constitution was a well drafted document and clearly showed the direction Croatia was taking towards democracy and respect for human rights.
Members sought further clarification on a number of issues, including the status of the Covenant in the domestic legal system, national reconciliation efforts, the return of refugees, criminal offences against the freedom of citizens, the justice system, freedom of religion, and fair and equal treatment of ethnic Serbs.
Responding to the first point, Branko Smerdel, member of the Zagreb Law Faculty and Croatia’s delegation, said that according to the Constitution, the Covenant had stronger legal force than domestic law. He noted that international human rights standards -- including the Covenant and the International Declaration on Human Rights -- had been taken into account during the drafting of the Constitution.
Branko Socanac, of the Croatian Ministry of Foreign Affairs, said there had been a number of activities to promote reconciliation within Croatia recently. Without confidence-building measures, he stressed, it would be very difficult to rebuild the confidence-level of society. A committee, which would shortly convene for the first time, had been set up to deal with the issue. He added that the return of refugees to Croatia was a very important issue, and there had been significant improvements in the situation. The Government had shown its willingness to open the door for all those who wanted to return.
The delegation also provided information on, among other things, derogation from the Covenant during states of emergency, the recourse of citizens who felt they had suffered human rights violations during such times, and the number of officially determined criminal offences against the freedoms and rights of citizens, as well as question regarding detention and legal representation.
The Committee will meet again tomorrow, Thursday, at 10 a.m., to conclude its consideration of Croatia’s report.
Background
The Human Rights Committee met this afternoon to continue its consideration of the initial report of Croatia on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/HRV/99/1). The Committee, 18 expert members serving in their individual capacity, took up the report at its morning meeting.
(For more information and summary of the report see Press Release HR/CT/602 of 28 March, for background on the session see Press Release HR/CT/590 issued 19 March.)
Questions and Comments by Experts
An expert said the delegation’s report had come late, but it was very well researched. However, there were a few things missing from it concerning the reality of the situation after the war. It was a young republic and there had recently been a significant change in Government, she noted. Following a decision in 1992 during the crisis, Croatia had submitted a report on some aspects of the Covenant. Today’s exchange was, therefore, a continuation of that discussion.
She noted that in the replies given during the morning session, nothing had been said about the legal possibility for individuals who felt that they wished to invoke the Covenant’s first Optional Protocol. She asked for further clarification on the hierarchy of laws -– Constitution, domestic legislation and the Covenant -- in the country.
Turning to the issue of freedom of movement in Croatia, she asked what was the influence of the concept of minorities within the concept of nationalities. What was the criteria for recognition of identity papers and citizenship? Who was regarded as a foreigner and who was not?
She asked if it was true that in times of war children as young as 15 could be required to work for the armed forces. What were the regulations governing detention under Croatian legislation? Could a lawyer interview detainees or bring the matter before courts to determine the validity of the detention? Was there any secret detention?
She asked for further elucidation of the Amnesty Law of 1996. She then turned the judicial system in Croatia, asking for information on the appointment of judges and the disciplinary regulations. What was the difference between the old and new prosecutor’s offices? she asked.
Another expert commended the delegation for having supplied the Committee with a comprehensive and detailed report. The Constitution was largely a well drawn-up document and clearly showed the direction Croatia was taking towards democracy and respect for human rights. The Committee, however, was also interested in what was actually happening in practice to protect human rights in Croatia.
He drew the Committee’s attention to the list of criminal offences against the freedom of citizens from 1995 to 1998 in paragraph 29 of the report. There were reports from other sources listing numerous other crimes allegedly committed by persons in authority. Those reports alleged that next to nothing had been done to investigate and prosecute those accused. What was the delegation’s view on the matter?
He noted that very few cases were listed concerning violations of the equality of citizens. He asked for the delegation’s opinion on the question and for statistical information. What sort of abuses were reported, indicted and convicted, and by whom had the abuses had been committed? he asked. What punishment, including terms of imprisonment, had been given in cases of conviction?
Another expert expressed some concerns about the state of exception. The state of emergency was covered in two different parts of the Croatian Constitution. Article 17 of the Constitution made mention of situations where some basic freedoms and rights of citizens could be suspended as a result of war or another emergency by decree of the President. Usually it was up to the Parliament and not the President to decide on such a situation. He asked for further clarification on that point. He also asked what recourse a citizen had as a result of curtailed freedoms. Was there any right to damages?
He was also concerned about measures the State could take in the case of infringements committed by police or armed forces. In the case of infringements by the police, he asked what behaviour was subject to penalty and what sanctions would be imposed if found guilty. What special legal basis was there in the case of abuses by the armed forces? he asked.
An expert mentioned the destruction of a large number of houses of returnees in 1995 and evictions of people in 1995 and 1996. Those people were Serbs, she said. She asked what had happened subsequently, as she had information that those acts had gone unpunished. According to information she had, that had also happened in some cases of murder and torture. She also asked for clarification on matters of detention. The detention on authority of the police was not in conformity with the Covenant, she said.
She asked for clarification about suspension of cases brought against the police and armed forces, and what reasons there were for delays in handling those cases, as the statute of limitations had been invoked. She also asked for clarification about the fact that minors of 14 years of age could be condemned and detained in prison for up to 10 years.
An expert said he was grateful for the detailed written report and the oral response to the Committee’s questions. Croatia, he noted, was one of the very few countries that had succeeded -– rather than acceded -- to the Covenant following the collapse of the previous regime, which had prevented the formation of a legal vacuum.
He too asked about the status of the Covenant in the domestic legal system. In the jurisprudence of the Constitutional Court there was only indirect reference to the Covenant. What were the implications of that? He also asked for further clarification on Croatia’s derogation from the Covenant.
He then turned to the issue of equality of persons before the law. What was the composition of the country’s bar and the nature of its independence from the Government? he asked.
A great amount of work had gone into the report, an expert said. Information before the Committee indicated that there had been a great improvement in the human rights situation in Croatia in the past two years. He wished, therefore, to focus on the present and future situation. He also, however, recognized the need to prosecute war crimes and the importance of Croatia’s cooperation with the International Criminal Tribunal for the Former Yugoslavia.
Since Croatia’s independence, what was the citizenship of persons born in the territory of Croatia while it was part of the former Yugoslavia, especially Serbs? he asked. Did State succession have any impact on the issue of citizenship?
He noted that the Constitution stated that members of all nations and minorities would have equal rights in Croatia. What exactly was the definition of “nations” in that context? He was still concerned about the difficulties placed in the way of people who had fled during the war and now wished to return, especially those of Serb background. Were there plans to establish a programme of national reconciliation of all ethnic and religious groups in the country? he asked. In that context, he said he had been struck by an anecdote in the materials before the Committee of a librarian in Croatia who had burned all the books in her library written by Serb authors or in Cyrillic.
Another expert said he was aware that the new Government coalition had promised reform and had signaled respect for human rights. In connection with those radical reforms, he had some concerns, however. The Croatian reaction to the situation before the war was easy to understand, but the rule of law did not include vengeance, he said. The Croat authorities were still resisting the return of thousands of Serb refugees. What steps had the new Government taken to ensure a smooth and safe return of Serb refugees who wished to return to the areas they had lived? he asked.
He wondered whether the Covenant was applicable by courts in Croatia and what happened in the event of a conflict between State laws and Covenant provisions. He also wanted more information on freedom of movement. Regarding mandatory military service, he asked if freedom of conscience was protected, and if there was a possibility for alternative service. He asked for more information on current incidents of ethnic violence. He also wanted information about possible abuse of an individual by special police forces and the death of a Croatian citizen of Bosnian origin, due to actions by the Croatian police. What was the position of the current authorities regarding The Hague Tribunal? he asked. What was the Government’s position on supporting the work of a sub-commission seeking missing persons in the Croatian Danube area?
An expert said all were aware of the positive political changes in Croatia. In listening to the detailed statements in the morning, he had been impressed by efforts to redress the problems of the previous regime. Most of the issues he had wished to raise had already been brought up, but he wished to emphasize a few points.
He noted that the Covenant had been in effect in Croatia for a long time and wanted to hear more on what Croatia had done to redress the very serious human rights violations during the war. He wanted information on the trials that had actually taken place and who had been put on trial for what reasons. What had their sentences been? How many had been convicted and how many acquitted? He also wanted a breakdown of the ethnic affiliation of those tried.
What was the standing within the Croatian army today of officers or soldiers suspected of being implicated in war crimes of the past? he asked. Were there still people serving at the senior or mid-levels who were suspected?
He noted information before the Committee on abuse of prisoners by other prisoners. What had been done to address the problem? What form of recourse did prisoners have in such cases? He asked for more information on pre-trial detention, since no details had been provided on how many people were being held before being tried. How long did detainees have to spend before a decision on their case was made?
Another expert said that, while the report had been limited in some respects, it was extremely informative, especially for a first report. The responses to most questions had been extremely detailed, as well. He also noted his approval of the enshrinement in the Constitution of a prohibition on the death penalty and the right to object to military service.
The Committee’s written questions 5 and 9, on legal measures taken to bring to justice perpetrators of human rights crimes, had not been adequately answered in the morning, he said. He hoped that the delegation would provide hard information about who had been prosecuted, for what, what the results of appeals had been, and so forth.
On question 8, on the kinds of charges brought against law enforcement officials, he asked why the maximum sentence for torture -- 6 months to 5 years -- was so much less than that for seriously bodily harm -– 10 years.
He said useful information had been provided on safeguards in Croatian law regarding the need to bring detainees before a judge within 24 hours. Once detention was authorized, where was the person detained? he asked. Were those arrested told of their right to have a lawyer? he asked.
On Article 7 of the Covenant, on torture, he noted with pleasure that while there were allegations of violations, information from non-governmental organizations, among other sources acknowledged that there was a reduction in the number of complaints. Turning to the question of medical experimentation, he asked if any volunteers for such experimentation had been prisoners.
One expert asked if there was a hierarchy between the Constitution and treaties and, if so, how was that hierarchy established and how could it be justified. What was, for instance the position of a judge when two conventions relating to human rights were invoked? He also needed more information on situations where there was no appeal provided.
Also, what was the interpretation given by the State party of the expression “return to their own country”, he asked. According to available information, there were people who felt that Croatia was their country, but they encountered many obstacles. The same applied to the choice of domicile. As permanent and temporary residents in Croatia could be subject to restriction, what was the scope of those restrictions?
He said that, according to the report, a passport might be denied for reasons of national security or protection of public order. He wanted to know what the criteria were to determine national security or protection of the public order. Regarding freedom of religion, he noted that the State gave protection and assistance to several religions. What were those religions and were so-called new religious movements also given protection and assistance by the State? He also asked about the protection of religious sites and monuments, many of which had suffered from the war.
Another expert would welcome more reassurance on fair and equal treatment of Serbs. He asked for more information about the statute of limitations and if there were immunities for crimes committed in the past, including crimes against humanity. He also asked about trials in absentia and the situation of the Roma in Croatia.
Response by Delegation
BRANKO SMERDEL, Zagreb Law Faculty, Croatia, apologizing for his insufficient answer earlier, said that according to the Constitution the Covenant had stronger legal force than domestic law. International treaties in force in Croatia were a part of the domestic legal order in the country and they had a stronger legal force than domestic legislation.
He said that under the institute of constitutional complaint, individuals who felt their rights had been violated were entitled to address their petition to the Constitutional Court after exhausting all other legal remedies. Noting that he had participated in the drafting of the Constitution, he said that the instruction from the Parliament was that all international human rights standards should be included, including the Covenant and the Universal Declaration of Human Rights, among others. In some articles of the Constitution, in fact, there were stipulations directly transcribed from international legal documents.
The European Convention for the Protection of Human Rights and Basic Freedoms included a mechanism that offered judicial protection to petitioners who had not succeeded in seeking protection before domestic legal bodies, he continued. Petitioners could seek further protection from the European Court of Human Rights in Strasbourg, France. He apologized that his earlier response could have been construed as speaking about hierarchies and added that the Constitutional Court had become very aware that if it did not consider complaints seriously, it exposed its decisions to the risk of being overturned by, for example, the European Court.
He agreed with the Committee that the problems of the Constitution lay in implementation. On advice from experts of the Council of Europe, in article 14 of the Constitution, covering discrimination, the word “citizens” had been changed into “everyone”. After accepting a Constitution, work continued with legislation and the practice of the courts. The term “living constitution” was often heard.
Regarding derogations, he said article 101 of the Constitution authorized the President to undertake by decree the measures required by emergency situations, ranking from a state of war to a situation where governmental bodies were not able to perform their functions. Those decrees had the force of law. Serious derogations, however, would fall under article 17, which defined situations of emergencies and authorized only the Parliament to suspend, by a two-thirds majority, the rights of citizens.
Unfortunately, invoking provisions for a state of emergency had happened under article 101, he said. Article 17 had never been applied, nor had the state of war been declared. Article 101 was seen as the lesser in importance of the two. Military judiciary and prosecution had been introduced from 1991 until 1996. In emergency situations, such as a city under artillery fire, there had been a problem with maintaining law and order. But, citizens could still have gone to court and the ombudsman’s office had been very active since 1995. There were no cases pending of citizens seeking compensation for their violations of rights under emergency situations. However, there were people seeking compensation for their destroyed property, he said.
BRANKO SOCANAC, Ministry of Foreign Affairs of Croatia, said there was one pending case under the Covenant’s first Optional Protocol before the Human Rights Committee. He did not want to speculate on why more people went directly to the European Court in Strasbourg, rather than to the Committee. As for the mechanism in place for implementing the recommendations of the Committee, he noted that there was a Human Rights Department within the Ministry of Foreign Affairs which served as a focal point. A commission on human rights had been established to deal with that issue, as well.
He said that recently there had been a number of activities to promote reconciliation within Croatia. Without confidence-building measures, he stressed, it would be very difficult to rebuild the confidence-level of society. A committee, which would shortly convene for the first time, had been set up to deal with the issue.
The return of refugees to Croatia was a very important issue, he said, noting that there had been significant improvement in the situation. The Government had shown its willingness to open the door for all those who wanted to return. He had explained earlier that the whole process had been accelerated and the majority of requests for return had been granted. Most obstacles had been removed for the issue of Croatian documents. The problem of refugees was not a political one, it was economical, he stressed.
He said there were various estimates of the number of Roma in Croatia; a census would be conducted soon, so a definitive answer would be obtained. A national programme for Roma was being prepared, under which they would be treated as a national minority. The Government was seeking to provide health care, education and housing. There were efforts under way to tackle the problem of xenophobia.
MARIN MRCELA, Judge, Zagreb Country Court, Croatia, said trial in absentia was possible in rare cases in Croatia. The court was very careful in such circumstances. The Criminal Procedure Act stipulated that there be mandatory repetition of procedure, if the accused appeared after being tried in absentia. In his experience, such instances were quite rare.
As experts had noted, not all criminal offences had been mentioned in the report, he said. Chapter 11 of the Criminal Code described some 28 criminal offenses against the freedoms and rights of citizens, and three more in the chapter on rights protected by international law. Responding to another question on the length of punishment for bodily assault, he said that a 10-year punishment was prescribed if the bodily assault in question was fatal. That was why it appeared to be more severe than punishment prescribed for torture.
He said there had been no reported cases of slavery or transportation of slaves.
Regarding the question about the armed forces involvement in criminal procedure, he said that a military court had been established, under the emergency decrees under article 101 of the Constitution, during 1995 and 1996. Since then, Croatia had abolished military courts.
Answering questions regarding detention, he said there were several measures to ensure the presence of accused in criminal procedures. They included a summons and compulsory appearance process where the police would bring the accused to the court. Those were not considered as arrests. In article 94 of the Criminal Code, police could only hold someone they arrested for 24 hours. After that period, the person had to be released or brought before the court. The accused had the right to have defence counsel present, and the police had to inform the accused of that. Police were keen to ensure the presence of defence counsel, since everything the accused said in his presence could be used in the court. Anything said in his absence could not be used as evidence.
After 24 hours expired, there was a possibility for provisional confinement, which could only be ordered by an investigative judge, and could only last an additional 48 hours. The detainee would then be under the full jurisdiction of the court. Mandatory detention did not exist anymore in Croatia. Detention could be ordered by a court and could last only six months. After one month, the court must review the substance of the detention, and could extend detention for an additional two months. After that, it could be extended for another three months. If after six months investigation was not concluded, the detainee must be released.
Detention was the ultimate measure in the procedure and could be ordered only if all other measures of investigation had been exhausted, he said. The court also had to pay attention to the proportionality of the offence with regard to detention. The duration of detention could differ in relation to the seriousness of the offence and the length of imprisonment that could result from a guilty verdict. Six months detention was allowed if there was a possibility of imprisonment of less than three years, one year in case of imprisonment of five years, one year and six month in case of eight years, two years if imprisonment of more than eight years was possible, and two years and six months in cases where there was the possibility of a long-term imprisonment.
He said he had no knowledge about secret detention in Croatia. He was qualified to address the issue, as he had been in charge of supervision of detention in the Zagreb district court -- the largest pre-trial facility in Croatia. In his experience, there had only been one case of a person being detained without legal reasons for longer than the prescribed period, and that issue had been addressed as soon as it had come to light.
He said that there were two categories of juveniles under law in Croatia. Those aged 14 to 16 were classified as younger juveniles, and from 16 to 18, they were classified as older juveniles. There was also a younger adult category for 18-to-21-year olds. That system dated to 1975. Juveniles could not be tried as adults in Croatia. They could only be imprisoned in juvenile facilities and only for a maximum of three years.
The State judicial counsel had the authority to appoint judges, he said. There were now amended procedures under the new law and constitution. Some 24 decisions of the counsel had been reversed in the past by the Constitutional Court because of procedural mistakes, he noted. That had led to the changes. He then gave an overview of the structure of the judicial system in Croatia.
The State judicial counsel had jurisdiction over judges who did not perform their duties, he said. There had been a number of cases in the past five years.
Croatian courts were still not implementing the Covenant and other international instruments as they should, he noted. There had been, however, some decisions that had directly implemented the treaties. Laws must be changed and the education of judges on the international instruments must be improved.
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