强迫失踪问题委员会审议波斯尼亚和黑塞哥维那的首份报告（部分翻译）

强迫失踪问题委员会

2016年10月5日

强迫失踪问题委员会今天结束了对波斯尼亚和黑塞哥维那关于其落实《保护所有人免遭强迫失踪国际公约》条款情况的首份报告的审议。

波斯尼亚和黑塞哥维那人权和难民部长科莫·萨拉奇（Kemo Sarač）表示，波斯尼亚和黑塞哥维那已于2012年批准了《公约》。即便在《公约》批准之前，政府也已付出了很多努力以解决失踪人员问题，包括通过《失踪人员法》、建立失踪人员研究所这个关键机构以负责寻找并查明失踪人员——波斯尼亚和黑塞哥维那公民。国家也已经通过了各项法律，为处理失踪人员问题建立了法律基础，尽管该国的宪法安排极其复杂，共有14个政府和许多立法机构，但法律和制度框架足以解决失踪人员问题。在上世纪九十年代的战争期间，约有三万人被列入失踪人员名单；其中的三分之一仍然下落不明。

委员会专家们问及了《公约》在波斯尼亚和黑塞哥维那的运用，包括在各自拥有刑法典的布尔奇科特区（Brčko District）和塞族共和国内，尤其是在实体或国家法律与《公约》条款相悖的情况下。强迫失踪作为一项具体罪行——包括作为危害人类罪，塞族共和国和布尔奇科特区尚未将其纳入法律。专家们十分担心提出的法律修正案将赦免已经服满刑期五分之三以上的危害人类罪、战争罪和灭绝种族罪犯罪者；在涉及强迫失踪行为的审判中扩大豁免并协助辩诉交易的做法；以及强迫失踪案件极低的诉讼数量。

委员会主席兼波斯尼亚和黑塞哥维那报告员圣地亚哥·科库埃拉（Santiago Corcuera Cabezut）在总结发言中感谢代表团在解决一系列实质性问题的对话中表现出的坦诚和开放。委员会将在结论性意见中提供分析，并解释波斯尼亚和黑塞哥维那的复杂宪法构成。

萨拉奇先生在总结发言中表示，参与对话令人想起了国家一段非常艰难的历史，但也提醒着要设法防止历史重演的重要性。

委员会副主席赖纳·胡勒（Rainer Huhle）在结束发言中表示，委员会希望这次非常具有建设性的对话将帮助波斯尼亚和黑塞哥维那促进其改善本国人权状况的努力，鉴于该国仍有需要克服的艰巨历史遗留挑战，这一点便显得尤为重要。

波斯尼亚和黑塞哥维那代表团包括波黑人权和难民部、波黑检察官办公室、波黑司法部、波黑国家调查和保护局、波黑联邦劳动和社会政策部以及波黑常驻联合国日内瓦办事处代表团的代表们。

委员会公开会议将在此进行网络直播： http://webtv.un.org/。

委员会将于10月6日（周四）上午10点举行下一次公开会议，开始审议哥伦比亚的首份报告(CED/C/COL/1)。

Report

The initial report of Bosnia and Herzegovina can be read here: CED/C/BIH/1.

Presentation of the Report

KEMO SARAČ, Ministry for Human Rights and Refugees of Bosnia and Herzegovina, said that Bosnia and Herzegovina had ratified the International Convention for the Protection of all Persons from Enforced Disappearance in 2012.  Given the consequences of the war that had taken place 20 years ago, this was evidence of Bosnia and Herzegovina’s strong commitment to devoting particular attention to the issue of missing persons in the country, and that there was no alternative to the path of truth.  Even before the ratification, a lot had been done to address the issue of missing persons, including the passing of the Law on Missing Persons, and the establishment of the Missing Persons Institute as a key institution in charge of finding and identifying missing persons, citizens of Bosnia and Herzegovina.  Laws had been passed to provide a legal basis for dealing with the issue of missing persons, and despite the extremely complex constitutional arrangement in the country with 14 governments and as many legislative bodies, the legal and institutional framework was sufficient to address the issue of missing persons.  The Criminal Code of Bosnia and Herzegovina transposed the essence of provisions of the International Convention for the Protection of all Persons from Enforced Disappearance, including the definition of enforced disappearance in the sense of Article 2 of the Convention.  Enforced disappearance appeared in the Criminal Code as a crime against humanity within the context of a widespread or systematic attack directed against any civilian population.  The Criminal Code, applicable on all the territory of Bosnia and Herzegovina, provided for punishment of complicity, and applied the statute of limitations to criminal offenses, including acts defined as crimes against humanity, including enforced disappearances.

During the armed conflict in the 1990s, 30,000 people had been listed as missing, and of those, one third was still unaccounted for.  The Law on Missing Persons defined who was considered as a missing person as a result of the armed conflict during the period from 30 April 1992 to 14 February 1996.  The Criminal Code of Bosnia and Herzegovina prescribed the procedure to be followed by the competent Prosecutor’s Office in cases of forced disappearance, while the Law on Mutual Legal Assistance in Criminal Matters laid down both substantive and procedural conditions for the prosecution of foreign nationals accused of acts enforced disappearances.  The Law on Execution of Criminal Sanctions and the Law on Protection of Witnesses under Threat and Vulnerable Witnesses contained provisions which were aligned with the Convention.  Bosnia and Herzegovina had set up a legal framework and established institutions with exclusive jurisdiction in the entire territory of Bosnia and Herzegovina, guaranteeing the protection of foreigners from enforced disappearances in cases of detention and stay of foreigners in places of detention, with full respect for the principle of non-refoulement.  Bosnia and Herzegovina had done a lot to ensure the respect for the provisions of the Convention; for the period ahead, more needed to be done to ensure the rights of victims of enforced disappearances, and to ensure more effective functioning of the Institute for Missing Persons.  The institutions in Bosnia and Herzegovina had been charged with bringing entity regulations governing the rights of civilian victims of war, which included families of missing persons, in line with the Law on Missing Persons.  The efforts were ongoing to prepare the Law on the Rights of Victims of Torture, which would also include victims of enforced disappearances.  An inter-State agreement on the search for missing persons had been signed with Serbia, while agreements on cooperation with Croatia and Montenegro were currently being prepared.  Regardless of its complex constitutional structure, Bosnia and Herzegovina was fully committed to the issue of missing persons and protecting victims of enforced disappearances, and making efforts to ensure that signed international instruments were implemented in a consistent manner throughout the territory of Bosnia and Herzegovina. 

Questions from the Committee Experts

SANTIAGO CORCUERA CABEZUT, Chairperson and Rapporteur for Bosnia and Herzegovina, took note of the Constitutional provisions in Bosnia and Herzegovina which provided for direct applicability of European Conventions, and also noted that the Convention for the Protection of all Persons from Enforced Disappearance was still not being applied by national courts - what would happen if the provisions of the Convention were not in accordance with the national laws and the Constitution, both at the State and entity level?  Who could determine the contradictions between the domestic laws and the Convention – would if fall in the domain of ordinary courts, or was it within the competence of the Constitutional Court only?  What was the applicability of the Convention throughout the country, including in the Brčko District and Republika Srpska, which had their own Criminal Codes?  If the laws of the Brčko District and Republika Srpska lacked the criminalization of enforced disappearances, including as crimes against humanity, would the provisions of the Criminal Code of Bosnia and Herzegovina be applicable? 

Would Bosnia and Herzegovina adopt legislative measures to absolutely prohibit enforced disappearances even in extreme or extraordinary circumstances?  The specific crime of enforced disappearances was included only at the State level, but not at the district level, whose Criminal Code needed to be amended in this regard – what was being done to thus amend the Criminal Code?  What was the factor that determined the applicability of the different Criminal Code – the perpetrator or the place of the crime?  Could the delegation confirm whether the specification of the crime of enforced disappearances as a crime against humanity applied on all the territory of Bosnia and Herzegovina, and that therefore it was not necessary to have each entity or district Criminal Code define enforced disappearances as a crime against humanity?

MARIA CLARA GALVIS PATINO, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, asked the delegation to inform about the status of proposed amendments which would provide pardon to perpetrators of crimes against humanity, war crimes and crimes of genocide who had served more than three fifths of their sentence.  Criminal prosecution and execution of the sentence were not subject to statute of limitations for war crimes, crimes against humanity and crimes of genocide and Ms. Galvis Patino asked about compensation for the autonomous crime of enforced disappearance in connection with the statute of limitations.  Which were the competent authorities to investigate enforced disappearance in the entities and in the Brčko District, both when enforced disappearance was defined as a crime against humanity, and when it was not?  The financial resources allocated to the Institute for Missing Persons had been reduced, while the nomination of the Board of Director was pending since 2012.  Were human and financial resources of the Office of the Prosecutor sufficient to ensure all exhumations and the identification of remains? 

Which measures had been adopted to fully execute the orders issued by the Constitutional Court?  What action had been taken against State officials involved in the arrest of the so-called Algerian Group, in which there were suspicions of enforced disappearances?  Concerning the trials for war crimes committed during the armed conflict, the delegation was asked about concrete measures taken to address the large backlog of cases; how many of the cases regarded enforced disappearances; the penalties to perpetrators; witness protection measures taken at local and entity-level courts; whether the local and entity courts considering war crimes used the Criminal Code of Bosnia and Herzegovina; and the measures taken to protect witnesses and their families from threats, violence and reprisals.  The State law provided for the suspension from official duty of a person found guilty of enforced disappearances – what were the legal provisions in this regard at entity and district levels?

A Committee Expert inquired about the content of the agreement with Serbia on cooperation with regard to enforced disappearances; and access that the competent authorities investigating enforced disappearances had to the information and documentation held by security and army institutions. Almost all persons tried for enforced disappearances had been acquitted and this contributed to the feeling of impunity – what was the fate of those rulings, were there complaints?  There were cases in which immunity had been granted to certain persons charged and accused of crimes – what was their testimony, did it contribute positively to investigations and the prosecution of persons accused of enforced disappearances? 

Another Expert noted with concern complaints of intimidation or threats against victims or witnesses in the trials, and asked about witness protection programmes in the entities and the Brčko District.

Criminalization of enforced disappearances outside of the context of armed conflict had been achieved with the amendment of the Criminal Code of Bosnia and Herzegovina in May 2015, but this still needed to be achieved in the laws of the two entities and the Brčko District.  Which initiatives could the Government of Bosnia and Herzegovina take when the Court of Bosnia and Herzegovina considered the exercise of extended jurisdiction?

Taking note of the constitutional complexity of the system in Bosnia and Herzegovina, an Expert noted that as far as Criminal Codes were concerned, the power fell within the entity and not State institutions, which was an issue of concern in relation to the implementation of the provision of international conventions.  The Expert wondered about the powers in case of emergency, noting the absolute prohibition of enforced disappearances in all circumstances in the International Convention for the Protection of all Persons from Enforced Disappearance.

Almost 75 per cent of the cases of missing persons had been accounted for, and this was commendable, but there remained a large number of cases to still be addressed.  While the efforts of the international community in this regard were still there, there was a need for absolute ownership of the process by Bosnia and Herzegovina.  Which measures were being taken to make the Institute of Missing Persons fully functional, including by fully respecting the legal framework and providing the necessary human and financial resources?  Did the statistics in Bosnia and Herzegovina make a distinction between persons missing because of the conflict, or those who were victims of enforced disappearances?

A Committee Expert remarked that the number of missing persons in Bosnia and Herzegovina was rather large – 30,000 had been listed and of those some 20,000 had been identified.  Given such a high number, he noted that the number of prosecutions for enforced disappearances was rather small, and asked the delegation to inform about the ruling by the European Court for Human Rights which demanded the re-opening of certain cases because of too lenient sentences, the number of open cases at the moment, and the reasons for the acquittal in 12 out of 13 cases brought before the courts.

Response by the Delegation

Responding to questions and issues raised by the Experts, a delegate explained that the Constitutional Court was the only one with the competence to assess the alignment of the domestic law with the provisions of international conventions, and stressed that the principles of international law were the component parts of the legal order of Bosnia and Herzegovina.   Appellations for non-alignment of the legislation could be brought before the courts, including by the Office of the Ombudsmen.  The provisions of the criminal legislation did ensure sanctioning of offences, especially enforced disappearances which constituted war crimes; this was the case both in the State legislation, and the legislation in the entities.  The Criminal Code of Bosnia and Herzegovina provided that the statute of limitations did not apply to compensation to victims of enforced disappearances. 

The Institute for Missing Persons was an independent institution which searched for missing persons, including collecting information and running a database; it was sufficiently funded for this work, but it was true that the budget was sometimes not adequate to cover all the expenditures related to exhumation.  In such cases, the Office of the Prosecutor would provide the funds, because once it commenced, exhumations had to be completed.  The Institute also received some funding from the International Commission for Missing Persons, which was a co-founder of the Institute.  The Institute was starting to apply DNA analysis to identify mortal remains of victims, which would accelerate the process of identification for the 8,300 persons who had not been identified yet.  Major costs were related to
locations where the mortal remains were kept.  The new Board of Directors would be appointed soon, which meant that the funding for exhumations could start to be spent, and the work of identification of mortal remains would accelerate. 

With regards to the applicability of the Convention in the State and the entities, a delegate explained that crimes against humanity including enforced disappearances could also be prosecuted in entity courts and by entity Prosecutor Offices.  A delegate corrected the mistake in the list of replies concerning the number of convictions and acquittals, saying that out of 13 cases tried before the courts for enforced disappearances, perpetrators had been convicted – and not acquitted – in eleven cases.  The reason for this high number of convictions was the fact that immunity was given to witnesses and not perpetrators.  The authorities were still conducting investigations into the Algerian Group case. 

With regards to the implications of the European Court of Human Rights decision in Maktouf and Damjanovic case, a delegate explained that the Constitutional Court had decided to retry all the cases in question under the Criminal Code of the Socialist Federal Republic of Yugoslavia, except in cases involving enforced disappearances as a crime against humanity.  A delegate noted disagreement with this interpretation by the Constitutional Court.  If the domestic laws were not aligned with international standards, Bosnia and Herzegovina could apply provisions of international instruments it was a party to.  Such was a case in the use of immunity and in plea bargaining.

Investigations on war crimes were a particular challenge, particularly in Bosnia and Herzegovina, as there was very little evidence, therefore the investigators relied on the use of witnesses.  To date, the best way to obtain information was through “insiders”, persons who were members of armed units during the commission of crimes, and the admittance of guilt.  This meant that information about mass killings, where all victims had been killed, was usually not available.

With regards to the harmonization of provisions on Article 190a of the Criminal Code of Bosnia and Herzegovina concerning the responsibility of State officials for crimes of enforced disappearances, a delegate explained that Criminal Codes at entity levels described the responsibility of officials, including for enforced disappearances; therefore the Criminal Code of Bosnia and Herzegovina did not cover the responsibility of officials in entities or the Brčko District.  Republika Srpska was developing a new Criminal Code, and it was believed that it would codify this provision of the Criminal Code of Bosnia and Herzegovina.  There were similar initiatives in the Federation of Bosnia and Herzegovina and in the Brčko District.

Amnesty should not be granted in criminal cases in issues protected by international law, including crimes of enforced disappearances: amnesty for such crimes had never been granted.  Parliament would adopt the Law on Amnesty which would specify the cases in which amnesty could be granted.  Following the practice of the International Criminal Tribunal for the Former Yugoslavia, amnesty could be granted pending approval by the Council of Ministers. 

The law on the protection of witnesses was in place in the Brčko District; the national strategy for the prosecution of war crimes had been suggested to establish a special witness protection unit at lower levels so that witnesses in cases transferred from the State to lower-level courts could be protected.

In order to accelerate investigations into war crimes cases, the authorities had increased resources, including the number of investigators and intelligence officers; databases and special operative teams had also been set up; all these measures were in order to collect the information and intelligence relevant to the investigation of war crimes. 

Bosnia and Herzegovina was concluding agreements on the search for missing persons with the countries in the region in order to collaborate on finding locations of mortal remains.  The agreement with Serbia, recently ratified by Parliament, provided for access to detected locations where remains had been found, and that parties could participate in proceedings as observers in order to obtain all information related to the exhumation of mortal remains.  The agreement was an appropriate mechanism to regulate responsibilities and obligations of the two neighbouring countries.

Follow-up Questions by the Committee Experts

SANTIAGO CORCUERA CABEZUT, Chairperson and Rapporteur for Bosnia and Herzegovina, asked the delegation to confirm that the Office of the Ombudsmen could indeed bring cases to the Constitutional Court in the case of the incompatibility between the law and the Constitution, and that the Ombudsmen could request the harmonisation of specific legislation, and asked what happened if the law of the Brčko District, Federation or Republika Sprska was in violation of the Convention?  What could a court at that level do, could it apply the provisions of the law while knowing that it was contrary to the Convention?  When was the Criminal Code of Bosnia and Herzegovina applicable in cases of enforced disappearances, which were the factors triggering its application: the territory where the act was committed or the origin of the perpetrator?  Were there ongoing legislative processes in entities amending the Criminal Code to include the crime of enforced disappearances?   

MARIA CLARA GALVIS PATINO, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, wondered about the statute of limitation on compensation in cases of enforced disappearances which were not part of crimes against humanity.  There were 8,300 cases of missing persons where identification was pending – was this figure contested by anyone, families, civil society organizations?

The delegation was asked about the current status of the dialogue with the European Union on extended jurisdiction; to explain the attenuating and aggravating circumstances applied, which did not correspond to the provisions of the Convention - for example Bosnia and Herzegovina used as attenuating circumstances to persons who were young or old, or those with families, which meant that full responsibility for this crime against humanity could be assigned only to an adult single person; and the criminal consequences for accused who plead agreements, and those who testified;

Response by the Delegation

With regards to the petition for constitutionality of laws, the Ombudsman took the initiative with authorized bodies in order for those bodies to file a petition with the Constitutional Court.  The Constitutional Court defined that bodies authorised to file a petition were Members of the Presidency, Prime Minister, and Members of the Parliament of Bosnia and Herzegovina. 

It was difficult to answer the hypothetical question on what courts could do about entity laws which were contrary to the Convention, said a delegate and explained that international law was directly applicable in Bosnia and Herzegovina and therefore it should not be possible that the laws passed by legislators were contrary to its provisions.  Another delegate said that the court could take an initiative for a petition to be filed with the Constitutional Court, the Constitution provided for the application of Conventions, so individual courts should take initiatives to amend the laws which were not aligned to the Convention.  The law on enforced disappearances could be applied retroactively, because it was a continued crime which lasted from the moment the person went missing until the moment of detection of the perpetrator, despite the fact that the crime had occurred before.  The person who perpetrated the crime was the criterion which decided the jurisdiction, and not the place of the commission of the crime.

The Criminal Code of Bosnia and Herzegovina provided compensation to victims for non-material damage as a part of criminal proceedings – this was usually done in cases involving rape – while other kinds of compensation could be obtained through civil proceedings and were regulated by the Law on Obligations.

The solution for the extended jurisdiction of the Court of Bosnia and Herzegovina had not been found yet, and the structured dialogue was still ongoing.  The extended jurisdiction of the Court of Bosnia and Herzegovina did not include war crimes or the crime of enforced disappearances.

Questions by the Committee Experts

MARIA CLARA GALVIS PATINO, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, noted with regards to the non-refoulement clause that the law clearly provided the reasons for the expulsion of persons and asked the delegation to provide more information on those, concrete cases in which the law was applied, what the three-stage protection meant, and the possibilities and procedures to appeal expulsion decisions.  What was the maximum duration in detention of foreigners?  The Committee acknowledged the safeguards contained in the Criminal Law in relation to deprivation of liberty and asked whether those could be considered as a protection against secret detention, given that the law did not explicitly prohibit secret detention.  What measures were being taken to ensure that the Office of the Ombudsmen had sufficient resources to enable it to carry out its functions efficiently and independently?  Finally, Ms. Galvis Patino asked about activities undertaken to ensure training in the provisions of the Convention to judges and prosecutors, law enforcement officers, and all other concerned officials.

SANTIAGO CORCUERA CABEZUT, Chairperson and Rapporteur for Bosnia and Herzegovina, asked the delegation whether family members and relatives of victims of enforced disappearances fell into the definition of “injured persons” and if the legal framework was in accordance with article 24 of the Convention concerning the definition of “victim”.  What progress had been made in achieving the agreement of all parties concerning the establishment of the Fund for Missing Persons, and what kind of reparations would be provided – only material or moral as well?  The delegation was asked about the progress in addressing discrepancies in accessing social benefits across the country; if access to social benefits was still dependent on declaring the victim “deceased”; and what was being done to ensure that the laws of the country were harmonized with the provisions of the Convention in this regard.  The Committee took note of the fact that the Criminal Code at all levels of the State needed to be amended to ensure it was aligned with article 25 of the Convention concerning the disappearance of children and what initiatives were undertaken in this regard.

Committee Experts inquired about access to interpretation during court proceedings for foreigners who did not speak the language; cooperation with other countries in light of the experience of Bosnia and Herzegovina in the field of the search for missing persons and processing mass graves; and whether Bosnia and Herzegovina was a party to the Palermo Protocols in order to enable it to adequately address the linkages between enforced disappearances and trafficking in persons.

The delegation was also asked to explain the codification of the crime of enforced disappearances in the law of Republika Srpska; the scope and frequency of inspections of places of detention and the sanctions for any violations of the law; whether the failure to register detainees was an offence under the law; and the number of cases in which the principle of non-refoulement had been invoked due to fear of enforced disappearances.
 
Response by the Delegation

In response to the Experts’ questions, a delegate confirmed that the principle of non-refoulement was incorporated in the laws and the Constitution of the country.  The Service for Foreigners’ Affairs and the Ministry for Security and its Department for Asylum were in charge of dealing with issues of asylum and foreigners.  Asylum seekers had the right to access free legal aid during the asylum procedure; the expulsion decision could be appealed in which case all actions of expulsion would be suspended until the final decision by the court was issued.  Foreigners were placed in the immigration centre, and the reasons for the placement in this centre and the duration of the stay were determined by the law.  Expulsion could not happen before the identity of a foreigner was confirmed and the full examination of the asylum procedure was concluded.  Secret detention was not allowed and a range of measures were in place as safeguards for deprivation of freedom; incarceration was a measure of last resort. 

The budget allocated to the Office of the Ombudsmen had not been reduced except in the framework of the overall budgetary reductions in the country.  The Office of the Ombudsmen had received a new mandate of monitoring of places of detention, and in this connection, the request for additional funds had been made.  The new law on the Ombudsmen of Bosnia and Herzegovina would be soon passed, and it was expected that in the future adequate financial resources would be allocated by the Council of Ministers.

There was no explicit definition of “victim” of enforced disappearances, except in some laws in connection with the Convention; the laws provided the definition of family and relatives of missing persons and in this context the definition of “injured persons” was understood.  The Fund for Missing Persons should have been established in accordance with the law, and it was supposed to offer an integrated approach with regard to associations of missing persons, for example the construction of a memorial, or marking of places where large groups of persons had gone missing.  The Fund had not yet been established as it required the agreement of all parties in the country; at the moment, such activities were funded from the entity and District budgets.  There was no State-level law concerning reparations, as its passing required the agreement of all parties in the country.  The families of missing persons received minimum social benefits, especially if they were not beneficiaries of any other social welfare entitlements.  The search for all those registered as missing persons would continue until they were found; this was an obligation of Bosnia and Herzegovina.

Turning to the issue of missing children, a delegate said that following a report of a missing child, an investigation would ensue to establish whether there were any potential links with trafficking in persons.  All children who went missing were duly registered in the Interpol database.  Bosnia and Herzegovina received support from the International Commission for Missing Persons and the cooperation in this field was possible, if adequate resources were made available.

Training of police officers included training in human rights and specialist training activities were also provided; however, no official training in the provisions of the International Convention for the Protection of all Persons from Enforced Disappearance had been provided to date.

The Law on Execution of Criminal Sanctions prescribed the obligation of penitentiary institutions to keep records of detained persons; the control of those records was conducted by specific departments of the Ministry of Justice and its inspectors, who had a mandate to conduct visits at any moment.  Bosnia and Herzegovina had been trying to adopt the legislation on free legal aid for victims of injured parties since 2008; there were similar laws at cantonal levels and in the Republika Srpska.  The draft State law  had been adopted by one chamber of the State Parliament.

The law on disappeared children in Republika Srpska was being drafted and at the moment it was not known which provisions, including in connection to article 25 of the Convention, it would contain.  It was clear that a law at the State level was needed.

Follow-up Questions by the Committee Experts

MARIA CLARA GALVIS PATINO, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, asked the delegation about the number of cases of refoulement of foreigners, and the appeals against decisions for fear of enforced disappearances.

SANTIAGO CORCUERA CABEZUT, Chairperson and Rapporteur for Bosnia and Herzegovina, took up the issue of the budget of the Ombudsman, and noting the involvement of the Ministry of Finance, the Parliament and the Council of Ministers in making the decision on resource allocations, asked how the budgetary and functional independence of the Office was guaranteed, who decided on the budget allocated to the Office, and the measures in place to ensure that politically motivated decisions would not affect the resources allocated to the Office.  The Chairperson also asked about the status of the State law on reparations, and the administrative models that would be applied; and about measures taken to amend the law to ensure the automatic declaration of death, and the law on disappeared children.

The delegation was also asked to provide statistics of examples of concrete cases in the legal administrative system dealing with cases of expulsion; the status of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the setting up of the national preventive mechanism, which should be a priority in Bosnia and Herzegovina from the point of view of prevention.

A Committee Expert stressed the obligation of Bosnia and Herzegovina to comply with the provisions of the European Convention on Human Rights, and the decisions of the European Court for Human Rights, concerning persons in detention and their access to legal assistance and representation, and the information provided to families about the place of detention and any change in the place of detention.

Responses by the Delegation

A delegate explained that the statistics on the cases of expulsion of foreigners were not available at the moment, but the violation of the principle of non-refoulement had not been found by the domestic courts of the European Court for Human Rights.  Once it was determined that a foreigner presented a risk to the security of Bosnia and Herzegovina, an expulsion decision would be issued by the Service for Foreigners.  The person in question could invoke the principle of non-refoulement, and had the right and access to all safeguards during the procedure, including to interpreter services.

The budgetary procedure in Bosnia and Herzegovina was a public and transparent process, and the system of multi-annual budgetary planning for all State institutions had been adopted several years ago.  All budgetary requests were received and reviewed by the Ministry for Finance, which would then make a proposal to the Council of Ministers for their review and approval.  The Office of the Ombudsmen had received the budget necessary for its functioning, but the request for additional funds in connection to visits to places of detention had not been agreed to this year.  It was hoped that the law on Ombudsmen would be adopted next year which would also include a national preventive mechanism and the relative funding. 

There would be amendments to the law concerning the definition of “victims” and “injured parties”, as well as concerning the Fund for Missing Persons, and social welfare.  This law would be implemented at entity levels.  The process of establishing the Fund for Missing Persons was a part of the transitional justice process, which aimed to bring all different ethnic groups to work together, and this implied the harmonization of the law on the declaration of death of missing persons.  There were no problems in the implementation of the rights of relatives of missing persons; relatives could petition the court to declare death and thus enable them to access social benefits.

There had been several attempts at developing a law on victims of war and victims of torture, but the passing of the law required the agreement of all in the country.  The Ministry for Human Rights was developing a draft framework law on Victims of Torture; this was a major challenge and required continuous political dialogue, which would ensure that the law was accepted and approved by all parties to ensure its application in practice.  Bosnia and Herzegovina was in the process of accession to the European Union, and it was hoped that this process would facilitate finding of harmonized solutions and resolving dilemmas in terms of the rights of victims.  Bosnia and Herzegovina had a very complex ethnic and population make up, and a very complex administrative and constitutional structure, which meant that there were no other countries in the world from which the law on victims of torture could be copied. 

Concluding Remarks

SANTIAGO CORCUERA CABEZUT, Chairperson and Rapporteur for Bosnia and Herzegovina, thanked the delegation for the constructive attitude, frankness and openness in the dialogue which addressed substantive issues, from the legislation, to judicial measures, due process of law and safeguards under procedural law as preventive measures, and cooperation with other countries.  Other issues were raised in the discussion, including asylum seekers at risk of being disappeared, reparation, the right to truth, the right to information, the procedure to search and identify remains, and the important issue of disappeared children.  The Committee would provide its analysis in its concluding observations which would take into account the complex constitutional makeup of Bosnia and Herzegovina. 

MARIA CLARA GALVIS PATINO, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, thanked the delegation for the information provided in writing and for the detailed and comprehensive responses.

KEMO SARAČ, Ministry for Human Rights and Refugees of Bosnia and Herzegovina, in his concluding remarks, said that participating in this dialogue was a reminder of a very difficult part of the history of the country, but was also a reminder of the importance of finding the way to prevent repetition.  The Experts had demonstrated a very good knowledge and understanding of the situation in Bosnia and Herzegovina and the implementation of the Convention, and it was hoped that they would assist it in developing a stable democratic society.  Bosnia and Herzegovina remained opened and fully committed to cooperating with the Committee in the future.

RAINER HUHLE, Committee Vice-Chairperson, thanked the delegation for the very constructive dialogue which would help the country to advance in the efforts to improve its human rights situation, especially in countries which had such a difficult past to overcome.

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