Human Rights in 2015
YUCOM’s Views on responses of the Republic of Serbia
Belgrade, March 11, 2016
Milan Antonijevic, Director of Lawyers’ Committee for Human Rights – YUCOM, opened the conference, indicating that the annual report is dedicated to cooperation with state bodies, responses and fast reactions that YUCOM demanded. According to Antonijevic, the past year was marked by a clear and strong cooperation with independent institutions and bilateral support that helped to overcome great challenges in cooperation with state authorities, and to bring back communication to a decent level. In regard to the floods that have hit Serbia these days, Antonijevic reminded the attendants on the Manual “Days After” that YUCOM had created after the floods in 2014 in order to facilitate people to find a path to all kinds of assistance and legal doubts they may have.
Antonijevic particularly emphasized the importance of providing free legal aid, and the successes that YUCOM had in this area, such as temporary measures ECtHR against the displacement of informal settlements that have been postponed in order to create the possibility to perform the displacements in accordance with international standards. At the end of his opening statement Antonijevic highlighted the role of civil society in the pre-election period, and noted that YUCOM, in light of the new law on Freedom of assembly, will follow freedom of assembly with particular attention to monitoring the violence that occurred during the previous elections at the local level.
Antonijevic then gave the word to his Excellency Pertti Ikonen, Ambassador of Finland, who spoke about the cooperation of the Embassy of Finland with civil society. Ambassador Ikonen emphasized the importance of the role of civil society organizations in the light of negotiations on Chapters 23 and 24. According to Ambassador Ikonen, YUCOM has been supported because civil society organizations are the essence for the implementation of reforms.
Antonijevic then gave the word to Mari Timenes Nordmo, Second Secretary of the Embassy of the Kingdom of Norway, who, at the beginning of her speech noted that the highest importance that human rights get in Norway resulted in the decision that, in July 2015, Norway approved institutional support to YUCOM’s work, as solid, reliable organization with a clear mission, great results and one of the strongest organization of human rights defenders in the country and the region. Timenes Nordmo particularly emphasized that providing assistance to human rights defenders, is the investment in the rule of law and democracy.
Romana Schweiger, Head of the Department for the rule of law and human rights, the OSCE Mission in Serbia congratulated YUCOM on the annual report about the work that, according to Schweiger, is not only a valuable document which reflects YUCOM’s commitment to human rights, but is also very interesting overview of the situation in this field in Serbia in 2015, which is very important to the OSCE. Providing free legal aid, according to Schweiger, offers a unique insight into Serbian judicial system. Aid, that YUCOM’s lawyers provide to disempowered people, helps to compensate a serious shortfall in Serbian judicial system, and insight that YUCOM obtains by working on individual cases further strengthens the expertise and helps YUCOM to provide well-founded recommendations in the process of legal reforms. According to Schweiger, the OSCE has, in partnership with YUCOM, promoted public debate, thus she particularly emphasized the organization of round tables across the country on amending the Constitution. As another important cooperation with YUCOM, Schweiger emphasized the training of local social and health workers which was performed in the framework of the Decade of Roma Inclusion.
Monitoring of court proceedings is one of long-term projects on which OSCE cooperates with YUCOM. According to Schweiger three-year project of monitoring, funded by the EU, will be continued over the next three years, and cooperation in monitoring of the trial for corruption will be expanded to the Faculty of Law in Belgrade. Last year, as important year for many human rights issues, showed the necessity for civil society organizations to be flexible and to quickly adapt to new challenges and opportunities, such as the refugee crisis where YUCOM showed its willingness to expand its work in the area of providing free legal aid to the field of asylum and refugees. Schweiger emphasized the role of YUCOM in accession negotiations with the EU, where YUCOM ensures that the voice of civil society sectors will be taken into account. YUCOM, according to Schweiger, had a significant role in self-evaluation of Serbia in the framework of its chairmanship of the OSCE. In her conclusion, Romana Schweiger expressed her gratitude to YUCOM’s commitment to work, useful reports and expressed hope that the cooperation will be continued even in 2016.
Milan Antonijevic then gave the word to the Ombudsman, Sasa Jankovic who, at the beginning of his speech, praised the longstanding work of YUCOM in the field of citizens’ and human rights protection. Jankovic then expressed his vision of the future challenges in the work of human rights defenders where he highlighted migrant crisis and the fight against terrorism. According to Jankovic, the growth of ideologies, that are based on the negation of human rights and human rights abuses, are gaining momentum. In his conclusion, Jankovic said that YUCOM and civil society are the greatest associates of institution whose head he is, and that it is good to know that they will provide continuity to the citizens when the Ombudsman encounters difficulties in his work. Milan Antonijevic then gave the word to the colleagues from Lawyers’ Committee for Human Rights – YUCOM and from the Belgrade Centre for Human Rights.
The presentation was opened by Momcilo Zivadinovic from YUCOM who, at the beginning of his presentation emphasized that when it comes to protecting human rights, an essential subject is the global refugee crisis. According to Zivadinovic, the war in Syria and in the whole region has been going on for some years, but no one could have predicted that in 2015 there will be a huge wave of migration crisis. Many NGOs that are active in the belligerent area and in its surroundings have suggested that this might happen, but no one had paid attention to it and it had been put under the carpet. Zivadinovic expressed his gratitude to the Ambassador of Finland for the support that the Embassy of Finland gave in this field of work to Lawyers’ Committee for Human Rights.
In the opinion of Zivadinovic, great emphasis should be placed on what will be found in the books and what will become a part of history, thus in accordance with that every leader of European countries should think twice about every spoken word. YUCOM’s contribution to this subject can in the best way be achieved through Chapter 23, since YUCOM is a coordinator of the working group for this chapter. Zivadinovic emphasized that Lawyers’ Committee on this forum can provide a large number of suggestions and a proposal for improving the situation of this disprivileged group.
Ana Jankovic Jovanovic from YUCOM then took over the word presenting the legal aspects of the refugee crisis. According to Jankovic Jovanovic, in order to protect the rights of refugees, we have to start from the basic definition. A refugee is a person who, owing to justified fear of being persecuted because of his/her race, gender, language, religion, nationality or membership in a particular group or political opinion, is not in the country of his/her origin and is unable or owing to such fear, doesn’t want to be placed under the protection of that country, as well as a person who doesn’t own a citizenship and is outside the country of his/her former permanent residence, and who is unable or owing to such fear, that doesn’t want to return to that country. Jankovic Jovanovic emphasized that a person who is considered as a refugee has the right to asylum in any country where he/she wishes to have it, and that asylum can be briefly defined as providing protection to such person. Speaking about the situation in Serbia in 2015, Jankovic Jovanovic emphasized that from the beginning of the year and really poor conditions where refugees were accomodated, thanks to the recommendations of the NGOs and the Ombudsman, there happened some changes in the position of refugees and their treating. The conditions are not adequate yet, but the situation is much better.
Jankovic Jovanovic pointed out that in Serbia some cases of misdemeanor punishment of refugees have been observed despite the presence of an absolute prohibition from the United Nations Convention about the Status of Refugees which prohibits expulsion and punishment of refugees for illegal entry and stay. In the meantime, this practice stopped, and YUCOM has complimented that. According to Jankovic Jovanovic, until the end of last year, refugees were issued confirmation of clear intention to seek asylum even if they did not ask, because it was the only way to legalize their stay in the territory of Serbia for a period of 72 hours. According to Jankovic Jovanovic, Serbia had a liberal regime, which included the fact that the refugees were allowed to flow through the country, but now, with closuring the Balkan route, it has been changed.
At the end of 2015, Lawyer’s Committee for Human Rights visited the places where refugees are accomodated in Serbia, in one-stop centers in Presevo, Miratovac, Dimitrovgrad, Sid, Adasevci, in Belgrade close to the main train station and in the center for asylum in Krnjaca. According to Jankovic Jovanovic, conditions in Presevo has been improved a lot on the basis of donations from national and international organizations. When it comes to Miratovac it has also been additionally arranged and there are containers with heating bodies where refugees can be accomodated when they enter Serbia. In Dimitrovgrad, on the other side, despite the discussion about opening of the one-stop center, it has not been opened yet and the police station is used for temporary accommodation of refugees where accommodation and hygienic conditions are inadequate. Ana Jankovic Jovanovic particularly emphasized that among the refugees there is a great lack of information about their rights and obligations, and that YUCOM, in this area, had the opportunity to provide the most valuable assistance.
Zivadinovic added that there is still a large number of refugees from the former Republic of Yugoslavia in the one-stop center in Krnjaca. According to Zivadinovic, assistance that YUCOM had provided to the mother who was looking for a missing child showed that there is a lack of communication between law enforcement, as YUCOM emphasized in its statement. Zivadinovic particularly emphasized that the rate of women, children and men has changed compared to the beginning of the crisis, so now women represent the greater part of the refugee population.
Then the floor was given to Pavle Kilibarda from the Belgrade Centre for Human Rights, an organization that has been engaged in this issue for long, as this is the area of their expertise. Kilibarda started his speech noting that, whether good or bad, in some way, the refugee crisis in Europe is solved. According to Kilibarda, solving this problem it was ignored both the rule of law and the legal state. Kilibarda said that 90% of people had been coming from the so-called countries that generate refugees, and that it was actually refugee, not migrant crisis. In a kind of Copernican revolution, as Kilibarda pointed out, there is no longer discussion about the obligation of the state to protect refugees, but there is about the right of the state to protect its own borders, and even the obligation to enforce that. Kilibarda indicated that it is a legal issue and that a solution, which is in force, is a violation of international law, and at least in that part is an end of the legal state.
According to Kilibarda, from 600,000 people who passed through Serbia in 2015, only 60 of them sought asylum. The reason for the fact that only a small number of people sought asylum in Serbia is that since the adoption of the Asylum Act 2008, the plan for integration of people, who gain their right to asylum, was not adopted. The situation of people who have been granted asylum isn’t in any way different from the situation of those people who are still in the asylum procedure, who are accommodated in one-stop centers far away from big cities, without any possibility to live a normal and dignified life, without the possibility to learn Serbian. At the end of his presentation, Pavle Kilibarda pointed out, that we have a lot of work to do this year, that there are about 2,000 people stuck in Serbia, that the Ministry of Interior has intensively started with taking requests for asylum, and it cannot be guessed what will happen.
At the end of this part of the conference, Momcilo Zivadinovic emphasized that all presented data can be found in the annual report, that is available on YUCOM’s website.
The second part of the conference was opened by Antonela Riha as a moderator. Riha recalled the beginnings of Lawyers’ Committee for Human Rights and mentioned, that when she was the one who had been fired, she sought legal aid in YUCOM. Riha then gave the word to Natalija Solic, Head of the Legal Team of YUCOM. At the beginning of her presentation, Solic noted that in previous years YUCOM has achieved successes despite the obstacles of poor or unenforceable laws. According to Solic, YUCOM, since it was established, is recognized for providing free legal aid. According to her, despite some progress in passing the laws, in the judicial practice and changing ways of thinking, the number of citizens who contact YUCOM is not reduced. Solic then emphasized the importance to represent strategic cases some changes in the practices and regulations. According to Solic, the largest part of legal aid that was provided, refers to providing legal advices, which is not an easy task at all considering the fact that it includes knowing all about legal rules that regulates the particular matter. Solic particularly pointed out that vulnerable categories of people, such as people with disabilities, Roma, displaced people, people deprived of their liberty, recipients of social assistance and recently asylum seekers in Serbia are those who mostly contact YUCOM. According to Solic, the most endangered right is still the one to a fair trial and the right to trial within a reasonable time. Natalija Solic particularly emphasized the Law on The Protection of The Right to Trial within a Reasonable Time as a novelty, which came into force at the beginning of this year, noting that we should not have high expectations, but we should appreciate every effort and progress. The Law on Free Legal Aid has not been adopted yet, despite the fact that this right was guaranteed by the Constitution.
Then the floor was given to Kristina Todorovic from YUCOM noting that the Law on the Protection of the Right to Trial within a Reasonable Time is new and it is still too early to analyze and comment it due to lack of practice. Todorovic said that the Constitutional Court is the most qualified to decide on the violation of this right, and that after jurisdiction had been assigned to the directly higher court, decisions that were made were more than contradictory. In two cases YUCOM filed complaints based on the new Law on the Protection of the Right to Trial within a Reasonable Time, and decisions haven’t been made yet. According to Todorovic, YUCOM has pointed to lack of the process of deprivation of legal capacity, starting from the initiation of proceedings that deviates from the norms of the Family Law and the Law on Non-contentious Proceedings. Todorovic said that people participating in the proceedings are not questioned in court, and that the exception, provided by the law, in this regard has become the rule. The rule, that a person should be questioned by two medical experts, is not respected, and decisions are made based on documents which are, in most cases, a few years old. Little progress was made in 2014, and period of hospitalization for the duration of proceedings is reduced from three months to thirty days. With amendments, appeal against the decision on depriving a person of legal capacity was postponed and most importantly a deadline for a review of the decision, which may not be longer than three years, has been implemented,. Since 2014, when legislative amendments have entered into force, a number of procedures for the review of decisions has started up and YUCOM has a dozen cases where it has been worked on revising decisions. Unfortunately, in practice, the same situations are repeated, people are not brought to a court, and experts do the same things. YUCOM has, on several occasions, written complaints, because the whole procedure was led without the person whose legal capacity has to be decided. As an example of expertise Todorovic said that in one case the experts justified why they didn’t question a party with the fact that in their opinion the illness cannot be cured by any therapeutic methods. According to Todorovic this points to the need for substantial changes of the LNPA, which would even take into account illnesses where there cannot be ameliorated. At the end of her presentation Kristina Todorovic concluded that some changes are necessary not only in practice but also in the law in order to adjust it with the Convention on the Protection of Persons with Disabilities.
Milena Vasic from YUCOM then took the floor with her presentation on hate crimes, which, according to her, is a systemic problem that was also present as a subject in last year’s report. According to Vasic, the cases described in the report are not all registered, but they are cases that are strategically important. Describing the attack on G.M. stimulated by homophobia, Vasic said that the fast work of the police on finding the perpetrators failed when the prosecutor’s office concluded an agreement on the opportunism with the defendant, and in this case, YUCOM filed a constitutional complaint. Another case which Vasic presented is the case of attack on a LGBT activist in a cafe in the center of town, that has never reached the prosecutor’s office, considering that in addition to numerous eyewitnesses nobody wanted to testify and the police couldn’t find the perpetrators. Vasic then presented a third case, which, according to her, is a combination of hate crime and domestic violence. The case of a young man who has been physically and mentally abused by the father for a long time and been forced on curing homosexuality, it is in the two proceedings, and it did not result with an indictment in criminal proceedings despite the father’s open confession that the motive was homophobia.
The increase in the number of reports of hate crimes, Vasic interprets with raising the awareness of people about the impermissibility of violence, regardless of motive but she adds that the response of state institutions is inadequate, and that since 2012, when a hate crime was incriminated as an aggravating circumstance by Article 54a of the Criminal Code we still do not have the verdict, which refers to this article. Vasic pointed out that this is a systemic problem, and that it is required a continual work of civil society organizations and journalists to raise awareness, noting that it is not just a moral obligation of Serbia, but also obligations under the ECtHR, its practice which obligates the state to conduct an effective and efficient investigation, which will, among other things, determine the motive of hate if there is any and penalize the perpetrators.
At the end of this part Milan Antonijevic noted that the Action Plan for Chapter 23 envisages the adoption of the Law on Free Legal Aid, but on this issue assigned deadline for the adoption of law, end of 2015 was not met. Antonijevic then invited all present to ask questions and make comments.
When it was asked about the amount paid under the agreement on the opportunism in the case of the attack on G.M., Vasic replied that the prosecutor’s office did not allow access to the records of this case, and that she doesn’t have information about that. Milan Antonijevic stated that 620 million RSD were collected from the agreement on the opportunism, which implies the large number of cases that have been ended in this way. According to Antonijevic it is required one good analysis of the effects of legal provisions that allow the conclusion of an agreement which would also take into account hate crime. About this, Vasic added that the injured party in the process of concluding agreements isn’t asked, nor does not have any rights. Regarding the additional question whether there is a price list of human rights violations, Vasic replied that the only condition is that there is a sentence up to 5 years or a fine, and that YUCOM in its constitutional appeal raises the question of the importance of public interest in the case of concluding agreements on opportunism. According to Milena Vasic there are criminal offences where opportunism is quite expedient, as well as those hate crimes where the protective object is the whole society, because the victim could be anyone because of assumptive or real aspect.
Helena Vukovic from Citizen Assosiation “Egal” asked about the case where a transgender person was beaten in Valjevo, and the principle of opportunism was applied, and asked whether there is a mechanism to prevent the use of opportunism when it comes to hate crimes. Vasic in her answer stated that she hopes that the decision by the Constitutional appeal, which YUCOM impatiently expects, will make an impact on judicial practice.
Katarina Golubovic from YUCOM opened the third part and spoke about the synergy and the role of civil society in the field of regulation of freedom of assembly. Golubovic pointed to a strategic case of Women in Black assembly on March 8 where YUCOM took over to represent them in 2012 and showed all the deficiencies of The Act on Public Assembly. According to Golubovic result of all these activities is that it initiated the Constitutional Court to review constitutionality of The Act on Public Assembly. Golubovic noted that in 2015, we came into a situation that the Constitutional Court makes a decision, but the whole country does not respond to the rights, and we came to the danger that Serbia has a legal vacuum, which is always a source of legal insecurity. According to Katarina Golubovic first who reacted to the decision of the Constitutional Court and to this state of society were non-governmental organizations, there synergy of their efforts appeared and Civic Initiatives together with YUCOM called Serbia to urgently respond on this issue.
Petar Zmak from Civic Initiatives took the floor, and pointed out that only the initiation of the procedure of constitutionality review by the Constitutional Court, should be sufficient signal to the legislature that certain things need to be changed. Zmak stated that the Constitutional Court made decision on April 9, and stated that public hearing about the decision is postponed for 6 months. Unfortunately on October 9 the decision of the Constitutional Court was received without proposed alternatives and this situation lasted for several months. Public hearings weren’t held on October 9, they even were in delay. the decision of the Constitutional Court are greeted with no proposed alternatives and this situation lasted for several months. If from 9 April until 9 October we were at a major legal insecurity, then from 9 October until the date of the adoption of the law we were in one great legal security, certainty that our most basic rights are not regulated by law. According to Zmak everyone could go out on the street, and those who preach love and those who preach lynch. Zmak said that in the first draft was found lack, as restricting freedom of assembly to citizens as well as those with a personal identification number. A large number of proposals that have been made by civil society organizations during the public hearing, have been adopted, but the law still isn’t sufficiently liberal. Zmak said that formulation of the lack of political will to solve things is better than the presence of political will not to solve things. According to Zmak, the number of restricting assemblies in the past years has increased and those restrictions didn’t always come from the government, stating an example where an assembly with the Ombudsman at the Faculty of Law was prohibited. Petar Zmak also recalled other cases of prohibition, and even the detention of the activists of “Do not drown Belgrade”.
Anita Mitic from the Youth Initiative for Human Rights took the floor then, and spoke about a prohibition of the assembly 7000 which is aimed at maintaining the commemoration of the victims of Srebrenica genocide. Mitic has characterized 2015 as a year of missed opportunity, stating that other important things, which are not good, have been left in the law, such as restricting an assembly in front of the school, there is no obligation to report an assembly to national authorities, the way of regulating spontaneous assembly. According to Anita Mitic on the assembly 7000 there were around 500 people who were attacked by members of the Serbian Radical Party and members of the Serbian convocation Zavetnici. In addition to the misdemeanor charge against Mitic, for organizing the event, the other misdemeanor charge was filed against a member of the Serbian Radical Party, who had bought a fire extinguisher which is used to extinguish candles.