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Human Rights in Serbia 2017 Law, Practice and International Human Rights Standards

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Human Rights in Serbia 2017 Law, Practice and International Human Rights Standards HUMAN RIGHTS IN SERBIA 201 7 Belgrade Centre for Human Rights The Belgrade Centre for Human Rights was established by a group of human rights experts and activists in February 1995 as a non-profit, non-governmental organisation. Members and collaborators of the Centre are human rights activists of long standing, lawyers, sociologists, political scientists, journalists and students. The main purpose of the Centre is to study human rights, to disseminate knowledge about them and to educate individuals engaged in this area. It hopes, thereby, to promote the development of democracy and rule of law in Serbia. The most important fields of the work of the Centre are education, publishing, research, reporting on the state of enjoyment of hu- man rights, monitoring of the observance of human rights in Serbia and assistance to applicants to the European Court of Human Rights and international treaty bodies. Educational efforts of the Belgrade Centre are directed towards professionals who have the crucial role in carrying out the reforms of the country, as well as youn- ger generations. The Centre has organised more than five hundred seminars and roundtables in the country and in the region, established training programs for future lecturers on human rights issues and judges; hosted international conferences and lectures on issues of human rights and democracy. The Centre has also published more then 120 books. Among them are university level textbooks on human rights and public international law, collections of essays on human rights and humanitarian law, international human rights documents, translations of books of foreign authors, etc. Since 1998 Belgrade Centre for Human Right has been publishing Annual Human Rights Report. For its achievements in the area of human rights, the Centre was awarded the Bruno Kreisky Prize for 2000. The Belgrade Centre is member of the Association of Human Rights Institutes (AHRI). Series Reports 29 Series Reports HUMAN RIGHTS IN SERBIA 2017 LAW, PRACTICE AND INTERNATIONAL HUMAN RIGHTS STANDARDS Publisher The Belgrade Centre for Human Rights Kneza Miloša Str. 4, Belgrade, Tel/fax. (011) 308 5328, 344 7121 e-mail: [email protected]; www.bgcentar.org.rs For the publisher Dr. Vesna Petrović Editor Dr. Vesna Petrović Translation Duška Tomanović Cover illustration Dušan Petričić, “Jarani” ISBN 978-86-7202-189-9 Prepress and printing Dosije studio, Belgrade HUMAN RIGHTS IN SERBIA 2017 LAW, PRACTICE AND INTERNATIONAL HUMAN RIGHTS STANDARDS Belgrade Centre for Human Rights Belgrade, 2018 The translation of this report was supported by the OSCE Mission to Serbia. The views herein expressed are solely those of the authors and contributors and do not necessarily reflect the official position of the OSCE Mission to Serbia Contents Abbreviations. 13 Preface . 19 Introduction . 21 Socio-Political Climate for the Realisation of Human Rights in Serbia in 2017 . 23 Summary . 23 I. HUMAN RIGHTS IN SERBIA’S LAW . 33 1. International Human Rights Treaties and Serbia’s obligations . 33 1.1. Reports Submitted to UN Bodies . 34 1.1.1. Universal Periodic Review (UPR). 34 1.1.2. Serbia’s Periodic Reports Reviewed by UN Committees in 2017 . 35 1.2. Cevdet Ayaz Case – Unlawful Extradition to Turkey . 42 2. Serbia’s Obligations Arising from Council of Europe Membership. 44 2.1. Council of Europe Regional Treaties . 44 2.2. European Court of Human Rights and Serbia . 47 2.2.1. ECtHR Committee Decisions . 48 2.2.2. Chamber Decisions . 48 3. Human Rights in the National Legislation . 51 3.1. Constitution and International Norms. 51 3.2. Human Rights in the Serbian Constitution . 52 3.3. Legal Remedies Provided by the Serbian Legal System . 56 3.3.1. Ordinary and Extraordinary Legal Remedies in Serbia’s Legal System . 57 3.3.2. Constitutional Appeals . 59 II. INDIVIDUAL RIGHTS . 62 5 Human Rights in Serbia 2017 1. Right to Life . 62 1.1. Constitutional and International Legal Framework . 62 1.2. Serbian Laws and By-Laws Protecting the Right to Life. 64 1.2.1. Use of Firearms by Public Officials and Private Security Guards . 64 1.3. Protection of the Right to Life in Substantive and Procedural Criminal Law. 67 1.4. Right to Life Cases in 2017 . 68 2. Prohibition of Ill-Treatment . 70 2.1. Legal Framework . 70 2.2. Serbia’s Legislation and Prosecution of Perpetrators of Ill Treatment. 72 2.2.1. BPPS’ practice re extortions of confessions and torture and ill-treatment since the new CPC came into force . 74 2.2.2. Basic Courts’ Articles 136 and 137 Case-Law in the 2010–2016 . 75 2.3. Guarantees against Ill-Treatment – Rights to Third Party Notification, an Attorney and an Independent Medical Examination. 77 2.4. Respect of the Non-Refoulement Principle . 78 3. Right to Liberty and Security of Person. 80 3.1. Legal Framework . 80 3.2. Deprivation of Liberty by the Police . 83 3.2.1. Deprivation of Liberty in the Belgrade Airport Nikola Tesla Transit Zone and in the Aliens Shelter . 84 3.3. Major Developments with Respect to the Right to Liberty and Security in the Republic of Serbia in 2017. 85 3.4. Measures Ensuring the Defendants’ Presence at Trials and Unhindered Conduct of Criminal Proceedings. 90 3.4.1. Damages for Unlawful Pre-Trial Detention . 91 3.5. Penal Policy and Its Effects on the Enjoyment of the Right to Liberty and Security of Person . 93 4. Equality before the Court and Fair Trial . 97 4.1. Fair Trials and Court Efficiency . 97 4.2. Equality before the Law . 101 6 Contents 4.3. Presumption of Innocence and Other Guarantees for Criminal Defendants. 102 4.4. Notaries Public . 105 4.5. E-Justice . 106 5. Right to Privacy and Confidentiality of Correspondence . 107 5.1. Legal Framework . 107 5.2. Confidentiality of Correspondence – Legal Framework . 109 5.3. Retention of the Users’ Data and Communication Data – Access to Retained Data . 110 5.4. Families and Family Life . 114 6. Personal Data Protection and Protection of Privacy . 116 6.1. Normative Framework . 116 6.2. Draft of the Personal Data Protection Act . 117 6.3. Violations of the Right to Personal Data Protection – Practices of Data Controllers . 121 7. Freedom of Thought, Conscience and Religion . 123 7.1. Legal Framework . 123 7.2. The Relationship between the State and the Serbian Orthodox Church . 125 7.3. Financing of Religious Communities . 127 7.4. Right to Conscientious Objection . 129 8. Freedom of Peaceful Assembly . 130 8.1. International Standards and the Constitution of the Republic of Serbia. 130 8.2. Disputable Legal Provisions and Challenges in Practice . 131 8.2.1. Restrictions of the Freedom of Assembly and Legal Remedies . 134 8.2.2. Responsibilities of the Assembly Organisers and Counter- Demonstrations . 135 8.3. Right to Freedom of Peaceful Assembly in 2017. 138 8.4. The Role of the Police . 140 9. Freedom of Association . 141 9.1. Legal Framework . 141 9.2. Associations of Citizens (Non-Government Organisations). 142 7 Human Rights in Serbia 2017 9.3. Restrictions and Prohibition of the Work of Associations . 144 9.3.1. Prohibition of Events of Neo-Nazi or Fascist Organisations . 145 9.4. Impugned Provisions on Associations in the Preliminary Draft of the Civil Code. 145 9.5. CSOs’ Activities and Status in Society. 148 9.6. Association of Aliens, Civil Servants and Security Forces . 151 10. Freedom of Expression . 152 10.1. Legal Framework . 152 10.2. Privacy of Public Figures and Holders of Public Office . 154 11. Peaceful Enjoyment of Possessions . 155 11.1. Legal Framework . 155 11.2. Belgrade Waterfront Project and Property Rights – Confiscation or Expropriation . 157 11.3. Restitution and Compensation of Former Owners . 158 11.4. Violations of the Principle of Proportionality in Enforcement Proceedings . 161 11.5. Đurkić Family Case. 162 11.6. “Old” Foreign Currency Savings of Nationals of Former Yugoslav Republics. ..
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