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Human Rights in Serbia 2018 Law, Practice and International Human Rights Standards

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Human Rights in Serbia 2018 Law, Practice and International Human Rights Standards HUMAN RIGHTS IN SERBIA 201 8 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 15 0 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 31 Series Reports HUMAN RIGHTS IN SERBIA 2018 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 Sonja Tošković Editor Dr. Vesna Petrović Translation Duška Tomanović Cover illustration Marija Janković ISBN 978-86-7202-199-8 Prepress and printing Dosije studio, Belgrade HUMAN RIGHTS IN SERBIA 2018 LAW, PRACTICE AND INTERNATIONAL HUMAN RIGHTS STANDARDS Belgrade Centre for Human Rights Belgrade, 2019 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. 17 Introduction. 19 Serbia’s EU Accession Efforts and (Un)Democratic Conditions for the Realisation of Human Rights in Serbia in 2018 . 21 1. Serbia’s EU Accession Efforts . 21 2. Exercise of Human Rights in Serbia in 2018 in the Absence of Dialogue and Democratic Procedures. 25 I. HUMAN RIGHTS IN SERBIA’S LAW . 31 1. Serbia’s Obligations Deriving from UN Membership and Ratified International Human Rights Treaties . 31 1.1. Universal Periodic Review (UPR). 32 1.2. Serbia’s Obligations to Treaty Committees . 35 1.2.1. Cevdet Ayaz Case . 36 2. Serbia’s Obligations Arising from Council of Europe Membership. 36 2.1. European Court of Human Rights and Serbia . 36 2.2. Report of the Council of Europe Group of States against Corruption (GRECO). 37 2.3. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) . 38 2.4. Other Council of Europe Conventions Binding on Serbia. 40 3. Human Rights in National Legislation . 41 3.1. Constitution and International Norms . 41 3.2. Human Rights in the Serbian Constitution. 42 3.3. Legal Remedies Provided by the Serbian Legal System . 46 3.3.1. Ordinary and Extraordinary Legal Remedies in Serbia’s Legal System . 46 3.3.2. Constitutional Appeals. 49 5 Human Rights in Serbia 2018 II. INDIVIDUAL RIGHTS . 52 1. Prohibition of Torture . 52 1.1. Introduction. 52 1.2. The Concepts of Torture and Inhuman and Degrading Treatment and Punishment in the National Legal System. 53 1.3. National Case-Law on Torture and Ill-Treatment . 54 1.4. Guarantees against Ill-Treatment – Rights to Third Party Notification, a Lawyer and an Independent Medical Examination . 55 1.5. Respect of the Non-Refoulement Principle. 56 2. Right to Liberty and Security of Person . 58 2.1. Legal Framework. 58 2.2. Major Developments with Respect to the Right to Liberty and Security in the Republic of Serbia in 2018 . 62 2.3. Measures Ensuring the Defendants’ Presence at Trials and Unhindered Conduct of Criminal Proceedings . 63 2.3.1. Damages for Unlawful Pre-Trial Detention . 64 2.4. Penal Policy and Its Effects on the Enjoyment of the Right to Liberty and Security of Person. 65 3. Equality before the Court and Fair Trial. 70 3.1. Fair Trials and Court Efficiency . 70 3.2. Public Character of Court Hearings. 70 3.3. Equality before the Law and Equal Legal Protection. 71 3.3.1. Legal Aid Act . 71 3.4. Case-Law Harmonisation. 73 3.5. Judicial Efficiency and Length of Proceedings . 75 3.6. Right to a Trial within a Reasonable Time . 77 3.7. Dismissal of Cases as Time Barred. 79 3.8. Presumption of Innocence and Other Guarantees for Criminal Defendants . 80 3.9. E-Justice . 82 4. Right to Privacy and Confidentiality of Correspondence . 82 4.1. Legal Framework. 82 4.2. Confidentiality of Correspondence – Legal Framework. 84 6 Contents 4.3. Retention of the Users’ Data and Communication Data – Access to Retained Data. 85 4.4. Families and Family Life . 86 5. Personal Data Protection and Protection of Privacy. 90 5.1. Normative Framework . 90 5.2. New Personal Data Protection Act. 91 6. Right to Free Access to Information of Public Importance . 96 6.1. Amendments to the Free Access to Information of Public Importance Act. 96 6.2. Realisation of the Right to Free Access to Information of Public Importance . 98 7. Freedom of Thought, Conscience and Religion. 102 7.1. Legal Framework. 102 7.2. Financing of Religious Communities. 105 7.3. Activities of Religious Communities in Serbia. 108 7.4. The Relationship between the State and the Serbian Orthodox Church . 110 7.5. Right to Conscientious Objection . 112 8. Freedom of Peaceful Assembly. 113 8.1. Legal Framework. 113 8.1.1. Restrictions of the Freedom of Assembly . 114 8.1.2. Legal Remedies . 115 8.1.3. Responsibilities of the Assembly Organisers and Counter-Demonstrations . 116 8.1.4. The Role of the Police. 118 8.2. Right to Freedom of Peaceful Assembly in 2018 . 119 9. Freedom of Association . 123 9.1. Legal Framework. 123 9.1.1. Prohibition of Events of Neo-Nazi or Fascist Organisations . 124 9.2. CSOs’ Activities and Status in Society in 2018. 125 9.2.1. Civil Sector Engagement in Public Debates and Establishment of New Pro-Government Civic Associations . 126 9.2.2. Anti-NGO Campaigns . 129 9.2.3. Campaigns against Humanitarian Foundations. 131 9.3. Association of Aliens . 132 7 Human Rights in Serbia 2018 10. Electoral Rights and Political Participation . 133 10.1. Legal Framework. 133 10.2. Local Elections in Serbia in 2018 – (Un)Fair and (Un)Democratic . 135 10.3. Participation in the Conduct of Public Affairs and Democratisation . 139 11. Right to Work . 140 11.1. Legal Framework. 140 11.2. European.
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