HUMAN RIGHTS IN SERBIA 2016 Belgrade Centre for Human Rights Series Reports 28 Series Reports HUMAN RIGHTS IN SERBIA 2016 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 Marcos Moreno, Refugees – Serbia, 09.01.2017 www.marcosmoreno.com ISBN 978-86-7202-175-2 Prepress and printing Dosije studio, Belgrade HUMAN RIGHTS IN SERBIA 2016 LAW, PRACTICE AND INTERNATIONAL HUMAN RIGHTS STANDARDS Belgrade Centre for Human Rights Belgrade, 2017 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 Research Methodology . 21 Realisation of Human Rights in Serbia 2016 – Social and Political Setting . 23 SUMMARY . 29 International Human Rights Bodies and Serbia. 29 Human Rights in National Legislation. 29 Constitutional reform . 30 Legal Remedies Provided by the Serbian Legal System. 31 Activities of State and Independent Authorities Charged with Protecting Constitutionality and Human Rights . 32 Judiciary and Human Rights Protection – Reach of the Judicial Reform . 33 Suspension of the Rule of Law and Serbia’s Legal Order – the Savamala Case . 36 Independent Regulatory Authorities. 37 Right to Life . 38 Prohibition of Ill-Treatment and Status of Persons Deprived of Liberty . 39 Right to Liberty and Security of Person . 40 Equality before the Court and Fair Trial . 41 Right to Privacy and Confidentiality of Correspondence . 43 Personal Data Protection and Protection of Privacy . 43 Freedom of Thought, Conscience and Religion. 45 Freedom of Expression. 46 Freedom of Peaceful Assembly . 48 Freedom of Association . 50 Elections in 2016 . 51 5 Human Rights in Serbia 2016 Right to Peaceful Enjoyment of Possessions. 53 Right to Work . 53 Right to Just and Favourable Conditions of Work. 55 Right to Social Security . 57 Right to Education . 58 Health Care. 58 National Minorities and Minority Rights. 59 Status of Roma . 61 LGBTI Rights. 62 Human Rights of Persons with Disabilities . 64 Gender Equality and Special Protection of Women. 65 Status of the Elderly . 67 Migrants, Refugees and Asilym Seekers – Migrant Crisis and Its Effects on Serbia . 68 I. HUMAN RIGHTS IN SERBIA’S LAW AND WORK OF ITS INSTITUTIONS . 71 1. International Human Rights Treaties and Serbia . 71 1.1. Universal Human Rights Treaties . 71 1.2. Council of Europe Regional Treaties . 73 1.3. Applications against Serbia before the European Court of Human Rights in 2016 . 74 1.3.1. Statistics . 74 1.3.2. Selected ECtHR Judgments with Respect to Serbia Delivered in 2016. 74 2. Correlation between National and International Law. 80 3. Human Rights in the National Legislation . 81 3.1. Human Rights in the Serbian Constitution and Room for Improvement . 81 3.2. Restrictions and Derogations of Human rights. 85 4. Legal Remedies Provided by the Serbian Legal System . 86 4.1. Ordinary and Extraordinary Legal Remedies in Serbia’s Legal System. 87 4.2. Constitutional Appeals . 89 5. Activities of State and Independent Authorities Charged with Protecting Constitutionality and Human Rights. 91 6 Contents 5.1. Role of the Constitutional Court of Serbia in Protecting Constitutionality, Legality and Human Rights . 91 5.1.1. Composition and Election of Its Judges . 91 5.1.2. Reviews of Constitutionality and Legality . 93 5.2. Judiciary and Human Rights Protection – Reach of the Judicial Reform. 94 5.2.1. (Un)Successful Judicial Reform – Status of the Judiciary . 94 5.2.2. Organisation of Courts. 97 5.2.3. Independence and Impartiality of Courts . 100 5.2.4. Election and Appointment of Judges. 101 5.2.5. Termination of Judicial Office and Disciplinary Proceedings . 105 5.2.6. Guarantees of Judicial Independence . 106 5.2.7. Constitutional Status of the Public Prosecution Services in Serbia . 107 5.2.8. Election of Public Prosecutors and Deputy Public Prosecutors . 110 5.2.9. Pressures on the Judiciary . 113 5.2.10. Suspension of the Rule of Law and Serbia’s Legal Order – the Savamala Case . 116 5.3. Independent Regulatory Authorities . 118 5.3.1. Protector of Citizens of the Republic of Serbia . 119 5.3.2. Commissioner for Information of Public Importance and Personal Data Protection . 123 5.3.3. Commissioner for the Protection of Equality . 127 II. INDIVIDUAL RIGHTS . 129 1. Right to Life . 129 1.1. Protection of the Right to Life in Serbian Law . 129 1.2. Use of Firearms. 130 1.3. Penal Policy and Protection of the Right to Life . 133 1.4. Obligation to Effectively Investigate Violations of the Right to Life . 135 2. Prohibition of Ill-Treatment and Status of Persons Deprived of Liberty. 140 2.1. General . 140 2.2. Torture – Definition, Penalties and Prescriptibility . 141 2.3. Legal Framework for the Prosecution of Perpetrators of Torture and Ill-Treatment and the Practices of the Judicial Authorities . 144 7 Human Rights in Serbia 2016 2.4. Use of Force by State Agents . 147 2.5. Observance of the Non-Refoulement Principle and the Prohibition of Collective Expulsion . 150 3. Right to Liberty and Security of Person. 152 3.1. General . 152 3.2. Deprivation of Liberty by the Police . 153 3.2.1. Deprivation of Liberty in the Belgrade Airport “Nikola Tesla” Transit Zone . 155 3.2.2. Deprivation of Liberty in the Aliens Shelter . 156 3.3. Measures Ensuring the Defendants’ Presence at Trials and Unhindered Conduct of Criminal Proceedings. 156 3.3.1. Damages for Unlawful Detention . 157 3.4. Penal Policy and Its Effects on the Enjoyment of the Right to Liberty and Security of Person . 160 4. Equality before the Court and Fair Trial . 165 4.1. Fair Trials . 165 4.2. Court Efficiency . 166 4.3. Trial within a Reasonable Time . ..