CAT/C/26/D/113/1998

Radivoje Ristic v. Yugoslavia, Communication No.

113/1998, U.N. Doc. CAT/C/26/D/113/1998 (2001).

Communication No. 113/1998

Submitted by: Radivoje Ristic [represented by counsel]

Alleged victim: Milan Ristic (deceased)

State party: Yugoslavia

Date of communication: 22 July 1998

The Committee against Torture, established under Article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 11 May 2001,

Having concluded its consideration of communication No. 113/1998,

submitted to the Committee against Torture under article 22 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Having taken into account all information made available to it by the author

of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1. The author of the communication, dated 22 July 1998, is Mr. Radivoje

Ristic, a citizen of Yugoslavia, currently residing in Šabac, Yugoslavia. He

claims that an act of torture resulting in the death of his son, Milan Ristic,

was committed by the police and that the authorities have failed to carry out

a prompt and impartial investigation. The communication was transmitted to

the Committee, on behalf of Mr. Ristic, by the Humanitarian Law Center, a

non-governmental organization based in Belgrade.

The facts as submitted by the author

2.1 The author alleges that on 13 February 1995 three policemen (Dragan

Riznic, Uglješa Ivanovic and Dragan Novakovic) arrested Milan Ristic in

Šabac while looking for a murder suspect. One of the officers struck his son

with a blunt object, presumably a pistol or rifle butt, behind the left ear,

killing him instantly. The officers moved the body and, with a blunt

instrument, broke both thighbones. It was only then that they called an

ambulance and the on-duty police investigation team, which included a

forensic technician.

2.2 The policemen told the investigators that Milan Ristic had committed

suicide by jumping from the roof of a nearby building and that they had an

eyewitness to that effect (Dragan Markovic). The medical doctor who came

with the ambulance pronounced Milan Ristic dead. The ambulance then left,

leaving the body to be collected by a mortuary van. The author claims that

after the departure of the ambulance the policemen struck the deceased on

the chin, causing injury to his face.

2.3 The author provides a copy of the autopsy report, which concluded that

the death was violent and caused by an injury to the brain as a result of a fall

on a hard surface. The fall also explained the fractures described in the

report. The author also provides a copy of the report by the doctor who came

with the ambulance. That report says: "By exterior examination I found

weak bleeding from the injury behind the left ear. Through the trousers

above the right knee an open fracture of thighbone could be seen with small

blood signs; around the wound there were no traces of blood."

2.4 The author contends that the medical reports do not fully tally with each

other. The ambulance doctor explicitly states that he noticed no injuries on

the face while the autopsy report lists a laceration and bruise on the chin. He

challenges the reports, noting that it is hardly possible that a person could

fall from a height of 14.65 metres without suffering any injury to the face,

heels, pelvis, spine or internal organs and without internal haemorrhaging,

leaving only bruises on the left elbow and behind the left ear. Moreover, he

notes that there was no blood on the ground.

2.5 At the request of the parents, two forensic experts examined the autopsy

report and found it superficial and contradictory, especially in the part

referring to the cause of death. According to their report, the autopsy was

not performed in accordance with the principles of forensic and medical

science and practice and the conclusion is not in agreement with the

findings. They proposed the exhumation of the remains and another autopsy

by a forensic expert. The author further states that on 16 May 1995 they

spoke with the pathologist who had performed the autopsy and visited the

alleged scene of the incident. They noted that the autopsy report and the

scene had nothing in common, which suggested that the body had been

moved. In a written statement dated 18 July 1995 addressed to the Public

Attorney's Office, the pathologist agreed that the remains should be

exhumed for forensic examination and pointed out that, as he was not a

specialist in forensic medicine, he might have made a mistake or missed

some details.

2.6 The parents of the victim filed criminal charges against a number of

police officers before the Public Prosecutor in Šabac. On 19 February 1996,

the Public Prosecutor dismissed the charges. Under Yugoslav law, following

dismissal of a criminal complaint, the victim or the person acting on his

behalf may either request the institution of investigative proceedings or file

an indictment and proceed directly to trial. In the present case, the parents

presented their own indictment on 25 February 1996.

2.7 The investigating judge questioned the policemen allegedly involved as

well as witnesses and found no grounds for believing that the alleged

criminal offence had been committed. The Criminal Bench of the Šabac

District Court endorsed the investigating judge's decision. The Court did not

find it necessary to hear the testimony of the two forensic experts and did

not consider the possibility of ordering an exhumation and a new autopsy.

Besides, the investigating judge delivered to the parents an unsigned

statement which the pathologist allegedly made in court when they were not

present and which contradicts the one he had made in writing on 18 July

1995. The author further explains that, in addition to the medical

contradictions, there were many other conflicting facts that the judicial

investigation failed to clarify.

2.8 The parents appealed the decision of the District Court to the Serbian

Supreme Court, which on 29 October 1996 dismissed the appeal as

unfounded. According to the ruling, the testimony of Dragan Markovic

showed without any doubt that Milan Ristic was alive at the time when

police officers Sinisa Isailovic and Zoran Jeftic appeared in front of the

building in which Mr. Markovic lived. They were responding to a telephone

call from a person named Zoran Markovic who had noticed a man at the

edge of the terrace from whose behaviour it could be concluded that he was

about to commit suicide. Dragan Markovic and the two policemen actually

saw Milan Ristic jump from the terrace. There was nothing they could do to

stop him.

2.9 The parents again tried to bring the case before the judiciary, but on 10

February 1997 the Šabac District Court ruled that prosecution was no longer

possible in view of the decision of the Supreme Court of Serbia. On 18

March 1997, the Supreme Court dismissed their further appeal and

confirmed the District Court's ruling.

The complaint

3.1 The author considers that first the police and, subsequently, the judicial

authorities failed to ensure a prompt and impartial investigation. All

domestic remedies were exhausted without the court ever having ordered or

formally instituted proper investigative proceedings. The preliminary

investigation by the investigating judge, which consisted of questioning of

the accused and some witnesses, did not produce sufficient information to

clarify the circumstances of the death and the court never ordered a forensic

examination. The court did not order either the hearing of other witnesses,

such as the employees of the funeral home, whose testimony could have

been relevant to establish the chronology of events. The author further

contends that the investigation was not carried out in accordance with the

provisions of the Criminal Procedure Code. For instance, the police failed to

inform the investigating judge immediately of the incident, although obliged

to do so by article 154. The entire on-site investigation was therefore

conducted by the police without the presence of a judge. The author further

contends that every action aimed at clarifying the incident was initiated by

the parents of Milan Ristic and that the competent government bodies failed

to take any effective steps to that end.

3.2 On the basis of the above, the author claims that the State party has

violated several articles of the Convention, in particular articles 12, 13 and

14. He states that although the parents had the possibility of seeking

compensation, the prospect of their being awarded damages was de facto

non-existent in the absence of a criminal court judgement.

Observations by the State party

4. On 26 October 1998 the State party informed the Committee that,

although all domestic remedies had been exhausted, the communication

does not fulfil other necessary conditions provided for by the Convention. It

stated, in particular, that no act of torture had been committed, since the

deceased did not have any contact at all with State authorities - the police.

Accordingly, the communication was not admissible.

The Committee's decision on admissibility

6. At its twenty-second session, in April-May 1999, the Committee

considered the question of the admissibility of the communication and

ascertained that the same matter had not been and was not being examined

under another procedure of international investigation or settlement. The

Committee noted the State party's statement that all domestic remedies had

been exhausted, and considered that the communication was not an abuse of

the right of submission or incompatible with the provisions of the

Convention. The Committee therefore decided, on 30 April 1999, that the

communication was admissible.

The State party's observations on the merits

7.1 In a submission dated 15 December 1999, the State party gave to the

Committee its observations on the merits of the communication.

7.2 The State party reiterates its opinion that the alleged victim was not

subjected to torture because he had at no time been in contact with the law

enforcement officers, i.e. the police officers. It therefore considers that there

is no violation of the Convention whatsoever.

7.3 The State party also underlines that the courts of its country operate

independently and have concluded rightfully and in accordance with the law

that no investigation should be initiated against the alleged authors of the

acts of torture. It points in this regard to the fact that the author of the

communication has not submitted all the court decisions and other judicial

documents that may bring some additional light to the Committee's

consideration of the communication. The said documents were submitted to

that effect by the State party.

7.4 The State party then gave its version of the facts. First, it alleges that the

alleged victim took alcohol and drugs (Bromazepan) and had already tried to

commit suicide some time before. During the afternoon preceding his death,

on 12 February 1995, the alleged victim had taken some drugs (in the form

of pills) and was in a very bad mood because of an argument he had had

with his mother. These elements were, according to the State party,

confirmed by four of his friends who spent the afternoon of 12 February

1995 with the alleged victim. The State party also notes that the parents and

girlfriend of the alleged victim stated exactly the contrary.

7.5 With respect to the events surrounding the death of the alleged victim,

the State party refers to the statement made by the eyewitness, Dragan

Markovic, who explained that he had seen the victim standing on the edge

of the terrace, 15 metres from the ground and immediately called the police.

When the police arrived, the victim jumped from the terrace and neither

Dragan Markovic nor the police could prevent it. The State party notes also

that the three policemen who are accused of the alleged murder of the victim

arrived on the premises after the victim had jumped and therefore concludes

that none of them could have taken any action.

7.6 The above elements demonstrate, according to the State party, that the

death of the alleged victim was the result of a suicide and that no acts of

torture had therefore been committed.

7.7 Moreover, the State party notes that the impartiality of witness Dragan

Markovic, as well as of S. Isailovic and Z. Jetvic, the two police officers

who arrived first on the scene, is indisputable and confirmed by the fact that

the request for an investigation filed by the author of the communication

was directed not against these persons but others.

7.8 Concerning the judicial proceedings that followed the death of the

victim, the State party recalls the various steps of the procedure and notes

that the main reason that an investigation had not been ordered was the lack

of strong evidence to prove a causal link between the behaviour of the three

defendant police officers and the death of the victim. The State party

contends that the procedure has been scrupulously respected at all steps and

that the complaint has been carefully considered by all the magistrates who

have had to deal with the case.

7.9 Finally, the State party emphasizes that certain omissions that may have

occurred during the events immediately following the death of the alleged

victim and that have been referred to by the author of the communication

were not important because they do not prove that the alleged victim died as

a result of torture.

Comments submitted by the author on the merits

8.1 In a submission dated 4 January 1999, the author refers to relevant

jurisprudence of the European Court of Human Rights. In a further

submission dated 19 April 2000, the author confirmed the assertions he had

made in his communication and gave to the Committee additional

observations on the merits of the communication.

8.2 The author first makes some remarks on specific issues raised or ignored

by the State party in its observations. In this regard, the author mainly points

to the fact that the State party limited itself to arguing that the three police

officers allegedly responsible for the murder were not involved in the death

of the alleged victim and fails to address the main issue of the

communication, which is the failure to carry out a prompt, impartial and

comprehensive investigation.

8.3 The author focuses on the following factual elements supporting his

claim:

(a) The inspector in charge of the case took three months to collect the

information needed for the investigation;

(b) The District Court was only requested to initiate an investigation seven

months after the death of the alleged victim;

(c) The District Court failed to take as a starting point for establishing the

relevant facts the police report that had been made at the time of the death;

(d) The eyewitness Dragan Markovic did mention in his only statement the

presence at the scene of police officers Z. Jeftic and S. Isailovic and not the

presence of the three defendant police officers;

(e) The Šabac Police Department failed to provide the photographs taken at

the scene of the incident, as a result of which the investigating judge

transmitted incomplete documentation to the public prosecutor;

(f) When the parents of the alleged victim proceeded in the capacity of

private prosecutor, the investigating judge failed to order the exhumation of

the body of the alleged victim and a new autopsy, at the same time agreeing

that the original autopsy "had not been performed in line with all the rules of

forensic medicine";

(g) Yugoslav prosecuting authorities failed to hear numerous other witnesses

proposed by the author.

8.4 Regarding the State party's contention that the alleged victim had

previously attempted to commit suicide, the author indicates that the State

party does not substantiate its claim with medical records or police reports,

which are usually available in such cases. With regard to other rumours

concerning the alleged victim, inter alia that he was addicted to drugs, the

author notes that they have always been denied by the family. The author

does not know when or whether the four friends of his son were interrogated

and neither he nor his lawyer was ever notified of such an interrogation.

Moreover, the author notes that three of these witnesses may have been

subjected to pressure and influenced for various reasons.

8.5 Concerning the obligation to investigate incidents of torture and cruel,

inhuman or degrading treatment or punishment, the author refers to the

jurisprudence of the Committee in the case Encarnación Blanco Abad v.

Spain (CAT/C/20/D/59/1996), where the Committee observed that "under

article 12 of the Convention, the authorities have the obligation to proceed

to an investigation ex officio, wherever there are reasonable grounds to

believe that acts of torture or ill-treatment have been committed and

whatever the origin of the suspicion". He also refers to the decision in the

case Henri Unai Parot v. Spain (CAT/C/14/D/6/1990), according to which

the obligation of a prompt and impartial investigation exists even when

torture has merely been alleged by the victim, without the existence of a

formal complaint. The same jurisprudence is confirmed by the European

Court

of

Human

Rights

(Assenov

and

Others

v.

Bulgaria (90/1997/874/1086)).

8.6 Concerning the principle of prompt investigation of incidents of alleged

torture or other ill-treatment, the author refers to the Committee's

jurisprudence stating that a delay of 15 months before the initiation of an

investigation is unreasonable and contrary to article 12 of the Convention

(Qani Halimi-Nedzibi v. Austria, CAT/C/11/D/8/1991).

8.7 Concerning the principle of the impartiality of the judicial authorities,

the author states that a body cannot be impartial if it is not sufficiently

independent. He refers to the case-law of the European Court of Human

Rights to define both the impartiality and the independence of a judicial

body in accordance with article 6 (1) and 13 of the European Convention on

Human Rights and underlines that the authority capable of providing a

remedy should be "sufficiently independent" from the alleged responsible

author of the violation.

8.8 Concerning the existence of reasonable grounds to believe that an act of

torture or other ill-treatment has been committed, the author, again relying

on the jurisprudence of the European Court of Human Rights, points to "the

existence of facts or information which would satisfy an objective observer

that the person concerned may have committed the offence".

8.9 Concerning the principle of compensation and rehabilitation for an act of

torture or other ill-treatment, the author mentions that an effective remedy

entails also the payment of compensation.

8.10 The author stresses that, at the time of his submission, five years had

already elapsed since his son's death. He contends that, notwithstanding

strong indication that grave police brutality had caused the death of Milan

Ristic, the Yugoslav authorities have failed to conduct a prompt, impartial

and comprehensive investigation able to lead to the identification and

punishment of those responsible, and have thus failed to provide the author

with any redress.

8.11 Relying on a significant amount of sources, the author explains that

police brutality in Yugoslavia is systematic and considers that public

prosecutors are not independent and rarely institute criminal proceedings

against police officers accused of violence and/or misconduct towards

citizens. In such cases, the action is very often limited to a request for

information directed to the police authorities alone and the use of dilatory

tactics is common.

8.12 Finally, the author specifically refers to the most recent examination of

the periodic report submitted by Yugoslavia to the Committee and the

latter's subsequent concluding observations, in which it stated that it was

"extremely concerned over the numerous accounts of the use of torture by

the State police forces that it has received from non-governmental

organizations" (A/54/44, para. 46) and "gravely concerned over the lack of

sufficient investigation, prosecution and punishment by the competent

authorities … of suspected torturers or those breaching article 16 of the

Convention, as well as with the insufficient reaction to the complaints of

such abused persons, resulting in the de facto impunity of the perpetrators of

acts of torture" (ibid., para. 47).

Issues and proceedings before the Committee

9.1 The Committee has considered the communication in the light of all

information made available to it by the parties concerned, in accordance

with article 22, paragraph 4, of the Convention. It regrets in this regard that

the State party has only provided the Committee with a different account of

the event, and notes that more precise information concerning the conduct of

the investigation was necessary, including an explanation of why a new

autopsy was not carried out.

9.2 It also notes that the author of the communication claims that the State

party has violated articles 2, 12, 13, 14 and 16 of the Convention.

9.3 With regard to articles 2 and 16, the Committee first considers that it

does not fall under its mandate to assess the guilt of persons who have

allegedly committed acts of torture or police brutality. Its competence is

limited to considering whether the State party has failed to comply with any

of the provisions of the Convention. In the present case, the Committee will

therefore not pronounce itself on the existence of torture or ill-treatment.

9.4 With regard to articles 12 and 13 of the Convention, the Committee

notes the following elements, on which both parties have been able to

submit observations:

(a) There are apparent differences and inconsistencies between the statement

made on 18 August 1995 by the doctor who came with the ambulance as to

the premise of the cause of death of the alleged victim, the autopsy report of

13 February 1995 and the report made on 20 March 1995 by two forensic

experts at the request of the parents of the alleged victim;

(b) Although the investigating judge in charge of the case when the parents

of the alleged victim proceeded in the capacity of private prosecutor stated

that the autopsy "had not been performed in line with all the rules of

forensic medicine", there was no order of exhumation of the body for a new

forensic examination;

(c) There is a difference between the statement made on 13 February 1995

by one of the three police officers allegedly responsible for the death of the

alleged victim according to which the Police Department had been called for

a person who had committed suicide and the statements made by another of

the above-mentioned police officers, as well as by two other police officers

and the witness D. Markovic, according to which the Police Department had

been called for a person who might jump from the roof of a building;

(d) The police did not immediately inform the investigating judge on duty of

the incident in order for him to oversee the on-site investigation in

compliance with article 154 of the Code of Criminal Procedure of the State

party.

9.5 Moreover, the Committee is especially concerned by the fact that the

doctor who carried out the autopsy admitted in a statement dated 18 July

1995 that he was not a specialist in forensic medicine.

9.6 Noting the above elements, the Committee considers that the

investigation that was conducted by the State party's authorities was neither

effective nor thorough. A proper investigation would indeed have entailed

an exhumation and a new autopsy, which would in turn have allowed the

cause of death to be medically established with a satisfactory degree of

certainty.

9.7 Moreover, the Committee notes that six years have elapsed since the

incident took place. The State party has had ample time to conduct a proper

investigation.

9.8 In the circumstances, the Committee finds that the State party has

violated its obligations under articles 12 and 13 of the Convention to

investigate promptly and effectively allegations of torture or severe police

brutality.

9.9 With regard to allegations of a violation of article 14, the Committee

finds that in the absence of proper criminal investigation, it is not possible to

determine whether the rights to compensation of the alleged victim or his

family have been violated. Such an assessment can only be made after the

conclusion of proper investigations. The Committee therefore urges the

State party to carry out such investigations without delay.

10. In pursuance of rule 111, paragraph 5, of its rules of procedure, the

Committee urges the State party to provide the author of the communication

with an appropriate remedy, and to inform it, within 90 days from the date

of the transmittal of this decision, of the steps it has taken in response to the

observations made above.