HUMAN RIGHTS COMMITTEE CONSIDERS SECOND PERIODIC REPORT OF BOSNIA AND HERZEGOVINA
23 October 2012
The Human Rights Committee this morning concluded its consideration of the second periodic report of Bosnia and Herzegovina on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Saliha Đuderija, Ministry for Human Rights and Refugees of Bosnia and Herzegovina, introduced the report and said that the report referred to the list of issues raised by the Committee, including Constitutional amendments, implementation of decisions by the European Court for Human Rights, domestic violence, judicial reform, training of judges, and others. Bosnia and Herzegovina had tried to prosecute all perpetrators of war crimes on a local level, bring justice to the victims and made progress in the search for missing persons. However, the solution for restitution and compensation to victims of war time torture had not yet been found, regardless of enactment of the Law for Victims of Torture.
The Committee welcomed the renewed commitment of Bosnia and Herzegovina to the complex issue of prosecution of war criminals and the National War Crimes Processing Strategy and asked how resistance to criminal justice for war crimes was being handled. The Experts noted that tools were lacking to unblock the political inertia which stopped the progress in Bosnia and Herzegovina and that efforts needed to be taken to align the Constitution with the Covenant. Justice for victims of sexual violence, particularly war time victims was an area of concern for the Committee, as it seemed that very little support had been provided to women raped during the war. Other issues raised in the discussion were transitional justice, the search for missing persons, support provided to families and conditions in prison facilities including prison violence, protection of national minorities and the scope of the 2009 Law on Anti-Discrimination.
In her closing remarks, Ms. Đuderija thanked the Experts, whose questions helped in making progress in Bosnia and Herzegovina and expressed the hope that the next examination of Bosnia and Herzegovina would be an opportunity to present an even better situation in the country.
Fabian Omar Salvioli, Committee Vice-Chairperson, said in his preliminary closing observations that the interactive dialogue was an opportunity for the delegation to hear the concerns by the members of the Committee, which would also be included in concluding observations. Mr. Salvioli expressed hope that Bosnia and Herzegovina would continue to respect its obligations from the International Covenant on Civil and Political Rights in good faith.
The delegation of Bosnia and Herzegovina included representatives of the Ministry for Human Rights and Refugees, the Ministry of Civil Affairs, the Ministry of justice and the Communications Regulatory Agency of Bosnia and Herzegovina.
The next public meeting of the Human Rights Committee will be at 3 p.m. today, 23rd October, when it will consider the fourth periodic report of Portugal (CCPR/C/PRT/4).
The second periodic report of Bosnia and Herzegovina can be read here: (CCPR/C/BIH/2).
Presentation of the Report
SALIHA ĐUDERIJA, Ministry of Human Rights and Refugees, said that the concluding observations issued by the Committee upon the presentation of the initial report of Bosnia and Herzegovina had noted a number of issues of concern and those were the basis for the preparation of the second periodic report, in consultation with civil society. Upon its approval by the Council of Ministers in November 2010, the report had been posted on the website of the Ministry for comments. The list of issues raised by the Committee included Constitutional amendments, implementation of decisions of the European Court for Human Rights, judicial reform and training of judges, transitional justice strategy, gender mainstreaming and improvements in the establishment of legal framework for increased participation of women. With regard to domestic violence, Ms. Đuderija said that the questions asked referred to the legal framework and the activities undertaken to combat the problem. Bosnia and Herzegovina tried to prosecute all perpetrators of war crimes on the local level and bring justice to the victims. In terms of the search for missing persons, progress had been made in some areas, while challenges and obstacles continued to persist in others. Laws had been enacted for victims of torture, but the solution for restitution and compensation to victims of war time torture had not yet been found.
Bosnia and Herzegovina lacked funds to assist socially vulnerable groups, particularly those at risk; and implementing reforms in this domain has proven to be rather difficult because of the decentralized nature of the system. Turning to human trafficking, Ms. Đuderija noted that Bosnia and Herzegovina was facing organized crime in this regard, which had slowed down progress in combating the phenomenon. Bosnia and Herzegovina was striving to get the best solution possible in the implementation of Annex VII for those who still wished to return. The Roma were the most vulnerable minority in Bosnia and Herzegovina and the Government was implementing an action plan to improve their situation in housing, education and health care. The process of relocation of Butmir settlement had not been completed, mainly because many Roma families did not want to stay in the newly built housing provided. Bosnia and Herzegovina had ratified the European Charter for Regional or Minority Languages. Decisions by the Constitutional Court relating to anthem, flag and coat of arms had been enforced, although the Federation has not yet chosen a new coat of arms.
Questions by Experts
IULIA ANTOANELLA MOTOC, Committee Rapporteur for the report of Bosnia and Herzegovina, asked about the knowledge of the International Covenant on Civil and Political Rights by judges in Bosnia and Herzegovina, training of judges in the provisions of the Covenant and the use of those provisions in court decisions. There was a discrepancy in information provided by the Government and those provided by non-governmental organizations, for example in the number of missing persons or figures related to Roma; could the delegation explain how the Government worked with non-governmental organizations and families of missing persons. Was psychological support provided to families of missing persons who were found? Bosnia and Herzegovina seemed reluctant to implement the Constitutional Court decisions, for example those regarding missing persons.
There were different models of transitional justice, and Bosnia and Herzegovina tried to establish Commissions many years ago, but this did not seem to work; there had been no tangible results from the efforts on transitional justice. Another area of concern was justice for victims of sexual violence, particularly war time victims; very little support had been provided to women raped during the war, in terms of psychological support and assistance for social integration. The situation seemed to be particularly grave for victims of sexual violence in Republika Srpska who would go to Bosnia to obtain support. What was being dome to harmonize payments to victims of war between the entities?
Another Expert noted that the Office of the Ombudsperson received 3,700 complaints per year and asked how many complaints were processed by the Ombudsperson and what kind of mechanism existed in the Office to ensure follow up. Turning to the Gender Equality Agency, the Expert asked about its structure and staffing, how individuals and groups could avail themselves of their right to file a complaint with the Agency and how many of those complaints were processed. Bosnia and Herzegovina was unable to adopt the law prohibiting the existence of fascist organizations; what plans were in place to adopt the law prohibiting creation of racist and xenophobic organizations?
Committee Experts commended Bosnia and Herzegovina for the creation of the 2009 Law on Anti-Discrimination and asked about its scope and grounds for discrimination, including gender and sexual orientation; whether it related to both the public and private sphere; its relation to the Law on Gender Equality which had been adopted earlier; the mechanism to ensure discharge of the obligation and the duty of all public bodies to fight discrimination; the “Rule Book”; and measures to ensure that the Law didn’t remain a piece of paper, but was fully implemented and people were fully aware of the Law as well as their rights and process to claim their rights. In 2006, the Committee had raised concerns about equal participation of women in public life and asked what measures, including temporary special measures, were being planned to increase participation of women and overcome traditional obstacles in their participation. What was the situation with the law on domestic violence in Brcko District and how would it be aligned with the national legislation? How were efforts to combat violence against women coordinated between the entities and Brcko District?
The Committee welcomed the renewed commitment of the State to the complex issue of prosecution of war criminals and the National War Crimes Processing Strategy and asked about reasons for obstacles in the implementation of this Strategy and the political pull-out by some politicians; how was the resistance to criminal justice for war crimes being handled; and comments on the initiative by a political party from Republika Srpska to dismantle the State’s Court. How would justice for sexual violence in the context of the war be provided? Could the delegation comment on the prohibition of adoption by members of the lesbian, gay, bisexual and transgender persons and its compatibility with the provisions of the Covenant?
Response by Delegation
Training centres for judges and prosecutors had modules on human rights and international instruments ratified by Bosnia and Herzegovina; in addition, there was regular annual training provided by Civil Servants Agency of Bosnia and Herzegovina focusing on all documents on human rights, including the Covenant. An Action Plan for Human Rights Training was being prepared, not only for the judiciary, but for the police and other public and civil servants. The Ministry for Human Rights gave regular suggestions on the curriculum and topics of focus to the training centres for judges and prosecutors.
Comments by non-governmental organizations were taken on board if information provided could be verified or was based on reputable research work; though gathering information in Bosnia and Herzegovina which has multiple layers of authorities was a lengthy process. Implementation of decisions by the European Court for Human Rights depended on the political will of parties in power. National minorities were represented and could run in local elections. There was a misunderstanding in figures concerning missing persons: some 70 per cent of cases of missing persons had been resolved, and more were identified but bodies were still not fully recovered to allow for their burials according to religious traditions. Assistance to families of missing persons was a complex issue in a country with structures like Bosnia and Herzegovina; on the local level, support was provided by Centres for Social Work. There were protocols for support to victims of sexual violence before, during and after trial.
The Office of the Ombudsman was a type A national institution, fully independent in terms of stuffing and funding. Because of the interim budget of the state administration in 2011 and in 2012, and because of a merging of the entity Offices, there were obstacles in funding of the Office of the Ombudsmen, which saw a decrease in available budgetary resources. There were 4,700 cases pending in 2011 and there was an increase in the number of cases pertaining to discrimination, mostly for mobbing and discrimination on ethnic grounds.
The anti-discrimination law distinguished between direct and indirect discrimination; sexual orientation was included in the law as grounds for discrimination. The law envisaged the Ombudsmen as the key institution to provide protection of rights provided with this legislation, and the possibility for the protection of rights in administrative and court proceedings; anyone who felt discriminated against could initiate proceedings before the competent law. Sex-based discrimination was defined as both a criminal offence and demeanor by the Gender Equality Law. There were 235 complaints on discrimination grounds filed in 2011, which was evidence of a growing awareness of discrimination among the citizens of Bosnia and Herzegovina.
The Rulebook on gathering data on discrimination cases and the corresponding database had not yet been adopted yet for financial reasons; the Rulebook would establish a standard model for entering and collecting data. The data existed in the Ministry for Human Rights, which had a coordination role in terms of collecting data on discrimination cases. At 30 September 2012 there were 87 cases of discrimination pending in Bosnian courts; cases included discrimination in employment, housing, education, and other areas.
In terms of measures to guarantee the rights of persons with disabilities, Bosnia and Herzegovina had ratified the Convention on the Rights of Persons with Disabilities, developed the Strategy for Equality in Opportunities for Persons with Disabilities and the Action Plan for the Improvement of Persons with Disabilities to 2016 was being implemented at the moment. It was necessary to improve implementation of the legislation and translate into practice the rights of persons with disabilities; this was in the competence of entities, as was the removal of physical barriers in buildings.
The Strategy for War Crimes Prosecution included the decision that more serious cases would be prosecuted by the Supreme Court and the Prosecutor of Bosnia and Herzegovina, while less complex cases would be the competence of entity courts. According to the recent distribution of cases, 653 cases would be prosecuted by courts of Bosnia and Herzegovina and 663 war crimes cases would be handled by entity courts. The capacity of entity courts to ensure proper prosecution and trial would be the strengthen opening of new posts for judges and prosecutors. Concerning cases involving rapes and violence against women during war times, the Court of Bosnia and Herzegovina had closed 29 cases involving those crimes with a final decision, while two cases were in the appellate procedure.
The Law on protection of witnesses was in the consultation process at the moment; a project funded by the Government of United Kingdom for the implementation of the protection of witnesses had organized training workshops for all actors in the sphere of witness protection, and presented an opportunity to improve coordination between them. Participants in those workshops also included foreign experts in the witness protection domain. All courts that would be involved in processing war crimes cases would be equipped to ensure physical and technical protection to witnesses, and this included district and cantonal courts as well as the court of Brcko District.
In terms of xenophobia and non-discrimination, the delegation said that the Principles of Broadcasting protected freedom of expression in line with generally accepted modes of behavior. The Code on Audio-Visual Content defined rules on content and covered the issues of instigating or promoting ethnical or racial hatred.
There were entity gender equality centres which had sufficient capacity to receive complaints and had the competence to work on cases of gender-based discrimination. The Law on Anti-Fascist organizations was still with the Parliament. In terms of political participation of women in political and public life, there was an increase in the number of women running for elected posts, but women were not represented in the highest offices and only three mayors in the country were women; the situation in the Constitutional Court was better, where half of the members were women and women was a president of the Court for the period to 2008. The President of the Court of Bosnia and Herzegovina was a woman, and women were predominant as presidents of courts at cantonal levels. The law did not provide specifically for the adoption by members of lesbian, gay, bisexual and transgender communities, but it was not explicitly prohibited.
Responding to the follow up questions by Experts concerning procedures used to respond to the communications sent by the Committee and to implement its views, the delegation said that all the communications were sent to relevant authorities and that answers were included in the report, in consultation with those authorities. There was a mechanism for implementation of recommendations, whereby relevant ministries prepared appropriate action plans, which would be monitored by that ministry. Bosnia and Herzegovina had initiated the process of integrating its human rights reporting obligations, which should be finished by 2012 and would produce methodology and frameworks for human rights reporting in general.
Questions by Experts
Committee Experts noted that tools were lacking to unblock the political inertia which stopped progress in Bosnia and Herzegovina and that all efforts needed to be taken to align the Constitution with the Covenant. Bosnia and Herzegovina had a rightful place in the European Union eventually and it was hoped that the accession process could be an external impetus to unlock the block that was holding Bosnia back from fulfilling its potential. Experts asked about mechanisms to monitor pre-trial detention; the May 2009 incident in which escapees from Ustikolina prison and the consequences; conditions in prisons, including occupancy rates and the number of inmates, and the timeframe for the planned increase in capacity of facilities in Orasje and Zenica; revocation of citizenship and risks of non-refoulement for non-citizens; and alternative sentencing for juvenile offenders.
What was the status of compliance with the Ombudsman’s decisions concerning the incarceration of those suffering from psychological problems? What were the reasons behind violence in prisons? The Committee noted that the framework to protect freedom of expression was well developed, but its implementation in practice was problematic and asked about the state of play concerning the planned project on media freedom; the non-governmental organization registration process in the country and the protection of human rights defenders.
Experts noted the national Law for the Protection of National Minorities, the establishment of the Council for National Minorities and the National Action Plan for Roma of 2007 and asked about the progress made in improving the situation of this community. As far as other minorities were concerned, the Committee asked how they were treated considering that they were excluded from running for office and that protection plans for minorities did not include them. What were the results of the National Strategy to Combat Violence against Children 2007-2010; what new measures had been undertaken and what were the lessons learned for the new strategy from 2011 to 2014; and what was being done to address the issue of corporal punishment of children?
It was shocking that many displaced families still had to live in collective shelters in basic living conditions. What was the process to ensure that courts had reliable information about the situation in countries of origin for asylum seekers? What were procedural safeguards regarding non-refoulement?
Response by Delegation
The Communications Regulatory Agency had taken part in the development of the report, which presented a realistic picture of the situation. The Agency received complaints from citizens and non-governmental organizations concerning hate speech in the electronic media; so far, there was only one such case. The adoption of the Law on Defamation had moved reception of complaints to the judicial sector. There was a general prohibition on hate speech and instigating racial, religious or any other hate was a criminal offence in the whole territory of Bosnia and Herzegovina. There was no information available on the number of cases of hate speech handled by courts, they were often committed in conjunction with other types of offences.
The law allowed for the establishment of TV channels in national minority languages; and television and radio programmes had been established in the Roma language, but standardization of the Romani language represented an obstacle in efforts to ensure that Roma could learn about their language and culture.
The Ministry for Human Rights and Refugees compiled information from relevant ministries about conditions in prisons and detention facilities, torture, violence and juvenile justice; the Ministry was also in charge of communicating with the European Committee for Prevention of Torture. No cases of torture, abuse or ill treatment had been reported and no complaints had been filed, internally or externally. In Zenica, there were complaints about alleged cases of torture which had been rejected by the court. The European Committee for Prevention of Torture had received complaints about torture during their visit to the country, but those allegations had been before they were transferred to prosecutor’s office. A number of complaints of torture had been filed in 2011, which had been rejected by courts; the number of complaints had been lower in 2012.
In terms of a national prevention mechanism, there was a multidisciplinary team which prevented torture though regular and ad hoc visits to detention facilities and submitted their reports and findings to the Council of Ministers. Bosnia and Herzegovina had ratified the Optional Protocol on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2008 and was now in the process of establishing the National Prevention Mechanism in the office of Ombudsman. In terms of prison violence, in 2011 there had been 11 cases in Tuzla prison, while in Zenica prison which was a high-level security centre, 183 prisoners had been subjected to disciplinary sanctions. The construction of a juvenile detention centre in Orasje would allow Bosnia and Herzegovina to detain juveniles in accordance with international standards and would also reduce overcrowding in prisons. The juvenile justice system in Bosnia and Herzegovina called for juveniles to take responsibility for their acts and their reintegration in the society after correctional measures, such as the newly introduced measure of police warnings.
The Police had the responsibility to inform a person deprived of liberty of his or her rights, including the right to a lawyer and legal representation. Public order as a reason for detention or extension of detention could only be used in case of a crime sanctioned by imprisonment of at least ten years, or when the release of a detainee would pose a threat to the public. The detention or extension of detention could be ordered only on a basis of cumulative assessment, so only one condition was not enough to decide to detain.
In 2009, the Office of the Ombudsman for human rights had prepared a special report on the situation in facilities for the mentally disabled, which had noted a number of problems and offered recommendations to the authorities regarding the introduction of modern organizational models to facilitate the social integration of beneficiaries; make the facilities more friendly; engage a larger number of experts of different profiles to work with beneficiaries; and establish a professional development programme for the staff and undertake preventative measures for their burn-out. Following this report, significant progress had been made in replacing the prevailing stationary model of organizational work with the family type, per which a number of housing units had been established within those institutions that enabled better social inclusion of the beneficiaries. The relationship between staff and beneficiaries had been improved and institutions were made friendlier by providing a more positive picture of the institutions through better spatial standards.
A new immigration centre had been established in Bosnia and Herzegovina which was fully in line with European standards. Concerning the principle of non-refoulement, the Ministry could not influence judicial bodies which were independent bodies, but could only call for respect of international and European standards in this regard. A threat to national security was a basis for a return to country of origin, but no person had been returned to a country where his or her life was at risk. Persons considered a threat to national security had the possibility to apply for international protection and asylum in Bosnia and Herzegovina.
The results of efforts to combat violence against children had been very good and the new Strategy 2011-2015 was now before the Council of Ministries and hopefully would be approved soon. Data on violence were collected in a uniform manner and the Government was in negotiation with non-governmental organizations about methodology for data collection for shadow reports. Corporal punishment of children was prohibited.
There were 17 national minorities in Bosnia and Herzegovina, which had been defined by the Law on National Minorities. The Framework Convention on the Protection of National Minorities was directly applied in the national legislation and the Law regulated the rights to symbols for national minorities, their economic, social and cultural rights and the right to participation in public and political life. Bosnia and Herzegovina protected the rights of any national minority who were allowed to use their language and alphabet in public life. Bosnia and Herzegovina had joined in in 2008 with the European Decade for the Roma Inclusion and had achieved great progress in the promotion of the Roma rights; and each year a budget of 1.5 million convertible marks had been appropriated for housing and education of Roma.
The legislation on organizations and foundations regulated the freedom of association and this right had Constitutional guarantees. There was no information that any organization was put at disadvantaged position at registration. There were special regulations if the name of Bosnia and Herzegovina was used in the organization’s name, and in that case that organization needed to meet special criteria.
Turning to questions about the Annex VII and the return of refugees and internally displaced persons, the delegation said that some of centres for displaced persons were occupied either by internally displaced persons who had returned there, or were occupied by extremely vulnerable individuals. Bosnia and Herzegovina intended to close those centres within the next several years. Twenty years after the war there were still 150,000 persons in need of assistance to return and some of them required compensation for lost property.
Follow up Questions and Answers
In a series of follow up questions and comments, the Committee took up the issue of missing persons and support to their families and asked whether the requirement for the presentation of a death certificate to obtain benefits was compatible with the provisions of the Covenant. The Committee noted that a number of groups wishing to commemorate the twentieth anniversary of atrocities committed in Omarska concentration camp in Republika Sprska had been prevented from entering the grounds by a well known international mining company; further the commemoration was severely restricted by the mayor of Prijedor who prohibited the use of term “genocide”. What was the State of Bosnia and Herzegovina doing to address this situation? How long could people be held in detention when they could not be sent away?
Responding, the delegation said that the problem with the registration of missing persons in the death registrar was due to the choice of place of death, which was now resolved and that there were no further problems in the implementation of the legal requirements. Concerning the obstacles to accessing places of genocide, agreement had not yet been reached in a universal understanding of genocide in the whole territory of Bosnia and Herzegovina. No complaints had been received concerning the instructions by the mayor of Prijedor; the story was published by the media but no association had used legal means and procedure to lodge an official complaint. The deadline for keeping a person in detention was 24 hours; the exception was detention in the case of terrorism where the police could detain someone for 24 hours, upon which the person would be sent to the prosecutor for further processing.
SALIHA ĐUDERIJA, Ministry of Human Rights and Refugees, in her closing remarks thanked the Committee Experts and said that their questions helped in making progress in Bosnia and Herzegovina. It was possible to see the progress Bosnia and Herzegovina had made and Ms. Đuderija hoped that next examination would be an opportunity to present an even better situation.
FABIAN OMAR SALVIOLI, Committee Vice-Chairperson, in his preliminary concluding observations, said that the interactive dialogue was an opportunity for the delegation to hear the concerns of the members of the Committee, which would also be included in the concluding observations. Mr. Salvioli expressed hope that Bosnia and Herzegovina would continue to respect its obligations from the International Covenant on Civil and Political Rights in good faith.
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