[3 December 2001]

 

 CONTENTS

 Paragraphs

 

 I. GENERAL DATA .........................................................................  1 - 21 

 II. INFORMATION REGARDING INDIVIDUAL

 PROVISIONS OF THE CONVENTION .....................................  22 - 101 

 Article 2 .........................................................................................  22 - 41 

 

 Article 3 .........................................................................................  42 - 53 

 

 Article 4 .........................................................................................  54 

 

 Article 5 .........................................................................................  55 - 56 

 

 Article 6 .........................................................................................  57 - 60 

 

 Article 7 .........................................................................................  61 - 62 

 

 Article 8 .........................................................................................  63 - 65 

 

 Article 9 .........................................................................................  66 - 67 

 

 Article 10 .......................................................................................  68 - 75 

 

 Article 11 .......................................................................................  76 - 87 

 

 Article 12 .......................................................................................  88 - 89 

 

 Article 13 .......................................................................................  90 - 91 

 

 Article 14 .......................................................................................  92 - 96

 

 Article 15 .......................................................................................  97 

 

 Article 16 .......................................................................................  98 - 101 

 

I. GENERAL DATA

Introductory comments

 

1.                  Pursuant to the obligation under article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, the Convention), the Republic of Croatia submits the third periodic report on the implementation of the Convention.

 

2.                  The competent bodies of the Republic of Croatia carefully examined the final comments and recommendations adopted by the Committee against Torture, which forwarded these comments and recommendations after it had reviewed the second periodic report (13 and 18 November 1998), in an effort to upgrade the implementation of the Convention.

 

3.                  Since the submission of the initial report of the Republic of Croatia and up to the present date, and especially in the period after the elections conducted on 3 January 2000, political and economic changes became especially relevant with respect to the status of the Republic of Croatia at the international level. In August 1995, the Republic of Croatia undertook a comprehensive military and police action to liberate its territory occupied by paramilitary Serb dissident forces. In 1996, the Republic of Croatia made every effort to accomplish, as much as possible, a successful recovery of the liberated territory and tried to build up the security environment in these regions. This included assigning and deploying 3,500 members of the police force and initiating a project to restore the destroyed buildings and facilities, as well as the project “Let’s save lives”, which was carried out in cooperation with the Government of the Republic of Croatia, the International Federation of the Red Cross and Red Crescent and the Croatian Red Cross, with the purpose of enhancing the humanitarian, social and health care of the older people in the region. 

 

4.                  Through the Agreement on Normalization of the Relationship between the Republic of Croatia and the Federative Republic of Yugoslavia, dated 23 August 1996, a step was made towards the final restoration of peace in this area. For the purpose of carrying out the Agreement’s provisions, the Republic of Croatia adopted the General Amnesty Act  (which came into effect on 5 October 1996). According to the data at the disposal of the Ministry of Justice, Administration and Local Self-Government, the General Amnesty Act was applied to 2,453 persons in the last three years. 

 

5.                  On 6 November 1996, the Republic of Croatia became a member of the Council of Europe. By the end of October 1997, the Republic of Croatia, pursuant to the obligations it had assumed, ratified the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, as well as Protocols Nos. 1, 4, 6 and 7 to the same Convention; the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment of 1987; as well as the two regional instruments for minority rights protection -the Framework Convention for the Protection of National Minorities of 1995, and the 1992 European Charter for Regional or Minority Languages.

 

6.                  The Republic or Croatia has, in the last few years, strengthened its cooperation with the Hague Tribunal and expressed full cooperation with it and is, at this moment, sanctioning war crimes itself, regardless of the citizenship, nationality, religion, political affiliation and sex of the offenders.

 

7.                  The Croatian Parliament introduced the Law on Changes and Amendments to the Penal Law on 14 December 2000 (Official Gazette, No. 129/00). The proposed modifications and amendments relate to the harmonization of the internal legal system with the international legal obligations assumed by the Republic of Croatia and with the principles of the Constitution of the Republic of Croatia (hereinafter, the Constitution) with a view to modifying the existing institutions and creating new ones. One of the more significant modifications is the expansion of the definition of the legal term “official person” in accordance with the Council of Europe Criminal Law Convention on Corruption  (which the Republic of Croatia ratified on 8 November 2000). The intention of the proposed changes and amendments is, among other things, to improve the criminal law protection of an injured party, especially in criminal cases which include elements of violence.

 

Constitutional and legal frameworks

 

8.                  The Constitution of 22 December 1990 enshrines the principle of separation of powers (art. 4). In addition, all the laws must be harmonized with the Constitution, and other legal acts and regulations have to be harmonized with the Constitution and the laws of the Republic of Croatia. The Constitution also enshrines the basic principle which states that human rights and freedoms may be limited only by law in order to preserve and protect freedom and the rights of others, as well as the legal order, public morality and health (Constitution, art. 16). The new modifications to the Constitution, adopted on 9 November 2000, state that every restriction of a freedom or right has to be proportional to the nature of the requirement for restriction in every individual case.

 

9.                  Articles 14 to 69 of the Constitution of the Republic of Croatia regulate basic freedoms and human rights, as well as basic principles relating to the rights of national and ethnic communities and minorities. The Constitution ensures the right to life (article 21 proscribes capital punishment in the Republic of Croatia) and the right not to be subjected to torture or inhuman and degrading treatment; forbids slavery and forced labour; guarantees the right of freedom and personal safety, as well as the right to privacy, family life, home, marriage and to establish a family; ensures equality of the couple; the equal right of men and women to enjoy all the civil, political, social and cultural rights; the right of free expression of opinions (censorship is forbidden); the right of peaceful assembly and freedom of association, including the right to set up and join trade unions; the right to work and free choice of employment; the right to equal wages for equal work; the right to protection by a court of law against violations of fundamental human rights; the equal right to vote; the right of peaceful enjoyment of property; the right to inherit and the right to education and to enjoy cultural rights.  Even in the case of a direct threat to the existence of the State, the implementation of the constitutional provisions cannot be restricted regarding the right to life, the prohibition of torture and other cruel or degrading treatment or punishment, as well as the provisions relating to the legal explicitness of punishable acts and punishments and the freedoms of opinion, conscience and religion.

 

International  agreements

 

10.              Under the terms of article 141 of the Constitution, the international agreements in force which were concluded and ratified in accordance with the Constitution and then published constitute part of the internal legal order of the Republic of Croatia and are hierarchically above the law with regard to their legal force.

 

11.              The Republic of Croatia has to date become a State party to many international agreements on human rights and during the last three years it has signed, among others, the Criminal Law Convention on Corruption of the Council of Europe (8 November 2000). The Republic of Croatia was the sixth member State (after the Czech Republic, Denmark, Slovakia, Slovenia and Macedonia) to ratify the Convention. Its entry into force is pending another 14 ratifications.

 

Incrimination of criminal acts of torture

 

12.              The Criminal Code of the Republic of Croatia, which entered into force on 1 January 1998, is the first law in the Republic of Croatia to incriminate the act of “torture” according to the definition of the Convention (article 176 expressly envisages the criminal act of torture and other cruel, inhuman and degrading treatment). The definition states that “an official or any other person who, acting with the encouragement or the express or tacit approval of an official person, causes serious bodily or physical pain to a person with the purpose of obtaining from this person or some other person information or a confession, or with the intention to punish this person for a criminal act committed by this person herself/himself or some other person, or is under suspicion of having committed a criminal act, or with the purpose of intimidating this person or to put her/him under pressure, or owing to any other reason based on any other form of discrimination, shall be punished by the penalty of imprisonment from one to eight years”.

 

13.              Arrested and convicted persons should be treated humanely with respect for their personal dignity (art. 25/I of the Constitution). This is also stated in the Law on the Execution of Criminal Sanctions.

 

14.              In addition, article 29/3 of the Constitution prescribes that “evidence obtained illegally cannot be used in a judicial proceeding”. Pursuant to this principle, the Criminal Procedure Act (Official Gazette No. 110/97) not only bans the use of coercion during testimony (arts. 4/3, 225/7, 226, 235, 265/4), but also bans the use of such statements as evidence (arts. 225/9, 235).

 

Competent bodies

 

15.              In cases of violation of the provisions of the Convention, the competent bodies are the courts of law, the Attorney-General, the police, the Ombudsman, and other administrative bodies. The courts of law pass judgements based upon the Constitution and the laws (art. 118/3 of the Constitution) and ensure equality before the law (art. 26).  The police act in the same manner on the basis of the Constitution and the existing laws which regulate their activity.

 

Courts of law and punishment

 

16.              According to the Judiciary Act, the courts of general competence and specialized courts are competent for violations of the Convention’s provisions.  The general competence courts are: the municipal courts, which prosecute criminal acts for which the penalty of imprisonment for less than 10 years is envisaged; the district courts, which are competent for prosecuting criminal acts for which the penalty of imprisonment is more than 10 years; and the Supreme Court of the Republic of Croatia, which decides on cases of appeal and extraordinary legal remedies. The specific domain courts are: the Court of Commerce, the Magistrates’ Court and the Constitutional Court of the Republic of Croatia.

 

17.              The execution of criminal sanctions against adult and minor perpetrators in the Republic of Croatia is regulated by the Law on the Execution of Penalties of Imprisonment (the new law was introduced on 22 October 1999). This law regulates the organization, competence and scope of the body responsible for the execution of the penalty of imprisonment. The law shall be implemented starting on 1 July 2001. The sanctions are executed in 6 penal institutions and in the Hospital for Persons Deprived of Liberty (regarded as a penal institution), 14 district prisons and 2 juvenile institutions.

 

18.              All these penal institutions can accommodate 2,300 persons, 42 per cent in closed-type institutions, 48 per cent in semi-open and open-type institutions and 10 per cent in the Central Hospital for Prisoners. 

 

Number of persons sentenced to prison

 

 

Year	No. of prisoners
1997	1 287
1998	1 258
1999	1 202
2000	1 270

Legal remedies

 

19.              The basic legal remedies which are at the disposal of persons who are victims of torture or other cruel, inhuman or degrading treatment or punishment are:  (a) the right to report such cases to the administrative bodies responsible for monitoring of conduct (the Ministry of the Interior for police conduct during questioning, prison governors and the Ministry of Justice, Administration and Local Self-Government for cases pending execution of penalty of imprisonment); (b) the right of appeal directly to the Attorney-General’s Office within three days after the commission of illegal or irregular police conduct during investigation; (c) the right to file a criminal charge on the basis of individual criminal acts with the Attorney-General and the right of a victim to institute criminal proceedings on his own, as a private complainant, against a perpetrator; and (d) the right to compensation.

 

Current situation and difficulties

 

20.              During the last five years the state of security on the overall territory of the Republic of Croatia, including the territory which was occupied earlier, is regarded as positive.  This accounts for the decline in the number of the most severe criminal acts like murder, robbery, grand larceny, explosions and fires in the region liberated in the “Storm” action. In the period from 1995 to 1999, the number of murders decreased by 77 per cent, the number of robberies by 88 per cent, grand larcenies by 70 per cent, explosions and fires by 96 per cent.  The investigatory activities were upgraded so that in 1999, for example, all six murders were solved, as well as 60 per cent of the robberies, 54 per cent of the grand larcenies and 57 per cent of the explosions and fires, and the number of arrested perpetrators is increasing accordingly. The results achieved are even more significant if we compare them to the data gathered from most European countries, as well as our neighbouring countries, where the number of criminal acts, counted on the basis of 100,000 citizens, is a few times larger than in the Republic of Croatia.

 

21.              The Government of the Republic of Croatia, its ministries and other State bodies responsible for the promotion and protection of human rights and freedoms respect the democratic standards of the developed world, with the basic guidelines enshrined in the Constitution and the legal system of the Republic of Croatia. Accordingly, the Republic of Croatia has, during and after the military and police actions, expressed and encouraged a cooperative relationship with all the international humanitarian organizations and institutions which deal with humanitarian issues under the United Nations. Under the same principle, the Ministry of the Interior operates within its competence, being liable and responsible for the overall security situation of the State and, as a matter of course, for the personal security of the citizens of the Republic of Croatia and for their property as well.  By introducing the new Law on the Police Force, which entered into force on 1 January 2001 (Official Gazette No. 129 dated 22 December 2000), the Republic of Croatia has incorporated itself completely into the European normative system, accepting the fundamental principles which today are the standard principles of the harmonized activities of the rule of law and guaranteed human rights. 

 

 II. INFORMATION REGARDING INDIVIDUAL

 PROVISIONS OF THE CONVENTION

 

Article 2

 

22.              The legal system of the Republic of Croatia and the regulations relating to the police force, the administration of justice and the penal system determine the prevention and sanctioning of all criminal acts implied by the concept of torture and other cruel, inhuman or degrading punishments and treatment. Such acts are banned under the regulations and provisions included in the Criminal Procedure Act and in the Law on the Police Force, which define the disciplinary accountability of police officers.  They are also regulated by the regulations on the execution of criminal sanctions. The ban on torture is also included in the Constitutional Law on Human Rights and Freedoms and the Rights of National and Ethnic Communities and Minorities in the Republic of Croatia. 

 

23.              As was pointed out earlier, the ban on torture enshrined in the Constitution cannot be derogated from even in exceptional circumstances (art. 17, para. 3, of the Constitution), while the Criminal Procedure Act bans all kinds of cruel methods which might be used against persons involved in criminal proceedings.  Article 29, paragraph 4, of the Constitution stipulates that evidence obtained in an illegal manner cannot be used in a trial.  The Law on the Police Force also determines supervisory measures in the police force and prescribes disciplinary procedures and sanctions (arts. 110-122).

 

24.              The employees of the Ministry of the Interior take into account the provisions of the Criminal Procedure Act and the Law on Internal Affairs (current Law on the Police Force). The Ministry of the Interior daily monitors the legality, professional quality, tactfulness, politeness and correctness of police officers’ conduct towards citizens, all to the effect of better protection of human rights. 

 

25.              The legality of police officers’ conduct is one of the principal factors in evaluating the functioning of the overall police organization, and the Ministry of the Interior pays special attention to it through the implementation of educational, supervisory and disciplinary measures at all levels of work.

 

26.              In accordance with this view, the Ministry of the Interior has, through the modifications to the Law on Internal Affairs, that is through introducing the Law on the Police Force, established certain protective democratic mechanisms which prescribe that all civil servants and employees of the Ministry of the Interior have a duty to protect and preserve human life and dignity and that they may use only those measures and coercive means which are specified by law, and the use of which has the least damaging effect, in performing their official duties. This excludes any possibility of arbitrary conduct. Altogether, this law guarantees the inviolability of human dignity and human rights and, at the same time, confines police conduct within certain limits. 

 

27.              Moreover, the procedure to be followed in cases of complaints against police conduct is precisely prescribed. For example, if a citizen reports any kind of maltreatment or other police misconduct, the Ministry of the Interior is obliged to inform the complainant, within 30 days, of the actions taken in relation to the complaint.  This is an additional means of protection in the fight against covering up any form of human rights violation during policing or preventing such violations, especially in the case of the types of violations stated in the Convention.

 

28.              The legal use of coercive measures within the scope of police activities is one of the most delicate issues in policing and it is the field in which the police are most likely to engage in excessive interference in the area of human rights and freedoms. In order to prevent all forms of illegal use of coercive measures, the police authorities daily undertake various steps, like the efficient supervision at each level of activities within the Ministry of the Interior, permanent expert training courses, and careful scrutiny of every case of exceeding authority. It should be pointed out that in cases of exceeding authority in the use of legal coercive measures, a police officer is exposed to very severe disciplinary accountability and to criminal accountability also if he has committed a criminal act.

 

29.              In 1998, 580 cases of the use of coercive measures were recorded; that is 26.6 per cent more than in 1997 when coercive measures were used 458 times. Out of the total number of coercive measures used in 1998, 10 were unfounded (12 in the previous year). During 1999, the number of cases of coercive measures used increased by 18.1 per cent (685 cases) over the previous year. Out of the total number, 671 cases were determined to be founded and the other 14 cases unfounded.  In 2000, the number of cases of the use of coercive measures increased in relation to 1999 by 39.4 per cent; 955 cases were recorded, of which 940 were determined to be founded and the other 15 as unfounded.

 

Use of coercive measures for the period from 1997 to 2000

 

 

30.              Coercive measures have been used in most cases for the purpose of repulsing an attack or overcoming resistance and they have also been used to apprehend suspects. Owing to the use of coercive measures: in 1997, 199 policemen received minor injuries and 4 received serious injuries; in 1998, 208 policemen received minor injuries and 10 policemen serious injuries; in 1999, 274 policemen received minor injuries and 4 serious injuries; in 2000, 340 policemen received minor injuries and 12 serious injuries. By reason of the inappropriate use of coercive measures, exceeding authority or other disciplinary infringements regarding the use of coercive measures, in 1997, 13 disciplinary procedures were initiated, 15 in 1998, 21 in 1999 and 13 in 2000 against the police officers concerned.

 

31.              The basic law which regulated the activities and conduct of the authorized officials of the Ministry of the Interior was the Law on Internal Affairs (which was in force until 1 January 2001). After 1 January 2001 a new Law on the Police Force came into force which, among other things, systematically organizes police mandates in view of the fact that the police force is the body that in most cases interferes with the fundamental human rights. A substantial part of the new Law on the Police Force relates to the conditions of the use of police powers.  When speaking of the normative framework (conditions, that is, assumptions) of the use of police powers in a democratic society, one should always bear in mind the correlation between the organizational structure and the activities of the police and the protection of human rights and freedoms.  The proclaimed constitutional principles in the Republic of Croatia, especially those relating to the fundamental rights of men and citizens (right to life, personal security and inviolability, ban on inhuman conduct, torture or degradation and others) are made concrete through the passing of laws and the implementation of provisions which provide mechanisms for their protection. This is the reason why the Law is so significant:  the operations of the police force imply repression and can result in limiting citizens’ rights, but these limitations must be balanced with the need to protect universally accepted social values.  The postulate of each country in the process of transition and building a democratic society based on the rule of law is to find the appropriate balance between the two stated opposite principles.

 

32.              In defining police powers, we had to determine the role of the police force in contemporary society - the concern for the maintenance of peace, order and security, which includes the responsibility for ensuring the citizen’s security, so that everyone can live peacefully and go wherever they like in safety. Such an approach to police affairs classifies policing in the domain of prevention, which is in accordance with other States’ policies. But, one should not completely exclude the repressive police activities, which are defined as “investigating criminal acts, finding and seizing perpetrators and bringing them before the competent bodies”. Such overlapping of the two domains - prevention and repression - is known in the Croatian legal tradition and is supported by the stated Law. In the Republic of Croatia, one cannot draw a clear line between prevention and repression since there is no special judicial police service which would participate in the activity of instituting criminal proceedings, as is the case in some European countries. The other reason why police activities cannot be separated is the existence of basic laws, such as the Criminal Procedure Act, which, in defining the concept of police powers, also defines the status of authorized officials of the Ministry of the Interior.

 

33.              It is important to mention the Constitutional Court decision (Official Gazette 29/00) which revoked the provision of article 18 of the Law on Internal Affairs which prescribed that in matters relevant to State security, the Minister of the Interior may decide, by resolution, that such measures should be taken against natural and legal persons and bodies which deviate from the principle of inviolability of secrecy of correspondence. Such an action is to be reported, as soon as possible, to the President of the Republic.  Regarding the fact that it is necessary that the legislation of the Republic of Croatia comprehend regulations that provide for protection of the country’s national security, which is also one of the legitimate justifications for interference by public authorities into the private lives of citizens, the Law on Internal Affairs was amended accordingly (Official Gazette No. 53/00) and the newly adopted regulation is in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. The amendment relates to legal resolutions included in article 17a, 17b, 17c, and 17d of the Law on Internal Affairs which specifies in detail the time, the mode and the circumstances under which measures of secret data-gathering can be used. It is regarded as a departure from the principles of the inviolability of personality and secrecy of correspondence and other forms of communication. Such regulation is included in all contemporary legislation systems of democratic countries.

 

34.              In application of the principle regulated by article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the use of force is forbidden in the Croatian police force, except in cases when the legal aims can justify such action. In addition to the legal regulations which define the use of coercive measures, the Ministry of the Interior records the developments in this area and issues instructions and guidelines for confining the use of coercive measures to the most critical cases. Moreover, the Ministry of the Interior notes the legality of the use of coercive measures and in all the cases of police officers’ misconduct towards citizens the Ministry undertakes the necessary action.

 

35.              An example is the case of Riccardo Cetina, who was involved in an incident on 1-2 September 1998 near Zečevo, municipality of Primošten. In the evening of 1 September, six policemen of the Šibenik-Knin Police Administration exceeded their authority in using coercive measures during their intervention and in the course of overcoming resistance during deprivation of liberty of the Italian citizen Riccardo Cetina. As a result, Mr. Cetina suffered serious bodily harm and consequently died in the Split hospital. The six policemen were arrested on 5 September and that same day, after an investigation, they were brought to the Šibenik County Court investigating judge on the criminal charge of being reasonably suspected of the criminal act of maltreatment in performing their duties, as regulated by article 127, paragraph 1, and infliction of serious bodily harm as regulated by article 99, paragraph 1, of the Criminal Code. The municipal attorney-general in Šibenik brought an indictment against the six policemen on 12 April 1999. The six policemen spent the period from 5 September to 29 December 1998 in a remand prison, while the investigation of the incident was carried out.

 

36.              The Head of the Šibenik-Knin Police Administration required the initiating of disciplinary procedures against these policemen because there was reasonable cause to believe they had committed a serious violation of service discipline according to article 82, paragraph 1, point 1, of the Law on Internal Affairs which was in force at the time (abuse of power and exceeding of authority).  The Disciplinary Court of the Šibenik-Knin Police Administration passed a sentence of suspension from the police force for all six police officers.  After that, all six filed a complaint with the second instance disciplinary court of the Ministry of the Interior which rejected the complaints and upheld the disciplinary measure of suspension from the police force.

 

37.              In the pending process of modification of the penal legislation with the purpose of more efficient protection from police intervention in the area of basic human rights and freedoms, the police were deprived of the right to decide on custody, which today pertains exclusively to the competence of the court. This gives additional assurance for the legal application of this measure.

 

38.              Since in policing special attention is paid to the legality of police conduct and the correct use of mandates at all levels of operation in the Ministry of the Interior of the Republic of Croatia, in conformity with the experience of the European police force systems, the Internal Control Office was founded in 1994 to deal only with disclosure and prevention of misconduct by police officers in performing their duties. Misconduct implies any irregular conduct by police officers or conduct contrary to established police ethics. The adoption of a Police Code of Ethics is pending.

 

39.              During 2000, the Internal Control Office analysed 613 petitions and complaints from citizens, 341 in 1999 and 418 in 1998. Out of the total number of analysed cases in 2000, 132 were accepted, 87 in 1999 and 90 in 1998; the number of rejected cases was 458 in 2000, 258 in 1999 and 322 in 1998. The most common reasons for lodging petitions and complaints were abuse of power, exceeding of authority, unethical performance of duty, failure to undertake appropriate measures, and unseemly conduct while on duty. Regarding the accepted and partially accepted reports and complaints, the Office has initiated disciplinary measures, misdemeanour charges or criminal charges against the officers found accountable, depending on the level of responsibility.

 

40.              Pursuant to article 158 of the Law on the Execution of Criminal Sanctions, a convicted person has the right to file a complaint with the prison governor regarding any violation of his rights, or any other irregular treatment.  The prison governor is obliged to consider each complaint, to take a decision on each of them in a form of a resolution and to hand this to the convicted person. If a convict files a complaint against this resolution with the Ministry of Justice, Administration and Local Self-Government, the prison governor is obliged to forward it to the Ministry together with the relevant documents.

 

Review of prisoners’ complaints concerning conduct of

members of the judicial police

 

 

41.              According to the legal regulations, members of the judicial police may use coercive measures only in cases when it is necessary to prevent the escape of a convicted person, an assault against an employee, injury to another person, self-injury, or material damage. The use of firearms is allowed in cases when the use of bodily force, truncheons or other coercive measures cannot suffice, if people’s lives cannot otherwise be protected, or if an officer is unable to prevent a convicted person from directly jeopardizing the lives of other officers, that is, in case of an attack on a building or an escape. The Ministry of Justice, Administration and Local Self-Government has to be informed of every use of firearms against a convicted person.

 

Review of use of coercive measures by members of the judicial police