Drugi periodični izvještaj crne gore komitetu protiv torture

The strategy to combat trafficking in human beings for the period 2012-2018 was adopted at the session of the Government on 13 Sep 2012, with an Action plan for the period 2012-2013. In comparison to the previous Strategy, novelties are related to the introduction of a special chapter devoted to the objectives and implementation measures for proactive identification of potential victims of THB through greater involvement of all institutions that may come into contact with victims of THB. There are also new chapters which define the measures and activities focused on strengthening international cooperation and strengthening coordination and partnerships with entrepreneurs, civil sector, Administration for Prevention of Money Laundering and Financing Terrorism, and so on. A Tripartite Commission (composed of representatives of the Supreme Public Prosecutor's Office, the Supreme Court and the Police Directorate) was set up in 2009, tasked with recording THB statistics and delivering those data on a monthly basis to the Office for Fight against Trafficking in Human Beings, which consolidates the data and creates cumulative THB statistics for Montenegro.
The said detailed statistics are public and available on the website of the Office (www.antitrafiking.gov.me).

Office for Fight against Trafficking in Human Beings coordinates the activities of the competent government bodies, international organizations and NGOs, thus combining all the positive efforts to combat THB in Montenegro; establishes and maintains cooperation between domestic and international entities in order to create effective mechanisms to combat THB; presents results achieved in combating THB in Montenegro by means of its participation in various international and national symposia; draws up reports for international entities; initiates approximation of national legislation with the international legislation in the field of combating THB; monitors the implementation of international regulations, conventions and agreements on combating trafficking in human beings; performs tasks related to the preparation of educational and promotional and marketing campaigns; manages the Shelter for Human Trafficking Victims and the complete program to protect victims of THB.

There is a support service in the courts in Montenegro for the injured/witnesses-victims of THB, victims of trafficking in children for adoption and victims of domestic violence and violence towards members of a family community. A brochure was published which provides to the injured parties/witnesses contact information of court employees responsible for providing support and information about the criminal proceedings, testimony, measures to protect injured parties/witnesses, etc.

STATISTICS ON TRAFFICKING IN HUMAN BEINGS IN MONTENEGRO FOR THE PERIOD 2008-2012 - ANNEX II

With the objective of providing protection and assistance of a higher quality, since 2006 the Government has been continuously and fully funding one Shelter for Victims and potential victims of THB/trafficking in children. At the Shelter the victim is provided with initial recovery through 24 hours of professional staff assistance and the implementation of specific self-support and rehabilitation programs. By signing of the Cooperation Agreement,²³ obligations of institutions which are laid down by law were detailed through clearly defined operational procedures implemented by the signatories to the Agreement when working on a particular THB case. Potential and actual victims of THB are provided personal safety, free legal, medical, psychological and social protection with a minimum of identification data and under the principle of priority, while not conditioning that support by their cooperation with investigating authorities. The competent investigative and judicial authorities are dealt with by the competent investigative and judicial authorities under the principle of priority. During the reporting period, a draft of the new Cooperation Agreement was drafted, which was forwarded to the heads of signatory bodies and institutions for review and approval. In addition to the existing signatories to this Agreement, the following were also included: the Supreme Court, Office for Fight against Trafficking in Human Beings, Centre for Children Support from Bijelo Polje, the Red Cross and NGOs: SOS helpline Podgorica, SOS helpline Nikšić, Roma Scholarship Centre and Dom nade (House of Hope). In April 2011, Office for Fight against Trafficking in Human Beings signed a Protocol on Cooperation with the Union of Employers of Montenegro (which has over 1,500 members).

8. According to information before the Committee, six men sentenced of war crimes, including torture and other ill-treatment, on 15 May 2010 were sentenced to periods of imprisonment which failed to meet the minimum sentence of five years imprisonment set out in Article 430 (War crimes against prisoners of war) of the Montenegrin Criminal Code. Please provide information on the measures taken to ensure that such mitigation is not granted in cases of serious crimes. Please also provide information on the measures taken to amend the Penal Code in order to ensure that public senior officials are prosecuted for command responsibility⁸.

The doctrine of command responsibility was introduced in the Montenegrin criminal legislation by prescribing the crime omission to prevent criminal offences against humanity and other values protected under international law (Art. 440 of the Criminal Code). For this crime to exist, a link is necessary between the perpetrator's omission and the commission of (i.e. completion) of a criminal offense by subordinates. Specifically, the Code provides that "A military commander or a person performing this function or a superior civilian who, knowing that forces he is commanding or controlling are preparing or have commenced the commission of criminal offences against humanity and other values protected under international law omits to take the necessary measures that he could have taken and was obliged to take for the prevention of commission of the offences and thereby causes actual commission of any of the offences, shall be punished by a prison term from two to ten years. Where the offence was committed by negligence, the perpetrator shall be punished by a prison term up to three years".

In the period since 2009 until 1 Jul 2012, the High Court in Podgorica had one war crimes case with elements of torture and ill-treatment, named Morinj, in which there were 6 accused persons. Of them, 2 persons were acquitted, while 4 persons were declared guilty and sentenced to: 1 prison term of 2 years, 1 prison term of 4 years and 2 prison terms of 3 years respectively.

It is certain that the issue of mitigation of punishment for the perpetrators of serious crimes will be considered when making amendments to the Criminal Code.

9. Further to the recommendation of the Committee in the previous concluding observations (paragraph 15), please provide detailed information on measures taken to prevent sexual violence in prisons, including inter-prisoner violence. Please provide statistical data in this regard. ⁹

There were no registered cases of sexual violence at the Institution for Enforcement of Criminal Sanctions either between the officers and inmates or between inmates themselves. The strategy to prevent sexual violence is being developed. In accordance with the Law on Prohibition of Discrimination, Institution for Enforcement of Criminal Sanctions has achieved considerable results in the fight against all forms of discrimination; no international organization has pointed out in its report to any form of discrimination against persons deprived of liberty under different legal grounds and placed in the Institution. Moreover, none of the detainees have filed a complaint with any of the state institutions on basis of any form of discrimination based on sexual orientation or gender identity.

10. According to information before the Committee, please provide information on measures taken to prevent the reported torture and abuse of the LGBT population by the police and to promote the education and sensitization of members of the police on their obligations in terms of non-discriminatory treatment towards LGBT persons. Please include statistical data on the number of complaints received and the number of those investigated, as well as the number of prosecutions and convictions.¹

Information that the police force of Montenegro has jeopardized the rights of the LGBT population in any manner and in any segment of its competence, are false. On the contrary, the police has always intervened in a timely manner to protect members of the LGBT population. Police Directorate of Montenegro's data do not indicate to the existence of any cases of torture against the LGBT population by police officers. Pursuant to the legislation, Police Directorate handles without any exceptions all reports and findings of violations of human rights and fundamental freedoms, including the LGBT population.

INFORMATION ON MEASURES TAKEN TO PREVENT THE REPORTED TORTURE AND ABUSE OF THE LGBT POPULATION BY THE POLICE AND TO PROMOTE THE EDUCATION AND SENSITIZATION OF MEMBERS OF THE POLICE ON THEIR OBLIGATIONS IN TERMS OF NON-DISCRIMINATORY TREATMENT TOWARDS LGBT PERSONS – ANNEX III²⁴

The Public Prosecution Office has had no cases of torture and abuse of the LGBT population by the police. In the period from 2009 until 1 Jul 2012, courts in Montenegro did not have any cases of torture and abuse of the LGBT population by the police.

Responses to questions related to Article 3 of the Convention (questions nos. 11-14)

11. Further to the recommendation of the Committee in the previous concluding observations (paragraph 10), please provide detailed information on measures taken to respect the prohibition to expel, return or extradite a person to another State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture and to fully incorporate the provisions of Article 3 into the State party's domestic law.¹¹

In accordance with Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Law on Mutual Legal Assistance in Criminal Matters²⁵ stipulates that the Minister of Justice will not grant the extradition of the person who enjoys the right of asylum in Montenegro or where it can be reasonably assumed that the person claimed would be subjected to prosecution or punishment because of his race, religion, nationality, belonging to a specific social group or for his political beliefs, or that his status would be made more difficult for one of these reasons.

In accordance with Article 3, items 1 and 2 of the Convention, Law on Asylum, Article 2 stipulates that subsidiary protection, as supplemental protection of refugees in accordance with human rights instruments, will be accorded to an alien who has not met the requirements for the recognition of refugee status but who would be subjected to torture or inhuman or degrading treatment or punishment, or whose life, safety or freedom would be threatened on account of generalized violence, foreign aggression, internal conflict, massive violations of human rights or other circumstances which seriously threaten life, safety or freedom, in case he or she is returned to his or her country of origin or another state.

Accordingly, when considering each application, the decision is being taken with a previous analysis of information on the country of origin of asylum seekers, in order to avoid even the slightest possibility of subjecting that person to torture or other inhuman or degrading treatment or punishment by returning him to the country of origin.

12. Further to the recommendation of the Committee in the previous concluding observations (paragraph 10), please provide information on steps taken by the State party to provide the necessary human and financial resources to the administrative bodies responsible for the implementation of the Law on Asylum and promulgate the necessary regulations and operating instructions for the full implementation of the Law on Asylum.¹² Please provide detailed information on measures taken by the State party to ensure that all refugees and “displaced persons” have a clear legal status with a focus on the prevention of statelessness.¹³

The asylum system in Montenegro started to work by adopting of the Law on Asylum²⁶, which entered into force on 25/07/2006, and its implementation began on 25/01/2007. Following the adoption of the Law on Asylum, a separate organizational unit within the Ministry of Interior was formed - Asylum Office, which has 5 employees.

The Asylum Office receives asylum applications, conducts proceedings and takes decisions on asylum applications, takes decisions on discontinuing and annulling asylum, conducts proceedings and takes decisions related to changing the status of those who were already granted asylum status, issues documents needed to prove one's identity and to travel abroad, to exercise one's legal status and rights in accordance with regulations, keeps records of the situation in the country of origin, conducts procedure for the approval or cancellation of subsidiary protection, temporary protection and performs other tasks in the field of asylum.

The appeals procedure against the decisions taken by the body of first instance is conducted before the Asylum Appeals State Commission. The Commission was established in November 2007 pursuant to the decision of the Government of Montenegro, and it consists of the president and four members who are judges of the Administrative Court of Montenegro or expert assistants in the same court.

Refugee Care and Support Office, as the body responsible for the care of these persons, provides adequate conditions for the accommodation of such persons, given that the Centre for Asylum Seekers is still under construction. Also, this authority is obliged to assist all persons who are subject to the proceedings or have been granted protection, in the process of exercise of their rights to accommodation, education, health care, work and other rights.

The construction of the Centre for Asylum Seekers, which can accommodate 65 beneficiaries, is on-going, on the basis of the Conclusion of the Government of Montenegro. It is planned that the Centre be put into operation by the end of 2012. The procedure of adopting the Internal organisation and job descriptions act of the Refugee Care and Support Office is at work. The proposal of the said document provided the appropriate number and the professional structure of the staff to carry out the tasks of care and support provision to asylum seekers. Financial resources to care for refugees are provided for in the budget. As for the regulations, laws and by-laws were adopted governing issues of exercising rights to: health care, social benefits in cash, legal aid and access to the labour market.

Appropriate bylaws were adopted with a view to fully implement the Law on Asylum.

In order to find a lasting and sustainable solution to the issue of displaced persons from former Yugoslav republics and internally displaced persons from Kosovo, Montenegrin Parliament adopted the Law on Amendments to the Law on Foreigners, which entered into force on 7 Nov 2009. This Law enabled DPs and IDPs in Montenegro to obtain the permanent resident alien status in Montenegro under privileged and more favourable conditions. After the adoption of this Law, in order to inform displaced and internally displaced persons in an adequate and timely manner about the method and procedure of applying to obtain the permanent resident alien status, the Ministry of Interior conducted an information campaign. Also, it is possible that individuals who do not have a valid travel document of the country of origin be approved temporary stay until they are provided with a valid passport, but at the longest for three years following the date of being granted temporary stay. The original deadline for the submission of applications needed to regulate the status of DPs and IDPs was 7 Nov 2011, however, Ministry of Interior extended the deadline for the submission of applications for obtaining the permanent resident alien status until 31 Dec 2012. More specifically, the Parliament of Montenegro adopted for that purpose the Law on Amendments to the Law on Foreigners, which entered into force on 18 Nov 2011.

In order to provide assistance to IDPs from Kosovo in terms of obtaining the necessary documents, the Agreement between the Government of Montenegro and the Government of the Republic of Kosovo was concluded on subsequent registration of internally displaced persons from Kosovo residing in Montenegro into the main registers and registry of nationals of the Republic of Kosovo.

Last year Ministry of Interior initiated the establishment of the Regional Technical Working Group on the simplification of procedures for obtaining the documents necessary to obtain the permanent resident alien status for DPs and IDPs in Montenegro, whose members are representatives of the Ministry of Interior of Montenegro, Ministry of Interior of the Republic of Serbia, Ministry of Interior of the Republic of Croatia, Ministry of Civil Affairs of Bosnia and Herzegovina and UNHCR offices in these countries. There have been four meetings of this working group so far, whose results were rated as highly successful. The Working Group has achieved significant working results; motivated the competent authorities of these countries to address DPs and IDPs' issues more actively and eliminated all uncertainties and possible obstacles in the processes of obtaining documents, registration and subsequent registration into the registers of birth and nationals, and in the process of establishing the nationality of these persons, as the legal instruments were created to regulate their status, both in countries of origin of these persons, and in the receiving states.

The Government of Montenegro adopted the Decree on the manner of exercising the rights of displaced persons from former Yugoslav republics and internally displaced persons from Kosovo²⁷, which stipulated that DPs from former Yugoslav republics and IDPs from Kosovo residing in Montenegro will exercise rights in the same manner as Montenegrin nationals until they obtain the permanent resident alien status in accordance with the Law on Foreigners.

Resolving the status of displaced persons is also possible by means of the admission to the Montenegrin nationality, further to the existing legislation.

Also, a new Strategy on finding durable solutions for displaced and internally displaced persons in Montenegro, with special emphasis on the Konik area, with an Action plan, was passed in July 2011. The Strategy stipulates that in cooperation with the UNHCR Office in Podgorica, the Asylum Office would analyze all the individual applications of DPs who have applied to the Asylum Office for asylum status or have submitted an application for permanent residency in Montenegro. The Asylum Office has so far received 417 applications for status review. Each of the applications were examined by the Office.

Until 28 Jun 2012, approximately 8,000 DPs and IDPs have submitted applications for status regulation on the basis of the Law on Foreigners, which makes up about half of the total number of these categories of persons in Montenegro. Out of that, about 5,000 have been resolved, while others are subject to the decision making procedure.²⁸

The Integrated action plan for the implementation of the Strategy on finding durable solutions for displaced and internally displaced persons in Montenegro, with special emphasis on the Konik area defines as one of the activities the determination of the number of IDPs who have been refused re-registration in 2009 and are still in need of protection to obtain the permanent resident alien status. Entities in charge of implementing this activity are the Refugee Care and Support Office of the Government of Montenegro, Ministry of Interior and UNHCR, whose representatives formed the Commission in charge of re-examining individual cases of IDPs who were denied re-registration in 2009. The Commission approved subsequent re-registration of 237 persons, refused re-registration of 82 persons and suspended proceedings concerning 18 persons.
The fire which erupted at Vrela Ribnička on 24 Jul 2012 destroyed one part of the settlement Kamp Konik I, in which IDPs reside. On that occasion 29 shacks were burnt down and 150 families with 800 members lost their homes. As a result, Operational Team was established which includes representatives of the Ministry of Labour and Social Welfare, Ministry of Interior, Police Directorate, Refugee Care and Support Office, administrative capital, Red Cross of Montenegro and the UN agencies. Within 24 hours of the fire, members of the Red Cross Disaster Relief Team and members of the Army of Montenegro erected a tent settlement for the affected families. The tents were provided by the Red Cross and the MoI's Emergency Situations Department. The organisation HELP, with financial support of the German Embassy in Montenegro, has assumed responsibility for providing food in August 2012. After that, the Ministry of Labour and Social Welfare allocated funds for providing hot meals for residents of the tent settlement. HELP is in charge of its distribution. With the support of United Nations agencies, the Red Cross and the OSCE Office to Montenegro organized the distribution of sanitary supplies, blankets, mattresses, water canisters, kitchen sets, clothing. In order to make sure health care is provided for the residents, a clinic was set up at the Konik camp at the request of the Ministry of Health. Doctors from the Podgorica Health Centre carry out daily medical checks, while the representatives of the Public Health Institute of Montenegro regularly monitor health of the residents and the overall epidemiological situation.
13. Has the State Party relied on diplomatic assurances when returning a person to a third State? Please provide detailed information on what the State party's requirements are for such assurances and which post-return monitoring mechanisms have been adopted. Also, please provide information on the number of detainees who have been returned to other countries, including the list of countries.

Since regaining its independence Montenegro has signed a series of bilateral agreements on readmission (return and admission) with other countries and the protocols for their implementation, which are formally and substantially aligned with the Agreement between the European Community and the Government of the Republic of Montenegro on Readmission. Implementing protocols envisage the obligation of a diplomatic interview with the person that could be subject to readmission into MNE or to transfer to third countries.

The most common objective of the interview in one of Montenegro's diplomatic missions or consular posts is to accurately define the identity and nationality of the person on the basis of prima facie evidence and in order to avoid re-admissions by mistake. On the same occasion, however, consular sectors of our embassies ask for specific guarantees in writing that the person who will be transferred to a third country upon the request for readmission, will not be subjected to torture or to inhuman treatment in the country of origin.

Recommendations of the Committee against Torture are also implemented by means of special reports prepared by Montenegrin diplomatic missions for the Montenegrin MoI (Division for Asylum) and Police Directorate of MNE (Division for Foreigners, Illegal Immigration and Visas) as answers to inquiries related to respect for human rights in the countries of origin of potential asylum seekers in MNE.

These reports are strictly confidential and are drawn up ​​in accordance with the Law on Personal Data Protection, in order to eliminate any possibility of misuse of collected data. If the competent diplomatic mission or consular post finds in its human rights report in the country of accreditation that there is a possibility of torture, the person who has possibly sought asylum in Montenegro will not be returned to the country of origin.

From the above-mentioned it follows that Montenegro, as a signatory to the Convention, relies on diplomatic assurances both during readmission procedure, and during the asylum application procedure. So far there were not recorded cases of transfer of persons with the mediation of a Montenegrin diplomatic mission or consular post, to the country of origin where the same person has been exposed to inhuman treatment. Therefore there was no need to include subsequent monitoring mechanisms.

According to available data kept by the Police Directorate - Division for Foreigners and Illegal Migration, concerning the number of persons who were returned by Montenegro to other countries under the Agreement on Readmission and within the repatriation process, the following persons were returned in the period from 01/01/2008 to 01/07/2012:
- To the Rep. of Albania 96 persons under the Agreement on Readmission - summary procedure,

- To the Rep. of Albania 17 persons - forcible removal,

- To the Rep. of Serbia 1 person - forcible removal,

- To the Rep. of France 1 person – repatriation,

- To Georgia 1 person – repatriation,

- To Algeria 3 persons – repatriation,

- To Nigeria 3 persons – repatriation.
Please note that all cases concerned illegal migrants. The highest percentage of these persons were returned immediately after being caught committing a violation of the Montenegrin visa regime, without the need for diplomatic mediation or assurances.