Drugi periodični izvještaj crne gore komitetu protiv torture

14. Please provide data, disaggregated by age, sex and nationality on:

(a)     The number of asylum requests registered and approved;

(b)     The number of asylum seekers whose requests were granted because they had been tortured or might be tortured if they were returned to their country of origin;

(c)     The number of forcible deportations or expulsions and the countries to which these persons were expelled. Please indicate how many of them involved rejected asylum-seekers.

a) The number of registered and approved asylum applications disaggregated by age, sex and nationality from 2008 until 17 Oct 2012:

registered applications for asylum: 1,387. Age: 1,363 adults, 24 juveniles. Sex: 1,373 males and 14 females. Nationality: FYR Macedonia 5, Serbia 6, Albania, 6, Afghanistan 110, Belarus 1, Georgia 3, Kosovo 7, Russian Federation 4, Kenya 2, Croatia 2, Turkey 4, Algeria 728, Iran 14, Palestine 22, Kingdom of Morocco 175, Tunisia, 151, Somalia 1, Libya 6, Nigeria 7, Liberia 1, Pakistan 79, Iraq 2, Egypt 6, Syria 23, Moldova 1, Romania 1, Sudan 2, Kuwait 1, Sierra Leone 3, Lebanon 2, India 5, Yemen 1, Bosnia and Herzegovina 1, Latvia 1, Bangladesh 3, Mauritania 1.

b) Out of the said 1,387 asylum applications filed, 1 person was granted refugee status (adult male from FYR Macedonia), which has since terminated; 5 subsidiary protections were approved (1 adult male from Belarus, Kingdom of Morocco 2, Iraq 1, Iran 1). In the meantime, subsidiary protection of one person was cancelled (Iran). The said persons were accorded international protection as in case of their return to the country of origin they would be subjected to torture.

c) In the period 2009-2012 there were no forcible deportations or expulsions of foreigners. The asylum procedure is the responsibility of the Ministry of Interior.

Responses to questions related to Articles 5 and 7 of the Convention (questions Nos. 15,16)

15. Further to the recommendation of the Committee in the previous concluding observations (paragraph 13), please provide detailed information on measures taken by the State party to review the terms of the bilateral agreement between the United States of America and Montenegro which prevents the transfer of United States nationals in the territory of Montenegro to the International Criminal Court, in accordance with the provisions of the Convention.¹⁴

Montenegro is a contracting party to the Statute of the International Criminal Court and is ready to cooperate fully with the court and to comply with all of its international obligations in this field, as shown by its overall cooperation with the Hague Tribunal.

Montenegro signed an agreement in 2007 with the United States in connection with Article 98, exchange of diplomatic notes, which did not imply any signature or ratification. At that moment, it was estimated that such an arrangement would allow us to strengthen our cooperation with the U.S. and successful reforms in the security and defence sectors.

Montenegro has expressed its readiness to contribute to the investigation and prosecution of acts falling under the jurisdiction of the International Criminal Court. By means of the agreement, we took upon ourselves the obligation to consult with the U.S., on a reciprocal basis, in relation to the surrender of U.S. nationals to the International Criminal Court, if present in the territories of the contracting parties.

It should be noted that this agreement has a provision on revision and it can be cancelled with a validity period of one year after the cancellation notice. Until now there were no specific cases where this Agreement had to be applied.

16. Please provide detailed information on how the State party has exercised its universal jurisdiction over persons responsible for acts of torture, wherever they occurred and regardless of the nationality of the perpetrator or victim, and provide specific examples and texts of any decisions on the subject.

SEE ANNEXES I - VII

Responses to questions related to Article 10 of the Convention (questions nos. 17,18)

17.   Further to the recommendation of the Committee in the previous concluding observations (paragraph 14), please provide detailed information on measures taken by the State party to:

(a) Further develop educational programs to ensure that all officials, including civil or military, law enforcement personnel, medical personnel and other officials who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment, are fully aware of the provisions of the Convention;

(b) Ensure that all relevant personnel involved with detained persons receive specific training on how to identify signs of torture and ill-treatment and report such incidents to the competent authorities, on the basis of the Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1999) and to include it as an integral part of the training provided to forensic medical personnel and other professionals involved in the documentation and investigation of torture and that it is translated into all appropriate languages; and

(c) Develop and implement a methodology to assess the effectiveness and impact of such training/educational programs on the reduction of cases of torture and ill-treatment.¹⁵

Training of Police Directorate officers - Police Academy: human rights and ethics, involving 22 units and a class load of 54 are taught at the Police Academy in Danilovgrad, within the education program for policemen of basic level. Four classes out of the total class load are devoted exclusively to the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. This topic is also present in other units such as: police and human rights, human rights during preliminary investigation and investigation, rights of vulnerable groups, protection of human rights during arrest and provisional custody, ethics in the police service, awareness of difference, as well as in nine classes on the international humanitarian law. Moreover, four classes are devoted to the Convention exclusively within the subject ethics and code of conduct (class load of 36) as part of the education program for prison officers. This topic is also covered in a series of other units, as well as in the contents of the subject human rights and prisons. Both educational programs are devised in a spirit of respect for human rights and ethical and human treatment, which permeates through all the subjects (theoretical and practical classes) contained within the education of future police officers and prison officers.

Training of judicial and prosecutorial office holders - the Judicial Training Centre organized a total of 11 activities/seminars for judicial and prosecutorial office holders on the manifestations of torture and ill-treatment, in the period from June 2008 to July 2012. They were attended by more than 132 participants (61 representatives of the judiciary and 71 representatives of the prosecution office). Seminars and workshops were held on topics of the European Convention on Human Rights and the Criminal Procedure Code. The Judicial Training Centre regularly distributes newsletters containing selected judgments of the European Court of Human Rights to all courts and prosecution offices in Montenegro. In previous years, the bulletin in question had monthly editions, but in 2011 it started to be published on a quarterly basis. This long-standing practice of the JTC is implemented in collaboration with the AIRE (Advice on Individual Rights in Europe) Centre from London and the Council of Europe.

18. Further to the recommendation of the Committee in the previous concluding observations (paragraph 14), please provide information on the training for law enforcement personnel, particularly border and customs officials, in handling cases of trafficking and on awareness-raising campaigns and training on domestic violence for judges, lawyers, law enforcement personnel and social workers who are in direct contact with the victims. Please include how many officers have undergone such training, the results of these trainings and how these results are evaluated. ^{16 17}

DETAILED OVERVIEW OF TRAININGS - ANNEX IV

Responses to questions related to Article 11 of the Convention (questions nos. 19,20)

19. Further to the recommendation of the Committee in the previous concluding observations (paragraph 15), please provide detailed information on measures taken towards the implementation of the national prison reform process, including the allocation of sufficient funds to further improve the infrastructure and hygienic conditions, in particular, in the Podgorica Prison.¹⁸
Being the line ministry, Ministry of Justice and Human Rights pays special attention to the implementation of valid European standards regarding the sanction serving policy, as well as the relevant Council of Europe conventions and European Prison Rules. The afore-mentioned were taken into account during the development of the Action plan to improve the prison system adopted by the Government of Montenegro in September 2011. The Action plan defines measures to improve the situation in the prison system, competent authorities for their implementation, as well as deadlines and indicators on the basis of which it will be possible to assess the success of planned measures and the results achieved. Planned activities are grouped in such a manner to improve prison conditions, education and vocational training of the Institution for Enforcement of Criminal Sanctions staff, treatment of sentenced persons and to promote alternative sanctions and strengthen public relations policy.

The project Support to the Reform of the System of Criminal Sanctions Execution was implemented in 2011 with the support of the European Union in order to improve the legal framework and promote alternative sanctions and best management practices in the prison system. IPA 2011 project is expected to begin by the end of 2012, which will continue activities to improve the implementation of legislation in the field of criminal sanctions execution, to strengthen probation and reintegration services and improve prison management system.

A project was designed for waterworks and electrical installations in Podgorica Prison, and the funds were provided by the Directorate of Public Works.

20. Please provide information on the steps taken to improve the conditions of all places of detention and imprisonment and to ensure the segregation of male and female and the segregation of those sentenced and those remanded in custody. Also, provide information on inter-prisoner violence, including the number of complaints, any action taken by the State and the result of such action. Also, please provide statistical data on the number of prisoners in prison facilities as well as the degree to which the number of prisoners in each facility exceeds design capacities.

Bearing in mind provisions of the Criminal Procedure Code and of the existing Rulebook on holding facilities and recommendations submitted to the Police Directorate by the Protector of Human Rights and Freedoms, it was stated that detention premises in all the regional and local units of the Police Directorate at present do not meet the requirements. Taking into consideration the importance of these issues and aiming to improve conditions in all holding facilities, The Holding Facilities project was developed. It examines very accurately the current situation and provides appropriate guidance and sets priorities for future necessary investments. Detention premises in regional and local police units would be thus brought to the required level. This project also defined precisely the possibility of separating detained men and women, according to recommendations received that the organizational units in the field must have separate rooms for such cases.

In the period 2009-2012 Police Directorate did not have any reported cases of violence and torture in detention facilities. The last such reported case was in the holding premises of Podgorica regional police unit (Pejanović case, 2008) which was processed and handed over to the judicial authorities.

Please note that all detention facilities are recorded at present by quality video monitoring equipment, which allows for a prompt identification of all possible cases of torture or ill-treatment.

Number of persons detained by year is as follows: 2008 -7,817, 2009 -8,423, 2010 – 8,901, 2011 – 10,180.

In 2012, following the implementation of the new Criminal Procedure Code (of 01/09/2011), the number of detained persons was significantly reduced. Thus, after the planned investments, the existing number of holding facilities will fully meet the needs of the Police Directorate.

Institution for Enforcement of Criminal Sanctions – The rulebook on the conditions of accommodation of sentenced persons which is also applied to detainees provides that every prisoner should have at least 8 m² or 20 m³. According to the criteria of the Rulebook, the total capacity of the Institution for Enforcement of Criminal Sanctions corresponds to 1,100 detainees. These are the figures showing number of persons placed in the organizational units of the Institution for Enforcement of Criminal Sanctions: investigative prison in Podgorica - 276 detainees, Bijelo Polje prison - 32 detainees and 58 sentenced persons, 123 sentenced persons in the short term incarceration facility and in the Correctional Facility (KP DOM) in Podgorica - 702 sentenced persons. Comparing the numbers of sentenced persons and detainees at the Institution to the numbers of the previous year, we can see that they were significantly reduced and that it now accommodates 91 person more than the actual design capacities. Overcrowding is only obvious in the organizational unit of Correctional Facility in Podgorica which has the capacity to accommodate 470 sentenced persons. The problem of overcrowding is no longer present in other organizational units of the Institution.

Master plan of infrastructural investment in the sectors of education, health, culture, sports and state administration for the period 2011-2020 envisages the construction of a long term incarceration facility and a prison hospital at the prison in Spuž and the construction of a prison/detention unit in the prison complex in Bijelo Polje. Preliminary architectural documents for the construction of a long term incarceration facility and a prison hospital was prepared within the IPA project Support to the Reform of the System of Criminal Sanctions Execution which was implemented in 2011 with the support of the European Union. Construction of these facilities will provide relief of the design capacities and conditions of a higher quality for the stay of sentenced and detained persons while serving a prison sentence or during detention.

The Institution for Enforcement of Criminal Sanctions provides the segregation of men and women, as well as the segregation of those sentenced to prison term and those who are remanded in custody. The juvenile department/for those serving the sentence of juvenile custody was opened. It should be particularly underlined that the women's part of the Institution was renovated, which was presented in the Montenegrin media.

Based on the recommendations of the Committee against Torture, the IECS's Board of Directors adopted in July 2012 the Strategy to prevent ill-treatment and violence among prisoners. Moreover, in July 2012 IECS prepared and adopted an Action plan which defines measures to meet CPT recommendations and those of the Ombudsman and relevant NGOs, supported by the EC within the monitoring closed-type institutions project.
Responses to questions related to Articles 12 and 13 of the Convention (questions Nos. 21-26)

21. Further to the recommendation of the Committee in the previous concluding observations (paragraph 8), please provide information on whether the State party has guaranteed the full independence of the judiciary in line with the Basic Principles on the Independence of the Judiciary (General Assembly resolution 40/146 of December 1985) and that judicial appointments are made according to objective criteria concerning the qualification, integrity, ability and efficiency. Has an independent monitoring mechanism of Court proceedings with the view to further enhancing the independence of the judiciary been adopted?¹⁹

The 2007-2012 judicial reform strategy and the Action plan for its implementation identified as key targets to strengthen the independence and effectiveness of the judiciary. In this regard, significant progress has been achieved and major activities have been undertaken through amendments to the Law on Courts, Law on the Judicial Council and the Law on Public Prosecution Office. The Parliament adopted amendments to the laws and all three laws were published in the Official Gazette of Montenegro 39/11 on 4 August 2011.

Amendments to the Law on the Judicial Council and the Law on Courts were aimed at establishing an independent and efficient system of appointment of judicial office holders. Therefore, criteria were laid down for the selection of members of the Judicial Council from judges and renowned jurists; procedure was prescribed for the nomination of candidates for appointment to the position of the Supreme Court Chief Justice; criteria for the selection of judges were revised by separating them into the criteria for the appointment of judges appointed for the first time, criteria for the appointment of promoted judges and criteria for president of courts. In addition to that, a system of objective assessment of their work was defined and disciplinary proceedings and disciplinary measures aimed at strengthening the accountability of judges were enhanced.

In addition to that, amendments to the Law on Public Prosecution Office involved the appointment procedure of deputy public prosecutors, revising the established criteria for appointment and their objective valuation under sub criteria, disciplinary accountability and removal from office, as well as reducing the concentration of powers of the Supreme Public Prosecutor. Amendments to the Law on Public Prosecution Office apply as well to the system of appointment of members of the Prosecutorial Council from among public prosecutors and deputies, revising the criteria for the appointment of public prosecutors and deputies who are appointed for the first time and who are being promoted and the definition of a system for their objective evaluation and disciplinary procedures.

While drafting the law, harmonization with international standards on judicial independence was taken account of, especially with the United Nations standards contained in a series of documents. The most important of them are: The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, the United Nations Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress, endorsed by the UN General Assembly. Standards from the Council of Europe documents were also taken into account. The most important of them are: The European Convention for the Protection of Human Rights and Fundamental Freedoms, The European Charter on the Statute for Judges and Opinions of Consultative Council of European Judges, in particular: Opinion no. 1 (2001), Opinion no. 3 (2002), and Opinion no. 10 (2007) and Opinions of the European Commission for Democracy through Law, better known as the Venice Commission, namely: Opinion of the Venice Commission on the Constitution of Montenegro, no. CDL-AD(2007)047 of 14-15 December 2007 and on Judicial Appointments CDL-JD(2007)001rev.

The Judicial Council adopted the Rules of Procedure of the Judicial Council (Official Gazette of Montenegro 57/11, entered into force on 30 Nov 2011). In line with the novelties from the Law on the Judicial Council (Official Gazette of Montenegro 39/11) it regulates in more detail the organization, manner of work and decision making process of the Judicial Council. A scoring system of criteria for the appointment and promotion of judges and presidents of courts was developed in more details; application forms for open job advertisements, forms for opinion giving, forms for assessing candidates appointed for the first time and forms for the judges' personal information sheets were prescribed. On 19 Sep 2011 the Judicial Council appointed the Commission in charge of written testing of the candidates being appointed as judges for the first time. The Commission has two presidents and two members and it is appointed for a one year period. The Disciplinary Commission was also appointed on that occasion.

The Prosecutorial Council adopted the Rules of Procedure of the Prosecutorial Council (Official Gazette of Montenegro 52/11), which entered into force on 4 Nov 2011. In line with the novelties from the Law on the Public Prosecution Office (Official Gazette of Montenegro 39/11) it regulates in more detail the organization, manner of work and decision making procedure of the Prosecutorial Council. A scoring system of criteria for the appointment and promotion of public prosecutors and their deputies was developed in more details; application forms for open job advertisements, forms for assessing candidates appointed for the first time and forms for candidates being promoted were prescribed.

On 1 October 2011 the Conference of Judges formed the Code of Ethics for Judges Commission. The President of Montenegro proclaimed the new composition of the Judicial Council in a decree, in accordance with the Law on Amendments to the Law on the Judicial Council (Official Gazette of Montenegro 39/2011). The inaugural session of the new Judicial Council was held on 15 June 2012. The Law on Amendments to the Law on Courts (Official Gazette of Montenegro 39/11 of 04/08/2011) provides that lower instance courts are obliged to provide to higher instance courts the required data and information that they need in order to monitor and study case law, to perform organizational and professional control of the courts' work, which is why higher instance courts may directly examine the final and enforceable cases of lower instance courts.

Duration of procedures in all types of cases and the results of the courts' work are monitored on the basis of semi-annual and annual reports of all courts that are delivered to the Judicial Council. The duration of proceedings in each case can also be monitored via the judicial information system.

All novelties contained in amendments to the laws represent a significant progress towards strengthening the independence of the judiciary, due to more objective criteria for the appointment and promotion of judges and public prosecutors and the system of valuation of their work, as well as owing to the improvement of the selection procedure, all of which contribute to exercising personal and institutional independence of the judiciary, which is one of the key objectives of the judicial reform.

Monitoring the work of courts - the Supreme Court of Montenegro signed a series of memoranda of cooperation with NGOs and international organizations to monitor the work of courts with a view to improving the independence, efficiency, accountability and transparency of the courts' work. Memoranda were signed with the OSCE Mission to Montenegro, Youth Initiative for Human Rights (YIHR), CEDEM, AIRE Centre from London, NGO Juventas, NGO Centre for Monitoring (CEMI) and NGO 35mm. Reports on the monitoring of courts' work are publicly presented.