The Belgrade Centre for Human Rights (BCHR) alerts to the main deficiencies of the Draft Internal Affairs Act (hereinafter: Draft) that may have far-reaching negative consequences on civil rights and freedoms.

First of all, the definition of the police in Article 25 of the Draft as “an organised force of coercion” is unsuitable in a democratic society based on human rights, in which the police should be a professional and politically neutral service protecting civil rights and freedoms; however, according to the Draft, the main attribute of the police is its entitlement to use coercion in specific cases. Another concerning entitlement is the one given to a senior government official (the Minister of Internal Affairs) to allow “other entities” to use the word “police” in their names, as it provides ample ground for abuse. 

The Draft either fails to include or waters down specific safeguards against police abuse provided for in the valid Police Act. For instance, as opposed to Article 65 of the current Police Act, Article 58 of the Draft fails to mention the right of citizens to require that a person they trust be present during the exercise of police powers.

Article 59 of the Draft prohibits “publication of information about the identity” of police officers exercising police powers, without any valid explanation; fines for violating this ban range from 30,000 to one million RSD. This provision is not in compliance with Article 82 of the Public Information and Media Act, under which private information or personal record may be exceptionally published without the consent of the person at issue if in a particular case the public interest to know the information or the record overrides the interest to prevent their publication;  public interests shall prevail especially in cases where the information or record pertains to a person, event, or occurrence that is of interest to the public, especially if it pertains to a holder of a public office or political function, and the publishing of the information is in the interest of national security, public safety, prevention of disorder or crime, protection of health or morality, or the protection of rights and freedoms of others, or in the event the person has attracted the public attention by their statements or behaviour in private, family or professional life and therefore given rise to the publication of such information or record. The protection of the identity of police officers violating human rights or engaging in other misconduct while performing their duties is unjustified and may greatly impinge on people’s decision whether or not to take part in protests and record illegal actions by the police, which, to recall, is often the only and strongest evidence victims of police ill-treatment have. 

Furthermore, the Draft lays down that police officers shall wear on their uniforms visible identification insignia comprised of “a combination of letters and/or numbers”. In addition to the fact that the Draft does not specify the complexity or length of the combination of letters and/or numbers identifying the officers (there is, e.g. a major difference between the “Belgrade 2255” and “X4Y17Z25”), there is no doubt that this method of identification will not facilitate bringing to justice police officers violating the law and human rights given that victims or witnesses of such events can hardly be expected to remember combinations of letters and/or numbers as easily as they would the officer’s first and last names. The irrationality of the provision is stark given that Article 59 of the Draft obligates police officers to show their official IDs (with their first and last names) before or after exercising their police powers. The crucial importance of enabling the efficient and simple identification of police officers violating the law and human rights is vividly illustrated by the numerous cases of police ill-treatment during the July 2020 protests, the perpetrators of which have not only gone unpunished, but – with the exception of  one case – have gone unidentified as well.    

Article 74 of the Draft lays down that only police summons issued to suspects shall specify that they have the right to a lawyer. This provision is not in accordance with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe (CPT), which has repeatedly emphasised the importance of the right to a lawyer, specifying that the enjoyment of the right should not be made dependent on the person having been formally declared to be a “suspect” and on how “minor” the offence of which they are suspected is.[1]

Article 81 of the Draft, under which persons being deprived of liberty shall be notified of their rights, needs to be elaborated. It should specify that people deprived of liberty shall be notified of their rights safeguarding them against torture and other forms of ill-treatment, notably, the right to contact and access their lawyer as soon as possible; the right to notify a person of their choice of their deprivation of liberty; the right to be examined by a doctor of their own choosing; and the right to legal aid irrespective of their financial standing, if they require such aid to protect them against torture or inhuman or degrading treatment under Article 4 of the Legal Aid Act (hereinafter: LAA).

The BCHR is also of the view that the adoption of the new law on internal affairs is a good opportunity to initiate amendments to the LAA to facilitate expedient access to the procedure by which people deprived of liberty can apply for legal aid to protect them against ill-treatment. The LAA  provisions on access to legal aid by persons deprived of liberty in the police or other institutions, who are entitled to and need such aid to protect them against ill-treatment by the officials in the institutions they are held in, are inadequate.

Articles 71 and 156 of the Draft provide for massive audio-video police surveillance and use of facial recognition biometric software, which is disputable in terms of the necessity and proportionality of interfering in the right to privacy of a large number of citizens in a democratic society. On the other hand, the Draft does not provide for audio-video surveillance of police offices in which people, who have been summoned or deprived of liberty, are interviewed. In its latest (2018) Report on its visit to Serbia, the CPT said that the Serbian authorities should establish dedicated interview rooms with audio and/or video equipment for recording police interviews.[2] The National Assembly and Government have not taken any steps in response to an initiative the former Protector of Citizens submitted to them in 2016, to mandate the recording of police interviews.

Article 93 of the Draft enumerates the reasons why the police may enter people’s homes and other premises without a court warrant, which go beyond those set out in Article 40(3) of the Constitution. Whereas the Constitution allows the police to enter a person’s home or other premises without a court warrant only if necessary to deprive of liberty a criminal offender or eliminate a direct and grave risk to people or property in a manner stipulated by the law, the Draft unjustifiably extends this entitlement to several other situations requiring a court warrant under Article 152 of the Criminal Procedure Code (e.g. if the police suspect that a person they are looking for – the accused is in the premises or in order to secure evidence of a committed crime).

The provisions of the Draft on security checks are imprecise and possibly unconstitutional. Article 108 of the Draft lays down that security checks shall entail checking and processing data entered in response to the questions in the questionnaire on identification data; some of the data that must be entered in the questionnaire include “contact details (telephone number and e-mail)” and “data of household members”. A mere linguistic interpretation of these provisions provides a glimpse of the huge potential for abuse of collecting and processing numerous personal data (e.g. data concerning telephone numbers and e-mails may include, e.g. data on communication traffic, while data of household members may include any of their personal data). Furthermore, under Article 111 of the Draft, the security check procedure and the questionnaire template are to be laid down by the Minister, although Article 42 of the Constitution requires that the collection, storage, processing and use of personal data must be governed by a law, not by a by-law. Finally, Article 108 of the Draft, under which job applicants and applicants for police and firefighting training and others, who refuse to consent to a mandatory security check, shall be deemed to have abandoned their application or realisation of their right, is inadequate from the perspective of balancing conflicting interests at stake.

The Draft does not put provide adequate grounds for conducting effective investigations of police ill-treatment. The proclaimed independence of the Internal Control Sector (in Article 199 of the Draft) can in practice be undermined by the Minister’s powers to “put in place conditions for independent internal control” (Article 189) and to control the work of all Sector staff by establishing a special commission (Article 201), the composition of which is not defined. The Sector’s independence is also brought into question by the fact that, like the valid Police Act, the Draft does not specify who shall be employed in this Sector (which is mostly staffed by former police officers).

The provisions on suspension and dismissal of police officers in the Draft are not in compliance with valid standards on the prohibition of torture and other forms of ill-treatment. The CPT and the European Court of Human Rights have repeatedly underlined that public officials accused of torture or other forms of ill-treatment must be suspended during investigation and trial and dismissed if they are found guilty, which is crucial for preserving public trust in the work of state authorities. The Draft, however, does not provide for mandatory suspension and dismissal in such cases. Article 345 of the Draft sets out that police officers “may be” suspended on the reasoned proposal of their superiors if they are prosecuted for a crime prosecuted ex officio or subject to disciplinary proceedings  for a grave violation “if their presence at work would prejudice the interests of the service, obstruct the collection of evidence or the course of the criminal or disciplinary proceedings” and that their suspension will be ordered by the Minister or a person s/he designates. On the other hand, dismissal of police officers found guilty of a crime depends on the type and severity of the penal sanction (minimum six months’ imprisonment, suspended six-month jail term or sentence of imprisonment under six months) and/or the qualification of the offence as one rendering the officer unworthy of performing the duties of a public official (the list of crimes rendering a police officer unworthy is to be drawn up by the Minister of Internal Affairs).[3]

The Draft was published in late August 2021 on the MIA’s website and the public debate on it lasted only 20 days. The BCHR expects of the MIA to extend the public debate, as requested by the National Convention on the European Union Working Groups for Chapter 23 – Judiciary and Fundamental Rights and Chapter 24 – Justice, Freedom and Security. The proposer of the Draft will thus have the opportunity to clarify the starting points guiding the development of the Draft and to eliminate the disputable provisions alerted to by civil society organisations and experts.  

[1] “For example, under many legal systems in Europe, persons can be obliged to attend – and stay at – a law enforcement establishment for a certain period of time in the capacity of a “witness” or for “informative talks”; the CPT knows from experience that the persons concerned can be at serious risk of ill-treatment.” CPT, Extract from the 21^st General Report of the CPT, §§ 19-21, available at: www.coe.int/en/web/cpt/access-lawyer.

[2] CPT Report to the Government of Serbia, 21 June 2018, CPT/Inf (2018) 21, § 16, available at: https://rm.coe.int/16808b5ee7

[3] In July 2020, the BCHR filed an initiative with the MIA to amend the Police Act, in which it alerted to the same deficiencies of that law and the need to bring them into compliance with the valid human rights standards and recommendations issued by international institutions monitoring compliance with the prohibition of torture. The BCHR’s initiative is available in Serbian at: www.bgcentar.org.rs/podneta-inicijativa-mup-u-srbije-za-izradu-nacrta-zakona-o-dopunama-zakona-o-policiji/.

The new Draft Law on Internal Affairs, if passed in its current form, will undermine the achieved level of human rights, including the right to freedom of speech and the right to privacy.

The proposed Articles 44, 156 – 158 of the Draft Law regulating data processing systems, as well as surveillance and recording in public places endanger the right to privacy of citizens and introduce total surveillance without any court control and completely contrary to the standards of the GDPR and the Law on protection of personal data.

These regulations can also have a detrimental effect on endangering the secrecy of journalistic sources, which develops the effect of self-censorship and prevents the work of journalists, primarily those who investigate and report on corruption and organized crime.

We remind you that these provisions are contrary to the goals in the Media Strategy, which envisaged strengthening the protection of journalistic sources, which can only lead to such proposals in the opposite direction.

Also, the restrictions provided for in Articles 25, 58 and 59, as well as the penal provisions in Article 355 which provide for high penalties for natural persons, both for the use of the term “police” and for revealing the identity of an police officers, jeopardize the regular work of journalists, reporting in public interest and lead to an absurd situation since the use of the term “police” must require the permission of the line minister. Revealing the identity of a police officers, who apparently will no longer wear badges with their last name but will be a combination of letters and numbers, will also be punishable, even though he is an officials whose work must be under public scrutiny.

The work on this Draft Law was rather non-transparent and the interested parties, despite the program of public hearings, which was published on the website of the Ministry of the Interior, were not informed about it.

We invite all interested individuals and organizations to take participation in the public debate to try to defend our rights together. Amendments to the proposed Draft can be sent by interested parties to the e-mail [email protected] no later than September 18, 2021.

1. Independent Journalists’ Association of Serbia
2. Independent Journalists’ Association of Vojvodina
3. Slavko Curuvija Foundation
4. Partners Serbia
5. Association of Online Media
6. A11 Initiative
7. Transparency Serbia
8. European Movement Serbia
9. Youth Initiative for Human Rights
10. Belgrade Centre for Human Rights
11. Autonomous Women’s Centre
12. AS Center
13. Association of local independent media Local press
14. Anti Smoking Educational Center – RP
15. Western Balkans Institute
16. Sandzak Committee for the Protection of Human Rights and Freedoms
17. TV Forum
18. Center for women studies
19. Lawyers’ Committee for human rights YUCOM
20. Association of Media
21. CRTA
22. Committee for Human rights Nis
23. Alternative home
24. NGO Libero
25. Belgrade Centre for Security Policy
26. Civic Initiatives
27. BIRODI

With regard to the ongoing developments in Afghanistan, the Belgrade Centre for Human Rights notes that people from Afghanistan account for most migrants on the Balkan Route and that the situation in this country will very likely give rise to a new influx of refugee in the coming months. The United Nations High Commissioner for Refugees (UNHCR) estimates that over 550,000 Afghans have been internally displaced by conflict within the country since the beginning of 2021, including 126,000 new IDPs between 7 July 2021 and 9 August 2021.

Given the decades long hostilities, legal uncertainty and human rights violations in Afghanistan, parts of the population of this state have for decades been in need of international protection. The Serbian Commissariat for Refugees and Migration (CRM) data 1 show that Afghan nationals account for most of the residents of state centres providing accommodation to migrants and refugees. CRM statistics* indicate that 22,000 Afghan nationals passed through Serbia in 2020 and that another 8,500 of them passed through its territory since the beginning of the year. According to data available to the BCHR, a total of 181,065 Afghans expressed the intention to seek asylum in Serbia in the 2012-2020 period and 300 of them applied for asylum in the 2016-2019 period. A total of 17 people from Afghanistan were granted refugee status and another eight subsidiary protection in Serbia in the 2016-2020 period. Serbia upheld a total of 194 asylum applications in the 2008-2020 period.

UNHCR has been monitoring the situation on the ground, where the security and human rights situation has been rapidly deteriorating in large parts of Afghanistan after the withdrawal of international troops from that state, and the upsurge of violence has had serious impact on civilians, including women and children and has called on all states to allow civilians fleeing Afghanistan access to their territories and to ensure respect for the principle of non-refoulement at all times. UNHCR noted the imperative to ensure that the right to seek asylum was not compromised, that borders were kept open and that people in need of international protection were not consigned to areas inside their country of origin that could potentially be dangerous. UNHCR called on States to suspend the forcible return of nationals and former habitual residents of Afghanistan, including those who have had their asylum claims rejected. It said that a moratorium on forced returns to Afghanistan would need to stay in place until the situation in the country has stabilised, pending an assessment of when the changed situation in the country would permit return in safety and dignity.

The BCHR appeals to all the relevant authorities in Serbia to bear UNHCR’s recommendations and the current situation in Afghanistan in mind when ruling on asylum applications filed by individuals from Afghanistan.

UNHCR’s Position on Returns to Afghanistan is available at: https://www.refworld.org/pdfid/611a4c5c4.pdf

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*Radio Free Europe, Balkan Route Countries Readying for Refugees Fleeing the Taliban, 17 August 2021, available in
Serbian at: https://www.slobodnaevropa.org/a/avganistan-talibani-izbeglice-balkan/31414941.html.

Having reviewed the complaint filed by the Belgrade Centre for Human Rights (BCHR), the Commissioner for the Protection of Equality found that Banca Intesa a.d. Belgrade had violated Article 6 of the Anti-Discrimination Act since it had directly discriminated against refugees and asylum seekers in Serbia when it refused to allow them to open bank accounts. The Bank negatively generalised against these people based solely on their nationality and place (country) of birth, whilst failing to assess whether they fulfilled the legal requirements to open accounts in that Bank, said the Equality Commissioner in her Opinion.

The BCHR filed a complaint with the Equality Commissioner in April 2020, after Banca Intesa refused to allow a number of its clients – nationals of Iran, Iraq and Afghanistan granted asylum or subsidiary protection in Serbia or seeking asylum in Serbia – to open accounts with that Bank. The Bank refused to let them open accounts because of their national or ethnic origin, as well as because of their citizenship. In her Opinion, the Commissioner found the Bank in violation of the Anti-Discrimination Act because it had not reviewed whether the applicants fulfilled the legal requirements to open accounts in each individual case. The Equality Commissioner recommended that the Bank: review the fulfilment of the legal requirements by the applicants without making negative generalisations about them based purely on their citizenship or place (country) of birth; make sure it does not violate anti-discrimination law; and, notify her of measures it plans to take in order to implement her recommendations. 

The BCHR applauds the Commissioner’s conclusions and notes, in particular, that banks should explain their suspicions, refrain from indiscriminate and discriminatory assessments, and operate in accordance with Serbian laws, irrespective of their in-house procedures, rules and risk assessments. Our view is corroborated by the opinion voiced by the National Bank of Serbia in response to BCHR’s request. The NBS said that specific banking regulations did not constitute grounds for precluding an entire category of people from the possibility of opening bank accounts on grounds of their nationality or citizenship and referred to national legal provisions prohibiting discrimination. 

BCHR has been UNHCR’s executive partner since 2012 and has been extending legal aid to refugees and asylum seekers, strategically representing them before domestic and international bodies, extending them support in integrating in Serbia’s society and advocating the improvement of the status of all refugees in Serbia.  

The Equality Commissioner Opinion and recommendation is here in serbian.

The National Bank of Serbia response to BCHR’s request is here in serbian.

Regarding the frequent official and informal calls on civil society organizations to get involved in the consultation process with the Ministry of Human and Minority Rights and Social Dialogue for drafting The National Strategy for an Enabling Environment for Civil Society Development in the Republic of Serbia, we remind that the intolerant atmosphere towards civil society, due to which civil society organizations made their decision not to participate in this process in April of this year, has not changed.

On that occasion, the following requests were issued to the Ministry of Human and Minority Rights and Social Dialogue and the Government of Serbia:

• that the Administration for the Prevention of Money Laundering and Terrorist Financing publish a report on the case of “the List”, and that the competent institutions initiate the procedure of establishing responsibility for exceeding the authority and official powers of the Administration prescribed by the Law on the Prevention of Money Laundering and the Financing of Terrorism; 

• that the National Assembly put a stop to MPs violating the Code of Ethics and abusing this institution to spread lies, libel and intimidate the civil sector; 

• to stop tabloid campaigns against the civil sector and independent journalists in the pro-regime media.

In this regard, we would like to remind you once again that the egregious attacks on members of civil society and independent media that took place in the National Assembly of the Republic of Serbia during March 2021 passed without any epilogue. In those days, several MPs, including the head of the largest parliamentary group, Aleksandar Martinović, went beyond acceptable behavior and abused the institution of Parliament to launch verbal attacks spreading intolerance and hatred towards the civil society organization CRTA and the independent investigative outlet KRIK, as well as for malicious personal attacks on several activists. Furthermore, even after one year since the case of “the List”, no steps have been taken to determine the responsibility of the Administration for the Prevention of Money Laundering and Terrorist Financing for the fact that this body sent a request to all banks in Serbia to submit data on the accounts and financial transactions of 37 organizations and 20 individuals from the media and civil society without a clear legal basis.

CSOs have repeatedly asked for dialogue with the authorities in order to urgently resolve the requests submitted to the Ministry of Human and Minority Rights and Social Dialogue, which, in turn, has publicly declared itself incompetent to address pressure and attacks on civil society. It is the responsibility of this ministry, as well as all other institutions, to, with respect to the Constitution and the laws of Serbia, influence the provision of basic conditions for the work and activities of civil society, before starting any process that would promote an enabling environment.

If the institutions of the state of Serbia sincerely wish to create a stimulating environment for the work of civil society with this Strategy, and do not simply intend to engage in further simulation of dialogue and democracy, we believe that they will do everything in their power to fulfill our previously sent requests. In order to enjoy the high standards of modern democracy, open society and media freedoms, nurture a culture of dialogue and create a tolerant social environment, it is necessary for key social and political actors to see civil society as an important partner, whose activities are aimed at improving the living conditions of all Serbian citizens.

Signatories:

• Civic Initiatives
• Belgrade Center for Security Policy
• Belgrade Center for Human Rights
• Catalyst Balkans
• European Policy Centre
• Center for Research, Transparency and Accountability (CRTA)
• European Movement in Serbia
• Humanitarian Law Center
• Youth Initiative for Human Rights (YIHR)
• Initiative for Economic and Social Rights – A11
• Lawyers’ Committee for Human Rights – YUCOM
• National Coalition for Decentralization
• Autonomous Women’s Center
• Independent Journalists’ Association of Serbia
• Bureau for Social Research (BIRODI)
• Youth Center CK13
• Policy Center
• Partners Serbia
• Slavko Ćuruvija Foundation
• Trag Foundation
• Transparency Srbija
• Vojvodina Civic Center
• Center for Rule of Law
• PROTECTA

The Belgrade Centre for Human Rights (BCHR) marked the first anniversary of the civic protests in Serbia, during which a large number of citizens were victims of police brutality, both in the streets and in police stations, by presenting its report Investigations of Police Brutality during the July 2020 Civic Protests. The report focuses on the course of the ongoing investigations against police officers by the public prosecution offices and the Protector of Citizens.

The BCHR filed 32 criminal reports against over 70 unidentified police officers and as many initiatives and complaints with the Protector of Citizens, requiring that he review the lawfulness of the MIA’s operations. A11 – Initiative for Economic and Social Rights filed another nine criminal reports of police brutality in Belgrade and five initiatives seeking the review of the MIA’s operations by the Protector of Citizens.

The report identifies a number of flaws in the handling of the criminal reports, complaints and initiatives by the relevant authorities, greatly undermining the likelihood of the identification and punishment of those responsible. The effectiveness of the investigations into police brutality is questionable given the lack of activity on the part of the Belgrade First Public Prosecution Office, and lack of thoroughness and promptness of the MIA’s Internal Control Sector (ICS) and the Protector of Citizens, wherefore the victims of police brutality will probably be forced to seek justice before the Constitutional Court and international human rights institutions.

Herewith some of the major flaws identified in the report:

• Forwarding of criminal reports and evidence of ill-treatment (witness statements, medical documentation, video footage, proposed evidence, etc.) to the police units where the implicated officers work before taking any action in response to the criminal reports (questioning of the suspects, collection of evidence) – facilitating collusion of the suspect police officers and their co-workers;
• Written communication between the Belgrade First PPO and the ICS during the investigations via the Belgrade police – compromising the confidentiality of the investigations;
• Written communication between the Protector of Citizens and the ICS during the investigations via the Police Minister’s Office and the MIA Secretariat – compromising the confidentiality of the proceedings before the Ombudsman;
• Delays in taking statements from police officers – more than two months after the incidents;
• Delays in taking statements from victims – more than seven months after the incidents – some victims have not even been summoned yet;
• Failure to order court expert reports on the injuries and medical documentation;
• Delays in collecting the video footage of cameras that may have recorded police brutality and failure to check MIA claims that some of its surveillance cameras on Belgrade streets were not operational;
• Failure to organise identification parades in cases where the victims said they might be able to recognise the officers who had ill-treated them, who were not wearing visors or masks during the incidents;
• Failure to penalise police officers who obviously made false statements during the preliminary investigation proceedings and produced identical (copy-paste) reports on use of force;
• Failure to take statements from all officers involved in the incidents and to question their superiors’ assessments that their use of force had been legal.

The report is available here in english, as well here in serbian. 

The development and publication of this report has been supported by the European Center for Non-Profit Law (ECNL) within the project “Legal Support to Victims of Police Brutality during the July 2020 Protests and Analysis of Judicial and Prosecutorial Practices in Torture and Ill-Treatment Cases in the January 2018-June 2020 Period”.  

The report is part of BCHR’s publication on investigations of torture and ill-treatment in the 2018-2020 period, which will be published in the coming weeks.