17 August 2015
Human Rights Council
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Working Group on Enforced or Involuntary Disappearances
Mission to Montenegro*, **
At the invitation of the Government of Montenegro, the Working Group on Enforced or Involuntary Disappearances visited the country from 27 to 30 June 2014.
The Working Group wishes to thank the Government of Montenegro for its invitation to visit the country and for its cooperation before and during the visit.
The visit to Montenegro took place in the context of an official regional visit during which the Working Group also visited Croatia and Serbia, including Kosovo.1 Given the amount of time that has passed since the enforced disappearances occurred and the advanced age of many witnesses, relatives and perpetrators, there is an urgent need for everyone involved in the search for missing persons in the region to set as an immediate priority the establishment of the truth, particularly the determination of the fate and whereabouts of all the disappeared.
The Working Group is concerned that regional cooperation is marred with mutual mistrust. It calls on everyone involved to contribute to fostering a trusting environment to promote regional cooperation, inter-ethnic reconciliation and social cohesion. The Working Group stresses that successful cooperation requires clear and strong political commitment from the highest levels of all parties involved.
The Working Group calls on the Government of Montenegro to establish enforced disappearance as a separate offence; to ensure efficient prosecution of war crimes in line with international standards; to adopt all measures necessary to combat impunity; and to set up comprehensive reparation programmes.
Report of the Working Group on Enforced or Involuntary Disappearances on its visit to Montenegro
(27-30 June 2014)
I. Introduction 4
II. Regional context 4
III. General situation concerning enforced disappearances and missing persons in Montenegro 7
IV. Legal framework 8
V. Right to the truth 9
VI. Right to justice 11
VII. Right to reparation 13
VIII. Conclusions and recommendations 16
A. Regional recommendations to Governments and authorities 16
B. Recommendations to Montenegro 17
1. At the invitation of the Government of Montenegro, the Working Group on Enforced or Involuntary Disappearances visited the country from 27 to 30 June 2014. The Working Group was represented by three members: Ariel Dulitzky, Jasminka Dzumhur and Osman El Hajjé. During the visit, the Working Group held meetings with high-level authorities, including those in charge of the implementation of international human rights standards in Montenegro, as well as with civil society groups.
2. The purpose of the visit was to examine matters related to enforced disappearances and missing persons in Montenegro, focusing in particular on truth, justice, reparation and memory for victims. While the mandate of the Working Group is to deal with issues related to enforced disappearance, the issues of enforced disappearance and missing persons are clearly interlinked in this particular context. The Working Group makes reference in the present report to victims of enforced disappearance and missing persons, and remains aware of the legal and factual differences between them.
3. The Working Group wishes to thank the Government of Montenegro for its invitation to visit the country. The delegation would particularly like to thank the Ministry of Foreign Affairs for its support for the visit. The Working Group would also like to thank the United Nations country team in Montenegro, especially the Resident Coordinator, for coordinating the joint efforts of various United Nations specialized agencies in providing logistical support to the visit.
4. During the visit, the Working Group held meetings with the Minister of Human Rights, the President of the Criminal Department of the Supreme Court and the Secretary of the Supreme Court, the State Secretary for Political Affairs at the Ministry of Foreign Affairs and European Integration, the Secretary of the Ministry of Labour and Social Welfare and the Director of the Directorate for Social and Child Protection, the Secretary and the Senior Advisor of the Ministry of Health, the Deputy Minister of Defence, the Deputy Minister of Justice, the Director of the Police Directorate and the Protector of Human Rights and Freedoms and the Secretary of that institution. The Working Group held a number of meetings with representatives of all sectors of civil society, including non-governmental organizations, activists and lawyers.
5. The invitations extended by the Government to the Working Group and other special procedures of the Human Rights Council and the level of support provided by the Government before and during the visit of the Working Group are testimonies of the commitment of Montenegro to cooperating with international human rights mechanisms and taking human rights issues seriously. The Working Group received all the documents it had requested, including the legislation and statistical data mentioned during the meetings with official authorities. The Working Group welcomes the openness demonstrated by Montenegro and encourages it to invite other special procedures mandate holders to visit the country in the near future.
II. Regional context
6. The visit to Montenegro took place in the context of an official 16-day regional visit during which the Working Group also visited Croatia and Serbia, including Kosovo. While the present report addresses matters mainly concerning Montenegro — for which the numbers of enforced disappearances and missing persons are certainly much lower than in other countries in the region — the issue of enforced disappearances and missing persons in the Western Balkans cannot be examined without taking into account the general regional perspective.2 The Working Group visited Bosnia and Herzegovina in 2010 (see A/HRC/16/48/Add.1). According to the International Committee of the Red Cross (ICRC), to date, the fate or whereabouts of over 23,000 persons missing as a result of the Balkan conflicts has been established. However, ICRC has indicated that over 11,000 persons are still missing in the region and that there are unidentified remains belonging to hundreds of bodies in the morgues throughout the region.3 The Working Group identified some common issues and challenges relating to missing persons and disappearances in the region.
7. Despite impressive results in the past, progress in the search for missing persons in the region has slowed down significantly in recent years, and many families are extremely frustrated by that. It is becoming urgent to ensure that the process of identifying mass grave locations and burial places speeds up as soon as possible, primarily because memories are fading and individuals, places and events are more difficult to identify. Furthermore, some of the witnesses have died or are likely to die in the next few years. Additionally, and even more importantly, some relatives of missing persons are reaching the end of their lives and risk dying without ever knowing the truth about the fate or whereabouts of their loved ones.
8. The conflicts in the former Yugoslavia broke one country into several independent entities. That resulted in specific challenges, primarily obstacles to the prosecution of war crimes in the region, since the prosecution of war criminals may create tensions among States and entities.
9. In the absence of a legal framework for regional cooperation, searching for the disappeared and missing persons, conducting investigations and bringing those responsible for war crimes to justice become critically challenging, particularly because many victims, witnesses and perpetrators are living in the territories of different States and the scenes of the crimes are located in different countries. Often, the presence of an alleged perpetrator in another country where there is no willingness or legal grounds to prosecute leads to insurmountable obstacles to achieving accountability. Insufficient witness protection and the lack of incentives to encourage people to provide more information have also contributed to the slow progress of investigations.
10. Progress is also hampered by the fact that information and evidence that are available are often not shared across borders in the search and identification of the missing, as well as in the investigation, prosecution and conviction of war criminals. There is no centralized regional database of missing persons, not even a list of all missing persons in the region. Several representatives of organizations of families of the disappeared expressed frustration at the ongoing and slow-paced discussions on the creation of a common list of the disappeared. The Working Group notes in this respect that a meeting among governmental institutions in charge of the issue of missing persons in the Western Balkans was held in May 2015 to discuss the establishment of a joint list of missing persons in the territories of the former Yugoslavia.
11. Furthermore, some archives that may contain information on the fate and whereabouts of the missing are not fully accessible.
12. A common gap at the regional level is the absence in existing legal systems of an autonomous crime of enforced disappearance and the absence of an encompassing framework for compensation and reparation for victims and their relatives.
13. Another challenge in the Western Balkans is that between 3,000 and 5,000 of the bodies that have been exhumed have not yet been identified. Even after DNA analysis and cross-checking with the DNA database, which contains blood samples from over 97 per cent of the relatives of the victims, no match has been found in those cases. There are several possible explanations for that. It may be that, owing to the traditional methods that were used until the year 2000, there were misidentifications. Some estimates suggest that up to 30 per cent of identifications made using traditional methods may be erroneous. In order to verify the identifications that were made using traditional methods, all the bodies identified using those methods would have to be exhumed and bone samples taken for DNA testing. However, that would be an extremely difficult and painful process for the family members. It is also possible that some of the exhumed bodies are those of persons whose deaths were unrelated to the conflict. That could be the case if, for example, the bodies of victims of the conflict were buried in graveyards and their bones intermingled with those of other bodies over time. In addition, there is the possibility that the DNA samples match the blood samples from relatives of missing persons from other countries in the region, given the above-mentioned lack of a joint regional DNA database.
14. The International Commission on Missing Persons has actively promoted the signing of a declaration on missing persons. The Working Group was pleased to learn that, on 29 August 2014, Bosnia and Herzegovina, Croatia, Montenegro and Serbia signed the Declaration on the Role of the State in Addressing the Issue of Persons Missing as a Consequence of Armed Conflict and Human Rights Abuses.4 The Working Group welcomes this initiative, which highlights the primary responsibility of States in addressing the issue of missing persons, with the aim of guaranteeing the rights of victims. The Declaration also stresses the need for cooperation between Governments and with international and other organizations in the process of establishing the whereabouts of missing persons. The authorities in Kosovo informed the Working Group that they had expressed their willingness to become a signatory to the Declaration, to no avail. The Working Group recognizes the importance of involving the authorities in Kosovo, through appropriate means, in regional cooperation activities to address the issue of missing persons.
15. The Working Group recognizes the important work that ICRC has carried out in the Balkans in the past 20 years, including facilitating negotiations and cooperation between concerned parties. Binational initiatives, many of which were facilitated, promoted and led by ICRC, are welcome developments that should be strengthened and expanded.
16. The International Commission on Missing Persons and ICRC have carried out important work in helping States to establish the whereabouts and identity of those who went missing during armed conflicts in the region, and in coordinating joint exhumations. They also played an essential role in the process of DNA analysis and collection of blood samples from family members of missing persons, which is a key precursor to the identification of the bodies that were recovered during the exhumation processes. Moreover, the Commission has facilitated cooperation between associations of families of disappeared persons from the region and is providing permanent support to the Regional Coordination of Missing Persons’ Family Associations from the former Yugoslavia, which is an umbrella group of associations of families of disappeared persons from countries in the region.
17. The Working Group notes that some initiatives have been taken for regional cooperation in the search for the disappeared and in the area of transitional justice, including the planned establishment of a regional truth commission (known as RECOM), as a non-political regional network of civil society organizations and individuals.
III. General situation concerning enforced disappearances
and missing persons in Montenegro
18. In the period between 1945 and 1992, Montenegro was a constituent republic of the former Socialist Federal Republic of Yugoslavia. In April 1992, Montenegro and the Republic of Serbia formed a new federal State, namely the Federal Republic of Yugoslavia. In 2003, the Federal Republic of Yugoslavia was officially reconstituted as a loose union known as the State Union of Serbia and Montenegro. The Constitutional Charter of the State Union of Serbia and Montenegro, adopted on 4 February 2003, provided that the process of secession required a minimum of three years from ratification of the Charter before one of the member States could declare independence. On 21 May 2006, Montenegro held a referendum on independence in which 55.5 per cent of the voters opted for independence.
19. Montenegro is party to the core United Nations human rights treaties and the Rome Statute of the International Criminal Court, which establishes that the enforced disappearance of persons amounts to a crime against humanity. At the time that most of the relevant events took place, Montenegro was either part of the Socialist Federal Republic of Yugoslavia or the Federal Republic of Yugoslavia, thus all the treaties, particularly those related to international humanitarian law, were applicable in Montenegro.
20. The Working Group welcomes the ratification by Montenegro of the International Convention for the Protection of All Persons from Enforced Disappearance and the submission of its initial report in accordance with article 29 of the Convention (CED/C/MNE/1). The Working Group is pleased to learn that the State party has recognized the competence of the Committee in respect of individual and inter-State communications, pursuant to articles 31 and 32 of the Convention.
21. The Working Group recognizes the support given by the Government of Montenegro to various regional initiatives in the area of transitional justice. In particular, it welcomes the facts that the parliament of Montenegro supported the setting up of a regional truth commission to establish the facts of war crimes committed in the former Yugoslavia and that the former Prime Minister of Montenegro was the first in the region to sign the petition for the establishment of the commission. The Working Group is also pleased to learn that, on 29 April 2014, Bosnia and Herzegovina and Montenegro signed the Protocol on Cooperation in Prosecution of Perpetrators of War Crimes, Crimes against Humanity and Genocide. Montenegro has already signed similar agreements with Croatia and Serbia.
22. As mentioned above, the Working Group also welcomes the signing, in Mostar, Bosnia and Herzegovina, on 29 August 2014 by the President of Montenegro together with leaders of Bosnia and Herzegovina, Croatia and Serbia of the Declaration on the Role of the State in Addressing the Issue of Persons Missing as a Consequence of Armed Conflict and Human Rights Abuses. By signing this document, Montenegro confirmed its commitment to finding a solution to this humanitarian and human rights issue and recognized its obligation to ensure lasting peace and improve cooperation and reconciliation in the region. The Working Group encourages regional dialogues and calls for a continuation of the joint regional effort to establish the fate and whereabouts of missing persons.
IV. Legal framework
23. This section examines the parts of the current legal framework of Montenegro that are most relevant to the mandate of the Working Group. The Working Group notes that, prior to the independence of Montenegro, all the pertinent laws of the Socialist Federal Republic of Yugoslavia and the Federal Republic of Yugoslavia were applicable in the country.
24. The Constitution of Montenegro5 established an independent and sovereign State, with a republican form of rule. The Constitution guarantees human rights and freedoms to everyone, without discrimination on any ground. It provides that all ratified and published international agreements and generally accepted rules of international law have supremacy over national legislation. According to the Constitution, ratified international treaties form an integral part of national legislation and are directly applicable when they differ from national legislation. The Constitution provides that everyone has the right to equal protection and access to legal remedy. Guaranteed human rights and freedoms may be limited only by law, within the scope permitted by the Constitution and to such an extent as is necessary to attain the purpose for which the limitation is allowed in an open and democratic society. During a proclaimed state of war or emergency, the exercise of certain human rights and freedoms may be limited to the extent necessary. The Constitution provides that limitations may not be introduced on the grounds of sex, national origin, race, religion, language, ethnic or social origin, political or other beliefs, financial standing or any other personal status. No limitations may be imposed on the rights to life, legal remedy and legal aid; dignity and respect of the person; fair and public trial and the principle of legality; the presumption of innocence; defence; compensation for damage for illegal or ungrounded deprivation of liberty and ungrounded conviction; freedom of thought, conscience and religion; and marriage.
25. The Working Group notes that the Criminal Code of Montenegro6 prescribes several criminal acts related to disappearances, including criminal offences of unlawful deprivation of liberty (art. 162), abduction (art. 164) and coercion (art. 165). The Criminal Code also prescribes a group of criminal offences against humanity and other values protected under international law (arts. 426-449 (a)) including genocide, crimes against humanity, war crimes against civilian population, war crimes against the wounded and the sick, war crimes against prisoners of war, organization of and instigation to genocide and war crimes and failure to take measures to prevent the commission of crimes against humanity and other values protected by international law.
26. According to article 427 of the Criminal Code of Montenegro, the ordering or committing, as a part of a wider or systematic attack against the civil population, detention or abduction of persons followed by a refusal to acknowledge those acts in order to deny legal protection, constitutes a crime against humanity. An order to commit or direct commission of illegal deprivation of liberty and imprisonment during time of war, armed conflict or occupation constitutes a war crime against the civilian population, as established by article 428 of the Criminal Code.
27. An analysis of the provisions of the Criminal Code of Montenegro shows that enforced disappearance is not yet recognized as an autonomous crime outside the context of a widespread and systematic attack against the civilian population, when enforced disappearance constitutes a crime against humanity. The Working Group emphasizes that criminalizing enforced disappearance under domestic legislation can serve as an important safeguard against impunity, as well as a meaningful preventive measure to ensure the non-occurrence of enforced disappearance. The Working Group is concerned that a State that does not criminalize enforced disappearance in its domestic law may also fail to meet other obligations under international law.
28. The Working Group notes that article 129 of the Criminal Code provides that prosecution and enforcement of penalty for certain criminal offences are not subject to a statute of limitations. Those criminal offences include genocide, crimes against humanity, war crimes against the civilian population, failure to take measures to prevent crimes against humanity and other values protected under international law. The Code of Criminal Procedure7 aims to ensure full procedural protection of the human rights and fundamental freedoms guaranteed by the Constitution and international instruments and to strike a balance between the two requirements that must be met by every proceeding — the efficiency of criminal procedure on the one hand and the best possible protection of human rights and freedoms on the other.
29. The Code of Criminal Procedure contains specific provisions regulating the protection of witnesses, including special measures and means to provide protection to witnesses in criminal procedures. The provisions contain articles on the protection of witnesses from intimidation and on special procedures for the participation of and for hearing protected witnesses.8 Those measures can be used as important tools in the prosecution of crimes against humanity.
30. In addition, the Working Group notes that the Law on Witness Protection9 regulates conditions and procedures for providing out-of-court protection and assistance to a witness, when reasonable fear exists that testifying for the purpose of bringing evidence about a criminal offence would expose the witness to severe danger to his or her life, health, corporal inviolability, freedom or property, where other measures do not suffice.
31. The Working Group also notes that provisions in the Law on the Enforcement of Criminal Sanctions10 and relevant by-laws, and the Law on Internal Affairs,11 guarantee equal treatment and respect for the personality and dignity of each person, with full implementation of the principles of the rule of law.