CAT/C/29/D/161/2000
page 15
Annex
(Case No. 161/1999 - Hajrizi Dzemajl et al. v. Yugoslavia)
Individual opinion by Mr. Fernando Mariño and Mr. Alejandro González Poblete
under rule 113 of the Rules of Procedure
We are issuing this opinion to emphasize that, in our judgement, the illegal incidents for
which the Yugoslav State is responsible constitute “torture” within the meaning of article 1,
paragraph 1, of the Convention, not merely “cruel, inhuman or degrading treatment” as covered
by article 16. The failure of the State authorities to react to violent evictions, forced
displacement and the destruction of homes and property by individuals amounts to unlawful
acquiescence which, in our judgement, violates article 1, paragraph 1, particularly when read in
conjunction with article 2, paragraph 1, of the Convention.
We believe that, in fact, the suffering visited upon the victims was severe enough to
qualify as “torture”, because:
(a)
The inhabitants of the Bozova Glavica settlement were forced to abandon their
homes in haste given the risk of severe personal and material harm;
(b)
Their settlement and homes were completely destroyed. Basic necessities were
also destroyed;
(c)
Not only did the resulting forced displacement prevent them from returning to
their original settlement, but many members of the group were forced to live poorly, without jobs
or fixed places of abode;
(d)
Thus displaced and wronged, these Yugoslav nationals have still not received any
compensation, seven years after the fact, although they have approached the domestic
authorities;
(e)
All the inhabitants who were violently displaced belong to the Romani ethnic
group, which is known to be especially vulnerable in many parts of Europe. In view of this,
States must afford them greater protection;
The above amounts to a presumption of “severe suffering”, certainly “mental” but also
inescapably “physical” in nature even if the victims were not subjected to direct physical
aggression.
We thus consider that the incidents at issue should have been categorized as “torture”.
(Signed): Fernando Mariño
Alejandro González Poblete
-----