injuries. The complainant, however, has provided the Committee with written statements from
his mother, his sister and a cousin indicating that he was in good health when he was arrested
and severely injured at the time of his release.
2.3
On 31 January 2000, the complainant, through counsel, filed a criminal complaint with
the Kragujevac Municipal Public Prosecutor’s Office alleging that he had been the victim of the
crimes of slight bodily harm and civil injury, as provided for under articles 54 (2) and 66 of the
Serbian Criminal Code, respectively. As there was no response for almost six months following
the submission of the complaint, the complainant wrote a letter to the Public Prosecutor’s Office
on 26 July 2000 requesting an update on the status of the case and invoking, in particular, article
12 of the Convention. At the time the complainant submitted his case to the Committee, i.e.
more than 23 months after the submission of the criminal complaint, no response had been
received from the Public Prosecutor.
2.4
The complainant claims that he has exhausted available domestic criminal remedies and
refers to international jurisprudence according to which only a criminal remedy can be
considered effective and sufficient in addressing violations of the kind at issue in the instant
case. He also refers to the relevant provisions of the State party’s Criminal Procedure Code
(CPC) setting forth the obligation of the Public Prosecutor to undertake measures necessary for
the investigation of crimes and the identification of the alleged perpetrators.
2.5
Furthermore, under article 153 (1) of CPC, if the Public Prosecutor decides that there is
no basis for the institution of a formal judicial investigation he must inform the complainant,
who can then exercise his prerogative to take over the prosecution in the capacity of a “private
prosecutor”. However, CPC sets no time limit within which the Public Prosecutor must decide
whether to request a formal judicial investigation. In the absence of such a decision the victim
cannot take over the prosecution of the case on his own behalf. Prosecutorial inaction following
a complaint filed by the victim therefore amounts to an insurmountable impediment in the
exercise of the victim’s right to act as a private prosecutor and to have his case heard before a
court. Finally, even if there were a legal possibility for the victim himself to file for a formal
judicial investigation because of the inaction of the Public Prosecutor, it would in effect be
unfeasible if the police and the Public Prosecutor had failed to identify all of the alleged
perpetrators beforehand, as in the instant case. Article 158 (3) of CPC provides that the person
against whom a formal judicial investigation is requested must be identified by name, address
and other relevant personal data. A contrario, such a request cannot be filed if the alleged
perpetrator is unknown.
The complaint
3.1
The complainant claims that the acts described constitute a violation of several provisions
of the Convention, in particular article 2, paragraph 1, read in conjunction with article 1;
article 16, paragraph 1; and articles 12, 13 and 14 taken alone and/or together with article 16,
paragraph 1. Such acts were perpetrated with a discriminatory motive and for the purpose of
extracting a confession or otherwise intimidating and/or punishing him. He also submits that his
allegations should be interpreted in the context of the serious human rights situation in the State
party and, in particular, the systematic police brutality to which Roma and others are subjected.
In evaluating his claim the Committee should take into account his Romani ethnicity and the fact
that his membership in a historically disadvantaged minority group renders him particularly
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