in the instant case. Civil and/or administrative
remedies do not provide sufficient redress in this
case.
3.8 The complainants further contend that the acts
of violence occurred with the “consent or
acquiescence” of the police whose duty under the
law was to secure their safety and afford them
protection.
3.3 The complainants note further that the
authorities had the obligation to investigate, or at
least to continue their investigation if they
considered the available evidence insufficient.
Moreover, even though they acknowledge that they
have never filed a criminal complaint against
individuals responsible for the pogrom, they contend
that both the police and the prosecuting authorities
were sufficiently aware of the facts to initiate and
conduct the investigation ex officio. The
complainants therefore conclude that there is no
effective remedy.
3.9 The complainants then allege a violation of
article 12 read alone or, if the acts committed do not
amount to torture, taken together with article 16,
paragraph 1, because the authorities failed to
conduct a prompt, impartial, and comprehensive
investigation capable of leading to the identification
and punishment of those responsible. Considering
the jurisprudence of the Committee against Torture,
it is submitted that the State party had the obligation
to conduct “not just any investigation” but a proper
investigation, even in the absence of the formal
submission of a complaint, since they were in
possession of abundant evidence.2 The complainants
further suggest that the impartiality of the same
investigation depends on the level of independence
of the body conducting it. In this case, it is alleged
that the level of independence of the investigative
magistrate was not sufficient.
3.4 The complainants also note that since there is
no effective remedy in respect of the alleged breach
of the Convention, the issue of exhaustion of
domestic remedies should be dealt with together
with the merits of the case since there is a claim of
violation of articles 13 and 14 of the Convention.
3.5 Referring to a number of excerpts from NGO
and governmental sources, the complainants first
request that the complaint be considered taking into
account the situation of the Roma in Yugoslavia as
victims of systematic police brutality and dire human
rights situation in general.
3.10 The complainants finally allege a violation of
article 13 read alone and/or taken together with
article 16, paragraph 1, because “their right to
complain and to have [their] case promptly and
impartially examined by [the] competent authorities”
was violated. They also allege a violation of article
14 read alone and/or taken together with article 16,
paragraph 1, because of the absence of redress and of
fair and adequate compensation.
3.6 The complainants allege that Yugoslav
authorities have violated the Convention under either
article 2, paragraph 1, read in conjunction with
article 1, because, during the events described
previously, the police stood by and watched as the
events unfolded, or article 16, paragraph 1, for the
same reasons. In this regard, the complainants
consider that the particularly vulnerable character of
the Roma minority has to be taken into account in
assessing the level of ill-treatment that has been
committed. They suggest that “a given level of
physical abuse is more likely to constitute
‘degrading or inhuman treatment or punishment’
when motivated by racial animus”.
State party’s admissibility observations
4.
In a submission dated 9 November 1998, the
State party contended that the complaint was
inadmissible because the case had been conducted
according to the Yugoslavian legislation and because
all available legal remedies had not been exhausted.
Comments by the complainants
5.
In a submission dated 20 September 2000, the
complainants reiterated their main arguments with
regard to the admissibility of the complaint and
underlined that the State party had not explained
what domestic remedies would still be available
which the complainants should still exhaust. In
addition, they consider that since the State party has
failed to put forward any other objections in that
respect, it has in effect waived its right to contest
other admissibility criteria.
3.7 With regard to the fact that the acts have
mostly been committed by non-State actors, the
complainants rely on a review of international
jurisprudence on the principle of “due diligence” and
remind the current state of international law with
regard to “positive” obligations that are incumbent
on States. They submit that the purpose of the
provisions of the Convention is not limited to
negative obligations for States parties but include
positive steps that have to be taken in order to avoid
that torture and other related acts are committed by
private persons.
Admissibility decision
6.
At its twenty-fifth session, the Committee
considered the admissibility of the complaint. The
2
September 1997; X and Y v. Netherlands, 8 EHRR 235
(1985), paras. 21–30.
See Encarnación Blanco Abad v. Spain, para. 8.2; Henri
Unai Parot v. Spain, 2 May 1995, CAT/C/14/D/6/1990.
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