LAWON ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS("Official Herald of the Republic of Serbia", No. 58/2003 and 61/2003 - correction) |
Article 1
The present Law shall regulate and/or determine:
- types and forms of human rights violations as basis for investigation of accountability;
- persons against whom proceedings for investigation of accountability for human rights violations are instituted;
- principles and rules of procedure for investigation of accountability for human rights violations;
- composition, competence and proceeding of competent bodies, and
- measures pronounced against persons found to have violated human rights.
Accountability for Human Rights Violations
Article 2
Accountability for human rights violations (hereinafter referred to as: lustration) shall designate the procedure of investigation and determination of human rights violations set out in the present Law, determination of individual accountability for human rights violations and pronouncing of measures in respect of determined human rights violations.
Human Rights in Terms of the Present Law
Article 3
(1) Human rights for the purpose of the present Law are the rights defined in the International Covenant on Civil and Political Rights, signed and ratified by the Socialist Federative Republic of Yugoslavia, rights and liberties of man and citizen as defined in the 1974 Constitution of the Socialist Federative Republic of Yugoslavia; the Constitution of the Federal Republic of Yugoslavia from 1992 and the Constitution of the Republic of Serbia from 1990.
Time of Application of the Present Law
Article 4
Provisions of the present Law shall apply to all human rights violations occurring after 23 March 1976, as the day of coming into effect of the International Covenant on Civil and Political Rights, under terms defined by the present Law.
II FORMS AND ASPECTS OF HUMAN RIGHTS VIOLATIONS AS BASIS FOR ACCOUNTABILITY
General Forms of Human Rights Violations
Article 5
Violation of human rights for the purpose of the present Law is every action undertaken by a person specified in the present Law in performing duty and/or task, which:
1. represents a crime or other punishable act which is prosecuted ex officio, which has fallen under the statute of limitations for criminal or other penal prosecution, in whose execution the person specified under the present Law participated as a perpetrator, instigator, accomplice, abettor, organiser of criminal conspiracy or whose execution such person failed to prevent in accordance with his/her legal powers.
2. has as its goal to deprive a person of his/her lawful rights or to hinder exercise of such rights, or to enable a person to acquire a right or benefit to which such person is not entitled under law; or
3. has as its goal to influence a state body, organisation, enterprise or other legal entity to pass a decision or undertake an act which brings citizens into an unequal position.
Special Forms of Human Rights Violations through Infringement of the Right to Privacy
Article 6
(1) Violation of human rights for the purpose of the present Law is any act of a person specified herein which infringes the right to privacy of another, undertaken with the goal to acquire information relevant to such person or which are in his/her possession in order to deliver such information to the Security Information Agency or the preceding and/or other corresponding service.
(2) Violation of human rights occurs also when the act mentioned in paragraph 1 of the present Article is committed upon orders from a superior and also when such act was not in conflict with domestic regulations in force at the time of commitment but was opposed to the provisions of the International Covenant on Civil and Political Rights.
Special Forms of Human Rights Violations through Infringement of Equality under Law
Article 7
(1) Violation of human rights for the purpose of the present Law is also every act undertaken by a person specified by the present Law, which in court proceedings or a proceeding before other state body, or in a proceeding before an organisation exercising public authority, or during conclusion of legal business and other forms of legal transactions by a state body or organisation exercising public authority:
1. grants unwarranted benefits to a person in respect of another or other persons, by processing cases outside of the order of their submission, or by concluding legal transactions under privileged conditions, unless otherwise specified by law;
2. discriminates against a person in respect of another or others, as opposed to the principle of equality under law regardless of sex, age, race, colour, nationality, political views or other personal traits even when discrimination is not a criminal offence, or rendering of public service is refused as opposed to the principle of equality under law; or
3. fails to undertake measures to ensure equality of persons when so stipulated by law.
(2) Violation of human rights also occurs when the act mentioned in paragraph 1 of the present Article is committed upon orders of a competent person or body, or a superior, and also when such an act was not in conflict with domestic regulations at the time of commitment but was opposed to the provisions of the International Covenant on Civil and Political Rights.
Exclusion of Accountability for Human Rights Violations
Article 8
There shall be no accountability for human rights violations mentioned in Articles 6 and 7 of the present Law if the act:
1. was committed by a person under the age of 18;
2. was committed under duress, threat, blackmail or other prohibited pressure; or
3. was committed through information delivered to the Security Information Agency or its predecessor and/or other corresponding service, in a statement during questioning by the police and/or during detention by the police, in prison or custody.
Participation in Politically Motivated Judicial or Administrative Proceedings
Article 9
Violation of human rights for the purpose of the present Law occurs also when a person specified under the present Law, acting in official capacity in court proceedings or a proceeding before a state body or organization where another person is being deprived of certain rights, or such rights are restricted, or an obligation is imposed to do or abstain from doing or to endure, or any punitive or other enforceable measure is pronounced against him/her, if such person was aware or had to be aware that the proceeding was being conducted for the sole purpose of applying political attitudes and criteria that are overtly or covertly represented as legal rules or criteria.
III PARTICIPANTS AND RULES OF PROCEDURE
1. Persons Against Whom Proceedings are Instituted
Persons Accountable for Human Rights Violations
Article 10
Lustration proceedings are instituted against persons holding or are candidates for following offices:
1. deputies of the National and Province Assembly;
2. President of the Republic;
3. prime minister and members of the republic government and province executive council;
4. mayor and municipal president and deputy president;
5. president and members of the executive board of the council of local self-government unit;
6. secretary of the National and Province Assembly;
7. head and managing officer of National and Province Assembly services;
8. head and managing officer of services of the President of the Republic;
9. deputy and assistant minister, managing official of republic and/or province bodies and organizations and other heads of bodies and organizations in republic and/or province bodies and organizations, appointed by the republic government and/or province executive council;
10. secretary of municipal and city council;
11. district administrator;
12. president and judge of the Constitutional Court of Serbia (hereinafter referred to as: Constitutional Court), president and judge of courts of general jurisdiction and special courts, member of the High Judicial Council, public prosecutors and their deputies, administrator of misdemeanor court and misdemeanor judges;
13. director and managing board member of enterprises founded by the Republic, province or local self-government;
14. director and managing board member of public organizations founded by the Republic, province or local self-government, as follows:
- president and members of the University Council, president of university and dean of faculty;
- president or member of managing board or other relevant managing body, director, deputy director, editor-in-chief, deputy editor-in-chief and editor of section of public media or publishing organization;
- director, president and member of the management board of mandatory social insurance organization;
15. governor and vice-governor of the National Bank;
16. director of bank with majority state capital;
17. director of inland revenue, deputy director of inland revenue, assistant director – chief inspector of the tax police, head of regional inland revenue, head of regional inland revenue police, director of branch office tax police;
18. official and sworn officer of the Security Information Agency and/or other similar service;
19. director and managing officer of penal institution;
20. head of a diplomatic mission in a foreign country and international organization and/or consul; or
21. chief of staff of the army and/or head of counter intelligence service.
2. Participants and Investigation of Accountability
Participants in Proceedings
Article 11
(1) A party to the proceedings is a person whose accountability for human rights violations is being examined before the Commission for investigation of accountability for human rights violations (hereinafter referred to as: the Commission).
(2) The provisions of the Law on Criminal Procedure shall accordingly apply to representation, status, right to defence and legal counsel of the person mentioned in paragraph 1 of the present Article.
(3) The Commission shall request the Ombudsman to participate in the proceedings if it deems so necessary for producing of evidence, and particularly for taking of statement of the person whose human rights have been violated.
(4) The Commission shall, until such time the Ombudsman commences activity, and under conditions mentioned in paragraph 3 of the present Article, request a public prosecutor or his/her deputy from the list of public prosecutors and deputy public prosecutors in the Republic, to participate in the proceeding, taking into account the location where the human rights violation has occurred and the territorial jurisdiction of the invited public prosecutor and/or deputy.
Investigation of Individual Accountability
Article 12
(1) The accountability of an individual in respect of human rights violation is examined in lustration proceedings.
(2) Affiliation with a particular political party, organisation or group, with the exception of affiliation with a criminal group in cases when human rights violation is concurrently a criminal offence for which the statute of limitations is effective, does not by itself represent grounds for conducting lustration proceedings or pronouncement of lustration measures.
(3) Lustration proceedings shall determine that, at the time of human rights violation, preconditions of individual accountability have been met in accordance with the Criminal Code or other penal code.
(4) In case it shall be determined during lustration proceedings that the person against whom the proceedings are instituted is not mentally competent, or that grounds exist due to which such person may be deprived of legal competence, such proceedings shall be discontinued and the body or organisation having competent authority to nominate, select, appoint or accept into service persons mentioned in the Article 10 of the present Law, together with the court of competent jurisdiction, shall be informed of all these facts without undue delay.
Respect for the Dignity of Person Undergoing Lustration Proceedings and Respect of Other Rights
Article 13
(1) The Commission and other bodies engaged in lustration proceedings are required to respect the dignity of the person against whom lustration proceedings are instituted.
(2) The Commission and other bodies engaged in lustration proceedings are not empowered to apply enforcement measures to ensure attendance and participation of the person against whom lustration proceedings are instituted.
(3) The person against whom lustration proceedings are instituted shall be entitled to all rights enjoyed by a person against whom criminal proceedings are instituted.
(4) Any violation of procedural rights of a person against whom lustration proceedings are instituted shall represent an absolutely crucial breach of proceedings.
3. Vetting Prior to Appointment
Initiation of Proceedings Against a Candidate
Article 14
(1) Vetting prior to appointment shall be conducted against a person nominated for office mentioned in the Article 10 of the present Law.
(2) The authorities and organizations competent for nomination, selection, appointment or taking into service of persons specified in item 3, items 6 to 13 and items 16 to 21 of the Article 10 of the present Law, are required to, without delay, file a vetting request for human rights violations (hereinafter referred to as: vetting request) with the Commission.
(3) Vetting of persons mentioned in items 1, 2, 4 and 15 of the Article 10 of the present Law shall be done by the Commission ex officio.
Duties of the Commission Subsequent to Initiation of Proceedings
Article 15
(1) The Commission’s Panel for examination of accountability for human rights violations (hereinafter referred to as: the Commission Panel) is required to conduct vetting of persons mentioned in the Article 10 of the present Law in respect of human rights violations, within 60 days from receiving of the vetting request.
(2) Vetting is conducted by inspection of Security Information Agency documents or a preceding and/or other relevant service, court files, files of other government bodies and organizations exercising administrative authority.
(3) All bodies and organizations having in their possession documents under examination are obliged to enable the Commission Panel inspection of all required documents without delay.
(4) Within seven days following the conclusion of vetting procedure, the Commission shall inform in writing the bodies and organizations mentioned in the Article 14 paragraph 2 of the present Law, and the candidate subjected to lustration proceedings, on whether the candidates for office and functions mentioned in the Article 10 of the present Law have violated human rights and/or have initiated, ordered, or through information supplied or otherwise, engaged in human rights violations.
Rights of Candidate Subjected to Lustration Proceedings
Article 16
(1) A candidate for office mentioned in the Article 10 of the present Law shall be entitled to, within seven days of accepting the notice on violation of human rights, inspect all files and documents on basis of which the Commission Panel has determined that said candidate has violated human rights.
(2) The person specified in paragraph 1 of the present Article shall be entitled to, within seven days following inspection and/or expiry of the deadline for inspection, inform the Commission Panel of withdrawing his/her nomination or to file an objection with the Commission.
(3) In case the person specified in paragraph 1 of the present Article withdraws his/her nomination, the Commission immediately so informs the body and/or organization competent for nomination, selection, appointment and taking into service of the person.
(4) In case the person specified in paragraph 1 of the present Article files an objection with the Commission, the Commission in session decides on the objection within three days of receiving the objection.
(5) The person submitting the objection may file a complaint with the Supreme Court of Serbia against the Commission’s decision rejecting and/or refusing the objection, within seven days following delivery of the Commission’s decision.
Complaint
Article 17
A complaint may set forth only facts made plausible by the plaintiff that he/she was unaware of or that he/she could not have been aware of, and/or offer only such evidence which is made plausible that was acquired or occurred after the Commission has reached a ruling in respect of the objection mentioned in the Article 16 paragraph 2 of the present Law.
Article 18
The Commission initiates and conducts vetting proceedings ex officio against a person holding office mentioned in the Article 10 of the present Article.
Rules of Procedure
Article 19
Rules mentioned in the Articles 16 to 18 of the present Article shall accordingly apply to vetting after appointment.
Hearing
Article 20
(1) A person holding office mentioned in the Article 11 of the present Law may in his/her objection to the Commission request that the Commission holds a hearing for presentation of evidence of the violation of human rights.
(2) In case a hearing has been requested, the Commission shall schedule a hearing within 15 days of filing the objection.
(3) The person specified in paragraph 1 of the present Article is summoned to the hearing and, if required, the persons specified in the Article 11 paragraphs 3 and 4 of the present Law, and they shall be warned to present at the hearing all evidence and/or bring all witnesses and court experts whose statements are being offered as proof of their allegations, under caution that subsequent proposal and presentation of evidence will not be admissible.
(4) The hearing is held in camera. The Commission is required to caution all parties present of their obligation to treat all information presented at the hearing as secret.
(5) Should the person referred to in paragraph 1 of the present Article request it in writing, the hearing before the Commission shall be open to public.
(6) The complaint to the Supreme Court may contain new facts and new evidence if the person specified in paragraph 1 of the present Article proves it plausible that he/she became aware of such facts subsequent to the hearing before the Commission, or that evidence was obtained or occurred only after the hearing before the Commission.
Application of Rules of Procedure
Article 21
In proceeding in individual legal cases, the Commission Panels and the Commission apply the rules of the Criminal Procedure code, unless otherwise specified by the present Law.
IV BODIES INVESTIGATING ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS
Article 22
(1) The Commission for investigating accountability for human rights violations is hereby established.
(2) The Commission is an autonomous and independent body conducting lustration proceedings against persons defined under the present Law, establishing violations of human rights in the manner set out under the present Law and pronouncing measures stipulated by the present Law.
(3) The seat of the Commission is in Belgrade.
(4) Funds for the work of the Commission are provided in the Republic Budget.
Composition and Election of the Commission
Article 23
(1) The Commission has nine members. Three members are judges of the Supreme Court of Serbia (hereinafter referred to as: the Supreme Court), three members are prominent legal experts, one member is a deputy public prosecutor of the Republic of Serbia and two members are deputies of the National Assembly holding a degree in law, elected from different electoral lists.
(2) The president of the National Assembly proposes candidates for Commission members in such a way that minimum two candidates are nominated for each position from every group specified in paragraph 1 of the present Article.
(3) The National Assembly of the Republic of Serbia (hereinafter referred to as: the National Assembly) elects Commission members by secret ballot. A separate vote is taken for lists of candidates from the Supreme Court, prominent legal experts, deputy public prosecutors of the Republic of Serbia and deputies of the National Assembly holding a law degree.
(4) A candidate receiving the majority vote of the present deputies shall be considered as elected member of the Commission. In the event several candidates receive the same number of votes, the voting is repeated.
(5) If the repeated voting fails to result in a majority vote mentioned in paragraph 4 of the present Article, the candidates receiving majority votes within their group mentioned in paragraph 1 of the present Article shall be elected members of the Commission.
Internal Organization of the Commission
Article 24
(1) Commission members elect the president of the Commission.
(2) The Commission has three panels.
(3) The president of the Commission shall be a judge of the Supreme Court.
(4) The Commission’s panels shall conduct lustration proceedings.
(5) A session of the Commission shall be convened to determine legal reasoning in principle, harmonize case law, deliberate on objection, hold hearings or to perform other tasks set out by the present Law.
(6) The Commission shall be convened by the president at his/her initiative or following a written motion of minimum three Commission members.
(7) Internal organization of work of the Commission, composition of panels, system of case allocation and work of the session are regulated by Rules of Procedure of the Commission, passed by the Commission.
(8) Internal work organisation, the composition of the panels, the method of allocation of cases and the method of work of the Commission shall be changed in the same manner as the Commission Rules of Procedure.
(9) The Commission shall have the Secretary appointed by the National Assembly.
Term of Office of Commission Members
Article 25
A Commission member shall be appointed for the period of six years and may be re-appointed once more, and a Commission member from the ranks of deputies shall be appointed for the period of his/her term of office as deputy.
Article 27
(1) The office of Commission member shall cease before the expiry of his/her term of office:
1. as of the date the National Assembly accepted his/her resignation;
2. as of the date the capacity based on which he/she was appointed ceased;
3. as of the date the National Assembly passed a decision on his/her dismissal;
4. as of the date the National Assembly has issued a decision on his/her permanent loss of working ability in respect of the duties of Commission member;
5. due to his/her death.
(2) The office of a Commission member shall not cease once he/she has met mandatory retirement conditions.
(3) A Commission member whose office terminated before the expiry of his/her term of office shall be replaced by a new member whose term of office shall last until the expiry of the term of office of the replaced member.
(4) The president of the National Assembly shall put before the Assembly the appointment of a new member within 30 days of termination of office of the outgoing Commission member, and propose candidates within 15 days of the termination of office of the outgoing Commission member.
Obstacles to Appointment as Member of the Commission
Article 27
(1) A Commission member may not be a person who is a member of a political party body, except for a deputy, or a person who has served minimum six-month non-suspended sentence or a sentence for other criminal offence rendering him/her unworthy of the trust of the public.
(2) A procedure to investigate obstacles that were discovered after appointment shall be initiated by the Commission, within 30 days of the day of discovering them.
(3) Three members of the Commission appointed by the president shall make a report stating whether there are obstacles mentioned in paragraph 1 of the present Article.
(4) Based on the report, the Commission shall propose to the National Assembly to dismiss the member of the Commission in respect of whom obstacles specified in paragraph 1 of the present Article have been discovered.
Article 28
(1) The reasons leading to the dismissal of a Commission member are the same as those pertaining to judges.
(2) The reasons leading to the dismissal of the president of the Commission are the same as those pertaining to presidents of courts.
(3) The procedure to dismiss a Commission member and president of the Commission shall be governed by rules for dismissing a judge.
(4) Dismissal procedure shall be initiated by the president of the Commission, the Commission or the National Assembly Speaker.
(5) The procedure is carried out by the Commission who shall prepare a reasoned motion. The member of the Commission to be dismissed does not take part in decision-making procedure.
(6) The National Assembly shall decide on the motion for dismissal.
Article 29
A complaint against the decision made by the Commission Panel may be submitted to the Commission, and an appeal against the decision of the Commission on the complaint may be lodged to the Supreme Court.
Article 30
(1) The Commission Panel shall:
1. ex officio initiate procedures;
2. investigate whether human rights have been violated by an individual activity or by an act of persons defined by the present Law;
3. produce evidence substantiating the violations;
4. pass first-instance decisions on human rights violations and decisions on measures against such violations.
(2) The Commission shall:
1. determine fundamental legal opinions regarding the concept and types of human rights of relevance for the present Law, individual accountability of persons defined by the present Law and measures to be taken against violations of human rights;
2. take positions necessary to ensure consistency of practice of its panels;
3. decide on complaints against decisions taken by the Commission's panels, without or following a hearing, in accordance with the present Law, and
4. perform other tasks defined by the present Law.
Exemption of Commission Member
Article 31
The exemption of a Commission member shall be governed by the provisions of the Criminal Procedure Code.
V MEASURES AGAINST VIOLATIONS OF HUMAN RIGHTS
Article 32
The Commission shall issue a press release to the media of its own choice and shall always publish in the "Official Herald of the Republic of Serbia" information about the violation of human rights committed by a person mentioned in the Article 10 of the present Law, if:
1. such person fails to resign from office or withdraws his/her candidature within 7 days of the deadline set for the right to inspection of the documents mentioned in the Articles 16 and 19 of the present Law, should the Commission, after conducting an investigation, be of the opinion that such person has violated human rights in accordance with the present Law;
2. such person fails to lodge a complaint in accordance with the present Law;
3. such person fails to resign from office or withdraws his/her candidature within 7 days of the receipt of the Commission's decision on refusing or rejecting his/her complaint;
4. such person fails to lodge an appeal in accordance with the present Law;
5. such person fails to resign from office or withdraws his/her candidature within 7 days of the receipt of the Supreme Court’s decision on refusing or rejecting his/her appeal.
Measures Restricting Appointment to Office
Article 33
(1) A person who has by a decision of the Commission or Supreme Court been found to have violated human rights and failed to resign from a position or withdraw his/her candidacy for a position mentioned in the Article 10 items 6 to 21 of the present Law, within 30 days of the date of the Commission's press release mentioned in the Article 32 of the present Law, may not take the positions set out in the Article 10 of the present Law for five years following the date of the press release.
(2) The Supreme Court shall ex officio establish the occurrence of conditions leading to restrictions on appointment to offices determined in the Article 10 of the present Law, specified in paragraph 1 of the present Article, and publish the decision establishing such conditions together with the legal restriction mentioned in paragraph 1 of the present Article in the Official Herald of the Republic of Serbia.
(3) The person specified in paragraph 1 of the present Article may not lawfully retain his/her current position after the decision of the Supreme Court specified in paragraph 2 of the present Article has been published.
(4) The person who is pronounced a measure restricting appointment to office is entitled to, within 15 days of publishing the measure, return to the employer for whom he/she worked before taking office, and if that employment was terminated or he/she did not work before taking office, such a person is entitled to rights pertaining to redundant employees.
VI TRANSITIONAL AND FINAL PROVISIONS
Entering into Force and Application
Article 34
(1) The present Law shall come into force on the eighth day after its publication in the "Official Herald of the Republic of Serbia" and shall apply three months after entering into force.
(2) Lustration bodies shall be set up within 60 days of entering into force of the present Law.
(3) The present Law shall be applied for 10 years after entering into force.