Honorable Balsa Govedarica
President of the Supreme Court of
the Republic of Serbia
Honorable Dragomir Stojanovic
President of the Criminal Division of the Supreme Court of the
Republic of Serbia
REF: Appeal of the criminal conviction
of Dr. Flora Brovina
Dear President Govedarica:
The Lawyers Committee for Human Rights (Lawyers Committee) writes
regarding the prosecution of Dr. Flora Brovina, a medical doctor,
poet, and human rights activist.
On December 9, 1999, Dr. Brovina was convicted
by the District Court in Nis of conspiracy to commit the crime of
terrorism. She was sentenced to 12 years in prison. She has appealed
her conviction and sentence to the honorable Supreme Court of the
Republic of Serbia.
The Lawyers Committee is a non-governmental organization which
works to ensure that governments protect human rights and respect
the rule of law. Our office has reviewed the trial record and court
judgment in this case, which we understand is one of approximately
950 pending prosecutions against ethnic Albanians arrested in Kosovo
and subsequently transferred to various jurisdictions within Serbia
for trial.
After examination of the court record in Dr.
Brovina’s case, as well as the testimony of trial observers,
we write to share our concerns about the prosecution, and to inform
the court of certain considerations of international law which have
application to the case.
We appeal to your honorable President of the Supreme Court of Serbia
in the spirit of judicial fairness and impartiality consecrated in
Yugoslav and
international law.
We note that responsibility for reviewing and
correcting errors of domestic and international law by the District
Court now lies with the Supreme Court of Serbia. Since questions of
international law raised in this case might arise in the large number
of similarly situated cases likely to come before this and other appellate
courts in the Federal Republic of Yugoslavia (FRY or Yugoslavia),
we believe it is imperative that we communicate with you.
Like its predecessor State, FRY is a Party to the International
Covenant on Civil and Political Rights (ICCPR), which Yugoslavia ratified
in 1971 and the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (Convention Against Torture),
which Yugoslavia ratified in 1991. Customary international law likewise
binds the FRY. FRY officials have expressly acknowledged this fact
in several international proceedings.
Several legal provisions reinforce these international standards within
Yugoslav law. First, the supreme law of the FRY – its Federal
Constitution - incorporates the international treaties to which the
FRY is a party, as well as customary international law, into national
law.
In addition, international law requires that
every court of the FRY apply its national
codes of criminal law and procedure in a manner that is consistent
with international standards. Likewise, both the Convention Against
Torture and the ICCPR require that States Parties conform their own
procedural law to international norms, and that they apply that law
equally and in a non-discriminatory manner.
We believe that FRY’s legal obligations were in full force at
the time of Dr. Brovina’s arrest, and continue to the present.
First, we note that the FRY had not acted to trigger the provisions
of ICCPR, Article 4, which permit limited derogation from some ICCPR
provisions during severe public emergencies.
The 1949 Geneva Conventions apply during armed
conflict and govern the treatment of persons detained during such
conflict. Common Article 3 of the 1949 Geneva Conventions guaranteed
certain basic protections to Dr. Brovina and other non-combatants.
Relevant
facts in the case of Dr. Flora Brovina
Our understanding of the facts of this case
are that Serbian forces arrested Dr. Brovina in Pristina, Kosovo on
April 20, 1999. She was indicted by the Nis District Attorney
on October 20 with conspiracy to commit the crime of terrorism and
other offenses under paragraph 1 of Article 136 and Article 125 of
the Yugoslav Criminal Law. According to the information which the
District Attorney filed with the District Court, the factual basis
for the charges stemmed from Dr. Brovina’s work as a pediatrician
and as the founder of the Albanian League of Women.
Over the first month of her detention, Dr.
Brovina was interrogated for more than 200 hours in 18 separate sessions.
These interrogations typically extended from 7:00 in the morning until
5:00 in the afternoon, without food or time to rest. Dr. Brovina was
afforded no opportunity to meet privately with her attorney during
the month-long interrogation. Her family was unable to locate her
during the two months she was detained in Kosovo during which time
the police moved her numerous times among unofficial makeshift detention
cells. She reported also that she was denied the medication she normally
takes for her painful angina condition.
The police extracted a confession from Dr.
Brovina, who acknowledged signing the statement only to escape further
mistreatment. She testified that the purported admission of guilt
contained in the confession was untrue and was the product of coercion.
It appears from the record that Dr. Brovina
was tried and convicted on the basis of this confession, supported
by one photograph of her next to an alleged KLA member and some medicines
found in her possession. It also appears the District Court may have
allowed the prosecution to travel to Montenegro to take the testimony
of a witness without affording Dr. Brovina the opportunity to confront
or question this individual.
On December 9, 1999, the last day of trial,
the District Attorney expanded the charge against Dr. Brovina, which
was originally based on acts allegedly committed before the declaration
of the state of emergency in FRY, to include acts alleged during the
state of emergency.
It is our understanding that the expansion
of the factual basis for the charge permitted the District Court to
impose a more severe sentence pursuant to Article 139 of the Yugoslav
Criminal Law.
The new charges also permitted the court to
admit the confession which had not been proffered into evidence until
the new charges were made. Prior to accepting the confession, the
court made no inquiry into Dr. Brovina’s allegation that the
confession had been coerced.
Later that
day, the District Court sentenced Dr. Brovina to twelve years in prison.
Dr. Brovina subsequently made a timely appeal
of her conviction and sentence.
Of the facts summarized here--the length of
detention, the extent of uncounseled interrogations, the lapse prior
to the issuance of charges, the sudden change in the charges and the
introduction of the confession—none are disputed, except the
allegations of mistreatment.
It is also not disputed that the court made
no effort to determine whether the confession, which resulted from
this prolonged custodial interrogation, had been coerced. In light
of these facts, we wish to draw to your attention some fundamental
legal principles which we believe compel the conclusion that Dr. Brovina’s
conviction rests on a violation of her basic rights.
International legal provisions guarantee several
rights to a detainee such as Dr. Brovina. In particular, a person
has a right to prompt notice of the charges against her; the right
to challenge the lawfulness of detention; the right to assistance
of counsel; the right to trial within a reasonable time; and, most
importantly, the right not to be tortured in an attempt to coerce
a confession.
At trial, two other fundamental rights come
into play. A defendant may not be surprised by new charges or evidence
for which there has been no adequate opportunity to prepare and the
trial process should not admit a confession, which is the product
of coercion, mistreatment or torture.
PRE-TRIAL RIGHTS
Access to counsel
and family during initial detention period
We believe that the 30-day interrogation period,
during which time Dr. Brovina was not informed of the charges against
her and was denied access to her lawyer, cannot be reconciled with
long-established principles of
international law.
Dr. Brovina’s right to be informed of
the reasons for her detention are grounded in Article 9(1) of the
ICCPR, which protects against arbitrary detention and only allows
for the deprivation of liberty in accordance with law and Article
9(4) of the ICCPR, which entitles a detained person to a prompt judicial
determination the lawfulness of her deprivation of liberty.
Common Article 3 of the Geneva Conventions
also guarantees Dr. Brovina’s right to be informed of all the
charges against her in order to prepare her defense.
TORTURE AND MISTREATMENT
We also
believe that the conditions of Dr. Brovina’s detention rose to
the level of mistreatment and possibly torture.
According to the United Nations Human Rights
Committee (HRC), the enforcement body of the ICCPR, States are obliged
to provide detainees and prisoners with services that will satisfy
their essential needs. (General Comment No. 21/44 of April 6, 1992).
Article 3 of the Geneva Convention also requires
observation of the right to receive necessary medical care. It is
our assessment that the length and circumstances of Dr. Brovina’s
interrogation, including the denial of medication, rest and food triggers
application of the Convention against Torture which defines torture
as "any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a confession
to the level of torture under these treaties." (Article 1(1)).
Article 7 of the ICCPR prohibits torture —
or cruel, inhuman or degrading treatment or punishment — and
is a norm of customary international law that also belongs to the
category of jus cogens, i.e. peremptory norms accepted and recognized
by the international community of states, as a whole, as norms from
which no derogation is permitted.
TRIAL RIGHTS:
DENIAL OF RIGHT
TO PREPARE A DEFENSE
By allowing the prosecution to add the charge
that Dr. Brovina committed unspecified acts during a period of national
emergency, the District Court prevented Dr. Brovina from preparing
a defense to the new charge.
The fundamental right to a fair hearing, as
provided for in Article 14 of the ICCPR, establishes that everyone
shall be entitled "to be informed promptly and in detail in a
language which he understands of the nature and cause of the charge
against him" (section (3)(g)) and "adequate time and facilities
for the preparation of his defense and to communicate with counsel
of his own choosing" in the determination of formal charges (section
(3)(b)).
CONVICTION
BASED ON COERCED CONFESSION
Furthermore, the change in the charge allowed
the prosecution to admit the confession, which formed the basis for
Dr. Brovina’s conviction.
In the determination of any criminal charge
against him or her, everyone is entitled "Not to be compelled
to testify against himself or to confess guilt" (ICCPR, Article
14(3)(g)). This provision aims to prohibit any form of coercion, whether
direct or indirect, physical or mental, and whether before or during
the trial, that could be used to force the accused to testify against
him/herself or to confess guilt. Article 15 of the Convention Against
Torture and Common Article 3 of the Geneva Conventions
prohibit admission of, and conviction based upon, coerced confessions.
When allegations are made that a confession
resulted from coercion, Article 12 of the Convention against Torture
requires a judge to initiate an inquiry into these claims to verify
the legality of a confession. A judge has the authority to consider
an allegation of coercion or torture at any stage of the proceedings
(HRC, General Comment 13, para.15 of April 13, 1984).
In the case of Dr. Brovina, when the court
failed to investigate her treatment during interrogation, and then
made the resulting confession the centerpiece of her conviction, the
court violated non-derogable duties under the ICCPR and the Convention
Against Torture, as incorporated into Yugoslav lawby article 16 of
the Constitution.
The circumstances of Dr. Brovina’s detention,
confession, trial, and sentence raise serious questions regarding
the validity of the judicial process in this case under FRY and International
law.
For this reason, the Lawyers Committee respectfully
urges you to consider how the legal principles discussed above support
the appeal of Dr. Brovina’s conviction. We also hope that every
appropriate measure will be taken to ensure that future judicial proceedings
be brought in accordance with international law.
The Lawyers Committee appreciates your attention to this important
matter and will continue to follow developments in this case.
Sincerely
Robert O. Varenik
Director, Protection Program
Cc: Mr. Petar Jojic, Minister of Justice,
Ministry of Justice of FRY
Mr. Dragoljub Jankovic, Minister of Justice,
Ministry of Justice of the Republic of Serbia
http://www.lchr.org/media/brovinaltr0300.htm