2010 REGULAR ANNUAL REPORT OF
THE PROTECTOR OF CITIZENS
Belgrade, 2011
EXERCISE AND PROTECTION OF CITIZENS’ RIGHTS AND FREEDOMS IN SERBIA- GENERAL OVERVIEW 6
CIVIL AND POLITICAL RIGHTS 7
Protection of the Right to a Fair Trial and Judicial Reform 7
Right to Privacy 9
Freedom of Thought and Expression 11
Electoral Right 11
Media Freedoms, Journalists 12
Delay of Restitution 13
SOCIAL AND ECONOMIC RIGHTS 14
Violation of Labour Rights 14
Abuse of Additional Work in the Medical Sector 16
Refugees and Displaced Persons 18
THE WORK OF ADMINISTRATION AUTHORITIES – GOOD AND MALADMINISTRATION 18
Right to Good Administration 18
Code of Good Administration 18
Public Administration Reform 19
Legalisation 20
The „Missing Babies” Case 20
RIGHTS OF THE CHILD 21
Children of the Street 21
DISCRIMINATION 22
PROTECTION OF THE RIGHTS OF THE PERSONS BELONGING TO NATIONAL MINORITIES 22
Elections for National Councils of National Minorities 23
Ethnic Intolerance and Distance 23
Employment of the Persons Belonging to National Minorities in Public Services 24
Position of the Roma 25
Legally Invisible Citizens 25
Risk of Politisation 26
RIGHTS OF PERSONS WITH DISABILITIES 26
GENDER EQUALITY 27
Rights of Persons Belonging to Sexual Minorities 28
PROTECTION OF RIGHTS OF PERSONS DEPRIVED OF LIBERTY 28
POSITION OF CIVIL SOCIETY ORGANISATIONS 30
KOSOVO AND METOHIJA 31
Organ Trade Report 31
INDEPENDENCE, WORKING CONDITIONS 32
EVEN CLOSER TO THE CITIZENS 35
Cooperation with Provincial and Local Ombudsmen 35
I KEY NOTES ON THE PROTECTOR OF CITIZENS 37
Legal Framework for the Operation of the Protector of Citizens 37
The Protector of Citizens’ Scope of Work 37
Cooperation with Public Authorities 39
II REMARKS ON HUMAN RIGHTS SITUATION IN THE AREAS WITHIN THE SCOPE OF COMPETENCE OF THE PROTECTOR OF CITIZENS 40
1. GOOD ADMINISTRATION 40
1.1. General Remarks on Implementation of Good Administration Principle 40
1.2. Violation of the Principle of Good administration in the Area of Health Care 43
1.3. Violation of Good Administration Principle in the Area of Retirement and Disability Insurance 47
1.4. Deficiencies in the Implementation of the Judicial Reform 51
1.5. Issue of Entering Personal Data into Public Documents in the Serbian Cyrillic Script 52
1.6. Complaints Coming from the Area of the Autonomous Province of Kosovo and Metohija 52
2. RIGHTS OF PEOPLE DEPRIVED OF LIBERTY 55
2.1. General Remarks 55
2.2. Police Custody 56
2.3. Detention 57
2.4. Prison 58
2.5. Inpatient Social and Psychiatric Institutions 62
2.6. Other Activities 63
3. GENDER EQUALITY AND RIGHTS OF SEXUAL MINORITIES 67
3.1. General Remarks 67
3.2. Violence against Women 68
3.3. Non-Exercise of the Labour Rights 68
3.4. Gender-Sensitive Use of Language 69
3.5. Rights of Sexual Minorities 69
3.6. Preventive Action 70
4. CHILD RIGHTS 71
4.1. General Remarks 71
4.2. Exercise of the Right to Education – Inclusive Education 72
4.3. Criteria for Employing the Expert Assistants in Schools and Their Professional Qualifications 74
4.4. Mandatory Preparatory Pre-School Programme 75
4.5. Protection of Roma Children against Discrimination, Violence and Insults 76
4.6. Мedia Exposure, Breach of Honour, Reputation and Right to Privacy of the Child 78
4.7. Inefficiency of the Enforcement of Court Decisions on Child Custody in Cases of a Divorced Marriage 79
4.8. Preservation of the Child’s Identity and Family Relations 80
4.9. Protection of Children Against Sexual Abuse and Exploitation 81
4.10. Web-Site Intended for Children and the Panel of Young Advisors 82
5. RIGHTS OF PERSONS BELONGING TO NATIONAL MINORITIES 84
5.1. General Remarks 84
5.2. Infringement of Independence of National Councils of National Minorities 84
5.3. Hindered Exercise of the Minority Autonomy 86
5.4. Discrimination and Racist Attacks of Persons Belonging to Roma National Minority 88
5.5. Exercise of the Right to Official Use of Languages and Scripts 89
5.6. „Invisible“ Citizens – Persons without the Citizens’ Rights 91
6. RIGHTS OF PERSONS WITH DISABILITIES AND THE ELDERLY 92
6.1. General Remarks 92
6.2. Facilities for Accommodation of the Elderly and Adult Persons With Disabilities 92
6.3. Problems in Exercising the Right to Fiscal Benefits 95
6.4. Restriction or Loss of Legal Capacity 95
6.5. Examples of Good Practice 95
III ACTIVITIES OF THE PROTECTOR OF CITIZENS ON IMPROVING LEGAL REGULATIONS 97
1. General Remarks 97
2. Initiatives and Activities of the Protector of Citizens on Improving Legal Regulations 97
3. Power to Launch Initiatives for New Laws and Regulations 98
4. Power to Submit Initiatives for Amendments to Legal Regulations 100
5. Opinions of the Protector of Citizens in the Process of Drafting Regulations 104
6. Initiatives for the Assessment of Constitutionality and Legality 105
IV OTHER ACTIVITIES OF THE PROTECTOR OF CITIZENS 107
1. The Protector of Citizens in the Media 107
2. Communiqués and Information 107
3. Actions Taken by the Protector of Citizens Pursuant to the Law on Free Access to Information of Public Importance 108
4. International Cooperation 108
5. Round Tables, Seminars and Conferences 112
6. Cooperation With Civil Society Organisations 115
7. Publications 115
V INFORMATION ON THE PROTECTOR OF CITIZENS AND FINANCIAL STATEMENTS 117
The Expert Services Department of the Protector of Citizens 117
Financial Expenditures 119
RECOMMENDATIONS FOR IMPROVING THE POSITION OF CITIZENS IN RELATION TO ADMINISTRATIVE AUTHORITIES 129
STATISTICAL AND NUMERICAL DATA ON ACTIVITIES OF THE PROTECTOR OF CITIZENS 133
A) CONTACT WITH CITIZENS 133
B) ACTIONS OF THE PROTECTOR OF CITIZENS ON COMPLAINTS 136
C) LEGAL AND OTHER INITIATIVES 154
D) OTHER ACTIVITIES OF THE PROTECTOR OF CITIZENS 155
INTRODUCTORY REMARKS BY THE PROTECTOR OF CITIZENS
Dear,
The 2010 Annual Report of the Protector of Citizens, the fourth of this kind, since the election of the Protector of Citizens and establishment of this institution in the Republic of Serbia, is hereby presented.
This document aims to achieve several objectives:
– to inform the National Assembly and other authorities, institutions and bodies, as well as the general public about the state of human and minority rights in the Republic of Serbia and about the quality of exercise of citizens’ rights before authorities and organisations performing duties and enforcing regulations of the Republic of Serbia;
– to indicate the necessary changes in the work of the public sector which would enhance the exercise of human and minority and rights and freedoms contribute to the improvement of the quality of relations between citizens and public authorities;
– to present to the National Assembly and general public the most important aspects of activities of the Protector of Citizens, in accordance with the universally applicable principle of accountability in performing public service.
During the previous reporting year, the Protector of Citizens provided working conditions and achieved the approximate capacity of the institution envisaged at the moment of its establishment. Approximately 8,500[1] citizens addressed the Protector of Citizens in 2010, over 2,600 formal complaints were filed, 925 new control procedures of the legality and regularity of work of the public administration authorities were instigated, in 1,900 of cases proceedings were finalised, 90 recommendations for remedying omissions and improvement of work were implemented, while in 300 cases, the public administration authorities themselves eliminated omissions in their work, immediately upon the receipt of the Protector of Citizens’ notification on the control procedure commencement. For the first time, the Protector of Citizens has successfully used the right to instigate the regulations constitutionality assessment procedure before the Constitutional Court, while the National Assembly has considered the amendments and proposals to the laws in parliamentary procedure he presented.
In majority of cases, public and other authorities and organisations have recognised not only the obligation, but their own interest in cooperation with the Protector of Citizens. This has also enabled achievement of concrete results and elimination of effects of certain omissions made to the detriment of the guaranteed citizens’ rights. These results, however, compared with the extent and diversity of irregularities and problems in the public administration work, are not remotely satisfactory. Changes are indispensable, either in the way the public administration perceives the nature of its duties and their performance, or in the capacity of the institution of the Protector of Citizens, unless we want it to collapse under the weight of delegated tasks and intensity of citizens’ expectations.
Protector of Citizens Saša Janković
EXERCISE AND PROTECTION OF CITIZENS’ RIGHTS AND FREEDOMS IN SERBIA- GENERAL OVERVIEW
Citizens[2] are becoming more and more aware of their rights every day and they are claiming them more persistantly and resolutely, but public administration authorities[3] fail to improve their work and efficiency in exercise and respect for rights and freedoms guaranteed by the legal system. Citizens’ discontent with the work of public administration authorities and respect for their rights is becoming more evident, since the expectations, one decade after changes implemented in 2000, are reasonably much greater. The growing poverty prevents the increasing number of citizens to notice the progress in any sphere of life and work, therefore any talk about the betterment is considered almost an insult. What can be done is to use areas in which, objectively speaking, the Republic of Serbia has achieved progress or in which conditions are considered to have been met for it (such as, enactment of the set of laws providing additional guarantees for the exercise of citizens’ rights; initiation of suppression of the long-tolerated violence; establishment of institutions specialised in human rights protection and combat against corruption ; enhancement of international cooperation in bringing serious-crime suspects to justice, closing down of public companies unadapted to market conditions), as a basis for improvement of issues considered of utmost importance to the majority of citizens- economic welfare and access to effective justice.
Citizens of Serbia are faced with a disparity between the high standards of respect for human rights prescribed by the Constitution, laws and other documents and everyday life. This is particularly the case for vulnerable groups, such as the Roma and persons belonging to other national minorities, persons with disabilities, the sick, persons deprived of liberty, women, refugees and displaced persons, persons belonging to sexual and religious minorities, children, socially handicapped, foreign nationals... Their problems often do not draw enough attention by the general public, until one of them reaches drastic proportions (for instance, the case of the murder of the French national Brice Taton which may not be contextually completely separated from the unpunished fire-setting to embassies a few years ago). Increasing poverty decreases the level of tolerance and solidarity towards such groups in particular. The fact that this process is not only typical of Serbia, does not diminish its harmfulness and danger.
While the number of citizens’ addresses to the Protector of Citizens is increasing every year, the social welfare, pension and health care systems stumble under the pressure of the citizens’ needs. Number and content of complaints filed due to the absence of efficient protection and exercise of social rights, right to a trial within a reasonable time, right of quiet enjoyment of property, right of respecting dignity by the administration and its accountable actions, as well as the nature of omissions in the work of public authorities, identified by the Protector of Citizens on a daily basis, do not leave much space for satisfaction.
CIVIL AND POLITICAL RIGHTS
The Freedom House Report for 2010 put the Republic of Serbia at the top of the world list with respect to civil and political rights. Serbia is certainly the country where citizens freely elect their political representatives, according to a democratically determined procedure (which includes several weak points which will be discussed later). That, however, is not enough. The Constitution, for instance, guarantees the highest level of the media freedom, but the inadequate quality, lack of harmonisation and inconsistent application of regulations within the media sector, have enabled creation of situation in which it is widely believed that the majority of media is related to certain political parties. That, naturally, casts a shadow over the genuine freedom of the media, that is the rights of citizens to objective information about political issues. At the same time, the fact that brings hope is that, in the procedure instigated by the Protector of Citizens, the Constitutional Court has declared unconstitutional several provisions of the Law on the Amendments to the Law on Public Informing, which represented additional threat to complete realisation of the constitutional guarantee of the freedom of the media.
Citizens of Serbia cannot say that their political and civil rights are suppressed by the non-democratic regime, which cannot be changed in free elections, as it is the case in some parts of the world. All democratic mechanisms for exercise and protection of human rights, have been officially established and they serve their basic purpose. Nevertheless, this is not sufficient in the 21st century, for the country which strives towards becoming a member of EU.
Considerable improvement has been achieved by means of enactment of the adequate and properly applied Law on Associations of Citizens. However, problems arise due to non-transparent enforcement of the Law on Churches and Religious Communities, because certain minority religious groups stress out their objections to the treatment by particular state authorities, while the line of demarcation between church and state is vague, despite the constitutional provision prescribing their separation.
Protection of the Right to a Fair Trial and Judicial Reform
There are specific problems in exercising the right to a fair and just trial, above all, with regard to trials within a reasonable time, which are the result of the long-term inefficiency of judiciary.
Citizens still file complaints to the Protector of Citizens against slow and unfair trials, even when they know that the Constitution excludes the supervisory jurisdiction of the Ombudsman over the work of courts, but they want to present their problem to the institution they trust or consider (mistakenly) that the previous address to the Protector of Citizens represents a condition for filing a petition to the European Court of Human Rights in Strasbourg. Citizens most usually complain about the duration of court proceedings, recurrent adjournment of hearings, absence of judges from trials, untimely delivery of court summons and documents, delayed decision-making or failure to decide upon legal remedies. Trials lasting for more than three years are not uncommon, while the justice coming too late ceases to be justice. Weaknesses in exercising this right lead to diminishment of the exercise of almost all other citizens’ rights, which can no longer be efficiently protected in courts. In many cases, citizens addressing the court to decide on protection or exercise of his or her right, paradoxically becomes the reason for or introduction into a new violation of right, even when the citizen manages to reach a court decision, then a new fight begins for its enforcement, that is for the exercise of the right established before the court.