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