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Article 14 Liberty and Security of the Person

187. The Constitution of the Republic of Serbia guarantees the right to freedom and security, and also prescribes the method of treatment of a person deprived of liberty, as well as special rights in case of deprivation of liberty without a court's decision.

188. The Law on Police prescribes MIA's obligations to create conditions for police operation, inter alia, organisation and implementation of internal control, and obligations of police officers. The police officer shall, in performing his/her duties, serve the community and protect all persons against illegal actions, and shall be responsible to always act professionally, responsibly and humanely, and to respect human dignity, reputation and honour ever person and his/her other rights and freedoms (Article 13, paragraph 2).

189. In the beginning of 2010, 28 persons with disabilities were serving imprisonment sentence in the Republic of Serbia, and only persons whose disability may be supported by necessary conditions are held in prisons, according to the data of the Administration for the Execution of Criminal Sanctions of the Ministry of Justice. If such conditions cannot be fulfilled, these persons are referred to the Special Prison Hospital in Belgrade. If the Special Prison Hospital has no adequate conditions either, PWDs are referred to a specialised facility that can respond to their needs, and costs are borne by the Administration for the Execution of Criminal Sanctions.

190. According to the findings of the deputy ombudsman for the rights of persons deprived of liberty, the number of complaints received by the Ombudsman from PWDs serving an imprisonment sentence or who are in detention, is not large, however, during control visits to prisons, it was observed that prison authorities have made some efforts to enable persons with disabilities appropriate accommodation and satisfaction of their needs.

Practice

191. Deprivation of persons with disabilities of liberty (except by the Criminal Code) is permitted in accordance with provisions under Art. 44 of the Law on Health Care, and provisions under Art. 45 to 55 of the Law on Extra-Judicial Proceedings (LEJP). These provisions regulate the procedure for involuntary, i.e. forced keeping in a psychiatric facility. A prerequisite is that a medical doctor and/or psychiatrist and/or neuropsychiatrist evaluate that the nature of a mental illness is such that it may jeopardise patient's own life or lives of others as well as property (Art. 44, paragraph 1 of LHC).

192. Civil society organisations suggest that LEJP reduces the subject of proceedings by letting the court to decide on further keeping of a person in the facility, and not on the legality of initial keeping of the person (from the moment of reception to the moment of submitting a report on reception to the court). Accordingly, current laws do not prescribe that required notice to the court on accommodation of persons in facilities must include reasons for restricting person's liberty. They prescribe that a court notice must contain information on the received person, person who brought the patient to the facility and, if possible, about the nature and level of disease with appropriate medical documentation (Article 46, paragraph 3). This leaves a lot of space for making arbitrary decisions of the court, but also opens a door to the possibility to act according to hidden motifs of other persons who would like a person to be held in an institution, against his/her own will. If health of a person improves to the extent that there is no reason to keep the patient in the facility, the court shall have a discretionary right to release the patient to liberty (article 52.). The Law does not oblige the court to hear, not even to see the person whose hospitalization is being decided on. In cases of re-deciding on the status of hospitalisation, the court shall be obliged to obtain findings of two medical experts and, if possible and not harmful for persons' health, hear the person (Article 54). It is often the case in practice that when a person who voluntarily registered in the facility withdraws his/her consent to hospitalisation, the medical staff shall not initiate a legally required procedure of forced restrain (court notice) – exposing a person to treatment without application of relevant provisions which would guarantee protection of rights in such cases.

193. Since ratification of the Convention, there were no recorded cases in which legal proceedings were conducted against employees in competent authorities and services due to unlawful deprivation of liberty of persons with disabilities or restriction of free movement in any sense (Article 132 of the Criminal Code). Accordingly, there were also no cases of sanctioning.

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