Zlostavljanje, mučenje i iznuđivanje iskaza osumnjičenog u krivičnom zakonodavstvu Republike Srbije

Abstract

The "torture institute" used for procedural purposes by the public authorities, was primarily established at the time of the Inquisition, as a "legal means of obtaining confession". The reasons upon which such conclusions were based were causally concerned with the importance of confession as evidence in the criminal proceedings which had "the strength" of the regina probandum. The issue of lawfulness of the evidence obtained through torture was not raised; it was only the ultimate goal that mattered. A critique of this way of dealing with persons who have violated legal norms comes with the "philosophy of enlightenment and the philosophy of human rights," when torture loses its significance as "the way of obtaining evidence" since, above all, it does not always lead to the truth and has caused many wrongful court decisions. This is evidenced by today's criminal procedural solutions, which relate to the confession given by the defendant, since the confession itself is not enough to justify a court decision, so that other procedural conditions must also be met. At the international level, the first legal instruments of the UN and the Council of Europe which prescribed the ban on torture beyond national frameworks, clearly define the obligations that the States parties need to include in their legal order so as to adequately combat inhuman and degrading treatment and punishment, especially when the bearers of such conduct are the authorities empowered by the state to exercise the authority and means of coercion, directly affecting the sphere of proclaimed rights. It is precisely where the greatest "danger" lies: the authorities of the Ministry of Internal Affairs, which on the one hand provide protection of fundamental social and state values from persons who endanger such values, and on the other hand, protect the rights of those persons, so the question of "the most important law" or to whom to give priority in the situation of "conflict of rights with the law" arises. The European Court of Human Rights has sought to answer this question in its decisions considering the achievement and respect of the absolute prohibition of torture de facto by the police (when arresting, bringing in, holding in custody and interrogating the suspect). However, despite the high level of proclaimed rights and the efforts of the international community to respect them, it is clear from the court practice that in reality it is very difficult to ensure absolute respect of the norms prohibiting the torture, cruel, inhuman or degrading treatment and punishment.