Serbia has the right not to deliver Seselj on the basis of United Nations resolutions 37/194- Expert


Press Release.

___________________________________

TO the ICTY authorities.

Sir,

As Medical Ethics is one of my expertise and as the Organizer of the International forum “Conference – Ethics for an Aging World” (science-dialogue.com), I feel concerned about recent developments that involve one of your detainees, presently on leave for medical purposes, Mr. Seselj.

I would like to inform you that according to the UN Resolution 37/194 from 1982, “Annex”, Principle 1 and 6 (attachment), it will not be possible to demand that Mr. Vojislav Seselj returns to the prison at this stage. Since he suffers from incurable disease, he is now legally just a MEDICAL PATIENT. He will most certainly not be in position ever to be returned to the ICTY prison. Therefore it is even illegal to try to exercise political pressure and to try to force Serbian government to arrange for an again illegal return of Mr. Seselj to the Hague prison.

Even more so, if the ICTY will now interfere with his therapy, the responsibility for un unsuccessful therapy may be, in great part, be subscribed to the ICTY and its disrespect of the International Law and unnecessary carelessness. I think that this would not be in the interests of justice, of the tribunal and certainly not in the interests of the concerned patient.

I would greatly appreciate if you would consider seriously this objection and keep me informed about your further steps and decisions in this respect.

Thank you very much indeed for your consideration.

Yours faithfully,

Dragan Pavlovic

_______________________________________________________________

Dragan Pavlovic,

Retired, actual position:

Adjunct Professor of Anesthesiology and Medical Ethics

Dept. of Anesthesia, Pain Management and Perioperative Medicine

Dalhousie University, Halifax, Canada

Microcirculation Diagnostics and Applied Studies Research Group

Dalhousie University, Halifax, Canada

Organiser: International Conference Ethics for an Aging World (science-dialogue.com)

PD Dr. med. habil. (Greifswald), Dr.Med. (Belgrad), Dr. med. (Greifswald) Dipl. Sp. Med. (London)

Specialist in Anesthesiology and Intensive Care Medicine (Paris)

Former Research Director, Klinik und Poliklinik für Anästhesiologie und Intensivmedizin, Universitätsmedizin, Ernst-Moritz-Arndt Universität, Greifswald, Germany and

Former Professor of Pathophysiology, European University, Belgrade, Serbia.

Editor in Chief, “Dialogue”, Paris.

http://www.science-dialogue.com/index-dialogue.htm

e-mail: pavlovic@uni-greifswald.de

or: dragan.pavlovic@gmail.com

http://www.pubfacts.com/author/Dragan+Pavlovic

https://dal.academia.edu/DraganPavlovic

https://www.researchgate.net/profile/Dragan_Pavlovic/publications/2?sorting=published

https://www.researchgate.net/profile/Dragan_Pavlovic/?ev=hdr_xprf

__________________________________________________________________________________

Vojislav Seselj and the End of the ICTY

________________________________________________________________

Slightly different versions were published in:

“Dialogue” Paris, Nr. 33, March 2015.

http://www.science-dialogue.com/index-dialogue.htm

“Politika”, Belgrade, 7th. April. 2015.

“Pravda” Belgrade, 5th April, 2015

http://www.pravda.rs/2015/04/05/srbija-ima-pravo-da-ne-isporuci-seselja-na-osnovu-rezolucije-ujedinjenih-nacija-37194/?lng=lat

_________________________________________________________________

Dr Vojislav Seselj

Dr Vojislav Seselj

Serbia has the right not to deliver Seselj on the basis of United Nations resolutions 37/194

By Dr. Dragan Pavlovic

Retired, actual position:

Adjunct Professor of Anesthesiology

Dept. of Anesthesia, Pain Management and Perioperative Medicine

Dalhousie University, Halifax, Canada

Microcirculation Diagnostics and Applied Studies Research Group

Dalhousie University, Halifax, Canada

_________________________________________________________

SUMMARY

The UN Resolution 37/194, 1984 implies that a prisoner that needs medical treatment must be treated in a standard hospital condition. Therefore this further implies that the Serbian politician Dr. Vojismlav Seselj, who has been released from ICTY prison for medical treatment, cannot be returned to prison and must follow his cancer treatment in hospital.

___________________________________________________________

Recently, the news has arrived from the Hague ICTY that Mr. Vojislav Seselj must be returned to The Hague ICTY prison institution. However, according to the United Nations resolution 37/194, on “Medical Ethics”, adopted by the General Assembly in 1982, Mr. Vojislav Seselj cannot be returned to prison, but the treatment must continue in an appropriate medical institution that provides the particular patient the “same treatment” as other patients suffering from such or similar disease. In principle, the maximal/optimal medical care is not available in the Hague prison or cannot be and has never been provided to the inmates in the past.

UN Resolution 37/194 of 1982, “Annex”

Principle 1, specifies: ” Health personnel, particularly physicians, charged with the medical care of prisoners and detainees, have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained. ”

Principle 6. There may be no derogation from the foregoing principles on any ground whatsoever, including public emergency. (Emphasis ours)

The aforementioned institutions (“Court” in The Hague), which ordered the return of Mr. Seselj, in principle could assure adequate treatment in the local university hospital, and such an arrangement has never been provided to the inmates and will almost certainly not be offered to Mr. Seselj. There is a risk, as the experience with some prisoners has shown, some of whom died under unclear circumstances, that the treatment in the Hague will be inadequate and therefore will be not in accordance with the prescription of the International Law, i.e. not in accordance with the UN Resolution 37/194. The only available solution would be to treat Mr. Seselj in Serbia. Therefore, Mr. Seselj should stay in Serbia and start therapy without delay.

In the meantime, Mr. Seselj should file an appeal to the OHCHR. This attempt to bring Mr. Seselj back to the Hague prison is a violation of human rights by the ICTY, and should probably contribute decisively to the end of illegal practice of this institution.

The cited resolution has been violated number of times in the past. Very frequently the experts do not pay sufficient attention to its prescriptions. For example, Ivan Jankovic in his book “The prohibition of abuse – manual for police and prison staff,” the Belgrade Centre for Human Rights, 2010 – although superficially discussed this aspect of the health care of prisoners, does not mention some important aspects that are treated in the resolution 37/194, such as a Principle 1 and Principle 6 of the cited Annex. Although there is a controversy (Judge Michael Reilly, Guidance on Physical Healthcare in a Prison Context, 2007, published 18th April 2011, Ch 3, p. 16 and further) in the case discussed here, the resolution 37/194, as a supreme legislation, must be imposed.

The resolution can be found here:

http://www.un.org/documents/ga/res/37/a37r194.htm

 

United Nations A/RES/37/194

General Assembly
Distr. GENERAL
18 December 1982
ORIGINAL:
ENGLISH
________________________________________
http://www.un.org/documents/ga/res/37/a37r194.htm

Resolution 37/194
111th plenary meeting
18 December 1982

37/194. Principles of Medical Ethics

The General Assembly,

Recalling its resolution 31/85 of 13 December 1976, in which it
invited the World Health Organization to prepare a draft Code of Medical
Ethics relevant to the protection of persons subjected to any form of
detention or imprisonment against torture and other cruel, inhuman or
degrading treatment or punishment, Official Records of the Economic
and Social Council, 1982, Supplement No. 2 (E/1982/12 and Corr.1), chap.
XXVI, sect. A, resolution 1982/44.

Expressing once again its appreciation to the Executive Board of the
World Health Organization which, as its sixty-third session in January
1979, decided to endorse the principles set forth in a report entitled
“Development of codes of medical ethics” containing, in an annex, a draft
body of principles prepared by the Council for International
Organizations of Medical Sciences and entitled “Principles of medical
ethics relevant to the role of health personnel in the protection of
persons against torture and other cruel, inhuman or degrading treatment
or punishment”,

Bearing in mind Economic and Social Council resolution 1981/27 of 6
May 1981, in which the Council recommended that the General Assembly
should take measures to finalize the draft Principles of Medical Ethics
at its thirty-sixth session,

Recalling its resolution 36/61 of 25 November 1981, in which it
decided to consider the draft Principles of Medical Ethics at its
thirty-seventh session with a view to adopting them,

Alarmed that not infrequently members of the medical profession or
other health personnel are engaged in activities which are difficult to
reconcile with medical ethics,

Recognizing that throughout the world significant medical activities
are increasingly being performed by health personnel not licensed or
trained as physicians, such as physician-assistants, paramedics, physical
therapists and nurse practitioners,

Taking note with appreciation of the “Guidelines for Medical Doctors
concerning Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment in relation to Detention and Imprisonment”, as adopted by the
twenty-ninth World Medical Assembly, held in Tokyo in October 1975,

Noting that in accordance with the Declaration of Tokyo measures
should be taken by States and by professional associations and other
bodies, as appropriate, against any attempt to subject health personnel
or members of their families to threats or reprisals resulting from a
refusal by such personnel to condone the use of torture or other forms of
cruel, inhuman or degrading treatment,

Reaffirming the Declaration on the Protection of all Persons from
Being Subjected to Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment as unanimously adopted in its resolution 3452
(XXX) of 9 December 1975, in which it declared any act of torture or
other cruel, inhuman or degrading treatment or punishment an offence to
human dignity, a denial of the purposes of the Charter of the United
Nations and a violation of the Universal Declaration of Human Rights,

Recalling that, in accordance with article 7 of the Declaration
adopted under resolution 3452 (XXX), each State shall ensure that the
commission of all acts of torture, as defined in article 1 of that
Declaration, or participation in, complicity in, incitement to and
attempt to commit torture, are offences under its criminal law,

Convinced that under no circumstances a person shall be punished for
carrying out medical activities compatible with medical ethics regardless
of the person benefiting therefrom, or shall be compelled to perform acts
or to carry out work in contravention of medical ethics, but that at the
same time, contravention of medical ethics for which health personnel,
particularly physicians, can be held responsible should entail
accountability,

Desirous to set further standards in this field which ought to be
implemented by health personnel, particularly physicians, and by
Government officials:

1. Adopts the “Principles of Medical Ethics relevant to the role
of health personnel, particularly physicians, in the protection of
prisoners and detainees against torture and other cruel, inhuman or
degrading treatment or punishment” annexed to the present resolution;

2. Calls upon all Governments to give the Principles of Medical
Ethics, together with the present resolution, the widest possible
distribution, in particular among medical and paramedical associations,
and institutions of detention or imprisonment in an official language of
the State;

3. Invites all relevant intergovernmental organizations, in
particular the World Health Organization, and non-governmental
organizations concerned to bring the Principles of Medical Ethics to the
attention of the widest possible group of individuals, especially those
active in the medical and paramedical field.

ANNEX

Principles of Medical Ethics relevant to the role of health
personnel, particularly physicians, in the protection of
prisoners and detainees against torture, and other cruel,
inhuman or degrading treatment or punishment

Principle 1

Health personnel, particularly physicians, charged with the
medical care of prisoners and detainees, have a duty to provide them
with protection of their physical and mental health and treatment of
disease of the same quality and standard as is afforded to those who
are not imprisoned or detained.

Principle 2

It is a gross contravention of medical ethics, as well as an
offence under applicable international instruments, for health
personnel, particularly physicians, to engage, actively or
passively, in acts which constitute participation in, complicity in,
incitement to or attempts to commit torture or other cruel, inhuman
or degrading treatment or punishment.

Principle 3

It is a contravention of medical ethics for health personnel,
particularly physicians, to be involved in any professional
relationship with prisoners or detainees the purpose of which is not
solely to evaluate, protect or improve their physical and mental
health.

Principle 4

It is a contravention of medical ethics for health personnel,
particularly physicians:

To apply their knowledge and skills in order to assist in the
interrogation of prisoners and detainees in a manner that may
adversely affect the physical or mental health or condition of such
prisoners or detainees and which is not in accordance with the
relevant international instruments;

“1. For the purpose of this Declaration, torture means any act by
which severe pain or suffering, whether physical or mental, is
intentionally inflicted by or at the instigation of a public
official on a person for such purposes as obtaining from him or a
third person information or confession, punishing him for an act he
has committed or is suspected of having committed, or intimidating
him or other persons. It does not include pain or suffering arising
only from, inherent in or incidental to, lawful sanctions to the
extent consistent with the Standard Minimum Rules for the Treatment
of Prisoners.

“2. Torture constitutes an aggravated and deliberate form of cruel,
inhuman or degrading treatment or punishment.”

Article 7 of the Declaration states:

“Each State shall ensure that all acts of torture as defined in
article 1 are offences under its criminal law. The same shall apply
in regard to acts which constitute participation in, complicity in,
incitement to or an attempt to commit torture.”

(b)
To certify, or to participate in the certification of, the fitness
of prisoners or detainees for any form of treatment or punishment
that may adversely affect their physical or mental health and which
is not in accordance with the relevant international instruments, or
to participate in any way in the infliction of any such treatment or
punishment which is not in accordance with the relevant
international instruments.

Principle 5

It is a contravention of medical ethics for health personnel,
particularly physicians, to participate in any procedure for
restraining a prisoner or detainee unless such a procedure is
determined in accordance with purely medical criteria as being
necessary for the protection of the physical or mental health or the
safety of the prisoner or detainee himself, of his fellow prisoners
or detainees, or of his guardians, and it presents no hazard to his
physical or mental health.

Principle 6

There may be no derogation from the foregoing principles on any
ground whatsoever, including public emergency.

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