Informazione
Subject: BELGRADE LAW PROFESSORS' VERDICT
Date: Mon, 10 Sep 2001 18:04:31 +0200
From: "Vladimir Krsljanin"
In their aggression against the law and justice, NATO&Soros
clerks in the so-called "International Criminal Tribunal for
Former Yugoslavia" based in the Hague, decided to ignore, as
essentially unpleasant for their dirty work, the initiative of
leading law experts and law professors of Belgrade University to
appear in the court room as real AMICI CURIAE (in its real
meaning - as FRIENDS OF JUSTICE) and expose monstrous
character of this institution, for long time successfully hidden
from public.
Instead, they have appointed three attorneys (from Holland,
England and Yugoslavia), proven as real FRIENDS OF (WHITE)
HOUSE, to serve as quasidefense for president Milosevic. That
way their attempted trial of president Milosevic would become
the greatest political FARCE ever seen. Belgrade professors
already condemned in press conference such illegal and absurd
decision of both "Tribunal" and those three attorneys. Accepting
such a role they should lose their licenses, Belgrade professors
stated.
For the sake of justice, the full text of the initiative of Belgrade
law professors, is hereby given.
TO THE INTERNATIONAL TRIBUNAL FOR
THE PROSECUTION OF PERSONS
RESPONSIBLE FOR SERIOUS VIOLATIONS
OF INTERNATIONAL HUMANITARIAN LAW
COMMITTED IN THE TERRITORY OF THE
FORMER YUGOSLAVIA SINCE 1991
To the Trial Chambers in all the cases before the
Tribunal
PROPOSAL FOR APPEARANCE BEFORE
TRIAL CHAMBERS BY VIRTUE OF RULE 74
ON PROCEDURE AND EVIDENCE (AMICUS
CURIAE)
The Professors and Assistant Lecturers of the
Faculty of Law of the University of Belgrade have
been following with great attention the work of the
International Tribunal for the prosecution of persons
responsible for serious violations of international
humanitarian law committed in the territory of the
former Yugoslavia since 1991, as the institution that,
by a number of elements, is new and specific and all
the more interesting therefore from the purely
theoretical standpoint and then also as an organ
whose work will strongly affect the current and
future situation in the space of our country and the
situation throughout the region. A large group of
teachers and associates of our institution has
already in the country itself taken initiatives in order
to ensure respect for the constitutionality and
legality in the field of prosecution of persons charged
with violations of international humanitarian law and
especially in the field of respect for the legal norms
concerning fundamental human rights. It is our firm
belief that the prosecution of perpetrators of criminal
offences which have violated international
humanitarian law is one of the imperatives and
prerequisites for the normalisation of relations and
for restoring stability in the space of the former
Yugoslavia just as it is the case in all regions of the
world where such offences were and are still being
committed and are regrettably a regular corollary of
virtually all wars and conflicts. However, we also
firmly believe that one cannot create law out of
non-law and that therefore when prosecuting and
trying in court even such serious offences as those
that the Tribunal has been dealing with, the rules of
international law must be strictly respected and
particularly those among them that protect
fundamental human rights and freedoms that are of a
universal nature and that as jus cogens, within the
framework of international law, have a hierarchically
superior position vis-a-vis the majority of other
rules. This action-taking in accordance with the law
is everywhere a necessity that cannot be called into
question. However, in the case of the conflicts that
took place in the past ten years or so in the former
SFRY, respect for law is all the more essential as
these were conflicts that left tragic consequences on
virtually all peoples in these parts, conflicts that
represent at the same time both the expression and
the integral part of the tragic fate of these peoples,
whose troublesome past left behind a number of
disputes and unresolved situations over which they
quarrelled and waged wars also throughout their
history and over which they continue to quarrel even
today.
Bearing in mind both the mentioned necessity of
strictly respecting law, both generally and
specifically regarding the issues related to the
conflict in the former Yugoslavia, and the huge real
importance that the Tribunal and its works have for
our country and the region, for our fate and the fate of
future generations in these parts, we consider it
important and from the standpoint of our human and
our professional conscience necessary to approach
the Tribunal and request that our representatives be
allowed by the Trial Chambers in the above
mentioned proceedings to appear in accordance with
Rule 74 on procedure and evidence before the Trial
Chambers conducting these proceedings and present
for each of these proceedings their specific
objections based on the general objections that we
shall make in this correspondence, which concern
respect of international law in the Tribunal's work
and in particular the norms protecting human rights
and fundamental freedoms.
We were prompted to take this step also by the
statement by Judge May during the first appearance
of former President Slobodan Milosevic before the
Tribunal, to the effect that the international law
would be applied to the accused in future. This would
have to mean also that in the course of proceedings
the Tribunal would respect all of his human rights,
both those prescribed by the International Covenant
on Civil and Political Rights and others. This
statement, of course, also applies to all other
indicted persons.
We wish to point out that we decided to approach the
Tribunal in this way even though we share the view
of a large number of top-ranking international legal
experts world-wide that the International Tribunal
for prosecution of persons responsible for serious
violations of international humanitarian law
committed in the territory of the former Yugoslavia
since 1991 was established in the manner contrary to
the UN Charter in support of which we shall also
present our arguments but as the Tribunal does exist
in fact as it functions and keeps in custody several
dozens of indicted persons, both Serbs and Croats
and Muslims, which from our viewpoint and from the
viewpoint of law is all the same, our professional and
human responsibility and conscience make it
incumbent upon us in this way, too, to try to
contribute to the respect of international law with
regard to all these indicted persons, no matter which
national grouping they belong to because they are all
equal before the law.
We are, likewise, of the opinion that in the interest of
law, justice and peace, it would be useful in our
region for the Tribunal's relevant Trial Chambers to
approach the Faculties of Law in Sarajevo, Zagreb
and other university centre in the space of the former
SFRY, whose scholars, whose competence we had
the opportunity to personally witness during many
years of close co-operation, also could make an
important contribution to ensuring consistent and
impartial law enforcement with respect to all the
indicted for violations of international humanitarian
law. For our part, we have been prompted to
approach the Tribunal in this manner also by the fact
that unlike the state authorities from other states
formed in the space of the former SFRY that care for
the status and rights of their citizens being held on
trial at the Tribunal, as well as for the dignity of their
own state and peoples living in it, our state
authorities do not perform their duty with respect to
their citizens and their country but, as a rule, are
doing precisely the opposite. Nevertheless, we wish
by our remarks and suggestions to promote justice
and respect for law, also relative to the citizens of
other states from the region, believing it to be our
duty to adopt a strictly professional attitude on this
plane as well and treat all equally.
In the text below, we shall present (I) our view of the
legal validity of the acts establishing the Tribunal,
but would not discuss that topic further, since the
Tribunal actually exists and tries people and that in
these proceedings in every case international law
should be observed; as well as (II) our general
observations regarding the set-up and the works of
the Tribunal, which our representatives would
present in more specific terms on each individual
case if the relevant Trial Chambers would grant
permission for appearance in the proceedings in the
amicus curiae capacity.
I.ABSENCE OF LEGAL GROUNDS FOR
ESTABLISHING THE HAGUE
TRIBUNAL IN THE SECURITY
COUNCIL ACTS
The Criminal Tribunal for the Former
Yugoslavia was established by UN Security
Council resolutions 808/93 and 827/93 and, as
explicitly stated in these acts, in accordance
with Chapter VII of the UN Charter.
However, the legal grounds of the acts
establishing the Tribunal, can be challenged,
i.e. it can be noted with full certainty that the
aid Security Council resolutions were
adopted in contravention of the UN Charter.
The Tribunal's establishment is legally
problematic, i.e. contrary to the valid rules of
international law and primarily the UN
Charter, on several grounds.
To start with, the Security Council is the UN
executive organ responsible for taking care
of peace and security world-wide and as
such it may not establish judicial organs. It
has the right to establish its subsidiary
organs (Article 29 of the Charter stipulates:
"The Security Council may establish such
subsidiary organs as it deems necessary for
the performance of its functions"), but as it
itself has no right to perform any judicial
unction, it cannot transfer to its subsidiary
organ any powers that it does not hold (and
within the powers it has, it may not transfer
to its subsidiary organs the decision-making
right, because this is the Security Council's
xclusive right that is exercised according to a
strictly prescribed procedure). This
interpretation is also confirmed by Article 28
of the Rules of Procedure of the Security
Council adopted on 24 June 1946 based on
Article 30 of the Charter (that is still, even
after 55 years, called "Provisional Rules of
Procedure"). This Article of the Rules of
Procedure reads as follows: "The Security
Council may appoint a commission, a
committee or a rapporteur for a specific
question". A year after the adoption of the
Charter, the Security Council, where the
representatives of the key UN founding
members played a dominant role, notably
important figures such as Ernest Bevine,
eorges Bidault, Joseph Paul-Boncour,
Edward R. Stetinius Jr., Andrei Y.
yshinsky, Andrei A. Gromyko, etc. that may
virtually be considered the Charter's
authentic interpreters, thus interpreted in the
mentioned way which subsidiary organs the
Security Council might have.
In addition, the Security Council's
competence under Article 24 of the UN
Charter is the following:
"1. In order to ensure prompt and effective
action by the United Nations, its members
confer on the Security Council primary
esponsibility for the maintenance of
international peace and security and agree
that, in carrying out its duty under this
responsibility, the Security Council acts on
their behalf.
2. In discharging these duties, the Security
Council shall act in accordance with the
purposes and principles of the United
Nations."
As part of the thus defined function, the
Security Council's key task is to take care of
respect for the principle set forth in Article 2,
item 4 of the Charter, according to which:
"All Members shall refrain in their
nternational relations from the threat or use
of force against the territorial integrity or
political independence of any state or in any
other way inconsistent with the purposes of
the United Nations." In case this principle is
violated, i.e. that there is "a threat to peace,
violation of peace or aggression" (Article 39
of the Charter), the Security Council may
ecide on the implementation of measures
(diplomatic, economic-financial and
ilitary), that must be based on Chapter 7 of
the UN Charter and whose aim it is to
maintain or restore peace and security in the
world. In international law, i.e. the part of it
concerning war and peace, there is a
traditional division into the rules concerning
the right to war (jus ad bellum) and the rules
regulating the rules of warfare, therefore,
those that are applied when the war has
already broken out in order for the war as an
otherwise inhumane phenomenon, to be made
as humane as possible, i.e. to alleviate the
orrors (this is about the so-called right in
war - jus in bello). With its above mentioned
role of taking care of peace and security in
the world, i.e. of respecting the ban on the
threat of force and the use of force, the
ecurity Council is an organ that looks after
the implementation of the rule jus ad bellum.
International criminal law, for its part, has as
its aim, primarily to prevent and punish
criminal behaviour during war conflicts, i.e. it
aims at humanising warfare, i.e. primarily
falls under the framework of "the law in
war"- "jus in bello". Of the criminal offences
within the framework of international law, it
is only the so-called "crimes against peace"
fall within the framework of "jus ad bellum",
i.e. it is only by these criminal offences that
the rules within the framework "jus ad
ellum" are violated, while all other criminal
offences fall within the framework of "jus in
bello". The Statute of The Hague Tribunal
tipulates that this Tribunal shall try virtually
all offences within the framework of
international criminal law except crimes
against peace, i.e. all the offences with the
exception of those directed against peace
and security in the world. Therefore, of all
international criminal offences, The Hague
ribunal does not deal only with those
offences that violate the values for whose
preservation the Security Council is
responsible (but, the Security Council does
not ensure the preservation of those values
through any judicial but through its executive
function). Consequently, the Criminal
Tribunal for the former Yugoslavia, through
its judicial function, does not prevent
recisely the offences that violate the values
for whose protection the Security Council is
responsible, meaning that the aims that it has
to attain and the aims of the Security Council
whose subsidiary organ it is, are not the
ame.
It follows that the Security Council was not
authorised to establish the Tribunal neither
from the standpoint of the nature of its
unction nor from the standpoint of the aims
that it aspires to fulfil.
In addition to the above mentioned, the
International Criminal Tribunal for the former
Yugoslavia, is a Tribunal only for crimes
ommitted in a particular space, i.e. in the
territory of several states formed following
their secession from the former Yugoslavia.
In addition to this Tribunal, such a tribunal
exists only for Rwanda. On the other hand,
the criminal offences of the same nature
were committed and are being committed in
ar-torn areas the world over. It is not only
that selective justice cannot be considered
true justice, but this selectively established
justice also contravenes the principle of
sovereign equality of states proclaimed in
rticle 2, item 1 of the UN Charter.
In support of the above arguments, we shall
recall the indubitable authority of Professor
Mohammed Bedjaoui, President of the
nternational Court of Justice. In his book
"The new world order and the control of the
legality of the Security Council acts"
("Nouvel ordre mondiale et controle de la
legalite des actes du Conseil de Securite",
Bruxelles, 1994), he included in the eight
Security Council resolutions that he
onsidered legally most disputable and that
would, as such, be the first to be subjected to
control, also the two mentioned resolutions
on the establishment of the ad hoc Tribunal
for the former Yugoslavia - resolutions
808/93 and 827/93.
The only legally valid way in which an
international war crimes tribunal may be
established is the one resorted to in Rome in
1998, when the Statute was adopted of the
Permanent International Criminal Court of a
general jurisdiction. Regrettably, this Statute
has not yet come into force due to the
insufficient number of instruments of
ratification.
Since the Security Council is a political organ
and since its decisions are of a political
nature and given that in international law it is
considered legitimate and permissible for the
states to oppose the implementation of
political decisions taken by international
organisations, including the UN, that are
unlawful, it may be possible to conclude that
the mentioned Security Council resolutions
whereby the Tribunal was established do not
create legally valid obligations from the
standpoint of international law and law in
general. With respect to the UN Security
Council, this conclusion stems from Article
25 of the UN Charter, which reads as
follows: "The members of the United Nations
agree to accept and carry out the decisions
of the Security Council in accordance with
the present Charter." In its advisory opinion
of 21 June 1971 (in the case of the legal
consequence of the protracted presence of
South Africa in Namibia despite Security
Council resolution 276/1970), the
International Court of Justice confirmed that
the states are not duty-bound to accept and
implement the Security Council decisions
that are not in accordance with the Charter,
which would, by the way, be clear by itself
even if it were not written anywhere.
Nevertheless, as we have already noted,
despite the mentioned objections related to
the legal grounds of the Tribunal's
establishment, we have decided to request
that our representatives be allowed to appear
before the Trial Chambers in all the
mentioned cases in accordance with Rule 74
on Procedure and Evidence. We proceed
from the fact that the Tribunal exists and
unctions and from our wish for international
law to be respected in all the mentioned
proceedings.
II.THE SET-UP AND WORK OF THE
HAGUE TRIBUNAL IS CONTRARY TO
INTERNATIONAL LAW PRIMARILY
IN THE FIELD OF HUMAN RIGHTS
What poses a particular problem when the Hague
Tribunal is concerned is the fact that both its set-up
and the method of work are, to a considerable extent,
contrary to a number of rules in international law,
particularly those in the field of human rights and
fundamental freedoms. Especially important among
these rights are those stipulated in the International
Covenant on Civil and Political Rights, adopted and
open for signature by UN General Assembly
resolution 2200A (XXI) of 16 December 1966, that
took effect on 23 March 1976, as one of the central
documents adopted internationally. The Tribunal's
rules are often contrary also to the general legal
principles as recognized by the civilized nations and
particularly the general principles of criminal,
substantive and procedural law having universal
value (legality of sanctions, two-instance court
proceedings, division of legislative and judicial
functions, etc.). It is also noteworthy that the Hague
Tribunal works also in contravention of a number of
provisions of the European Convention on Human
Rights and Fundamental Freedoms, as well as the
practice of the European Court of Human Rights.
Finally, a number of Rules of Procedure and Evidence
as well as a number of practical procedures before
the Tribunal run counter to the rules of the indicted
person prescribed in Article 21 of the Tribunal's
Statute that correspond to the rules stipulated in
Article 14 of the International Covenant on Civil and
Political Rights, so that our remarks concerning
respect for Article 14 of the Covenant as a rule also
apply to respect for Article 21 of the Statute.
Mentioned below are just some of the most important
violations of international law that appear in the
Tribunal's set-up plan and in its works.
1.Legislative and judicial functions are mixed
The Tribunal appears both as a legislative
and as a judicial body. The judges write the
Rules of Procedure and Evidence themselves
and are authorised to amend them (Article 15
of the Statute titled "Rules of Procedure and
Evidence" stipulates: "The judges of the
International Tribunal shall adopt the Rules
of Procedure and Evidence for work pending
trial, for the conduct of court proceedings and
appellate proceedings, for the acceptance of
vidence, for the protection of victims and
witnesses, as well as for other relevant
issues". They, therefore, both make law and
apply it.
The Rules of Procedure and Evidence are
frequently amended. In eight years of the
Tribunal's existence, it developed eighteen
amendments to the Rules. Such frequent
amendments of the Rules lead to legal
insecurity.
The legal insecurity and inadequacy of the
Rules of Procedure and Evidence is also
augmented by the fact that right from day one
they represented a mixture of different
systems and that their interpretation often
argely depends on the judge that is applying
them and particularly on the legal system and
tradition in the framework of which he was
trained. Such a nature of the rules and their
too frequent amendments make it impossible
to establish a stable court practice. As a
result, neither the defence nor the
rosecutors nor the judges themselves are
able to fully follow and master this practice.
What additionally undermines legal security
is also the fact that the English and the
French versions of the Rules do not always
coincide as well as the fact that with respect
to some issues, there is a discrepancy
etween the Rules and the Statute (which is
an act superior to the Rules) so that the
judges, at their own discretion, have the
possibility to opt for solutions that are more
convenient to them at the given moment. The
iscrepancies of the mentioned types that will
be presented in this paper are only a part of
these discrepancies.
The absence of separation of the legislative
function from the judicial function also gives
the judges the possibility and the
uthorisation to interpret these Rules
depending on circumstances and without any
control. The defence has no means or
possibility to challenge the interpretation of
these rules by the Tribunal even if that
interpretation is evidently incorrect. It does
not have either the possibility to challenge
the legality of these rules even in cases
when they evidently contravene the Statute's
provisions which often happens in practice
as we shall see from some examples in the
text below.
2.The prosecutor's and the judge's functions
are mixed
According to its Statute, the Tribunal was
established as the "International Tribunal for
the prosecution of persons responsible for
serious violations of international
humanitarian law committed in the territory
of the former Yugoslavia since 1991". This is
how it was defined also in the Rules of
rocedure and Evidence.
Consequently, judging by the text of the
Statute, the Tribunal's task is prosecution.
This is clearly not a normal function of a
ourt that should try the accused (the French
version of the Statute, true, is more correct
than the English version because it
stipulates that the Tribunal shall "try in
court" (juger) - "Le Tribunal international
penal pour juger les personnes presumees
responsables de violations graves du droit
international humanitaire commises en
ex-Yougoslavie depuis 1991" - however, in
the text of the Rules of Procedure and
Evidence, the word "juger", meaning `try in
court', has been replaced by the word
"poursuivre", meaning "prosecute").
Both versions (the English and the French)
of the Rules of Procedure and Evidence take
the English version of the definition from the
tatute. Describing the institution under
discussion as the "International Tribunal
(Court) for the prosecution of persons
responsible for serious violations of
international humanitarian law committed in
the territory of the former Yugoslavia since
1991".
The mentioned inappropriate determination of
the Tribunal's function is not solely limited to
linguistic imprecision. It finds its practical
implementation also in the fact that the
Tribunal (i.e. the Trial Chambers and the
Prosecutor's Office) represents a single
organisational unit with a joint Secretariat.
Such institutional unity of the Prosecutor's
Office and the Court is unacceptable and
inconceivable in any modern judicial system.
Further materialisation in the mentioned
definitions of the proclaimed "prosecuting"
role of the Tribunal is also effected through
its actions that are characterised by
violations of a number of rights of the
ndicted persons and prevention of providing
adequate defence which will be discussed
later on.
What is also indicative in the mentioned
definitions is the fact that the Tribunal was
established to prosecute "persons
responsible...". Defining things in this way
runs counter to the modern legal and social
chievements, namely, in contemporary world,
any normal judicial system is characterised
by the fact that courts try "indicted persons"
who are presumed innocent until proven
guilty (Article 14, paragraph 2 of the
International Covenant of Civil and Political
Rights stipulates: "Everyone charged with a
riminal offence shall have the right to be
presumed innocent until proved guilty
according to law."; a similar provision is also
contained in Article 21 paragraph 3 of the
Tribunal's Statute, but this provision runs
counter to the manner in which the Tribunal
has been defined and the way it functions).
The mentioned French versions of the
Statute and the Rules go even a step further
o deny this fundamental premise of modern
justice and they indicate that the Tribunal
shall try in court or prosecute "persons
presumed responsible..." ("les personnes
presumees responsables...").
This establishment of the "presumption of
guilt" does not remain solely verbal but also
has its practical implementation, to be
iscussed later on.
3.Violation of the two-instance proceedings
principle
Article 14, paragraph 5, of the International Covenant
on Civil and political Rights, prescribes the right to
two-instance proceedings in the following way:
"Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a
higher tribunal according to law." The mentioned
provision evidently presumes a distinction between a
lower and higher judicial instance, a thing considered
normal and commonplace in all modern legal
systems.
At the Hague Tribunal, the same judges are members
of both first-instance (the term "first-instance" is
used in the French version of the text, while the
appropriate term from the English version is "Trial")
and Appellate Chambers. Namely, Rule 27 on
Procedure and Evidence reads:
"Rule 27
Rotation
A.Permanent Judges shall rotate on a regular
basis between the Trial Chambers and the
Appeals Chamber. Rotation shall take into
account the efficient disposal of cases.
B.The Judges shall take their places in their
new Chamber as soon as the President
thinks it convenient, having regard to the
disposal of part-heard cases.
C.The President may at any time temporarily
assign a member of a Trial Chamber or of the
Appeals Chamber to another Chamber."
A judge, therefore, may be in a first-instance
Chamber in one case and a member of the Appeals
Chamber in another. Therefore, the decision of every
judge acting as a member of a first-instance
Chamber are subject to control by other judges who
are in that case members of the second-instance
Chamber, whereas in other cases that very same
judge takes part in second- instance proceedings in
the control of the work of these other judges that
now appear as members of second-instance
Chambers. This is how the system of mutual
cross-control functions, impeding clear
two-instance nature in trials and may result in
deviations primarily towards a benevolent attitude
and confirmation of first-instance decisions made by
other judges when acting in second-instance
proceedings, so that they can be expected to
reciprocate this benevolence when their roles are
reversed.
This double position of judges undermines
considerably their independence and impartiality.
This organisation also gives the judge the possibility
to take part in decision-making as a
second-instance judge and at the same time to apply
the stands from such decisions as the court practice
established in second- instance proceedings in
cases that he tries as a judge in first-instance
proceedings.
The paradoxical possibility for the same judge to
decide on the same legal issue in one case within the
framework of a first-instance Chamber and at the
same time in a second case within the framework of
an Appeals Chamber gives this judge a legally
unacceptable benefit of providing to his stand and
first-instance decision simultaneously the legal
force and the confirmation of judicial practice
established at the second-instance level.
The true unacceptability of such a rule that allows
the same judges to participate both in first-instance
and Appeals Chambers is further strongly
accentuated by the fact that the rotation does not
take place under any rules laid down in advance, but
according to the decision of the President, who is
authorised at any moment to temporarily assign a
judge to another Chamber.
(1. continua/follows)
---
Questa lista e' curata da componenti del
Coordinamento N
---- Spot ------------------------------------------------------------
BASTA CODE INTERMINABILI PER I SALDI DI FINE STAGIONE!
Da oggi tutte le migliori offerte direttamente nella
tua casella di posta su moda, accessori, collezioni...
http://www.domeus.it/ad3584290/valuemail.domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
Date: Mon, 10 Sep 2001 18:04:31 +0200
From: "Vladimir Krsljanin"
In their aggression against the law and justice, NATO&Soros
clerks in the so-called "International Criminal Tribunal for
Former Yugoslavia" based in the Hague, decided to ignore, as
essentially unpleasant for their dirty work, the initiative of
leading law experts and law professors of Belgrade University to
appear in the court room as real AMICI CURIAE (in its real
meaning - as FRIENDS OF JUSTICE) and expose monstrous
character of this institution, for long time successfully hidden
from public.
Instead, they have appointed three attorneys (from Holland,
England and Yugoslavia), proven as real FRIENDS OF (WHITE)
HOUSE, to serve as quasidefense for president Milosevic. That
way their attempted trial of president Milosevic would become
the greatest political FARCE ever seen. Belgrade professors
already condemned in press conference such illegal and absurd
decision of both "Tribunal" and those three attorneys. Accepting
such a role they should lose their licenses, Belgrade professors
stated.
For the sake of justice, the full text of the initiative of Belgrade
law professors, is hereby given.
TO THE INTERNATIONAL TRIBUNAL FOR
THE PROSECUTION OF PERSONS
RESPONSIBLE FOR SERIOUS VIOLATIONS
OF INTERNATIONAL HUMANITARIAN LAW
COMMITTED IN THE TERRITORY OF THE
FORMER YUGOSLAVIA SINCE 1991
To the Trial Chambers in all the cases before the
Tribunal
PROPOSAL FOR APPEARANCE BEFORE
TRIAL CHAMBERS BY VIRTUE OF RULE 74
ON PROCEDURE AND EVIDENCE (AMICUS
CURIAE)
The Professors and Assistant Lecturers of the
Faculty of Law of the University of Belgrade have
been following with great attention the work of the
International Tribunal for the prosecution of persons
responsible for serious violations of international
humanitarian law committed in the territory of the
former Yugoslavia since 1991, as the institution that,
by a number of elements, is new and specific and all
the more interesting therefore from the purely
theoretical standpoint and then also as an organ
whose work will strongly affect the current and
future situation in the space of our country and the
situation throughout the region. A large group of
teachers and associates of our institution has
already in the country itself taken initiatives in order
to ensure respect for the constitutionality and
legality in the field of prosecution of persons charged
with violations of international humanitarian law and
especially in the field of respect for the legal norms
concerning fundamental human rights. It is our firm
belief that the prosecution of perpetrators of criminal
offences which have violated international
humanitarian law is one of the imperatives and
prerequisites for the normalisation of relations and
for restoring stability in the space of the former
Yugoslavia just as it is the case in all regions of the
world where such offences were and are still being
committed and are regrettably a regular corollary of
virtually all wars and conflicts. However, we also
firmly believe that one cannot create law out of
non-law and that therefore when prosecuting and
trying in court even such serious offences as those
that the Tribunal has been dealing with, the rules of
international law must be strictly respected and
particularly those among them that protect
fundamental human rights and freedoms that are of a
universal nature and that as jus cogens, within the
framework of international law, have a hierarchically
superior position vis-a-vis the majority of other
rules. This action-taking in accordance with the law
is everywhere a necessity that cannot be called into
question. However, in the case of the conflicts that
took place in the past ten years or so in the former
SFRY, respect for law is all the more essential as
these were conflicts that left tragic consequences on
virtually all peoples in these parts, conflicts that
represent at the same time both the expression and
the integral part of the tragic fate of these peoples,
whose troublesome past left behind a number of
disputes and unresolved situations over which they
quarrelled and waged wars also throughout their
history and over which they continue to quarrel even
today.
Bearing in mind both the mentioned necessity of
strictly respecting law, both generally and
specifically regarding the issues related to the
conflict in the former Yugoslavia, and the huge real
importance that the Tribunal and its works have for
our country and the region, for our fate and the fate of
future generations in these parts, we consider it
important and from the standpoint of our human and
our professional conscience necessary to approach
the Tribunal and request that our representatives be
allowed by the Trial Chambers in the above
mentioned proceedings to appear in accordance with
Rule 74 on procedure and evidence before the Trial
Chambers conducting these proceedings and present
for each of these proceedings their specific
objections based on the general objections that we
shall make in this correspondence, which concern
respect of international law in the Tribunal's work
and in particular the norms protecting human rights
and fundamental freedoms.
We were prompted to take this step also by the
statement by Judge May during the first appearance
of former President Slobodan Milosevic before the
Tribunal, to the effect that the international law
would be applied to the accused in future. This would
have to mean also that in the course of proceedings
the Tribunal would respect all of his human rights,
both those prescribed by the International Covenant
on Civil and Political Rights and others. This
statement, of course, also applies to all other
indicted persons.
We wish to point out that we decided to approach the
Tribunal in this way even though we share the view
of a large number of top-ranking international legal
experts world-wide that the International Tribunal
for prosecution of persons responsible for serious
violations of international humanitarian law
committed in the territory of the former Yugoslavia
since 1991 was established in the manner contrary to
the UN Charter in support of which we shall also
present our arguments but as the Tribunal does exist
in fact as it functions and keeps in custody several
dozens of indicted persons, both Serbs and Croats
and Muslims, which from our viewpoint and from the
viewpoint of law is all the same, our professional and
human responsibility and conscience make it
incumbent upon us in this way, too, to try to
contribute to the respect of international law with
regard to all these indicted persons, no matter which
national grouping they belong to because they are all
equal before the law.
We are, likewise, of the opinion that in the interest of
law, justice and peace, it would be useful in our
region for the Tribunal's relevant Trial Chambers to
approach the Faculties of Law in Sarajevo, Zagreb
and other university centre in the space of the former
SFRY, whose scholars, whose competence we had
the opportunity to personally witness during many
years of close co-operation, also could make an
important contribution to ensuring consistent and
impartial law enforcement with respect to all the
indicted for violations of international humanitarian
law. For our part, we have been prompted to
approach the Tribunal in this manner also by the fact
that unlike the state authorities from other states
formed in the space of the former SFRY that care for
the status and rights of their citizens being held on
trial at the Tribunal, as well as for the dignity of their
own state and peoples living in it, our state
authorities do not perform their duty with respect to
their citizens and their country but, as a rule, are
doing precisely the opposite. Nevertheless, we wish
by our remarks and suggestions to promote justice
and respect for law, also relative to the citizens of
other states from the region, believing it to be our
duty to adopt a strictly professional attitude on this
plane as well and treat all equally.
In the text below, we shall present (I) our view of the
legal validity of the acts establishing the Tribunal,
but would not discuss that topic further, since the
Tribunal actually exists and tries people and that in
these proceedings in every case international law
should be observed; as well as (II) our general
observations regarding the set-up and the works of
the Tribunal, which our representatives would
present in more specific terms on each individual
case if the relevant Trial Chambers would grant
permission for appearance in the proceedings in the
amicus curiae capacity.
I.ABSENCE OF LEGAL GROUNDS FOR
ESTABLISHING THE HAGUE
TRIBUNAL IN THE SECURITY
COUNCIL ACTS
The Criminal Tribunal for the Former
Yugoslavia was established by UN Security
Council resolutions 808/93 and 827/93 and, as
explicitly stated in these acts, in accordance
with Chapter VII of the UN Charter.
However, the legal grounds of the acts
establishing the Tribunal, can be challenged,
i.e. it can be noted with full certainty that the
aid Security Council resolutions were
adopted in contravention of the UN Charter.
The Tribunal's establishment is legally
problematic, i.e. contrary to the valid rules of
international law and primarily the UN
Charter, on several grounds.
To start with, the Security Council is the UN
executive organ responsible for taking care
of peace and security world-wide and as
such it may not establish judicial organs. It
has the right to establish its subsidiary
organs (Article 29 of the Charter stipulates:
"The Security Council may establish such
subsidiary organs as it deems necessary for
the performance of its functions"), but as it
itself has no right to perform any judicial
unction, it cannot transfer to its subsidiary
organ any powers that it does not hold (and
within the powers it has, it may not transfer
to its subsidiary organs the decision-making
right, because this is the Security Council's
xclusive right that is exercised according to a
strictly prescribed procedure). This
interpretation is also confirmed by Article 28
of the Rules of Procedure of the Security
Council adopted on 24 June 1946 based on
Article 30 of the Charter (that is still, even
after 55 years, called "Provisional Rules of
Procedure"). This Article of the Rules of
Procedure reads as follows: "The Security
Council may appoint a commission, a
committee or a rapporteur for a specific
question". A year after the adoption of the
Charter, the Security Council, where the
representatives of the key UN founding
members played a dominant role, notably
important figures such as Ernest Bevine,
eorges Bidault, Joseph Paul-Boncour,
Edward R. Stetinius Jr., Andrei Y.
yshinsky, Andrei A. Gromyko, etc. that may
virtually be considered the Charter's
authentic interpreters, thus interpreted in the
mentioned way which subsidiary organs the
Security Council might have.
In addition, the Security Council's
competence under Article 24 of the UN
Charter is the following:
"1. In order to ensure prompt and effective
action by the United Nations, its members
confer on the Security Council primary
esponsibility for the maintenance of
international peace and security and agree
that, in carrying out its duty under this
responsibility, the Security Council acts on
their behalf.
2. In discharging these duties, the Security
Council shall act in accordance with the
purposes and principles of the United
Nations."
As part of the thus defined function, the
Security Council's key task is to take care of
respect for the principle set forth in Article 2,
item 4 of the Charter, according to which:
"All Members shall refrain in their
nternational relations from the threat or use
of force against the territorial integrity or
political independence of any state or in any
other way inconsistent with the purposes of
the United Nations." In case this principle is
violated, i.e. that there is "a threat to peace,
violation of peace or aggression" (Article 39
of the Charter), the Security Council may
ecide on the implementation of measures
(diplomatic, economic-financial and
ilitary), that must be based on Chapter 7 of
the UN Charter and whose aim it is to
maintain or restore peace and security in the
world. In international law, i.e. the part of it
concerning war and peace, there is a
traditional division into the rules concerning
the right to war (jus ad bellum) and the rules
regulating the rules of warfare, therefore,
those that are applied when the war has
already broken out in order for the war as an
otherwise inhumane phenomenon, to be made
as humane as possible, i.e. to alleviate the
orrors (this is about the so-called right in
war - jus in bello). With its above mentioned
role of taking care of peace and security in
the world, i.e. of respecting the ban on the
threat of force and the use of force, the
ecurity Council is an organ that looks after
the implementation of the rule jus ad bellum.
International criminal law, for its part, has as
its aim, primarily to prevent and punish
criminal behaviour during war conflicts, i.e. it
aims at humanising warfare, i.e. primarily
falls under the framework of "the law in
war"- "jus in bello". Of the criminal offences
within the framework of international law, it
is only the so-called "crimes against peace"
fall within the framework of "jus ad bellum",
i.e. it is only by these criminal offences that
the rules within the framework "jus ad
ellum" are violated, while all other criminal
offences fall within the framework of "jus in
bello". The Statute of The Hague Tribunal
tipulates that this Tribunal shall try virtually
all offences within the framework of
international criminal law except crimes
against peace, i.e. all the offences with the
exception of those directed against peace
and security in the world. Therefore, of all
international criminal offences, The Hague
ribunal does not deal only with those
offences that violate the values for whose
preservation the Security Council is
responsible (but, the Security Council does
not ensure the preservation of those values
through any judicial but through its executive
function). Consequently, the Criminal
Tribunal for the former Yugoslavia, through
its judicial function, does not prevent
recisely the offences that violate the values
for whose protection the Security Council is
responsible, meaning that the aims that it has
to attain and the aims of the Security Council
whose subsidiary organ it is, are not the
ame.
It follows that the Security Council was not
authorised to establish the Tribunal neither
from the standpoint of the nature of its
unction nor from the standpoint of the aims
that it aspires to fulfil.
In addition to the above mentioned, the
International Criminal Tribunal for the former
Yugoslavia, is a Tribunal only for crimes
ommitted in a particular space, i.e. in the
territory of several states formed following
their secession from the former Yugoslavia.
In addition to this Tribunal, such a tribunal
exists only for Rwanda. On the other hand,
the criminal offences of the same nature
were committed and are being committed in
ar-torn areas the world over. It is not only
that selective justice cannot be considered
true justice, but this selectively established
justice also contravenes the principle of
sovereign equality of states proclaimed in
rticle 2, item 1 of the UN Charter.
In support of the above arguments, we shall
recall the indubitable authority of Professor
Mohammed Bedjaoui, President of the
nternational Court of Justice. In his book
"The new world order and the control of the
legality of the Security Council acts"
("Nouvel ordre mondiale et controle de la
legalite des actes du Conseil de Securite",
Bruxelles, 1994), he included in the eight
Security Council resolutions that he
onsidered legally most disputable and that
would, as such, be the first to be subjected to
control, also the two mentioned resolutions
on the establishment of the ad hoc Tribunal
for the former Yugoslavia - resolutions
808/93 and 827/93.
The only legally valid way in which an
international war crimes tribunal may be
established is the one resorted to in Rome in
1998, when the Statute was adopted of the
Permanent International Criminal Court of a
general jurisdiction. Regrettably, this Statute
has not yet come into force due to the
insufficient number of instruments of
ratification.
Since the Security Council is a political organ
and since its decisions are of a political
nature and given that in international law it is
considered legitimate and permissible for the
states to oppose the implementation of
political decisions taken by international
organisations, including the UN, that are
unlawful, it may be possible to conclude that
the mentioned Security Council resolutions
whereby the Tribunal was established do not
create legally valid obligations from the
standpoint of international law and law in
general. With respect to the UN Security
Council, this conclusion stems from Article
25 of the UN Charter, which reads as
follows: "The members of the United Nations
agree to accept and carry out the decisions
of the Security Council in accordance with
the present Charter." In its advisory opinion
of 21 June 1971 (in the case of the legal
consequence of the protracted presence of
South Africa in Namibia despite Security
Council resolution 276/1970), the
International Court of Justice confirmed that
the states are not duty-bound to accept and
implement the Security Council decisions
that are not in accordance with the Charter,
which would, by the way, be clear by itself
even if it were not written anywhere.
Nevertheless, as we have already noted,
despite the mentioned objections related to
the legal grounds of the Tribunal's
establishment, we have decided to request
that our representatives be allowed to appear
before the Trial Chambers in all the
mentioned cases in accordance with Rule 74
on Procedure and Evidence. We proceed
from the fact that the Tribunal exists and
unctions and from our wish for international
law to be respected in all the mentioned
proceedings.
II.THE SET-UP AND WORK OF THE
HAGUE TRIBUNAL IS CONTRARY TO
INTERNATIONAL LAW PRIMARILY
IN THE FIELD OF HUMAN RIGHTS
What poses a particular problem when the Hague
Tribunal is concerned is the fact that both its set-up
and the method of work are, to a considerable extent,
contrary to a number of rules in international law,
particularly those in the field of human rights and
fundamental freedoms. Especially important among
these rights are those stipulated in the International
Covenant on Civil and Political Rights, adopted and
open for signature by UN General Assembly
resolution 2200A (XXI) of 16 December 1966, that
took effect on 23 March 1976, as one of the central
documents adopted internationally. The Tribunal's
rules are often contrary also to the general legal
principles as recognized by the civilized nations and
particularly the general principles of criminal,
substantive and procedural law having universal
value (legality of sanctions, two-instance court
proceedings, division of legislative and judicial
functions, etc.). It is also noteworthy that the Hague
Tribunal works also in contravention of a number of
provisions of the European Convention on Human
Rights and Fundamental Freedoms, as well as the
practice of the European Court of Human Rights.
Finally, a number of Rules of Procedure and Evidence
as well as a number of practical procedures before
the Tribunal run counter to the rules of the indicted
person prescribed in Article 21 of the Tribunal's
Statute that correspond to the rules stipulated in
Article 14 of the International Covenant on Civil and
Political Rights, so that our remarks concerning
respect for Article 14 of the Covenant as a rule also
apply to respect for Article 21 of the Statute.
Mentioned below are just some of the most important
violations of international law that appear in the
Tribunal's set-up plan and in its works.
1.Legislative and judicial functions are mixed
The Tribunal appears both as a legislative
and as a judicial body. The judges write the
Rules of Procedure and Evidence themselves
and are authorised to amend them (Article 15
of the Statute titled "Rules of Procedure and
Evidence" stipulates: "The judges of the
International Tribunal shall adopt the Rules
of Procedure and Evidence for work pending
trial, for the conduct of court proceedings and
appellate proceedings, for the acceptance of
vidence, for the protection of victims and
witnesses, as well as for other relevant
issues". They, therefore, both make law and
apply it.
The Rules of Procedure and Evidence are
frequently amended. In eight years of the
Tribunal's existence, it developed eighteen
amendments to the Rules. Such frequent
amendments of the Rules lead to legal
insecurity.
The legal insecurity and inadequacy of the
Rules of Procedure and Evidence is also
augmented by the fact that right from day one
they represented a mixture of different
systems and that their interpretation often
argely depends on the judge that is applying
them and particularly on the legal system and
tradition in the framework of which he was
trained. Such a nature of the rules and their
too frequent amendments make it impossible
to establish a stable court practice. As a
result, neither the defence nor the
rosecutors nor the judges themselves are
able to fully follow and master this practice.
What additionally undermines legal security
is also the fact that the English and the
French versions of the Rules do not always
coincide as well as the fact that with respect
to some issues, there is a discrepancy
etween the Rules and the Statute (which is
an act superior to the Rules) so that the
judges, at their own discretion, have the
possibility to opt for solutions that are more
convenient to them at the given moment. The
iscrepancies of the mentioned types that will
be presented in this paper are only a part of
these discrepancies.
The absence of separation of the legislative
function from the judicial function also gives
the judges the possibility and the
uthorisation to interpret these Rules
depending on circumstances and without any
control. The defence has no means or
possibility to challenge the interpretation of
these rules by the Tribunal even if that
interpretation is evidently incorrect. It does
not have either the possibility to challenge
the legality of these rules even in cases
when they evidently contravene the Statute's
provisions which often happens in practice
as we shall see from some examples in the
text below.
2.The prosecutor's and the judge's functions
are mixed
According to its Statute, the Tribunal was
established as the "International Tribunal for
the prosecution of persons responsible for
serious violations of international
humanitarian law committed in the territory
of the former Yugoslavia since 1991". This is
how it was defined also in the Rules of
rocedure and Evidence.
Consequently, judging by the text of the
Statute, the Tribunal's task is prosecution.
This is clearly not a normal function of a
ourt that should try the accused (the French
version of the Statute, true, is more correct
than the English version because it
stipulates that the Tribunal shall "try in
court" (juger) - "Le Tribunal international
penal pour juger les personnes presumees
responsables de violations graves du droit
international humanitaire commises en
ex-Yougoslavie depuis 1991" - however, in
the text of the Rules of Procedure and
Evidence, the word "juger", meaning `try in
court', has been replaced by the word
"poursuivre", meaning "prosecute").
Both versions (the English and the French)
of the Rules of Procedure and Evidence take
the English version of the definition from the
tatute. Describing the institution under
discussion as the "International Tribunal
(Court) for the prosecution of persons
responsible for serious violations of
international humanitarian law committed in
the territory of the former Yugoslavia since
1991".
The mentioned inappropriate determination of
the Tribunal's function is not solely limited to
linguistic imprecision. It finds its practical
implementation also in the fact that the
Tribunal (i.e. the Trial Chambers and the
Prosecutor's Office) represents a single
organisational unit with a joint Secretariat.
Such institutional unity of the Prosecutor's
Office and the Court is unacceptable and
inconceivable in any modern judicial system.
Further materialisation in the mentioned
definitions of the proclaimed "prosecuting"
role of the Tribunal is also effected through
its actions that are characterised by
violations of a number of rights of the
ndicted persons and prevention of providing
adequate defence which will be discussed
later on.
What is also indicative in the mentioned
definitions is the fact that the Tribunal was
established to prosecute "persons
responsible...". Defining things in this way
runs counter to the modern legal and social
chievements, namely, in contemporary world,
any normal judicial system is characterised
by the fact that courts try "indicted persons"
who are presumed innocent until proven
guilty (Article 14, paragraph 2 of the
International Covenant of Civil and Political
Rights stipulates: "Everyone charged with a
riminal offence shall have the right to be
presumed innocent until proved guilty
according to law."; a similar provision is also
contained in Article 21 paragraph 3 of the
Tribunal's Statute, but this provision runs
counter to the manner in which the Tribunal
has been defined and the way it functions).
The mentioned French versions of the
Statute and the Rules go even a step further
o deny this fundamental premise of modern
justice and they indicate that the Tribunal
shall try in court or prosecute "persons
presumed responsible..." ("les personnes
presumees responsables...").
This establishment of the "presumption of
guilt" does not remain solely verbal but also
has its practical implementation, to be
iscussed later on.
3.Violation of the two-instance proceedings
principle
Article 14, paragraph 5, of the International Covenant
on Civil and political Rights, prescribes the right to
two-instance proceedings in the following way:
"Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a
higher tribunal according to law." The mentioned
provision evidently presumes a distinction between a
lower and higher judicial instance, a thing considered
normal and commonplace in all modern legal
systems.
At the Hague Tribunal, the same judges are members
of both first-instance (the term "first-instance" is
used in the French version of the text, while the
appropriate term from the English version is "Trial")
and Appellate Chambers. Namely, Rule 27 on
Procedure and Evidence reads:
"Rule 27
Rotation
A.Permanent Judges shall rotate on a regular
basis between the Trial Chambers and the
Appeals Chamber. Rotation shall take into
account the efficient disposal of cases.
B.The Judges shall take their places in their
new Chamber as soon as the President
thinks it convenient, having regard to the
disposal of part-heard cases.
C.The President may at any time temporarily
assign a member of a Trial Chamber or of the
Appeals Chamber to another Chamber."
A judge, therefore, may be in a first-instance
Chamber in one case and a member of the Appeals
Chamber in another. Therefore, the decision of every
judge acting as a member of a first-instance
Chamber are subject to control by other judges who
are in that case members of the second-instance
Chamber, whereas in other cases that very same
judge takes part in second- instance proceedings in
the control of the work of these other judges that
now appear as members of second-instance
Chambers. This is how the system of mutual
cross-control functions, impeding clear
two-instance nature in trials and may result in
deviations primarily towards a benevolent attitude
and confirmation of first-instance decisions made by
other judges when acting in second-instance
proceedings, so that they can be expected to
reciprocate this benevolence when their roles are
reversed.
This double position of judges undermines
considerably their independence and impartiality.
This organisation also gives the judge the possibility
to take part in decision-making as a
second-instance judge and at the same time to apply
the stands from such decisions as the court practice
established in second- instance proceedings in
cases that he tries as a judge in first-instance
proceedings.
The paradoxical possibility for the same judge to
decide on the same legal issue in one case within the
framework of a first-instance Chamber and at the
same time in a second case within the framework of
an Appeals Chamber gives this judge a legally
unacceptable benefit of providing to his stand and
first-instance decision simultaneously the legal
force and the confirmation of judicial practice
established at the second-instance level.
The true unacceptability of such a rule that allows
the same judges to participate both in first-instance
and Appeals Chambers is further strongly
accentuated by the fact that the rotation does not
take place under any rules laid down in advance, but
according to the decision of the President, who is
authorised at any moment to temporarily assign a
judge to another Chamber.
(1. continua/follows)
---
Questa lista e' curata da componenti del
Coordinamento N
---- Spot ------------------------------------------------------------
BASTA CODE INTERMINABILI PER I SALDI DI FINE STAGIONE!
Da oggi tutte le migliori offerte direttamente nella
tua casella di posta su moda, accessori, collezioni...
http://www.domeus.it/ad3584290/valuemail.domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
(continua/follows)
1.The rules on detention and the practice when
ordering detention - breach of the right to liberty
Before the Tribunal, detention is a rule and
temporary release an exception (Rule 64
stipulates that "upon being transferred to the seat
of the Tribunal, the accused shall be detained...",
whereas Rule 65, paragraph (A): "once detained,
an accused may not be released except upon an
rder of a Chamber").
This contravenes international law and
particularly the International Covenant on Civil
and Political Rights. In its Article 9, this Covenant
proclaims the right to liberty as one of the basic
human rights. Article 9, paragraph 3, inter alia,
stipulates: "It shall not be the general rule that
persons awaiting trial shall be detained in
custody...".
The judges of the Hague Tribunal are not
duty-bound to elaborate on their arrest warrants
and detention decisions. This contravenes Article
9, paragraph 2 of the International Covenant on
Civil and Political Rights, which reads: "Anyone
who is arrested shall be informed, at the time of
rrest of the reasons for his arrest and shall be
promptly informed of any charges against him".
This situation also contravenes principle 11/2 of
the UN General Assembly resolution 173 (XLIII)
of 8 December 1988, titled "A set of principles for
protecting all persons placed in any form of
custody or detention", according to which: "The
person placed in detention and possibly his
Defence Counsel shall be communicated without
delay and in full the arrest warrant and the
reasons explaining it".
Detention pending trial before The Hague Tribunal
is of an indefinite duration. In practice, detention
pending trial lasts very long and, bearing in mind
the length of the trial itself, this problem becomes
even more pronounced and more unacceptable.
This long detention contravenes the first sentence
of Article 9, paragraph 3 of the International
Covenant on Civil and Political Rights. It reads as
follows: "Anyone arrested or detained on a
riminal charge shall be brought promptly before a
judge or other officer authorised by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release".
Too long a detention pending trial is not consistent
with the court practice of the European Court for
Human Rights that applies the European
Convention on Human Rights and Fundamental
Freedoms where detention is limited to up to two
years (in the FRY law it is up to six months). In
the case of Momir Talic, the two-year period of
detention is just about to expire and the trial has
not even begun.
At The Hague Tribunal, there is no right to
compensation of damage in case of unlawful
detention either. This contravenes Article 9,
aragraph 5 of the International Covenant on Civil
and Political Rights, which reads: "Anyone who
has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation".
2.Legality of sanctions
Article 15 of the International Covenant on Civil
and Political Rights prescribes:
"1. No one shall be held guilty of any criminal
offence on account of any act or omission which
did not constitute a criminal offence, under
national or international law at the time when it
was committed. Nor shall a heavier be imposed
than the one that was applicable at the time when
he criminal offence was committed.
...
2. Nothing in this Article shall prejudice the trial
and punishment of any person for any act or
omission which at the time when it was
ommitted was criminal according to the general
principles of law recognised by the community of
nations."
This is about the rule of criminal and international
law that usually finds expression in the sentence:
"Nulum crimen sine lege, nula poena sine lege",
and also comes under the corps of the universally
ccepted basic human rights.
When it comes to the legality of determining the
criminal offences which are tried before The
Hague Tribunal, this legality cannot be called into
question even when it is about the offences
committed before the Tribunal's Statute was
adopted. For, they were stipulated as such by
different international instruments (Convention on
the Prevention and Punishment of the Crime of
Genocide, the Geneva Conventions on
International Humanitarian Law), as well as by
national Criminal Codes. However, no
international norm envisaged sanctions for
violation of international humanitarian law before
the Tribunal's Statute adopted in May 1993.
Penalties are prescribed for the crimes from this
group stipulated by the Criminal Law of SFR
Yugoslavia and all the states formed in that
space. Namely, for each offence a separate
inimum and maximum penalty may be imposed
within the scope of the general minimum and
maximum penalty applicable in the respective
legal systems.
However, the Tribunal's Statute stipulates
penalties very vaguely. This is inappropriate for
modern criminal law. Article 24 of the Tribunal's
Statute prescribes:
"The first-instance Chamber shall pass only
prison sentences. When determining the terms of
imposing a prison penalty, the first-instance
hamber shall be guided by the general practice of
passing prison sentences applied by the courts in
the former Yugoslavia."
The former Yugoslavia's Criminal Code stipulated
as the heaviest penalty the term of imprisonment
of up to 15 years and exceptionally a 20-year term
but only as a substitute for the death penalty.
However, the Tribunal's Rule of Procedure and
Evidence also contravene even the thus
formulated Article 24 of the Statute. Namely, Rule
101 stipulates the possibility of passing a life
sentence: "The persons found guilty by the
Tribunal may be given a term of imprisonment that
may go up to life sentence". In addition, it is
noteworthy that the Rules of Procedure and
vidence, as a document containing procedural
rules should not even regulate the term of
imprisonment because this is an issue governed
by criminal substantive law.
This evident discrepancy between the Rules and
the Statute as the superior of the two cannot be
denied by the claim that the quoted Article 24 of
the Statute recalls the conditions of serving prison
sentences in the former Yugoslavia. Namely, it is
clear that that provision concerns the duration of
prison sentences in the former SFRY as this was
the only thing that could be determined by the
courts. The same cannot be said of the conditions
of imprisonment that the courts do not deal with.
The French version of the Statute is even more
explicit on the matter. Namely, instead of the
expression "general practice regarding prison
sentences in the courts of the former Yugoslavia",
this version uses the words "la grille generale des
eines d'emprisonnement appliquee par les
Tribunaux de l' ex-Yougoslavie ("General
frameworks for determining prison sentences
applied by the courts in the former Yugoslavia".
The term "grille" denotes the frameworks, i.e. the
ermitted range for determining the length of prison
sentences. This interpretation of ours is also
confirmed by the UN Secretary General's report
f 3 May 1993, which clearly states that: "when
determining the duration of prison sentence, the
first-instance Chamber shall be guided by the
general frameworks for determining prison
sentences applied in the courts of the former
Yugoslavia".
Finally, it should be pointed out that in its practice
so far the Tribunal passed prison sentences
largely exceeding the maximum prison sentence
that could be passed in the formed SFRY.
3.Absence of reasons for exclusion of criminal
responsibility
Neither the Statute nor the Rules envisage any
reason for the exclusion of criminal responsibility.
However, modern criminal law, i.e. the general
principles of criminal and international law,
generally recognise and accept the existence of
reasons for the exclusion of criminal responsibility
(such as necessary self-defence, extreme need,
coercion, etc.).
In its practice, too, the Tribunal does not take into
account the existence of such circumstances. For
example, in the case of Drazen Erdemovic, the
Tribunal refused to treat coercion as a basis for
the exclusion of responsibility but simply as an
extenuating circumstance when deciding how
eavy a penalty to impose. (According to
Erdemovic's claim, which the Tribunal accepted
as justifiable, he had actually been threatened
with death unless he committed the crimes of
murder for which the Tribunal later tried him).
4.Violation of the right to defence by treating
elements relevant for defence as confidential
In its work, the Tribunal has the possibility to issue sealed
indictments (Rule 53 on Procedure and Evidence, titled
"Non-disclosure of Indictment", paragraph (A) stipulates:
"(A) In exceptional circumstances, a Judge or a Trial
Chamber may, in the interests of justice, order the
non-disclosure to the public of any documents or
information until further order."). One cannot challenge
the right of the prosecuting organs to prosecute suspects
without disclosing that they are after them. However, it is
not legally acceptable and sustainable that a given person
is aware that proceedings have been initiated against him
and, in particular, that the indictment has been issued
against him without making it possible for him to learn
why he is being prosecuted and by keeping that fact
confidential. Thus, for instance, in the case against Zeljko
Raznatovic Arkan, the Tribunal announced that Arkan had
been indicted without letting the public or the accused
learn about the contents of the indictment.
We also wish to point out that the quoted provision
(which, as such, is itself inappropriate for modern law)
stipulates the keeping of indictments confidential (even
vis-�-vis the accused), as well as other documents and
information as an exception while, in practice, this is
increasingly becoming a rule.
The prosecutor forwards too late to the Defence Counsel
the data on the identity of the witnesses and the victims,
as well as these witnesses' allegations, i.e. the claims
regarding the victims against the accused, so that the
Defence Counsel does not have enough time to collect
data and evidence to possibly refute all these allegations
and claims. The Tribunal tries to justify this practice by
reasons of security of the witnesses and the alleged
victims. However, an institution that has at its disposal all
the means available to the Tribunal quite certainly will not
find it a problem to simultaneously provide security to
witnesses and alleged victims and give the accused and
his Defence Counsels enough time to prepare the defence.
An extreme scenario based on this approach is the
possibility, permitted under Rule 75 on Procedure and
Evidence, to keep the identity of a witness or a victim a
total secret until the very end and for the witness to be
heard by means of various technical devices (picture or
sound distorting devices or closed-circuit television; by
giving a witness a pseudonym, etc.). These methods make
it impossible to establish a given person's identity. Such
action makes it impossible for the Counsel to prepare the
defence and by its nature opens up the possibility for
manipulation rather than contributing to protecting a given
person. Namely, when a witness is heard on an actual
event that has really taken place, the accused can
conclude based on the actual contents of the witness
hearing which particular person is speaking, so that
keeping identity a secret does not make much sense.
However, it gives exceptional advantage to false
witnesses and victims, who may make statements
without any risk to themselves about something that
never happened. Namely, their identity is kept a secret
and the accused cannot conclude who they are based on
the contents of their statement as they testify about
something that never happened.
The above mentioned methods are used in particular to
violate Article 14 on the International Covenant on Civil
and Political Rights that protects the right of the accused
in the proceedings and whose paragraph 3, inter alia,
stipulates that:
"3. In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum
guarantees, in full equality:
a.to be informed promptly and in detail in a
language which he understands of the
nature and cause of the charge against
him;
b.to have adequate time and facilities for
the preparation of his defence and to
communicate with counsel of his own
choosing;
...."
The above mentioned methods also violate the similar
provisions of Article 21, paragraph 4, items a) and b) of
the Tribunal's Statute.
1.Disproportionate difference between the terms of
work of the Prosecutor's Office and the Defence
The Prosecutor's Office has disproportionately
more favourable terms of work than the terms and
means available to the Defence. Not only is this
unfair but also, inter alia, violates the right to
efence, particularly in the part concerning the
above quoted Article 14, paragraph 3, item b) of
the International Covenant on Civil and Political
ights (as well as Article 21, paragraph 4, item b)
of the Tribunal's Statute).
Namely, the Prosecutor's Office has offices in
several towns in the territory of Yugoslavia, has a
large number of investigators and an unlimited
capacity of access to all cases before the
Tribunal. The Defence Counsels do not have any
of this, i.e. have it but to a much more moderate
xtent. Thus, for instance, in some of the cases
(particularly those against the highest officials of
the Republika Srpska that are on trial - Momcilo
rajisnik and Biljana Plavsic), the problem arose of
actual feasibility for the Defence Counsels to read
all the documents submitted by the Prosecutor's
ffice that have so many pages that the usual group
of several Counsels would need several years of
full-time work to read only once the contents of
the submitted documents.
The costs of litigation before the Tribunal are so
high that no accused can afford to pay them. The
Tribunal pays Defence Counsels ex officio and
the amounts of their fees are exceptionally high,
particularly if viewed from the Yugoslav
perspective and measured by our yardsticks.
owever, in real terms, even these amounts are
inadequate to meet the overall needs for a quality
defence compared to the formidable means and
possibilities available to the Prosecutor's Office.
In addition, by employing this method of paying
the Attorneys, which is a rule rather than an
exception, which would be normal, the Tribunal's
Secretariat keeps the Defence under control and
ndermines its independence.
2.Violation of the principle "audiatur et altera pars"
in some cases
Rule 94 on Procedure and Evidence, paragraph
(A) stipulates that: (A) A Trial Chamber shall not
require proof of facts of common knowledge but
shall take judicial notice thereof". This rule,
otherwise widely accepted in procedural
legislation, becomes problematic before The
Hague Tribunal because allegations made by the
mass media are often considered as generally
ccepted facts related to the Yugoslav crisis and
have, as a result of frequent repetition, acquired
the character of notorious facts. In a situation
hen the judges, as a rule, do not have enough
preliminary knowledge about the overall context of
the events underlying the ongoing proceedings,
which will be discussed later on, the mentioned
procedural possibility poses a big treat to the
accused placing him at a great disadvantage.
Paragraph (B) of the same rule prescribes: "(B)
At the request of a party or proprio motu, a Trial
Chamber, after hearing the parties, may decide to
take judicial notice of adjudicated facts or
ocumentary evidence from other proceedings of
the Tribunal relating to matters at issue in the
current proceedings". Notwithstanding the fact
that it is obliged to previously hear the parties,
meaning to also give the possibility to the accused
to plead, the Trial Chamber may take as proved,
ven if the accused challenges them, the facts
established in the course of some other
proceedings before the Tribunal since the quoted
provision only envisages the obligation to hear the
parties but not the obligation to supply proof again
if the accused (or possibly the Prosecutor) claims
that these facts have not been correctly
established. Although the facts already proved in
another case are at issue here, perhaps the facts
proved in these other proceedings are not
important for the accused to the extent that he
would challenge the Prosecutor's allegations
thereon; namely, they do not significantly affect
the verdict in that case and therefore the accused
may not wish to enter into a debate thereon.
However, in the case where later on these very
same facts are taken as established and proved,
they may be of major importance to the accused
and the accused will not be given the possibility
for presenting new evidence. Given that in
different cases the accused are different and that
the Prosecutor's Office is the same in all of them,
and given that the Prosecutor's Office decides
when it will issue a particular indictment, it has
the possibility to adjust the sequence of
ndictments submitted, so that the same disputable
issue in particular earlier proceedings will appear
as an issue of no particular importance to the
ccused. In some later proceedings, however, the
same issue may be of crucial importance to the
contents of the verdict and the position of the
accused and may make the accused in the
later-on initiated proceedings face a situation
here he will not be able to challenge the
Prosecutor's allegation that will decide his fate.
In the mentioned way, the anyway inequitable
position of the Defence vis-�-vis that Prosecutor
is additionally aggravated and the right of the
accused to effectively challenge the Prosecutor's
allegations and succeed in having evidence
supplied in his favour is seriously undermined.
And this right is also stipulated and protected by
Article 14 of the International Covenant on Civil
and Political Rights (as well as by Article 21 of
the Tribunal's Statute).
(2 - continua/follows)
---
Questa lista e' curata da componenti del
Coordinamento Nazionale per la Jugoslavia (CNJ).
I documenti distribuiti non rispecchiano necessariamente
le posizioni ufficiali o condivise da tutto il CNJ, ma
vengono fatti circolare per il loro contenuto informativo al
solo scopo di segnalazione e commento ("for fair use only").
Archivio:
> http://www.domeus.it/circles/jugoinfo oppure:
> http://groups.yahoo.com/group/crj-mailinglist/messages
Per iscriversi al bollettino: <jugoinfo-subscribe@...>
Per cancellarsi: <jugoinfo-unsubscribe@...>
Per inviare materiali e commenti: <jugocoord@...>
---- Spot ------------------------------------------------------------
Il Tennis e' la tua passione?
Tutte le news sugli ultimi risultati, notizie inedite
e interviste nella Newsletter piu' in palla del momento!!!
Iscriviti a tennisnews-subscribe@...
Tennis.it ti offrira' il meglio del tennis direttamente nella tua casella email
http://www.domeus.it/ad3584350/domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
1.The rules on detention and the practice when
ordering detention - breach of the right to liberty
Before the Tribunal, detention is a rule and
temporary release an exception (Rule 64
stipulates that "upon being transferred to the seat
of the Tribunal, the accused shall be detained...",
whereas Rule 65, paragraph (A): "once detained,
an accused may not be released except upon an
rder of a Chamber").
This contravenes international law and
particularly the International Covenant on Civil
and Political Rights. In its Article 9, this Covenant
proclaims the right to liberty as one of the basic
human rights. Article 9, paragraph 3, inter alia,
stipulates: "It shall not be the general rule that
persons awaiting trial shall be detained in
custody...".
The judges of the Hague Tribunal are not
duty-bound to elaborate on their arrest warrants
and detention decisions. This contravenes Article
9, paragraph 2 of the International Covenant on
Civil and Political Rights, which reads: "Anyone
who is arrested shall be informed, at the time of
rrest of the reasons for his arrest and shall be
promptly informed of any charges against him".
This situation also contravenes principle 11/2 of
the UN General Assembly resolution 173 (XLIII)
of 8 December 1988, titled "A set of principles for
protecting all persons placed in any form of
custody or detention", according to which: "The
person placed in detention and possibly his
Defence Counsel shall be communicated without
delay and in full the arrest warrant and the
reasons explaining it".
Detention pending trial before The Hague Tribunal
is of an indefinite duration. In practice, detention
pending trial lasts very long and, bearing in mind
the length of the trial itself, this problem becomes
even more pronounced and more unacceptable.
This long detention contravenes the first sentence
of Article 9, paragraph 3 of the International
Covenant on Civil and Political Rights. It reads as
follows: "Anyone arrested or detained on a
riminal charge shall be brought promptly before a
judge or other officer authorised by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release".
Too long a detention pending trial is not consistent
with the court practice of the European Court for
Human Rights that applies the European
Convention on Human Rights and Fundamental
Freedoms where detention is limited to up to two
years (in the FRY law it is up to six months). In
the case of Momir Talic, the two-year period of
detention is just about to expire and the trial has
not even begun.
At The Hague Tribunal, there is no right to
compensation of damage in case of unlawful
detention either. This contravenes Article 9,
aragraph 5 of the International Covenant on Civil
and Political Rights, which reads: "Anyone who
has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation".
2.Legality of sanctions
Article 15 of the International Covenant on Civil
and Political Rights prescribes:
"1. No one shall be held guilty of any criminal
offence on account of any act or omission which
did not constitute a criminal offence, under
national or international law at the time when it
was committed. Nor shall a heavier be imposed
than the one that was applicable at the time when
he criminal offence was committed.
...
2. Nothing in this Article shall prejudice the trial
and punishment of any person for any act or
omission which at the time when it was
ommitted was criminal according to the general
principles of law recognised by the community of
nations."
This is about the rule of criminal and international
law that usually finds expression in the sentence:
"Nulum crimen sine lege, nula poena sine lege",
and also comes under the corps of the universally
ccepted basic human rights.
When it comes to the legality of determining the
criminal offences which are tried before The
Hague Tribunal, this legality cannot be called into
question even when it is about the offences
committed before the Tribunal's Statute was
adopted. For, they were stipulated as such by
different international instruments (Convention on
the Prevention and Punishment of the Crime of
Genocide, the Geneva Conventions on
International Humanitarian Law), as well as by
national Criminal Codes. However, no
international norm envisaged sanctions for
violation of international humanitarian law before
the Tribunal's Statute adopted in May 1993.
Penalties are prescribed for the crimes from this
group stipulated by the Criminal Law of SFR
Yugoslavia and all the states formed in that
space. Namely, for each offence a separate
inimum and maximum penalty may be imposed
within the scope of the general minimum and
maximum penalty applicable in the respective
legal systems.
However, the Tribunal's Statute stipulates
penalties very vaguely. This is inappropriate for
modern criminal law. Article 24 of the Tribunal's
Statute prescribes:
"The first-instance Chamber shall pass only
prison sentences. When determining the terms of
imposing a prison penalty, the first-instance
hamber shall be guided by the general practice of
passing prison sentences applied by the courts in
the former Yugoslavia."
The former Yugoslavia's Criminal Code stipulated
as the heaviest penalty the term of imprisonment
of up to 15 years and exceptionally a 20-year term
but only as a substitute for the death penalty.
However, the Tribunal's Rule of Procedure and
Evidence also contravene even the thus
formulated Article 24 of the Statute. Namely, Rule
101 stipulates the possibility of passing a life
sentence: "The persons found guilty by the
Tribunal may be given a term of imprisonment that
may go up to life sentence". In addition, it is
noteworthy that the Rules of Procedure and
vidence, as a document containing procedural
rules should not even regulate the term of
imprisonment because this is an issue governed
by criminal substantive law.
This evident discrepancy between the Rules and
the Statute as the superior of the two cannot be
denied by the claim that the quoted Article 24 of
the Statute recalls the conditions of serving prison
sentences in the former Yugoslavia. Namely, it is
clear that that provision concerns the duration of
prison sentences in the former SFRY as this was
the only thing that could be determined by the
courts. The same cannot be said of the conditions
of imprisonment that the courts do not deal with.
The French version of the Statute is even more
explicit on the matter. Namely, instead of the
expression "general practice regarding prison
sentences in the courts of the former Yugoslavia",
this version uses the words "la grille generale des
eines d'emprisonnement appliquee par les
Tribunaux de l' ex-Yougoslavie ("General
frameworks for determining prison sentences
applied by the courts in the former Yugoslavia".
The term "grille" denotes the frameworks, i.e. the
ermitted range for determining the length of prison
sentences. This interpretation of ours is also
confirmed by the UN Secretary General's report
f 3 May 1993, which clearly states that: "when
determining the duration of prison sentence, the
first-instance Chamber shall be guided by the
general frameworks for determining prison
sentences applied in the courts of the former
Yugoslavia".
Finally, it should be pointed out that in its practice
so far the Tribunal passed prison sentences
largely exceeding the maximum prison sentence
that could be passed in the formed SFRY.
3.Absence of reasons for exclusion of criminal
responsibility
Neither the Statute nor the Rules envisage any
reason for the exclusion of criminal responsibility.
However, modern criminal law, i.e. the general
principles of criminal and international law,
generally recognise and accept the existence of
reasons for the exclusion of criminal responsibility
(such as necessary self-defence, extreme need,
coercion, etc.).
In its practice, too, the Tribunal does not take into
account the existence of such circumstances. For
example, in the case of Drazen Erdemovic, the
Tribunal refused to treat coercion as a basis for
the exclusion of responsibility but simply as an
extenuating circumstance when deciding how
eavy a penalty to impose. (According to
Erdemovic's claim, which the Tribunal accepted
as justifiable, he had actually been threatened
with death unless he committed the crimes of
murder for which the Tribunal later tried him).
4.Violation of the right to defence by treating
elements relevant for defence as confidential
In its work, the Tribunal has the possibility to issue sealed
indictments (Rule 53 on Procedure and Evidence, titled
"Non-disclosure of Indictment", paragraph (A) stipulates:
"(A) In exceptional circumstances, a Judge or a Trial
Chamber may, in the interests of justice, order the
non-disclosure to the public of any documents or
information until further order."). One cannot challenge
the right of the prosecuting organs to prosecute suspects
without disclosing that they are after them. However, it is
not legally acceptable and sustainable that a given person
is aware that proceedings have been initiated against him
and, in particular, that the indictment has been issued
against him without making it possible for him to learn
why he is being prosecuted and by keeping that fact
confidential. Thus, for instance, in the case against Zeljko
Raznatovic Arkan, the Tribunal announced that Arkan had
been indicted without letting the public or the accused
learn about the contents of the indictment.
We also wish to point out that the quoted provision
(which, as such, is itself inappropriate for modern law)
stipulates the keeping of indictments confidential (even
vis-�-vis the accused), as well as other documents and
information as an exception while, in practice, this is
increasingly becoming a rule.
The prosecutor forwards too late to the Defence Counsel
the data on the identity of the witnesses and the victims,
as well as these witnesses' allegations, i.e. the claims
regarding the victims against the accused, so that the
Defence Counsel does not have enough time to collect
data and evidence to possibly refute all these allegations
and claims. The Tribunal tries to justify this practice by
reasons of security of the witnesses and the alleged
victims. However, an institution that has at its disposal all
the means available to the Tribunal quite certainly will not
find it a problem to simultaneously provide security to
witnesses and alleged victims and give the accused and
his Defence Counsels enough time to prepare the defence.
An extreme scenario based on this approach is the
possibility, permitted under Rule 75 on Procedure and
Evidence, to keep the identity of a witness or a victim a
total secret until the very end and for the witness to be
heard by means of various technical devices (picture or
sound distorting devices or closed-circuit television; by
giving a witness a pseudonym, etc.). These methods make
it impossible to establish a given person's identity. Such
action makes it impossible for the Counsel to prepare the
defence and by its nature opens up the possibility for
manipulation rather than contributing to protecting a given
person. Namely, when a witness is heard on an actual
event that has really taken place, the accused can
conclude based on the actual contents of the witness
hearing which particular person is speaking, so that
keeping identity a secret does not make much sense.
However, it gives exceptional advantage to false
witnesses and victims, who may make statements
without any risk to themselves about something that
never happened. Namely, their identity is kept a secret
and the accused cannot conclude who they are based on
the contents of their statement as they testify about
something that never happened.
The above mentioned methods are used in particular to
violate Article 14 on the International Covenant on Civil
and Political Rights that protects the right of the accused
in the proceedings and whose paragraph 3, inter alia,
stipulates that:
"3. In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum
guarantees, in full equality:
a.to be informed promptly and in detail in a
language which he understands of the
nature and cause of the charge against
him;
b.to have adequate time and facilities for
the preparation of his defence and to
communicate with counsel of his own
choosing;
...."
The above mentioned methods also violate the similar
provisions of Article 21, paragraph 4, items a) and b) of
the Tribunal's Statute.
1.Disproportionate difference between the terms of
work of the Prosecutor's Office and the Defence
The Prosecutor's Office has disproportionately
more favourable terms of work than the terms and
means available to the Defence. Not only is this
unfair but also, inter alia, violates the right to
efence, particularly in the part concerning the
above quoted Article 14, paragraph 3, item b) of
the International Covenant on Civil and Political
ights (as well as Article 21, paragraph 4, item b)
of the Tribunal's Statute).
Namely, the Prosecutor's Office has offices in
several towns in the territory of Yugoslavia, has a
large number of investigators and an unlimited
capacity of access to all cases before the
Tribunal. The Defence Counsels do not have any
of this, i.e. have it but to a much more moderate
xtent. Thus, for instance, in some of the cases
(particularly those against the highest officials of
the Republika Srpska that are on trial - Momcilo
rajisnik and Biljana Plavsic), the problem arose of
actual feasibility for the Defence Counsels to read
all the documents submitted by the Prosecutor's
ffice that have so many pages that the usual group
of several Counsels would need several years of
full-time work to read only once the contents of
the submitted documents.
The costs of litigation before the Tribunal are so
high that no accused can afford to pay them. The
Tribunal pays Defence Counsels ex officio and
the amounts of their fees are exceptionally high,
particularly if viewed from the Yugoslav
perspective and measured by our yardsticks.
owever, in real terms, even these amounts are
inadequate to meet the overall needs for a quality
defence compared to the formidable means and
possibilities available to the Prosecutor's Office.
In addition, by employing this method of paying
the Attorneys, which is a rule rather than an
exception, which would be normal, the Tribunal's
Secretariat keeps the Defence under control and
ndermines its independence.
2.Violation of the principle "audiatur et altera pars"
in some cases
Rule 94 on Procedure and Evidence, paragraph
(A) stipulates that: (A) A Trial Chamber shall not
require proof of facts of common knowledge but
shall take judicial notice thereof". This rule,
otherwise widely accepted in procedural
legislation, becomes problematic before The
Hague Tribunal because allegations made by the
mass media are often considered as generally
ccepted facts related to the Yugoslav crisis and
have, as a result of frequent repetition, acquired
the character of notorious facts. In a situation
hen the judges, as a rule, do not have enough
preliminary knowledge about the overall context of
the events underlying the ongoing proceedings,
which will be discussed later on, the mentioned
procedural possibility poses a big treat to the
accused placing him at a great disadvantage.
Paragraph (B) of the same rule prescribes: "(B)
At the request of a party or proprio motu, a Trial
Chamber, after hearing the parties, may decide to
take judicial notice of adjudicated facts or
ocumentary evidence from other proceedings of
the Tribunal relating to matters at issue in the
current proceedings". Notwithstanding the fact
that it is obliged to previously hear the parties,
meaning to also give the possibility to the accused
to plead, the Trial Chamber may take as proved,
ven if the accused challenges them, the facts
established in the course of some other
proceedings before the Tribunal since the quoted
provision only envisages the obligation to hear the
parties but not the obligation to supply proof again
if the accused (or possibly the Prosecutor) claims
that these facts have not been correctly
established. Although the facts already proved in
another case are at issue here, perhaps the facts
proved in these other proceedings are not
important for the accused to the extent that he
would challenge the Prosecutor's allegations
thereon; namely, they do not significantly affect
the verdict in that case and therefore the accused
may not wish to enter into a debate thereon.
However, in the case where later on these very
same facts are taken as established and proved,
they may be of major importance to the accused
and the accused will not be given the possibility
for presenting new evidence. Given that in
different cases the accused are different and that
the Prosecutor's Office is the same in all of them,
and given that the Prosecutor's Office decides
when it will issue a particular indictment, it has
the possibility to adjust the sequence of
ndictments submitted, so that the same disputable
issue in particular earlier proceedings will appear
as an issue of no particular importance to the
ccused. In some later proceedings, however, the
same issue may be of crucial importance to the
contents of the verdict and the position of the
accused and may make the accused in the
later-on initiated proceedings face a situation
here he will not be able to challenge the
Prosecutor's allegation that will decide his fate.
In the mentioned way, the anyway inequitable
position of the Defence vis-�-vis that Prosecutor
is additionally aggravated and the right of the
accused to effectively challenge the Prosecutor's
allegations and succeed in having evidence
supplied in his favour is seriously undermined.
And this right is also stipulated and protected by
Article 14 of the International Covenant on Civil
and Political Rights (as well as by Article 21 of
the Tribunal's Statute).
(2 - continua/follows)
---
Questa lista e' curata da componenti del
Coordinamento Nazionale per la Jugoslavia (CNJ).
I documenti distribuiti non rispecchiano necessariamente
le posizioni ufficiali o condivise da tutto il CNJ, ma
vengono fatti circolare per il loro contenuto informativo al
solo scopo di segnalazione e commento ("for fair use only").
Archivio:
> http://www.domeus.it/circles/jugoinfo oppure:
> http://groups.yahoo.com/group/crj-mailinglist/messages
Per iscriversi al bollettino: <jugoinfo-subscribe@...>
Per cancellarsi: <jugoinfo-unsubscribe@...>
Per inviare materiali e commenti: <jugocoord@...>
---- Spot ------------------------------------------------------------
Il Tennis e' la tua passione?
Tutte le news sugli ultimi risultati, notizie inedite
e interviste nella Newsletter piu' in palla del momento!!!
Iscriviti a tennisnews-subscribe@...
Tennis.it ti offrira' il meglio del tennis direttamente nella tua casella email
http://www.domeus.it/ad3584350/domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
(continua/follows)
3. Inadequate qualification of the Tribunal's judges
to try people due to lack of knowledge of the
historic, political and civilisation context in which
the events of relevance to the trial took place
In the Tribunal's work so far, the ignorance is in
evidence among judges and the officials of the
Prosecutor's Office (Chief Prosecutor, Deputy
Prosecutor and other personnel in the
Prosecutor's Office) of the social and historic
milieux in which the events under trial took place
and in which the protagonists of those events,
including the accused, lived and came from. These
officials have come from different parts of the
world and, as a rule, do not even speak the
languages spoken in the former SFRY. Their
nowledge of the history, political situation,
customs, habits, and other civilisation features of
the region, is more than inadequate and often
based almost exclusively on the knowledge gained
through the media. To illustrate this by an
example, at the trial of the Celebici case, when
one of the judges asked who the Ustashi
mentioned in the proceedings were, the
Prosecutor did not know how to answer.
This situation leads to the judges, whose
half-knowledge and ignorance are otherwise
based on information gained through the media,
falling prey in the course of proceedings to further
manipulations and accepting claims also based on
media and other propaganda campaigns. All this
leads to the accumulation of untruths and
half-truths that are increasingly difficult to
challenge. Even the Prosecutor's Office's stands
are sometimes drastically unfavourable for the
accused not out of malice but due to inadequate
knowledge or a distorted perception of particular
issues that people at the Prosecutor's Office
have.
Having in mind the perception of the Yugoslav
crisis world-wide, its causes, historical
background and development, this state of affairs
clearly produces negative effects primarily and to
the largest extent against the accused on the Serb
side.
4.Disrespect of the assumption of innocence/
establishment of the assumption of guilt
We have seen that The Hague Tribunal has been
defined as the organ for "the prosecution of
persons responsible" (i.e. according to the French
version "persons presumed responsible") and that
its set-up, where the institutional inseparability of
the court Chambers and the Prosecutor's Office
rejudices the the necessary impartiality of trials
required by modern law, and particularly respect
for the presumption of innocence stipulated in
rticle 14, paragraph 2, of the International
Covenant on Civil and Political Rights, which
reads: "Everyone charged with a criminal offence
shall have the right to be presumed innocent until
proved guilty according to law." (the presumption
of innocence is even stipulated in Article 21,
paragraph 3, of the Tribunal's Statute, although
the Tribunal has been defined, set up and is
unctioning in contravention of that presumption).
Disrespect for the presumption of innocence/
establishment of the presumption of guilt has in
practice been particularly pronounced through the
presentation of the indictments of the general
context in which the events on trial took place and
particularly in the indictments against
high-ranking military or political leaders. These
presentations of the general context often make
up quite a large part of the total text of the
indictments. Through this general context, a
political situation is described where whole
peoples are charged with particular behaviours,
with the "political guilt" of the Serb people coming
to full expression (hegemonic aspirations, terror
against minorities, ethnic cleansing, aspirations
towards creating a Greater Serbia, etc). This, by
the way, contravenes the principle of individual
responsibility that has been generally accepted in
modern criminal law. It also contravenes the
raison d'etre of any criminal court, including The
Hague Tribunal, that was, as is often mentioned in
the debates in its favour, established precisely in
order to remove collective responsibility from a
people for the crimes committed by individuals.
Based on the established claims within a general
context, individual responsibility is then derived.
Namely, the thus established general context
further allows the Prosecutor - at least according
o his own view of things and as can be
unequivocally concluded from his behaviour - to
provide very scant information on what
specifically the defendants did, when, where and
against whom they committed the crimes they are
charged with, etc. As a result, the accused face a
situation where they have to defend themselves
both against the general context allegations and
gainst inaccurate concrete allegations, in fact to
defend themselves against whatever one can
conclude based on such indictments that the
Prosecutor has charged them with.
The broadly defined and perceived concept of
so-called "command responsibility" also
contributes to undermining the assumption of
nnocence and the request for individual and
subjective responsibility. Here, the relationship
between the accused and the event for which he
is on trial can be so distant and indirect that
neither according to his formal powers nor
ccording to his real influence he could have
contributed to either the direct commission of the
given crime or could have prevented it in any way,
nor could he even have learned about it. A typical
example is the case of Momcilo Krajisnik who, as
President of the Assembly of Republika Srpska,
could not have either formally or factually
influenced the events and crimes that he is
lamed for.
In a situation when an individual's responsibility
is largely based on a broad political and even
historic context and in a situation when neither
the judges nor the employees of the Prosecutor's
Office have any sufficient knowledge about that
context, as already mentioned, it is hardly
ossible to establish facts correctly and apply law
in an appropriate manner. There are even certain
absurd situations, as in the Tadic case, for
instance, when the Prosecutor arguing in favour of
the claim on the continued tendency among Serbs
towards the "ethnic cleansing" of other peoples
also proposed a study of a certain "expert
witness" whose identity had been kept
confidential (expert witness P) and proved the
mentioned tendency by referring to a paper by
historian Vasa Cubrilovic presented on 7 March
1937 to the Serbian Cultural Club. Cubrilovic was
in favour of Yugoslavia concluding a treaty on the
xchange of population with Turkey and possibly
with Albania, just as already done by other Balkan
countries following the Balkan wars, and the
practice commonplace at the time, which only we
had not resorted to. Cubrilovic presented the
mentioned proposal in a private capacity, as a
scholar, and, as is well known, this proposal was
never accepted by the authorities.
In determining the above mentioned general
olitical-historical-legal context, it is noteworthy
that there is a discrepancy between the claims
made by the Prosecutor's Office and the contents
of the decisions made by the Tribunal and
presentations by some of the judges, who are
incidentally eminent legal experts, in their
research papers. Thus there is in the indictments
the claim that the former Yugoslav republics
decided to `leave' Serb-dominated Yugoslavia.
This is regarded as acceptable whereas the
political reactions of the Serbian people are
treated as criminal acts (the establishment of the
municipal communities permitted under the
Constitution, or of the representative bodies
through which they could articulate their interests,
etc.). That Serbian people does not wish to be
dominated by other nations in the separated
republics and wishes either to preserve the SFRY
or to remain even in the truncated Yugoslav state
or even to have its own canton in the seceded
republic. At the same time, one of the most
minent judges of the Tribunal and its former
President Professor Antonio Cassese in his book
Self-Determination of Peoples, A Legal
Re-Appraisal (Cambridge, Cambridge University
Press, 1995) noted that secession (external
elf-determination) by the former Yugoslav
republics contravened both international law and
the Yugoslav constitutional system. This drastic
ifference in the assessment of events is of crucial
importance when determining the above
mentioned context because in the given example
the reactions of the Serb people represented the
defence of their own rights against the
unconstitutional secession that was contrary to
international law. The claims by the Prosecutor
and the statements by the Tribunal were contrary
o certain generally known facts - thus it is
generally known world wide that in Yugoslavia
which according to claims was dominated by the
Serbs from 1945 to 1980 virtually absolute power
was wielded by Josip Broz Tito who was
alf-Croat and half-Slovene as well as that after
that there was a practically con-federal system in
place that did not allow the predominance of any
of the republics (those better versed and the
Prosecutor's Office and the Tribunal should be
among them, know that the percentage of Serbs in
the SFRY was lower than the percentage of
Muslims in Bosnia-Herzegovina, that in the
period from the Second World War up to the
outbreak of the war in the early 1990s only one
erb served as Federal Prime Minister, notably
Petar Stambolic in the 1960s, that in the JNA the
command over the most important sectors like air
force, air defences, the Navy, etc. was almost as
a rule given to Croats and Slovenes and that the
percentage of Serbs in the JNA command staff
was lower than the percentage of the Serbs in the
total population, etc.).
5.Violations of human rights protected by
International Law during the arrest and the
transfer of the accused to the Tribunal
The Rule 58 of Procedure and Evidence of the
Tribunal stipulates: "The obligations laid down in
Article 29 of the Statute shall prevail over any
legal impediment to the surrender or transfer of
the accused or of a witness to the Tribunal which
may exist under the national law or extradition
treaties of the State concerned."
We shall not at the moment tackle in detail the
question whether an act of a hierarchically inferior
legal power, which is supposed to deal only with
the procedure and evidence before the Tribunal
(since the legislative competence conferred to the
judges by the Statute of the Tribunal is limited to
those questions only), can determine the relations
between a superior act and some other acts of a
different nature. But we could observe that the
above quoted article does not include the
obligation of respect of the human rights
guaranteed by the International law during the
arrest and the transfer of the accused to the
Tribunal (this obligation cannot in any way be
erogated since those rights belong to the jus
cogens).
In many cases the accused were arrested, either
by the state authorities or by some informal
groups, outside the procedures prescribed by
ational laws and they were transferred to the
Tribunal also without applications of such
procedures. Those accused were also deprived of
the right to the protection by a court. This was the
case for example with Mr. Milomir Stakic, Mr.
Momir Talic, Mr. Dragan Nikolic, Mr. Slobodan
Milosevic, Mr. Steve Todorovic, Mr. Momcilo
Krajisnik, the twins Mr. Miroslav and Milan
Vuckovic etc.
The above mentioned conducts are contrary in the
first place to the provisions of the Article 9
paragraphs 1 and 4 of the International Covenant
on Civil and Political Rights which reads as
follows:
"Article 9
1. Everyone has the right to the liberty and the
security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and
in accordance with such procedure as are
established by law.
. . .
4. Anyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings
before a court, in order that that court may decide
without delay on the lawfulness of his detention
and order his release if the detention is not
lawful."
The above mentioned conducts are also in
contravention of similar provisions of other
international documents as well as of general
rinciples of criminal procedure as recognized by
civilized nations.
Since the persons in question were arrested and
transferred to the Tribunal in an unlawful way,
they are entitled to a restitutio in integrum.
6.Breach of the provisions of the Tribunal's Statute
and the Rules of Procedure and Evidence in
atypical conditions of trying Slobodan Milosevic
Finally, in the case against Slobodan Milosevic that is
taking place in an atypical manner, as a result of his
refusal to recognise the Tribunal, when the accused
appeared before the Tribunal for the first time, the
indictment should have been read out to him in accordance
with Article 20 of the Statute and Rule 62 of Procedure
and Evidence. This was not done because the Tribunal
interpreted the accused 's reply to the question of
whether he wished to be read out the indictment that was:
"That is your problem" as the accused 's refusal to have it
read out to him. The Tribunal was under the obligation to
read out the indictment nevertheless in accordance with
the mentioned Articles and the defendant's reply, which
was neither negative nor positive but boiled down to a
refusal to give a reply, should by no means have been
interpreted as negative and, contrary to the defendant's
interest, make the Tribunal decide not to read it out
because this was a question relating to the defendant's
procedural right where the interpretations must always go
in the direction which favours the accused more.
Given the mentioned omission it can be considered that
the proceedings against Slobodan Milosevic was not
initiated in a legally proper manner.
* * *
Bearing in mind all of the above examples and our wish to
contribute to all the trials before the Tribunal taking place
in accordance with international law and that human rights
and fundamental freedoms of the accused be respected
and that the perpetrators of violations of international
humanitarian law are tried and judged in a legally proper
manner based on facts, we propose that the relevant Trial
Chambers should approve to us, the members of the
following group, to appear, each of us as a representative
of the whole group, before them and present the stands on
issues regarding respect for international law in the given
proceedings:
Professor Kosta Cavoski,L.L.D.
Professor Zagorka Jekic,L.L.D.
Professor Ljubisa Lazarevic
Professor Ratko Markovic,L.L.D.
Professor Zoran Stojanovic,L.L.D.
Professor Djordje Lazin,L.L.D.
Professor Mirjana Stefanovski,L.L.D.
Assistant Professor Aleksandar Jaksic,L.L.D.
Assistant Professor Milan Skulic,L.L.D.
Assistant Professor Branko M.Rakic,L.L.D.
Assistant Professor Sasa Bovan,L.L.D.
Assistant Aleksandar Gajic
Assistant Bojan Milisavljevic
(fine/end)
---
To join or help this struggle, visit:
http://www.sps.org.yu/ (official SPS website)
http://www.belgrade-forum.org/ (forum for the world of equals)
http://www.icdsm.org/ (the international committee to defend
Slobodan Milosevic)
---
Questa lista e' curata da componenti del
Coordinamento Nazionale per la Jugoslavia (CNJ).
I documenti distribuiti non rispecchiano necessariamente
le posizioni ufficiali o condivise da tutto il CNJ, ma
vengono fatti circolare per il loro contenuto informativo al
solo scopo di segnalazione e commento ("for fair use only").
Archivio:
> http://www.domeus.it/circles/jugoinfo oppure:
> http://groups.yahoo.com/group/crj-mailinglist/messages
Per iscriversi al bollettino: <jugoinfo-subscribe@...>
Per cancellarsi: <jugoinfo-unsubscribe@...>
Per inviare materiali e commenti: <jugocoord@...>
---- Spot ------------------------------------------------------------
SEI UN APPASSIONATO DI PC, SOFTWARE E PERIFERICHE?
Da oggi tutte le migliori offerte
direttamente nella tua casella di posta eMail
http://www.domeus.it/ad3584440/valuemail.domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
3. Inadequate qualification of the Tribunal's judges
to try people due to lack of knowledge of the
historic, political and civilisation context in which
the events of relevance to the trial took place
In the Tribunal's work so far, the ignorance is in
evidence among judges and the officials of the
Prosecutor's Office (Chief Prosecutor, Deputy
Prosecutor and other personnel in the
Prosecutor's Office) of the social and historic
milieux in which the events under trial took place
and in which the protagonists of those events,
including the accused, lived and came from. These
officials have come from different parts of the
world and, as a rule, do not even speak the
languages spoken in the former SFRY. Their
nowledge of the history, political situation,
customs, habits, and other civilisation features of
the region, is more than inadequate and often
based almost exclusively on the knowledge gained
through the media. To illustrate this by an
example, at the trial of the Celebici case, when
one of the judges asked who the Ustashi
mentioned in the proceedings were, the
Prosecutor did not know how to answer.
This situation leads to the judges, whose
half-knowledge and ignorance are otherwise
based on information gained through the media,
falling prey in the course of proceedings to further
manipulations and accepting claims also based on
media and other propaganda campaigns. All this
leads to the accumulation of untruths and
half-truths that are increasingly difficult to
challenge. Even the Prosecutor's Office's stands
are sometimes drastically unfavourable for the
accused not out of malice but due to inadequate
knowledge or a distorted perception of particular
issues that people at the Prosecutor's Office
have.
Having in mind the perception of the Yugoslav
crisis world-wide, its causes, historical
background and development, this state of affairs
clearly produces negative effects primarily and to
the largest extent against the accused on the Serb
side.
4.Disrespect of the assumption of innocence/
establishment of the assumption of guilt
We have seen that The Hague Tribunal has been
defined as the organ for "the prosecution of
persons responsible" (i.e. according to the French
version "persons presumed responsible") and that
its set-up, where the institutional inseparability of
the court Chambers and the Prosecutor's Office
rejudices the the necessary impartiality of trials
required by modern law, and particularly respect
for the presumption of innocence stipulated in
rticle 14, paragraph 2, of the International
Covenant on Civil and Political Rights, which
reads: "Everyone charged with a criminal offence
shall have the right to be presumed innocent until
proved guilty according to law." (the presumption
of innocence is even stipulated in Article 21,
paragraph 3, of the Tribunal's Statute, although
the Tribunal has been defined, set up and is
unctioning in contravention of that presumption).
Disrespect for the presumption of innocence/
establishment of the presumption of guilt has in
practice been particularly pronounced through the
presentation of the indictments of the general
context in which the events on trial took place and
particularly in the indictments against
high-ranking military or political leaders. These
presentations of the general context often make
up quite a large part of the total text of the
indictments. Through this general context, a
political situation is described where whole
peoples are charged with particular behaviours,
with the "political guilt" of the Serb people coming
to full expression (hegemonic aspirations, terror
against minorities, ethnic cleansing, aspirations
towards creating a Greater Serbia, etc). This, by
the way, contravenes the principle of individual
responsibility that has been generally accepted in
modern criminal law. It also contravenes the
raison d'etre of any criminal court, including The
Hague Tribunal, that was, as is often mentioned in
the debates in its favour, established precisely in
order to remove collective responsibility from a
people for the crimes committed by individuals.
Based on the established claims within a general
context, individual responsibility is then derived.
Namely, the thus established general context
further allows the Prosecutor - at least according
o his own view of things and as can be
unequivocally concluded from his behaviour - to
provide very scant information on what
specifically the defendants did, when, where and
against whom they committed the crimes they are
charged with, etc. As a result, the accused face a
situation where they have to defend themselves
both against the general context allegations and
gainst inaccurate concrete allegations, in fact to
defend themselves against whatever one can
conclude based on such indictments that the
Prosecutor has charged them with.
The broadly defined and perceived concept of
so-called "command responsibility" also
contributes to undermining the assumption of
nnocence and the request for individual and
subjective responsibility. Here, the relationship
between the accused and the event for which he
is on trial can be so distant and indirect that
neither according to his formal powers nor
ccording to his real influence he could have
contributed to either the direct commission of the
given crime or could have prevented it in any way,
nor could he even have learned about it. A typical
example is the case of Momcilo Krajisnik who, as
President of the Assembly of Republika Srpska,
could not have either formally or factually
influenced the events and crimes that he is
lamed for.
In a situation when an individual's responsibility
is largely based on a broad political and even
historic context and in a situation when neither
the judges nor the employees of the Prosecutor's
Office have any sufficient knowledge about that
context, as already mentioned, it is hardly
ossible to establish facts correctly and apply law
in an appropriate manner. There are even certain
absurd situations, as in the Tadic case, for
instance, when the Prosecutor arguing in favour of
the claim on the continued tendency among Serbs
towards the "ethnic cleansing" of other peoples
also proposed a study of a certain "expert
witness" whose identity had been kept
confidential (expert witness P) and proved the
mentioned tendency by referring to a paper by
historian Vasa Cubrilovic presented on 7 March
1937 to the Serbian Cultural Club. Cubrilovic was
in favour of Yugoslavia concluding a treaty on the
xchange of population with Turkey and possibly
with Albania, just as already done by other Balkan
countries following the Balkan wars, and the
practice commonplace at the time, which only we
had not resorted to. Cubrilovic presented the
mentioned proposal in a private capacity, as a
scholar, and, as is well known, this proposal was
never accepted by the authorities.
In determining the above mentioned general
olitical-historical-legal context, it is noteworthy
that there is a discrepancy between the claims
made by the Prosecutor's Office and the contents
of the decisions made by the Tribunal and
presentations by some of the judges, who are
incidentally eminent legal experts, in their
research papers. Thus there is in the indictments
the claim that the former Yugoslav republics
decided to `leave' Serb-dominated Yugoslavia.
This is regarded as acceptable whereas the
political reactions of the Serbian people are
treated as criminal acts (the establishment of the
municipal communities permitted under the
Constitution, or of the representative bodies
through which they could articulate their interests,
etc.). That Serbian people does not wish to be
dominated by other nations in the separated
republics and wishes either to preserve the SFRY
or to remain even in the truncated Yugoslav state
or even to have its own canton in the seceded
republic. At the same time, one of the most
minent judges of the Tribunal and its former
President Professor Antonio Cassese in his book
Self-Determination of Peoples, A Legal
Re-Appraisal (Cambridge, Cambridge University
Press, 1995) noted that secession (external
elf-determination) by the former Yugoslav
republics contravened both international law and
the Yugoslav constitutional system. This drastic
ifference in the assessment of events is of crucial
importance when determining the above
mentioned context because in the given example
the reactions of the Serb people represented the
defence of their own rights against the
unconstitutional secession that was contrary to
international law. The claims by the Prosecutor
and the statements by the Tribunal were contrary
o certain generally known facts - thus it is
generally known world wide that in Yugoslavia
which according to claims was dominated by the
Serbs from 1945 to 1980 virtually absolute power
was wielded by Josip Broz Tito who was
alf-Croat and half-Slovene as well as that after
that there was a practically con-federal system in
place that did not allow the predominance of any
of the republics (those better versed and the
Prosecutor's Office and the Tribunal should be
among them, know that the percentage of Serbs in
the SFRY was lower than the percentage of
Muslims in Bosnia-Herzegovina, that in the
period from the Second World War up to the
outbreak of the war in the early 1990s only one
erb served as Federal Prime Minister, notably
Petar Stambolic in the 1960s, that in the JNA the
command over the most important sectors like air
force, air defences, the Navy, etc. was almost as
a rule given to Croats and Slovenes and that the
percentage of Serbs in the JNA command staff
was lower than the percentage of the Serbs in the
total population, etc.).
5.Violations of human rights protected by
International Law during the arrest and the
transfer of the accused to the Tribunal
The Rule 58 of Procedure and Evidence of the
Tribunal stipulates: "The obligations laid down in
Article 29 of the Statute shall prevail over any
legal impediment to the surrender or transfer of
the accused or of a witness to the Tribunal which
may exist under the national law or extradition
treaties of the State concerned."
We shall not at the moment tackle in detail the
question whether an act of a hierarchically inferior
legal power, which is supposed to deal only with
the procedure and evidence before the Tribunal
(since the legislative competence conferred to the
judges by the Statute of the Tribunal is limited to
those questions only), can determine the relations
between a superior act and some other acts of a
different nature. But we could observe that the
above quoted article does not include the
obligation of respect of the human rights
guaranteed by the International law during the
arrest and the transfer of the accused to the
Tribunal (this obligation cannot in any way be
erogated since those rights belong to the jus
cogens).
In many cases the accused were arrested, either
by the state authorities or by some informal
groups, outside the procedures prescribed by
ational laws and they were transferred to the
Tribunal also without applications of such
procedures. Those accused were also deprived of
the right to the protection by a court. This was the
case for example with Mr. Milomir Stakic, Mr.
Momir Talic, Mr. Dragan Nikolic, Mr. Slobodan
Milosevic, Mr. Steve Todorovic, Mr. Momcilo
Krajisnik, the twins Mr. Miroslav and Milan
Vuckovic etc.
The above mentioned conducts are contrary in the
first place to the provisions of the Article 9
paragraphs 1 and 4 of the International Covenant
on Civil and Political Rights which reads as
follows:
"Article 9
1. Everyone has the right to the liberty and the
security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and
in accordance with such procedure as are
established by law.
. . .
4. Anyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings
before a court, in order that that court may decide
without delay on the lawfulness of his detention
and order his release if the detention is not
lawful."
The above mentioned conducts are also in
contravention of similar provisions of other
international documents as well as of general
rinciples of criminal procedure as recognized by
civilized nations.
Since the persons in question were arrested and
transferred to the Tribunal in an unlawful way,
they are entitled to a restitutio in integrum.
6.Breach of the provisions of the Tribunal's Statute
and the Rules of Procedure and Evidence in
atypical conditions of trying Slobodan Milosevic
Finally, in the case against Slobodan Milosevic that is
taking place in an atypical manner, as a result of his
refusal to recognise the Tribunal, when the accused
appeared before the Tribunal for the first time, the
indictment should have been read out to him in accordance
with Article 20 of the Statute and Rule 62 of Procedure
and Evidence. This was not done because the Tribunal
interpreted the accused 's reply to the question of
whether he wished to be read out the indictment that was:
"That is your problem" as the accused 's refusal to have it
read out to him. The Tribunal was under the obligation to
read out the indictment nevertheless in accordance with
the mentioned Articles and the defendant's reply, which
was neither negative nor positive but boiled down to a
refusal to give a reply, should by no means have been
interpreted as negative and, contrary to the defendant's
interest, make the Tribunal decide not to read it out
because this was a question relating to the defendant's
procedural right where the interpretations must always go
in the direction which favours the accused more.
Given the mentioned omission it can be considered that
the proceedings against Slobodan Milosevic was not
initiated in a legally proper manner.
* * *
Bearing in mind all of the above examples and our wish to
contribute to all the trials before the Tribunal taking place
in accordance with international law and that human rights
and fundamental freedoms of the accused be respected
and that the perpetrators of violations of international
humanitarian law are tried and judged in a legally proper
manner based on facts, we propose that the relevant Trial
Chambers should approve to us, the members of the
following group, to appear, each of us as a representative
of the whole group, before them and present the stands on
issues regarding respect for international law in the given
proceedings:
Professor Kosta Cavoski,L.L.D.
Professor Zagorka Jekic,L.L.D.
Professor Ljubisa Lazarevic
Professor Ratko Markovic,L.L.D.
Professor Zoran Stojanovic,L.L.D.
Professor Djordje Lazin,L.L.D.
Professor Mirjana Stefanovski,L.L.D.
Assistant Professor Aleksandar Jaksic,L.L.D.
Assistant Professor Milan Skulic,L.L.D.
Assistant Professor Branko M.Rakic,L.L.D.
Assistant Professor Sasa Bovan,L.L.D.
Assistant Aleksandar Gajic
Assistant Bojan Milisavljevic
(fine/end)
---
To join or help this struggle, visit:
http://www.sps.org.yu/ (official SPS website)
http://www.belgrade-forum.org/ (forum for the world of equals)
http://www.icdsm.org/ (the international committee to defend
Slobodan Milosevic)
---
Questa lista e' curata da componenti del
Coordinamento Nazionale per la Jugoslavia (CNJ).
I documenti distribuiti non rispecchiano necessariamente
le posizioni ufficiali o condivise da tutto il CNJ, ma
vengono fatti circolare per il loro contenuto informativo al
solo scopo di segnalazione e commento ("for fair use only").
Archivio:
> http://www.domeus.it/circles/jugoinfo oppure:
> http://groups.yahoo.com/group/crj-mailinglist/messages
Per iscriversi al bollettino: <jugoinfo-subscribe@...>
Per cancellarsi: <jugoinfo-unsubscribe@...>
Per inviare materiali e commenti: <jugocoord@...>
---- Spot ------------------------------------------------------------
SEI UN APPASSIONATO DI PC, SOFTWARE E PERIFERICHE?
Da oggi tutte le migliori offerte
direttamente nella tua casella di posta eMail
http://www.domeus.it/ad3584440/valuemail.domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
Da "La Stampa" del 10.9.2001
http://www.lastampa.it/_EDICOLA/nazionale/esteri/SPIA.htm
�Ebbene s�, sono una spia colta in flagrante a Minsk�
Domenica 9 Settembre 2001
ANTON ANGELO PIU, ARRESTATO IN BIELORUSSIA,
RACCONTA LA SUA VICENDA AL DEPUTATO ITALIANO
MARCO ZACCHERA CHE GLI HA FATTO VISITA IN CARCERE
Giacomo Galeazzi
ROMA �Sono una spia colta in flagrante. Mi ero appropriato di
documenti militari e so che verr� condannato�. Anton Angelo Piu,
reo confesso, confida nel presidente che sar� eletto oggi in
Bielorussia. �Mi aspetto la concessione della grazia - spiega ai
suoi interlocutori lo 007 italiano alla sbarra a Minsk - se fossi
stato sorpreso nel mio paese con ci� che avevo addosso al
momento dell'arresto, non avrei dubbi sulla condanna. Sono in
pensione, non faccio pi� parte, ufficialmente, dei servizi
segreti, mi avevano chiesto un ultimo favore �fuori ruolo� e le
cose non
sono andate come programmato�.
La sede di Skoriny del Kgb � il tipico stabile di regime, con
interni lugubri e corridoi interminabili. Il processo per
spionaggio � in corso ed � stato secretato, ma tutti si attendono
un gesto di clemenza dopo una sentenza resa scontata dalle prove
schiaccianti a carico del finto imprenditore sardo. L'imputato, che
dimostra pi� dei suoi 50 anni, � in buone condizioni fisiche e non
ha subito maltrattamenti. E' detenuto in una cella minuscola, con
solo un'ora d'aria al giorno. L'ambasciata italiana provvede
quotidianamente a portargli da mangiare. Ad Anton Angelo Piu,
residente a Sassari, sarebbe stata affidata una commissione
particolare dai servizi segreti italiani, mentre era in Bielorussia
in veste umanitaria come referente di un gruppo sardo di assistenza
alle famiglie indigenti. D'altronde pochi italiani conoscono Minsk
come lui, che dopo essersi separato dalla moglie � stato pi�
spesso nella capitale bielorussa che a Sassari. Nella repubblica ex
sovietica ha conosciuto l'interprete Irina Ushak, 26 anni, divenuta
la sua compagna.
�Lei non centra nulla con il mio lavoro - afferma Anton Angelo
Piu, confidandosi con Marco Zacchera (AN), che ieri � andato a
trovarlo con Mastella e Contestabile - sono molto preoccupato
perch� rischia vent'anni di carcere per alto tradimento senza aver
alcuna responsabilit�. Spero di essere espulso e che il
provvedimento di grazia sia esteso anche a Irina�. A
tranquillizzarlo sulla sua sorte, la prospettiva di protezione
d'alto profilo da parte italiana.
Intanto emergono retroscena che spiegano il silenzio assoluto
della famiglia dopo il suo arresto ad aprile. C'� stato un accordo
tra il Kgb e l'ambasciata italiana a Minsk per eclissare la
vicenda.
In cambio di un trattamento umano per l'imputato, le autorit�
bielorusse sono potute andare avanti nelle indagini senza che il
mondo sapesse della misteriosa spy story. Fino alla prima udienza
di venerd�, l'agente sardo dello spionaggio era convinto che la
copertura resistesse ancora e che la notizia del suo arresto non
fosse stata resa pubblica. Non appena ha saputo che i mass media
ne hanno parlato, la sua prima preoccupazione � stata per la
madre, che ha 87 anni. �Speriamo che l'abbiano avvertita con un
po' d'anticipo - rivela - pensa che sia io sia lontano da casa per
ragioni umanitarie�.
Smagrito, non riesce a muoversi bene per un'artrite aggravata
dallo spazio angusto in cui � detenuto. I documenti militari che
aveva addosso non riguardavano la Bielorussia. Minsk era una
stazione di consegna per materiale proveniente da altre capitali
dell'Est. Anton Angelo Piu � stato preso sul territorio bielorusso,
trattato nel pieno rispetto delle convenzioni internazionali e,
dopo una condanna quasi certa, le autorit� di Minsk dovrebbero
liberarlo per mostrare all'Occidente il volto rassicurante di una
democrazia incerta.
�Spero che Anton Angelo Piu venga liberato o trasferito in Italia -
afferma Marco Zacchera, responsabile Esteri di Alleanza
nazionale, dopo il colloquio avuto con lui nel carcere del Kgb - i
toni usati dalle autorit� lasciano ben sperare. Lo hanno sempre
definito �l'imputato� e non �il colpevole� e hanno tenuto a
precisare che i detenuti in Bielorussia ricevono tutti lo stesso
trattamento�. Zacchera � a Minsk come controllore internazionale
delle elezioni che si svolgono oggi. Vladimir Goncharik � in netto
svantaggio nei sondaggi e il presidente Alexander Lukashenko
celebra gi� la rielezione �contro il sindacalista
bielorusso-americano e la Cia�.
---
Questa lista e' curata da componenti del
Coordinamento Nazionale per la Jugoslavia (CNJ).
I documenti distribuiti non rispecchiano necessariamente
le posizioni ufficiali o condivise da tutto il CNJ, ma
vengono fatti circolare per il loro contenuto informativo al
solo scopo di segnalazione e commento ("for fair use only").
Archivio:
> http://www.domeus.it/circles/jugoinfo oppure:
> http://groups.yahoo.com/group/crj-mailinglist/messages
Per iscriversi al bollettino: <jugoinfo-subscribe@...>
Per cancellarsi: <jugoinfo-unsubscribe@...>
Per inviare materiali e commenti: <jugocoord@...>
---- Spot ------------------------------------------------------------
TUTTO PER LA CASA, PER LA COPPIA, PER IL BAMBINO
Da oggi le migliori offerte
direttamente nella tua casella di posta
http://www.domeus.it/ad3584580/valuemail.domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
http://www.lastampa.it/_EDICOLA/nazionale/esteri/SPIA.htm
�Ebbene s�, sono una spia colta in flagrante a Minsk�
Domenica 9 Settembre 2001
ANTON ANGELO PIU, ARRESTATO IN BIELORUSSIA,
RACCONTA LA SUA VICENDA AL DEPUTATO ITALIANO
MARCO ZACCHERA CHE GLI HA FATTO VISITA IN CARCERE
Giacomo Galeazzi
ROMA �Sono una spia colta in flagrante. Mi ero appropriato di
documenti militari e so che verr� condannato�. Anton Angelo Piu,
reo confesso, confida nel presidente che sar� eletto oggi in
Bielorussia. �Mi aspetto la concessione della grazia - spiega ai
suoi interlocutori lo 007 italiano alla sbarra a Minsk - se fossi
stato sorpreso nel mio paese con ci� che avevo addosso al
momento dell'arresto, non avrei dubbi sulla condanna. Sono in
pensione, non faccio pi� parte, ufficialmente, dei servizi
segreti, mi avevano chiesto un ultimo favore �fuori ruolo� e le
cose non
sono andate come programmato�.
La sede di Skoriny del Kgb � il tipico stabile di regime, con
interni lugubri e corridoi interminabili. Il processo per
spionaggio � in corso ed � stato secretato, ma tutti si attendono
un gesto di clemenza dopo una sentenza resa scontata dalle prove
schiaccianti a carico del finto imprenditore sardo. L'imputato, che
dimostra pi� dei suoi 50 anni, � in buone condizioni fisiche e non
ha subito maltrattamenti. E' detenuto in una cella minuscola, con
solo un'ora d'aria al giorno. L'ambasciata italiana provvede
quotidianamente a portargli da mangiare. Ad Anton Angelo Piu,
residente a Sassari, sarebbe stata affidata una commissione
particolare dai servizi segreti italiani, mentre era in Bielorussia
in veste umanitaria come referente di un gruppo sardo di assistenza
alle famiglie indigenti. D'altronde pochi italiani conoscono Minsk
come lui, che dopo essersi separato dalla moglie � stato pi�
spesso nella capitale bielorussa che a Sassari. Nella repubblica ex
sovietica ha conosciuto l'interprete Irina Ushak, 26 anni, divenuta
la sua compagna.
�Lei non centra nulla con il mio lavoro - afferma Anton Angelo
Piu, confidandosi con Marco Zacchera (AN), che ieri � andato a
trovarlo con Mastella e Contestabile - sono molto preoccupato
perch� rischia vent'anni di carcere per alto tradimento senza aver
alcuna responsabilit�. Spero di essere espulso e che il
provvedimento di grazia sia esteso anche a Irina�. A
tranquillizzarlo sulla sua sorte, la prospettiva di protezione
d'alto profilo da parte italiana.
Intanto emergono retroscena che spiegano il silenzio assoluto
della famiglia dopo il suo arresto ad aprile. C'� stato un accordo
tra il Kgb e l'ambasciata italiana a Minsk per eclissare la
vicenda.
In cambio di un trattamento umano per l'imputato, le autorit�
bielorusse sono potute andare avanti nelle indagini senza che il
mondo sapesse della misteriosa spy story. Fino alla prima udienza
di venerd�, l'agente sardo dello spionaggio era convinto che la
copertura resistesse ancora e che la notizia del suo arresto non
fosse stata resa pubblica. Non appena ha saputo che i mass media
ne hanno parlato, la sua prima preoccupazione � stata per la
madre, che ha 87 anni. �Speriamo che l'abbiano avvertita con un
po' d'anticipo - rivela - pensa che sia io sia lontano da casa per
ragioni umanitarie�.
Smagrito, non riesce a muoversi bene per un'artrite aggravata
dallo spazio angusto in cui � detenuto. I documenti militari che
aveva addosso non riguardavano la Bielorussia. Minsk era una
stazione di consegna per materiale proveniente da altre capitali
dell'Est. Anton Angelo Piu � stato preso sul territorio bielorusso,
trattato nel pieno rispetto delle convenzioni internazionali e,
dopo una condanna quasi certa, le autorit� di Minsk dovrebbero
liberarlo per mostrare all'Occidente il volto rassicurante di una
democrazia incerta.
�Spero che Anton Angelo Piu venga liberato o trasferito in Italia -
afferma Marco Zacchera, responsabile Esteri di Alleanza
nazionale, dopo il colloquio avuto con lui nel carcere del Kgb - i
toni usati dalle autorit� lasciano ben sperare. Lo hanno sempre
definito �l'imputato� e non �il colpevole� e hanno tenuto a
precisare che i detenuti in Bielorussia ricevono tutti lo stesso
trattamento�. Zacchera � a Minsk come controllore internazionale
delle elezioni che si svolgono oggi. Vladimir Goncharik � in netto
svantaggio nei sondaggi e il presidente Alexander Lukashenko
celebra gi� la rielezione �contro il sindacalista
bielorusso-americano e la Cia�.
---
Questa lista e' curata da componenti del
Coordinamento Nazionale per la Jugoslavia (CNJ).
I documenti distribuiti non rispecchiano necessariamente
le posizioni ufficiali o condivise da tutto il CNJ, ma
vengono fatti circolare per il loro contenuto informativo al
solo scopo di segnalazione e commento ("for fair use only").
Archivio:
> http://www.domeus.it/circles/jugoinfo oppure:
> http://groups.yahoo.com/group/crj-mailinglist/messages
Per iscriversi al bollettino: <jugoinfo-subscribe@...>
Per cancellarsi: <jugoinfo-unsubscribe@...>
Per inviare materiali e commenti: <jugocoord@...>
---- Spot ------------------------------------------------------------
TUTTO PER LA CASA, PER LA COPPIA, PER IL BAMBINO
Da oggi le migliori offerte
direttamente nella tua casella di posta
http://www.domeus.it/ad3584580/valuemail.domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
