Jugoinfo
(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)
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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)
---
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(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:
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---- Spot ------------------------------------------------------------
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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:
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---- Spot ------------------------------------------------------------
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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 ------------------------------------------------------------
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----------------------------------------------------------------------
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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
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direttamente nella tua casella di posta
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L'EDUCAZIONE NECROFILA DI SUSANNA T.
"Io il male l'ho vissuto in prima persona sin da piccola. Sono nata
al confine con la Yugoslavia, da bambina amavo raccogliere i ciclamini
sulle foibe, perch� sono pi� belli, nutriti dai morti che stanno
li sotto".
Susanna Tamaro
(sulla campagna di disinformazione slavofoba sulle "foibe"
si veda ad esempio:
> http://members.nbci.com/crjmail/FASCIO/cernigoi.html )
---
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 ------------------------------------------------------------
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"Io il male l'ho vissuto in prima persona sin da piccola. Sono nata
al confine con la Yugoslavia, da bambina amavo raccogliere i ciclamini
sulle foibe, perch� sono pi� belli, nutriti dai morti che stanno
li sotto".
Susanna Tamaro
(sulla campagna di disinformazione slavofoba sulle "foibe"
si veda ad esempio:
> http://members.nbci.com/crjmail/FASCIO/cernigoi.html )
---
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 ------------------------------------------------------------
Vuoi comprare - ma anche vendere - on line?
da oggi su Domeus hai una piazza tutta per te, 24 ore su 24.
Fatti un giro e vedrai che non te ne pentirai.
http://www.domeus.it/ad3569180/domeus
----------------------------------------------------------------------
Per cancellarti da questo gruppo, invia un messaggio vuoto a: jugoinfo-unsubscribe@...
