Il giorno di San Vito (28 giugno) e' una data fondamentale nella
storia balcanica, per i Serbi in particolare.
Il 28 giugno 2001 il governo-fantoccio di Zoran Djindjic, con
decisione anticostituzionale, ordinava il trasferimento di Slobodan
Milosevic all'Aia. Di seguito il testo della Corte Costituzionale
Federale, pubblicato sulla Gazzetta Ufficiale jugoslava, nel quale si
spiegano i motivi per cui la decisione di Djindjic e' ritenuta
illegale.
---
Subject: LAWYERS ALLERT: Constitutional
Court on Djindjic decree
Date: Fri, 7 Jun 2002 20:23:43 +0200
From: "Vladimir Krsljanin"
---
OFFICIAL GAZETTE OF FR YUGOSLAVIA
No.19 Friday, April 12, 2002
DECISION
On constitutionality and legality test of
the Decision of the Government of
the Republic of Serbia: 05 Reference
713-6483/ 21 June 2001
I
1. The Federal Constitutional
Court, at the session on 5 December
2001, further to the provisions of Article
15, par 1 of the Rules of
Procedure of the Federal constitutional
court ("Official Gazette of FRY"
Nos.44/93 and 25/95) established that the
Patriotic Alliance of Yugoslavia,
from Belgrade, filed the request to the
Court to test constitutionality and
legality of the Decision of the Government
of the Republic of Serbia: 05
Reference 713-6483/21 June 2001, dated 28
June 2001 ("Official Gazette of
FRY" No.37/2001), and left the period of
30 days of the date of service of
the request to the Government of the
Republic of Serbia to provide its
reply.
The Court, acting under Article
14 of the Rule of Procedure of the
Federal Constitutional Court, decided to
enjoin the initiative of the Fund
for Democracy Development in Belgrade, by
lawyers Dragoslav Ognjanovic,
Branimir Gugl and Momcilo Bulatovic of
Belgrade to start the procedure
testing constitutionality and legality of
the decision mentioned to the
proposal filed and proceed in a single
adjudication of one and single
decision.
2. The proposal filed and the
initiative have substantially
alleged: that the contested Decision is
contrary to the Constitution of FRY
and the Law on Criminal Process ("Official
Gazette of FRY" Nos.27/92 and
24/94) because the Government of the
Republic of Serbia has no competence
to: prescribe the process of criminal
prosecution, and consequently to
prescribe the cases and the procedure of
apprehension, because the
Constitution of FRY explicitly provides
that no one shall be deprived of his
freedom, except in cases and under the
procedure stipulated in the federal
law and that illegal apprehension shall be
punishable; prescribe the process
for criminal prosecution of individuals
under the procedure provided for
under the Statute and Rules of Procedure
and Evidence of the International
Criminal Tribunal despite the fact that
those acts were not duly published
in the corresponding official papers,
either; prescribe the procedure for
extradition of the Yugoslav citizens, in
spite of the fact that the
Constitution of FRY and the Law on
Criminal Process prohibits such
extradition; prescribe the procedure for
extradition, prosecution,
apprehension and extradition of foreigners
whose rights and obligations are
stipulated through the authorities of the
Federal Republic of Yugoslavia and
prescribe that the provisions of the
mentioned Statute and Rules of
extradition or transfer of the indicted or
witnesses to the Hague in the
Netherlands prevail over any legal
barriers existing in the national
legislation or the international treaties
on extradition signed by the
Federal Republic of Yugoslavia.
3. The reply of the Government
of the Republic of Serbia stated
that: under Article 16, par 2 of the FRY
Constitution, the international
treaties confirmed and published in
compliance with the constitution and
generally accepted rules of the
international law have become part of the
internal legal order; that the Security
Council of the United Nations, under
its Resolution 827, decided in 1993 to
found a court officially entitled "
The International Court for Criminal
Prosecution of Persons Responsible for
Grave Violations of the International
Humanitarian Law Committed in the
Territory of Former Yugoslavia between 1
January 1991 till the date to be
subsequently established by the Security
Council once peace shall have been
reestablished"; that the Security Council
approved Statute of the Court at
the same session; that FR of Yugoslavia,
as a member of the United Nations
and signatory of the UN Charter, is bound
to cooperate with the
International Criminal Tribunal in the
Hague; that by virtue of Article 25
of the UN Charter the member states
agreed to accept and enforce the
decisions of the Security Council in
keeping with the Charter; that all the
resolutions of the Security Council and
particularly those approved further
to Chapter VII of the Charter (hence the
Resolution 827 of the United
Nations of 1993) are binding on all the
UN members, including the Federal
Republic of Yugoslavia; that,
consequently, the obligation of FR of
Yugoslavia to cooperate with the
International Criminal Tribunal in the
Hague is inbuilt in the UN Charter,
Resolution 827 of the Security Council,
Statute and Rules of Procedure of that
court; that Article 17 par 3 of the
Constitution of FRY, which provides that
no Yugoslav citizen may be deprived
of his citizenship, expelled from his
country or extradited to another
country prohibits the extradition of local
residents to a foreign state,
but not the extradition of the Yugoslav
citizens to the International
Criminal Tribunal; that FR of Yugoslavia
ratified the Rome Statute of the
International Criminal Court in June 2001,
which should be taken into
account and that the provision of Article
80 of the Rome Statute anticipated
the obligation of the state parties to
extradite own nationals to that
Court, and that on the occasion of
ratification of that Statute the issue of
non compliance thereof with the
Constitution of FR Yugoslavia was raised;
that on the above grounds the contested
Decision of the Government of the
Republic of Serbia, having envisaged the
application of the Statute and
Rules of the International Criminal
Tribunal in the Hague is not contrary to
Article 17, par 3 of the Constitution of
FR Yugoslavia; that the confirmed
and published international treaties and
generally accepted rules of the
international law are in legal force under
Article 124 par 1 point 2) of the
Constitution of FRY which supersedes the
federal laws, hence the Criminal
Process Law, alike; that in view of the
above stated, it ensues that the
cooperation with the international
Criminal Tribunal in the Hague may
proceed even directly, by virtue of the
Statute and Rules of that tribunal,
as recognized by the contested Decision;
that in view of the fact that FR of
Yugoslavia, failed to abide by its
international obligations via its organs,
and cooperate with the International
Criminal Tribunal in the Hague; that
failure to comply with the international
obligations, particularly the ones
based on the UN SC Resolutions entails
serious consequences, which threaten
the interest of the republic of Serbia, as
a constituent republic of FR
Yugoslavia; the Government of the Republic
of Serbia was compelled to enact
the contested Decision to protect the
interest of the Republic of Serbia,
acting under the provisions of Article
135, par 2 of the Constitution of the
Republic of Serbia, which provides that
the organs of the Republic of Serbia
shall apply the procedure defined in the
Statute and the Rules of the
International Criminal Tribunal in the
Hague, since Article 135 par 2 of the
Constitution of the Republic of Serbia
stipulates that the republic
authorities shall enact the acts for the
protection of interest of the
Republic of Serbia in case that the acts
of the federal authorities (which
include non doing, namely non
implementation of the international
obligations) threaten its interests; and
that the contested Decision of the
Government of the Republic of Serbia only
effectuated the obligation
enshrined in the Constitution of the
Republic of Serbia.
4. The Contested Decision of the
Government of the Republic of
Serbia stipulated that in the enforcement
of the obligations and generally
accepted rules of the international law on
the activity of the International
tribunal for the criminal prosecution of
the persons responsible for serious
violations of the international
humanitarian law perpetrated in the
territory of former Yugoslavia since 1991
the authorities of the Republic of
Serbia shall follow the procedure set out
in the Statute and Rule of
procedure and evidence of that Tribunal
and that the stated Decision shall
become effective as of the date of its
publication in the "Official Gazette
of RS".
The provisions of Article 29 of
the Statute of the International
Tribunal for criminal prosecution of
persons responsible for grave
violations of the international
humanitarian law committed in the
territory
of former Yugoslavia since 1991
(hereinafter: The International Tribunal)
set out that: the states shall cooperate
with the International Tribunal in
investigation and criminal persecution of
persons indicted for serious
violations of the international
humanitarian law, that the states shall,
without unnecessary delay, gratify any
request for assistance or order of
the trial chamber, including inter alia
also (a) identification and location
of temporary residence of the persons; (b)
taking of statements and finding
evidence;(c) submission of documents;
(d)transfer of convicts or extradition
to the International Tribunal.
The provisions of Article 58 of
the Rules on Proceedings and
Evidence of the International Tribunal
stipulated the following:" The
obligations contained in Article 29 of the
Statute shall prevail over any
legal obstacles to extradition or transfer
of the indicted or witnesses to
the International Tribunal existing in the
national legislations or
international treaties on extradition
signed by the state concerned".
Hence, the contested Decision
implies that the Government of the
Republic of Serbia ordered, under that
Decision, to all the organs of the
Republic of Serbia, to act under the
procedure set out in the stated Statute
and Rules of Proceedings of the
International Tribunal, if such Tribunal
shall have submitted the request, despite
the fact that the Statute and Rule
of Proceedings and Evidence, even if they
were international legal acts with
the binding norms, are not implemented
into the legal system of FR of
Yugoslavia by the competent federal
authority in the manner provided for in
the Constitution of FRY. The Statute and
Rule of Proceedings and Evidence of
the International Tribunal were not even
published as are general acts of
the national law or international law
which by ratification by the competent
authority became part of the local law,
which based on Article 176 of the
Constitution of FRY is a condition for
enforcement of any general act.
5. The provisions of the
Constitution of FRY set out that: the
constituent republic shall be sovereign in
all the matters which were not
tackled by the Constitution of FRY as
falling within the competence of the
Federal Republic of Yugoslavia, and that
the constituent Republic shall
autonomously regulate its governance under
its own Constitution(Article 6,
par 2 and 3); that the executive and
judicial branches are bound under the
law which must comply with the
Constitution (Article 9 par 2 and 3); that
the power in the Federal Republic of
Yugoslavia is organized on the
principle of division to legislative,
executive and judicial branches
(Article 12); that the Federal Republic of
Yugoslavia has fulfilled its
obligations under the international
treaties signed in good faith and that
the international treaties, confirmed and
published are in line with the
constitution and generally accepted rules
of the international law the
integral parts of the internal legal
system (Article 16); that no Yugoslav
citizen may be deprived of its
citizenship or extradited to another state
(Article 17); that everybody is entitled
to personal freedom and no one may
be deprived of his freedom, except in case
and under the procedure defined
under the federal law and that illegal
deprivation of freedom shall be
punishable (Article 23, par.1, 2 and 6);
that everyone shall be entitled to
equal protection of his rights under the
legally defined procedure ( Article
26, par.1)that no one may be punished for
an offence which before its
commission was not envisaged under the law
or regulation stemming from the
law as a punishable offence, or may a
sentence be pronounced which was not
envisaged for such an act (Article 27, par
1); that no one may be sentenced
again or punished for an offence if the
proceedings were legally suspended,
or the incrimination against him was duly
dismissed, or if he was acquitted
or sentenced under the final decision
(Article 28); that an expatriate may
be extradited to another state only in
cases anticipated under the
international treaties binding on the
Federal Republic of Yugoslavia and
that the right to asylum is guaranteed to
a foreign citizen and stateless
person who is prosecuted for his advocacy
of democratic views and for
participation in the movements for social
and national liberation, for
freedom and rights of human personality or
for freedom of scientific or
artistic creation (Article 66 par 2 and
3); that only the law may prescribe
the manner of accomplishment of individual
freedoms and rights of man and
citizen when so set out under the
Constitution of FRY or when necessary for
their implementation and that the freedoms
and rights recognized and
guaranteed under the Constitution of FRY
shall enjoy court protection
(Article 67 par 2 and 4).
The provisions of Chapters XXX
and XXXI of the Criminal Process
Law ("Official Gazette of FRY" No. 4/77,
14/85, 74/87, 57/89, 3/90 and
"Official Gazette of FRY" No.27/92 and
24/94) the procedure for
international legal assistance and
enforcement of international treaties in
criminal matters as well as the procedure
for extradition of the indicted
and sentenced persons. Those provisions,
inter alia, prescribed territorial
and actual jurisdiction of the local
courts and other state authorities in
the proceedings requested by a foreign
authority and also in cases when the
requests concerns criminal act for which
under the local regulations no
extradition is allowed, even if the
presumptions for extradition of
incriminated or convicted individuals was
set out, namely that a person
whose surrender is requested is not the
Yugoslav citizen and that the
competent court shall rule on the
requested extradition of the requested
person.
Even the Criminal Process Law
("Official Gazette of FRY" No.70/01)
which shall become effective on 29 March
2002, also proscribed as one of the
presumptions for extradition (surrender)
of incriminated and convicted
persons, that the person requested is no
Yugoslav citizen while the other
conditions for extradition and procedure
for the same are almost identical
as in the old law.
6. The Federal Constitutional
Court, starting from the quoted
provisions of the Constitution of FRY and
the Criminal Process Law, found
that the contested Decision is not in
compliance with the Constitution of
FRY and the Criminal Process Law.
1) Firstly, the contested Decision is
not in compliance with the
Constitution of FRY, because it governs
the procedure (manner) of exercising
individual human and civil rights set out
in the Constitution of FRY but it
is void of power. Namely, by virtue of the
provision of Article 67 par 2 of
the Constitution of FRY, only law can
prescribe the manner (procedure) of
exercising individual human and civil
freedoms and rights provided only that
it has been stipulated by the Constitution
of FRY or when required for their
exercise. The provision of Article 26, par
1 of the Constitution of FRY
further set out that any one has the right
to equal protection of its rights
in the legally prescribed process.
However, the Government of the Republic
of Serbia, as an authority of executive
power, stipulated in a secondary
legal act the manner (procedure) of
exercise, limitation and protection of
individual human and civil rights and
freedom, despite the fact that such
issues are governed by the Criminal
Process Law by the defined legislative
authorities under the Constitution, such
as: arrest or detention of persons;
time for issuance of decision on
detention; appeal to the decision on
detention; timeframe for issuance of
decision on the complaint; duration on
the detention; transfer of the
incriminated and sentenced and the
similar.
In the same vein the Constitution of FRY
stipulates that everyone shall be
entitled to personal freedom and that no
one may be deprived of freedom
except in the cases and under the
procedure established by the federal law
(Article 23). Consequently, any
apprehension of an individual based on the
contested Decision would constitute
violation of the mentioned Article of
the Constitution.
Having prescribed the application of the
Statute of the International
Tribunal and its Rules of Proceedings and
Evidence of that court by the
courts and other state authorities of the
Republic of Serbia, the Government
of the Republic of Serbia overstepped its
authorities conferred by the
Constitution as an executive body of
authority of one republic constituent
of FRY. Because, confirmation of the
international legal acts and their
integration into the internal legal
system, further to Article 78 of the
Constitution of FRY, falls exclusively
within the competence of the Federal
Parliament as legislative and
representative authority of the citizens
of FR
of Yugoslavia and its constituent
republics. Moreover, obligatory
application of the Statute and the Rules
of Proceedings and Evidence of the
International Tribunal which were not even
published in the official gazette
is also inconsistent with Article 116 of
the Constitution of FRY, which says
that laws, other regulations and general
acts become enforceable on the
eighth day of their publication, at the
earliest, except when due to
specific reasons defined when enacted, it
shall stipulate an earlier date of
enforcement.
2) Apart from the above stated non
compliance with the Constitution of
FRY, the contested Decision is contrary to
the Constitution because it
opened up the possibility of extradition
of Yugoslav citizens outside the
area of territorial jurisdiction of the
Yugoslav justice and other state
authorities, despite the fact that the
Constitution of FRY in its Article
17, par 3 such a possibility is expressly
prohibited. Contrary to that,
foreign citizens may be extradited but
only in the cases and under the
procedure set out in the Constitution of
FRY, the Criminal Process Law and
international treaties. The Federal
Constitutional Court is of the view that
the Constitution of FRY, namely its
Article 17, par 3 prohibits the
extradition of the Yugoslav citizens
irrespective of whether the request for
extradition is submitted by an ad hoc body
with judicial function which was
established of the Constitution of FRY by
an act of the international
organization, namely its organ, because
the provisions of the Constitution
of FRY, as the basic law of the FR of
Yugoslavia, in the hierarchy of legal
regulations, is the norm of the highest
legal strength.
This legal standpoint was explicated in
detailed by the Federal
Constitutional Court in its Decision No.
IV ? No.103/01 to 138/01, 150/01
and 152/01 dated 6 November 2001.
3) Under the provisions of Article 16
of the Constitution of FRY the
international agreements confirmed and
published in keeping with the
Constitution and generally accepted rules
of the international law, are the
integral parts of the internal legal
system. Therefore the international
treaties and generally accepted rules of
the international law, in their
legal strength in the legal system of FRY
supersede the federal law.
Within this context in the judgment of the
Federal Constitutional Court it
is necessary to make a distinction between
the obligations of states towards
the international community as a whole and
the international obligations
towards an individual state or groups of
states. The confirmed and published
international treaties represent an
international obligation of FRY beyond
any doubt to all the states signatories
thereof (they act inter partes)
while the generally accepted rules of the
international law concern all the
states in the international legal system
ad all the personalities of the
international law are bound and have
interest to protect the (the rules of
ius cogens have effect as erga omnes).
Besides, in the case of noncompliance
with the international legal norms, the
sanctions will be primarily of legal
nature unlike political agreements where
sanctions will not be legal but
political or otherwise.
Generally accepted rules of the
international law constitute legal
principles and norms derived from common
rules that are shared by all the
states or known in most of the legal
systems of the world. Such rules have
general, absolute and objective character.
But, they have dynamic character
too, namely they are permanently evolving.
In this context, opinion differ
as to their identification, scope but also
the character of their change,
both in practice of states and
international organizations and in the
doctrine of the international law. Higher
is the consent of their
identification, particularly in the
process law, as are the principles: "
reasonable time frame", "fair trial"
"degrading treatment", "unilateral
apprehension", "assumption of innocence",
"timely pronunciation of
judgment", "right to appeal" and other
general principle of court
proceedings.
The Federal Constitutional Court, starting
from the character of the very
contested act, its contents and maker, is
not involved in the procedure of
ruling on its constitutionality and
legality in the reasoning and approving
the final legal standpoints about the
legal nature of the International
Criminal Tribunal, or the procedure of
performance of obligations
established in the Resolution of the
Security Council. In that sense the
Federal Constitutional Court is of the
view that the concrete constitutional
dispute is of no decisive importance,
otherwise a major issue, whether the
Security Council as one of the main bodies
of the United Nations under the
Charter of UN, and which is primarily
responsible to maintain international
peace and security and which in performing
this duty has to act in
compliance with objectives and principles
of United Nations (Article 24 of
the Charter), by establishing the
International Criminal Tribunal acted in
keeping with the UN Character or
overstepped its powers, namely acted ultra
vires. Also, whether the establishment of
the International Criminal
Tribunal, as an ad hoc measure should, via
criminal prosecution of
individuals responsible of grave
violations of the international
humanitarian law, enable reestablishment
of peace disturbed in the territory
of former SFRY and its maintenance, in
keeping with the measures that the
Security Council may pass with the view of
maintaining international peace
and security in keeping with the Charter
and Rules of order of the Security
Council.
The Federal Constitutional Court is of the
view that the Resolution of the
Security Council No.827 on the
establishment of the International
Criminal
Tribunal does not fall in the
international law, which makes an integral
part of the internal legal system under
Article 16 of the Constitution of
FRY. This is because an ad hoc measure
approved by the Security Council
under that Resolution- the establishment
of the International Criminal
Tribunal for criminal prosecution of
persons responsible for grave
violations of the international
humanitarian law - contains no
international
legal norms which produce 'legal validity'
namely which have "binding legal
strength". Without such properties, this
resolution represents but a
political act which produces political
obligations, but the legal validity
of which is achieved only by giving it
legal strength by the legitimate and
legal organ in the individual legal system
of each country. The Court is
also of the view that there is another
possibility, customary in creating
obligatory international legal acts:
signing and ratification of
international treaties and
inter-governmental treaties as was done in
the
case of the Rome Statute of the
International Criminal Curt, approved in
17
July 1998 in Rome.
Namely, member states of the United
Nations, having accepted the
Charter, consented to legal validity of
all its norms and legal acts enacted
by the UN organs, in keeping with and in
the manner anticipated under that
Charter. However, the Federal
Constitutional Court is of the view that
member states have not vested to UN bodies
the judicial powers, naturally,
except those explicitly laid down in the
Statute of the International Court
of Justice, foreseen in Chapter XIV of the
Charter, This is not the case of
the International Criminal tribunal. That
is the very reason why the
Security Council in the relevant
resolution 827 in point 4 anticipated, in
the judgment of this Court, political
obligation of all the UN members
states "to fully cooperate with the
international criminal tribunal
and....all the states take adequate
measures in line with their national
legislation to implement the provisions"
of that Resolution. Hence, only in
legal procedure of translating the
obligations under the mentioned
Resolution of Security Council into the
legal norm in keeping with the
national legislation of individual states
the Statute and the Rules of the
International Criminal Tribunal can obtain
normative character, which
produces legal validity. Without it, the
Resolution of the Security Council
is but a particular political obligation,
the observance of which, may cause
very serious consequences on individual
states.
4) Legal acts of the Federal government
or the governments of the
republics as well as the federal and
republic laws that contain legal
regulations contrary to the Constitution
of FRY ate not in compliance with
the Constitution of FRY. Neither the
legal act confirming or assuming
international obligations is part of the
internal legal system unless
enacted in keeping with the Constitution
of FRY. Even if the Statute and the
Rules of the International Tribunal were
enacted in line with the
authorization of the Security Council
established under the Charter of the
United Nations they were not ex lege
integral part of the internal law, nor
as such supersede the Constitution,
confirmed and published international
treaty and the law. Cooperation of FR of
Yugoslavia, even cooperation of a
constituent republic with the
International Tribunal, may legally
proceed
when the acts of the international
authorities implemented into the legal
system of the country in keeping with the
basic law of the country that
concerns certain international
obligations. That is why the member states
of
the United Nations, that have or may have
the obligations towards the
International Tribunal, enacted special
laws on cooperation and procedure in
such cooperation. Some of such states
changed their constitutions to legally
enable extradition of their citizens to
the mentioned tribunal (e.g.
Republic of Croatia), while other have
enacted act of cooperation without
extradition of their citizens to the
tribunal because there is no such a
possibility under their respective
constitution (e.g. Germany). Such
actions indicates beyond doubt that UN
member states are not of the view
that the UN SC Resolution 827 establishing
the international criminal
tribunal or the Statute and the Rules of
that tribunal are the integral part
of the internal law. That international
practice of implementation of the
mentioned Resolution of the Security
Council testifies to the fact that the
acts of the competent state authorities,
enabling the implementation of the
Resolution, Statute and the Rules of the
International Tribunal must be
enacted in compliance with the
constitution of the UN member states in
formal and material terms and that the
acts of the Security Council, due to
that fact, have no legal merit for direct
implementation by the bare fact of
their adoption. Their implementation into
the legal system of every UN
member state must be decided in the
constitutionally prescribed manner of
such a state by the designated competent
authority.
5) The Federal Constitutional Court is
of the view that it need be said
that the contested Decision did
anticipated no procedure for enforcement
of
the obligation which the Republic of
Serbia is to effect towards the
Tribunal. Nonexistence of the procedure
for enforcement of the acts
anticipated under Article 29 of the
Statute of the International Tribunal
resulted and may result in violation
namely non-observance of basic human
rights of the accused or potential
witnesses before the Tribunal, as absence
of any rules in the process of
identification and establishment of
residence
of the indicted and other persons
implicated, in obtaining the statement by
the indicted, witnesses and tracing the
evidence, submission of documents of
evidence, apprehension and detention of
the indicted, relocation of the
convicts or extradition (surrender) of the
indicted to the International
Tribunal. Without such a procedure, which
as was mentioned above, other UN
member states have regulated in keeping
with their national legislation, the
citizens of FRY, but other persons in the
territory of FRY affected by the
contested Decision may be deprived of the
protection of their fundamental
human and civil rights, guaranteed, apart
from FRY Constitution also by
international conventions making up the
generally accepted rules of the
international law.
Thus, Article 9 of the International
Covenant of civic and political rights
(ratified by FRY and published in the
"Official Gazette of SFRY" No. 17/71
explicitly set out that no body may be
deprived of freedom except on the
grounds and in keeping with the procedure
under the law. The same Article
the Covenant guarantees the right to every
detainee to be informed at the
moment of apprehension of the reason
thereof, and at the shortest possible
notice in writing, of each charge against
him. Every apprehended person
must be surrendered to the judicial or
another authority within the shortest
period practicable, which is authorized
under the law to execute judicial
authority, provided however it shall have
the right to file a complaint to
the court about the legality of
apprehension (pronunciation of detention)
and that such a court shall be obliged to
issue ruling on such a complaint
without delay.
Non-existence of the prearranged
procedure for cooperation with
the International Tribunal is contrary to
Article 5 of the European
Convention on the protection of human
rights and fundamental freedom, which
is the basic document of the Council of
Europe. Despite the fact that FRY is
not a member of The Council of Europe or
is a signatory to the Convention,
the same establishes the legal standards,
which make the generally accepted
rules of the international law. The stated
Article 5 of the Convention
guarantees the right that apprehension of
any individual may be foreseen
only in special cases, in keeping with the
procedure prescribed by the law.
Apprehension, under the Convention, shall
be possible only if undertaken
with the view of taking the person to the
competent court authority and
every apprehended person must be
immediately taken before the judge or
another authority authorized by the law to
carry out the judicial
authorities.
In view of the above the Court
found that the Decision of the
Government of the Republic of Serbia is
not in compliance with either the
international conventions which guarantee
and protect human and civic rights
and fundamental freedoms, particularly
with the provisions governing the
legal institute of Habeas Corpus
inalienability of personal freedom.
7. Although irrelevant for the assessment
of constitutionality of the
contested Decision and its compliance with
the federal law, the fact that
legal merit for enactment of the contested
Decision is derived from Article
135 par 2 of the Constitution of the
Republic of Serbia, as stated in the
reply of the government of the Republic of
Serbia, according to the Federal
Constitutional Court, has no significance
attached. Namely, that provision
of the Constitution of the Republic of
Serbia provided for the protection of
interests of the Republic of Serbia which
were established under the former
Constitution of the then Socialist Federal
Republic of Yugoslavia, as a
multi-member Federation, but not the
protection of interest determined under
the Constitution of the Federal Republic
of Yugoslavia. By the way, the
mentioned Article of the Constitution of
the Republic of Serbia, explicitly
says that Republic of Serbia "is within
the Socialist Federal Republic of
Yugoslavia" as well as that it shall be
entitled "to enact the acts for the
protection of interest of the Republic of
Serbia under its own constitution"
, when "the acts of the federal
authorities or acts of another Republic,
contrary to the rights and obligations it
has under the Constitution of the
Socialist Federal Republic of Yugoslavia,
undermines the equality of the
Republic of Serbia, or otherwise threaten
its interest, whereby no
compensation is provided."
The provisions of Article 135 of the
Constitution of the Republic of Serbia
may be no legal merit for the organs of
the Republic of Serbia for non
observance of the Constitution of FRY and
organs of the Federal Republic of
Yugoslavia, namely enactment of the acts
for the protection of interest of
the Republic of Serbia, because under the
Constitution of FRY in force the
set protection mechanisms of the interests
of constituent republics as well
as the competent authorities which secure
those interest (two-chamber
decision making in the Federal
Parliament), the constitutional status of
the
Chamber of republics, the Supreme Defense
Council, the rule that the
president of the Republic and president of
the Federal Government are not
from the same member republic, etc.). Such
a ruling of the Court, in the
given case, does not mean that the Court
is of the view that non compliance
of individual provisions of the
constitutions of the member republics with
the Constitution of FRY, either in line
with the principle of the rule of
law and single legal order in the Federal
Republic of Yugoslavia.
II
8. The Federal Constitutional
Court, by virtue of the provisions
of Article 124 par 1 item 2) and 3) and
Article 68 par 1 item 2) and 4) of
the Law on the Federal Constitutional
Court ("Official Gazette of FRY" No,
36/92, at its session of 26 March 2002, by
majority vote approved the
following
Decision
It has been found that the
Decision of the Government of the
Republic of Serbia, 05 no.713-6483/2001 of
28 June 2001 ("Official Gazette
of RS" No. 37/2001) is not in compliance
with the Constitution of FRY and
the Criminal Process Law ("Official
Gazette if SFRY" No.4/77, 14/85. 74/87.
57/89, 3/90 and the "Official Gazette FRY"
No. 27/92 and 24/94).
The Federal Constitutional Court
passed this Decision in
attendance of: acting President of the
Federal Constitutional Court Judge
Milan Vesovic and Judges: Milorad Gogic,
prof.dr.Momcilo Grubac, Milomir
Jakovlejvic, LLD, Veselin lekic and
Aleksandar Simic.
Judge Prof.Dr/ Momcilo Grubac
dissented.
III U No/139/01. 151/01. 154/01 Acting
President
168/01 and 242/01
Federal Constitutional Court
26 March 2002
Judge Milan Vesovic, sgd
Belgrade
---
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---
Subject: LAWYERS ALLERT: Constitutional
Court on Djindjic decree
Date: Fri, 7 Jun 2002 20:23:43 +0200
From: "Vladimir Krsljanin"
---
OFFICIAL GAZETTE OF FR YUGOSLAVIA
No.19 Friday, April 12, 2002
DECISION
On constitutionality and legality test of
the Decision of the Government of
the Republic of Serbia: 05 Reference
713-6483/ 21 June 2001
I
1. The Federal Constitutional
Court, at the session on 5 December
2001, further to the provisions of Article
15, par 1 of the Rules of
Procedure of the Federal constitutional
court ("Official Gazette of FRY"
Nos.44/93 and 25/95) established that the
Patriotic Alliance of Yugoslavia,
from Belgrade, filed the request to the
Court to test constitutionality and
legality of the Decision of the Government
of the Republic of Serbia: 05
Reference 713-6483/21 June 2001, dated 28
June 2001 ("Official Gazette of
FRY" No.37/2001), and left the period of
30 days of the date of service of
the request to the Government of the
Republic of Serbia to provide its
reply.
The Court, acting under Article
14 of the Rule of Procedure of the
Federal Constitutional Court, decided to
enjoin the initiative of the Fund
for Democracy Development in Belgrade, by
lawyers Dragoslav Ognjanovic,
Branimir Gugl and Momcilo Bulatovic of
Belgrade to start the procedure
testing constitutionality and legality of
the decision mentioned to the
proposal filed and proceed in a single
adjudication of one and single
decision.
2. The proposal filed and the
initiative have substantially
alleged: that the contested Decision is
contrary to the Constitution of FRY
and the Law on Criminal Process ("Official
Gazette of FRY" Nos.27/92 and
24/94) because the Government of the
Republic of Serbia has no competence
to: prescribe the process of criminal
prosecution, and consequently to
prescribe the cases and the procedure of
apprehension, because the
Constitution of FRY explicitly provides
that no one shall be deprived of his
freedom, except in cases and under the
procedure stipulated in the federal
law and that illegal apprehension shall be
punishable; prescribe the process
for criminal prosecution of individuals
under the procedure provided for
under the Statute and Rules of Procedure
and Evidence of the International
Criminal Tribunal despite the fact that
those acts were not duly published
in the corresponding official papers,
either; prescribe the procedure for
extradition of the Yugoslav citizens, in
spite of the fact that the
Constitution of FRY and the Law on
Criminal Process prohibits such
extradition; prescribe the procedure for
extradition, prosecution,
apprehension and extradition of foreigners
whose rights and obligations are
stipulated through the authorities of the
Federal Republic of Yugoslavia and
prescribe that the provisions of the
mentioned Statute and Rules of
extradition or transfer of the indicted or
witnesses to the Hague in the
Netherlands prevail over any legal
barriers existing in the national
legislation or the international treaties
on extradition signed by the
Federal Republic of Yugoslavia.
3. The reply of the Government
of the Republic of Serbia stated
that: under Article 16, par 2 of the FRY
Constitution, the international
treaties confirmed and published in
compliance with the constitution and
generally accepted rules of the
international law have become part of the
internal legal order; that the Security
Council of the United Nations, under
its Resolution 827, decided in 1993 to
found a court officially entitled "
The International Court for Criminal
Prosecution of Persons Responsible for
Grave Violations of the International
Humanitarian Law Committed in the
Territory of Former Yugoslavia between 1
January 1991 till the date to be
subsequently established by the Security
Council once peace shall have been
reestablished"; that the Security Council
approved Statute of the Court at
the same session; that FR of Yugoslavia,
as a member of the United Nations
and signatory of the UN Charter, is bound
to cooperate with the
International Criminal Tribunal in the
Hague; that by virtue of Article 25
of the UN Charter the member states
agreed to accept and enforce the
decisions of the Security Council in
keeping with the Charter; that all the
resolutions of the Security Council and
particularly those approved further
to Chapter VII of the Charter (hence the
Resolution 827 of the United
Nations of 1993) are binding on all the
UN members, including the Federal
Republic of Yugoslavia; that,
consequently, the obligation of FR of
Yugoslavia to cooperate with the
International Criminal Tribunal in the
Hague is inbuilt in the UN Charter,
Resolution 827 of the Security Council,
Statute and Rules of Procedure of that
court; that Article 17 par 3 of the
Constitution of FRY, which provides that
no Yugoslav citizen may be deprived
of his citizenship, expelled from his
country or extradited to another
country prohibits the extradition of local
residents to a foreign state,
but not the extradition of the Yugoslav
citizens to the International
Criminal Tribunal; that FR of Yugoslavia
ratified the Rome Statute of the
International Criminal Court in June 2001,
which should be taken into
account and that the provision of Article
80 of the Rome Statute anticipated
the obligation of the state parties to
extradite own nationals to that
Court, and that on the occasion of
ratification of that Statute the issue of
non compliance thereof with the
Constitution of FR Yugoslavia was raised;
that on the above grounds the contested
Decision of the Government of the
Republic of Serbia, having envisaged the
application of the Statute and
Rules of the International Criminal
Tribunal in the Hague is not contrary to
Article 17, par 3 of the Constitution of
FR Yugoslavia; that the confirmed
and published international treaties and
generally accepted rules of the
international law are in legal force under
Article 124 par 1 point 2) of the
Constitution of FRY which supersedes the
federal laws, hence the Criminal
Process Law, alike; that in view of the
above stated, it ensues that the
cooperation with the international
Criminal Tribunal in the Hague may
proceed even directly, by virtue of the
Statute and Rules of that tribunal,
as recognized by the contested Decision;
that in view of the fact that FR of
Yugoslavia, failed to abide by its
international obligations via its organs,
and cooperate with the International
Criminal Tribunal in the Hague; that
failure to comply with the international
obligations, particularly the ones
based on the UN SC Resolutions entails
serious consequences, which threaten
the interest of the republic of Serbia, as
a constituent republic of FR
Yugoslavia; the Government of the Republic
of Serbia was compelled to enact
the contested Decision to protect the
interest of the Republic of Serbia,
acting under the provisions of Article
135, par 2 of the Constitution of the
Republic of Serbia, which provides that
the organs of the Republic of Serbia
shall apply the procedure defined in the
Statute and the Rules of the
International Criminal Tribunal in the
Hague, since Article 135 par 2 of the
Constitution of the Republic of Serbia
stipulates that the republic
authorities shall enact the acts for the
protection of interest of the
Republic of Serbia in case that the acts
of the federal authorities (which
include non doing, namely non
implementation of the international
obligations) threaten its interests; and
that the contested Decision of the
Government of the Republic of Serbia only
effectuated the obligation
enshrined in the Constitution of the
Republic of Serbia.
4. The Contested Decision of the
Government of the Republic of
Serbia stipulated that in the enforcement
of the obligations and generally
accepted rules of the international law on
the activity of the International
tribunal for the criminal prosecution of
the persons responsible for serious
violations of the international
humanitarian law perpetrated in the
territory of former Yugoslavia since 1991
the authorities of the Republic of
Serbia shall follow the procedure set out
in the Statute and Rule of
procedure and evidence of that Tribunal
and that the stated Decision shall
become effective as of the date of its
publication in the "Official Gazette
of RS".
The provisions of Article 29 of
the Statute of the International
Tribunal for criminal prosecution of
persons responsible for grave
violations of the international
humanitarian law committed in the
territory
of former Yugoslavia since 1991
(hereinafter: The International Tribunal)
set out that: the states shall cooperate
with the International Tribunal in
investigation and criminal persecution of
persons indicted for serious
violations of the international
humanitarian law, that the states shall,
without unnecessary delay, gratify any
request for assistance or order of
the trial chamber, including inter alia
also (a) identification and location
of temporary residence of the persons; (b)
taking of statements and finding
evidence;(c) submission of documents;
(d)transfer of convicts or extradition
to the International Tribunal.
The provisions of Article 58 of
the Rules on Proceedings and
Evidence of the International Tribunal
stipulated the following:" The
obligations contained in Article 29 of the
Statute shall prevail over any
legal obstacles to extradition or transfer
of the indicted or witnesses to
the International Tribunal existing in the
national legislations or
international treaties on extradition
signed by the state concerned".
Hence, the contested Decision
implies that the Government of the
Republic of Serbia ordered, under that
Decision, to all the organs of the
Republic of Serbia, to act under the
procedure set out in the stated Statute
and Rules of Proceedings of the
International Tribunal, if such Tribunal
shall have submitted the request, despite
the fact that the Statute and Rule
of Proceedings and Evidence, even if they
were international legal acts with
the binding norms, are not implemented
into the legal system of FR of
Yugoslavia by the competent federal
authority in the manner provided for in
the Constitution of FRY. The Statute and
Rule of Proceedings and Evidence of
the International Tribunal were not even
published as are general acts of
the national law or international law
which by ratification by the competent
authority became part of the local law,
which based on Article 176 of the
Constitution of FRY is a condition for
enforcement of any general act.
5. The provisions of the
Constitution of FRY set out that: the
constituent republic shall be sovereign in
all the matters which were not
tackled by the Constitution of FRY as
falling within the competence of the
Federal Republic of Yugoslavia, and that
the constituent Republic shall
autonomously regulate its governance under
its own Constitution(Article 6,
par 2 and 3); that the executive and
judicial branches are bound under the
law which must comply with the
Constitution (Article 9 par 2 and 3); that
the power in the Federal Republic of
Yugoslavia is organized on the
principle of division to legislative,
executive and judicial branches
(Article 12); that the Federal Republic of
Yugoslavia has fulfilled its
obligations under the international
treaties signed in good faith and that
the international treaties, confirmed and
published are in line with the
constitution and generally accepted rules
of the international law the
integral parts of the internal legal
system (Article 16); that no Yugoslav
citizen may be deprived of its
citizenship or extradited to another state
(Article 17); that everybody is entitled
to personal freedom and no one may
be deprived of his freedom, except in case
and under the procedure defined
under the federal law and that illegal
deprivation of freedom shall be
punishable (Article 23, par.1, 2 and 6);
that everyone shall be entitled to
equal protection of his rights under the
legally defined procedure ( Article
26, par.1)that no one may be punished for
an offence which before its
commission was not envisaged under the law
or regulation stemming from the
law as a punishable offence, or may a
sentence be pronounced which was not
envisaged for such an act (Article 27, par
1); that no one may be sentenced
again or punished for an offence if the
proceedings were legally suspended,
or the incrimination against him was duly
dismissed, or if he was acquitted
or sentenced under the final decision
(Article 28); that an expatriate may
be extradited to another state only in
cases anticipated under the
international treaties binding on the
Federal Republic of Yugoslavia and
that the right to asylum is guaranteed to
a foreign citizen and stateless
person who is prosecuted for his advocacy
of democratic views and for
participation in the movements for social
and national liberation, for
freedom and rights of human personality or
for freedom of scientific or
artistic creation (Article 66 par 2 and
3); that only the law may prescribe
the manner of accomplishment of individual
freedoms and rights of man and
citizen when so set out under the
Constitution of FRY or when necessary for
their implementation and that the freedoms
and rights recognized and
guaranteed under the Constitution of FRY
shall enjoy court protection
(Article 67 par 2 and 4).
The provisions of Chapters XXX
and XXXI of the Criminal Process
Law ("Official Gazette of FRY" No. 4/77,
14/85, 74/87, 57/89, 3/90 and
"Official Gazette of FRY" No.27/92 and
24/94) the procedure for
international legal assistance and
enforcement of international treaties in
criminal matters as well as the procedure
for extradition of the indicted
and sentenced persons. Those provisions,
inter alia, prescribed territorial
and actual jurisdiction of the local
courts and other state authorities in
the proceedings requested by a foreign
authority and also in cases when the
requests concerns criminal act for which
under the local regulations no
extradition is allowed, even if the
presumptions for extradition of
incriminated or convicted individuals was
set out, namely that a person
whose surrender is requested is not the
Yugoslav citizen and that the
competent court shall rule on the
requested extradition of the requested
person.
Even the Criminal Process Law
("Official Gazette of FRY" No.70/01)
which shall become effective on 29 March
2002, also proscribed as one of the
presumptions for extradition (surrender)
of incriminated and convicted
persons, that the person requested is no
Yugoslav citizen while the other
conditions for extradition and procedure
for the same are almost identical
as in the old law.
6. The Federal Constitutional
Court, starting from the quoted
provisions of the Constitution of FRY and
the Criminal Process Law, found
that the contested Decision is not in
compliance with the Constitution of
FRY and the Criminal Process Law.
1) Firstly, the contested Decision is
not in compliance with the
Constitution of FRY, because it governs
the procedure (manner) of exercising
individual human and civil rights set out
in the Constitution of FRY but it
is void of power. Namely, by virtue of the
provision of Article 67 par 2 of
the Constitution of FRY, only law can
prescribe the manner (procedure) of
exercising individual human and civil
freedoms and rights provided only that
it has been stipulated by the Constitution
of FRY or when required for their
exercise. The provision of Article 26, par
1 of the Constitution of FRY
further set out that any one has the right
to equal protection of its rights
in the legally prescribed process.
However, the Government of the Republic
of Serbia, as an authority of executive
power, stipulated in a secondary
legal act the manner (procedure) of
exercise, limitation and protection of
individual human and civil rights and
freedom, despite the fact that such
issues are governed by the Criminal
Process Law by the defined legislative
authorities under the Constitution, such
as: arrest or detention of persons;
time for issuance of decision on
detention; appeal to the decision on
detention; timeframe for issuance of
decision on the complaint; duration on
the detention; transfer of the
incriminated and sentenced and the
similar.
In the same vein the Constitution of FRY
stipulates that everyone shall be
entitled to personal freedom and that no
one may be deprived of freedom
except in the cases and under the
procedure established by the federal law
(Article 23). Consequently, any
apprehension of an individual based on the
contested Decision would constitute
violation of the mentioned Article of
the Constitution.
Having prescribed the application of the
Statute of the International
Tribunal and its Rules of Proceedings and
Evidence of that court by the
courts and other state authorities of the
Republic of Serbia, the Government
of the Republic of Serbia overstepped its
authorities conferred by the
Constitution as an executive body of
authority of one republic constituent
of FRY. Because, confirmation of the
international legal acts and their
integration into the internal legal
system, further to Article 78 of the
Constitution of FRY, falls exclusively
within the competence of the Federal
Parliament as legislative and
representative authority of the citizens
of FR
of Yugoslavia and its constituent
republics. Moreover, obligatory
application of the Statute and the Rules
of Proceedings and Evidence of the
International Tribunal which were not even
published in the official gazette
is also inconsistent with Article 116 of
the Constitution of FRY, which says
that laws, other regulations and general
acts become enforceable on the
eighth day of their publication, at the
earliest, except when due to
specific reasons defined when enacted, it
shall stipulate an earlier date of
enforcement.
2) Apart from the above stated non
compliance with the Constitution of
FRY, the contested Decision is contrary to
the Constitution because it
opened up the possibility of extradition
of Yugoslav citizens outside the
area of territorial jurisdiction of the
Yugoslav justice and other state
authorities, despite the fact that the
Constitution of FRY in its Article
17, par 3 such a possibility is expressly
prohibited. Contrary to that,
foreign citizens may be extradited but
only in the cases and under the
procedure set out in the Constitution of
FRY, the Criminal Process Law and
international treaties. The Federal
Constitutional Court is of the view that
the Constitution of FRY, namely its
Article 17, par 3 prohibits the
extradition of the Yugoslav citizens
irrespective of whether the request for
extradition is submitted by an ad hoc body
with judicial function which was
established of the Constitution of FRY by
an act of the international
organization, namely its organ, because
the provisions of the Constitution
of FRY, as the basic law of the FR of
Yugoslavia, in the hierarchy of legal
regulations, is the norm of the highest
legal strength.
This legal standpoint was explicated in
detailed by the Federal
Constitutional Court in its Decision No.
IV ? No.103/01 to 138/01, 150/01
and 152/01 dated 6 November 2001.
3) Under the provisions of Article 16
of the Constitution of FRY the
international agreements confirmed and
published in keeping with the
Constitution and generally accepted rules
of the international law, are the
integral parts of the internal legal
system. Therefore the international
treaties and generally accepted rules of
the international law, in their
legal strength in the legal system of FRY
supersede the federal law.
Within this context in the judgment of the
Federal Constitutional Court it
is necessary to make a distinction between
the obligations of states towards
the international community as a whole and
the international obligations
towards an individual state or groups of
states. The confirmed and published
international treaties represent an
international obligation of FRY beyond
any doubt to all the states signatories
thereof (they act inter partes)
while the generally accepted rules of the
international law concern all the
states in the international legal system
ad all the personalities of the
international law are bound and have
interest to protect the (the rules of
ius cogens have effect as erga omnes).
Besides, in the case of noncompliance
with the international legal norms, the
sanctions will be primarily of legal
nature unlike political agreements where
sanctions will not be legal but
political or otherwise.
Generally accepted rules of the
international law constitute legal
principles and norms derived from common
rules that are shared by all the
states or known in most of the legal
systems of the world. Such rules have
general, absolute and objective character.
But, they have dynamic character
too, namely they are permanently evolving.
In this context, opinion differ
as to their identification, scope but also
the character of their change,
both in practice of states and
international organizations and in the
doctrine of the international law. Higher
is the consent of their
identification, particularly in the
process law, as are the principles: "
reasonable time frame", "fair trial"
"degrading treatment", "unilateral
apprehension", "assumption of innocence",
"timely pronunciation of
judgment", "right to appeal" and other
general principle of court
proceedings.
The Federal Constitutional Court, starting
from the character of the very
contested act, its contents and maker, is
not involved in the procedure of
ruling on its constitutionality and
legality in the reasoning and approving
the final legal standpoints about the
legal nature of the International
Criminal Tribunal, or the procedure of
performance of obligations
established in the Resolution of the
Security Council. In that sense the
Federal Constitutional Court is of the
view that the concrete constitutional
dispute is of no decisive importance,
otherwise a major issue, whether the
Security Council as one of the main bodies
of the United Nations under the
Charter of UN, and which is primarily
responsible to maintain international
peace and security and which in performing
this duty has to act in
compliance with objectives and principles
of United Nations (Article 24 of
the Charter), by establishing the
International Criminal Tribunal acted in
keeping with the UN Character or
overstepped its powers, namely acted ultra
vires. Also, whether the establishment of
the International Criminal
Tribunal, as an ad hoc measure should, via
criminal prosecution of
individuals responsible of grave
violations of the international
humanitarian law, enable reestablishment
of peace disturbed in the territory
of former SFRY and its maintenance, in
keeping with the measures that the
Security Council may pass with the view of
maintaining international peace
and security in keeping with the Charter
and Rules of order of the Security
Council.
The Federal Constitutional Court is of the
view that the Resolution of the
Security Council No.827 on the
establishment of the International
Criminal
Tribunal does not fall in the
international law, which makes an integral
part of the internal legal system under
Article 16 of the Constitution of
FRY. This is because an ad hoc measure
approved by the Security Council
under that Resolution- the establishment
of the International Criminal
Tribunal for criminal prosecution of
persons responsible for grave
violations of the international
humanitarian law - contains no
international
legal norms which produce 'legal validity'
namely which have "binding legal
strength". Without such properties, this
resolution represents but a
political act which produces political
obligations, but the legal validity
of which is achieved only by giving it
legal strength by the legitimate and
legal organ in the individual legal system
of each country. The Court is
also of the view that there is another
possibility, customary in creating
obligatory international legal acts:
signing and ratification of
international treaties and
inter-governmental treaties as was done in
the
case of the Rome Statute of the
International Criminal Curt, approved in
17
July 1998 in Rome.
Namely, member states of the United
Nations, having accepted the
Charter, consented to legal validity of
all its norms and legal acts enacted
by the UN organs, in keeping with and in
the manner anticipated under that
Charter. However, the Federal
Constitutional Court is of the view that
member states have not vested to UN bodies
the judicial powers, naturally,
except those explicitly laid down in the
Statute of the International Court
of Justice, foreseen in Chapter XIV of the
Charter, This is not the case of
the International Criminal tribunal. That
is the very reason why the
Security Council in the relevant
resolution 827 in point 4 anticipated, in
the judgment of this Court, political
obligation of all the UN members
states "to fully cooperate with the
international criminal tribunal
and....all the states take adequate
measures in line with their national
legislation to implement the provisions"
of that Resolution. Hence, only in
legal procedure of translating the
obligations under the mentioned
Resolution of Security Council into the
legal norm in keeping with the
national legislation of individual states
the Statute and the Rules of the
International Criminal Tribunal can obtain
normative character, which
produces legal validity. Without it, the
Resolution of the Security Council
is but a particular political obligation,
the observance of which, may cause
very serious consequences on individual
states.
4) Legal acts of the Federal government
or the governments of the
republics as well as the federal and
republic laws that contain legal
regulations contrary to the Constitution
of FRY ate not in compliance with
the Constitution of FRY. Neither the
legal act confirming or assuming
international obligations is part of the
internal legal system unless
enacted in keeping with the Constitution
of FRY. Even if the Statute and the
Rules of the International Tribunal were
enacted in line with the
authorization of the Security Council
established under the Charter of the
United Nations they were not ex lege
integral part of the internal law, nor
as such supersede the Constitution,
confirmed and published international
treaty and the law. Cooperation of FR of
Yugoslavia, even cooperation of a
constituent republic with the
International Tribunal, may legally
proceed
when the acts of the international
authorities implemented into the legal
system of the country in keeping with the
basic law of the country that
concerns certain international
obligations. That is why the member states
of
the United Nations, that have or may have
the obligations towards the
International Tribunal, enacted special
laws on cooperation and procedure in
such cooperation. Some of such states
changed their constitutions to legally
enable extradition of their citizens to
the mentioned tribunal (e.g.
Republic of Croatia), while other have
enacted act of cooperation without
extradition of their citizens to the
tribunal because there is no such a
possibility under their respective
constitution (e.g. Germany). Such
actions indicates beyond doubt that UN
member states are not of the view
that the UN SC Resolution 827 establishing
the international criminal
tribunal or the Statute and the Rules of
that tribunal are the integral part
of the internal law. That international
practice of implementation of the
mentioned Resolution of the Security
Council testifies to the fact that the
acts of the competent state authorities,
enabling the implementation of the
Resolution, Statute and the Rules of the
International Tribunal must be
enacted in compliance with the
constitution of the UN member states in
formal and material terms and that the
acts of the Security Council, due to
that fact, have no legal merit for direct
implementation by the bare fact of
their adoption. Their implementation into
the legal system of every UN
member state must be decided in the
constitutionally prescribed manner of
such a state by the designated competent
authority.
5) The Federal Constitutional Court is
of the view that it need be said
that the contested Decision did
anticipated no procedure for enforcement
of
the obligation which the Republic of
Serbia is to effect towards the
Tribunal. Nonexistence of the procedure
for enforcement of the acts
anticipated under Article 29 of the
Statute of the International Tribunal
resulted and may result in violation
namely non-observance of basic human
rights of the accused or potential
witnesses before the Tribunal, as absence
of any rules in the process of
identification and establishment of
residence
of the indicted and other persons
implicated, in obtaining the statement by
the indicted, witnesses and tracing the
evidence, submission of documents of
evidence, apprehension and detention of
the indicted, relocation of the
convicts or extradition (surrender) of the
indicted to the International
Tribunal. Without such a procedure, which
as was mentioned above, other UN
member states have regulated in keeping
with their national legislation, the
citizens of FRY, but other persons in the
territory of FRY affected by the
contested Decision may be deprived of the
protection of their fundamental
human and civil rights, guaranteed, apart
from FRY Constitution also by
international conventions making up the
generally accepted rules of the
international law.
Thus, Article 9 of the International
Covenant of civic and political rights
(ratified by FRY and published in the
"Official Gazette of SFRY" No. 17/71
explicitly set out that no body may be
deprived of freedom except on the
grounds and in keeping with the procedure
under the law. The same Article
the Covenant guarantees the right to every
detainee to be informed at the
moment of apprehension of the reason
thereof, and at the shortest possible
notice in writing, of each charge against
him. Every apprehended person
must be surrendered to the judicial or
another authority within the shortest
period practicable, which is authorized
under the law to execute judicial
authority, provided however it shall have
the right to file a complaint to
the court about the legality of
apprehension (pronunciation of detention)
and that such a court shall be obliged to
issue ruling on such a complaint
without delay.
Non-existence of the prearranged
procedure for cooperation with
the International Tribunal is contrary to
Article 5 of the European
Convention on the protection of human
rights and fundamental freedom, which
is the basic document of the Council of
Europe. Despite the fact that FRY is
not a member of The Council of Europe or
is a signatory to the Convention,
the same establishes the legal standards,
which make the generally accepted
rules of the international law. The stated
Article 5 of the Convention
guarantees the right that apprehension of
any individual may be foreseen
only in special cases, in keeping with the
procedure prescribed by the law.
Apprehension, under the Convention, shall
be possible only if undertaken
with the view of taking the person to the
competent court authority and
every apprehended person must be
immediately taken before the judge or
another authority authorized by the law to
carry out the judicial
authorities.
In view of the above the Court
found that the Decision of the
Government of the Republic of Serbia is
not in compliance with either the
international conventions which guarantee
and protect human and civic rights
and fundamental freedoms, particularly
with the provisions governing the
legal institute of Habeas Corpus
inalienability of personal freedom.
7. Although irrelevant for the assessment
of constitutionality of the
contested Decision and its compliance with
the federal law, the fact that
legal merit for enactment of the contested
Decision is derived from Article
135 par 2 of the Constitution of the
Republic of Serbia, as stated in the
reply of the government of the Republic of
Serbia, according to the Federal
Constitutional Court, has no significance
attached. Namely, that provision
of the Constitution of the Republic of
Serbia provided for the protection of
interests of the Republic of Serbia which
were established under the former
Constitution of the then Socialist Federal
Republic of Yugoslavia, as a
multi-member Federation, but not the
protection of interest determined under
the Constitution of the Federal Republic
of Yugoslavia. By the way, the
mentioned Article of the Constitution of
the Republic of Serbia, explicitly
says that Republic of Serbia "is within
the Socialist Federal Republic of
Yugoslavia" as well as that it shall be
entitled "to enact the acts for the
protection of interest of the Republic of
Serbia under its own constitution"
, when "the acts of the federal
authorities or acts of another Republic,
contrary to the rights and obligations it
has under the Constitution of the
Socialist Federal Republic of Yugoslavia,
undermines the equality of the
Republic of Serbia, or otherwise threaten
its interest, whereby no
compensation is provided."
The provisions of Article 135 of the
Constitution of the Republic of Serbia
may be no legal merit for the organs of
the Republic of Serbia for non
observance of the Constitution of FRY and
organs of the Federal Republic of
Yugoslavia, namely enactment of the acts
for the protection of interest of
the Republic of Serbia, because under the
Constitution of FRY in force the
set protection mechanisms of the interests
of constituent republics as well
as the competent authorities which secure
those interest (two-chamber
decision making in the Federal
Parliament), the constitutional status of
the
Chamber of republics, the Supreme Defense
Council, the rule that the
president of the Republic and president of
the Federal Government are not
from the same member republic, etc.). Such
a ruling of the Court, in the
given case, does not mean that the Court
is of the view that non compliance
of individual provisions of the
constitutions of the member republics with
the Constitution of FRY, either in line
with the principle of the rule of
law and single legal order in the Federal
Republic of Yugoslavia.
II
8. The Federal Constitutional
Court, by virtue of the provisions
of Article 124 par 1 item 2) and 3) and
Article 68 par 1 item 2) and 4) of
the Law on the Federal Constitutional
Court ("Official Gazette of FRY" No,
36/92, at its session of 26 March 2002, by
majority vote approved the
following
Decision
It has been found that the
Decision of the Government of the
Republic of Serbia, 05 no.713-6483/2001 of
28 June 2001 ("Official Gazette
of RS" No. 37/2001) is not in compliance
with the Constitution of FRY and
the Criminal Process Law ("Official
Gazette if SFRY" No.4/77, 14/85. 74/87.
57/89, 3/90 and the "Official Gazette FRY"
No. 27/92 and 24/94).
The Federal Constitutional Court
passed this Decision in
attendance of: acting President of the
Federal Constitutional Court Judge
Milan Vesovic and Judges: Milorad Gogic,
prof.dr.Momcilo Grubac, Milomir
Jakovlejvic, LLD, Veselin lekic and
Aleksandar Simic.
Judge Prof.Dr/ Momcilo Grubac
dissented.
III U No/139/01. 151/01. 154/01 Acting
President
168/01 and 242/01
Federal Constitutional Court
26 March 2002
Judge Milan Vesovic, sgd
Belgrade
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