DECISION OF THE FEDERAL CONSTITUTIONAL COURT
Here is the second part of the text.
The first has been already distributed - see
http://groups.yahoo.com/group/crj-mailinglist/message/1554
The third - and last - follows in a subsequent posting.
===*===
After it was made on November 6, the Decision of the Federal
Constitutional Court on unconstitutionality of the the Federal
Government's Decree on cooperation with the so-called tribunal in the
Hague has finally been published. Here is an unofficial English
translation of it.
OFFICIAL GAZETTE OF FRY, No.70/01, December 28, 2001
(...) [for the first part see:
http://groups.yahoo.com/group/crj-mailinglist/message/1554%5d
III
1. The Federal Government regulated in
the contested Decree the procedure
for cooperation of the Federal Republic
of Yugoslavia with the International
Criminal Tribunal in criminal prosecution
of individuals responsible for
grave crimes against the international
humanitarian law perpetrated in the
territory of ex-Yugoslavia since
1991(hereinafter: the International
Criminal Tribunal) and performance of
obligations of FRY stemming from the
Security Council Resolution 827(1993) and
the Statute of the International
Criminal Tribunal.
The Decree covered, inter alia: transfer
of criminal proceedings held in the
national courts to the International
Criminal Tribunal if so requested;
proceedings and jurisdiction of courts
and other authorities for decision
making in such matters (Article 12 ad
13): the proceedings in national
courts after the transfer of the
proceedings to the International Criminal
Tribunal (Article 14): the possibility of
extradition of all the accused
(foreigners and Yugoslav citizens) to the
jurisdiction of the International
Criminal Tribunal and its investigation
bodies to undertake activities in
the Federal Republic of
Yugoslavia(Articles 9 and 10); legal
assistance to
the International Criminal Tribunal,
including granting of transit of the
Yugoslav citizens through the territory
if the Federal Republic of
Yugoslavia( Articles 18 and 19) and
others. The Decree contains references
to the application of the Statute of the
International Criminal Tribunal and
its Rules of Procedure and Evidence, to
be applied by judicial and other
authorities in the Federal Republic of
Yugoslavia (Articles l, 2, 6, 12 and 17).
2. The provisions of Constitution of FRY
provided for the following: power
in the Federal Republic of Yugoslavia is
organized along the principle of
division of legislative, executive and
judicial power (Article 12); the
executive and judicial power are bound by
the laws, which are in compliance
with the Constitution (Article 9, pars 2
and 3); the Federal Republic of
Yugoslavia honors in good faith, the
obligations under the international
treaties to which is a party, and the
international treaties ratified and
published in keeping with the
Constitution and generally accepted rules
of the international law that are an
integral part of the national legal system
(Article 16); a constituent republic is
sovereign in those matters not
covered by the Constitution of FRY as
competences of the Federal Republic of
Yugoslavia and that a constituent
republic may independently regulate its
governance under its own Constitution
(Article 6, pars 2 and 3); that no
Yugoslav citizen may be deprived of its
citizenship, expelled from his
country, or extradited to another
state(Article 17, par 3); that everyone
is entitle to personal freedom and no one
may be apprehended except in the
cases processed under the federal law and
that illegal apprehension is
punishable (Article 23, pars 1,2, and 6);
that everyone is entitled to equal
protection of his/her rights in legally
determined procedure (Article 26,
par 1); that no one may be punished for
any offense before it had been
perpetrated, was not set out in the law
or regulation based on the law as a
punishable offence, nor may be sentenced
to the term which was not legally
stipulated for such an offense (Article
27, par 1); that no one may be
repeatedly sentenced or punished for an
offense in the case finally
suspended or the indictment finally
dismissed or if he/she finally
acquitted or sentenced (Article 28); that
a foreigner may be extradited to
another state only in the cases
stipulated in the international treaties
which are binding on the Federal Republic
of Yugoslavia, and that the right
to asylum is guaranteed to a foreign
national and a person without
citizenship persecuted due to democratic
views and on the grounds of his/her
participation in the movements for social
and national liberations, for
freedom and rights of a human being, or
for freedom of scientific or
artistic creative work (Article 66, pars
2 and 3); that only law may
stipulate the ways of realization of
individual freedoms and rights of man
and citizens when so stipulated under the
Constitution of FRY or necessary
for their realization and that freedoms
and rights recognized and guaranteed
by the Constitution of FRY enjoy judicial
protection (Article 67, pars. 2
and 4); as well as that the Federal
Government may enact the decrees,
decisions and other instruments for
implementation of the federal laws and
other regulations and general enactments
of the Federal Parliament (Article
99, par 1, item 4) .
The provisions of Chapters XXX and XXXI
of the Law on Criminal Proceedings
(Official Gazette of FRY Nos.4/77,
14/85,54/87,57/89,3/90 and Official
Gazette of FRY Nos. 27/92 and 24/94)
stipulated the procedure for
international legal assistance and
performance under the international
treaties in criminal matters as well as
the procedure for the extradition of
the accused and sentenced individuals.
Those provisions, inter alia,
stipulated territorial and actual
jurisdiction of national courts and other
state authorities in the procedure on the
request of the foreign authority
and even in case when the request
concerns criminal offence which under the
national regulations no extradition is
allows; that one of the conditions
for extradition of the accused or
sentenced individuals is that such an
individual is no Yugoslav citizen as well
as that the requested extradition
of any individual shall have been ruled
by the competent court.
3. The Federal Constitutional Court,
starting from the above stated
provisions of the Constitution of FRY and
the Law on Criminal Proceedings
finds that the contested Decree does not
comply with the Constitution and
the Law on Criminal Proceedings.
To begin with, the contested Decree is
not in compliance with the
Constitution of FRY because it regulated
the procedure (means) of
realization of individual freedoms and
rights of a man and citizen
determined under the Constitution of FRY
by the competent authority. Namely,
further to the provisions of Article 67,
par 2, of the Constitution of FRY
the manner (procedure) of implementation
of individual freedoms and human
and civil rights may be stipulated by the
law only, provided however, that
this possibility is anticipated in the
Constitution of FRY or when it is
necessary for their implementation. The
provisions of Article 26, par 1 of
the Constitution of FRY it was further
laid down that everyone is entitled
to equal protection of its rights in the
legally prescribed procedure. By
the contested Decree the Federal
Government as the executive authority,
having regulated the possibility and the
procedure for transfer of criminal
proceedings underway in the national
court to the International Criminal
Tribunal at its request, having regulated
the application of the provisions
of the Chapter XXXI of the Law on
Criminal Proceedings which covers also
apprehension of the individual requested
to be extradited to the
International Criminal Tribunal, having
regulated the power of the
International Criminal Tribunal to
undertake investigation activities
against the individuals in the territory
of FRY, actually regulated the
manner (procedure) of realization,
limitation and protection of individual
freedoms and human and civil by a by-law.
The law only, as was already
mentioned, may regulate such a procedure,
enacted by legislative power,
which was done in the matters of criminal
legal protection under the law on
Criminal Proceedings.
The contested Decree of the Federal
Government regulated apart from the
procedure also the jurisdiction and
composition of courts and jurisdiction
of governments in constituent republics
to decide on the requests of the
International Criminal Tribunal despite
the fact that further to Article 6
of the Constitution of FRY a constituent
republic may autonomously regulate
governance and competences of its own
authorities.
Having stipulated the application of the
Statute of the International
Criminal Tribunal and its Rules of
Procedure and Evidence by the Courts and
other authorities in FRY the Federal
Government overstepped its
constitutional powers of the executive
branch because confirmation of the
International legal acts and their
integration into the internal legal
system falls within the exclusive purview
of the Federal Parliament, under
Article 78 of the Constitution of FRY, as
legislative and representative
body of the citizens of Yugoslavia and
her constituent republics.
Apart from the stated non-constitutionality
the disputed Decree is further
in conflict with the Constitution of FRY
because it regulates the
possibility of extradition of the
Yugoslav citizens even outside the area
of territorial jurisdiction and Yugoslav
judicial and other state authorities
although the Constitution of FRY in its
Article 17, par.3 explicitly bans
such a possibility in the case of
Yugoslav citizens. A foreign citizen may
be extradited only in the cases and under
the procedure stipulated in the
Constitution of FRY, the Law on Criminal
Proceeding and international
treaties. The Federal Constitutional
Court finds that the Constitution of
FRY, namely the mentioned Article 17 par
3, no extradition of the Yugoslav
citizens outside the sovereign territory
of the Federal Republic of
Yugoslavia irrespective whether the
request for extradition was submitted by
the court established by one state or
several states under an international
treaty or under the instrument of an
international organization, because the
provisions of the Constitution of FRY as
the basic law in FR Yugoslavia in
the hierarchy of legal regulations are
the norms of the highest legal
priority and therefore any other general
norms, including published
international treaties must comply with
its provisions.
The legal instruments of the federal and
republic governments, federal and
republic laws containing legal solutions
in conflict with the constitutional
provisions cannot stand in harmony with
the Constitution of FRY. Neither the
federal laws confirming the International
treaties can be in compliance if
such treaties contain provisions contrary
to the Constitution of FRY. Only
an act of legal strength equal to
constitution may change the
constitutional
provisions, specifically those relating
to human and civil rights such as
the provision of Article 17, par 3
prohibiting deprivation of citizenship,
expulsion from the country or extradition
of a Yugoslav citizen to others.
Since this provision is located within
the basic provisions of the
Constitution of FRY, the Federal
Constitutional Court submits that it
acknowledges and guarantees human and
civil rights and freedoms and citizens
in FR of Yugoslavia in keeping with the
Universal declaration on human
rights. The same goes for the possibility
provided for by the Decree if the
permission for transit of the Yugoslav
nationals through the territory of
the Federal Republic of Yugoslavia at the
request of the International
Criminal Tribunal. The Federal
Constitutional Court is competent to rule
whether any of the general norms are in
compliance with the Constitution of
FRY or not, and its rulings are generally
binding and final, with the legal
consequences set out in the Constitution
of FRY and the Law on the Federal
Constitutional Court.
The Federal Constitutional Court,
starting from the nature of the legal
instrument, its substance and
promulgator, has not gone deeper into
structuring the final legal views on the
manner of the implementation of the
Decree, legal nature or the manner of
honoring the obligations created by
the establishment of the International
Criminal Tribunal under the Security
Council Resolution. Consequently, the
Federal Constitutional Court in this
Decision provided no complete replies to
the question: did the Security
Council, as one of the main bodies of the
United Nations, laid down in the
Charter, and primarily responsible for
maintenance of international peace
and security, and which in performing
that mandate must act in conformity
with the goals and principles of United
Nations (Article 24 of the Charter),
in establishing the International
Criminal Tribunal acted in keeping with
the United Nations Charter or overstepped
its powers, namely acted ultra
virus; whether the establishment of the
International Criminal Tribunal, as
an ad hoc measure which should though
criminal prosecution of the
individuals responsible for grave
violations of the international
humanitarian law, enable reestablishment
of peace in the territory of former
SFRY and its maintenance, in keeping with
the measures that the Security
Council may take as conducive to the
maintenance of the international peace
and security, in conformity with the
Charter and its own Rules of Procedure;
whether and in what way is FR of
Yugoslavia bound, as member of United
Nations, to cooperate with the
International Criminal Tribunal, which is not
a court authority envisaged by the United
Nations Charter, unlike the
International Court of Justice,
anticipated in Chapter XIV of the Charter,
but "a measure" of the Security Council;
whether the acts and measures of
the Security Council taken with reference
to the Charter of the United
Nations have the same force as the
Charter itself (whether they are its
integral part?); how to proceed under the
Statute and other by-laws of that
Tribunal, without harmonization of the
internal law with their substance;
whether the Statute and the Rules of the
Tribunal are based on generally
accepted principles and rules of
international law and particularly on the
rules on the function of the prosecutor
in the proceedings, ban of renewed
trial in the same case, detention,
duration of which is not limited, the so
called covert indictments, anonymous
witnesses, duration of the imprisonment
term, extradition of nationals etc.;
whether priority of legal instruments
exists in the hierarchy of international
law and whether the acts of the
United Nations bodies must be in
conformity with the Charter of the United
Nations, and which body and in which
procedure determines that concord; that
the members of the United Nations are
obliged to enforce the instruments of
UN only if they were adopted in
conformity with the Charter of the United
Nations, which member states accepted or
the obligation of the members
exists by the very act of acceptance of
the Charter, as a multinational
international treaty; whether some states
members of the United Nations,
which through their competent body,
adopted respective instruments on
cooperation with the International
Criminal Tribunal violated the Charter of
UN because they banned under these
instruments the extradition of their
nationals to that Court, because such
cooperation is prohibited by their
constitutions and why they had to adopt
such instruments if the Resolution
of the Security Council on the
establishment of the International Criminal
Tribunal 827 and the Statute of that
Court are integral parts of the
internal law of those states; why certain
member states of UN had to change
their constitutions which prohibited the
extradition of their nationals to
other states, to be able to pass the
instrument governing the cooperation
with the International Criminal Tribunal
which includes also the
extradition of their nationals to the
mentioned court, if the instruments of
the Security Council of the United
Nations, in the legal hierarchy have
priority over the constitutions of UN
member states, or have the same
strength, on the other hand; whether the
stated practice of these UN member
states clearly shows that the
constitution of UN member states are the
legal instruments with the highest legal
strength in every UN member state,
and that, consequently the instruments of
the competent state authorities
enabling the implementation of the
mentioned Resolution of the Security
Council and the Statute of the
International Criminal Tribunal, must be
approved in compliance with the
constitution of a member state, in formal
and material terms, and that the
instruments of the Security Council
therefore represent no legal merit for
direct implementation by the very
fact of their instruments, since every
UN member state has to make own
decision about their integration into the
legal system of every UN member
state, to determine, under its
constitution the competent authority and in
the prescribed manner; whether the act of
implementation/integration into
the national legal system passed by the
competent authority of UN member
state can set out the manner of
implementation of individual human rights
and freedom under the rules unpublished
and therefore inaccessible to a
citizen and man applicable to, despite
the fact that the constitution of
that state stipulated the publication of
all general norms as obligatory if
they constitute part of its legal order,
as is the case of the Constitution
of FR Yugoslavia; whether the
promulgation of an instrument for enforcement
of the mentioned Resolution and Statute
of the International Criminal
Tribunal would be in harmony with the
international treaties acceded to by
the UN member states and with the
generally accepted rule of international
law, and many other questions. This is
because the Federal Constitutional
Court submits that replies to all these
questions are irrelevant to the
Court ruling on constitutionality and
legality of the contested Decree.
Namely, the Federal Constitutional Court
in its proceedings determines, as a
preceding question, formal
constitutionality and legality of the contested
general legal instrument, e.g. whether it
was enacted by the competent
authority stipulated in the Constitution
of FRY, confirmed and published
international treaty and federal law.
(2/3 - continues)
Here is the second part of the text.
The first has been already distributed - see
http://groups.yahoo.com/group/crj-mailinglist/message/1554
The third - and last - follows in a subsequent posting.
===*===
After it was made on November 6, the Decision of the Federal
Constitutional Court on unconstitutionality of the the Federal
Government's Decree on cooperation with the so-called tribunal in the
Hague has finally been published. Here is an unofficial English
translation of it.
OFFICIAL GAZETTE OF FRY, No.70/01, December 28, 2001
(...) [for the first part see:
http://groups.yahoo.com/group/crj-mailinglist/message/1554%5d
III
1. The Federal Government regulated in
the contested Decree the procedure
for cooperation of the Federal Republic
of Yugoslavia with the International
Criminal Tribunal in criminal prosecution
of individuals responsible for
grave crimes against the international
humanitarian law perpetrated in the
territory of ex-Yugoslavia since
1991(hereinafter: the International
Criminal Tribunal) and performance of
obligations of FRY stemming from the
Security Council Resolution 827(1993) and
the Statute of the International
Criminal Tribunal.
The Decree covered, inter alia: transfer
of criminal proceedings held in the
national courts to the International
Criminal Tribunal if so requested;
proceedings and jurisdiction of courts
and other authorities for decision
making in such matters (Article 12 ad
13): the proceedings in national
courts after the transfer of the
proceedings to the International Criminal
Tribunal (Article 14): the possibility of
extradition of all the accused
(foreigners and Yugoslav citizens) to the
jurisdiction of the International
Criminal Tribunal and its investigation
bodies to undertake activities in
the Federal Republic of
Yugoslavia(Articles 9 and 10); legal
assistance to
the International Criminal Tribunal,
including granting of transit of the
Yugoslav citizens through the territory
if the Federal Republic of
Yugoslavia( Articles 18 and 19) and
others. The Decree contains references
to the application of the Statute of the
International Criminal Tribunal and
its Rules of Procedure and Evidence, to
be applied by judicial and other
authorities in the Federal Republic of
Yugoslavia (Articles l, 2, 6, 12 and 17).
2. The provisions of Constitution of FRY
provided for the following: power
in the Federal Republic of Yugoslavia is
organized along the principle of
division of legislative, executive and
judicial power (Article 12); the
executive and judicial power are bound by
the laws, which are in compliance
with the Constitution (Article 9, pars 2
and 3); the Federal Republic of
Yugoslavia honors in good faith, the
obligations under the international
treaties to which is a party, and the
international treaties ratified and
published in keeping with the
Constitution and generally accepted rules
of the international law that are an
integral part of the national legal system
(Article 16); a constituent republic is
sovereign in those matters not
covered by the Constitution of FRY as
competences of the Federal Republic of
Yugoslavia and that a constituent
republic may independently regulate its
governance under its own Constitution
(Article 6, pars 2 and 3); that no
Yugoslav citizen may be deprived of its
citizenship, expelled from his
country, or extradited to another
state(Article 17, par 3); that everyone
is entitle to personal freedom and no one
may be apprehended except in the
cases processed under the federal law and
that illegal apprehension is
punishable (Article 23, pars 1,2, and 6);
that everyone is entitled to equal
protection of his/her rights in legally
determined procedure (Article 26,
par 1); that no one may be punished for
any offense before it had been
perpetrated, was not set out in the law
or regulation based on the law as a
punishable offence, nor may be sentenced
to the term which was not legally
stipulated for such an offense (Article
27, par 1); that no one may be
repeatedly sentenced or punished for an
offense in the case finally
suspended or the indictment finally
dismissed or if he/she finally
acquitted or sentenced (Article 28); that
a foreigner may be extradited to
another state only in the cases
stipulated in the international treaties
which are binding on the Federal Republic
of Yugoslavia, and that the right
to asylum is guaranteed to a foreign
national and a person without
citizenship persecuted due to democratic
views and on the grounds of his/her
participation in the movements for social
and national liberations, for
freedom and rights of a human being, or
for freedom of scientific or
artistic creative work (Article 66, pars
2 and 3); that only law may
stipulate the ways of realization of
individual freedoms and rights of man
and citizens when so stipulated under the
Constitution of FRY or necessary
for their realization and that freedoms
and rights recognized and guaranteed
by the Constitution of FRY enjoy judicial
protection (Article 67, pars. 2
and 4); as well as that the Federal
Government may enact the decrees,
decisions and other instruments for
implementation of the federal laws and
other regulations and general enactments
of the Federal Parliament (Article
99, par 1, item 4) .
The provisions of Chapters XXX and XXXI
of the Law on Criminal Proceedings
(Official Gazette of FRY Nos.4/77,
14/85,54/87,57/89,3/90 and Official
Gazette of FRY Nos. 27/92 and 24/94)
stipulated the procedure for
international legal assistance and
performance under the international
treaties in criminal matters as well as
the procedure for the extradition of
the accused and sentenced individuals.
Those provisions, inter alia,
stipulated territorial and actual
jurisdiction of national courts and other
state authorities in the procedure on the
request of the foreign authority
and even in case when the request
concerns criminal offence which under the
national regulations no extradition is
allows; that one of the conditions
for extradition of the accused or
sentenced individuals is that such an
individual is no Yugoslav citizen as well
as that the requested extradition
of any individual shall have been ruled
by the competent court.
3. The Federal Constitutional Court,
starting from the above stated
provisions of the Constitution of FRY and
the Law on Criminal Proceedings
finds that the contested Decree does not
comply with the Constitution and
the Law on Criminal Proceedings.
To begin with, the contested Decree is
not in compliance with the
Constitution of FRY because it regulated
the procedure (means) of
realization of individual freedoms and
rights of a man and citizen
determined under the Constitution of FRY
by the competent authority. Namely,
further to the provisions of Article 67,
par 2, of the Constitution of FRY
the manner (procedure) of implementation
of individual freedoms and human
and civil rights may be stipulated by the
law only, provided however, that
this possibility is anticipated in the
Constitution of FRY or when it is
necessary for their implementation. The
provisions of Article 26, par 1 of
the Constitution of FRY it was further
laid down that everyone is entitled
to equal protection of its rights in the
legally prescribed procedure. By
the contested Decree the Federal
Government as the executive authority,
having regulated the possibility and the
procedure for transfer of criminal
proceedings underway in the national
court to the International Criminal
Tribunal at its request, having regulated
the application of the provisions
of the Chapter XXXI of the Law on
Criminal Proceedings which covers also
apprehension of the individual requested
to be extradited to the
International Criminal Tribunal, having
regulated the power of the
International Criminal Tribunal to
undertake investigation activities
against the individuals in the territory
of FRY, actually regulated the
manner (procedure) of realization,
limitation and protection of individual
freedoms and human and civil by a by-law.
The law only, as was already
mentioned, may regulate such a procedure,
enacted by legislative power,
which was done in the matters of criminal
legal protection under the law on
Criminal Proceedings.
The contested Decree of the Federal
Government regulated apart from the
procedure also the jurisdiction and
composition of courts and jurisdiction
of governments in constituent republics
to decide on the requests of the
International Criminal Tribunal despite
the fact that further to Article 6
of the Constitution of FRY a constituent
republic may autonomously regulate
governance and competences of its own
authorities.
Having stipulated the application of the
Statute of the International
Criminal Tribunal and its Rules of
Procedure and Evidence by the Courts and
other authorities in FRY the Federal
Government overstepped its
constitutional powers of the executive
branch because confirmation of the
International legal acts and their
integration into the internal legal
system falls within the exclusive purview
of the Federal Parliament, under
Article 78 of the Constitution of FRY, as
legislative and representative
body of the citizens of Yugoslavia and
her constituent republics.
Apart from the stated non-constitutionality
the disputed Decree is further
in conflict with the Constitution of FRY
because it regulates the
possibility of extradition of the
Yugoslav citizens even outside the area
of territorial jurisdiction and Yugoslav
judicial and other state authorities
although the Constitution of FRY in its
Article 17, par.3 explicitly bans
such a possibility in the case of
Yugoslav citizens. A foreign citizen may
be extradited only in the cases and under
the procedure stipulated in the
Constitution of FRY, the Law on Criminal
Proceeding and international
treaties. The Federal Constitutional
Court finds that the Constitution of
FRY, namely the mentioned Article 17 par
3, no extradition of the Yugoslav
citizens outside the sovereign territory
of the Federal Republic of
Yugoslavia irrespective whether the
request for extradition was submitted by
the court established by one state or
several states under an international
treaty or under the instrument of an
international organization, because the
provisions of the Constitution of FRY as
the basic law in FR Yugoslavia in
the hierarchy of legal regulations are
the norms of the highest legal
priority and therefore any other general
norms, including published
international treaties must comply with
its provisions.
The legal instruments of the federal and
republic governments, federal and
republic laws containing legal solutions
in conflict with the constitutional
provisions cannot stand in harmony with
the Constitution of FRY. Neither the
federal laws confirming the International
treaties can be in compliance if
such treaties contain provisions contrary
to the Constitution of FRY. Only
an act of legal strength equal to
constitution may change the
constitutional
provisions, specifically those relating
to human and civil rights such as
the provision of Article 17, par 3
prohibiting deprivation of citizenship,
expulsion from the country or extradition
of a Yugoslav citizen to others.
Since this provision is located within
the basic provisions of the
Constitution of FRY, the Federal
Constitutional Court submits that it
acknowledges and guarantees human and
civil rights and freedoms and citizens
in FR of Yugoslavia in keeping with the
Universal declaration on human
rights. The same goes for the possibility
provided for by the Decree if the
permission for transit of the Yugoslav
nationals through the territory of
the Federal Republic of Yugoslavia at the
request of the International
Criminal Tribunal. The Federal
Constitutional Court is competent to rule
whether any of the general norms are in
compliance with the Constitution of
FRY or not, and its rulings are generally
binding and final, with the legal
consequences set out in the Constitution
of FRY and the Law on the Federal
Constitutional Court.
The Federal Constitutional Court,
starting from the nature of the legal
instrument, its substance and
promulgator, has not gone deeper into
structuring the final legal views on the
manner of the implementation of the
Decree, legal nature or the manner of
honoring the obligations created by
the establishment of the International
Criminal Tribunal under the Security
Council Resolution. Consequently, the
Federal Constitutional Court in this
Decision provided no complete replies to
the question: did the Security
Council, as one of the main bodies of the
United Nations, laid down in the
Charter, and primarily responsible for
maintenance of international peace
and security, and which in performing
that mandate must act in conformity
with the goals and principles of United
Nations (Article 24 of the Charter),
in establishing the International
Criminal Tribunal acted in keeping with
the United Nations Charter or overstepped
its powers, namely acted ultra
virus; whether the establishment of the
International Criminal Tribunal, as
an ad hoc measure which should though
criminal prosecution of the
individuals responsible for grave
violations of the international
humanitarian law, enable reestablishment
of peace in the territory of former
SFRY and its maintenance, in keeping with
the measures that the Security
Council may take as conducive to the
maintenance of the international peace
and security, in conformity with the
Charter and its own Rules of Procedure;
whether and in what way is FR of
Yugoslavia bound, as member of United
Nations, to cooperate with the
International Criminal Tribunal, which is not
a court authority envisaged by the United
Nations Charter, unlike the
International Court of Justice,
anticipated in Chapter XIV of the Charter,
but "a measure" of the Security Council;
whether the acts and measures of
the Security Council taken with reference
to the Charter of the United
Nations have the same force as the
Charter itself (whether they are its
integral part?); how to proceed under the
Statute and other by-laws of that
Tribunal, without harmonization of the
internal law with their substance;
whether the Statute and the Rules of the
Tribunal are based on generally
accepted principles and rules of
international law and particularly on the
rules on the function of the prosecutor
in the proceedings, ban of renewed
trial in the same case, detention,
duration of which is not limited, the so
called covert indictments, anonymous
witnesses, duration of the imprisonment
term, extradition of nationals etc.;
whether priority of legal instruments
exists in the hierarchy of international
law and whether the acts of the
United Nations bodies must be in
conformity with the Charter of the United
Nations, and which body and in which
procedure determines that concord; that
the members of the United Nations are
obliged to enforce the instruments of
UN only if they were adopted in
conformity with the Charter of the United
Nations, which member states accepted or
the obligation of the members
exists by the very act of acceptance of
the Charter, as a multinational
international treaty; whether some states
members of the United Nations,
which through their competent body,
adopted respective instruments on
cooperation with the International
Criminal Tribunal violated the Charter of
UN because they banned under these
instruments the extradition of their
nationals to that Court, because such
cooperation is prohibited by their
constitutions and why they had to adopt
such instruments if the Resolution
of the Security Council on the
establishment of the International Criminal
Tribunal 827 and the Statute of that
Court are integral parts of the
internal law of those states; why certain
member states of UN had to change
their constitutions which prohibited the
extradition of their nationals to
other states, to be able to pass the
instrument governing the cooperation
with the International Criminal Tribunal
which includes also the
extradition of their nationals to the
mentioned court, if the instruments of
the Security Council of the United
Nations, in the legal hierarchy have
priority over the constitutions of UN
member states, or have the same
strength, on the other hand; whether the
stated practice of these UN member
states clearly shows that the
constitution of UN member states are the
legal instruments with the highest legal
strength in every UN member state,
and that, consequently the instruments of
the competent state authorities
enabling the implementation of the
mentioned Resolution of the Security
Council and the Statute of the
International Criminal Tribunal, must be
approved in compliance with the
constitution of a member state, in formal
and material terms, and that the
instruments of the Security Council
therefore represent no legal merit for
direct implementation by the very
fact of their instruments, since every
UN member state has to make own
decision about their integration into the
legal system of every UN member
state, to determine, under its
constitution the competent authority and in
the prescribed manner; whether the act of
implementation/integration into
the national legal system passed by the
competent authority of UN member
state can set out the manner of
implementation of individual human rights
and freedom under the rules unpublished
and therefore inaccessible to a
citizen and man applicable to, despite
the fact that the constitution of
that state stipulated the publication of
all general norms as obligatory if
they constitute part of its legal order,
as is the case of the Constitution
of FR Yugoslavia; whether the
promulgation of an instrument for enforcement
of the mentioned Resolution and Statute
of the International Criminal
Tribunal would be in harmony with the
international treaties acceded to by
the UN member states and with the
generally accepted rule of international
law, and many other questions. This is
because the Federal Constitutional
Court submits that replies to all these
questions are irrelevant to the
Court ruling on constitutionality and
legality of the contested Decree.
Namely, the Federal Constitutional Court
in its proceedings determines, as a
preceding question, formal
constitutionality and legality of the contested
general legal instrument, e.g. whether it
was enacted by the competent
authority stipulated in the Constitution
of FRY, confirmed and published
international treaty and federal law.
(2/3 - continues)