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
===*===
Third - and final - piece of the text:
===
By virtue of Article 16 of the
Constitution of FRY the international
treaties confirmed and published in
keeping with the Constitution and
generally accepted rules of international
law are integral parts of the
national legal order. Hence, the
international treaties and generally
accepted rules of international law,
according to their legal strength are
above the federal law.
According to the position of the
Federal Constitutional Court
distinction must be made between the
obligations of the stated under the
international community on the whole and
obligations towards a given state
or group of states. The confirmed and
published international treaties
constitute the international legal
obligation of FRY law beyond any doubt
towards all the states signatories
thereof, while the generally accepted
rules of the international law concern
all the states within the
international legal system and all the
personalities under the international
law have the obligation and shared
interest in their protection (the rules
ius cogeus). Besides, in the case of
non-observance of those internal legal
norms, sanctions shall be imposed,
primarily legal in nature, unlike the
political agreements where sanctions are
of not legal but political and/or
other nature.
The generally accepted rules of
international law represent legal
principles of the norms derived from
custom rules common to all the states
or known in the majority of legal systems
of the world. Those rules have
general, absolute and objective
character, but also their dynamic
development. At the same time the scope
and character of their changes
provoke different views. There is more
agreement about their identification,
particularly in process law, as the
principles of "reasonable time-limit","
fair trial",
"degrading treatment", "arbitrary
apprehension "presumption of innocence",
timely pronunciation of sentence", "right
to appeal" and other general
rules.
The Federal Constitutional Court
judges that the Resolution of the
Security Council 827 establishing the
International Criminal Tribunal does
not fall within the international law
which constitutes the part of the
internal legal order under Article 16 of
the Constitution of FRY. This is
because an ad hoc measure approved by the
Security Council under the
Resolution - the establishment of the
International Criminal Tribunal for
Criminal prosecution of individuals
responsible for grave violations of the
international humanitarian law-contains
no international legal norms
producing "validity" namely has no
"obligatory strength". Without such
properties that Resolution constitutes
but a political instrument which
entails political obligations, but the
legal validity shall be achieved only
upon its enforcement by the legitimate
and legal authority in individual
legal systems of each state.
Namely, UN member states, having
accepted the UN Charter. Accepted
legal validity of all its norms, and also
the legal instrument passed by UN
bodies in compliance with and in the
manner set out in the Charter. However,
the UN member states had never vested
judicial power to UN bodies. Except
those, naturally expressly specified in
the Statute of the International
Court of Justice, envisaged in the
Chapter XIV of the UN Charter. This is
not the case. That is why the Resolution
of the Security Council 827 in its
item 4 specified a political obligation
of all the states to "fully
cooperate with the International Criminal
Tribunal....and that all the
states undertake measures in keeping with
the national legislation conducive
to giving effect to the provisions" of
that Resolution. Hence, only if and
when that obligation under the mentioned
Resolution of the Security Council
is "translated into a legal norm" in
harmony with the national legislation,
the Statute and the Rules of the
International Criminal Tribunal, shall
obtain the normative character with legal
validity. Without it, those are
specific political obligations; the
non-performance may, of course, produce
very grave consequences for individual
states.
As was said, under Article 24 of the
United Nations Charter, concerning the
international peace and security, the
Security Council in implementing its
mandate, acts on behalf of the United
Nations.
Further to Article 25 of the
Charter - UN members have agreed to
accept and implement the decisions of the
Security Council in line with the
Charter.
In case that Security Council
should find that there exists threat
to peace or violation of peace, it shall
decide what measures are to be
taken to reestablish peace, the supreme
value of the whole international
system.
In conformity with the assessed
status of relations, causes and
consequences, Security Council decided to
establish a court under its
resolution 827 (1993) under the name "The
International Tribunal for
Prosecution of Individuals responsible
for grave violations of the
International Humanitarian Law in the
Territory of former Yugoslavia between
1991". Starting from the substance of
Articles 24, 25 and Article 29 of the
United Nations Charter, that Decision may
be viewed as one of the measures
for protection of peace in the territory
of former SFRY, taken by the United
Nations.
Oppositely, as was already
revealed, this Court was of the view that
the substance of the Charter of the
United Nations does not imply that the
Security Council has an exclusive power
to create and establish judicial
bodies as a protection measure, to deal
with the responsibility of the
citizens in the countries that violated
peace and security in the world. It
follows from the substance of the quoted
provisions of the Charter that such
a measure may be considered as an
international accomplished fact binding
on
any member state of United Nations. In
such a case an obligation is created
to legally regulate the issues concerning
constitutionally guaranteed
freedoms and rights of the citizens,
position of the state authorities and
provision of that protection, as well as
the conduct of local authorities in
giving legal assistance to protect the
international peace. One of the
rights of member states in this case, are
well-supported approaches to the
United Nation bodies to check the
correctness of the procedure.
The above quoted constitutional
and legal provisions imply no
obligation or possibility for the
national legal system, under the
extraordinary procedure and extraordinary
legal instrument, harmonize with
the international coercive measure.
Hence, these relations should be
established in constitutionally oriented
procedure, which shall observe and
be secured by international law, but also
the internal order of FR of
Yugoslavia, in observance of the Charter
of the united Nations,
International Declaration on Human
Rights, the International Covenant of
Civil and Political Rights, Constitution
of FRY and other legal instruments
of the national and international law.
III
4. The Federal Constitutional
Court, by virtue of Article 124, par
1, items 2 and 4 of the Constitution of
FRY and Articles 30, 58 and 68 par
1, items 2 and 4 of the Law on the
Federal Constitutional Court (Official
Gazette of FRY no.36/92), at its session
of 06.11.2001, passed the following
DECISION
It is ruled that the Decree on
the process of cooperation with the
International Criminal Tribunal (Official
Gazette of FRY no.30/01) is in no
conformity with Constitution of the
Federal Republic of Yugoslavia and the
Law on Criminal Proceedings (Official
Gazette of SFRY Nos.4/77, 14/85,
74/87, 57/89, 3/90 and Official Gazette
of FRY No/ 27/92 and 24/94).
The Federal Constitutional Court
has passed the present Decision in
the following sitting: Acting Chairman of
the Federal Constitutional Court
Judge Milan Vesovic, and Judges Milorad
Gogic, Dr. Momcilo Grubac, Mr.
Milomir Jakovljevic, Veseling Lekic and
Aleksandar Simic.
The Federal Constitutional Court
Acting Chairman
of
the Federal Constitutional Court
Judge Milan Vesovic
To join or help this struggle, visit:
http://www.sps.org.yu/ (official SPS
website)
http://www.belgrade-forum.org/ (forum for
the world of equals)
http://www.icdsm.org/ (the international
committee to defend Slobodan
Milosevic)
http://www.jutarnje.co.yu/ ('morning
news' the only Serbian newspaper
advocating liberation)
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
===*===
Third - and final - piece of the text:
===
By virtue of Article 16 of the
Constitution of FRY the international
treaties confirmed and published in
keeping with the Constitution and
generally accepted rules of international
law are integral parts of the
national legal order. Hence, the
international treaties and generally
accepted rules of international law,
according to their legal strength are
above the federal law.
According to the position of the
Federal Constitutional Court
distinction must be made between the
obligations of the stated under the
international community on the whole and
obligations towards a given state
or group of states. The confirmed and
published international treaties
constitute the international legal
obligation of FRY law beyond any doubt
towards all the states signatories
thereof, while the generally accepted
rules of the international law concern
all the states within the
international legal system and all the
personalities under the international
law have the obligation and shared
interest in their protection (the rules
ius cogeus). Besides, in the case of
non-observance of those internal legal
norms, sanctions shall be imposed,
primarily legal in nature, unlike the
political agreements where sanctions are
of not legal but political and/or
other nature.
The generally accepted rules of
international law represent legal
principles of the norms derived from
custom rules common to all the states
or known in the majority of legal systems
of the world. Those rules have
general, absolute and objective
character, but also their dynamic
development. At the same time the scope
and character of their changes
provoke different views. There is more
agreement about their identification,
particularly in process law, as the
principles of "reasonable time-limit","
fair trial",
"degrading treatment", "arbitrary
apprehension "presumption of innocence",
timely pronunciation of sentence", "right
to appeal" and other general
rules.
The Federal Constitutional Court
judges that the Resolution of the
Security Council 827 establishing the
International Criminal Tribunal does
not fall within the international law
which constitutes the part of the
internal legal order under Article 16 of
the Constitution of FRY. This is
because an ad hoc measure approved by the
Security Council under the
Resolution - the establishment of the
International Criminal Tribunal for
Criminal prosecution of individuals
responsible for grave violations of the
international humanitarian law-contains
no international legal norms
producing "validity" namely has no
"obligatory strength". Without such
properties that Resolution constitutes
but a political instrument which
entails political obligations, but the
legal validity shall be achieved only
upon its enforcement by the legitimate
and legal authority in individual
legal systems of each state.
Namely, UN member states, having
accepted the UN Charter. Accepted
legal validity of all its norms, and also
the legal instrument passed by UN
bodies in compliance with and in the
manner set out in the Charter. However,
the UN member states had never vested
judicial power to UN bodies. Except
those, naturally expressly specified in
the Statute of the International
Court of Justice, envisaged in the
Chapter XIV of the UN Charter. This is
not the case. That is why the Resolution
of the Security Council 827 in its
item 4 specified a political obligation
of all the states to "fully
cooperate with the International Criminal
Tribunal....and that all the
states undertake measures in keeping with
the national legislation conducive
to giving effect to the provisions" of
that Resolution. Hence, only if and
when that obligation under the mentioned
Resolution of the Security Council
is "translated into a legal norm" in
harmony with the national legislation,
the Statute and the Rules of the
International Criminal Tribunal, shall
obtain the normative character with legal
validity. Without it, those are
specific political obligations; the
non-performance may, of course, produce
very grave consequences for individual
states.
As was said, under Article 24 of the
United Nations Charter, concerning the
international peace and security, the
Security Council in implementing its
mandate, acts on behalf of the United
Nations.
Further to Article 25 of the
Charter - UN members have agreed to
accept and implement the decisions of the
Security Council in line with the
Charter.
In case that Security Council
should find that there exists threat
to peace or violation of peace, it shall
decide what measures are to be
taken to reestablish peace, the supreme
value of the whole international
system.
In conformity with the assessed
status of relations, causes and
consequences, Security Council decided to
establish a court under its
resolution 827 (1993) under the name "The
International Tribunal for
Prosecution of Individuals responsible
for grave violations of the
International Humanitarian Law in the
Territory of former Yugoslavia between
1991". Starting from the substance of
Articles 24, 25 and Article 29 of the
United Nations Charter, that Decision may
be viewed as one of the measures
for protection of peace in the territory
of former SFRY, taken by the United
Nations.
Oppositely, as was already
revealed, this Court was of the view that
the substance of the Charter of the
United Nations does not imply that the
Security Council has an exclusive power
to create and establish judicial
bodies as a protection measure, to deal
with the responsibility of the
citizens in the countries that violated
peace and security in the world. It
follows from the substance of the quoted
provisions of the Charter that such
a measure may be considered as an
international accomplished fact binding
on
any member state of United Nations. In
such a case an obligation is created
to legally regulate the issues concerning
constitutionally guaranteed
freedoms and rights of the citizens,
position of the state authorities and
provision of that protection, as well as
the conduct of local authorities in
giving legal assistance to protect the
international peace. One of the
rights of member states in this case, are
well-supported approaches to the
United Nation bodies to check the
correctness of the procedure.
The above quoted constitutional
and legal provisions imply no
obligation or possibility for the
national legal system, under the
extraordinary procedure and extraordinary
legal instrument, harmonize with
the international coercive measure.
Hence, these relations should be
established in constitutionally oriented
procedure, which shall observe and
be secured by international law, but also
the internal order of FR of
Yugoslavia, in observance of the Charter
of the united Nations,
International Declaration on Human
Rights, the International Covenant of
Civil and Political Rights, Constitution
of FRY and other legal instruments
of the national and international law.
III
4. The Federal Constitutional
Court, by virtue of Article 124, par
1, items 2 and 4 of the Constitution of
FRY and Articles 30, 58 and 68 par
1, items 2 and 4 of the Law on the
Federal Constitutional Court (Official
Gazette of FRY no.36/92), at its session
of 06.11.2001, passed the following
DECISION
It is ruled that the Decree on
the process of cooperation with the
International Criminal Tribunal (Official
Gazette of FRY no.30/01) is in no
conformity with Constitution of the
Federal Republic of Yugoslavia and the
Law on Criminal Proceedings (Official
Gazette of SFRY Nos.4/77, 14/85,
74/87, 57/89, 3/90 and Official Gazette
of FRY No/ 27/92 and 24/94).
The Federal Constitutional Court
has passed the present Decision in
the following sitting: Acting Chairman of
the Federal Constitutional Court
Judge Milan Vesovic, and Judges Milorad
Gogic, Dr. Momcilo Grubac, Mr.
Milomir Jakovljevic, Veseling Lekic and
Aleksandar Simic.
The Federal Constitutional Court
Acting Chairman
of
the Federal Constitutional Court
Judge Milan Vesovic
To join or help this struggle, visit:
http://www.sps.org.yu/ (official SPS
website)
http://www.belgrade-forum.org/ (forum for
the world of equals)
http://www.icdsm.org/ (the international
committee to defend Slobodan
Milosevic)
http://www.jutarnje.co.yu/ ('morning
news' the only Serbian newspaper
advocating liberation)