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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
DECISION
On the constitutionality and legality test of the Decree on the procedure
for cooperation with the International Criminal Tribunal
I
The Federal Constitutional Court, pursuant to the provisions of Article 127,
par 2 of the Constitution of FRY and the provisions of Article 15, par 1 of
the Rules of Procedure of the Federal Constitutional Court (Official Gazette
of FRY, no.44/93 and 25/95), established that the Socialist Party of Serbia,
Belgrade and Patriotic Union of Yugoslavia, Belgrade challenged
constitutionality and legality of the Decree on the procedure for
cooperation with the International Criminal Tribunal (Official Gazette of
FRY, no.30/0).
The Court also established that more than one joint or individual
initiatives contested the constitutionality and legality of the same Decree,
as follows: joint initiative of professors and assistant professors of the
Faculty of Law in Belgrade: 1) Dr. Ljubisa Lazarevic, full professor; 2) dr.
Kosta Cavoski, full professor; 3) Dragutin Coskic, full professor; dr.
Dragutin Orlic, full professor; 5) Dr. Budimir Kosutic, full professor;
Dr.Slobodan Markovic, full professor; 7) Dr. Slobodan Panov,
senior-lecturer;8)Balsa Kascelan, assistant probationer; 9)Dr. Ratko
Markovic, full professor; 10) Dr.Mirjana Stefanovski, associate professor;
11( Dr. Zagorka Jekic, full professor; 12)Dr. Djordje Lazic, associate
professor; 13) Branko M.Rakic, senior-lecturer; 14) Dr. Stevan Djordjevic,
full professor; 15) Dr. Jugoslav Stankovic, full professor; 16) Dr.Sasa
Bovan, senior lecturer; 17) Dr. Milena Polajac, senior-lecturer; Dr. Milosav
Milosevic, senior-lecturer; 19) Goran Ilic M.A., assistant professor;
Dr.Zika Bujuklic, senior-lecturer; 21)Dejan Djordjevic, assistant
probationer; Bojan Milisavljevic, assistant-probationer; 23) Dr. Vladimir
Stoiljkovic, senior-lecturer; 24) Dr.Oliver Antic, full professor; 25)
Dr.Obrad Stanojevic, full professor; 26) Gordana Pavicevic-Vukasinovic,
senior-lecturer; 27) Zlatija Djukic-Veljovic, full professor; 28) Vladan
Petrov, assistant-probationer; 29) Aleksandar Gajic, assistant probationer;
30) Dr.Vera Cuckovic, full professor; 31) Miodrag Jovanovic, M.A. assistant
professor; 32) Dr.Olivera Vucic, senior-lecturer; 33) Dr. Mirko Vasiljevic,
full professor; 34) Dr.Borivoje Cunderic, full professor; 35)Dr. Ranko Keca,
full professor; 36) Academician Vlajko Brajic, full professor 37) Marko
Djurdjevic, assistant; 38) Dr.Djordje Ignjatovic, full professor; 39) Zoran
Mirkovic, M.A. assistant;40) Dr.Vladan Joncic, seniro-lecturer;41) Dr.
Nebojsa Jovanovic, associate professor; 42) Dr.Milan Skulic,
senior-lecturer; 43) Natasa Delic, M.A. assistant; 44) Nenad Tesic,
assistant-probationer; 45) Dr. Vladimir Milic, full professor; 46)
Aleksandar Jaksic, senior-lecturer; 47) Dr.Miodrag Simic, full professor;
48) Dr.Zoran Stojanovic, full professor; 49) Dr. Snezana Petrovic, associate
professor; 50) Vuk Radovic, assistant-probationer; 51) Mr.Dragan Panic,
assistant; joint initiative of lawyers; 52) Toma Fila of Belgrade, 53)
Branimir Gugl of Belgrade; 54) Momcilo Bulatovic of Belgrade; 55) Zdenko
Tomanovic of Belgrade; Moma Raicevic of Belgrade; individual intitatives:
56) The Yugoslav Left, Belgrade; 57) Budimir Rudovic, Belgrade; 58) Jovan
Koprivica, lawyer of Belgrade; 59) Dragan Ivanovic, lawyer of Pozarevac;
Branko Nikolic, of Pozega; 61) Vladimir Teslic of Krusevac; 62) Cedomi Cosic
of Jasa Tomic;63) Municipal Committee of the Socialist Party in Priboj; 64)
Branko Miletic of Vrnjacka Banja; 65) Municipal Committee of the Yugoslav
Left in Pozarevac; 66) Commission of the Federal Parliament for Freedom
Realization; 67)The Municipal Committee of the Yugoslav Left in Kula; 68)
The Municipal Committee of the Socialist Party in Bela Palanka; 69) Ratomir
Vojvodic lawyer of Belgrade; 70) Dr.Vidak Krivokapic, of Belgrade; 71)
Prof.Dr.Vladimir Stambuk of Belgrade, 72) Council of the Leftist Youth in
Belgrade; 75) Ratomir Rojevic of Kosovska Mitrovic; 76)Ferid Hamovic of
Belgrade; 77) Milomir Markovic of Prokuplje; 78) Srdjan Smiljkovic, of
Belgrade; 79) Dusanka Milenkovic of Prokuplje; 80) Milija Peric, of Blace;
81) Mileta Sokovic of Pljevlja, 82) Zivojin Stanic of Kragujevac; 83)Dusan
Unkovic of Belgrade; 84) Ljubisa Ristic,of Belgrade; 85) Vladimir Dujic of
Belgrade; 86) Mesud Axemovic of Belgrade; 87) Committee of University Left
in Belgrade; 88) Dr. Ljubomir Grujic of France and 89) Municipal Committee
of the Yugoslav Left in Knin.
The Court ruled, pursuant to Article 14 of the Rules of Procedure of the
Constitutional Court, to join the proceedings on the initiatives and
applications of the authorized applicants into single process and one
decision.
The applications lodging the initiative were submitted to the Federal
Government, in keeping with the provisions of Article 26, par 1 of the Law
on the Federal Constitutional Court, asking for reply. The Federal
Government, acting through the Federal Ministry of Justice, replied to the
Federal Constitutional Court.
By virtue of Article 132 of the Constitution of FRY, the Federal
Constitutional Court issued the Decision IV U no.103/01 through 129/01
suspending the enforcement of the Order of the Federal Ministry of Justice
on extradition of indicted individuals issued further to the Decree on the
procedure fo cooperation with the International Criminal Tribunal,
no.2/1-121/8-01-06 dated 25 June 2001 and actions by other state authorities
taken in enforcement of that Order, on 28 June, 2001.
II
1. The submitted initiatives suggest that the contested Decree is not in
conformity with the Constitution of FRY and the Law on Criminal Proceedings
in formal and material terms. In formal terms because the Federal Government
overstepped its constitutional powers, by passing the contested Decree, as
stipulated in Article 99 par 1 item 4) of the Constitution of FRY,
stipulating, inter alia, also the possibility of transfer at the request of
the International Criminal Tribunal the criminal prosecution of an
individual who is subjected to criminal proceedings in the competent court
in the Federal Republic of Yugoslavia or adjudicated under the final court
decision; possibility of extradition of individuals located in the territory
of the Federal Republic of Yugoslavia irrespective of being foreigners or
nationals; having attempted to regulate the issues of the procedure for
protection of law in courts and other state authorities it has taken the
legislative prerogatives determined in the Constitution of FRY, because the
provision of Article 26, par 1 of the Constitution of FRY guarantees the
right to everyone to equitable protection of his/her rights in the legally
determined procedure, and not in the procedure established under a by-law;
that the contested Decree is not giving effect to the federal law but
changes as an incompetent authority, in a non-constitutional manner, via a
by-law, the Law on Criminal Proceedings, which expressly prohibits
extradition of the Yugoslav nationals, while allows it for foreigners only
in the cases specified under that Law; that the Decree, issued by
non-competent authority regulated the organization, competence and
composition of courts in the constituent Republic, although those issues, by
virtue of the provisions of Article 6 par 3 of the Constitution of FRY fall
within exclusive purview of the authorities of the constituent republic;
which under the contested Decree of the non-competent authority delegated
(surrendered) a part of national judicial and other state authorities to a
foreign court (gathering information from citizens; hearing of suspects, the
indicted, injured, witnesses and expert witnesses, including autopsy and
exhumation of corpses, gathering of material evidence; inspection and
prescription of identity papers including those compiled or gathered by the
Yugoslav judicial and other state authorities on violations of the
international humanitarian law);that the entire competence of national
courts and other state authorities to conduct court proceedings in certain
criminal offenses stipulated by law are assigned to a foreign court, which
violates the principle of territorial jurisdiction of the Yugoslav judicial
and other state authorities, in view of the fact that delegation of court
competence from the national to foreign or a court outside the country fall
within the purview of the federal legislator. In material terms, according
to the allegations provided the contested Decree is not in compliance with
the Constitution of FRY and the Law on criminal proceedings, because: is
enables extradition of the Yugoslav citizens to another state, although
under the provisions of Article 17, par 3 of the Constitution of FRY is
prohibited; because the Decree enables extradition of foreigners to another
state, despite the provisions of Article 66 par 2 of the Constitution of FRY
stipulates that a foreigner may be extradited to another state only in cases
anticipated under the international treaties which bind FRY and which were
ratified and published in compliance with the Constitution of FRY, Articles
16 and 66 ); because by virtue of Article 28 of the Constitution of FRY no
one may be adjudicated or sentenced again for an offense if the process
against him was finally suspended, or the indictment act against him was
finally rejected, or if he/she was acquitted under the final ruling or
sentenced, while the contested Decree stipulated the possibility of
assigning the proceedings to the International Criminal Tribunal and
surrender of the person charged although the proceedings against him was
finalized in the national court under the final court ruling; because the
contested Decree enables the initiation of process actions undertaken by the
investigation authorities and the Prosecutor of the International Criminal
Tribunal, and against which no legal remedy is allowed, or submission to any
other court in violation of the provisions of Article 67, par 4 of the
Constitution of FRY, which stipulates that the freedoms and rights
recognized and guaranteed by the Constitution of FRY enjoy court protection
in a national court, and also the protection of the right to personal
freedom, not to be denied to anyone except in cases and under the procedure
set out in the Federal law (Article 25, par 1 and 2 of the Constitution of
FRY);because that Decree relates to foreigners and Yugoslav citizens, hence,
accordingly to their extradition to the International Criminal Tribunal,
despite the provision of Article 17 par 3 of the Constitution of FRY, which
prohibits the extradition of the Yugoslav citizens to another state, namely
to a foreign court, namely the court seated in another state, beyond the
jurisdiction of FR Yugoslavia, since the prohibition covers any foreign
court, whether established by one or more countries; because the Law on
Criminal Proceedings prohibits surrender of the accused or sentenced
persons - Yugoslav citizens- to a foreign country; because the stated
constitutional and legal prohibition of extradition of the Yugoslav citizens
could be changed only via amendments to the Constitution of FRY and the Law
on Criminal Proceedings, in the proceedings prescribed under the
Constitution of FRY rather than by a by-law as was the case with the
contested Decree; that the legal merit for approval of the contested Decree
is unconstitutional; that the same does not contain preamble on the legal
merit, but the provisions of its Article 1 prescribes that it should govern
the procedure of cooperation of the Federal Republic of Yugoslavia with the
International Criminal Tribunal in honoring the "obligations of the Federal
Republic of Yugoslavia under the UN SC Resolution 827(1993) and the Statute
of the International Criminal Tribunal`; that the mentioned Resolution,
establishing the International Criminal Tribunal or the Statute of that
Court are no integral part of the internal legal system, because by virtue
of the provision in Article 16, par 2 of the Constitution of FRY the
integral part of the internal legal system shall be only the international
treaties ratified and published in keeping with the Constitution and
generally accepted rules of international law; that the above stated
Resolution of the Security Council and the Statute of the Tribunal, which is
an integral part thereof, can be no legal basis for the approval of the
contested Decree; that the Federal Government, by virtue of the Constitution
of FRY, may enact decrees, decisions and other instruments only in giving
effect to the federal laws and other regulations and general enactment
provided it is empowered under these acts to do so, while the Law on
Criminal Proceedings did not specify such powers.
2. The reply received from the Federal Government, through the Federal
Ministry of Justice stated that; according to Article 16 of the Constitution
of FRY, the international treaties which were confirmed and published in
keeping with the Constitution and generally accepted rules of international
law are the integral part of the internal law, while the provisions of
Article 124 par 1, item 2 of the Constitution of FRY implies that the
international treaties are, in terms of legal strength above the federal
laws; that on the merit of the above stated and the fact that FRY is member
of the United Nations and signatory to the UN Charter, it follows that FRY
is bound to cooperate in full with the International Criminal Tribunal,
established by the Security Council based on the authorities set in the UN
Charter, independent of the provisions of the national laws: that the
Security Council in its Resolution 827 (1993) approved the Statute if the
Tribunal and decided to establish it under the official name of "The
International Tribunal for prosecution of the responsible individuals for
grave violations of the international humanitarian law in former Yugoslavia
between 1 January 1991 and the date to be established by the Security
Council after peace shall have been reestablished"; that, despite the fact
that no establishment of an ad hoc international criminal tribunal has been
expressly stipulated in the UN Charter, it could be taken as an acceptable
measure, under Articles 24, 25 and 29 and Chapter VII, (specifically under
Articles 39, 40 and 41) of the UN Charter relating to the powers of the
Security Council; that under Article 29 of the Charter the Security Council
may establish ancillary bodies in pursuance of its tasks, while the
mentioned Article 39 of the Charter authorizes the Security Council to
determine threat of peace, violation of peace or aggression and issue
recommendations or decide which measures to take to establish international
peace and security; that based on Article 25 of the Charter member states
have agreed to accept and implement the decisions of the Security Council in
compliance with the Charter, as well as that all the resolutions adopted
further to Chapter VII of the Charter are binding on all the UN members;
that the Security Council, on the occasion of armed conflicts in the
territory of former SFRY, exhausted all interim measures under Article 40
of the Charter; that the approval of the Resolution 827 on the establishment
of the International Criminal Tribunal of 25 May 1993, unanimously accepted
the report of the UN Secretary General and the Statute of the Tribunal,
while at the later UN General Assembly sessions there were no objections to
the mentioned instruments of the Security Council; that the argument that
"the activity of the International Criminal Tribunal amounted to the
interference in the internal affairs of a state`, neglects the provisions of
Article 2, point 7 of the Charter, which provided that the prohibition of
interference is not applicable in case of coercion measure taken under
Chapter VII of the Charter, under which the International Criminal Tribunal
was established; that the remark that the Statute of the International
Criminal Tribunal is in collision with the provisions of the Constitution of
FRY, which prohibits the extradition of the Yugoslav citizens is groundless,
because the provision of Article 17, par 3 of the Constitution of FR of
Yugoslavia does not refer to the international court established by the
United Nations, whose member FR of Yugoslavia is; that the claim of the
initiator of the constitutional dispute cannot be accepted that in the
interpretation of the mentioned provision of the Constitution of FRY the
point of departure should not be linguistic but historical, namely the fact
that at the time of the enactment of the Constitution of FRY existed no
international criminal tribunal, since the International Criminal Tribunal
is not the first of the kind, but that its predecessors were military courts
in Nuremberg and Toki, established under the London treaty of 1945; finally
that in 1998 in Rome, at the UN plenipotentiary conference, years old idea
on the establishment of the International Criminal Tribunal under the
auspices of UN was realized under the Rome Statute of the International
Criminal Tribunal, and that the Statute was ratified by Yugoslavia in June
2001; that under the provision of Article 89 of the Rome Statute the
obligation of the states signatories is to extradite own nationals to that
court; that Article 6 of the Convention the prevention and punishment of the
crime of genocide of 1948, ratified by Yugoslavia in 1950 it was set out
that "persons accused of the crime of genocide or any other crime under
Article 3 shall be transferred for trial to the competent courts of the
state on whose territory the relevant crime was perpetrated or to the
International Criminal Tribunal that will have jurisdiction over those
states parties, which shall recognize its jurisdiction`; that hence, it
cannot be said that the constitution maker was not aware of the possibility
and certainty of establishment of such a court, the more so as no
constitution is enacted for current requirements but for a longer time
frame; that apart from it, even if such an interpretation would be accepted
on the constitutional ban on extradition of nationals, the above mentioned
constitutional status of an international treaty in the legal system of FR
Yugoslavia it follows that the Statute and the Rules of the International
Criminal Tribunal, being part of the UN Charter, is part of the internal law
of FR of Yugoslavia, so that a part of obligations on account of legal
assistance (under Article 29 of the Statute) which involves the surrender
of the accused derogates so understood a constitutional ban on extradition
of own citizen; that the norm in the Article 29 of the Statute has the
strength "above the law" under Article 124 par 1 point 2 the of Constitution
of FRY, and since only the Constitution is supreme to any law, that norm
would be actually of equal rank to the Constitution, and would be like lex
posterior and lex specialis stronger than the earlier general
constitutional norm; that the remark about the International Criminal
Tribunal being "political court" is groundless, since it was established by
the international community to put on trial any person who in the period
from 1 January 1991 until reestablishment of peace perpetrated crime that
may be qualified as a grave violation of the international humanitarian law
and irrespective of the citizenship held; that the provisions of the
Statute in material terms are in full compliance with the fundamental
principle of criminal law, namely the principle of legality "nullum crimen,
nulla poena sine lege"; that the material requirements of punishment were
known before the onset of the court activities, namely at the time of
perpetration of the alleged crimes and the same are contained in the
international law, to the effect that the crimes were set out both in the
international conventions and in the internal law of the states
participating in the conflict; that it the remark is groundless that the
persons put on trial by the International Criminal Tribunal will be in an
unequal position vis a vis persons tried by the national courts, in view
of the fact that according to the Statute of the Court the maximum prison
term is life long imprisonment, while in the Yugoslav legislation for
offenses under the federal law the prison term is twenty years, since
Article 101 of the Statute of the Court it was stipulated that in weighing
the sentence the usual practice inter alia shall be taken into account in
pronouncing the prison term in courts of former Yugoslavia; that, apart from
it, with the establishment of the International Criminal Tribunal the
national sovereignty was not completely cancelled because the international
community primarily expects from the successor states of ex-SFRY to
demonstrate their respective political and legal maturity, and institute, in
fair and impartial manner in their national courts proceedings against all
the individuals who violated the rules of the international humanitarian
law, irrespective of nationality, political status and the similar, and only
if those states shall have failed to proceed, the jurisdiction of the
International Criminal Tribunal shall be activated; that the supremacy of
jurisdiction of the International Criminal Tribunal shall be effectuated in
exceptional cases, namely that the national courts cannot re-try the cases
in which the International Criminal Tribunal adjudicated (the principle non
bis in idem), as well as that the International Criminal Tribunal is
entitled to renew the proceedings in an adjudicated matter in the national
courts, if the accused was sentenced for an ordinary offense but not the
crime against the international law or if the proceedings instituted in the
national court was non-objective and partial as to protect the accused from
the international criminal responsibility(Article 10 of the Statute which
does not accept the principle res indicata): that, on the merit of the
above, and particularly because UN Charter, Statute and Rules of the
International Criminal Tribunal approved in keeping with the Charter, are
integral parts of the internal law and that they have priority over the
federal law, it follows that the cooperation of FR Yugoslavia with the
International Criminal Tribunal is her obligation and that it may proceed
directly, under the Statute and the Rules of the Tribunal, only; that the
substance of the disputed Decree was to detail the forms of such cooperation
only, to facilitate it and eliminate possible ambiguities, and that it only
effectuates the implementation of the mentioned international instrument and
our legal system. Due to the above stated reasons the objection is
groundless that the Statute of the Tribunal conflicts other international
instruments acceded to by Yugoslavia, because under Article 103 of the UN
Charter, in case of conflict between the obligations of a UN member state
under the Charter and their obligations under another international treaty,
their obligations under UN Charter shall prevail.
3. The Federal Constitutional Court, further to Article 58 par 3 of the Law
on the Federal Constitutional Court, held a public debate with the parties
in the proceedings and some scholars.
The parties in the process have explained the details of the allegations,
provided in the Annex, their initiatives and replies received, while
Dr.Milorad Perovic, professor at the Faculty of Law in Podgorica, in his
written opinion stated that the contested Decree is untenable since it
violates the Constitution of FRY in formal and substantive terms. According
to him, the Decree is impossible to implement, because it stipulated the
cooperation with the International Criminal Tribunal under the Rules of the
Statute of the Tribunal, but also in compliance with the Constitution of FR
Yugoslavia and its relevant law (Law on the Criminal Proceedings). Those
rules are, however, mutually exclusive.
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.
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)
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