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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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