| Ivo Skoric on Mon, 24 Dec 2001 04:31:01 +0100 (CET) |
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| [Nettime-bold] Re: HLC on cooperation with the ICTY |
>>Under Article 18 of the draft, a district court could deny the
ICTY's request to hand over an indicted person "if there is
insufficient evidence that the accused committed a criminal offense
within the jurisdiction of the Tribunal to which the request pertains."
Furthermore, district courts and the Serbian Supreme Court could
exclude ICTY representatives from hearings at which evidence is
presented if they consider that their presence would be harmful for
the security and defense of the country. <<
Comment: HLC is right. Serbian legislature is using leftover
linguistic patterns from the failed communist period. There is
nothing wrong with Serbian courts being given the power to
question ICTY's jurisdiction (after all, as Mike noted, the US courts
have the same right), but then it is entirely unfair to exclude ICTY
representatives from such hearings. And the reason to do that is
taken verbatim from the ancient regime. There anything that regime
did, could be defended by preventing harm to be done to the
security and defense of the country. Example: when my passport
was taken away in 1985, the explanation given was that the
confiscation was done for the reasons of security and defense of
the country. When my lawyer asked for a more detailed
explanation, the answer was that authorities did not have to explain
their actions, if those actions were performed for the reasons of
security and defense of the country. It's a bogus, vague line that
gives the state organs undeserved powers. The HLC is right in the
ball. The second part of this draft should be dropped before this is
to become a law.
ivo
Date sent: Sat, 22 Dec 2001 18:40:06 +0100
Send reply to: International Justice Watch Discussion List
<[email protected]>
From: Kristian Kahrs <[email protected]>
Subject: HLC on cooperation with the ICTY
To: [email protected]
Greetings from Teheran. Heading for western Afghanistan shortly to
visit
refugee camps on close to the Iranian border. Lot's of interesting
things to
report from here.
In the meanwhile, news are not good from Serbia. Even if they have come some
way in drafting cooperation legislation with the ICTY, the report from HLC is
worrying. According to this report, local courts can decide whether a case is
brought in for the tribunal or not.
chrs
k
--
Kristian Kahrs, journalist
At the moment in Iran, Afghanistan or Pakistan
Homepage: http://home.no.net/kkahrs
Norwegian mobile: +47 93 00 25 22
----- Original Message -----
From: humanitarian law center
To: 'Agency for Refugee Assistance'
Sent: Saturday, December 22, 2001 4:12 AM
Subject: HLC - PRESS - HLC OBSERVATIONS AND REMARKS ON DRAFT LEGISLATION ON
COOPERATION WITH ICTY
HLC OBSERVATIONS AND REMARKS ON DRAFT LEGISLATION ON COOPERATION WITH ICTY
19 December 2001
The draft federal and Serbian laws on cooperation with the International
Criminal Tribunal for the Former Yugoslavia (ICTY) fully reflect the
attitude of those in the two governments who deny the legality and
legitimacy of the Tribunal. The intent of the sponsors is evident: to
obstruct the work of the ICTY Prosecutor's Office and hence justice,
too, by invoking the interests of national sovereignty and security.
The Humanitarian Law Center (HLC) considers that enactment of the
proposed laws as they now stand would produce detrimental effects,
primarily on institutions that have an obligation to comply with the
state's international obligations. For this reason, the HLC proposes
that the drafts be studied by independent experts, who would bring them
into conformity with the ICTY Statute and Rules of Procedure and
Evidence.
The HLC underscores that the ICTY has primacy over national courts and
that states have an obligation to cooperate in its investigations and
prosecution of indictees. This makes the provisions of the drafts under
which the Tribunal would be denied the right to conduct independent
investigations irrelevant where Yugoslavia's cooperation with the ICTY
is concerned.
The draft of the Serbian law clearly indicates that Serbia would not
hand over persons indicted by the Tribunal, despite the fact that it
directly applied the ICTY Statute when it transferred three indictees to
The Hague this year. Under Article 18 of the draft, a district court
could deny the ICTY's request to hand over an indicted person "if there
is insufficient evidence that the accused committed a criminal offense
within the jurisdiction of the Tribunal to which the request pertains."
Furthermore, district courts and the Serbian Supreme Court could exclude
ICTY representatives from hearings at which evidence is presented if
they consider that their presence would be harmful for the security and
defense of the country. This means that, despite the existence of a
confirmed international indictment, district courts would be able to
judge whether or not there are grounds for the charges and determine if
there is enough evidence that the accused committed a crime within the
jurisdiction of the ICTY.
The sponsors deliberately overlook the fact that establishing whether or
not the charges are grounded is not in the competence of national courts
and that this is done in proceedings before the Tribunal. The drafts
also envisage a long and complicated procedure for handing over
suspects, from their right to appeal a district court's decision within
15 days, to the right of the Supreme Court to confirm, alter or set
aside the district court's ruling and order it to conduct a new
hearing. Finally, the authority of the Serbian government to refuse to
hand over an accused if it believes that this would have detrimental
effects on security and defense, even when the court has determined that
the legal requirements for handing over a suspect have been met, means
that the transfer of an indictee would be treated as a political issue,
not a legal obligation of the state under the ICTY Statute, UN Security
Council resolution 827, and by virtue of Yugoslavia's membership of the
United Nations.
The draft Serbian law also ignores Rule 9 of the ICTY Rules of Procedure
and Evidence under which the Prosecutor may ask a national court to
defer to the Tribunal if the act which is the subject of proceedings
before that court is characterized as an ordinary crime, if the purpose
is to shield the accused from international criminal responsibility, or
if the issue is closely related to significant factual or legal
questions which may have implications for investigations or prosecutions
before the Tribunal. The draft in fact sets the same requirements for
deferral as for handing over an accused.
For more information please contact: Vladan Miladinovic, HLC Belgrade
office, tel./fax: 011/444-1487 or 444-3944, e-mail: [email protected]
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