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 <JUSTWATCH-L@LISTSERV.ACSU.BUFFALO.EDU> From: Kristian Kahrs <kkahrs@START.NO> Subject: HLC on cooperation with the ICTY To: JUSTWATCH-L@LISTSERV.ACSU.BUFFALO.EDU 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: vladan@hlc.org.yu ------------------------------------------------------------ Få din egen @start.no-adresse gratis på http://www.start.no/ _______________________________________________ Nettime-bold mailing list Nettime-bold@nettime.org http://amsterdam.nettime.org/cgi-bin/mailman/listinfo/nettime-bold