1 Tuesday, 7 August 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 [The witness entered court]
6 JUDGE BONOMY: Good morning, Professor.
7 THE WITNESS: Good morning.
8 JUDGE BONOMY: I simply have to remind you, as we do with all
9 witnesses, that the solemn declaration you made at the beginning to tell
10 the truth applies throughout your evidence. I don't propose reminding you
11 of that again. I think I've done my duty.
12 Mr. Zecevic.
13 MR. ZECEVIC: Thank you, Your Honour.
14 WITNESS: RATKO MARKOVIC [Resumed]
15 [Witness answered through interpreter]
16 Examination by Mr. Zecevic: [Continued]
17 Q. [Interpretation] Professor, good morning.
18 A. Good morning.
19 Q. How are you?
20 A. Very well, thank you.
21 Q. In the course of yesterday's testimony, Their Honours asked us to
22 comment on tab 26, 1D639, that's the decision of the Constitutional Court
23 and it has to do with some points that remained unclear yesterday, tab 26.
24 Professor, please look at point 3.
25 A. Yes, I see it.
1 Q. It rejects the request to --
2 THE INTERPRETER: Could counsel please slow down when reading.
3 MR. ZECEVIC: [Interpretation]
4 Q. It refers to the provisions of the law --
5 MR. ZECEVIC: Sorry, I apologise to the interpreters.
6 Q. [Interpretation] I will read it again.
7 "The motion is rejected to halt the execution of individual
8 enactments and actions taken on the basis of the provisions of the law
9 from under item 1 of the disposition is dismissed."
10 Item 1 lists the constitutional provisions that have been declared
11 unconstitutional. Is that correct, Professor?
12 A. Yes. This is a decision, and in this disposition the decision of
13 the court is given.
14 Q. Please look at the third paragraph from the end of decision. When
15 giving its reasons, the Constitutional Court in the third paragraph from
16 the end of the decision says that: "The motion to discontinue the
17 implementation of certain enactments and actions taken pursuant to the
18 disputed provisions of the law was dismissed by the court as well as item
19 1 of the disposition because it has rendered the final decision in this
21 Could you please comment on what it means to issue a final
22 decision, what the significance of this is.
23 A. Well, a final decision of a court means that the matter has been
24 settled finally and definitely, the matter being the constitutionality of
25 the disputed provisions of the law. In handing down its final decision,
1 the court established that the articles mentioned in the disposition are
2 unconstitutional, and that therefore they can no longer be implemented or
3 executed in the future.
4 Q. Thank you, Professor.
5 MR. ZECEVIC: Your Honours, I don't know if you are satisfied with
6 the -- with this or should I pursue the matter any further?
7 JUDGE BONOMY: No, I think, in fact by the end of the hearing
8 yesterday we had understood that to be the position, but thank you for
9 that extra clarification.
10 MR. ZECEVIC: Thank you very much.
11 Q. [Interpretation] Professor, let's go back to the Constitution of
12 Serbia, that's tab 5, P855, it remains for us to comment on three articles
13 we did not have time to deal with yesterday. Article 87, Professor,
14 please comment on it.
15 A. In Article 87, there are provisions regulating the termination of
16 office of the president of the republic before the expiry of the period
17 for which he was elected. There are two ways in which his term of office
18 can cease, one is through his own will, that is, if he resigns; and the
19 second way is through the will of those who elected him, that is, the
20 electorate, the citizens.
21 As regards resignation, that is a personal action by the president
22 of the republic, and he resigns -- he hands his resignation to the
23 president -- to the Speaker of the National Assembly, and at the same time
24 he announces this to the public. It is not necessary for the National
25 Assembly to declare that the president has designed -- resigned for his
1 term of office to end. The act of resignation itself means that his term
2 of office has ceased.
3 As for the second way in which his term of office can cease by the
4 will of the electorate, this is provided for in Article 88. In Article 87
5 it says who takes over the office of president of the republic until a new
6 president is elected.
7 Q. Thank you, Professor. You mentioned Article 88. Article 88
8 states that: "The president of the republic shall be responsible to the
9 citizens of the Republic of Serbia." Would you please comment on this
10 first line and then all the other parts of Article 88. How are we to
11 understand this first paragraph?
12 A. The first paragraph should be understood as follows. The final
13 word on recalling the president of the republic rests with the citizens,
14 the same subjects who elected him. The president of the republic is
15 elected directly. He is not elected by the parliament or by a special
16 electoral collegium, as is the case in some countries. He is elected by
17 the citizens by direct ballot, and according to the principle that the
18 same subject who gave a public official his mandate can recall his
19 mandate, it is the citizens, or rather, the electorate who decide on
20 recalling the president.
21 However, it is necessary for the National Assembly first by a
22 two-thirds majority to establish that the president of the republic has
23 violated the constitution. Only then, if the Assembly has issued such a
24 decision, the recalling of the president of the republic is put to the
25 electorate for a vote. The president of the republic shall be recalled if
1 the number of voters who vote for his -- to recall him is a majority, a
2 simple absolute, or rather, an absolute majority of the voters registered
3 in the electoral register. If the voters do not reach a decision to
4 recall the president of the republic, the National Assembly shall have its
5 term of office cease ex constitutio. This is a solution to that which
6 existed in the Weimar German constitution of 1919.
7 Q. Thank you, Professor. To clarify, when the National Assembly
8 feels that the president has violated the constitution, it sets in motion
9 a procedure. And this procedure is put to the electorate, the same voters
10 who elected the president. In this way, the president is responsible to
11 the citizens of the Republic of Serbia. There is no other way in which
12 the president is responsible to the citizens of the Republic of Serbia
13 except in the way we have just explained?
14 A. This is the constitutional mechanism to implement the
15 responsibility of the president of the republic to the citizens, otherwise
16 in a political sense he is responsible to the citizens. If the citizens
17 are dissatisfied with the work of the president, if he were to be a
18 candidate at the next elections for the president of the republic, if he
19 has not already held that office two times, he will not be elected. But
20 this is not a formal responsibility of the president of the republic.
21 The only mechanism whereby the president is responsible to the
22 citizens is the one established in Article 88. One-third of the members
23 of the National Assembly, the deputies, can raise the issue of
24 responsibility of the president of the republic for having violated the
25 constitution. After a debate, a decision is reached as to whether the
1 president has violated the constitution or not, and if a two-thirds
2 majority of the deputies decide that he has indeed violated the
3 constitution, then there is a vote put to the electorate and the president
4 can be recalled, he is recalled by a decision of a two-thirds majority of
5 the voters in the electoral register.
6 Q. Thank you, Professor.
7 JUDGE BONOMY: Professor, has this ever happened.
8 THE INTERPRETER: Interpreter's correction: By a majority, not a
9 two-thirds majority.
10 THE WITNESS: [Interpretation] It has not yet happened because the
11 constitution stopped being valid in 2006, so it was in force from 1999 [as
12 interpreted] to 2006, although the issue of the responsibility of the
13 president's was, indeed, raised in the Assembly, there was never a
14 two-thirds majority vote by the deputies that the president had violated
15 the constitution.
16 JUDGE BONOMY: The transcript records you in saying it was in
17 force from 1999 to 2006. You mean 1990 until 2006. Is that correct?
18 MR. ZECEVIC: [Interpretation] The Professor said "1990."
19 THE WITNESS: [Interpretation] "1990," I do apologise.
20 JUDGE BONOMY: All right. Can you give me perhaps one or two
21 examples of the issues that were raised as challenges to the president on
22 the basis that he had violated the constitution?
23 THE WITNESS: [Interpretation] Your Honours, I apologise, I have
24 not completely understood the question.
25 JUDGE BONOMY: Well, you say that the issue of the responsibility
1 of the president was raised in the Assembly, but there was never a
2 two-thirds majority that the president had violated the constitution. And
3 I wonder if you can give me an example of the submissions that were made
4 to the effect that the president had violated the constitution?
5 THE WITNESS: [Interpretation] The argument was not that the
6 procedure was deficient. It was never linked to particular articles of
7 the constitution, it was never said that the president violated such and
8 such an article of the constitution; rather, it was a general political
9 statement that was made. And of course it was always the opposition that
10 raised this issue in the Assembly. They wanted to achieve a political
11 effect, impact, because they knew that they had no grounds in the text of
12 the constitution to question the responsibility of the president of the
13 republic. Now in the National Assembly the issue of the responsibility of
14 the president of the republic has been raised, but this stopped in the
15 initial stages because the president was accused of having violated the
16 constitution because of his alleged policy in the issue of Kosovo and
18 I think that it was the Serbian Radical Party which raised the
19 issue, that is to say one-third of their members in the parliament raised
20 the issue. I cannot really recall previous cases, but I'm quite sure that
21 this initiative was never really based on any particular articles of the
22 constitution. No. It was rather expressed in quite general political
23 terms. There was no legal arguments to support it.
24 JUDGE BONOMY: Was it to any extent based on the terms of the oath
25 of office?
1 THE WITNESS: [Interpretation] No, those who raised such
2 initiatives never really referred to any particular provisions of the
3 constitution or Article 86 containing the text of the oath for the
4 president of the republic.
5 JUDGE BONOMY: The example you give in relation to Kosovo, is that
6 not one raised under the new constitution? Are you saying that this was
7 raised under the 1990 constitution?
8 THE WITNESS: [Interpretation] No. This was raised under the new
9 constitution --
10 JUDGE BONOMY: And did you not --
11 THE WITNESS: [Interpretation] -- And the mechanism for
12 responsibility --
13 JUDGE BONOMY: Did you not tell us yesterday that part of the oath
14 of office now was to do everything to ensure that Kosovo remained part of
16 THE WITNESS: [Interpretation] Yes, but there is an explicit
17 provision in the text of the constitution in the preamble that Kosovo and
18 Metohija are an integral part of the Republic of Serbia. In the
19 substantive part of the 2006 constitution, there is also a similar
20 provision in the part which deals with autonomous provinces. So this
21 formulation that Kosovo and Metohija is a part of Serbia is not only
22 contained in the text of the oath of the president of the republic, but
23 also in the preamble of the constitution and in one specific article of
24 the constitution it is explicitly stated. I don't have the text of the
25 constitution right here in front of me.
1 JUDGE BONOMY: Thank you.
2 Mr. Zecevic.
3 MR. ZECEVIC: Thank you, Your Honours.
4 Q. [Interpretation] Professor, just to conclude, when it comes to
5 paragraph 1 of Article 88 of the Constitution of Serbia from 1990, your
6 interpretation is that paragraph 1 needs to be read and understood in the
7 context of all other articles, or rather, in the entirety of the text of
8 Article 88?
9 A. Yes. The topic of the entire Article 88 is the recall process of
10 the president of the republic. The first paragraph of that article speaks
11 of the substance of that recall process. It is the citizens who had
12 initially elected the president of the republic who decide on whether he's
13 going to be recalled.
14 Q. Thank you. Professor, in your expert report in paragraphs 311 to
15 313 you spoke of Article 89 which deals with the president's power to
16 decide that National Assembly be dissolved at the proposal of the
17 government or cabinet. Would you please comment this article?
18 A. What is important for this article is that the president of the
19 republic cannot dissolve the National Assembly on his own, at his own
20 initiative. He can do it only upon receiving a reasoned proposal from the
21 cabinet. In that case, he has a discretion to decide whether he is going
22 to dissolve the National Assembly or not. What is important is that he
23 cannot do it on his own initiative. There is also a constitutional
24 limitation in paragraph 3 of this article that the National Assembly
25 cannot be dissolved during irregular circumstances, which is to say during
1 the state of war, state of an imminent threat of war, or state of
2 emergency. Based on this, one can see that the issue of the dissolution
3 of National Assembly is in the joint jurisdiction of the cabinet and the
4 president of the republic. It is the cabinet that has to give the initial
5 proposal; without that proposal, it is impossible to dissolve the National
6 Assembly. And then based on that proposal, the president of Serbia
7 decides whether he is going to dissolve the National Assembly or not.
8 Q. The text of the constitution says that the cabinet should give a
9 reasoned proposal. Can you explain what that means?
10 A. The 1990 constitution, unlike some other constitutions in the
11 world, did not enumerate reasons for dissolving the National Assembly.
12 However, the cabinet is duty-bound to list the reasons for the dissolution
13 of the National Assembly. So far the National Assembly has been dissolved
14 twice, I believe, the last time was in 2000. It had to do with the
15 implementation of the political agreement on holding early elections. The
16 cabinet gave the following explanation for that proposal. The new
17 distribution of political power that came about after the election of the
18 president of the republic.
19 So the cabinet is duty-bound to list the reasons for doing that,
20 for dissolving the National Assembly. The constitution did not list those
21 reasons, but the cabinet needs to be convincing as to the reasons if they
22 want the National Assembly to be dissolved.
23 Q. Thank you, Professor. When you said after the election of the
24 president of the republic, you meant the president of the Federal Republic
25 of Yugoslavia, correct?
1 A. Yes, that's what I meant in September of 2000.
2 Q. Thank you, Professor. And now the last article of the
3 constitution that I would like you to comment upon has to do with the
4 power of the president concerning the amendment of the constitution
5 Article 132. In your expert opinion in paragraphs 223 and 224 you spoke
6 of this issue, so would you give us just another brief comment, please, on
8 A. According to Article 132, paragraph 1, the president of the
9 republic is one of the people authorised to propose that the constitution
10 be amended. There are four such authorised organs, at least 100.000
11 voters, at least 50 deputies, the president of the republic, or the
12 cabinet. That is to say the president of the republic has a so-called
13 constituent initiative leading to the amendment of the constitution. What
14 is peculiar is that the president of the republic does not have a
15 legislative initiative. He cannot give proposals for legislation, but he
16 does have a constituent initiative. He can propose that a constitution be
18 This is a mechanism that also exists in the constitution of the
19 5th French republic from 1958, where the president does not have a
20 legislative initiative but has a constituent one. The proposal to amend
21 the constitution just initiates the procedure. Now, as to whether the
22 constitution is going to be amended or not, that is something that is
23 decided by the National Assembly, by a qualified two-thirds majority.
24 Following such a decision, the final amendment to the constitution
25 is adopted at the constituent referendum by a majority of votes, of voters
1 in the registers, that is to say absolute majority of voters. Once an
2 amendment is adopted, it is promulgated by a decision of the National
4 Q. Thank you, Professor. I think that we have now covered all powers
5 of the president stemming from the Constitution of Serbia --
6 JUDGE BONOMY: Before you move on then.
7 MR. ZECEVIC: Yes.
8 JUDGE BONOMY: There is one matter I would like to return to.
9 Professor, you gave us an example of one of the two occasions when
10 the National Assembly was dissolved as being in 2000, and the explanation
11 given by the cabinet was that this was necessary as the result of the new
12 distribution of political power that came about after the election of the
13 president of the republic, and that's the FRY president. I don't want to
14 explore this in a great deal of detail. I just want to have a simple
15 answer, if possible, to the point.
16 That would suggest that the president of the federal republic had
17 a major degree of political power. In that sense, was his position
18 significantly different from that of the president of the Republic of
19 Serbia so far as the measure of power actually held by the office is
21 THE WITNESS: [Interpretation] In 2000 the National Assembly was
22 dissolved, that is to say the cabinet gave such a proposal, to have it
23 dissolved, because the cabinet believed that both the National Assembly
24 and the cabinet itself had lost the legitimacy due to the new distribution
25 of political power in the society and in order to implement a political
1 agreement that we will be discussing later.
2 As for the position of the president of the republic within the
3 Federation, the difference can be seen mostly in the mechanism for
4 electing and -- electing both presidents and the cessation of their term
5 of office. In the 1992 constitution it is said that the president of the
6 republic is elected by the Federal Assembly and not by the voters
7 directly. This mechanism was adopted because there was a significant
8 disproportion in the size of the voters in Serbia and in Montenegro, and
9 those two were the only two federal units within the Federation. So this
10 was a federation consisting of two federal units, out of which one was
11 disproportionately larger than the other one. In that case, if direct
12 elections were to be held, then one would outvote the other.
13 In order to avoid that, the election of the president of the
14 federal republic, or rather, the Federal Assembly was entrusted with
15 electing the federal republic. The Federal Assembly has two chambers,
16 chamber of citizens, representing all citizens regardless of where they
17 lived in federal units; and a chamber of republics, where the principle of
18 parity was used and federal units were equally represented in it. By way
19 of this mechanism, an outvoting was avoided.
20 As for the powers of the president, it is hard to measure the
21 powers held by each president. President of the republic within a federal
22 state had perhaps greater powers because the federal state is a subject of
23 international law and has armed forces at its disposal. That means that
24 that president appointed ambassadors and other diplomatic representatives,
25 which is something that the president of the Republic of Serbia was not
1 able to do. The federal president also commanded the Army of Yugoslavia
2 in accordance with the decisions of the Supreme Defence Council. He also
3 had responsibilities over the Army of Yugoslavia when it came to
4 appointment and -- appointment of generals and their -- and their recall
5 as well as certain responsibilities when it came to military prosecutors,
6 which is something that a president of Serbia did not have.
7 JUDGE BONOMY: Thank you.
8 Mr. Zecevic.
9 MR. ZECEVIC: Thank you, Your Honour.
10 Q. [Interpretation] Professor, the powers of the president based on
11 the Constitution of Serbia, which is tab 5, P855, consist of a total of 12
12 powers enumerated in Article 83, which we have analysed in the PowerPoint
13 presentation number 1, 1C, or rather, IC131.
14 Further in Article 84, which deals with the suspensive veto;
15 Article 85, setting forth the power of the president to request that the
16 government state its position and inform him of that; Article 89, dealing
17 with the power of the president to dissolve the Assembly upon a reasoned
18 proposal of the government or cabinet; and Article 132, where he has a
19 power to initiate the amendment of the constitution. These are all the
20 powers that according to the 1990 constitution the president has, correct?
21 A. Yes. All of the powers of the president of the republic are
22 contained in Articles 83, 84, 85, 89, and 132, paragraph 1.
23 Q. Thank you, Professor. Professor, in your expert opinion you
24 quoted the leading opposition politician at the time and later on the
25 prime minister of Serbia, the late Dr. Zoran Djindjic, that is tab 45,
1 1D635. You quoted a statement he made then to the newspaper Blic on the
2 30th of October, 1997, in which Dr. Djindjic, as one of the leaders of the
3 opposition, states his own view of the powers that the president of Serbia
4 has, tab 45, Professor.
5 A. Yes, I found it.
6 Q. On page 2 Mr. Djindjic, the late Zoran Djindjic, says in response
7 to the question as to whether he had been put up as a presidential
8 candidate of the party that boycotted the elections, he says inter alia he
9 should be chosen on the basis of a poll that would show what kind of a
10 president Serbia wants from the democratic opposition. But one should
11 bear in mind that the president of the republic has such very few powers
12 that it is actually just a symbolic post.
13 JUDGE BONOMY: I think, Mr. Zecevic, we can read this for
14 ourselves. It's referred to in the report. It's clearly backed up by
15 this exhibit -- this tab, and unless it's challenged, obviously, it seems
16 unnecessary for you to go over it.
17 MR. ZECEVIC: I'm sorry, Your Honours.
18 Q. [Interpretation] Professor, you agree with this opinion, don't
19 you? Professor, do you agree with this? Do you agree with this position
20 presented by the late Zoran Djindjic?
21 A. I absolutely agree, and that was demonstrated by the analysis that
22 we presented yesterday and today. I did so verbally and also in my
23 written report.
24 Q. As for your conclusion, you stated it in 238 of your expert
25 opinion, where you concluded that the president only represents the
1 Republic of Serbia and expresses its state unity but that he does not have
2 any legislative, judicial, or executive powers. Isn't that right?
3 A. That is derived from the Constitution of the Republic of Serbia,
4 it's Article number 9, in which the president of the republic is not given
5 any one of the state powers, decision-making powers. In Article 9 it says
6 that the legislative power belongs to the National Assembly, executive
7 power is vested in the government, judicial authority is vested in the
8 courts, the Constitutional Court assesses the constitutionality and
9 legality in accordance with the constitution, and the president of the
10 republic represents the Republic of Serbia and expresses state unity.
11 That is to say that he had not been accorded any one of the active powers
12 as explicitly stated in the provisions of the constitution.
13 Q. Thank you, Professor. Professor, now let us move on to the
14 relationship between the president of the republic and other state organs.
15 JUDGE CHOWHAN: Excuse me, I just want to clarify one thing.
16 MR. ZECEVIC: Yes.
17 JUDGE CHOWHAN: The powers to issue ordinances is a legislative
18 power, isn't it, or he doesn't exercise it here?
19 MR. ZECEVIC: [Interpretation]
20 Q. Professor, will you answer the question put His Honour Judge
22 A. The authority to issue decrees is vested in the government, but
23 only for carrying out laws, as stated in Article 90, subparagraphs 1 and
24 2. So Article 90 shows that the government can pass decrees only to carry
25 out laws, not in order to regulate societal relations on their own. That
1 is what is clearly stated. In addition to that Article 90 states that the
2 government has other authority in terms of the executive.
3 Q. If I may, if I may be of assistance, the question of His Honour
4 pertained to the authority of the president to issue ordinances, and the
5 question was whether the authority of the president to issue ordinances
6 represents legislative power or not.
7 A. Oh, I am sorry. What I heard in the translation was the word
8 "decree." So ordinances, when they are general enactments, they are only
9 declarative enactments. I spoke of that yesterday. They only state
10 something that has already happened, and in this statement it says that it
11 also involves certain consequences as stipulated in the constitution.
12 So stating that an enactment of the Assembly is a law or that in
13 accordance with the constitution the mandate of the Assembly expired or
14 that the Assembly was dissolved by the authority in charge, for example,
15 the federal government according to the constitution of 1992. As a rule,
16 ordinances are individual enactments, not general enactments, and we
17 already stated that yesterday. We refer to ordinances on the appointment
18 of ambassadors, the promotion or appointment or recall of officials, then
19 ordinances on the conferring of declarations, amnesty, pardon. So these
20 are general administrative enactments of authority.
21 MR. ZECEVIC: Your Honours, would you like me to pursue the matter
22 any further or you're satisfied with the --
23 JUDGE CHOWHAN: I'm most grateful you took a lot of interest in
24 this. But what is Article 84 then?
25 THE WITNESS: [Interpretation] Article 84 regulates --
1 JUDGE BONOMY: Just a moment, Professor.
2 [Trial Chamber confers]
3 JUDGE CHOWHAN: [Microphone not activated].
4 THE INTERPRETER: Microphone, Your Honour, please.
5 JUDGE CHOWHAN: There is some confusion in my own mind. Well,
6 Professor was right, I was talking of the decree and not the -- because
7 ordinances sometimes are like decrees in some constitutions. The power to
8 issue decree, I thought, was a legislative power or not. That's little
9 explanation I wanted which is dealt with. I don't want to waste time
10 anyway on this.
11 MR. ZECEVIC: [Interpretation]
12 Q. Professor, you have understood the question put by His Honour? I
13 assume that these are decrees passed by the president in times of war
14 because these are the only decrees that the president passes on the basis
15 of the Constitution of Serbia, and that is vested in Article 83, paragraph
16 7. Could you please explain that, or rather, subparagraph 7?
17 A. I will, but yesterday that was discussed. That is to say that
18 that is where there is a disruption in authority because the situation is
19 irregular. The National Assembly cannot meet, and therefore the president
20 of the republic does this at the proposal of the government. The -- so
21 it's the government that makes the decision. The president only confirms
22 it. He is the formal mainstay of decision-making, but it is the
23 government that confirms this.
24 And the duration depends on how long the state of war lasts or a
25 state of imminent threat of war. After that, the president of the
1 republic, as we saw yesterday, is duty-bound to go back to the National
2 Assembly to have this confirmed. And the National Assembly decides
3 whether they will no longer be in force once the state of war is not
4 there. But now they become enactments of the National Assembly, not of
5 the president of the republic, and that's the way it remains in the future
6 as well.
7 JUDGE CHOWHAN: Thank you.
8 MR. ZECEVIC: Thank you, Your Honour.
9 Q. [Interpretation] Professor, as I said, we are going to move on to
10 the relationship between the president of Serbia and other state organs,
11 that is chapter 3 of your expert opinion, starting from 3.1 onwards. You
12 saw already, in order to avoid repetition, I think that you have explained
13 that in 238 through 313, or rather, 31 through 313 the relationship
14 between the president and the National Assembly; namely, that the
15 president does not have the right for legislative initiative and also that
16 the Assembly can be dissolved only at an explained written proposal of the
17 government, as stated in Article 89 of the constitution, that he only has
18 the right to a seven-day suspension veto, that is Article 84 of the
19 constitution. And also if the Assembly passes the same kind of
20 regulation, nevertheless he has to promulgate it.
21 I hope that you will agree with me that this is what your
22 constitution is, that the rights of the president vis-a-vis the National
23 Assembly are exceptionally limited?
24 A. That's right. The president of the republic has minimal authority
25 vis-a-vis the National Assembly. As a matter of fact, he is not the one
1 that initiates elections for the National Assembly. He cannot even call
2 sessions of the National Assembly. He doesn't have the right of
3 legislative initiative either. He has only two rights. In relation to
4 the promulgation of laws which is a declarative act, he has the right of
5 suspension law veto; and we saw that that is for a very short period of
6 time. And the consequence is that the vetoed law can be voted yet again
7 with the same majority as in the first case, and then it's the duty of the
8 president to promulgate that law. Also, the president of the republic can
9 never follow this with initiative of his own.
10 Q. Thank you, Professor. In the relationship between the president
11 and the government, and it is the government that exclusively has
12 executive powers according to the constitution, in paragraphs 314 to 320
13 of your expert opinion you refer to that. You will agree with me that the
14 president has a subordinate position in relation to the government;
15 namely, that some of his constitutional powers are limited by the fact
16 that the government has to confirm certain things or restrict them.
17 Namely, the president cannot carry out some of this without having
18 obtained the opinion of the government beforehand.
19 A. Precisely. The president of the republic does not have
20 constitutional powers vis-a-vis the government. We have seen that he can
21 propose the prime minister designate, but as we've already said this is a
22 decision that is imposed by the outcome of parliamentary elections. Once
23 the government is constituted, he no longer has any authority over the
24 government. He cannot chair government sessions. He does not sign
25 government enactments. He himself cannot pass executive decrees. He
1 cannot decide on the establishment and dissolution of government,
2 ministries, and agencies. The only thing he can do is ask the government
3 to present their position, or rather, his position on matters otherwise
4 belonging to the jurisdiction of the government.
5 As we said yesterday, by the very nature of this matter the
6 president has the right to see what the government feels on certain issues
7 that belong to their jurisdiction. However, the president cannot in any
8 way express his dissatisfaction with the government views. He does -- he
9 cannot impose any sanctions on the government. He cannot ask for a member
10 of the government to be recalled or replaced. The government is really in
11 close interplay with the National Assembly. The National Assembly chose
12 the government, and the government is responsible to the National Assembly
13 for its work.
14 Q. Thank you.
15 JUDGE BONOMY: Professor, all of this is said already in your
16 report. Can I ask you about Article 85. What's the purpose of it?
17 THE WITNESS: [Interpretation] The purpose of this article is for
18 the president of the republic to be informed of the work of the government
19 or cabinet, and probably, as we saw from the relationship of the current
20 president and the cabinet, to exert some kind of pressure on the cabinet,
21 public pressure, for it to deal with certain issues. The public is
22 informed about this. The president of the republic himself says that he
23 asked the government or the cabinet to inform him on certain issues, and
24 therefore he mobilises public opinion in order to get the government to
25 hurry-up and deal with certain matters falling within its competence.
1 That is the purpose of Article 85, nothing else. So the president
2 has no powers. The president of the republic has no powers to influence
3 the positions of the members of the cabinet while autonomous in their
4 decisions, and they are responsible in political and legal terms to the
5 National Assembly.
6 JUDGE BONOMY: Thank you.
7 Mr. Zecevic.
8 MR. ZECEVIC: Thank you.
9 JUDGE CHOWHAN: Is there any case law on the interpretation of
10 Article 85 by a Constitutional Court?
11 MR. ZECEVIC: [Interpretation]
12 Q. Professor, could you answer His Honour's question?
13 A. As far as I know, there are -- there is no case law. The
14 Constitutional Court of Serbia was handicapped in that. For a while it
15 was not functioning properly, as it didn't have the correct number of
16 judges. And even now in practical terms the Constitutional Court exists
17 only on paper in the constitution because it has not been constituted yet.
18 Q. Professor, just a brief conclusion. If I understand correctly
19 Article 85 of the constitution does not provide for or imply any kind of
20 hierarchical relationship between the president of the republic and the
21 government or cabinet; and the president of the republic, therefore, has
22 no powers over the government, except for asking for information on the
23 positions of the government?
24 JUDGE BONOMY: Just a moment, Professor.
25 Now, Mr. Zecevic, we are very appreciative of the fact that in
1 representing Mr. Milutinovic --
2 MR. ZECEVIC: Yes.
3 JUDGE BONOMY: -- you have compiled a very restrictive list of
4 witnesses and are focusing the defence very firmly on certain areas.
5 However, even allowing for that and allowing for the very moderate way in
6 which you appear to be presenting his defence, there are limits to how
7 often you ought to be allowed to repeat what has just been said to us. We
8 are conscious of the interests of everyone else. We've got to make
9 maximum use of the time available. So please try to make -- in fact,
10 please try not to repeat the very clear answers that the witness is
12 MR. ZECEVIC: I understand, Your Honour.
13 Q. [Interpretation] Professor, I think the best system might be to
14 deal with examples. So please open tab 14, P1862, the Law on the
15 Government, Article 19, please. Article 19 deals with the information
16 that the government submits to the president under Article 85 of the
17 constitution, and it states the following: "The deadline within which --
18 or the period within which the information is to be submitted shall be
19 determined by the presidents, but as a rule it may not be shorter than 48
21 If I understand it correctly - and please just tell me whether you
22 agree with me or not - this 48-hour period is one that cannot be shorter,
23 and it's there for the benefit of the government, not for the benefit of
24 the president. Is that correct?
25 A. Well, of course, that follows from the interpretation of the text
1 of this article and the nature of things. The government has to study
2 certain documents, for example, draw up its response, the relevant
3 ministry within the sphere of whose competence the position falls, the
4 position that the president of the republic is interested in, has to reply
5 in writing so that 48 hours is a reasonable time for the government to
6 prepare its response, to prepare its position, and present it to the
7 president of the republic.
8 Q. Thank you.
9 JUDGE BONOMY: Mr. Zecevic --
10 MR. ZECEVIC: Sorry.
11 JUDGE BONOMY: -- The word "certain," "certain issues," is in this
12 article and it's also in Article 85 of the constitution, and it seems in
13 English an odd word to be in that role. Has it other -- has the Serb word
14 other perhaps translations, such as "specific" or something of that
15 nature? Or is "certain" the appropriate translation for that language?
16 MR. ZECEVIC: The word in Serbian is "pojedina pitanja."
17 JUDGE BONOMY: Can I then ask the -- well, if I may ask the
18 interpreter if that can be translated in other ways than "certain"?
19 MR. ZECEVIC: Shall I spell the --
20 JUDGE BONOMY: Yes.
21 MR. ZECEVIC: P-o-j-e-d-i-n-a p-i-t-a-n-j-a.
22 JUDGE BONOMY: It's shown that way on the transcript.
23 Can we have some assistance?
24 THE INTERPRETER: It can mean "individual."
25 JUDGE BONOMY: Individual is closer to specific and "specific" is
1 what you would expect in this --
2 MR. ZECEVIC: Specific issues. Yes. I think the most appropriate
3 would be specific issues, specific questions.
4 JUDGE BONOMY: Can the interpreter comment on that, whether
5 "specific" would be an appropriate translation.
6 THE INTERPRETER: It would be a possible translation, yes.
7 JUDGE BONOMY: Thank you very much.
8 Mr. Zecevic.
9 MR. ZECEVIC: Thank you, Your Honours.
10 Q. [Interpretation] Professor, as the government exercises its
11 executive power through the state administration, the position you put
12 forward in your expert opinion, paragraphs 321 to 328, is that the
13 president is cut off, so to speak, that's the term you use, from the state
14 administration. In order to avoid repeating ourselves, could we please
15 look at tab 15, P1823, the Law on State Administration, and then you can
16 explain this position on a specific example.
17 A. The situation as regards the constitution is clear. The
18 collective superior of the state administration is the government or the
19 cabinet. It is the cabinet that has powers over the state administration.
20 It appoints and relieves officials. It has personal power, also --
21 personnel power, also financial power over the state administration in
22 that it proposes the budget for the National Assembly to vote on.
23 Furthermore, the government or the cabinet monitors the work of
24 the organs of state administration, ministries, and other organs of state
25 administration, and exercising this function it can annul or render null
1 and void certain enactments of the ministries and state administration if
2 they are contrary to the law and other legislation so that the government
3 can monitor. It can also organise. It has organisational power over the
4 state administration in that by decree, and that is the only example of an
5 autonomous constitutional decree, in the then-legal system of the Republic
6 of Serbia, by a government decree it establishes the principles for the
7 internal organisation of ministries and other organs of administration and
8 special organisations. Therefore, the president of the republic has no
9 special powers over the state administration. It is the government that
10 has such powers, and these powers include personnel, control, financial,
11 organisational powers.
12 Q. Thank you, Professor. Could you please open tab 46, P1737, the
13 Republic of Serbia Law on Internal Affairs. Professor, could you please
14 comment on Article 7 of the Law on Internal Affairs, please.
15 A. Article 7 confirms the individual principle of the organisation of
16 each ministry, including the Ministry of the Interior. The minister is
17 the one who has all the powers of the ministry, and he prescribes the
18 manner in which work in the ministry will be done and issues instructions
19 in this respect. And this applies to each one of our ministries,
20 including the Ministry of the Interior in accordance with the individual
21 principle of the organisation of each ministry. So the minister is the
22 one who has all the powers of the ministry vested in him.
23 Q. Thank you, Professor.
24 JUDGE BONOMY: Was -- this law was passed in 1991, was it?
25 MR. ZECEVIC: Yes, yes, Your Honours. It was passed in 1991. It
1 is --
2 JUDGE BONOMY: So the legislature would make the law, the
3 president would promulgate the law, and the government would act according
4 to the law and the minister would, as a result, have a broad discretion in
5 running his own department. Is it more complicated than that? Can you
6 help me on that, Professor?
7 THE WITNESS: [Interpretation] Precisely so, Your Honour.
8 JUDGE BONOMY: Thank you.
9 Mr. Zecevic.
10 MR. ZECEVIC: Okay.
11 Q. [Interpretation] Professor, please comment on Article 9 of the Law
12 on the Interior.
13 A. This article refers to a joint and simultaneous request of the
14 National Assembly and the president of the republic to the minister of the
15 interior. The National Assembly and the president of the republic may ask
16 the minister to submit a report on the work of the Ministry of the
17 Interior and on the security situation in the Republic of Serbia. At
18 their request, he's duty-bound to submit such a report. This provision
19 can be criticised, and I have criticised it in the course of my
20 professional work because submitting a report to the National Assembly
21 makes sense, as the National Assembly may, if it is dissatisfied with the
22 minister's report raise the issue of lack of confidence in the minister in
23 the Assembly, because it is the Assembly which appointed the minister.
24 However, the president of the republic can in no way express his
25 disagreement with the report. He cannot impose any sanctions on the
1 minister. He cannot propose to the Assembly that the minister be
2 dismissed. So it is not clear why the president of the republic is
3 included in this article, why he together with the National Assembly may
4 request a report on the work of the Ministry of the Interior. It's quite
5 clear why the National Assembly can do that, but it's not clear why the
6 president of the republic also does it.
7 Q. Thank you, Professor.
8 JUDGE BONOMY: Is that information something that would not fall
9 within Article 85 of the constitution?
10 THE WITNESS: [Interpretation] Article 85 requires, or rather,
11 implies the position of the government or the cabinet on certain issues
12 falling within its jurisdiction. Here it refers to the report of only one
13 ministry, and the entire cabinet has nothing to do with that. It is the
14 minister who submits such a report directly to the Assembly and the
15 president of the republic. So it's not discussed at a cabinet meeting.
16 The position of the cabinet, according to Article 85, is the position of
17 the entire cabinet collectively. So it is adopted at a session of the
18 cabinet and then forwarded to the president of the republic, whereas here
19 there is direct communication between the president, or rather, the
20 National Assembly and the president of the republic on the one side and
21 the minister on the other side.
22 JUDGE BONOMY: Thank you.
23 THE WITNESS: [Interpretation] Minister of the interior, that is.
24 MR. ZECEVIC: [Interpretation].
25 Q. Professor, the provision of Article 17 is one you have commented
1 on in detail in your expert report in 329, so we will not go into it now
2 to avoid repeating ourselves. It has to do with the decrees issued by the
3 president when there is an irregular situation based on Article 83,
4 paragraph 7 of the Constitution of Serbia.
5 Professor, please let us now look at the law on the government,
6 that is tab 16, or rather, the law on amendments, changes and amendments
7 to the law on the republic or state administration, that's 1D376, and
8 please comment on Article 2 of the Law on changes and amendments to the
9 law on the state administration.
10 MR. ZECEVIC: Your Honours -- Your Honours, Article 2 of the law
11 on amendments to the law on state administration actually consists of
12 under brackets Article 44(A). That is why the translation is only -- so
13 it is the article of the amended law and this Article, 44(A), is added to
14 the actual law on state administration.
15 JUDGE BONOMY: Thank you.
16 MR. ZECEVIC: I mean just for the translation purposes, to avoid
17 any misunderstanding.
18 JUDGE BONOMY: Thank you.
19 MR. ZECEVIC: [Interpretation]
20 Q. Professor, would you please comment briefly upon Article 44(A),
21 paragraph 4.
22 A. Do I have the floor?
23 Q. Yes, yes.
24 A. Are you just inquiring about paragraph 4?
25 Q. No, the entire article.
1 A. This article deals with the list of state administrators
2 introducing the post of the deputy minister. Up until that time that
3 position did not exist, the position of the deputy minister. There were
4 only assistant ministers. This article now introduces this position,
5 spells out his duties, says that deputy minister shall in the absence of
6 minister replace him, that he's entitled to take part in cabinet sessions
7 in the absence of the minister, and will have the same competence as the
8 minister. And he may be designated to represent the cabinet in the
9 National Assembly when laws or other regulations falling within the
10 competence of the minister are debated.
11 That means that he stands available to the National Assembly to
12 give explanations on draft laws. This is something that normally only a
13 minister is entitled to do, but here we see the deputy minister is
14 entrusted with that as well. And then it says that the deputy minister
15 shall be appointed by the cabinet for a period of up to four years,
16 because it is never known whether a cabinet will have a term -- a full
17 term of four years or not. It can always be voted out of confidence. At
18 any rate, it says here that the deputy minister's term shall not exceed
19 the term of the cabinet appointing him. So this article introduces the
20 position of deputy minister which has not existed previously.
21 Q. Thank you, Professor. Just a brief digression tab 47, 1D413.
22 This is the power of the National Assembly to appoint members of cabinet.
23 Tab 47, 1D413 is the decision on -- to elect the deputy prime minister of
24 the Republic of Serbia and minister of the interior in the Government of
25 the Republic of Serbia, dated the 15th of April, 1997. Just a brief
1 comment, please, Professor.
2 A. By way of this decision - and this is an individual enactment, by
3 the way - so by way of this decision, the National Assembly in exercising
4 its constitutional power elects the deputy prime minister of the Republic
5 of Serbia and minister of the interior. The person elected at that time
6 was simultaneously elected to the post of the deputy prime minister and
7 that of the minister of the interior. This was done because, as I
8 remember, both posts were vacant at the time because the deputy prime
9 minister and minister of interior who had served prior to that were
10 assigned other tasks.
11 JUDGE BONOMY: Professor, is there always only one deputy prime
13 THE WITNESS: [Interpretation] According to the constitution, there
14 could be one or more deputy prime ministers. According to the 1990
15 constitution in practice, typically there were several deputy prime
16 minister, and I'm not quite sure how many exactly there were up until
17 1994. But from 1994 until 2000, there were five deputy prime ministers.
18 In Djindjic's government in 2001 I think there was six or seven
19 deputy prime ministers, so even a greater number. It is not typical for a
20 deputy prime minister to serve simultaneously as a minister, to head a
21 ministry, it is not a typical situation. I think that this is a unique
22 example under the 1990 constitution. I'm not quite sure of this, but I
23 think that it is a sole example where a deputy prime minister
24 simultaneously served as a minister as well.
25 JUDGE BONOMY: Thank you.
1 Mr. Zecevic.
2 MR. ZECEVIC: [Interpretation]
3 Q. Thank you, Professor. Yesterday we discussed tab 23, which is
4 1D237 and P1015, the Law on the Ranks of Members of MUP. We said that
5 subsequently this law was declared unconstitutional by the Constitutional
6 Court. I would like to ask you for a comment, please, which you partially
7 presented in paragraph 337 of your expert report. This has to do with the
8 issue that a promotion to the rank of general does not automatically mean
9 appointment to a certain position within the Ministry of the Interior,
10 because that is done by a minister or in case of a state official, that is
11 done by the cabinet, correct, Professor?
12 A. Yes, and we have said so already. Appointment to a position when
13 it comes to state officials falls under the jurisdiction of the cabinet,
14 whereas appointment to all positions within a ministry falls under the
15 jurisdiction of the minister.
16 Q. Thank you, Professor. When referring to appointment, we are
17 referring to the duties that are to be carried out by that person. In
18 order for somebody to be appointed, the rank of that person is not
19 important, is not relevant at all, correct?
20 A. Yes.
21 Q. Thank you, Professor.
22 JUDGE BONOMY: What is the point of giving someone a rank?
23 THE WITNESS: [Interpretation] Are you asking me? Well, you know,
24 I'm no expert for internal affairs, but a rank normally carries certain
25 financial or other privileges. However, it does not automatically
1 translate into a particular position. I'm not quite sure what privileges
2 accompany a rank within the Ministry of the Interior.
3 JUDGE BONOMY: Yeah, but we've got to live in the real world here.
4 If you promote somebody to general and therefore he gets a pay rise, you
5 would expect he would have a job that merited that pay rise. Now, is that
6 oversimplifying it?
7 THE WITNESS: [Interpretation] Well, that's a logical explanation.
8 That follows the nature of things. Most likely that is how it is in
9 practice. However, we also had assistant minister of the interior who
10 held no rank, that was the case of Jovica Stanisic.
11 JUDGE BONOMY: I have no difficulty with that whatsoever,
12 Professor. What I have difficulty with is giving someone a title that
13 gives them a large pay cheque and then suggesting that he will not be
14 given some sort of responsibility that measures up to the pay cheque.
15 Now, in the real world in Serbia, are there generals floating around the
16 government with nothing to do getting large pay cheques from the Ministry
17 of the Interior, or do you actually give them decent jobs?
18 THE WITNESS: [Interpretation] Well, it's not like they're not
19 doing anything. We have a similar situation at the university. You can
20 acquire a Ph.D. title, but that doesn't mean that you will automatically
21 be appointed a lecturer.
22 JUDGE BONOMY: And you don't automatically get paid for having an
23 Ph.D. either. I'm trying to get a realistic appraisal of what happens in
24 the real world in Serbia. This theory is all very real, but comparing
25 generals who are being well-paid with Ph.D. graduates doesn't help us.
1 THE WITNESS: [Interpretation] I was going to make a legal analogy.
2 Those who acquire Ph.D. are given a supplement to their salary, and I
3 think the same may apply to generals. But I'm not the right person to
4 tell you about that. I'm no expert for internal affairs.
5 JUDGE BONOMY: Thank you.
6 Mr. Zecevic.
7 MR. ZECEVIC: [Interpretation]
8 Q. I believe that an explanation is due here. You said yourself that
9 there existed a post of assistant minister who held that position without
10 having a rank. You were referring to Mr. Stanisic?
11 A. Yes, I've just said so.
12 Q. So that means that exercising powers and ranks are two completely
13 separate things on the basis of that example. Is that correct?
14 A. Yes, fully.
15 Q. So in a certain situation, since the Trial Chamber would like to
16 know how it looks in the real world in Serbia, after the change of power
17 we had situations where some individuals in some ministries say in the
18 Ministry of the Interior holding the rank of general continued to hold
19 that rank, but did not have any tasks assigned to them that would carry
20 powers. Isn't that right?
21 A. Well, I'm sure that there were such situations in real world.
22 JUDGE BONOMY: The witness has already disqualified himself from
23 answering that question because he says he's not got the necessary
25 MR. ZECEVIC: Thank you, Your Honour. I was just following your
1 line of questioning. Thank you very much.
2 Q. [Interpretation] Professor, we have now completed the third
3 chapter, the relationship between the president of the republic and other
4 state organs. If the Trial Chamber has no questions concerning this
5 portion, I would like to conclude this topic and move on to the next one.
6 Thank you.
7 Just a brief conclusion, Professor. In legal, scholarly
8 literature, Serbia is not listed as a -- is not listed as a semi-legal
9 country because the president of Serbia, according to the constitution --
10 THE INTERPRETER: Semi-presidential system, interpreter's
12 MR. ZECEVIC: I'm sorry, I see the transcript -- semi-presidential
13 system, yes.
14 Q. [Interpretation] Because the president of Serbia, according to the
15 constitution, does not have the powers that are typically held by
16 presidents in such systems, semi-presidential systems?
17 A. In the scholarly research, in the latest one also, Serbia is not
18 listed as a country with semi-presidential systems. This type of
19 government was established by the French constitutionalist,
20 Maurice Duverger. So neither Duverger nor other authors dealing with that
21 later qualified Serbia as a country with a semi-presidential system of
22 government. France is one of the inceptors of such a system according to
23 the constitution of the 5th Republic. This is so because in a
24 semi-presidential system the constitution only deals with the mechanism
25 for electing and recalling president of the republic. However, this very
1 strict and demanding mechanism is not accompanied by appropriate powers.
2 We have already dealt with the powers of the president of the
3 republic. And if I may be said so, these powers remind me of
4 Mihail Haynich from Austria who said that the only place where the
5 president of the republic can stick his nose is his handkerchief. So
6 practically speaking, he has no powers either to interfere in the work of
7 other organs nor is he himself somebody who is vested with other types of
8 powers, be it judicial, legislative, or executive.
9 This is the reason why Serbia cannot be considered a country with
10 a semi-presidential system of government. In my expert opinion I also
11 quoted the Politika article of Misa Djurkovic, who in addition to being a
12 researcher was for a while advisor to Mr. Kostunica, prime minister, who
13 said himself that Serbia is not a country with a semi-presidential system,
14 but it rather has a peculiar system of government which is typically in
15 theory called the system of --
16 THE INTERPRETER: Could the witness please repeat the end of his
18 MR. ZECEVIC: [Interpretation]
19 Q. Would you please repeat the end of your sentence for the benefit
20 of the interpreters.
21 A. I said that Serbia is not a country with a semi-presidential
22 system of government, but has peculiar type of parliamentaryism defined as
23 rationalised parliamentaryism in theory. This is a term introduced by
24 French Professor Boris Mirkin-Gecevic. It was introduced between the two
25 world wars this type of rationalisation of a classical British type of
1 parliamentaryism came about. The countries with this system typically
2 strengthened the position of the cabinet, and they are normally called
3 countries with rationalised parliamentaryism.
4 MR. ZECEVIC: Your Honours, I know it's three minutes before the
5 time we should break, but it is -- it would be appropriate at this point
6 to break before I go into something else, if you don't mind.
7 JUDGE BONOMY: Are we finished with the question of the
8 constitution now?
9 MR. ZECEVIC: Well, yes, Your Honour. We are now moving to the
10 question of a president's powers and competencies towards the army and the
11 Constitution of FRY. We're going in that part. It is --
12 JUDGE BONOMY: This is his role as a member of the Supreme Defence
14 MR. ZECEVIC: Yes, yes, 344 to -- paragraphs 344 to just -- to 361
15 of the expert opinion -- expert report of Professor Markovic.
16 JUDGE BONOMY: As I explained yesterday, Professor, we have to
17 break at this stage. We will resume at 11.15. Meanwhile, you should go
18 with the usher and he will show you where you can wait.
19 [The witness stands down]
20 --- Recess taken at 10.43 a.m.
21 --- On resuming at 11.17 a.m.
22 [The witness takes the stand]
23 JUDGE BONOMY: Mr. Zecevic.
24 MR. ZECEVIC: Thank you, Your Honours.
25 JUDGE CHOWHAN: I'm sorry, just a question for the Professor,
1 learned Professor, let's say if the president of Serbia had called you
2 over a cup of tea and said, I want to use this handkerchief which is red
3 in colour to show it to the bull to the state, how can I do it and can you
4 help me constitutionally? What would be your reply, sir?
5 THE WITNESS: [Interpretation] I didn't understand what this means.
6 What is this bull of the state?
7 JUDGE CHOWHAN: You haven't been to the matadors ever? Have you
8 ever seen the Spanish matadors? The president can sometimes act like
9 that, and if he's a powerful president, he knows how to twist the arms.
10 How would he do it? That's what we really we want to know from you as an
12 THE WITNESS: [Interpretation] Well, if I understood your question
13 correctly, what he could have done is only what the constitution
14 authorises him to do. But to twist arms on the basis of those powers, I
15 doubt it. It's very small powers that are involved for him to be able to
16 do something like that.
17 JUDGE BONOMY: Mr. Zecevic.
18 MR. ZECEVIC: Thank you, Your Honour.
19 Q. [Interpretation] Professor, the powers that the president of
20 Serbia has vis-a-vis the Army of Yugoslavia are exclusively derived from
21 the federal constitution and his ex officio position as a member of the
22 Supreme Defence Council. Isn't that right?
23 A. Yes. That is due to the fact that the Republic of Serbia does not
24 have an army of its own. So the constitution could not have established
25 that relationship between the president and the army. The federal
1 constitution gave him this power ex officio, namely, by virtue of the
2 position he holds he is automatically a member of the Supreme Defence
3 Council. And generally speaking, the entire Supreme Defence Council is
4 not an organ of that kind. All of its members are there ex officio. It
5 is not that they were particularly elected or appointed members of the
6 Supreme Defence Council.
7 Q. Thank you, Professor. Please, tab 6, P856, actually, 1D139 is the
8 translation, and that is the Constitution of the Federal Republic of
9 Yugoslavia. Yesterday at one point you said that the powers, or rather,
10 the authority of the Federal Republic of Yugoslavia described in Article
11 77.7, I think it's under number 7. The defence and security of the
12 Federal Republic of Yugoslavia, that is solely within the realm of the
13 state organs, isn't that right, the federal organs?
14 A. Yes. All the competencies of the Federation are listed therein,
15 and everything that is not on this list means that it falls within the
16 province of work of the members of the Federation, the Republic of Serbia,
17 the Republic of Montenegro, that they have powers vested therein.
18 Q. Thank you. Professor, section 8 of the Constitution of the
19 Federal Republic of Yugoslavia entitled "the Army of the Federal Republic
20 of Yugoslavia." Article 133, rather, states what the character and
21 obligations of the Army of Yugoslavia are. So it is Article 133,
22 paragraph 1. Could you please briefly comment on this. What is it that
23 the army defends?
24 A. The functions of the Army of Yugoslavia are listed therein and it
25 says that the Army of Yugoslavia protects four values from the point of
1 view of the state and the constitution; namely, sovereignty, state
2 territory, independence, and the constitutional order. The constitutional
3 order is the order established by the constitution.
4 Q. From the point of view of this provision, Professor, if in a part
5 of its territory and if in part of its territory, part of the Federal
6 Republic Yugoslavia, there is an armed rebellion with the wish of that
7 part of the state to secede, in your view would this constitute a threat
8 to the constitutional order as referred to in Article 133 of the
9 Constitution of the Federal Republic of Yugoslavia?
10 A. No doubt that is what it would constitute, because everything that
11 changes or wishes to change something by extra-constitutional means, that
12 is to say apart from regular procedure, that is an attack on the
13 constitutional order. The army by its function set in this article,
14 Article 133, is duty-bound to defend the constitutional order.
15 Q. Thank you. Professor, tell me, these four objects that are
16 defended by the constitution in Article 133, these are upper-most values
17 of a state, aren't they, status values of a state. Isn't that right?
18 A. No doubt. No doubt. Every state is a state because it has
19 sovereignty, independence over a certain territory because it has
20 organised authority within its territory. That gives it the attributes of
21 a state, and those are precisely the attributes listed here that give a
22 collective of individuals the properties of a state.
23 Q. Bearing in mind what Article 133 states in its first paragraph,
24 what is your opinion from the point of view of automatism in engaging the
25 Army of Yugoslavia in case these four values are imperilled, those
1 mentioned in this answer?
2 A. I'm sorry. I did not quite understand what you were saying, my
3 opinion about what?
4 Q. About the automatism of engaging the army in cases when these
5 constitutional values are threatened, or rather, all these things
6 mentioned in Article 133.
7 A. Article 133 states this because this is an obligatory norm stated
8 in the constitution. Therefore, the army is always called upon to defend
9 this ex constitutio, sovereignty, territory, and the independence and the
10 constitutional order of the country.
11 Q. If I understand you correctly, from that point of view then, no
12 decision would be required of some other state organ for the army to be
13 used in accordance with the constitution and the basic laws, that is to
14 say the law on the army, in case these four objects are threatened?
15 A. There is no need for that because this is a constitutional duty of
16 the army. I have already said this. I repeat, it is not necessary to do
17 any such thing because this is a constitutional duty of the army that is
18 derived from the supreme legal document of the country, and the army as an
19 institution on the basis of the constitution is called upon to defend
20 these four values or objects.
21 Q. Thank you. Professor, please pause after I put my question so
22 that --
23 JUDGE BONOMY: It may be -- maybe I'm misunderstanding the purpose
24 of these questions --
25 MR. ZECEVIC: Well the --
1 JUDGE BONOMY: -- but the --
2 MR. ZECEVIC: -- the allegation --
3 JUDGE BONOMY: You're not presumably suggesting that the army can
4 decide whether there's a threat to sovereignty of the constitutional order
5 and take action, are you?
6 THE WITNESS: [Interpretation] Well, it cannot do so on its own.
7 It can only be done by the organ set in the constitution. So this is what
8 Article 135 of the constitution refers to. So it's not that it's going to
9 act of its own accord. It has its own internal mechanism of organisation.
10 JUDGE BONOMY: Well, I have to say I don't understand this,
11 Mr. Zecevic. This will need to be clarified.
12 MR. ZECEVIC: Yes.
13 Q. [Interpretation] Professor, this is the question: Is it
14 necessary -- let me be very concrete, very specific. Is it necessary to
15 declare one of the irregular situations so that the army would defend on
16 the basis of Article 133.1 the sovereignty, territory, independence, and
17 constitutional order of the country, in your opinion? Is that
18 indispensable? Is that the necessary course that has to be taken so that
19 the president of the army -- the president of the Federal Republic of
20 Yugoslavia could issue such an order to the army, that it be used?
21 A. On the basis of Article 133, it is obvious that in every
22 situation, be it regular, irregular, the army is called upon to defend the
23 sovereignty, territory, independence, and constitutional order of the
24 country. Therefore, it is not necessary to declare an emergency in order
25 for the army to carry out this function. The army carries out this
1 function by virtue of the fact that it is the army, and this is a
2 characteristic vested in it by the constitution itself.
3 MR. ZECEVIC: Your Honours, have this sufficiently explained the
4 issue or would you like me to pursue this?
5 Could we -- I'm sorry --
6 JUDGE BONOMY: Just a second.
7 Well, my understanding at the moment is that without any other
8 organ being involved, the army can itself act to defend the constitutional
9 order on the basis that it thinks that there is some challenge being made
10 to it, and I find that strange. If you feel you need to explore it
11 further, it's a matter for you.
12 MR. ZECEVIC: Thank you.
13 Q. [Interpretation] Professor --
14 MR. ZECEVIC: Could we have 1D139, tab 6, P856 on the e-court,
16 Q. [Interpretation] Professor, on the basis of Article 135 which
17 says: "In wartime and peacetime, the army shall be under the command of
18 the president of the republic pursuant to decisions by the Supreme Defence
19 Council," an order issued by the commander, by the president of the
20 Federal Republic of Yugoslavia in accordance with the provisions of
21 Article 135, paragraph 1 issued in peacetime when no irregular state was
22 declared and when one of the four objects from Article 133 are under
23 threat, is such an order to use the army in accordance with the
24 constitution and the regulations of the Federal Republic of Yugoslavia?
25 A. It absolutely is, because it says in wartime and peacetime, so
1 peacetime too. When the constitutional order is under threat, the army is
2 therefore called upon to defend the country in this way. There are
3 constitutions in the world where the army does not have all of these
4 functions, where it only protects sovereignty and independence. But in
5 this constitution of ours from 1992, it also defends the constitutional
6 order, that is to say the order established by virtue of the constitution.
7 JUDGE BONOMY: Remind me, please, Mr. Zecevic, are there no
8 provisions in this FRY constitution about declaring states of emergency
9 or --
10 MR. ZECEVIC: No, Your Honour --
11 JUDGE BONOMY: -- imminent threat of war?
12 MR. ZECEVIC: Yes, there are. The -- the constitution says
13 that -- that the federal -- that the Assembly and the federal government
14 are declaring a state of war and the other irregular -- irregular
15 states --
16 JUDGE BONOMY: Which article is that?
17 MR. ZECEVIC: Just bear with me, Your Honour.
18 THE WITNESS: [Interpretation] 78 and 90 -- 99 --
19 MR. ZECEVIC: 78.3 and 99.10. Your Honour, it is the -- it is the
20 right of the National Assembly to declare one of the three states --
21 irregular states, but in case -- in case -- and that is provided for in
22 Article 78.3, but in case -- yes -- Federal Assembly. But in case the
23 Federal Assembly cannot meet, then the federal government, by virtue of
24 Article 99.10, takes up these responsibilities.
25 JUDGE BONOMY: And where in the constitution are the consequences
1 of such a determination set out?
2 MR. ZECEVIC: [Interpretation]
3 Q. Professor, I don't know if you can assist?
4 A. It's not the constitution, but the Laws on Defence and on the Army
5 of Yugoslavia that speak on this. The constitution regulates this only in
6 principle, in the fundamentals, and the details are further elaborated in
7 the laws and this law has almost 400 articles, and of course the
8 regulations and other enactments issued pursuant to these laws.
9 MR. ZECEVIC: If I can be of assistance to the Trial Chamber, I
10 believe Your Honour is looking for the Law on Defence, I believe Article
11 4. It is our tab 62, I'm told, 62, P985, Article 4.
12 JUDGE BONOMY: I can see that it's a question of degree, but I
13 take it this goes to the question of how the army could be used and who
14 could decide on its use in a particular way during 1998 and 1999. Or have
15 you some other issue in mind here?
16 MR. ZECEVIC: No, no, no, that's exactly what is the issue here.
17 The allegation from the -- from my -- from the OTP -- Prosecutor's case
18 was that the army was used in 1998 unconstitutionally. That is one of the
19 allegations, that in order to use the army you should have declared one of
20 the three states of -- one of the three irregular states, either a state
21 of emergency, state of imminent threat of war, or state of war, in order
22 to be able to use the army. Now, as Professor is saying in explaining the
23 constitution, that is not the case. The army can be used under the
24 command of the president of FRY, who commands the army in war and peace
25 in -- according to the Article 35. So therefore, if the
1 Commander-in-Chief or president of FRY gives a command to the army to
2 deploy the army, in case one of the four objects are -- are at stake or
3 are endangered, the four objects meaning the four objects from the Article
4 133 of the constitution, then this is completely in accordance with the
5 constitution and the laws.
6 JUDGE BONOMY: All right. I understand the point. You can move
7 on. Thank you.
8 MR. ZECEVIC: Just bear with me, Your Honour. I need to consult
9 with my lead.
10 [Defence counsel confer]
11 MR. ZECEVIC: I would like to just remind Your Honours that we
12 have been presented during this case with the rules of engagement -- the
13 Rules of Service Act of VJ, which is along the lines of what we are
14 discussing right now. Thank you.
15 Q. [Interpretation] Professor, let's go back. Article 135 of the
16 Constitution of the Federal Republic of Yugoslavia, as we have stated here
17 more than once, in paragraph 1 speaks about who commands the Army of
18 Yugoslavia in peacetime and wartime, it's the president of the -- of the
19 republic. And then it says who is in the Supreme Defence Council. And in
20 paragraph 3, the president of the republic shall preside over the Supreme
21 Defence Council. Is that correct?
22 A. Yes. Those are three separate issues, and each is regulated or
23 provided for in a particular paragraph of this article.
24 Q. Professor, I now wish to comment on Article 136 of the
25 constitution, which provides for the powers of the president of the
1 Federal Republic of Yugoslavia. You spoke of this in paragraph 231 --
2 THE INTERPRETER: 321, interpreter's correction.
3 MR. ZECEVIC: [Interpretation]
4 Q. -- of your expert opinion, and you say that these are the
5 exclusive powers of the president of the republic; is that correct?
6 A. Yes, that's the essence. A linguistic interpretation shows that
7 the president of the republic exercises these powers independently, not in
8 accordance with the decision of the Supreme Defence Council, but according
9 to his own will.
10 Q. Thank you. The powers you have just said that the president
11 exercises independently according to his own will contain all the three
12 dimensions of personal authority, appointing, dismissing, and promoting,
13 three groups of persons that have to do with the Army of Yugoslavia. Is
14 that correct?
15 A. Yes, that's correct.
16 Q. So the president of the FRY appoints, dismisses, and promotes,
17 quite independently, officers, judges, judge-jurors, and the prosecutors,
18 military prosecutors?
19 A. These are the persons in the Army of Yugoslavia or connected to
20 the Army of Yugoslavia over whom the president has personnel power.
21 Q. When you say "personnel power," you mean personal power?
22 A. No, I mean in relation to issues of personnel and status,
23 appointing, promoting, dismissing. When referring to officers, he can
24 appoint and dismiss them. When referring to presiding judges, judges, and
25 judge-jurors of military courts, he -- and he also appoints and dismisses
1 military prosecutors. I'm not speaking of personal power, I'm speaking of
2 issues of personnel, of staffing.
3 Q. Professor, the Supreme Defence Council as an organ was first
4 provided for in the Constitution of the Socialist Federative Republic of
5 Yugoslavia of 1992 for the period from 1945 onwards. Is that correct?
6 A. Yes. That was the first time such an organ which has only this
7 property and no other was established by a Constitution of Yugoslavia.
8 Q. Professor --
9 MR. ZECEVIC: Just bear with me, Your Honours.
10 THE INTERPRETER: Interpreter's correction: The Constitution of
11 the Federal Republic of Yugoslavia, not the Socialist Federative Republic
12 of Yugoslavia.
13 MR. ZECEVIC: The constitution I was referring to was the
14 Constitution of FRY of 1992, not the SFRY.
15 JUDGE BONOMY: The question, though, refers to 1945 onwards.
16 MR. ZECEVIC: Let me ask the question once again. Maybe I
17 wasn't ...
18 Q. [Interpretation] The Supreme Defence Council as an organ was first
19 introduced in the constitutional practice on the territory of the former
20 Yugoslavia from 1945 onwards in the Constitution of the Federal Republic
21 of Yugoslavia of 1992?
22 A. Yes. That was the first time in the constitutions of Yugoslavia,
23 including the second Yugoslavia, the one that came into existence from
24 1945 to 1992, that such an organ was constituted which referred
25 exclusively to the army and had no other function, apart from this
1 function. That is the only time. Later on it was repeated in the
2 constitutional charter of 2003, and now the constitution of 2006 has such
3 an organ also.
4 Q. Professor, in your opinion the reason why the Supreme Council is
5 provided for as an organ in the constitution of FRY in 1992 is what, in
6 your opinion?
7 A. As I participated in drafting the constitution of 1992, I know the
8 reasons first-hand. The reasons have to do with federalizing this state
9 function of command of the Army of Yugoslavia. The Federal Republic of
10 Yugoslavia was a so-called dual federation; it had the minimum number of
11 federal units, only two. In the history of dual federations, they have
12 always been short-lived, as can be seen, for example, in the example of
13 Pakistan, of Czechoslovakia, and also the Federal Republic of Yugoslavia.
14 In a dual federation, it is very difficult to achieve the equality
15 of the two federal units. There will always be one which is dissatisfied
16 because it does not hold a certain function. For example, there is a
17 provision in the constitution of 1992, stating that the president of the
18 federal government and the president of a republic cannot be from the same
19 member state. And in order to federalize an important function in
20 connection with the army, the Supreme Defence Council was established.
21 Its members are not elected to that body. They're members of that body
22 ex officio by virtue of their position; that's the president of the
23 federal republic and the presidents of the two member republics. And in
24 this way, the federal structure of a dual federation is best taken into
25 account. Both federal units had their representatives in the Supreme
1 Defence Council. So this was done to avoid discrimination in this
2 important state function. That was the idea behind the Supreme Defence
3 Council. That is the raison d'etre of this organ in the constitution.
4 JUDGE BONOMY: There's one part of your answer there I don't
5 understand which says: "There's a provision in the constitution stating
6 that the president of the federal government and the president of a
7 republic cannot be from the same member state." That must be impossible.
8 THE WITNESS: [Interpretation] That is a provision of the
9 constitution of 1992 -- just a moment. I find it hard to find my way
10 through a copy of the constitution that is not mine, the one I normally
11 use, but I'll find it right away. It's a provision of Article 97. It's
12 paragraph 3 of the Constitution of the Federal Republic of Yugoslavia,
13 which says: "As a rule, the president of the republic and the federal
14 prime minister may not be from the same member republic."
15 So as a rule --
16 JUDGE BONOMY: I understand that, but that's -- and that clarifies
17 your answer. We can move on now. Thank you.
18 MR. ZECEVIC: Thank you, Your Honour.
19 We have -- I was signalled by my colleagues that there is also a
20 misinterpretation and -- in line 48 -- page 48, line 23, to 49, row 4,
21 concerning the explanation given by the Professor, but I don't -- I mean,
22 this would be the third time. The essence is --
23 JUDGE BONOMY: We know what you mean, I think, that --
24 MR. ZECEVIC: This is the first time introduced in 1992.
25 JUDGE BONOMY: Thank you.
1 MR. ZECEVIC: [Interpretation]
2 Q. Professor, very briefly, please, yes or no. So this is the VCO,
3 the Supreme Defence Council --
4 THE INTERPRETER: Interpreter's correction: VSO.
5 MR. ZECEVIC: [Interpretation]
6 Q. This is how it was designed, to symbolize the formal equality of
7 these two member republics?
8 A. Yes. They wanted to ensure that in exercising this state function
9 the two member republics would have equal status.
10 Q. As for the source of the documents concerning the character of the
11 Supreme Defence Council, we have this constitutional provision, we have
12 basic laws, the Law on Defence and the Law on the Army. And we also have
13 available to us minutes from the sessions where the words of the members
14 of the Supreme Defence Council were recorded verbatim during the sessions.
15 When preparing for your testimony here, you went over all of the
16 minutes of the sessions of the Supreme Defence Council from the moment the
17 late Slobodan Milosevic became president of the Federal Republic of
18 Yugoslavia in July of 1997 all the way up to the 9th Session of the
19 Supreme Defence Council held on the 23rd of March, 1999, correct?
20 A. Yes, practically throughout the time-period during which Slobodan
21 Milosevic served as the president of the Federal Republic of Yugoslavia.
22 Q. Thank you. While reviewing these minutes, you set aside three
23 such minutes from sessions which are of particular interest, three or four
24 of them, and we will be commenting on them now. The first one is the
25 session of the Supreme Defence Council held on the 24th of November, 1998,
1 this is tab 56, Exhibit P1576.
2 Professor, tab 56, it's Exhibit 1576. It may be in the second
4 A. Yes, I have found it.
5 Q. These are the minutes from the 7th Session of the Supreme Defence
6 Council held on the 24th of November, 1998, in Belgrade, correct?
7 A. Correct. So these are not shorthand notes, but rather minutes.
8 Q. Three members of the Supreme Defence Council were present, both
9 presidents of the member republics, as well as the president of FRY who
10 was also president of the Supreme Defence Council pursuant to Article 135,
11 paragraph 3 of the constitution, correct?
12 A. Yes. And this is one of the rare occasions where other people
13 were not invited, other persons were not invited to attend. Most often
14 federal prime minister would attend these sessions as well as federal
15 defence minister and Chief of General Staff. On this occasion, however,
16 only members of the Supreme Defence Council attended as well as the
17 secretary, who was also chief of military staff.
18 Q. This is the session of the Supreme Defence Council where they
19 discussed the replacement of the then-Chief of General Staff, General
20 Perisic. Would you please look at page 6, the comment of
21 President Djukanovic, who was the president of Montenegro --
22 JUDGE BONOMY: In English we only find five pages.
23 MR. ZECEVIC: It is page 4, the last paragraph, in the English
25 JUDGE BONOMY: Thank you, Mr. Zecevic.
1 MR. ZECEVIC: You're welcome, Your Honours.
2 Q. [Interpretation] Professor, would you please give a comment of the
3 words of President Djukanovic on page 5, second paragraph --
4 MR. HANNIS: Your Honour, I would object to that. The document is
5 in evidence, it speaks for itself. He's an expert on constitutional law
6 and not an expert on what Mr. Djukanovic said. I think it's inappropriate
7 to proceed this way.
8 MR. ZECEVIC: Your Honours, we're trying to find out what is the
9 character -- constitutional character of this -- of this body, VSO. So we
10 are very limited with the sources. The only source, as I said, is
11 constitution and the basic laws on -- Law on Defence and Law on VJ. But
12 definitely I think important source would be the actual minutes of the --
13 of the VSO meetings. Professor will not be commenting on the actual
14 content; he will comment on the understanding of the participants of the
15 character of this meeting, which came out from their words in -- which are
16 in the -- which are contained in the minutes.
17 JUDGE BONOMY: You're talking about the last paragraph?
18 MR. ZECEVIC: Yes, but I'm just putting in a context because
19 President Djukanovic says that -- that he's opposing, and then President
20 Milosevic is explaining to him the role of the president and of the
21 Supreme Defence Council. And I think it's a very important issue, and
22 Professor can comment on that from purely scientific point of view. Thank
24 [Trial Chamber confers]
25 JUDGE BONOMY: In light of what you've said, Mr. Zecevic, let's
1 here the question phrased fully.
2 MR. ZECEVIC: Yeah --
3 JUDGE BONOMY: The way you've left it initially - admittedly you
4 were interrupted - but it looked as though you were asking for a general
6 MR. ZECEVIC: Yes.
7 JUDGE BONOMY: But that's not what we're hear to listen to. We
8 can interpret this for ourselves. If you're wanting to put it in its
9 context in some way, then we understand that line; but if all you're
10 trying to do is ask what all this was about, then we can decide that on
11 the basis of what's there.
12 MR. ZECEVIC: I understand, Your Honour.
13 Q. [Interpretation] Professor Markovic, my question is as follows.
14 Would you please comment from a purely scholarly point of view the content
15 of these minutes, not just minutes from this particular session, but also
16 others that we will be looking at. Would you please tell us something
17 about the character of this organ as well as the character of decisions
18 passed by this organ that we will see in minutes from some other sessions.
19 I'm not asking you to comment upon the facts mentioned here because you
20 were not present, and as His Honour has said the minutes speak for
22 A. These minutes - and I have read all of them - are quite
23 valuable --
24 MR. HANNIS: I'm sorry, Your Honour, I have an objection to the
25 form of this question.
1 JUDGE BONOMY: Yes.
2 MR. HANNIS: This is vague. The character of this body? What's
3 he gleaned at from this is based on his review of all of the minutes. I
4 think it's vague, it's non-specific, and I object to the form of the
5 question. He's an expert on constitutional law. I don't see how this
6 relates to his area of expertise, at least as the question is presently
8 MR. ZECEVIC: Your Honour, my point is the following. If the
9 decisions or whichever conclusions of the --
10 MR. HANNIS: Your Honour, maybe we should have this discussion
11 outside the presence of the witness.
12 MR. ZECEVIC: Okay. I agree, Your Honour, maybe the witness can
13 be excused and we can resolve this issue.
14 JUDGE BONOMY: Is -- well, my understanding is your question is
15 about the way in which the Supreme Defence Council works.
16 MR. ZECEVIC: Yes.
17 JUDGE BONOMY: And whether this illustrates it or not.
18 MR. ZECEVIC: Well, Your Honours, it's two-fold, actually, not
19 from this -- this concrete -- minute of this concrete session are aimed at
20 how the VSO works, which I think is a very important issue for you to
21 determine what is the character of that organ because that is the -- one
22 of the issues which is in dispute. The other thing which is even more
23 important --
24 JUDGE BONOMY: Well, we can wait until you ask the question about
1 Mr. Hannis, if that's what this is aimed at illustrating, then it
2 appears to us to be within the competence of a constitutional expert to
3 say that it appears to be operating either outwith or within the terms of
4 the constitution.
5 MR. HANNIS: If the question is phrased that way, I don't have a
6 problem, but as I see the question now it's an open question. It's a
7 softball to him to say: Tell us about the character of this body.
8 I mean, you yourselves, Your Honours, can see how this body worked
9 by reviewing the minutes yourselves. You can see how it worked. His
10 comment is about that isn't going to add anything to it that I can't add
11 or anybody else in the courtroom can add. It speaks for itself. Now if
12 the question is rephrased more along the lines that you described, then
13 I'm probably going to sit down and shut up.
14 JUDGE BONOMY: Mr. Zecevic, would you care to rephrase the
16 MR. ZECEVIC: [Interpretation]
17 Q. Professor, would you be so kind and explain on the basis of your
18 review of these minutes, what is your opinion as to whether this organ
19 operated in accordance with the constitution of the Federal Republic of
20 Yugoslavia; and if so, on the basis of what did you reach such a
21 conclusion? And if your answer is negative, then what do you base that
22 answer upon? Would you please help us with that, Professor.
23 A. These minutes are important because they clarify the meaning of
24 Article 135, paragraph 1 of the constitution, especially this portion of
25 this sentence: "In accordance with the decisions" --
1 JUDGE BONOMY: Hold on. Mr. Hannis now has a --
2 MR. HANNIS: I apologise to the witness, Your Honour, but I think
3 the question first was calling for a yes or no answer; and then once he
4 gave his answer, yes or no, then he should explain why his answer was yes
5 or no. We need to hear yes or no first.
6 JUDGE BONOMY: So, Professor, can you give us a yes or no answer?
7 MR. ZECEVIC: [Interpretation]
8 Q. Professor, His Honour was referring to my question. Could you
9 please give us a yes or no answer, could you assist us?
10 A. Yes, of course, I can assist you, but I would rather interpret
11 Article 135, paragraph 1, because it contains a certain notion: "In
12 accordance with a decision" --
13 JUDGE BONOMY: Professor, the -- there are actually two questions
14 asked, and the first one is: What's your opinion as to whether the
15 Supreme Defence Council operated in accordance with the constitution?
16 Now, you can answer that either yes or no. Which answer would you wish to
18 THE WITNESS: [Interpretation] No.
19 JUDGE BONOMY: And following on from that question, Mr. Zecevic
20 wishes you to explain the basis on which you come to that conclusion from
21 these minutes.
22 THE WITNESS: [Interpretation] I understand your question quite
23 well, Your Honour. When I said "no," I was referring to the fact that
24 Article 135, paragraph 1, means that the Supreme Council adopts decisions,
25 and there is a list of decision, just as there is a list of decisions of
1 the president of the republic, the Federal Republic as supreme commander
2 and Chief of General Staff. Those are rules, orders, instructions, and so
3 on. Not a single enactment establishes the list of decisions that Supreme
4 Defence Council can pass. I think that the word "decision" here was used
5 in its generic sense without establishing the form of these decisions.
6 However, if one goes through the minutes, one can see that the Supreme
7 Defence Council did not pass any decisions; rather, they issued
8 conclusions. All of the sessions that I reviewed in 1997 and 1998 and one
9 session in 1999, nowhere did I find that the Supreme Defence Council
10 adopted a decision.
11 In only two of its sessions, one on the 9th of June, 1998, and the
12 other one on the 4th of October, 1998, it passed conclusions. If one
13 carefully reads those conclusions, one can see that they are no decisions.
14 They are simply political views. And the president of the Supreme Defence
15 Council interpreted Articles 135 and 133 [as interpreted] of the
16 constitution in such a way that the Supreme Defence Council adopts
17 conclusions and not decisions. This can be seen from this portion of the
18 minutes that you're referring to now. This is how I interpret the words
19 of President Djukanovic, president of Montenegro, as well.
20 Now, as for the interpretation of these particular articles of the
21 constitution, President Milosevic gave his interpretation of those
22 articles on the same page of these minutes. By your leave I would refer
23 to these portions, but when I said that my answer was no, what I was
24 referring to is that the Supreme Defence Council never passed any
25 decisions. No such decisions were published anywhere, in any kind of
1 journal or gazette, not even in the military gazette or in the Official
2 Gazette of the Federal Republic of Yugoslavia. There is no enactment
3 establishing the form of such decisions, and if one goes over these
4 minutes one can see that that body passed no decisions. They simply
5 adopted conclusions which were of political nature, not of military or
6 professional nature.
7 MR. ZECEVIC: Well, am I allowed to pursue in this direction, Your
8 Honour, or ... I'm wondering where we stand?
9 JUDGE BONOMY: Yes, well -- I think the answer was given to a
10 question that's within the area of expertise of the witness.
11 MR. ZECEVIC: Okay.
12 JUDGE BONOMY: And you can pursue that if you wish.
13 MR. ZECEVIC: Thank you. Just one intervention in the --
14 JUDGE BONOMY: Whether one would agree with what he says about
15 decisions and conclusions is quite another matter.
16 MR. ZECEVIC: I understand. There is one intervention in the
17 transcript in 58, 17, Article 135 and 136 I believe was the reference made
18 by Professor.
19 Q. [Interpretation] Professor, when saying that the articles were
20 interpreted, were you referring to 135 and 136 or 135 and 133?
21 A. No, in 136 the president of the republic carries out this
22 independently, whereas in article 135 he does that in accordance with the
23 decisions of the Supreme Defence Council.
24 Q. Professor, please tell me on the basis of responsibilities of the
25 Federal Republic of Yugoslavia listed in Article 77 of the Constitution of
1 FRY, paragraph 7, which says that it has competencies -- that it is only
2 the federal republic that has competencies in the sphere of defence and
3 security, then what is your opinion about the legal and constitutional
4 position of the president of FRY in relation to the other two members of
5 the Supreme Defence Council, that is to say presidents of member republics
6 Serbia and Montenegro?
7 A. It is certain that both in the constitutional and political sense,
8 the position of the president of the Federal Republic of Yugoslavia
9 carries greater weight. In the constitutional and legal sense, based on
10 Article 135, paragraph 3, he's the president of the Supreme Defence
11 Council. As for the political aspect, he was elected by a federal organ,
12 by the Federal Assembly. He himself is a federal organ. By nature of his
13 office, he has to have an overall picture and bear in mind the interests
14 of the Federation as a whole, whereas presidents of member republics are
15 limited only to the interests of their own republic.
16 This is something that President Djukanovic stated explicitly in
17 these minutes when he said that he was against the replacement of the
18 Chief of General Staff, and he said, Not only am I against that, but I'm
19 here conveying the position of the entire leadership of the republic.
20 That is to say, he takes the viewpoint of his own republic, bearing in
21 mind the interests of his republic, whereas the president of the federal
22 republic has to bear in mind the interests of the federation as a whole.
23 And it is for those reasons that his position carries greater weight, both
24 in the constitutional and legal terms because constitution specified that
25 he was the president of the Supreme Defence Council and also because he is
1 a federal organ and has to bear in mind the interests of the federation as
2 a whole, not just the interests of individual republics.
3 JUDGE BONOMY: Professor, when it came to policy of the army, the
4 use -- the policy of how the army might be used, the extent to which it
5 might be involved in what would normally be seen as civilian affairs, if
6 the president of the Federation took one view and the presidents of the
7 two republics took the opposite view, what would be the power of the
8 president as the commander of the army?
9 THE WITNESS: [Interpretation] Of course this is a hypothetical
10 situation. The rules of procedure of the Supreme Defence Council regulate
11 that, and these rules of procedure that were adopted I think in 1992 -- or
12 was it 1993? I'm not sure. Well, they say that the Supreme Defence
13 Council does not make decisions by consensus but by majority. That is to
14 say that in that case it would be the presidents of the two respective
15 member republics would prevail. However, my observation is that the
16 Supreme Defence Council never made any decisions. It only adopted
17 conclusions. That can best be seen if we were now to look at the
18 conclusions of the session of the 9th of June, 1998, and the 4th of
19 October, 1998. There is no decision there; there is just a conclusion.
20 JUDGE BONOMY: Where do we see these?
21 MR. ZECEVIC: Your Honour, it's -- these are the tabs 54, P1574,
22 it's 5th Session of the Supreme Defence Council, 9 June 1998, and that's
23 at page 4 of the translation in bolded letters after: "Regarding this
24 item of agenda FRY President Slobodan Milosevic proposed and the council
25 anonymously adopted the following conclusions ..." And they're bolded,
1 three conclusions.
2 And the second one is tab 55, P1575, minutes of the 6th Session of
3 the Supreme Defence Council, dated 4 October 1998, and the conclusion
4 Professor had in view is listed on page 9, it's bolded and underlined, and
5 it says: "Yugoslavia is in firm," I think "position" is missing in the
6 translation, "in their choice of peace and ready to resolve all
7 outstanding issues in a peaceful manner, but if we should be attacked we
8 will defend our country with all means."
9 Those are the two conclusions Professor was I think referring to,
10 9 June and 4 October.
11 THE WITNESS: [Interpretation] By your leave, in the transcript of
12 the 9th of June there are three conclusions, or rather, that is what
13 President Milosevic proposed, three conclusions.
14 JUDGE CHOWHAN: Excuse me, will not these conclusions be in
15 pari materia with the decision? I mean, only the word is
16 "conclusion" being used because are you making too much of technical
17 interpretation? Will not the word "conclusion" -- can anybody then differ
18 with a conclusion, a conclusion reached at the defence council, can
19 anybody amongst the three players differ with that conclusion, will it not
20 be then a decision?
21 THE WITNESS: [Interpretation] I think that these conclusions were
22 supposed to be carried through by way of decisions yet to be reached.
23 These conclusions are only political positions. To me they look like the
24 positions of a party leadership, a party body, not of a state organ. So
25 all these conclusions have to be turned into decisions that would
1 operationalise these conclusions, otherwise they are merely political
2 positions. In particular, these decisions would have to be published
3 somewhere. I never saw any decision of the Supreme Defence Council. I
4 never saw any decision of the Supreme Defence Council, and it seems that
5 none even exist. Everything that exists is in the records, in the
6 transcripts, and sorry that is not a legal document. It doesn't have any
7 legal effect. All of this is contained in the transcripts, all of this
8 cannot be singled out as a decision. It is an integral part of the
9 transcript and that cannot yield any other result but political.
10 JUDGE BONOMY: Of course, Professor, you can't change the nature
11 of a dog by calling it a cat and albeit you may have a point to make about
12 formality, in the end of the day we will be able to read these various
13 statements and decide on their true nature. I can fully understand your
14 comment in relation to the two that you've identified, but perhaps we'll
15 hear more in cross-examination about others. I don't know. I haven't had
16 a chance to explore this to ask you in detail about others, but I
17 anticipate that from the Prosecution we'll hear more on that.
18 Now is a suitable time to interrupt for lunch. Please go again
19 with the usher, and we will see you back in court at 1.30 -- sorry -- yes,
20 1.30. Sorry, have I -- oh, sorry, sorry. I have -- yeah, I must be -- my
21 mistake, Professor, we should go for another 15 minutes. I'm sorry. I
22 have truly lost the place.
23 MR. ZECEVIC: [Interpretation]
24 Q. Professor, let's please look at tab 57, P1000, that is a session
25 of the Supreme Defence Council, one that was held on the 25th of December,
1 1998. On page 1 and on the last page -- I would be interested in hearing
2 your positions on some of these matters. As for the English translation
3 it's page 1 and then page number 10, the last two paragraphs that continue
4 on page 11. In actual fact, Professor, we have seen that, as you said,
5 Article 136 of the Constitution of the Federal Republic of Yugoslavia, it
6 is the exclusive autonomous right of the president of the FRY to appoint,
7 promote, and recall officers of the army and so on and so forth.
8 On page 1 of the minutes from the 8th Session of the Supreme
9 Defence Council held on the 25th of December, 1998, there is an agenda,
10 isn't there?
11 A. Yes, there is an agenda. It is interesting to look at the wording
12 of item 3 on the agenda, since this is just information. It's no
13 decision, no conclusion, it is merely information.
14 Q. So it's item 3: "Information on proposed appointments in the
15 Yugoslav Army submitted for a decision to the president of the FR of
17 If I understood you correctly, that is in full concord with
18 Article 136 of the constitution because, as I've already said, that is the
19 autonomous right -- I beg your pardon?
20 A. Authority.
21 Q. The autonomous authority of the president of the Federal Republic
22 of Yugoslavia. So this is not decided upon in accordance with the views
23 of the Supreme Defence Council, but quite autonomously, as we've already
24 said. Isn't that right?
25 A. Yes, and it's not clear at all why the president of the Federal
1 Republic of Yugoslavia, who otherwise is the person who proposes agendas
2 for meetings of the Supreme Defence Council, included this item on the
3 agenda of the Supreme Defence Council meeting because he decides on this
4 by himself without the Supreme Defence Council.
5 Q. Thank you, Professor. Would you please have a look now at the
6 last page of this document, where the final positions are referred to. In
7 the English text it is the last two paragraphs on page 10, and then
8 pages -- on page 11 there are paragraphs 2 and 3. At the end here, or
9 rather, in the text it says that: "At the end of the session President
10 Milosevic presented and the Supreme Defence Council adopted the following
11 final provisions."
12 THE INTERPRETER: "Positions," interpreter's correction.
13 MR. ZECEVIC: [Interpretation]
14 Q. I'm referring to the 8th Session of the Supreme Defence Council of
16 A. Yes, I found this.
17 Q. So I'm looking at the final positions, and point 3 reads as
18 follows: "The Supreme Defence Council will continue to be apprised of all
19 matters regarding the army."
20 A. As in the minutes from the session held in November that we looked
21 at a few moments ago in 1998, what was presented was an understanding, a
22 view, of the role of the Supreme Defence Council; that is to say that the
23 Supreme Defence Council is informed about matters pertaining to the Army
24 of Yugoslavia. And in the minutes from November 1998, the president of
25 the Supreme Defence Council expressed the same thoughts. And I am reading
1 from that section. When concluding the discussion the president said that
2 in the future as well he would always consult with the members of the
3 Supreme Defence Council, the presidents of the member republics on the
4 most important matters pertaining to the Army of Yugoslavia.
5 This shows that the Supreme Defence Council is understood to be a
6 consultative body, not a decision-making body. That is what was stated in
7 the minutes from the 7th Session of the 24th of November, 1998, and we see
8 here now in these minutes that you showed to me just now.
9 JUDGE BONOMY: I take it you're -- that comment is confined to the
10 personnel matters which were within the province of the president, and
11 that he consulted the other two for the very reason you gave earlier about
12 the involvement of the presidents of both republics to remove the
13 suspicion of prejudice, so he took the very sensible view of consulting?
14 Now, that's different from the previous article, which is talking about
15 doing things in accordance with decisions of the Supreme Defence Council.
16 THE WITNESS: [Interpretation] Yes, it can be interpreted that way,
17 too, although there is no linguistic material for that kind of
18 interpretation. We can just assume that that is what the president of the
19 republic thought, but he did not say that in so many words. Generally
20 speaking, the Supreme Defence Council was inclined to include in its
21 agenda matters that were not within its realm of work at all.
22 And on the other hand not to make any decisions on matters that
23 did fall into the province of its work. Most of the material from these
24 sessions that I looked at from 1997 and 1998 and one from 1999 have to do
25 with elements of the military budget. The military budget is a part of
1 the federal budget. The proposed federal budget is put forth by the
2 federal government, and it is the federal Assembly that adopts the budget.
3 As for the federal budget, the Supreme Defence Council does not
4 have any powers whatsoever. It should deal with matters pertaining to
5 command over the army, because in Article 135 it says that the army is
6 commanded by the president of the republic in accordance with the
7 decisions of the Supreme Defence Council. And the Supreme Defence Council
8 is discussing material, financial issues that have to do with the budget,
9 the selling of military property and so on and so forth. All of that can
10 be seen from the agendas of its meetings held in 1997 and 1998. I did not
11 read the minutes from the previous sessions held up until 1997. I don't
12 know what the Supreme Defence Council dealt with then, but I myself was
13 quite surprised that that is how the role of the Supreme Defence Council
14 was interpreted. The constitution says something completely different.
15 JUDGE CHOWHAN: But there are constitutions where the -- the
16 break-up of the budget to the army is something out of jurisdiction of the
17 assemblies. They only give a consolidated budget or put it in a
18 consolidated fund. And with respect to the various allocations, this is
19 done a little privately. Maybe this is a role the supreme judicial
20 council was assigned. Secondly, it also had a persuasive role, a role for
21 instance, when it asked Montenegro to pay more than 10 per cent which it
22 was paying, and Serbia was shouldering the 90 per cent of the budget. So
23 those are sessions where such things could be discussed, it is not
24 something in vain. That's what I feel, sir.
25 THE WITNESS: [Interpretation] Yes, I fully agree with you. Indeed
1 there are such countries in the world, and then the Supreme Defence
2 Council is the place that is supposed to deal with constitutional matters,
3 including such a question, but that is not what this constitution says in
4 Article 135. Otherwise, it is certain that the Supreme Defence Council is
5 a place where elements of the military budget can be discussed, by all
6 means. But that was not the concept of the constitution, at least that's
7 the way I interpret it.
8 In the previous period in accordance with the constitution of
9 1974, we had a Presidency of the Socialist Federal Republic of Yugoslavia,
10 which was a highest organ for command and control of the army, however
11 this Presidency dealt with a great many other issues in addition to this
12 one, whereas the Supreme Defence Council is focused on this particular
13 issue. That is the only issue that, according to the constitution, this
14 body should be dealing with. It doesn't have any other authority.
15 JUDGE BONOMY: I note, Professor, that in tab 57 at the foot of
16 the English page 9 and also at the top of page 10 it's plain that
17 President Djukanovic thought that the Supreme Defence Council made
19 THE WITNESS: [Interpretation] I cannot find that particular
20 passage right now. I would appreciate it if I were told how this exactly
22 JUDGE BONOMY: It's in the debate in relation to the conduct of
23 the Pristina Corps, and it all relates to the appointment of General
24 Pavkovic to command the 3rd Army.
25 MR. ZECEVIC: [Interpretation]
1 Q. Professor, if I may be of assistance, it is page 13. It starts
2 with the word "General Dragoljub Ojdanic" in bold, three pages from the
3 end, Professor.
4 A. Well, yes, I haven't got pagination here. I don't have the pages
6 Q. Well, that's the kind of document we have, so it is the third page
7 from the end.
8 A. Ah, the third page from the end, one, two, three.
9 Q. The one-but-last paragraph.
10 A. Yes, but what are these decisions of the Supreme Defence Council
11 that President Djukanovic has in mind? Nowhere were any such decisions
12 published. There are no such decisions. He probably means positions,
13 positions, that's probably what he means because everybody says that
14 positions are taken by the Supreme Defence Council. Positions are not
15 decisions in a formal sense.
16 JUDGE BONOMY: Thank you. We have your position on that. It now
17 is time to break for lunch. The usher will escort you as before, and we
18 will resume at quarter to 2.00.
19 [The witness stands down]
20 --- Luncheon recess taken at 12.48 p.m.
21 --- On resuming at 1.48 p.m.
22 [The witness takes the stand].
23 JUDGE BONOMY: Mr. Zecevic.
24 MR. ZECEVIC: Thank you, Your Honour.
25 Q. [Interpretation] Professor, analysing the questions and answers in
1 the second half of this morning's session, I have come to the conclusion
2 that it might be necessary for you to explain to us briefly the
3 specification of enactments in the Yugoslav, or rather, Serbian legal
4 system, if you can.
5 A. Well, the classification goes like this. In the Serbian legal
6 system you mean?
7 Q. Yes.
8 A. At that time according to the constitution of 1990?
9 Q. Yes, and also the federal legal system under the constitution of
11 A. The Assembly of the Federation enacted the constitution, laws,
12 decisions, and conclusions. The federal government issued decrees,
13 decisions, other types of decisions, instructions, and conclusions. The
14 organs of state administration, that is the ministry enacted rules,
15 orders, instructions, and decisions. The courts handed down judgements,
16 these are individual acts, and the constitutional court issued decisions.
17 The president of the republic issued ordinances.
18 This same classification or specification or nomenclature was
19 valid for the organs of the Republic of Serbia mutatis mutandis, that is,
20 the National Assembly adopted a constitution but there had to be a
21 constitutional referendum. Also, laws, decisions, conclusions, the
22 president of the republic issued ordinances; the government issued
23 decrees, decisions, other kinds of decisions; the ministry issued rules,
24 orders, instructions, decisions, conclusions. The government would also
25 issue guide-lines in the form of conclusions. The courts handed down
1 judgements, whereas the Constitutional Court issued decisions.
2 JUDGE BONOMY: Out of that -- out of that list what I need to be
3 clear about is what is a conclusion?
4 THE WITNESS: [Interpretation] Are you asking me? I apologise. I
5 don't know what Mr. Zecevic's intention was with this question, but one
6 has to conclude that the names, the nomenclature of these legal enactments
7 were provided for by the constitution or the laws. For example, the Law
8 on the Government established what enactments the government could issue.
9 This we also see in the Constitution of Serbia in Article 90. The Law on
10 State Administration provided for the types of documents issued by the
11 ministries. The Law on the Army --
12 JUDGE BONOMY: I follow that, Professor. It's the
13 word"conclusion," the category that you call a "conclusion" is one I'm
14 completely unfamiliar with. I'd like to know what a conclusion is. Give
15 me some examples if that would help.
16 THE WITNESS: [Interpretation] Yes, I can give you examples. For
17 example, the conclusions of the National Assembly before the state
18 delegation went to Rambouillet and on the delegation's return to
19 Rambouillet, those conclusions were issued by the National Assembly. I
20 don't know what number it is here. I could show you what these
21 conclusions looked like.
22 MR. ZECEVIC: Your Honours, that's a part of the factual binders
23 which we have not distributed, but it will be probably tomorrow and then
24 we can show the form of the conclusions.
25 JUDGE BONOMY: Very well. I shall wait till then, Mr. Zecevic.
1 Please carry on.
2 MR. ZECEVIC: Thank you very much.
3 THE WITNESS: [Interpretation] May I just add --
4 [Trial Chamber confers]
5 THE WITNESS: [Interpretation] May I just add that a conclusion is
6 not a legal enactment. A conclusion expresses the positions of the organs
7 issuing the conclusions about a certain issue or matter falling within the
8 competence of that organ. So they do not represent legal norms; they
9 simply express the positions of the relevant organs about such and such a
10 question. But they are included in the list of types of documents and
11 their names.
12 JUDGE CHOWHAN: Do you think you -- is this the same word for
13 "resolution" you are trying to use or "resolution" will be different than
15 THE WITNESS: [Interpretation] I don't know how this word has been
16 translated. Decision is a legal act with a legal norm, with legal force,
17 unlike a conclusion which has no legal force. It only expresses the
18 standpoint on a certain issue. A conclusion is binding only in political
19 and moral terms, but not in terms of legal sanctions, whereas a decision,
20 a "resenje," carries legal sanctions with it.
21 MR. ZECEVIC: Are you satisfied, Your Honour?
22 JUDGE CHOWHAN: No, it's okay, it's a question of language. I
23 think I'm familiar with the word for this type of activity as a
24 resolution, like the Security Council passes a resolution and the General
25 Assembly passes a resolution, they are resolutions. And then if these are
1 conclusions, or he's taking them at power of a conclusion, that's another
2 thing. We understand what's a decision, what's an adjudicatory decision
3 or otherwise, and an order also.
4 MR. ZECEVIC: [Interpretation]
5 Q. Professor, can you explain in relation to a resolution of the
6 Security Council?
7 A. Yes, conclusions are similar to resolutions, they are similar. A
8 resolution also expresses a standpoint on a certain issue falling within
9 the competence of the body issuing the resolution, and the same goes for
10 conclusions. Conclusions are not legal enactments and they are not worded
11 in the manner of legal documents with numbers of articles and paragraphs
12 and so on. So that even in appearance, not only in content, conclusions
13 differ from legal enactments such as laws, decrees, decisions.
14 Q. Thank you, Professor. Professor, this nomenclature which was in
15 force in the Federal Republic of Yugoslavia and Serbia is not specific to
16 Serbia alone. In comparative law are there other states in Europe with
17 similar nomenclatures of legal enactments?
18 A. Of course. All over the world the parliament has a representative
19 body, passes laws, decides on amendments to the constitution, now there
20 are systems in which governments can issue decree laws but this
21 possibility never existed in our country to have decrees law -- decree
22 laws issued.
23 Q. Thank you, Professor. Let's briefly go back to tab 54, P1574.
24 These -- this is a conclusion issued at a session of the Supreme Defence
25 Council held on the 9th of June in paragraph 2, article 2, paragraph 2.
1 Have you found it, Professor?
2 A. Yes, this is a translation into English.
3 Q. And please look at page 4, it's in bold. What I'm interested in
4 is the following. This conclusion is in the conditional form. If
5 something happens, as a consequence of that something else will happen.
6 A. Yes. The conclusion says if the terrorist activities of the
7 Albanian separatist movement escalate, the Yugoslav Army will intervene
8 adequately. This is the question I raised before the break. How on the
9 basis of such a conclusion, we might even call it a decision, can one
10 command the Army of Yugoslavia? What does the word "adequately" means
11 here? It's not explained in operational terms, in operative terms. What
12 does it mean?
13 Q. Professor, without going into the substance of the matter, but
14 looking at it from the legal aspect purely, such a conclusion in order to
15 be operational would have to have some subconclusions adduced to it or
16 another decision where it would be established that certain conditions
17 have been fulfilled, and then adequate intervention would have to be
18 defined. Do you agree with me?
19 A. Yes, I do. I think that this is simply a political position which
20 must be developed further with an expert decision. So based on this
21 position, a decision would have to be issued which would not be expressed
22 in these generalised terms which are not in compliance with legal
24 Q. Please look at tab 55, P1575. These are minutes of a session, the
25 6th Session, that is, of the Supreme Defence Council of the 4th October --
1 4th of October, 1998. And the conclusion I have in mind now is on the
2 page before last of the text in Serbian, or rather, on page 9 of the
3 translation. This conclusion, like the previous one of the 9th of June,
4 is also in the form of a conditional sentence. It says if something
5 happens, then the country will be defended with all means. Do you agree
6 with me?
7 A. Yes, likewise. The language of this is the language of a
8 political position. It is yet to be operationalised. One cannot command
9 on the basis of this conclusion. What does it mean is firm in their
10 choice of peace ready to solve all outstanding issues in a peaceful
11 manner? This does not relate directly to the Army of Yugoslavia, it's got
12 nothing to do with commanding, it's a political position. And if we
13 should be attacked, we will defend our country with all means. Well one
14 such means is the Army of Yugoslavia, but what are all these means? This
15 is to be further developed in a decision operationalising and implementing
16 this political conclusion.
17 Q. Thank you, Professor. To illustrate this we will show what kinds
18 of enactments are issued by the organs competent to deal with military
19 matters in the broad sense of the word, and we will show that each of
20 these enactments has a particular form which is prescribed. Please look
21 at tab 63. This is P984, the Law on the Army of Yugoslavia, on the armed
22 forces. Have you found it, Professor?
23 A. Yes.
24 Q. First let's comment on Article 4, which states -- and I'm actually
25 interested in the last sentence. The article lists eight points
1 establishing what the president of the Federal Republic of Yugoslavia who
2 commands in accordance with the decisions of the Supreme Defence Council,
3 as can be seen in the constitutional text, what the president does when
4 commanding. So he establishes the principles, determines the system,
5 decides on the deployment of the army, and also approves the plan for the
6 use of the army, and so on and so forth. And then the last point says or
7 the last line: "In performing the duties described," that's command
8 duties, "the president of the republic shall issue orders, commands, and
10 So the Law on the Army as the basic legislation for the use of the
11 constitutional provisions of Articles 133, 134, 135, and 136, and
12 primarily the two last of these, prescribes precisely the particular types
13 of documents issued by individual organs in relation to military matters
14 and also the form these enactments are to take or documents. Do you
16 A. Yes, yes. Anyone who knows how to read this can see that from
17 this article, and it says here that the president of the republic, or
18 rather, the president of the Supreme Defence Council is not primus inter
19 pares. He is also independent, he also has independent powers and these
20 are all listed here. And everything he does is done in the form of legal
21 enactments and these are orders, commands, and decisions.
22 JUDGE BONOMY: Two matters arising out of that. First of all,
23 whether he can do anything set out in this article on his own will depend
24 on whether it's constitutional to do so. Is that correct, Professor?
25 THE WITNESS: [Interpretation] It stems from paragraph 1, that he
1 does all of these things in accordance with the decisions of the Supreme
2 Defence Council, and then in commanding the army he has the following
3 possibilities; they are enumerated in eight items, these possibilities.
4 JUDGE BONOMY: All in accordance with decisions of the Supreme
5 Defence Council?
6 THE WITNESS: [Interpretation] In accordance with the decisions of
7 the Supreme Defence Council, but what I said is that I have never seen a
8 decision of the Supreme Defence Council, nor do I know of any that exists.
9 I only saw conclusions of the Supreme Defence Council.
10 JUDGE BONOMY: The second matter is this, the last paragraph that
11 you were referred to which says: "In performing the duties described in
12 paragraph 2 the president shall issue orders, commands, and decisions ..."
13 And you say that that's paragraph 2 above, which is "determining the
14 system of command in the army." Does it follow that in exercising the
15 powers under 1 and 3 to 8 the president can't issue orders, commands, and
17 THE WITNESS: [Interpretation] I think that all of these matters,
18 all of these duties listed in eight items, the president of the republic
19 carries out these duties by issuing a particular enactment. Nothing can
20 be done without an enactment because it is only through an enactment that
21 a legal obligation arises. He can issue commands, orders, or decisions,
22 and it says also here under item 6 that he can issue basic rules or
24 JUDGE BONOMY: Can you assist me then with a possible explanation
25 of why paragraph 2 is singled out in the last sentence?
1 THE WITNESS: [Interpretation] If I have a correct text of the Law
2 on the Army, it has a total of two paragraphs. The first paragraph has
3 eight items, and the second paragraph is what you just mentioned. And
4 this must be a mistake. So either it should say from item 2 of paragraph
5 1, I think that's how it should read because the text that I have has a
6 total of two paragraphs. But the first paragraph has eight items or eight
8 JUDGE BONOMY: Can we have on the screen, please, the B/C/S
9 version of that paragraph -- of Article 4. And then the next page,
11 MR. ZECEVIC: Could we have the first page.
12 JUDGE BONOMY: Is it possible that the reference is not to item 2
13 but actually a reference back to Article 2 of the organisation -- of the
14 law itself?
15 THE WITNESS: [Interpretation] Your Honours, unless I'm overcome by
16 fatigue, all I see in Article 4 are two paragraphs, a total of two
17 paragraphs. And in my view, I don't know if others have a different text,
18 but the text that I have has a total of two paragraphs. And the second
19 paragraph says what you just read out in -- I think that this is a
20 mistake, that it should read: "In paragraph 1 herein" -- or if they
21 wanted to single out just item 2, then they should have said: "Paragraph
22 1, item 2 ..." that's how it should have been worded. It's not clear to
23 me because paragraph 2 is mentioned in the very paragraph 2, in the same
25 JUDGE BONOMY: Mr. Zecevic, I take it we have as official a copy
1 of this proclamation as we could have --
2 MR. ZECEVIC: Definitely, Your Honour.
3 JUDGE BONOMY: All right.
4 MR. ZECEVIC: That's the Official Gazette of -- number 43 of 1994
5 dated 27 May 1994, and this is a P exhibit which both parties stipulated
6 to. It is official text.
7 JUDGE NOSWORTHY: If I might with the leave of the Presiding
9 Professor Markovic, I must confess that on a first reading of the
10 last paragraph of Article 4, I had believed that the distinction was in
11 respect of paragraph 2, to -- the duty to determine the system of command
12 in the army and oversee its implementation. The distinction was is that
13 there was a specific duty in relation to that duty, whereas in all the
14 other instances in that article it were merely discretionary. Is that a
15 possibility? In that particular paragraph, paragraph 2, there is a
16 specific duty based on the last sentence, whereas in all of the other
17 cases there is no duty but there must be a discretion depending on the
18 circumstances of it, particular duty. Are you understanding me?
19 THE WITNESS: [Interpretation] Yes, I fully understand that, but I
20 think that a duty is contained in all of these items. Say item 4, it says
21 here that he has to regulate and order measures. How is he going to order
22 measures unless he issues orders? I don't know whether later on there
23 came a corrigendum in later editions of the Official Gazette. Perhaps
24 there was a corrigendum there, but it is obvious here that this article
25 has a total of two paragraphs and paragraph 2 refers to itself, to the
1 very paragraph 2. So it's either a mistake, either it should have read
2 item 2 of the first paragraph of paragraph 1. Because there are typos,
3 you know, they do occur in Official Gazettes, but later on normally a
4 corrigendum is issued.
5 JUDGE BONOMY: Mr. Zecevic.
6 MR. ZECEVIC: Yes.
7 Q. [Interpretation] Professor, I will attempt to find the corrigendum
8 this afternoon. This is the first time that I came across that myself,
9 but would you please look at Article 6.
10 A. Yes.
11 Q. Which in a way explains this mistake in Article 4. Article 6
12 says: "In order to implement enactments issued by the president of the
13 republic and the duties of commanding the army, as well as the duties
14 stipulated by this law, the Chief of General Staff shall issue rules,
15 orders, commands, instructions, and other documents."
16 So here the enactments issued by the Chief of the General Staff
17 are enumerated in cases where he implements enactments issued by the
18 president of the republic. And all of these enumerated enactments have a
19 predetermined specified form, don't they?
20 A. Yes. We have an entire nomenclature of enactments here. We have
21 rules, orders, commands, instructions, and other enactments. So each of
22 these enactments has a specified legal form.
23 Q. So if we were to take the position that this was a typo in article
24 4, which we will verify and inform the Trial Chamber of, the president
25 would be entitled to issue orders, commands, and decisions, so specific
1 types of enactments, and none of the articles or other regulations specify
2 the form of the enactments issued by the Supreme Defence Council, correct?
3 A. Yes, that's correct. It is not specified either in the Law on
4 Defence or the Law on the Army. They say nothing about the types of
5 enactments issued by the Supreme Defence Council.
6 Q. By nature of things, these documents -- by nature of things, these
7 documents would have to be - if I can say so - of a lower rank, lower
8 level, because according to the constitution the president commands in
9 accordance with. Isn't that right?
10 A. Yes, and what is most important is that they need to be published
11 because the constitution explicitly sets forth that all regulations need
12 to be published. The Constitutional Court - and at the time I was a judge
13 of that court myself - took the position that a regulation which has not
14 been published is not a regulation and cannot be assessed for its
15 constitutionality and legality. That was the position taken by the
16 Constitutional Court of Yugoslavia back in 1991. I'm quite certain of
17 that because I was a judge of that court at that time.
18 So a regulation that has not been published is not a regulation.
19 It simply does not exist in a legal world, and there is no document
20 specifying what the decisions of the Supreme Defence Council, and they
21 have not been published anywhere. And the constitution explicitly says
22 that whatever has not been published is not a regulation at all.
23 Q. Thank you, Professor.
24 A. Because in order for the rule ignorantia legis nocet which means
25 that ignorance of law does not excuse one -- the regulation needs to be
1 published. Furthermore, one cannot be held responsible, or rather, the
2 president of the republic cannot be held responsible for violating the
3 constitution if he were to command without the decisions of the Supreme
4 Defence Council because we don't know at all whether the Supreme Defence
5 Council has issued any decisions and where these decisions were published.
6 So according to the 1992 constitution, the president of the
7 republic could command even without the decisions of the Supreme Defence
8 Council without violating the constitution. Why? Because we have no such
9 decisions of the Supreme Defence Council, and we do not know whether he
10 commanded in accordance with those decisions or not and who formulated
11 those decisions, we don't know that either. As the Trial Chamber probably
12 knows, the president of the Federal Republic of Yugoslavia is held
13 responsible for violating the constitution, and the first president of the
14 Federal Republic of Yugoslavia, Dobrica Cosic, was recalled by the
15 Assembly because the Assembly believed that he had violated the
17 JUDGE BONOMY: Mr. Zecevic, it may be your position is different
18 from that of the witness, I'm not entirely clear, because you've stressed
19 that these implementation orders must be of an inferior nature because the
20 president has to command the army in accordance with decisions of the
21 Supreme Defence Council.
22 MR. ZECEVIC: Yes.
23 JUDGE BONOMY: But as we understand the witness's position, it is
24 that no such decisions were ever made, but nevertheless the president
25 could do as he pleased without the authority of the Supreme Defence
1 Council. In other words, they were a sort of brake only. They didn't do
2 anything positive, but they could intervene to brake, or put the brakes on
3 what he was doing. That's how I understand what he's saying, otherwise
4 these words don't have any meaning.
5 MR. ZECEVIC: [Interpretation] Your Honours, this is a theoretical
6 aspect. I said by nature of things it should be that the orders by way of
7 which the president commands in some sense represent an inferior
8 enactment, because these orders have to be in compliance with the
9 decisions of the Supreme Defence Council.
10 JUDGE BONOMY: Where do we find these decisions?
11 MR. ZECEVIC: I'm sorry?
12 JUDGE BONOMY: Where do we find these decisions?
13 MR. ZECEVIC: Well, that's the whole point, Your Honour. The
14 decisions are not existing.
15 JUDGE BONOMY: Well, maybe they were never written down.
16 MR. ZECEVIC: Well, according to the Professor, then they are not
17 existent in a legal sense.
18 JUDGE BONOMY: But still somehow or the other the president still
19 has power to command.
20 MR. ZECEVIC: Yes, according to the Law on VJ, he has the power to
22 JUDGE BONOMY: So these words don't actually have any
23 significance. You can ignore the words: "In accordance with the
24 decisions of the Supreme Defence Council ..." and read this without them?
25 MR. ZECEVIC: Well, in practice it would look like that, yes.
1 JUDGE BONOMY: All right. Well, please continue.
2 MR. ZECEVIC: Thank you.
3 Q. [Interpretation] Professor, now let us move on very briefly,
4 please, to the rights of the members of the Supreme Defence Council. The
5 constitution does not mention this nor does any other formal regulation.
6 The only regulation that could seem relevant in this respect is an
7 internal enactment of the Supreme Defence Council itself, the rules of the
8 Supreme Defence Council. So far there were three of them: One from 1992,
9 1999, and 2001, correct?
10 A. Yes.
11 Q. Tab 59, P2622, is the 1992 rules of procedure?
12 A. Which one did you say?
13 Q. Tab 59, P2622. 59.
14 A. Yes.
15 Q. Professor, it is important to observe here that these rules of
16 procedure were never published in an Official Gazette or similar
17 publication. Is that correct?
18 A. Yes, it is [as interpreted]. In the legal world it does not exist
19 until it is published. So this was only an internal document of the
20 Supreme Defence Council.
21 MR. ZECEVIC: I think we have a problem with the transcript, 84,
22 21. The answer was: "Yes, it is not." It hasn't been published. Maybe
23 it's my problem, the way how I pose the question.
24 Q. [Interpretation] Professor, was this document published somewhere
25 or wasn't it -- was it not?
1 A. This document to the best of my knowledge was not published, and
2 the first time I saw it was when preparing for this testimony.
3 Q. The same applies to the rules of procedure of 1999?
4 A. Yes.
5 Q. And 2001?
6 A. Yes.
7 Q. With respect to what you said just a while ago about the
8 Constitutional Court, as this was never published the court could never
9 evaluate its constitutionality and legality?
10 A. Of course. If a regulation or rules have not been published,
11 objectively they do not exist, they are not materialised in the legal
12 world. So the Constitutional Court lacks the elements on the basis of
13 which to evaluate the constitutionality of the document. The regulation
14 or the rules of 1999 contain very -- contain a provision that goes
15 completely against the constitution, it violates the constitution, but
16 there was never any basis for the Constitutional Court to rule on it.
17 It -- it actually provides for something that is already provided for in
18 the constitution, but it does so in a different way, in a way that's
19 completely opposed to it.
20 JUDGE BONOMY: Mr. Zecevic, I wonder if you might be able to find
21 for us for tomorrow the decision of the Constitutional Court dealing with
22 the matter, the one that the witness has been referring to.
23 MR. ZECEVIC: Definitely, Your Honour, I will give the instruction
24 right now. Just let me confer with my colleagues.
25 [Defence counsel confer]
1 MR. ZECEVIC:
2 Q. Professor --
3 [Trial Chamber confers]
4 MR. ZECEVIC: May I, Your Honour --
5 THE WITNESS: [Interpretation] Just to assist ...
6 [Trial Chamber confers]
7 JUDGE BONOMY: Mr. Zecevic.
8 THE WITNESS: [Interpretation] May I assist, Your Honours. I wish
9 to assist the Defence. The Constitutional Court adopted this position
10 about an enactment of the Presidency of the SFRY in 1991, and it refused
11 to evaluate the constitutionality of that document because it had never
12 been published anywhere. The decisions of the Constitutional Court are
13 published in the Official Gazette. It was the Official Gazette of the
14 SFRY at the time, and this was in the year 1991 and had to do with
15 evaluating the constitutionality of an enactment of the Presidency of the
16 SFRY and it also referred to command.
17 JUDGE BONOMY: Thank you.
18 JUDGE CHOWHAN: Can you kindly give us, if you can, the reasons
19 for non-publication. What could be? Was it a design or was it
20 inadvertence or this was not followed. Do you have any information or
21 knowledge or your own views about it? We would like to hear, please.
22 THE WITNESS: [Interpretation] My opinion is quite simple. I think
23 the rules were not published because they had not been drafted by the
24 Supreme Defence Council. The Supreme Defence Council only adopted
25 political positions which were yet to be formulated as decisions. And
1 secondly, the Supreme Defence Council was not an expert legal organ
2 capable of issuing such documents, and there were people in it without any
3 military education or training. So how could they issue legal decisions
4 concerning commanding of the army.
5 JUDGE BONOMY: But, Professor, the rules that our attention has
6 been drawn to are signed by the president and stamped with the official
7 stamp. And Judge Chowhan is asking why when all these formalities have
8 been carried out would the document not be published in the gazette.
9 THE WITNESS: [Interpretation] Your Honours, I can only speculate
10 about this --
11 JUDGE BONOMY: Well, please do not speculate. Thank you.
12 Mr. Zecevic.
13 MR. ZECEVIC: [Interpretation].
14 Q. Professor, we are talking about tab 59, P2622. Would you kindly
15 comment on Articles 4, 5 -- or 4 and 5. After that we will comment on
16 Article 7, but first let's start with Article 4 about convening the
17 sessions of the Supreme Council?
18 A. Article 4 is clear. It's always the president who convenes a
19 session, and he can do so on his own initiative or at the proposal of a
20 member of the Supreme Defence Council. It doesn't say he is duty-bound to
21 convene a session if a member of the Supreme Council proposes it. The
22 formulation is such that he may or may not convene a session in that case.
23 Q. So one of the two members of the Supreme Defence Council,
24 according to this, would have the right only to propose to the president
25 of the Federal Republic of Yugoslavia, who according to the constitution
1 is also the president of the Supreme Defence Council, to convene a session
2 of the Supreme Defence Council. Is that correct?
3 A. Yes, it's correct. He can only propose that.
4 Q. The president of the Federal Republic of Yugoslavia who is,
5 according to the constitution, also the president of the Supreme Defence
6 Council has the discretionary right to decide whether to accept this or
8 A. The formulation is such that this interpretation is possible, yes.
9 Q. Please look at Article 5. This article deals with the agenda for
10 the sessions. The agenda is also put forward or proposed by the president
11 of the Supreme Defence Council or the chairman, but a member of the
12 Supreme Council may also propose an agenda. So the idea is the same as in
13 Article 4, a member can only propose or suggest?
14 A. Yes, it's the same formulation, but reading the minutes I have
15 never seen an instance of a member of the Supreme Defence Council
16 proposing an amendment to the agenda.
17 Q. Thank you. Professor, according to our usual practice, if there
18 was a duty or an obligation on the president to convene or -- well, to
19 convene a session or include an item on the agenda at the proposal of one
20 of the members of the Supreme Defence Council, these provisions would have
21 been worded quite differently, would they not? They would have been
22 worded explicitly?
23 A. Yes.
24 Q. An example of this would be the Constitution of Serbia, P855, tab
25 number 5, Article 79, paragraph 3 or item 3. Can you explain this very
1 briefly, please.
2 A. Tab?
3 Q. It's tab number 5, P855.
4 MR. ZECEVIC: Can we have that on the e-court, please.
5 THE WITNESS: [Interpretation] Excuse me, what article?
6 MR. ZECEVIC: [Interpretation]
7 Q. 79, paragraph 3. This article refers to an extraordinary session
8 of the Assembly.
9 A. Yes, the wording is such and that it says the National Assembly
10 shall convene on an extraordinary session upon the demand of not less than
11 one-third of the total number of deputies or on the demand of the
12 government with an agenda prepared in advance. So the Assembly shall
13 convene if one-third of the deputies demands that or the government. The
14 president or the Speaker of the National Assembly does not have the
15 discretionary right to decide whether or not to convene an extraordinary
16 session. An extraordinary session must be convened ipso facto because at
17 least a third of the deputies have requested it or of the government.
18 Q. Thank you. Thank you Professor. Let us go back to the Law on the
19 Army. Yes, the Law on the Army, tab 63, P984.
20 Professor, we have seen Article 4 concerning the powers of the
21 president of the republic as the commander of the army and the other
22 organs of the General Staff and so on. Is it not a fact that in the Law
23 on the Army, except for paragraph 1 of Article 135 which contains a
24 provision from, or rather, in Article 4, paragraph 1, which actually has
25 the same text as Article 135, paragraph 1 of the constitution, there is no
1 further mention of defence [as interpreted]?
2 A. Yes, I can assert that with confidence because I think I have read
3 the entire law carefully, and I think that this is the only place where
4 the Supreme Defence Council is mentioned. It's a long law and it has 366
5 articles, so it's three times longer than the constitution.
6 Q. Thank you.
7 MR. ZECEVIC: I have a correction in the transcript, 90, row 6:
8 "No further mention of the..." It says here "defence," it was "Supreme
9 Defence Council." After the "no further mention of Supreme Defence
11 Q. [Interpretation] Professor, let's look at the following. When
12 analysing the Law on the Army, let's look at chapter 13 which refers to
13 the responsibility of members of the military and disciplinary
14 responsibility first of all. That's on page 39 of the English
15 translation, and it's Article 159.
16 Professor, Article 159 distinguishes between different kinds of
17 disciplinary infractions. There is an error and an offence or an
18 infraction and an offence, a less serious and a more serious form --
19 A. Of military discipline. Yes. It draws the distinction of
20 disciplinary -- breaches of discipline.
21 Q. Article 168 on the following page authorises the president of the
22 republic - this of course refers to the president of the Federal Republic
23 of Yugoslavia - to lower, mitigate, or pardon every disciplinary measure
24 or sentence, does it not?
25 A. Yes. He has the right to pardon disciplinary breaches.
1 Q. Professor, a brief comment on Article 173, the Rules on Military
3 A. Yes, just let me take a look. We can see here what enactments can
4 be issued by the president of the republic. These are the rules on
5 military discipline and in the nomenclature of enactments rules are also
6 mentioned. So the president of the republic can issue rules, and he has
7 only procedural authority here; namely, to prescribe the procedure and
8 jurisdiction for disciplinary offences and who has the right to impose
9 disciplinary measures and sentences, whereas the offences themselves are
10 regulated by the law. So here he has procedural authority, and the law
11 prescribes the substantive rules. So the procedural matters are regulated
12 by the president of the republic.
13 Q. When you say substantive norms, you are referring to -- when you
14 say substantive norm, you are referring to Article 159 which we have
15 mentioned, you are referring to the norm from that article?
16 A. Let me just see.
17 Q. 159.
18 A. Let me just see. 160 --
19 Q. I was referring to 159, which establishes the kinds of
20 disciplinary breaches.
21 A. Yes, but disciplinary breaches are regulated, specified by the
23 Q. Yes. And now, please, Article 204, Professor.
24 A. Yes.
25 Q. This deals with the responsibility during a state of war. Would
1 you please comment on paragraph 3 of Article 204.
2 A. Here he's given a power that he does not have under normal
3 circumstances, the power to prescribe other disciplinary measures or
4 sentences other than those stipulated by the law or prescribed by the law.
5 Or he can rule that certain disciplinary measures or sentences established
6 by that law will not be applied. So he can either introduce new ones or
7 he can decide that some of those prescribed by the law will no longer be
8 used; that is to say he can modify the provisions of the law when it comes
9 to certain disciplinary measures or sentences.
10 In addition to that, he can also prescribe different procedure and
11 jurisdiction for reviewing these matters as well as different rules for
12 the responsibility of service members and establish different organisation
13 operation of military disciplinary courts.
14 Q. Professor, would you agree with me that Article 204 regulates a
15 situation where there is a state of war, during which time the powers of
16 the president of the Federal Republic of Yugoslavia are expanded in
17 relation to the powers he has in peacetime when it comes to the discipline
18 of the members of the Army of Yugoslavia?
19 A. Yes. His powers are expanded in those circumstances. He's even
20 authorised to amend provisions of a law.
21 Q. Very well. Professor, on the basis of these documents, or rather,
22 now that we're dealing with the Law on the Army, let us look at some other
23 articles as well, please. Article 46, please, Professor.
24 A. Yes.
25 Q. Exceptional promotion. By way of this article, the president may
1 exceptionally promote a professional officer to the rank of general?
2 A. Yes, at the proposal of the Chief of General Staff.
3 Q. Yes.
4 A. Yes this is the same power as the one mentioned in Article 136.
5 Q. Yes. But this is an exceptional promotion; that's where the
6 distinction lies, I think?
7 A. Yes, correct, and this exceptional promotion can be done at the
8 proposal of the Chief of General Staff.
9 Q. So the proposal of the president of Federal Republic of Yugoslavia
10 on the basis of the constitution, and its Article 136 has the power to
11 promote under regular circumstances generals, to remove them, to appoint
12 them, and so on, whereas by way of this article he can also implement an
13 exceptional promotion on the basis of this Article 46 of the Law on the
15 A. Yes.
16 Q. Article 107, Professor -- just a moment, please. I think it's
17 paragraph 6. I'm tired myself now, but I think it's paragraph 6 of
18 Article 107 that speaks of a situation where a professional officer -- and
19 then under item 1 it says that the president of the republic may keep in
20 service a professional officer --
21 A. Yes, in the rank of general.
22 Q. Yes.
23 A. So this article established the basis for termination of
24 professional service ex lege by operation of law, but it also created a
25 possibility whereby president of the republic may keep in service a
1 professional officer even though conditions for terminating the service
2 have been met. A professional officer who holds the rank of general, even
3 though that particular person has met the conditions for retirement, as
4 stipulated by law.
5 Q. Thank you. And now the final article is 151, chapter 12.
6 Authority to decide on service relations and issue of other enactments.
7 Where it says that the president and then it speaks of four powers of the
8 president. Do you see that, Professor?
9 A. Yes.
10 Q. So the president promotes two initial ranks to the ranks of
11 major-general or higher, and then he also issues decisions on transfers,
12 service status, admission to professional service, and termination of
13 service. And he also appoints officers with the rank of colonel to duties
14 for which the rank of general has been determined in the establishment.
15 If I understand this well, Professor, these powers enumerated in
16 Article 151 give absolutely all existing powers to the president of the
17 Federal Republic when it comes to appointment, transfer of officers, their
19 A. This article is a way to partially make more concrete Article 136
20 of the constitution because Article 136 of the constitution says that the
21 president appoints, dismisses, or promotes officers mentioned in the
22 federal law, and then the federal law in the first two items specifies
23 which officers of the Army of Yugoslavia those are who can be appointed,
24 promoted, or dismissed by the president of the republic. And then the law
25 goes on further saying that the president of the republic also issued
1 decisions on transfer, service status, admission to professional military
2 service, and termination of service of generals. And then in item 4 it
3 says that he appoints officers with the rank of colonel to duties for
4 which the rank of general has been determined in the establishment.
5 JUDGE BONOMY: I hope this is leading somewhere, Mr. Zecevic --
6 MR. ZECEVIC: Yes.
7 JUDGE BONOMY: -- because we can read all these provisions for
8 ourselves, and you can make submissions about them. So is there a point
9 on which we need an opinion here?
10 MR. ZECEVIC: Yes.
11 JUDGE BONOMY: All right.
12 MR. ZECEVIC: [Interpretation]
13 Q. Professor, one of the basic laws for implementing the constitution
14 when it comes to the army is the Law on the Army, that is the most
15 concrete, basic law, correct?
16 A. Yes.
17 Q. Everything that is related to the authority over the army, that is
18 to say commanding, appointments, promotions, dismissals, transfers,
19 disciplinary procedures, fall exclusively under the jurisdiction of the
20 president of Yugoslavia, correct?
21 A. Yes, except for Article 4, which we have mentioned already, where
22 the tasks from Article 4 are something that he conducts in accordance with
23 the decisions of the Supreme Defence Council.
24 Q. Which is mentioned in Article 135?
25 A. Yes, Article 135, whereas all other responsibilities that you have
1 just mentioned, they arise on the basis of specific provisions of the law,
2 and the president of the republic conducts them independently without the
3 decisions of the Supreme Defence Council.
4 Q. Tell me please, Professor, on the basis of the Law on the Army of
5 Yugoslavia that we have just analysed, members of the Supreme Defence
6 Council, do they have any independent authority in relation to the Army of
7 Yugoslavia in your view?
8 A. They have none. They only have authority as members of that body,
9 collective body, where the decision-making goes either by majority of
10 votes or as the rules of procedure specify -- but the rules of procedure
11 were never applied, but they still specify that it can be done by
12 consensus. So they have no independent authority; they only have
13 authority as members of the Supreme Defence Council.
14 Q. But even as members of the Supreme Defence Council, on the basis
15 of Article 136 of the constitution, they have no power to relieve of duty,
16 to recall, or to transfer any member of the Army of Yugoslavia?
17 A. They do not have such authority. It is only the president of the
18 republic that has such authority.
19 Q. The same pertains to the ability of the members of the Supreme
20 Defence Council as a collective body to punish or to hand down a
21 disciplinary measure in relation to any member of the armed forces or the
22 Army of Yugoslavia on the basis of the provisions of the Law on the Army
23 that we have just analysed?
24 A. Yes, that's correct. We have explained that.
25 Q. Professor, now that we are here I would like to comment upon the
1 constitutional text, or rather, I would like us to draw a parallel between
2 the provisions of Article 135 of the Constitution of the Federal Republic
3 of Yugoslavia, where it says that the president of the Federal Republic of
4 Yugoslavia commands the Army of Yugoslavia in accordance with the
5 decisions of the Supreme Defence Council. So between that and the
6 formulation that existed in the Constitution of the Socialist Federative
7 Republic of Yugoslavia, which is tab 9 here, and it's P1623, Article 313,
8 paragraph 3, and Article 328, paragraph 2.
9 So the constitution from 1992 only uses the term "command," and
10 this is something that the president does in accordance with the decisions
11 of the Supreme Defence Council under Article 135. If we look at the
12 Constitution of the SFRY, Article 313, paragraph 3, it says here: "The
13 SFRY Presidency is the supreme body in charge of the command and control
14 of the armed forces of the Socialist Federal Republic of Yugoslavia in war
15 and in peace." Isn't that right?
16 A. Based on this formulation, it is completely clear that the
17 Presidency of the SFRY is a supreme collective body. So it is the
18 highest, that is to say the supreme body in charge of command and control
19 of the armed forces of the SFRY in war and peace. No such qualification
20 is given in relation to the Supreme Defence Council. It is not stated
21 anywhere that the Supreme Defence Council is the highest organ of command
22 and control of the Army of Yugoslavia.
23 Q. So that means that that would be one distinction, and the other
24 one if you agree has to do with control. In the 1992 constitution it says
25 that the president of the Federal Republic of Yugoslavia commands in
1 accordance with in war and peace, whereas it says here that the Presidency
2 is the highest organ of command and control.
3 Professor, I'm not asking you to explain to us what it means to
4 control the armed forces - it's not part of your expertise - I'm just
5 asking for you to confirm that there is this distinction between two
6 constitutional texts.
7 A. Yes, basic reading implies that. These are two different
9 Q. And I think that there is another very important distinction
10 between the provisions of the 1992 FRY constitution, Article 135, that we
11 have quoted several times here, and Article 328 of the Constitution of the
12 Socialist Federative Republic of Yugoslavia of 1974, paragraph 2 of that
13 article where it says that: "The president of the Presidency of the SFRY
14 shall, on behalf of the SFRY Presidency, carry out command of the armed
15 forces of the Socialist Federative Republic of Yugoslavia in compliance
16 with the present constitution and federal law."
17 Professor, would you please explain the difference between this
18 situation described in Article 328 of the SFRY constitution, paragraph 2,
19 where it says that the president commands on behalf or in the name of, so
20 what's the difference between that and the text of Article 135 of the 1992
22 A. The formulation of the 1974 constitution, Article 328, paragraph
23 2, firmly links the president of the Presidency to the decision relating
24 to the command of the armed forces of the Socialist Federative Republic of
25 Yugoslavia. He, the president of the Presidency, commands the armed
1 forces only on behalf of the Presidency. But the Presidency is the one
2 who made the decision. It is quite clear. But since the Presidency is a
3 collective body comprising eight members, it is a physical impossibility
4 to have all eight of them commanding the army. No. They make the
5 decision, and then on behalf of that body, the president of the Presidency
6 commands the armed forces of the Socialist Federative Republic of
8 In the 1992 constitution, it says that the president of the
9 Federal Republic of Yugoslavia commands the Army of Yugoslavia pursuant to
10 decisions of the Supreme Defence Council. So it's not on behalf of the
11 Supreme Defence Council, but rather in accordance with the decisions of
12 the Supreme Defence Council. This is a much weaker link, and based on the
13 minutes from the sessions we can see that this Supreme Defence Council
14 adopted decisions in the form of conclusions.
15 So the president commanded the army in accordance with those
16 conclusions or positions. So there was a much weaker link between him and
17 the Supreme Defence Council and their decisions. There was a much weaker
18 link than the one existing between the president of the Presidency and the
19 Presidency of the SFRY. The presidents of the -- the president of the
20 Presidency was himself a member of the Presidency; he wasn't a separate
21 individual organ, as is the president of the republic, who is only an
22 ex officio member of the Supreme Defence Council.
23 Q. Please, Professor, just slow down a little for the interpreters.
24 A. Do I have to repeat anything?
25 Q. No, it's all right, but please try to speak a little more slowly.
1 I know it's late. We'll be finished quite soon.
2 Professor, you said that the Presidency, the eight-member
3 Presidency was a collective organ, a collegium. According to the
4 provision we have just read out, the president of the Presidency commanded
5 on behalf of or in the name of that organ, and that's stated in the
6 constitution. On the other hand, in 1992 again we have a collegium, a
7 three-member organ, a collective organ. So the difference between three
8 and eight is only in the number of members, nothing else; isn't that
10 But in this case in the constitutional text it is not stated that
11 the president commands on behalf of or in the name of the Supreme Defence
12 Council. It just says in compliance with or pursuant to decisions. But
13 would you agree with me my conclusion that based on analysis of these two
14 decisions we can conclude that the Presidency as a collegial organ, a
15 collective organ was the organ that had command and control over the armed
16 forces of the Socialist Federative Republic of Yugoslavia, whereas in 1992
17 the VSO, the Supreme Defence Council, did not have that?
18 JUDGE BONOMY: Don't answer that question.
19 First of all, it's a leading question, although that's not such an
20 important issue with expert evidence. But secondly, it goes to an
21 important issue for us to determine. The Professor has explained how he
22 sees the differences between the two constitutional -- sorry, the two army
23 rule and constitutional provisions, and we shall take that into account in
24 determining the very matter that you have raised.
25 MR. ZECEVIC: I understand, Your Honour. Thank you very much.
1 Q. [Interpretation] Professor, let's just analyse very briefly tab
2 62, the Law on Defence, P985. Professor, the Law on Defence is, I would
3 say, of a more general character than the Law on the Armed Forces, is it
5 A. Yes, it speaks of defence in general, not a single subject of
6 defence as the Law on the Army does.
7 Q. In Article 2 lists the subject who have rights and duties in the
8 defence of the country, among them the Army of Yugoslavia; isn't that
10 A. Yes.
11 Q. After that as lex specialis we have the Law on the Army which we
12 have already analysed and which relates only to the Army of Yugoslavia.
13 Is that correct, Professor?
14 A. Yes, yes, that's a special law, the Law on the Army.
15 Q. Professor, in chapter 4 there is a list of the state organs which
16 have certain functions in defence, those are Articles 40 to 48. The Law
17 on Defence as the umbrella legislation further develops the constitutional
18 provisions of Articles 133, 135, and 136. Is that correct, Professor?
19 A. Yes.
20 Q. Professor, do you see that under the rights and duties of state
21 organs, the Law on Defence draws a distinction between the president of
22 the republic under 1 and the Supreme Defence Council under 2, although as
23 we have seen in the constitution, the Supreme Defence Council is
24 collective three-member body consisting of that same person, the president
25 of the FRY, who is by virtue of the constitution the president of the
1 Supreme Defence Council, and the other two members are the presidents of
2 both member republics.
3 What is your opinion as to why this distinction has been drawn so
4 that the rights and duties of the president of the republic are provided
5 for in one article and he is an organ playing a role in the defence of the
6 country, while the rights and duties of another organ, the Supreme Defence
7 Council, in the defence of the country, the president being a member of
8 that, are provided for in another article? Can you illuminate us or at
9 least comment on these provisions of the Law on Defence, Articles 40 and
11 A. Well, this entire chapter deals with the rights and duties of
12 state organs, and this refers, of course, to the rights and duties in the
13 defence of the country of particular state organs which are established
14 here. And in view of the way Article 135 of the constitution is
15 formulated, it is not quite clear why in this law the president of the
16 republic is separated out. He should not really exist here, apart from
17 this Supreme Defence Council, because whatever he does he does pursuant to
18 the decisions of the Supreme Defence Council.
19 To be sure, that is actually explicitly stated in the first and
20 only paragraph of Article 40, that in accordance with the decisions of the
21 Supreme Defence Council the president of the republic does, and then there
22 is a list of what he does, whereas in Article 41 there is a list of the
23 tasks carried out by the Supreme Defence Council with reference to
24 defence. So the intention of the legislator is unknown to me here. I
25 don't know why the legislator has decided to distinguish between these two
2 JUDGE BONOMY: Can I ask --
3 MR. ZECEVIC: Yes, by all means.
4 JUDGE BONOMY: -- Professor, Article 41 which defines the role of
5 the Supreme Defence Council sets out eight things for which it is
6 responsible and then says: "The president shall ensure implementation of
7 the decisions of the Supreme Defence Council," and that looks as though
8 the Supreme Defence Council are expected to make decisions in relation to
9 the eight items listed. In your researches, have you found no decisions
10 of the Supreme Defence Council made in relation to these matters?
11 THE WITNESS: [Interpretation] I have never found any decisions,
12 apart from the conclusions in the minutes from the sessions of the Supreme
13 Defence Council or the stenographic records of these sessions. I have
14 never seen a decision entitled "Decision of the Supreme Defence Council"
15 with a text following underneath.
16 JUDGE BONOMY: And remind me over what period of time have you
17 researched this? What period do your researches cover?
18 MR. ZECEVIC: May I?
19 THE WITNESS: [Interpretation] My research covers the period in
20 which the president of the FRY, who was also of course the president of
21 the Supreme Defence Council, was Slobodan Milosevic. That is from July
22 1997 to September 2000.
23 JUDGE BONOMY: Thank you.
24 Mr. Zecevic.
25 MR. ZECEVIC: Your Honours, we're -- we will be moving to another
1 direction, so I think it's proper that we break here for the day.
2 JUDGE BONOMY: In which direction shall we be moving?
3 MR. ZECEVIC: Well, very shortly we have a PowerPoint presentation
4 number 3 which will -- which will explain the terminology on Supreme
5 Command, supreme commander, staff of the Supreme Command, and similar.
6 And we have a brief -- we briefly are going to touch upon the certain laws
7 for -- in between 1989 and 1998 which are relevant to this case, but
8 very -- and to the limited scale of presentation and of very limited
10 JUDGE BONOMY: All right.
11 MR. ZECEVIC: And that would conclude the expert role of our
12 distinguished Professor here, and then we're having of course the factual
14 JUDGE BONOMY: Thank you.
15 That then, Professor, brings our proceedings to an end for today.
16 Please bear in mind tonight and every other night that you're here what I
17 said yesterday about not discussing the evidence with anyone. You may
18 leave the courtroom now with the usher, and we'll see you again tomorrow
19 at 9.00.
20 [The witness stands down]
21 --- Whereupon the hearing adjourned at 3.28 p.m.,
22 to be reconvened on Wednesday, the 8th day of
23 August, 2007, at 9.00 a.m.