Tribunal Criminal Tribunal for the Former Yugoslavia

Page 12852

1 Monday, 6 August 2007

2 [Milutinovic Defence Opening Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.01 a.m.

6 THE REGISTRAR: Good morning, Your Honours. This is case number

7 IT-05-87-T, the Prosecutor versus Milutinovic et al.

8 JUDGE BONOMY: Good morning, everyone. We're delighted to see

9 that all parties are present and ready to proceed.

10 Mr. O'Sullivan, we understand that you intend to open the Defence

11 case with an opening speech for Mr. Milutinovic in terms of Rule 84.

12 Please proceed.

13 MR. O'SULLIVAN: Thank you, Your Honour, and good morning

14 honourable Trial Chamber and good morning to my friends from the Office of

15 the Prosecutor. Your Honour, three months ago the Prosecution made oral

16 submissions pursuant to Rule 98 bis at the conclusion of its case in

17 chief. The Prosecution made its submissions, we say, based on its

18 selection and interpretation of some of the evidence in this case. Before

19 Mr. Milutinovic calls his first witness, we ask the Trial Chamber to bear

20 in mind the following matters while hearing the evidence which

21 Mr. Milutinovic will call in his Defence.

22 The essence of the Prosecution's position is that Mr. Milutinovic

23 furthered the alleged joint criminal enterprise by exercising some of his

24 powers, as understood and interpreted by the Prosecution, as the president

25 of Serbia, and that he omitted to fulfil his obligations as the president

Page 12853

1 of Serbia; in other words, commission by omission.

2 Let us be clear straight away. It is Mr. Milutinovic's position

3 that there was no joint criminal enterprise, as alleged in the indictment

4 or otherwise. Furthermore, his position is that the evidence adduced so

5 far in this case and the evidence he will lead during his defence case

6 will demonstrate that Mr. Milutinovic was never involved in any criminal

7 conduct, either individually or in concert with others or within any sort

8 of conspiracy. He dutifully fulfilled his obligations as president of

9 Serbia and he did nothing illegal, either by commission or omission. The

10 authority and competence of the president of Serbia did not include any of

11 the powers alleged by the Prosecution, and the evidence in this case will

12 show the Prosecution is incorrect.

13 Mr. Milutinovic never, in fact, exercised the powers alleged by

14 the Prosecution. His acts and conducts in relation to Kosovo and Metohija

15 are those of a politician who was working and using his best efforts to

16 find a peaceful, true political solution to the problems which existed and

17 to avoid any harm to all citizens of Serbia.

18 In short we say that Mr. Milutinovic, and the evidence will show

19 this, never misused any of his authority as president of Serbia and he

20 never derogated from his responsibilities or refused to act in a positive

21 and constructive manner as president of Serbia.

22 Now, a moment ago we made reference to the Prosecution's position

23 that Mr. Milutinovic furthered the alleged joint criminal enterprise by

24 omitting to exercise competencies conferred on him by the constitution of

25 Serbia. And during its 98 bis submissions, the Prosecution stated that it

Page 12854

1 considers the source of the duty of the president to act is his oath of

2 office and his responsibility to the citizens of the Republic of Serbia.

3 The Prosecution relied on two provisions of the constitution of Serbia,

4 which I will quote for short.

5 Article 86 is the oath of office and it states: "I swear that I

6 shall devote all my forces to the preservation of sovereignty and

7 integrity of the territory of the Republic of Serbia, to the realisation

8 of human and civil freedoms and rights, to the observance and defence of

9 the constitution and laws; to the preserving of peace and welfare of all

10 the citizens of the Republic of Serbia, and that I shall conscientiously

11 and responsibly meet all my duties."

12 The second provision is Article 88 which is one sentence, it

13 reads: "The President of the Republic shall be responsible to the

14 citizens of the Republic of Serbia."

15 But the Prosecution explicitly stated that it relies on these two

16 provisions of the constitution of Serbia in its claim that Mr. Milutinovic

17 had a duty to act to make it more difficult for the other members of the

18 alleged joint criminal enterprise to implement the objective of the joint

19 criminal enterprise.

20 Mr. Milutinovic disputes this incomplete and unfounded reading of

21 the constitution, and he disagrees with the Prosecution's assessment of

22 the evidence in this case so far. For this reason, to address the

23 constitutional issues, Mr. Milutinovic's first witness will be Professor

24 Ratko Markovic, who will provide expert testimony on the constitution.

25 Professor Markovic will provide the Trial Chamber with the proper context,

Page 12855

1 reading, and interpretation of the -- I was saying that Professor Markovic

2 will provide the Trial Chamber with the proper context, reading, and

3 interpretation of the constitution of the Republic of Serbia and the

4 constitution of the FRY and the legislation concerning the authority and

5 competence of the president of Serbia.

6 This evidence will show that the authority and competence vested

7 in the president of Serbia is limited and restrictive. His authority and

8 competence is restricted in particular concerning the relationship between

9 the president and the Government of Serbia and the president and the

10 National Assembly of Serbia as well as other institutions and agencies

11 within the republic. The president has no means to commit any of the

12 offences alleged by the Prosecution, either by acts or omission.

13 In addition, the expert evidence of Professor Markovic will show

14 that as a member of the Supreme Defence Council, the president of Serbia

15 exercises no command, control, or authority over the VJ, the MUP, or "Serb

16 Forces," as the Prosecution uses the term "Serb Forces" in the indictment.

17 Only the federal president, the president of FRY, has the legal

18 powers and mechanisms to exercise command and control. The president of

19 Serbia, like the president of Montenegro, is a member of the Supreme

20 Defence Council. The Supreme Defence Council, as Professor Markovic will

21 explain, is an advisory body provided for in the constitution of the FRY.

22 Professor Markovic will also give evidence which will show that the

23 amendments to the constitution -- or the constitutional amendments of

24 1989, 1990, and 1992 were not discriminatory against Kosovar Albanians.

25 His testimony in this regard will provide the proper legal, historical,

Page 12856

1 and social context for the changes which occurred in the legal system in

2 the late 1980s and early 1990s.

3 Your Honour, the Prosecution alleges that Mr. Milutinovic's

4 responsibility under the constitution is his failure to raise an alarm in

5 the corridors of government.

6 The evidence in this case and the evidence we will lead will show

7 that the corridors of government were ringing with the problems of Kosovo

8 and Metohija in 1998 and 1999. The armed insurrection of the KLA and

9 their terrorist activities and the measures and the concrete steps taken

10 to improve the situation in Kosovo and Metohija attempts to find a lasting

11 political solution to keep Kosovo and Metohija within Serbia as an

12 autonomous province with full respect for all groups and minorities living

13 there. And might I add at this point that the problems and challenges

14 were as great then as they are today as we can see from the fact that the

15 process for finding a solution for Kosovo and Metohija is still ongoing in

16 the UN and within the Contact Group.

17 During the Defence case the Trial Chamber will hear about the

18 policy of the government of national assembly towards Kosovo and Metohija,

19 you will hear about efforts that were undertaken to improve the situation

20 within the province on education, humanitarian relief, providing safe and

21 secure living conditions. The Trial Chamber will hear evidence about the

22 attempts throughout 1998 and the early part of 1999 to achieve a

23 comprehensive agreement on substantial self-governance in Kosovo and

24 Metohija from the men who were directly involved in the process.

25 Furthermore, you will hear the role Mr. Milutinovic played in this

Page 12857

1 process, the efforts he expended to achieve a successful solution to the

2 problem, and his attitudes towards the process itself. Mr. Milutinovic

3 asks how, based on the evidence, it can seriously be contended that he

4 failed to fulfil his obligations under the constitution and laws of his

5 country and under international humanitarian law. His acts and conduct

6 are those of a person who intended to avoid having harm done to others.

7 His acts are those of a responsible and individual politician, who did all

8 he could to find a viable, peaceful solution for Kosovo for the benefit of

9 all its citizens. From the evidence at this point we know this about

10 Mr. Milutinovic's activities and state of mind.

11 I'll remind you that following the decision by the Government of

12 Serbia on the 11th of March, 1998, to establish a delegation to negotiate

13 with the Albanian leadership in Kosovo and Metohija, delegation headed by

14 Professor Markovic, Mr. Milutinovic made a statement on the 18th of March,

15 1998, and he said this, and I quote: "Procrastination and delay to start

16 in direct political dialogue is ... unjustified and damaging.

17 "In my capacity as president of the republic, I am prepared to be

18 the guarantor of such discussions based on the principles of preserving

19 territorial integrity and of including in the agenda the issue of

20 self-government for Kosovo and Metohija within Serbia."

21 Mr. Milutinovic in this statement calls for a solution "by

22 political means, peaceful methods, and dialogue."

23 He calls on the three plus three group to proceed immediately to

24 the implementation on the agreement of the normalisation of education.

25 And he states this: "I point out that my conviction that the future of

Page 12858

1 the citizens of Kosovo and Metohija as well as those in Serbia and in all

2 our country does not lie in ethnic, religious, or cultural closing-up and

3 divisions, but in peace, equality, integration, and life together."

4 The Chamber will recall that on the 31st of March, 1998, UN

5 Security Council Resolution 1160 expressly makes reference to

6 Mr. Milutinovic's statement of the 18th of March, and the UN Security

7 Council calls on the parties to do exactly what Mr. Milutinovic had

8 advocated. You will see and hear that the evidence in this case is that

9 throughout 1998 Mr. Milutinovic made similar sincere and convincing

10 speeches to support and encourage the process of dialogue and agreement,

11 urging all citizens of Serbia, including those living in Kosovo and

12 Metohija, to live together in peace. He personally invited Albanian

13 political leaders to meet with the Markovic delegation. He accompanied

14 the Markovic delegation to Pristina on several occasions. He directly

15 supported the implementation of the education agreement. He met and

16 worked with Ambassador Hill to support attempts at international mediation

17 of the Kosovo problem. He met with minority leaders from Kosovo and

18 Metohija, in support of an agreement on self-governance. He denounced

19 extremism and violence as a means to a political end.

20 The Chamber has also seen UN Security Council Resolution 1199 of

21 the 23rd of September, 1998, and to be mindful of the observations made by

22 Mr. Milutinovic at a session of the Supreme Defence Council held on the

23 4th of October, 1998, where in relation to this resolution and the threat

24 of NATO strikes, Mr. Milutinovic stated, I quote: "... When you take a

25 close look at the whole UN resolution, item after item, we have

Page 12859

1 practically fulfilled everything. If there is something else we have to

2 do, then we should not let this strike happen."

3 Your Honour, of particular importance and significance we say are

4 the events in November 1998 that you'll hear about where Mr. Milutinovic

5 travelled to Pristina twice within a matter of days and met with leaders

6 of minority political parties in Belgrade, including Albanians. These are

7 the events surrounding the joint proposal on the agreement on the

8 political framework on self-governance in Kosovo and Metohija. Evidence

9 presented during the Defence case will give the Trial Chamber first-hand

10 accounts of the events regarding the elaboration of this agreement and

11 which led to a statement made by Mr. Milutinovic in Pristina on the 18th

12 of November, 1998. Can I remind you of some of the things he said in that

13 statement. Mr. Milutinovic said: Serbia is firmly committed to having

14 the problems in Kosovo and Metohija resolved politically. Serbia is a

15 civil state, and it does not divide its citizens according to their

16 national, religious, or any other background. But at the same time,

17 Serbia is a multi-ethnic, multi-confessional, and multi-cultural state,

18 guaranteeing to all national communities additional rights for the

19 preservation and expression of their national identity, script, language,

20 religion, customs, culture, and tradition.

21 Mr. Milutinovic stated: I would like to underline that peace and

22 common life are possible in Kosmet only with genuine, not just formal

23 equality of all national communities. This has been confirmed by the fact

24 that we have honoured all obligations and deadlines set forth in the

25 agreements with the international community, that civilian structures are

Page 12860

1 functioning and getting stronger by the day in Kosmet, that the situation

2 in all fields, particularly economic, social, and humanitarian is being

3 increasingly normalised in Kosmet.

4 He stated: As far as political framework is concerned, legal,

5 i.e., constitutional framework in our country is broad enough to ensure

6 consistent implementation of international standards in the field of

7 protection of rights of national communities with full respect of the

8 existing practice. Once the above is honoured, he said, the form is

9 clear, democratic self-governance in the Republic of Serbia and

10 consequently in the Federal Republic of Yugoslavia. In that respect, it

11 should be clear to all that any solution for Kosmet has to respect the

12 territorial integrity and sovereignty and internationally recognised

13 borders of the Federal Republic of Yugoslavia in accordance with the

14 fundamental principles of the Charter of the United Nations, Helsinki

15 Final Act and the OSCE Paris charter.

16 And he concluded these statements by broadening the importance of

17 a resolution bonding it to the greater region. He said: With all those

18 measures we wish to encourage trust and accelerate the political process.

19 Only in this can we see the preconditions to solve the problems in Kosovo

20 and Metohija which will enable the national communities to realise

21 democratic self-governance, guarantee territorial integrity and

22 sovereignty of our state, ensure peace and development in Kosovo and

23 Metohija, but also stability in the region of the Balkans and

24 south-eastern Europe, and inclusion of the peoples and the States from

25 these parts in broader political, economic, cultural, and other

Page 12861

1 integration processes, organisations, and institutions.

2 Your Honour, we've been saying that during our Defence case the

3 Trial Chamber will hear important testimony about the attempts to improve

4 the situation in Kosovo and Metohija and to conclude a comprehensive

5 agreement on self-governance. We also ask the Trial Chamber to bear in

6 mind the significance of this process in 1998 and 1999 in the light of the

7 evidence given by General Klaus Naumann, who testified that NATO did not

8 and could not engage with the KLA because certain NATO countries had

9 denounced the KLA as terrorists in 1998. Now, we know it is not uncommon

10 for states to refuse to recognise, let alone negotiate, with groups or

11 organisations which are considered to be terrorist. We have seen this

12 played out in today's world when groups or organisations hit office towers

13 in New York city, when train stations are bombed in Madrid or London or

14 most recently when individuals took over a mosque in Islamabad. My point

15 is this: The government institutions in the FRY and Serbia did not refuse

16 to engage in dialogue with the Albanian leadership in Kosovo and Metohija,

17 including the leadership of the KLA. On the contrary, governments and

18 legislatures at both levels, the federal and republic levels, took

19 concrete steps in 1998 and 1999 to improve the situation and work for a

20 peaceful solution in Kosovo. The Chamber knows already that these efforts

21 began in earnest in the spring of 1998. That's when the delegation headed

22 by Professor Markovic was formed to engage the Albanian leadership in

23 dialogue. Special Envoys were appointed to bolster that process.

24 Agreement on the implementation of the education agreement was achieved.

25 Humanitarian relief programmes were established. Agreements were reached

Page 12862

1 with President Yeltsin of the Russian Federation, Ambassador Holbrooke and

2 the OSCE in June and October respectively to ensure an international

3 presence on the territory of Serbia while a political solution was sought.

4 Invitation after invitation was sent to the Albanian political

5 representatives by the Serbian. Only once did the Albanian

6 representatives sit down with the state delegation. These invitations

7 included letters sent to the leadership of the KLA, and here we're

8 thinking of Mr. Demaqi. At Rambouillet and Paris a state delegation was

9 sent by the National Assembly of the Republic of Serbia attended meetings

10 and requested on numerous occasions to meet face-to-face with the Albanian

11 delegation whose ranks included leading members of the KLA including its

12 president Mr. Hashim Thaqi.

13 Some might say, perhaps of quite understandable reasons that

14 groups or organisations that resort to violence to effect political change

15 should not be recognised as legitimate interlocutors. This certainly

16 cannot be said for the events of 1998 and 1999 in this case. The

17 contribution made by Mr. Milutinovic in seeking a peaceful solution in

18 Kosovo and Metohija was significant. In addition to the examples I've

19 mentioned you will hear evidence about Mr. Milutinovic attending a meeting

20 of the Government of Serbia in October 1998 shortly after the

21 Holbrooke-Milosevic Agreement, where Mr. Milutinovic informed the

22 government about the details of that agreement. Then Mr. Milutinovic

23 travelled to Pristina in September and November 1998, he met briefly with

24 local officials to provide information on the political, economic, and

25 security situation in Kosovo and Metohija.

Page 12863

1 The Prosecution also alleges that the FRY/Serb delegation and

2 Mr. Milutinovic in particular intentionally obstructed the

3 Rambouillet/Paris meetings held in February and March 1999. And the

4 Prosecution contends that the intention was to create a window of

5 opportunity, provoking a war with NATO, in order to carry out the JCE.

6 Putting aside the facts for a moment, we say that this position is

7 untenable and defies common sense. But when we turn to the facts, the

8 evidence in this case, we now know that to lay the blame at the feet of

9 the Serbs for the failure at Rambouillet and Paris was misleading and

10 cynical. We know from the evidence in this case that the Serb/FRY

11 delegation were in general agreement with the political components of the

12 Rambouillet agreement. We know that the Serb side, including

13 Mr. Milutinovic, had been working for the better part of 1998 on such an

14 agreement which was put in final form, as you know, in Pristina in

15 November 1998.

16 We know that the Albanian side was not prepared to accept the

17 political component of the Rambouillet Agreement as it was written into

18 that agreement. We know that at the 11th hour there was a non-disclosed

19 side deal between the US secretary of state and the Albanians. It was

20 openly admitted by Mr. Surroi, a witness here, who was a member of that

21 delegation, and reluctantly acknowledged by Ambassador Petritsch, one of

22 the Contact Group negotiators, who added the caveat that what individual

23 states do at international conferences cannot be attributed to the Contact

24 Group. We say it is absolutely disingenuous to suggest that a side letter

25 between the US Secretary of State and the Albanian delegation on a

Page 12864

1 referendum in Kosovo and Metohija on independence is in some way an

2 innocuous by-product of international relations and meetings. And this

3 side letter went to the heart of the matter: The territorial integrity

4 and sovereignty of the FRY and Serbia.

5 Your Honour, there was no reluctance on the part of the state

6 delegation to engage in serious and meaningful discussion at Rambouillet

7 and Paris, and you'll hear that during our Defence. Indeed they requested

8 on numerous occasions face-to-face meetings with the Albanians, to have

9 the Contact Group principle signed by both delegations, and to be given

10 the entire agreement for review at the beginning of the conference. I

11 would add that even after the Albanian delegation refused to sign the

12 Contact Group non-negotiable principles, the FRY/Serb delegation signed

13 them unilaterally and presented them to the Contact Group. But during the

14 Defence case you will hear that Mr. Milutinovic arrived at Rambouillet at

15 the end of the first week of the meetings. The meetings at that point

16 were scheduled to end after one week. You will hear he came to assist and

17 to encourage a resolution to the situation and that he remained to work

18 towards the success of those meetings.

19 You will hear that the talks in Paris in March 1999, the Serb/FRY

20 delegation was prepared to finalise the political elements of the

21 agreement and to discuss the scope and character of an international

22 presence in Kosovo and Metohija, just as they had indicated to the Contact

23 Group when talks ended in Rambouillet in February.

24 You will hear that Mr. Milutinovic supported this position, both

25 within the context of the Paris meetings and publicly in statements made

Page 12865

1 outside those meetings. The Chamber will hear that in Paris

2 Mr. Milutinovic stated that: The state delegation has submitted proposals

3 to the Contact Group concerning political elements of the agreement ...

4 without changing its essence and that they were prepared to sign. He also

5 stated that when the political component was finalised they would be

6 willing to discuss the scope and character of implementation. You will

7 hear evidence that Mr. Milutinovic's position and message was consistently

8 that if the agreement on autonomy and self-government for Kosovo and

9 Metohija is stable and good then the deployment of foreign troops on the

10 territory of Serbia would not be necessary. Only a bad solution would

11 necessitate the intervention of foreign soldiers to enforce it.

12 You will hear that Mr. Milutinovic brought to bear his long

13 experience as a diplomat and as the foreign minister -- the former foreign

14 minister of the FRY during Rambouillet and Paris. When listening to this

15 evidence we ask you to consider the following facts in this case.

16 Mr. Milutinovic had served as an ambassador in the SFRY Ministry of

17 Foreign Affairs as head of state for press, information, and culture from

18 1987 to 1989. He was the SFRY and FRY ambassador to Greece from 1989 to

19 1995. He was the FRY foreign minister from 1995 to 1997.

20 You will hear that Mr. Milutinovic knew all the Contact Group

21 foreign ministers who were at Paris and Rambouillet from his days as an

22 ambassador and as a foreign minister. In addition, he had worked closely

23 with Ambassador Hill during the Dayton process which ended the war in

24 Bosnia and Herzegovina.

25 The Trial Chamber will hear the evidence of Mr. Zivota Cosic, who

Page 12866

1 was the minister of mining and energy in Serbia in 1999. His ministry was

2 responsible for electrical energy and the oil industry in the Republic of

3 Serbia. When the war began in March 1999, Mr. Cosic was a member of the

4 task force established to remove and relocate chemical and hazardous

5 materials which were vulnerable to NATO bombing. These dangerous products

6 were located close to densely populated areas and big cities in Serbia.

7 And this relocation was necessary in order to avoid human and ecological

8 disaster in event of a bomb striking one of these locations.

9 You will hear that Mr. Cosic was in contact with Mr. Milutinovic

10 every second or third day regarding these matters and that he sent him

11 daily progress reports on this operation. The evidence will be that

12 civilian authorities had not planned for a war, they were not prepared for

13 a war. The authorities worked frantically to move these hazardous

14 materials out of harms way from NATO air-strikes. Mr. Milutinovic worked

15 on these matters, he worked to avoid disaster, and alleviate human

16 suffering. You will also hear the evidence of Mr. Jovan Kojic, who in

17 1998 and 1999 was a member of the office of the president of the Republic

18 of Serbia. Mr. Kojic was an assistant to Mr. Milutinovic's principal

19 secretary, and he was primarily responsible for assisting the daily

20 administration of the office of the president. He will testify about

21 meetings which took place in Mr. Milutinovic's office, documents received

22 by the office of the president, and the daily schedule and work routine of

23 Mr. Milutinovic.

24 The Chamber will hear evidence about a meeting between -- or

25 meetings between Mr. Milutinovic and the late Dr. Ibrahim Rugova in April

Page 12867

1 1999 and, in particular, the meeting that took place on the 28th of April,

2 1999, in Pristina where the two men signed a joint declaration and

3 addressed the media and they called for an immediate end to hostilities in

4 Kosovo and Metohija and the resumption of talks with an aim of achieving

5 an agreement on substantial autonomy and self-governance in the province.

6 We say this is yet another example of Mr. Milutinovic working for the good

7 of all citizens of Serbia, seeking political, peaceful solution through

8 dialogue.

9 And during the period of the war May to June 1999, Mr. Milutinovic

10 never exercised any sort of power or command or control or giving orders

11 or direction to any military, police, or security forces. Mr. Milutinovic

12 never demonstrated any criminal intent or criminal conduct. Indeed, his

13 acts and conduct and state of mind are quite the opposite of those alleged

14 by the Prosecution. And the Trial Chamber will hear evidence about the

15 events following the election of Dr. Vojislav Kostunica as president of

16 the Federal Republic of Yugoslavia and the crisis which occurred in the

17 country in October 2000. You will hear about the significant measures

18 taken by Mr. Milutinovic at that time, at risk to himself and his family,

19 to avoid tremendous violence in Serbia and to ensure a smooth democratic

20 transition. We say this is yet another example of his overall character

21 and personality.

22 In the end, Your Honour, we say that Mr. Milutinovic is a person

23 who is not capable of committing the offences with which he is charged.

24 Throughout his life he never demonstrated any intolerance, extremism,

25 hatred, or propensity for violence or the use of violence. This can be

Page 12868

1 seen through his conduct and through his words. He is a man who has

2 always sought political solutions through dialogue and compromise.

3 Mr. Milutinovic's conscience is clear. He has consistently rejected the

4 allegations made against him by the Prosecution. He says the case against

5 him is unfounded and very much misguided. Mr. Milutinovic believes that

6 the evidence presented before this Trial Chamber will provide a full

7 answer to the allegations against him and that you will acquit him.

8 Mr. Milutinovic would now like to call his first witness:

9 Professor Ratko Markovic.

10 JUDGE BONOMY: Thank you for your opening speech, Mr. O'Sullivan,

11 but there are a couple of matters that we need to deal with before you do

12 call the first witness.

13 The first of these is a motion recently received to amend the

14 Rule 65 ter submission.

15 Mr. Hannis, do you have anything to say on that matter?

16 MR. HANNIS: Your Honour, only to object to it being late.

17 However, the fact that this witness is probably going to testify for a few

18 days makes it less of a problem for us than it might otherwise be and in

19 some ways that particular submission is helpful in specifically

20 identifying which exhibits go to which portions of his testimony. So in

21 general I just want to have an objection to the late filing of those

22 things, but other than that, no further comment.

23 JUDGE BONOMY: Thank you.

24 [Trial Chamber confers]

25 JUDGE BONOMY: We shall allow the 65 ter list to be submitted --

Page 12869

1 to be amended.

2 The second matter is this, the Trial Chamber today received a

3 92 ter statement of Mr. Markovic. Now, I understand you're taking his

4 evidence, Mr. Zecevic.

5 MR. ZECEVIC: That's correct, Your Honour.

6 JUDGE BONOMY: So perhaps you should deal with this.


8 JUDGE BONOMY: We, as you know, require these statements to be

9 tendered 48 hours in advance of the evidence of the witness. And where

10 it's a weekend, without trying to split hairs on technical detail, it's

11 pretty important that the Judges receive this before the close of business

12 on the Friday. It's pretty useless to me to get this this morning. I

13 know you may say to me it may be some time before you reach this, and I'll

14 have time to read it tonight or -- but I think that's not an ideal way to

15 proceed. So I draw that to your attention and to the attention of all

16 Defence counsel at this stage, that we expect these statements to be in

17 our hands at a time when it's realistic for us to have them to prepare

18 before the witness gives his evidence.

19 MR. ZECEVIC: I understand, Your Honour, but it was simply no

20 time. We have notified our friends from the Prosecution on Friday that we

21 will be tendering this 92 ter statement on the facts, and it basically

22 consists of just a list of the documents which we intend to use with

23 Professor and the comments Professor made concerning these documents. We

24 aim -- we aimed this 92 ter statement, Your Honours, for -- in order to

25 save as much time as possible because we have 108 documents which will --

Page 12870

1 which will be basis of the fact testimony --

2 JUDGE BONOMY: I recognise all of that, Mr. Zecevic. The point,

3 nevertheless, that we make is one that must be observed.

4 MR. ZECEVIC: I understand, Your Honour.

5 JUDGE BONOMY: That completes these formalities. You now wish to

6 call Professor Markovic.

7 MR. ZECEVIC: I'm sorry, Your Honour, we have just two or three

8 other formalities, if I may. We would -- we would need to make an oral

9 application to amend the witness notification. It concerns the

10 Exhibit P461, which is a joint declaration made by Mr. Milutinovic and

11 late Dr. Rugova on the 28th of April, 1999, and Exhibit 1D60 which is a

12 video-clip of these -- of this occasion. Professor Markovic was present,

13 as you know, because both of these exhibits are -- have been shown to

14 the -- before in this trial. It is entirely our oversight not to include

15 these two exhibits in our witness notification, which was filed last

16 Thursday, but we -- we, I hope, remedied that by advising the OTP by mail

17 last Friday that we will be using these two -- one document and transcript

18 of the video-clip.

19 JUDGE BONOMY: Is that complete what you have to say or are there

20 other matters?

21 MR. ZECEVIC: Yes, there is a another matter which consists of

22 translational issue, we have an issue with the translation, Your Honour.

23 JUDGE BONOMY: Please deal with that now.

24 MR. ZECEVIC: Actually, Your Honour, it came to our attention that

25 P856, which is the FRY constitution and constitutional law of 1999, which

Page 12871

1 we intend to use of course with our expert witness, the English

2 translation of that document is -- includes only item number 1, so it's

3 just the declaration of the -- of the constitution of 1992. So therefore,

4 we will refer to the Exhibit 1D139 for the English translation of

5 Exhibit P856. 1D139 is definitely the same -- the translation of the very

6 same document and is in court in the e-court, and we had provided the hard

7 copies -- actually for the Trial Chamber and for -- for our friends from

8 the Office of the Prosecutor in two binders of all documents that this

9 witness will rely to -- rely on.

10 JUDGE BONOMY: Anything else?

11 MR. ZECEVIC: Nothing else, Your Honour.

12 JUDGE BONOMY: All right. Thank you.

13 [Trial Chamber and legal officer confer]

14 JUDGE BONOMY: Mr. Hannis, do you have any comment on this?

15 MR. HANNIS: No, Your Honour. We're not -- I'm not surprised that

16 he's going to use P461 and 1D60 regarding the meeting with Rugova, so I

17 have no problem with that. And I think it's a practical solution to use

18 1D139, which has the full translation. But I did have another question

19 regarding translations. There are a number of Politika articles that are

20 proposed to be shown to the witness. I understand he seemed to indicate

21 he's read the articles, and they refresh his memory about events that he

22 has personal knowledge of. So he's going to be talking about his personal

23 knowledge but if the exhibits are going to be offered, then I need a

24 translation because I haven't been able to read them. I don't have them

25 in English. I don't know what they say.

Page 12872

1 JUDGE BONOMY: Thank you.

2 Mr. Zecevic.

3 MR. ZECEVIC: Your Honour, we will not be willing to tender these

4 Politikas, except the ones which have the translations already provided.

5 JUDGE BONOMY: Thank you.

6 I think if they do provide any meat for you, Mr. Hannis, you're

7 going to have to find it by having them translated yourself.

8 Well, we note what you say about P461 and 1D60 and it's easy to

9 excuse the failure to include these in the witness notification and the

10 overall circumstances, and there is no objection to you referring to them.

11 As far as the constitution is concerned, again it makes sense to

12 refer to 1D139. It still astonishes me that constitutional documents are

13 so confused in this case. That remains the position. It's becoming

14 clearer but not entirely clearer yet, and as far as the Politika articles

15 are concerned we note that where you intend that they should be exhibited

16 that they have been translated.

17 MR. ZECEVIC: That's correct, Your Honour.

18 JUDGE BONOMY: So can we now hear from Professor Markovic?

19 MR. ZECEVIC: Yes.

20 Can we have Professor Markovic in.

21 [The witness entered court]

22 JUDGE BONOMY: Good morning, Professor Markovic.

23 THE WITNESS: [Interpretation] Good morning.

24 JUDGE BONOMY: Would you please make the solemn declaration to

25 speak the truth by reading aloud the document which will now be placed

Page 12873

1 before you.

2 THE WITNESS: [Interpretation] I solemnly declare that I will speak

3 the truth, the whole truth, and nothing but the truth.

4 JUDGE BONOMY: Thank you. Please be seated.

5 Mr. Zecevic.

6 MR. ZECEVIC: Yes, thank you, Your Honour, Your Honour.


8 [Witness answered through interpreter]

9 Examination by Mr. Zecevic:

10 Q. [Interpretation] Good morning, Professor Markovic.

11 A. Good morning.

12 Q. Professor, would you be so kind to tell us basic information

13 concerning yourself, your full name, and your title so that we can have it

14 for the record.

15 A. My name is Ratko Markovic. I'm a full-time professor at the law

16 school at the University of Belgrade.

17 Q. Professor, you speak English, don't you?

18 A. I understand English.

19 Q. Before we proceed, should you need a break, should you feel that

20 you are tired or feeling unwell, would you please inform the Trial Chamber

21 about that so that we can take appropriate steps.

22 A. Thank you.

23 Q. Professor, would you please tell me, since when have you been

24 teaching law at the law school in Belgrade?

25 A. I became full-time professor of constitutional law in 1984, and I

Page 12874

1 have been also teaching administrative law since 1985.

2 Q. You wrote over 250 legal papers?

3 A. Yes. Immediately after graduation I started -- I embarked upon an

4 academic career. I started as an assistant professor, and then in 1984

5 and 1985 I was elected full-time professor. And up until today, I have

6 been involved in academic and scholarly work. I wrote two textbooks for

7 the students of law school on constitutional law. So far one textbook on

8 constitutional law was published in 11 editions and the other textbook on

9 administrative law was published in two editions.

10 Q. Professor, I would kindly ask you to slow down when speaking so

11 that the interpreters can catch up with you. Thank you.

12 Professor, you wrote an expert opinion for this trial which has to

13 do with the powers and position of the president of the Republic of

14 Serbia. In that paper you presented your views on these issues, and I

15 suppose that these views were based on your scholarly work and views and

16 that this reflects your independent scholarly opinion on these matters.

17 Is that correct?

18 A. Yes. I wrote this opinion, this report, precisely for this trial.

19 I did my best to present in a concise manner without too many details a

20 critical view of the constitutional institutions since 1974, especially

21 certain opinions which became prevalent among scholars and which were more

22 of a result of political and ideological views on these matters rather

23 than an independent and academic treatment of these issues.

24 Q. Thank you. Professor, you have a binder with documents in front

25 of you. The first document in the binder is your expert opinion. Would

Page 12875

1 you please take a look at that. It is right in front of you, Professor.

2 A. Oh, yes, I see it.

3 Q. Tab 1.

4 A. Yes.

5 Q. Professor, you wrote this document and reviewed it on a number of

6 occasions recently. Is that the document right in front of you?

7 A. Yes, precisely.

8 Q. This document is marked as 1D682, and this is your expert opinion

9 on the powers and position of the president of the Republic of Serbia?

10 A. Correct, precisely so. The content of this opinion are consistent

11 with the title because the work deals with the powers and position of the

12 president of Serbia.

13 Q. Professor, this work was based on your research of a certain

14 number of laws and regulations, which are all listed in your statement

15 dated the 30th of July, which we can see as tab 2 in this binder.

16 A. Yes. Most of these documents have been quoted in my expert

17 opinion.

18 Q. Professor, you gave this statement and you signed it on the 30th

19 of July. It is marked as 1D745. Do you accept that this statement is

20 true and correct to the best of your knowledge and that it contains all of

21 the documents and regulations which you used in your expert opinion?

22 A. Yes, I accept that.

23 MR. ZECEVIC: Your Honours, the biography of the

24 Professor Markovic is 1D684 and his bibliography is 1D683. We would move

25 the Trial Chamber at this time to tender these four documents into the

Page 12876

1 evidence, his expert report, bibliography and the 92 ter statement.

2 MR. HANNIS: No objection.

3 JUDGE BONOMY: Thank you, Mr. Zecevic.

4 MR. ZECEVIC: Thank you.

5 Q. [Interpretation] Professor, let us go back now to your expert

6 opinion, tab 1 in the binder in front of you. Please tell me, Professor,

7 your opinion focused on the analysis of constitutional provisions of the

8 constitution of Serbia from 1990, which can be seen in tab 1 of this

9 document. It is also marked as P855 and English translation is 1D139.

10 You focused on Articles 83 through 89 in the chapter entitled

11 "President of the Republic" as well as Article 132, correct?

12 A. Yes, but I also took into consideration the laws implementing

13 these provisions wherever necessary, and also in issues where there was

14 some constitutional practice I explained in footnotes what it was.

15 Q. Thank you. In your expert opinion in item 2.2, paragraph 2.2, you

16 state that the powers of the president of Serbia are an exclusive

17 constitutional category. Would you please elaborate on this position.

18 A. This is based on Article 83 of the constitution, on the last

19 paragraph of that article, and it means that the powers of the president

20 of the republic can be set forth only in the constitution and cannot be

21 extended by legislation. This is a constitutional category in the sense

22 that in that article of the constitution enlisting constitutional powers

23 of the president cannot be expanded, nothing can be added to that article

24 by legislation nor subtracted. This was the position also taken by the

25 Constitutional Court of Serbia when they reviewed the constitutionality of

Page 12877

1 the law on ranks of the members of the Ministry of the Interior. On that

2 occasion, the Constitutional Court gave the same position, namely, that

3 the powers of the president of the republic cannot be expanded by

4 legislation; and for those reasons, those articles of the law which did

5 that, namely, expanded on the powers, they were quashed or set aside by

6 the Constitutional Court.

7 Q. When you say "Constitutional Court," you're referring to the

8 Constitutional Court of Serbia?

9 A. Yes.

10 Q. Later on we will go back to this issue dealing with the decision

11 of the Constitutional Court of Serbia. Professor, would you please

12 explain to the Chamber the importance of the 1990 Serbian constitution

13 marked here as tab 5, P855 and translation at 1D139. Would you please

14 explain the importance, the significance of that constitution.

15 A. Briefly speaking, it is dual, the significance. On the one hand

16 it is an expression of the then-existing political constellation of the

17 then-social -- of the then-socialist Federal Republic of Yugoslavia where

18 the danger of secession of certain republics was quite imminent, and in

19 order to avoid a situation where there would be a constitutional vacuum in

20 Serbia, the Constitution of Serbia was passed in 1990, which provided the

21 Republic of Serbia, even though it was still a federal unit, but

22 nevertheless it provided attributes of an independent state to Serbia.

23 This is one feature of this constitutional. And the other feature

24 of the 1990 constitution is that it brought about a radical reform of the

25 constitutional system, which in its depth had all features of a

Page 12878

1 constitutional revolution. That is to say that new principles and new

2 institutions were introduced which represented a break with the previous

3 constitutional system. They introduced such categories as markets,

4 private property, equality of all forms of property, multi-party system

5 was introduced. In addition to that, they also introduced a mechanism

6 for -- a mechanism of a parliamentary republic, that is to say they

7 introduced a parliamentary form of government. They expanded the

8 competency of the Constitutional Court, as well as the catalogue of human

9 and civil rights. Instead of a commonal system they introduced local self

10 role. This would briefly be what the reforms of the 1990 constitution

11 were. Once again let me repeat that it introduced a radical break with

12 the previous constitutional system, a radical departure from it, and this

13 is why this constitution never uses a term "socialist."

14 Q. Thank you, Professor. After the 1990 Constitution of Serbia on

15 the 27th of April, 1992, Federal Republic of Yugoslavia was created, and

16 it was on that date that the constitution of the FRY was passed in 1992.

17 You can see it in tab 6 in the binder in front of you. It is Exhibit

18 P856.

19 Professor, please tell us what were the legal consequences of the

20 adoption of the 1992 FRY constitution?

21 A. The Constitution of the Federal Republic of Yugoslavia from 1992

22 was adopted in order to provide a constitutional form for two republics,

23 two federal units which did not secede from the Federation, those were the

24 Republic of Serbia and the Republic of Montenegro. The previous federal

25 constitution from 1974 was created for a federation which had six federal

Page 12879

1 units. Since four of them had seceded from the Federation, the remaining

2 two formalised their union in the 1992 Constitution of the Federal

3 Republic of Yugoslavia. The purpose of continuation of the Federation

4 comprising two federal units was to preserve Yugoslavia as a subject, to

5 preserve the legal personality of Yugoslavia and to formalise this union

6 of the Republic of Serbia and Republic of Montenegro. This purpose is

7 explained in the preamble of this 1992 constitution.

8 Q. Thank you, Professor. Please tell me, with the adoption of the

9 FRY constitution, the one that we will be referring to as a federal

10 constitution and on further examination there was an obligation for the

11 constitutions of the two federal units as well as all federal legislation

12 and republic legislation to be in compliance with the constitution. This

13 is set out in Article 115, isn't it?

14 A. Yes, this is a typical provision in every constitution, that the

15 law of the federation constitutional -- federation constitution and

16 federal legislation come above those of the federal units. This is a

17 typical provision. In this case it is expressed in Article 115, which

18 provides that the constitutions of the republics, as well as legislation

19 of the member republics, as well as all legal regulations have to be in

20 compliance with the constitution of the Federal Republic of Yugoslavia.

21 This is an old maxim in fact dating back to the Swiss constitutional law,

22 namely, that the federal legislation comes above those of the republics.

23 Q. Thank you, Professor. In relation to the provisions of Article

24 115, would you please explain to the Trial Chamber and everybody else here

25 why was it necessary to adopt the law on implementing the constitution and

Page 12880

1 why was it necessary to bring all legislation in compliance with the

2 constitution as well as why it was necessary to set aside certain

3 legislation. If necessary, we can split this in three questions.

4 A. The meaning of the constitutional law is the same in all systems.

5 Any constitutional law must regulate a transitional regime being used for

6 a transition from an old system to a new system, and this is also the

7 meaning behind this constitutional law which was adopted in order to have

8 the 1992 constitution implemented. It goes without saying, in view of

9 what we mentioned a while ago, the need for consistency between all

10 federal and republican laws and provisions, the transformation between the

11 two systems, the old and the new, must be gradual, the constitutional

12 systems.

13 Therefore, dates are determined or deadlines by which certain laws

14 must be harmonized with the federal constitution. Also, deadlines are

15 defined for certain laws to cease to have effect. This is the meaning of

16 the constitutional law for implementation of the constitution. It

17 provides for a smooth transition between the old system and the new, and

18 this is something that is defined by the constitution which is to be

19 implemented by the new constitutional law.

20 Q. In order to illustrate this point, could I please ask you to go to

21 tab 7, Professor, this is 1D358. This is the constitutional law on the

22 amendments to the constitutional law on the implementation of the

23 Constitution of the Republic of Serbia in this specific case. Could you

24 please comment on Article 1 and Article 4.

25 A. In Article 1 of this constitutional law, what we can see is -- is

Page 12881

1 that a deadline is set of two years from the date of the amendment to the

2 constitution, and then instead of this we have the following wording: "By

3 the 31st of December, 1992, defined as the ultimate deadline for the

4 harmonizing the laws with the new constitution, therefore, this deadline

5 is hereby extended." We see the same thing being done in Article 4. It

6 reads: "By the 31st of December, 1992, all the remaining republican laws

7 shall be harmonized with the constitution that are not yet consistent with

8 it, harmonizing the relations that do not fall under the constitutional

9 competence of the Federal Republic of Yugoslavia." Therefore, we see

10 another deadline extension at work here in a manner of speaking --

11 JUDGE BONOMY: Hold on just a moment, Mr. Zecevic, until I follow

12 this.

13 I take it that in the reference to Article 4 of the

14 constitution -- sorry, in relation to Article 4 that's referred to in the

15 middle of the page, the word "until" is an inaccurate translation?

16 MR. ZECEVIC: Your Honours, we're referring to the -- to the

17 Article 4 of the constitutional law and "until 31st December" is the

18 accurate translation, it says: [Interpretation] "By the 31st of

19 December" --

20 JUDGE BONOMY: What I think was translated in the answer given by

21 the witness was "... by the 31st of December all the other republican

22 laws," in other words that was a deadline and "until" does not make any

23 sense in the context of a deadline. Now, is the word --

24 MR. ZECEVIC: It is --

25 JUDGE BONOMY: -- is the word you used capable of being translated

Page 12882

1 "by" as --

2 MR. ZECEVIC: Yes, Your Honour, it is a proper translation because

3 it is a deadline, yes, and Professor can confirm that.

4 JUDGE BONOMY: Now, that deals with that point.

5 Going back, your earlier reference was to Article 3. Now, I -- is

6 that wrong?

7 MR. ZECEVIC: Yes. I referred to Article 1 and Article 4 of the

8 constitutional law.

9 JUDGE BONOMY: So the copy I have starts with Article 3, and again

10 the witness's answer did not fit the terms of Article 3 and that might

11 make sense if he was referring to Article 1.

12 MR. ZECEVIC: I'm sorry, Your Honours, I just saw right now that

13 the Article 1 has not been translated for some reason.

14 JUDGE BONOMY: Well, now -- the position is now clear. That --

15 we've heard what the witness has to say about both Article 1 --

16 MR. ZECEVIC: And Article 4 --

17 JUDGE BONOMY: -- and Article 4 and we can move on --

18 MR. ZECEVIC: Yeah --

19 JUDGE BONOMY: -- but it may be important -- it may be of course

20 that the exhibit that is tab 7, in fact, includes Article 1, I don't know.

21 But you should take steps I think to make sure that Article 1 is properly

22 translated.

23 MR. ZECEVIC: We will definitely do that. Thank you, Your

24 Honours.

25 JUDGE BONOMY: Thank you.

Page 12883

1 MR. ZECEVIC: I'm sorry for the inconvenience. Now --

2 Q. [Interpretation] Professor, I think we have been successful in

3 explaining the situation; however, I would just like to revise this now.

4 When the constitution was adopted, certain laws were modified, or rather,

5 adapted to fit the new constitution in order to bring them into balance

6 with the constitutional provisions, whereas some other laws ceased to

7 exist or have effect. Is that right?

8 A. Yes, and if you look at the first constitutional law, that is

9 probably the best example. The one on the implementation of the 1992

10 Constitution of the Republic of Serbia, this was published in Official

11 Gazette number 1, dated 1990. All of the later constitutional laws

12 amended the deadline by moving it, deferring it, as it were, since the

13 original request proved to be overly ambitious and the deadline set too

14 short for the harmonization process of all legislation and the new

15 constitution to take place.

16 Q. Very well. Professor, what about illustrating a situation where

17 certain regulations cease to have any effect whatsoever? We have tab 8,

18 1D370. Could you please have a look and comment, if you can, sir, on

19 Article 1 --

20 MR. ZECEVIC: [In English] The translation is provided in the

21 whole -- the whole law, Your Honours. It's tab 8.

22 Q. [Interpretation] Just comment, if you can, please. I'm talking

23 about Article 1, the very beginning of the article -- since it then goes

24 on to list all these specific regulations that no longer apply.

25 A. Quite simply, what we see here are laws that cannot be harmonized

Page 12884

1 with the new constitution by simple amendments. Instead, these need to be

2 replaced by laws that are entirely new. There is a list here of 25 such

3 laws listed one by one that now cease to apply. A special law was

4 introduced and these ceased to apply, but this can only be determined by a

5 new law. It is perhaps interesting if you look at item 7 that one of

6 these laws that ceased to exist or apply is the law on the acts and

7 conducts of republican organs in special situations.

8 Q. All right. We have explained in outline at least the situation

9 surrounding the 1992 constitution and the 1990 constitution as well as the

10 consequences; specifically, the constitutional laws that were passed for

11 the implementation of this constitution as well as the legal consequences

12 for any existing laws. I would now like to take you back to the

13 Constitution of the Republic of Serbia. I'm talking about tab 5, P855,

14 specifically Articles 83, 89 -- 83 and 89 as well as Article 132.

15 Before we do that, sir, could you please tell us how you see the

16 practice regarding the election of the president of Serbia, the

17 appointment of the president of Serbia. What are the possible

18 complications in relation to that, bearing in mind the time-period between

19 1997 and the present day?

20 A. The election procedure itself, the way the president of the

21 republic is appointed, is a complex one. According to the original

22 wording on the law on the election of the president of the republic, an

23 election is only valid if a majority of Serbia's voters go to the ballots,

24 those that are listed on the electoral register. Therefore, this very

25 complex condition had to be met in order for an election to take place and

Page 12885

1 be valid. The winning candidate was the candidate who got the most votes.

2 If there was no such result, the ballots were counted and then one had to

3 go to the second round where the two most successful candidates from the

4 first round ran. Eventually the one garnering the most votes was elected.

5 Q. Professor, back in 1997 there were two elections, right, or

6 rather, two rounds?

7 A. Yes, that's right. There were two presidential elections back in

8 1997. The first time around Mr. Lilic and Mr. Seselj ended up in the

9 second round; however, the one universal condition was not met and that's

10 why the election had to be done all over again. The new election took

11 place and then Mr. Milan Milutinovic was elected president of the republic

12 after round two of the election.

13 Q. In 2002 Milutinovic ceased to be the president and there were

14 three other elections taking place in Serbia; is that right?

15 A. Yes, two of which failed for this very reason, and then the

16 electoral law was amended. The law on the election of the president of

17 the republic was amended, and this condition was abolished, saying that a

18 majority of the voters on the register must participate. It wasn't before

19 then that the now-President of Serbia, Boris Tadic, was elected.

20 MR. ZECEVIC: 855 on the e-court, please.

21 JUDGE BONOMY: Mr. Zecevic --

22 MR. ZECEVIC: Yes.

23 JUDGE BONOMY: -- 855 is --

24 MR. ZECEVIC: Tab 5, the Constitution of Serbia of 1990 --

25 JUDGE BONOMY: It is a declaration on the promulgation of the

Page 12886

1 constitution with the constitution attached. Is that correct?

2 MR. ZECEVIC: Well, the declaration of the -- of a promulgation of

3 the constitution is the document which each and every time when the new

4 constitution is taken, there is a declaration of -- on its promulgation.

5 And then the actual text of the constitution is included in P855.

6 JUDGE BONOMY: Yeah. I think we also have as the formal exhibit

7 number for the FRY constitution P986.

8 MR. ZECEVIC: Your Honour, the FRY constitution is P856 and the

9 translation is 1D139. That is the document I was referring to at the

10 beginning of my presentation, the one which doesn't have the proper

11 translation.

12 [Trial Chamber and legal officer confer]

13 JUDGE BONOMY: I think we may have found the explanation for your

14 difficulty about translation. In P856 you only have the one page

15 translated, as you explained earlier --

16 MR. ZECEVIC: That's right.

17 JUDGE BONOMY: -- and the constitution attached to it is in

18 Serbian.

19 MR. ZECEVIC: Yes.

20 JUDGE BONOMY: But the reason for that is probably that we have an

21 exhibit which is the constitution, and that is P986. Now, I don't want

22 you to interrupt by examining that issue now, but at the break you might

23 wish to check that. Now, we're working on your 1D139 anyway for the

24 moment but --

25 MR. ZECEVIC: Yes --

Page 12887

1 JUDGE BONOMY: -- it's this sort of thing that can tend to cause

2 confusion.

3 MR. ZECEVIC: I know, Your Honours, but P986 is not the document

4 from the Official Gazette, and that was the whole point. And when we --

5 when we stipulated earlier with our friends from the Prosecutor, we

6 insisted that we stipulate only to the Official Gazette text. And somehow

7 the problem was oversaw concerning the other translation of P856, which

8 was in fact stipulated by the parties. Therefore, we have provided the

9 translation which is 1D139.

10 JUDGE BONOMY: All right. Please continue.

11 MR. ZECEVIC: Thank you very much.

12 Could we have -- excuse me.

13 [Defence counsel confer]

14 MR. ZECEVIC: Could we have Exhibit P855, Article 83 displayed on

15 the e-court, please. It's at tab number 5 in this binder.

16 Q. [Interpretation] Professor, we have your expert opinion before us,

17 and I'm looking at paragraph 2, 3. You say that all powers of the

18 president of the republic can be divided into three groups, three types of

19 powers, if you like, the first being representing the state of Serbia;

20 secondly, those relating to the attribute of the president of the republic

21 as non-operational executive; and the third being irregular situations.

22 Can you explain based on which you envisaged these different types

23 of groups of powers and when you say "representing," what exactly do you

24 mean?

25 A. I have described these competences in groups. I have not listed

Page 12888

1 each one of the 12 powers from Article 83, 84, 85, 89, and 132.

2 Instead --

3 MR. ZECEVIC: [Microphone not activated]

4 THE INTERPRETER: Microphone, please.

5 MR. ZECEVIC: Can we have on the e-court both pages because I see

6 it's cut in half, the Article 83 is cut in half, so it's page 14 and page

7 15. If we can have both pages for the complete picture of the Article 83

8 to which Professor is referring to.

9 Q. [Interpretation] I apologise, Professor, for interrupting you.

10 A. That's all right.

11 MR. ZECEVIC: I will solve that. It is apparently not possible.

12 I'm really sorry.

13 Q. Please continue -- [Interpretation] Please continue, Professor. I

14 do apologise.

15 A. So for the sake of better presenting the essential points, all the

16 constitutional powers of the president are classified here in three

17 groups. This is not to add anything or detract anything from the scope of

18 the powers of the president of the republic. With reference to the first

19 group, that is, the powers relating to representing the state of Serbia,

20 this is a generic property or attribute of every head of state. The

21 definition of a head of state, whether he be a monarch or the president of

22 a republic, is that he or she personifies or represents the state.

23 Therefore, as an organ representing the state as a whole, expressing the

24 unity of the state, the president of the republic has the powers I have

25 enumerated.

Page 12889

1 Q. Thank you. In this second group of powers, the powers relating to

2 the attribute of the president of the republic as a state organ

3 representing a stable non-operational executive, what do you mean by

4 non-operational executive?

5 A. Although according to Article 9, paragraph 2 of the Constitution

6 of the Republic of Serbia, the president of the republic does not have

7 executive power. In view of the powers he has, he is the closest to an

8 executive organ. He does not have operational powers of executive power.

9 The body that does have these powers is the government. For this

10 reason, the president of the republic in this kind of constitutional order

11 is a state organ representing non-operational executive. In other words,

12 he does not have operational executive powers; rather, it is the

13 government that has such powers.

14 This second attribute is a consequence of a system of a government

15 established in the constitution of 1990 and which is theoretically

16 described as a mixed system of government because it combines the

17 characteristics or some characteristics of a presidential system of

18 government and a parliamentary system of government. Basically, this is a

19 parliamentary system of government, but amended with some principles that

20 are characteristic of a presidential system of government; primarily

21 referring to the election of the president and not to his powers.

22 Q. When you say "in this," you mean in Serbia?

23 A. Well, I'm constantly referring to Serbia because you're asking me

24 about the Constitution of the Republic of Serbia.

25 Q. Thank you. Could you now explain what this third group, the

Page 12890

1 special powers relating to irregular situations refer to, and then we will

2 take a break.

3 A. Irregular situations are situations which are not regular. It's a

4 negative definition. These are situations in which there is a disruption

5 between the legislative and executive power. Their relations are

6 disrupted. The powers established in a regular state are disrupted. The

7 scale or register of irregular circumstances according to the constitution

8 of 1990 encompasses three states: A state of emergency, which is the

9 lowest degree; then the state of an imminent threat of war; and finally, a

10 state of war. The powers of the president of the republic, according to

11 Article 83 or some of these powers, are linked to such irregular

12 circumstances.

13 Q. Thank you, Professor.

14 MR. ZECEVIC: It's about time to have a break.

15 JUDGE BONOMY: It's also a suitable time --

16 MR. ZECEVIC: If it pleases the Court --

17 JUDGE BONOMY: Yes, indeed, but it's also a suitable time just to

18 ask one question before we have that break.

19 Professor, we've read your report and the theoretical situation is

20 very clearly set out in that report. There's one gap I wonder if you

21 could fill for me. It may be my fault that I missed it, but can you tell

22 me who it is, apart from the position of prime minister, who it is that

23 appoints ministers of the government in terms of this constitution?

24 THE WITNESS: [Interpretation] Your Honour, candidates for minister

25 are proposed by the prime minister designate, and the appointment --

Page 12891

1 JUDGE BONOMY: I think I've -- that's a simple answer which I

2 understand. I assumed that was the position, but I was anxious to be

3 clear because I don't think it's spelled out in the constitution.

4 Just one final matter before we part. I appreciate all you say in

5 your report about checks and balances and the relationship between

6 government, the National Assembly, and the president. But assuming that

7 the National Assembly consists of a majority of members of the same party

8 as the president, are the odds that the president's nominee who will also

9 himself nominate the government ministers would be approved by the

10 National Assembly?

11 THE WITNESS: [Interpretation] That is the simplest situation that

12 can arise, if the majority in the National Assembly and the president who

13 has been elected by a majority of the votes are both from the same

14 political party. If the government, or rather, the majority of the

15 National Assembly and the president come from the same political party,

16 then it's almost certain that the prime minister designate and the --

17 proposed by the president of the republic and the candidates for minister

18 proposed by the prime minister designate when there is a homogenous party

19 majority -- however, we have a proportional system of proportional

20 representation, and since it has existed and it has existed since the

21 second parliamentary elections in the Republic of Serbia, there has never

22 arisen a situation where there is a homogenous party majority in the

23 national assembly. It's usually a coalition.

24 JUDGE BONOMY: I entirely understand that we have to look at the

25 factual position and no doubt we'll get to that and it will be clarified.

Page 12892

1 When were the second parliamentary elections in the Republic of Serbia?

2 THE WITNESS: [Interpretation] The second parliamentary elections

3 were held in 1992. The first immediately after the constitution entered

4 into force in 1990. In 1990 there was a majority system for seats in

5 parliament to be distributed, and then the SPS has a homogenous majority.

6 However, as of 1992 it hasn't had that majority --

7 JUDGE BONOMY: Well, the facts are a quite separate matter. At

8 the moment we're looking at the theory, and you're looking at the terms of

9 the constitution and it's in that connection I ask these questions. We'll

10 move on to the factual position, no doubt, at a later stage.

11 It's necessary now to have a break for various administrative

12 reasons, and we will resume at 20 minutes past 11.00. Meanwhile, the

13 usher will show you where to wait. Just please leave the courtroom now

14 with the usher.

15 [The witness stands down].

16 JUDGE BONOMY: And we shall resume at 11.20.

17 --- Recess taken at 10.49 a.m.

18 --- On resuming at 11.22 a.m.

19 MR. ZECEVIC: Your Honours, before -- before we start, I'm sorry I

20 omitted something this morning when I was referring to --

21 JUDGE BONOMY: Just bring the witness in.

22 MR. ZECEVIC: -- when I was referring to our amendments to 65 ter,

23 we wanted to amend the 65 ter concerning the Exhibit 1D752, which is

24 Article 56 of the Federal Republic of Germany basic law or constitution 49

25 of 90, the oath of office. And I'm sorry I omitted to mention that this

Page 12893

1 morning.

2 [The witness takes the stand]

3 MR. ZECEVIC: The OTP was advised by e-mail on Friday about that

4 and this oath will be used during Professor's expert testimony, as

5 Professor would like to explain through it the legal nature of the oath

6 which is provided for in the Constitution of Serbia. I talked to my

7 friend Mr. Hannis, and he assured me that he doesn't object to this.

8 But --

9 JUDGE BONOMY: Mr. Hannis.

10 MR. HANNIS: No objection, Your Honour.

11 JUDGE BONOMY: Very well. We shall allow you to do that,

12 Mr. Zecevic.

13 MR. ZECEVIC: Thank you very much, Your Honours, and I'm really

14 sorry for this.

15 JUDGE BONOMY: Please continue with your examination.

16 MR. ZECEVIC: Your Honours, we have prepared a PowerPoint

17 presentation for -- for the purposes of clarity of the issues we are going

18 to talk about, and it refers to the Article 83 of the Serbian constitution

19 and the competencies, powers, of the president of Serbia. And we have

20 provided a copy to the registry, and we have three of these presentations.

21 And it was suggested to us that we -- if it pleases the Court, that we

22 take the IC numbers for each and every of the presentations with the

23 number of slides included in that -- in that particular IC number.

24 JUDGE BONOMY: It seems a sensible way of proceeding.

25 MR. ZECEVIC: Thank you very much, Your Honours.

Page 12894

1 Could we have the presentation number 1.

2 THE REGISTRAR: That will be IC131, Your Honours.

3 MR. ZECEVIC: Thank you very much.

4 Is it -- I'm sorry. Okay.

5 Q. [Interpretation] Professor, we have prepared this PowerPoint

6 presentation and it will take place on the screen before you. As we

7 proceed through the presentation, please comment page by page.

8 A. Very well.

9 Q. Thank you.

10 MR. ZECEVIC: Page 2, please.

11 JUDGE BONOMY: We've been over this already, haven't we?

12 MR. ZECEVIC: Yes, Your Honour, that's the -- that's the whole

13 Article of 83 in the Constitution of Serbia.

14 JUDGE BONOMY: And the witness has categorised these into three.

15 MR. ZECEVIC: Yes, three different -- three different groups of

16 competences or powers of the president.

17 Could we have page 3, please.

18 Q. [Interpretation] Professor, could you explain what this page is

19 about, what does it show?

20 A. This page explains the legal status of the powers the president of

21 the republic has according to Article 83. In some cases, he has no powers

22 at all, later on I will explain why; in some he does have power to act;

23 there are some powers he can exercise only upon agreement of the majority

24 in the parliament; and there are some powers he cannot exercise because

25 the appropriate legislation for the implementation of the constitution has

Page 12895

1 not been adopted.

2 Q. Very well. So the colour red are powers that he has no

3 possibility of exercising?

4 A. Yes. These are powers which in every federal state in the world

5 are reserved for the federal state. They are powers linked to the defence

6 of the country and foreign policy. In view of the fact that the

7 Constitution of Serbia, as I said, was adopted to prevent a constitutional

8 vacuum should the Yugoslav Federation fall apart, it was drafted as if

9 Serbia were an independent state. And that is the reason for such powers

10 given to the president of the republic. However, according to Article

11 135 --

12 Q. Very well. We'll come to that later. I do apologise for

13 interrupting you. I only wanted to explain this colour code which is on

14 our monitors. The colour green designates powers the president can

15 exercise, blue marks powers the president can exercise --

16 JUDGE BONOMY: Mr. Zecevic, what's the point in having a

17 PowerPoint, then asking the witness to go over the four or five colours,

18 and then doing it again yourself. I thought this was supposed to speed up

19 and clarify things. Let's move on.

20 MR. ZECEVIC: Thank you very much, Your Honour. I thought that it

21 wasn't explained by the colours. That was the whole point of my exercise.

22 Could we have the next -- slide number 4, please.

23 Q. [Interpretation] Professor, would you explain this to us now.

24 This page shows the categories of powers, the three groups as you

25 explained to us. In yellow we see the powers which the president has in

Page 12896

1 order to represent the Republic of Serbia.

2 A. Yes. In yellow we have here the powers relating to him being the

3 head of state representing Serbia. In grey we have powers which the

4 president has as a non-operational executive. And in this third colour, I

5 don't know how to call it, we have the powers which president has in

6 irregular situations.

7 Q. You mean the colour on the right?

8 A. Yes, the colour on the right. I don't know how to clarify it --

9 JUDGE BONOMY: I'm obviously now going to struggle with the

10 additional colours. I assume just for the moment that where it was red it

11 was perhaps something he couldn't do, but are the red numbers here and the

12 colours of the numbers of some significance?

13 MR. ZECEVIC: Yes, Your Honour, I'm coming to this right now.

14 JUDGE BONOMY: All right.

15 MR. ZECEVIC: [Interpretation]

16 Q. The numbers which we can see in these rectangles denote provisions

17 of Article 83; is that correct?

18 A. Yes. These are actually all the constitutional powers of the

19 president of the republic categorised pursuant to their legal status.

20 Some are the powers that he cannot exercise, some he can exercise only

21 upon an agreement of the parliament, and some powers can only be exercised

22 by him at the proposal of another state organ.

23 Q. Now we're dealing with the powers enumerated in Article 83,

24 paragraph 1, would you please comment on this --

25 JUDGE BONOMY: Please go back to the previous one just for a

Page 12897

1 moment and go back to the one before that.

2 Right. Let's go forward one, please.

3 So should we take the view that where the number is in red, that

4 is something that the president could not do?

5 MR. ZECEVIC: Exactly, Your Honour.

6 JUDGE BONOMY: All right. Thank you.

7 MR. ZECEVIC: Can we have the slide number 5, please.

8 Q. [Interpretation] Professor, would you please explain this slide.

9 This is Article 83, paragraph 1, marked in blue. Would you please explain

10 why is this so.

11 A. In the enumeration of the powers of the president of the republic,

12 this is the first power; namely, to propose a candidate to the National

13 Assembly, a candidate for the post of prime minister upon hearing the

14 opinion of the representative of the majority in the National Assembly.

15 The president cannot exercise this power on his own because the

16 candidate -- the identity of the candidate is opposed by him as a result

17 of the elections, and he has to go with the person proposed by the

18 majority in the Assembly.

19 Q. Thank you. Professor, this is Article 83, paragraph 2. This one

20 is in blue as well. Would you please give another brief comment.

21 A. This is the power of the president to propose candidates for the

22 president and judges of the Constitutional Court. Once again, he cannot

23 exercise this power either without abiding by the opinion of the

24 parliamentary majority. He needs to previously reach an accord with the

25 cabinet which personifies the parliamentary majority to see whether the

Page 12898

1 candidates that he proposes can receive the majority of the votes in the

2 Assembly.

3 Recently we had a case where the current president of the republic

4 gave his candidate for the president of the Constitutional Court without

5 obtaining prior approval of the majority in the parliament, and this

6 candidate was not confirmed by the Assembly. So in this case the

7 presidential has to abide by the opinion of the parliamentary majority.

8 He is not free to propose the candidate that he wants and the

9 parliamentary majority does not approve.

10 Q. Thank you.

11 MR. ZECEVIC: [Interpretation] Can we see slide number 7, please.

12 Q. This is Article 83, paragraph 3 --

13 JUDGE BONOMY: Again before you move on, the example you've just

14 given, Professor, you're not saying that the president acted

15 unconstitutionally, are you? Stupidly perhaps, but not

16 unconstitutionally?

17 THE WITNESS: [Interpretation] Well, the president can embark upon

18 an adventure whereby he would propose a candidate without consulting the

19 cabinet prior to that. If he wants his candidate to be appointed, he

20 needs to consult the prime minister because only upon obtaining the

21 support of the parliamentary majority, which he can obtain through the

22 cabinet, will his candidate be appointed. If he's acting on his own

23 without consulting the cabinet, then he risks his candidate not being

24 appointed.

25 JUDGE BONOMY: I -- I understand that and I am simply making the

Page 12899

1 point it means what it says. So why do we have to labour all this?

2 MR. ZECEVIC: Your Honours, we want to show by this presentation

3 we want to show that the limits of the competences of the president --

4 JUDGE BONOMY: And you don't think the report does that

5 adequately?

6 MR. ZECEVIC: I'm sorry?

7 JUDGE BONOMY: You don't think the report, the expert opinion,

8 does that adequately?

9 MR. ZECEVIC: We're sure it does that adequately, we just wanted

10 to be -- for the purposes of clarity and to be crystal clear in the

11 courtroom.

12 JUDGE BONOMY: There is a limit to the extent to which we wish to

13 be treated as school children.

14 MR. ZECEVIC: All right. It wasn't our intention at all, Your

15 Honours. We just -- I mean, if you don't -- if the Trial Chamber would

16 not like us to proceed with this presentation we can come to -- we can

17 move on.

18 JUDGE BONOMY: I suspect you're coming to more interesting

19 examples and therefore I won't stop you for that, but please skip over the

20 ones that really state the, as we say, bleeding obvious.

21 MR. ZECEVIC: Your Honour, we just wanted to show the completeness

22 of the whole. Thank you.

23 Can we have slide number 7.

24 Q. [Interpretation] This is Article 83, paragraph 3. Would you

25 please explain very briefly why this one is in blue as well.

Page 12900

1 A. Because the promulgation of laws has to do with the adoption of

2 laws in the Assembly. The president can promulgate only those laws which

3 were adopted in the procedure prescribed in the Assembly. So this

4 promulgation is not an independent act of the president; it has to do with

5 a constitutive act, the adoption of law; whereas, the promulgation itself

6 is a decorative act. The President simply states that what bears the

7 title of a law is indeed a law.

8 MR. ZECEVIC: Can we move to number 8.

9 Q. This is Article 83, paragraph 4 of the Constitution of Serbia, it

10 is in red. So in your opinion this is a power that the president cannot

11 exercise?

12 A. It's not that it's my opinion. It is based on the principle of

13 relations between the federal constitution and that of Serbia. This is

14 based on Article 77 of the Constitution of the Federal Republic of

15 Yugoslavia, this is something that falls within the jurisdiction of the

16 Federation.

17 Q. Thank you.

18 JUDGE BONOMY: Professor, this led to a law on ministries, under

19 which there were ministries established, I think three in all, for foreign

20 relations, for international aid I think, and I can't remember what the

21 third one is offhand. Were these ministries ever established in fact?

22 THE WITNESS: [Interpretation] Those ministries were established

23 and those were the Ministry of Defence, Ministry of Foreign Affairs, and

24 Ministry for Economic Relations with Foreign Countries. However, when the

25 first review of the Law on Ministries was conducted --

Page 12901

1 JUDGE BONOMY: I know that from your report, but if all that was

2 being done here was to create formally a situation which could be

3 implemented if Yugoslavia fragmented further, why did the ministries

4 actually have to be established?

5 THE WITNESS: [Interpretation] They had to be established so that

6 Serbia, who "volens nolens" wouldn't become an independent state should

7 there be a total fragmentation of Yugoslavia, be given all instruments of

8 statehood so that it would have its minister of defence, its minister of

9 foreign affairs. Because as a member of a federation it was not entitled

10 to have such ministries because these are the matters that fall within the

11 jurisdiction of the Federation; and this was a transitional period of

12 time. Those ministries existed for a brief period of time only because

13 the first government of the Republic of Serbia pursuant to the 1990

14 constitution was set up in late 1990 or perhaps early 1991.

15 JUDGE BONOMY: I don't think that does explain the position,

16 Mr. Zecevic, but please continue. Perhaps it will be clear later.

17 MR. ZECEVIC: Thank you.

18 Can we have slide number 9.

19 Q. [Interpretation] Professor, this is Article 83, paragraph 5, once

20 again it's in red, so this must be one of the powers that the president

21 cannot exercise. A brief explanation, please.

22 A. As in the previous case the same explanation follows here. Serbia

23 did not have armed forces, did not have its own army, and defence did not

24 fall in -- within the jurisdiction of Serbia. The defence matters were

25 within the jurisdiction of the Federation, and the Federation had the Army

Page 12902

1 of Yugoslavia. So this was a power that the president of the republic

2 could not exercise.

3 Q. Thank you. This is Article 83, paragraph 6. Would an identical

4 explanation apply in this case as well, Professor?

5 A. Yes. All of these irregular situations, meaning state of

6 emergency, state of war, and state of an imminent threat of war, fell

7 within the jurisdiction of the federation, namely, the Federal Assembly

8 and federal cabinet. This is why the president of the Republic of Serbia

9 could not exercise this power.

10 Q. Thank you. This is slide 11, Article 83, paragraph 7. It is in

11 red colour, denoting a power that the president cannot exercise. Would

12 you please explain.

13 A. This is the power of the president of the republic to adopt

14 instruments or enactments that regulate matters falling within the

15 competence of the National Assembly or only during a state of war or

16 imminent threat of war. So only under those two types of irregular

17 circumstances. As soon as they cease to exist, the president is

18 duty-bound to present those enactments to the Assembly for confirmation.

19 Q. Professor, let us spend some time here. I'm sure that the

20 president -- that the Trial Chamber would be interested in this. It is a

21 fact that President Milutinovic during the state of war which lasted from

22 the 23rd of March, 1999, until the 10th of June, 1999, adopted a certain

23 number of decrees, namely, 16 of them which are based on this article. In

24 this presentation you categorise this as a power that should be marked

25 red. Would you explain this, please.

Page 12903

1 A. That's because he is not the state organ that declared the state

2 of war or the state of an imminent threat of war. Initially it was done

3 by the national assembly, and in cases where national assembly cannot be

4 mean it is done by the federal cabinet. The president under those

5 circumstances adopts these enactments at the proposal of the cabinet

6 because they fall within the jurisdiction of the National Assembly. The

7 federal cabinet and the federal president cannot pass enactments that fall

8 within the jurisdiction of a federal unit. That was the reason why the

9 president of Serbia adopted these enactment under those circumstances

10 because these are the enactments pursuant to the Constitution of Serbia.

11 These matters fall within the jurisdiction of the Republic of Serbia in

12 this particular case within the jurisdiction of the National Assembly.

13 Q. Thank you --

14 JUDGE BONOMY: I'm -- it may well be me, but I'm not understanding

15 this very clearly. I thought that this power was a federal power. Have I

16 misunderstood that?

17 MR. ZECEVIC: Actually what -- if -- Professor can -- would you

18 like Professor to answer this?

19 JUDGE BONOMY: Yes, I would.

20 MR. ZECEVIC: [Interpretation] Please go ahead, Professor.

21 THE WITNESS: [Interpretation] Declaring a state of war and a state

22 of an imminent threat of war is something that falls within the

23 jurisdiction of the Federation. Under those circumstances, the federal

24 cabinet adopts enactments that fall within the jurisdiction of the Federal

25 Assembly, but here we're dealing with the responsibility of the republic,

Page 12904

1 the competency of the republic, under Article 72 of the Constitution of

2 Serbia. This is a competence that belongs to the National Assembly of

3 Serbia. It says here that the president adopts these enactments only if

4 they fall within the jurisdiction of the National Assembly, which is

5 specified in Article 73 of the constitution. So this is not something

6 that falls within the federal jurisdiction, even under federal

7 constitution, no. This is an issue that falls within the jurisdiction of

8 a federal unit, that is to say Serbia. The same article is contained in

9 the Constitution of Montenegro.

10 JUDGE BONOMY: I now understand that, but I question why the

11 colour is red now.

12 MR. ZECEVIC: The Professor explained but he can do it again --

13 JUDGE BONOMY: Red is something there is no power to do according

14 to your initial scheme, but here we have a constitutional provision that

15 enables him to deal with matters within the jurisdiction of the Republic

16 of Serbia during a state of war. That shouldn't be red, should it?

17 THE WITNESS: [Interpretation] This is most likely because he

18 himself did not declare a state of war or a state of an imminent threat of

19 war; that was done by a federal organ.

20 JUDGE BONOMY: But Article 83, 7 doesn't depend on the president

21 making the declaration.

22 THE WITNESS: [Interpretation] I think that it's a matter of how

23 you qualify it, but the essence in my mind is clear, the substance is

24 clear. This irregular state of affairs is declared by the Federation, and

25 once it's done when it comes to all the matters falling within the

Page 12905

1 jurisdiction of the National Assembly, which is quite a large body with

2 over 200 members, in that case the enactments which fall within the

3 jurisdiction of the National Assembly are adopted by the president at the

4 proposal of the cabinet.

5 MR. ZECEVIC: [Interpretation]

6 Q. Perhaps I can try to offer some assistance to the Trial Chamber.

7 Professor, if we look at Article 83, paragraph 7 of the

8 constitution, this is a power that can only be exercised under so-called

9 irregular circumstances, right?

10 A. Yes, that is precisely right.

11 Q. You are saying that these irregular circumstances need to be

12 declared by the federal bodies and not the republican bodies, right?

13 A. Yes, that is precisely what the constitution says.

14 Q. Therefore, Article 83, paragraph 7 is marked in red precisely

15 because the federal bodies must create circumstances for this to be

16 applied to begin with, right?

17 A. Yes, there is no spontaneous application, so to speak, without

18 this first being rubber-stamped by a federal body.

19 Q. Professor, please, there's one thing I would like to ask you.

20 Before you start answering make a short break so that the interpreters

21 have a sufficient time to catch up.

22 MR. ZECEVIC: Number 8, please -- slide number 12, article --

23 [Interpretation] Article 83, paragraph 8 of the constitution, also marked

24 in red.

25 Q. Can you please explain why, Professor, briefly?

Page 12906

1 A. The same explanation applies as that which applies to the previous

2 paragraphs, talking about the competence of the Republic of Serbia in

3 cases where it is an independent state. But for as long as it remains a

4 federal unit, this falls under the jurisdiction of the Federation.

5 Q. Finally we come to a green one. Can you please explain,

6 Professor, briefly what this is about, Article 83, paragraph 9.

7 A. This is a power that the president has as a chief of state;

8 however, this complex procedure and granting pardons is not something that

9 the president does on his own and simply of his own accord. The first

10 thing that needs to happen is for him to provide an opinion on a pardon

11 and submit it to a first-instance court, the court issuing a ruling or a

12 judgement. The next thing that happens is this goes to the Ministry of

13 Justice. It is not before all these have been implemented, all these

14 steps, that the president can grant pardon. Formally he can't propose

15 someone to be pardoned. Pardon needs to be requested or it can be granted

16 ex officio. Ex officio in this case would mean the minister of justice

17 and then he can initiate proceedings for a pardon to be granted.

18 MR. ZECEVIC: Slide number 14, please.

19 Q. This slide is in relation to Article 83, paragraph 10 --

20 JUDGE BONOMY: Just before you move on in relation to 9 in Serbia

21 are pardons, as they are in other countries, very, very unusual events?

22 THE WITNESS: [Interpretation] I do not sit on the pardon board or

23 commission myself; therefore, I don't know how frequent a case this was.

24 But it certainly is an exceptional thing of quasi-judicial competence,

25 that's what we term it in practice, that's what it is for the president of

Page 12907

1 the republic. And this is only ever done if the actual pardon is

2 requested by a third party. I'm not entirely certain how this works in

3 practice because I don't have all the relevant information at my

4 finger-tips.

5 JUDGE BONOMY: Thank you.

6 Mr. Zecevic.

7 MR. ZECEVIC: [Interpretation] Slide 14, please, Article 83,

8 paragraph 10 marked in purple.

9 Q. In order to have this power exercised, we need to have a law that

10 was never passed, right?

11 A. Yes. The president could never exercise this particular power

12 simply because the law on decorations and awards was never passed in

13 Serbia throughout the time that the 1990 constitution implied. Therefore,

14 only the federal president, the president of the federal republic, was in

15 a position to exercise this power. Even as we speak, Serbia does not have

16 this sort of law. The now-president of Serbia cannot exercise this right

17 stemming from the 2006 constitution for the simple reason that no law has

18 yet been adopted for decorations and awards.

19 Q. Thank you very much.

20 MR. ZECEVIC: [Interpretation] Slide number 15, please.

21 Q. This is Article 83, paragraph 11, marked in green, as we see,

22 which would mean that the president is in a position to exercise this

23 power, is entitled to exercise this power, briefly, Professor, please.

24 A. This power is self-explanatory. The president is the sole

25 executive, but in order to exercise a certain power he needs assistance.

Page 12908

1 This assistance is provided by a range of technical services and bodies

2 that he sets up himself. However, he needs to mind the budget that is at

3 the president's disposal. So there are certain realistic limits in terms

4 of setting up these technical teams and services. He cannot set up too

5 many of those if the funds within the presidential budget happen to be

6 limited.

7 JUDGE BONOMY: I wonder if you meant to say this. Your answer to

8 that question started with: "This power is self-explanatory. The

9 president is the sole executive ..."

10 Did you mean to say that?

11 MR. ZECEVIC: The word used by professor is "inokosan." It should

12 be -- let me just consult. It is a -- [Interpretation] It's an

13 independent organ.

14 THE WITNESS: [Interpretation] The only one, sole, individual, the

15 constitutional provision from Article 9 applies. He's not the bearer of

16 executive power. According to Article 9 of the constitution, this is for

17 the government; however, the president of the republic is a physical

18 individual. This is not a collegium of persons, it's not a board or body,

19 that's why I used the term "sole" or "individual."

20 JUDGE BONOMY: Thank you.

21 MR. ZECEVIC: Can we have slide number 16.

22 Q. [Interpretation] Professor, you have Article 83, paragraph 12 in

23 front of you marked in green. Can you just please briefly comment on

24 this.

25 A. This is something that we've spoken about already, the powers of

Page 12909

1 the president is a constitutional category, and he can only exercise those

2 powers listed in this article or other articles of the constitution. His

3 powers cannot be established by the legislation nor can his constitutional

4 powers be modified by it.

5 Q. Thank you. Professor, having followed this presentation I am

6 quite certain that we owe the Trial Chamber --

7 MR. ZECEVIC: Could we please have slide number 4 on the ELMO,

8 just for future reference. Thank you very much. Thank you very, very

9 much.

10 Thank you, Mr. Usher.

11 Q. [Interpretation] Professor, as I said, I think we owe the Trial

12 Chamber an explanation in terms of what you mean when you say "reserve

13 competences," meaning the powers that we marked in red for the purposes of

14 our presentation. What about the influence of Article 135 of the

15 Constitution of Serbia on your explanation and your specific position

16 regarding this?

17 A. This is a peculiarity of the Constitution of the Republic of

18 Serbia. In order to interpret it, one must bear in mind the historical

19 background of the time when it was passed. I said something about this in

20 answer to your first question, therefore I don't believe there's any need

21 to repeat this now. We are looking at powers that if they happen to be in

22 the jurisdiction of the federal state, must be implemented by the

23 Federation according to its own constitution. Given the fact, however,

24 that the Federation was in a state of disarray and was beginning to

25 disintegrate, the 1990 constitution was passed in order to avoid leaving

Page 12910

1 Serbia in a constitutional vacuum with solutions at its disposal that it

2 needed and that any state in a situation like that would have needed.

3 The 1990 constitution granted those powers to the Republic of

4 Serbia, powers not normally granted to a federation within a federal

5 state -- the federation within a federal state. Since the Federal

6 Republic of Yugoslavia came about and the Socialist Federative Republic of

7 Yugoslavia was transformed into the Federal Republic of Yugoslavia and the

8 powers were given to the Federal Republic of Yugoslavia, and that's why

9 the Constitution of the Republic of Serbia had to be consistent with the

10 Constitution of the Federal Republic of Yugoslavia. Hence, the state

11 bodies of the Republic of Serbia were in no position to exercise powers

12 that under the federal constitution were reserved for the federal state.

13 And that is why these powers are normally termed federal powers.

14 JUDGE BONOMY: Mr. Zecevic, where is Article 135 referred to in

15 the expert opinion?

16 MR. ZECEVIC: Just bear with me, Your Honour, one second. 230,

17 2-3-0, paragraph 2-3-0.

18 JUDGE BONOMY: Thank you.

19 That deals with part of it. Are you -- Professor, is Article 135

20 insofar as it relates to provisions of other constitutions which might

21 violate the equality of Serbia or threaten its interests a regular feature

22 of constitutions of the constituent parts of a federation?

23 THE WITNESS: [Interpretation] No. It is not usual for the

24 constitution of a federal unit to talk about the same powers as the

25 federal constitution, but it is no normal situation for a federation to

Page 12911

1 disintegrate into its own federal units. This started happening at the

2 time when the 1990 constitution was passed. This is a response to what

3 you might say was an exceptional situation, and this provision is

4 certainly not typical of the constitutions of the federal units. However,

5 we need to know that this was a federation beginning to disintegrate into

6 its component parts.

7 JUDGE BONOMY: In 1990, did this constitution require the approval

8 of the Federation?

9 THE WITNESS: [Interpretation] It wasn't necessary. Under the

10 constitution then in force, which was the 1974 constitution, the federal

11 units, that is, the republics, had the right to self-organise, meaning to

12 use their own constitutions to regulate their own constitutional systems.

13 However, these constitutions under the 1974 constitution had to be

14 consistent with the federal constitution and not run counter to it.

15 JUDGE BONOMY: And do you say that this provision, the second

16 paragraph of this provision, was consistent with the federal constitution?

17 THE WITNESS: [Interpretation] No, not the first and not the

18 second. However, this is an irregular situation. The Republic of Croatia

19 passed its own constitution right after this, and again this new Croatian

20 constitution was not consistent with the constitution of the Socialist

21 Federative Republic of Yugoslavia either. The situation at the time was

22 irregular, was abnormal, if you like, and it certainly wasn't typical of

23 what things usually worked like in a federal state. This was a federation

24 on the brink of break-up.

25 JUDGE BONOMY: Thank you.

Page 12912

1 Mr. Zecevic.

2 MR. ZECEVIC: [Interpretation]

3 Q. Under the circumstances that prevailed at the time - and what I

4 mean is the new constitution being adopted and all the provisions that

5 we've been looking at - what Serbia really wanted was to protect its own

6 vital interests, right?

7 A. Yes. The -- Article 135 in its entirety has the function to

8 protect.

9 MR. ZECEVIC: Can we have Article 135 from the e-court, please?

10 It's tab 5, P855 and page number 6 -- 26.

11 Q. [Interpretation] Professor, in your report at 2.6, and

12 particularly in footnote number 6, you explain the substance of Article

13 135 of the Constitution of Serbia. Is that correct, sir?

14 A. Yes, that's quite correct. What you find here is the explanation

15 of the purpose and the raison d'etre, if you like, of Article 135 in the

16 constitution of a federal unit.

17 Q. Let us try to simplify matters to the greatest extent possible.

18 In 1990 constitution and the government provisions were adopted by Serbia

19 in a bid to protect its own vital interests. One must bear in mind,

20 however, that Serbia had no intention of leaving the federation of which

21 it was then part and that was the reason why Article 135 was introduced.

22 This article enabled Serbia to have certain powers should the federation

23 begin to dissolve, while at the same time remaining within that federation

24 and continuing to function as its member republic, right?

25 A. Yes. That is precisely the meaning behind this. I addressed this

Page 12913

1 a while ago. This is for Serbia to have at its disposal the instruments

2 of statehood should a case of total overall dissolution occur, should the

3 Federation break-up into its six component parts or republics all aspiring

4 to become independent states.

5 Q. Thank you, Professor. This provision of the constitution of

6 Serbia in 1990 enabled the supremacy as you said of the federal

7 constitution from 1974, I'm referring to the constitution of the SFRY in

8 tab 9 here, P1623, and then as of the 27th of April, 1992, the supremacy

9 was granted to the Constitution of the FRY in tab 6, that's P856, and then

10 after that from 2003 it was the Constitutional Charter of Serbia and

11 Montenegro which is here in tab 10. Is that correct, Professor?

12 A. Yes. This article was supposed to express the loyalty of Serbia

13 to the Federation, to the federal state. Serbia in its constitution did

14 not take for itself anything that was within the competence of the federal

15 state; on the contrary, in Article 135 it says that everything that is

16 within the competence of the federal state and simultaneously of the

17 Republic of Serbia based on its constitution of 1990 will be done by the

18 federal state in line with its constitution.

19 Q. Because Serbia gave these powers to its organs in the constitution

20 of 1990, these powers were simply a reserve in a manner of speaking and

21 that is why you termed these provisions reserve powers?

22 A. Yes. These are powers in case Serbia became an independent state.

23 That's why they are referred to as reserve powers.

24 Q. And Serbia became independent only in 2006?

25 A. Yes, and that was when this constitution was replaced by a new

Page 12914

1 one.

2 Q. Thank you, Professor. I think that for the sake of completeness

3 and clarity we should illustrate these situations. You gave more

4 explanations in paragraphs 2.5 to 2.10 of your paper, but now I would like

5 to ask you in order to comment on the relevant legislative provisions,

6 would you please open tab 19, that's 1D750, the Law on Carrying out

7 Foreign Affairs Tasks Within Competencies of Federal Administrative Organs

8 and Organisations.

9 MR. ZECEVIC: Could we have it on the -- it's not in the system?

10 1D750.

11 JUDGE BONOMY: We've been given an untranslated copy of this.

12 MR. ZECEVIC: Yes, Your Honour, the translation -- it's one of the

13 very few documents that the translation is still pending, but I -- I would

14 suggest that we -- that the Professor or I could read just an article in

15 it and it be translated by the translators --

16 JUDGE BONOMY: Just one second.

17 MR. ZECEVIC: -- for the transcript.

18 [Trial Chamber and registrar confer]

19 JUDGE BONOMY: Well, apparently the B/C/S version is in the

20 system, so you can proceed the way you suggest.

21 MR. ZECEVIC: Thank you, Your Honour.

22 Q. [Interpretation] Professor, have you found it?

23 A. Yes.

24 Q. This is the law on exercising foreign affairs tasks within the

25 competence of federal organs, and it's dated the 16th of October, 1981, so

Page 12915

1 this was the law regulating foreign affairs during the existence of the

2 former Socialist Federative Republic of Yugoslavia. Is that correct,

3 Professor?

4 A. Yes, it is, and one can see that these are all tasks within the

5 competence of the Federation.

6 Q. I will read only Articles 3 and 5 which I think illustrate the

7 situation.

8 Article 3: "The federal administrative organ and federal

9 organisations shall carry out foreign affairs tasks within the sphere of

10 their competence" --

11 THE INTERPRETER: Could Mr. Zecevic please slow down.

12 JUDGE BONOMY: Mr. Zecevic, you're being asked to slow down,

13 please. It's a problem, always a problem, when you're reading from

14 something.

15 MR. ZECEVIC: I'm sorry, I thought that it was on the e-court, so

16 I thought that the translators can read it on the screen.

17 JUDGE BONOMY: Well, if you could go back then and read from where

18 you reached which was: "Simply within the sphere of their competence ..."

19 MR. ZECEVIC: Thank you.

20 [Interpretation] "Independently on the basis and within the

21 framework of the Constitution of the SFRY, the federal laws, other federal

22 regulations, and enactments of the Assembly of the SFRY and within the

23 framework of the foreign policy established after the SFRY and

24 international treaties, and they are responsible to the Assembly of the

25 SFRY and the Federal Executive Council for the carrying out of these tasks

Page 12916

1 in the areas for which it is established."

2 And then Article 5: "The Federal Executive Council shall direct,

3 determine the manner of cooperation, and supervise the work of federal

4 administrative organs and federal organisations in the area of foreign

5 affairs falling within the competence of these organs and organisations.

6 In conducting foreign affairs within its sphere of competence, the federal

7 administrative organs and federal organisations shall cooperate with each

8 other."

9 Q. Professor, just a brief comment, please. This law and these

10 provisions regulate foreign affairs, do they not?

11 A. Yes. This was the law of the Federation which was in force for a

12 long time. It was in force until 1998, and it is evident from these

13 articles that this is a function of the Federation. The matter of foreign

14 affairs falls within the competence of the Federation. And the federal

15 organs dealing with that are provided for. These are federal organs and

16 organisations and the Federal Executive Council, which was actually the

17 federal government in those conditions.

18 Q. Very well. When the SFRY ceased to exist and the Federal Republic

19 of Yugoslavia came into existence, a Law on Foreign Affairs of the Federal

20 Republic of Yugoslavia was enacted, that's tab 20, 1D246.

21 MR. ZECEVIC: We have a translation, Your Honours, of that

22 document.

23 Q. [Interpretation] Professor, have you found it?

24 A. Yes, yes, I have, I have.

25 Q. Well, it's on the screen.

Page 12917

1 A. Well, this law succeeded the previous law, and it regulates

2 foreign affairs and it is evident from this law that this is still within

3 the competence of the federal state, and the federal state exercises these

4 powers through its federal organs.

5 Q. And because this is within the competence of the federal state,

6 both in the course of the existence of the SFRY and later on in the FRY,

7 this power in the Constitution of Serbia in Article 83, paragraph 4 is

8 marked red in our PowerPoint presentation in accordance with Article 135

9 of the constitution. Is that correct?

10 A. Yes.

11 Q. Thank you, Professor. Professor, you seem to be having a

12 technical problem with this binder --

13 MR. ZECEVIC: If we need to change the binder, we would gladly do

14 that. We have one.

15 I'm sorry, Your Honours.

16 [Microphone not activated]

17 THE INTERPRETER: Microphone, please.

18 MR. ZECEVIC: I suggest, Your Honours, that we proceed so we don't

19 use the time. It should be on the e-court.

20 Q. [Interpretation] You will see it on the monitor, Professor, the

21 documents I wish to discuss with you.

22 Tab 17, 1D456, this is a Law on Ministries, Article 5. His

23 Honour, Judge Bonomy, at the very beginning asked you about it. This is

24 the Law on Ministries from 1991 of the Republic of Serbia, Article 5.

25 A. Yes, I see it. Article 5 lists the ministries. There is a total

Page 12918

1 of 20.

2 Q. Yes, one is the Ministry of Defence; 2, Ministry of the Interior;

3 and then we have the Ministry for International Relations and Economic

4 Development, do we not?

5 A. Yes.

6 Q. And this is from 1991, and when asked by His Honour Judge Bonomy,

7 you said that when this law was amended for the first time, and in our set

8 of documents that's tab 18, 1D142, Article 5 again, this is a Law on

9 Amendments to the Law on Ministries. This is dated the 30th of August,

10 1993, it amends the 1991 law. Do you see this, Professor?

11 A. Yes, I do.

12 Q. And in Article 5 it says: "The following shall cease to function

13 on the day this law enters into force: The Ministry of Defence, the

14 Ministry of Foreign Affairs, and the Ministry for Foreign Economic

15 Relations and Commercial Development." Is that correct?

16 A. Yes. It is precisely these ministries that shall cease to

17 function. In the meantime Serbia and Montenegro organised themselves into

18 the Federal Republic of Yugoslavia, and according to its constitution

19 these areas fell under the competence of the Federation which is why these

20 three ministries ceased to exist, since their fields of activity were now

21 within the competence of the federal state, that's defence, foreign

22 affairs, and foreign economic relations.

23 Q. So the reason why this law was adopted is that in the meantime the

24 Federal Republic of Yugoslavia was established in April of 1992, and this

25 new constitution specified that these matters would fall within the

Page 12919

1 jurisdiction of the federal organs; as a result of that, these Serbian

2 ministries ceased to exist?

3 A. Correct.

4 Q. Thank you. Professor, let us now go back to powers in irregular

5 circumstances. In our PowerPoint presentation they were marked in red,

6 they were on the right-hand side in slide 4. This is 131, IC131, and

7 these are the powers enumerated in Article 83, paragraphs 5, 6, 7, and 8.

8 Let us now go -- start with Article 83, paragraph 6, which deals with the

9 power of the president to declare a state of emergency or some other kind

10 of irregular state. The Constitution of Serbia which is marked as ID139

11 in Article 78, paragraph 3 says what, Professor?

12 A. Let me just try to find it, 78, paragraph 3. In Article 78 of the

13 Federal Republic of Yugoslavia we see that the jurisdiction of the Federal

14 Assembly is regulated. It also says that among other things the Assembly

15 decides on the change of borders of Yugoslavia, it decides on war or

16 peace, it declares the state of war, the state of an imminent threat of

17 war, and a state of emergency.

18 Q. So all three kinds of irregular circumstances fall within the

19 jurisdiction of the Assembly?

20 A. Yes, all three kinds of these irregular circumstances fall within

21 the jurisdiction of the Federation, and it exercises that through the

22 Federal Assembly.

23 Q. Professor, that same constitution, the constitution of the Federal

24 Republic of Yugoslavia, Article 99, paragraph 10, please.

25 A. It deals with who is going to declare these irregular states if

Page 12920

1 the Federal Assembly is unable to meet. Since a parliament of any country

2 is a multi-member body, it is difficult to assemble them, it's difficult

3 to achieve quorum, and under those circumstances the competency for

4 declaring some kind of an irregular state falls within the federal

5 cabinet. So in those circumstances, when the Federal Assembly is unable

6 to meet, the federal cabinet, upon hearing the opinion of the president of

7 the republic, meaning the president of the Federal Republic of Yugoslavia,

8 as well as the Speaker of the Parliament, declares one of the irregular

9 circumstances. So this is an alternative in those cases where the Federal

10 Assembly is unable to meet.

11 Q. Just for illustration purposes, tab 11, P1664, is -- have you

12 found it, Professor, tab 11, which is P1664? This is the decision to

13 proclaim a state of imminent threat of war, which is item 186 of the

14 Official Gazette of the Federal Republic of Yugoslavia, dated March --

15 23rd March, 1999.

16 A. This decision is the application of the constitutional provision

17 that I explained just now. So the Federal Assembly was unable to meet,

18 the federal parliament was unable to meet, and the decision on proclaiming

19 a state of imminent threat of war was adopted by the federal cabinet.

20 Q. Thank you, Professor. Now, let us move to tab 13, which is P1311,

21 where we have the decision to end the state of war dated the 25th of June,

22 1999. This is tab 13, decision to end the state of war, 25th of June,

23 1999.

24 A. The decision was adopted by the Federal Assembly; it was able to

25 meet, therefore. And it adopted this decision to end the state of war,

Page 12921

1 which is the greatest level of irregular circumstances. They adopted a

2 decision to end the state of war.

3 Q. All right. So we have now shown two decisions: One to proclaim a

4 state of an imminent threat of war adopted under one set of circumstances

5 where that decision was adopted by the federal government pursuant to

6 Article 99, paragraph 10 of the Constitution of FRY, that was one type of

7 circumstances; and the other type of circumstances was when the Federal

8 Assembly was able to meet and adopted this decision, and that was the

9 situation regulated by Article 78, item 3 of the Constitution of FRY?

10 A. Yes, correct.

11 Q. All right. Precisely because of these provisions of the federal

12 constitution, provisions of Article 83, paragraph 6 of the Constitution of

13 Serbia is as we have said a reserve power that the president of the

14 republic has pursuant to Article 135 of the constitution?

15 A. Yes, we can see that he only had that power on paper. He had it

16 pursuant to the Constitution of Serbia, but since that constitution had to

17 be in compliance with the federal constitution and the federal

18 constitution put this within the jurisdiction of the federal state to be

19 exercised via the Federal Assembly and federal cabinet, then that was done

20 precisely by the Federal Assembly and federal cabinet and not by the

21 president of Serbia.

22 Q. Thank you. Now let us move on. The president of the --

23 JUDGE BONOMY: Just before you --

24 MR. ZECEVIC: Yes.

25 JUDGE BONOMY: Just before you do that, the same I think applies

Page 12922

1 to number 8 of the powers; is that right?

2 MR. ZECEVIC: That's right.

3 JUDGE BONOMY: But not to 7?

4 MR. ZECEVIC: That's right. I was just starting with the 7, Your

5 Honour.

6 JUDGE BONOMY: No, 7 was a power which actually was exercised.

7 We've had that evidence. We know the details of that and what he said

8 earlier, and I think also from the Prosecution case.

9 MR. ZECEVIC: Yes, that is a fact. But we would just like to

10 explain the mechanism, how the decrees were taken, Your Honour, during the

11 78 days of bombardment in 1999.

12 JUDGE BONOMY: All right.

13 MR. ZECEVIC: [Interpretation]

14 Q. Professor, the power that we have already commented upon from

15 Article 83, paragraph 7, is the power for the president to adopt decrees

16 when the National Assembly is not able to meet in the -- is in one of the

17 irregular circumstances. We have already discussed that, haven't we?

18 A. Yes, we have.

19 Q. And we said that those irregular circumstances occur as something

20 that is beyond the control of the president of Serbia and the Assembly of

21 Serbia because that falls within the jurisdiction of the Federal Assembly

22 and federal cabinet?

23 A. Yes.

24 Q. So it is the federal organs that declare one of irregular state of

25 affairs, and only after they do that does this power from Article 83,

Page 12923

1 paragraph 7 could be possibly exercised, correct?

2 A. Yes, but this constitution was designed in such a way that they

3 believed that either the National Assembly or the president, as specified

4 by Article 83, paragraph 6, would be the one to declare this type of

5 irregular state of affairs. And this is why this power was enumerated

6 here. However, since under the federal constitution this falls within the

7 jurisdiction of the Federation to be exercised either by the Federal

8 Assembly or the federal cabinet, this possibility remain in Article 83,

9 paragraph 7, whereby the president of the republic at the proposal of the

10 cabinet could adopt enactments that fall within the competence of the

11 National Assembly. The Federation cannot substitute the organs of one of

12 the federal units because they remain even under the irregular state of

13 affairs. However, this particular kind of irregular state of affairs was

14 declared by the Federation through one of its organs.

15 JUDGE BONOMY: This is very repetitive, Mr. Zecevic, and --

16 MR. ZECEVIC: I was about that --

17 JUDGE BONOMY: -- we're about to take a break, and I think we can

18 take it now. One of the reasons for having an expert report is to allow

19 the parties and the Bench to read it, and in a state of familiarity with

20 that report to hear any supplementary matters that need to be addressed by

21 the witness. There's little point in constantly repeating material which

22 is in the report itself. Indeed, there's much to be said for getting to

23 the stage of cross-examination on this as quickly as possible to see how

24 much is really an issue. So we would welcome you directing attention to

25 things you really need to ask supplementary questions about on

Page 12924

1 constitutional matters rather than going over what is already there.

2 We would also welcome copies of the PowerPoint slides in hard copy

3 if you could arrange that for us at the break.

4 MR. ZECEVIC: We will, yes.

5 JUDGE BONOMY: Professor, we need to break again now for lunch,

6 that will be for an hour, and we will resume at quarter to 2.00. So you

7 should go again with the usher, and he'll show you where you should be

8 during this break.

9 [Trial Chamber and registrar confer]

10 [The witness stands down]

11 JUDGE BONOMY: We'll resume at 1.45.

12 --- Luncheon recess taken at 12.43 p.m.

13 --- On resuming at 1.46 p.m.

14 JUDGE BONOMY: Mr. Zecevic, this is very helpful. Thank you very

15 much.

16 MR. ZECEVIC: Thank you very much. I would like to express our

17 gratitude to Riaz and the registry for helping us with this.

18 [The witness takes the stand]

19 JUDGE BONOMY: Mr. Zecevic, please continue.

20 MR. ZECEVIC: Thank you very much, Your Honour.

21 Q. [Interpretation] Professor, were you able to have some rest? Were

22 you, Professor?

23 A. A bit.

24 Q. I will try to go at a slower pace.

25 A. Thank you.

Page 12925

1 Q. You're quite welcome. In order to avoid repeating things,

2 Professor, I decided to give you specific examples that have to do with

3 powers from Article 83, paragraph 7 of the president. This has to do with

4 decrees adopted in 1999, and we will briefly comment upon that. And

5 should the Trial Chamber have some additional questions, then you will

6 certainly provide explanations.

7 While the state of war was in effect in 1999, President

8 Milutinovic adopted a total of 16 decrees, correct?

9 A. Yes, and all of them were published in the Official Gazette of the

10 Republic of Serbia.

11 Q. Please tell me, all of these decrees were adopted at the proposal

12 of the cabinet of Serbia?

13 A. Yes, correct. All of them were adopted at the proposal of the

14 cabinet, which formulated the text.

15 Q. And the text was sent to the president for him to sign it?

16 A. Yes, the text was given to the president to sign, or rather, he

17 was the one adopting the actual enactment, whereas the cabinet was the one

18 who gave the content, who formulated the substance of the enactment.

19 MR. ZECEVIC: Could we have tab 27, P993, second page, in Serbian;

20 it's a decree on ID during the state of war.

21 Q. [Interpretation] Tab 27, Professor, page 2 --

22 MR. ZECEVIC: Sorry, can we have the first page on e-court. It's

23 the page number 6 of the English version, decree on identity cards during

24 the state of war.

25 Q. [Interpretation] Professor, this Official Gazette number 17 is

Page 12926

1 dated the 7th of April, 1999, contains four decrees which were adopted by

2 the president in the course of the war?

3 A. Yes.

4 Q. One of those decrees is the one on identity cards?

5 A. During the state of war.

6 Q. Yes, correct. Professor, the law on identity cards is a republic

7 law, isn't it?

8 A. Yes, it is.

9 MR. ZECEVIC: [Interpretation] Could we see tab 28, please, P183

10 ter, which is the Law on Identity Cards, dated the 13th of April, 1974.

11 Q. Have you found it, Professor?

12 A. Yes, I have.

13 Q. Given that this was a republican legislation, it was the

14 republican cabinet which submitted a proposal to the president to adopt a

15 decree on identity cards during the state of war for the reasons that

16 motivated the cabinet?

17 A. Yes.

18 Q. This was done because this was a republican legislation?

19 A. This is a law adopted by the republic on identity cards, so this

20 is a legislation adopted by the National Assembly. But given that this

21 was the state of war, the decree on identity cards regulated two

22 situations. One is that the minimum age for identity cards was dropped

23 from 18 to 14, and the other situation was the one where a person loses

24 his or her identity cards and what needs to be done under those

25 circumstances. So this decree regulated only these two situations, and

Page 12927

1 this decree differs from the law on identity cards. But in this case the

2 maximum lex specialis derogat legi generali was applied or the lex

3 specialis dergogat legi inferiori, that one also applied.

4 Q. Professor, in addition to this decree, there were another 15

5 decrees adopted by the president. All of those were decrees in relation

6 to laws at the republic level, right?

7 A. All those decrees were adopted with regard to questions within the

8 remit of the National Assembly, it's a legislative competence.

9 Q. The National Assembly, the People's Assembly of the Republic of

10 Serbia, right?

11 A. Yes, that's right.

12 JUDGE BONOMY: Mr. Zecevic --

13 MR. ZECEVIC: Yes.

14 JUDGE BONOMY: -- I need your help again.

15 MR. ZECEVIC: Yes.

16 JUDGE BONOMY: What we're looking at, tab 28 --

17 MR. ZECEVIC: Yes.

18 JUDGE BONOMY: -- is a 1974 document.

19 MR. ZECEVIC: Yes.

20 JUDGE BONOMY: Now, the changes that the Professor has just

21 mentioned, these can be seen in the previous --

22 MR. ZECEVIC: In the previous tab, yes.

23 JUDGE BONOMY: Okay, thank you.

24 MR. ZECEVIC: That's a decree on the Law of Identity Cards During

25 the State of War.

Page 12928

1 Q. [Interpretation] All these other decrees are in the binders at

2 tabs 29 through 41. Given the fact that they have been admitted already,

3 there is no need to go through each and every one of them right now.

4 In compliance with provisions of Article 43, paragraph 7, it is

5 the president's duty once a state of war is over to submit these decrees

6 to the People's Assembly for ratification, right?

7 A. Yes, that's right.

8 Q. A while ago we saw the decision of the Federal Assembly to declare

9 the state of war over. Could you please go to tab 42, sir, 1D190 --

10 JUDGE BONOMY: Just before you do that --

11 MR. ZECEVIC: Sorry.

12 JUDGE BONOMY: -- on the question of identity cards, do you know,

13 Professor, why the rule on identity cards was changed? What was the

14 purpose and what was to be achieved by this? I'm referring to the

15 reporting of lost identity cards. I think I can easily understand the

16 other one.

17 THE WITNESS: [Interpretation] Under a state of war it is important

18 to know the identity of a given person. Article 1 of the law shows or

19 reads that an ID is a document proving a person's identity. It is

20 precisely for that purpose in order to know who is who, so to speak, that

21 the procedure was expedited for obtaining new IDs once an ID has been

22 lost.

23 Under a state of war - I'm no expert in the matter of course - but

24 it is in the very nature of the situation that it is important to know who

25 is who. Therefore, the expedited procedure for obtaining new ID, as

Page 12929

1 compared to the regular procedure that applies in regular circumstances.

2 If one loses an ID that doesn't mean that this person has lost his or her

3 identity; you simply get a new one.

4 JUDGE BONOMY: And what was the consequence of not getting a new

5 one?

6 THE WITNESS: [Interpretation] One can't really tell based on this

7 law. This probably gives rise to a criminal report. There's probably

8 more about that in the legal provisions governing the issuing of ID. This

9 still applies if you don't have an ID on you and you happen to be ID'd by

10 an official of the law, then a criminal report is filed against you.

11 [Trial Chamber confers]

12 THE WITNESS: [Interpretation] If we look at Article 18, I'm

13 looking at it right now --

14 MR. ZECEVIC: [Interpretation]

15 Q. Just a minute, Professor, I think the Judges are conferring.

16 JUDGE BONOMY: Thank you, Mr. Zecevic.

17 MR. ZECEVIC: Your Honours, Professor wanted to give an additional

18 explanation, and I cut him short because you were discussing something.

19 JUDGE BONOMY: Certainly, Professor, yes.

20 THE WITNESS: [Interpretation] Article 18 provides for this sort of

21 situation. A fine will be imposed, and any person failing to submit a

22 request to have a new ID issued to them by a certain deadline, this

23 includes those who failed to declare the loss of ID by a given deadline

24 and request a new identification document to be issued. Article 12 talks

25 about what happens when people lose their identity papers. Article 18

Page 12930

1 contains incriminations in relation to this issue of IDs.

2 JUDGE BONOMY: Thank you.

3 Mr. Zecevic.

4 MR. ZECEVIC: Thank you very much. Just one transcript

5 correction. The Professor said -- yeah, it's page 78, 15, Professor said

6 a report is filed, but it's the misdemeanour's report. It's not the

7 criminal report. Professor used the word "prekrsaj" which is the

8 misdemeanour not the criminal.

9 JUDGE BONOMY: Thank you.

10 MR. ZECEVIC: [Interpretation]

11 Q. As we said, Article 83, paragraph 7 says that once a state of war

12 has been declared over, the president is duty-bound to submit these

13 regulations for ratification?

14 A. Yes, that's right.

15 Q. Can you please now go to tab 42, 1D190. Tab 42, 42, sir, it's a

16 letter by Mr. Milutinovic to the chairman of the People's Assembly of the

17 Republic of Serbia, Mr. Dragan Topic.

18 A. What he does here is perfectly consistent with the existing

19 constitution, the constitutional norm. Article 83, paragraph 7 we've

20 provided an explanation about that already.

21 Q. And the date on the letter is the 25th of June, whereas we said a

22 while ago - and you can see that at the end of this letter - that on the

23 24th of June the decision to declare the state of war over had been

24 adopted, right?

25 A. Yes, that means that the very next day the president of the

Page 12931

1 republic sent this accompanying letter to the chairman of the People's

2 Assembly.

3 MR. ZECEVIC: I'm sorry, Your Honours, again 80, row 5, on the

4 24th of June the decision to cessation of the state of war has been

5 adopted, not the declaration.

6 Q. [Interpretation] Can we go to tab 43, the next one please, 1D192,

7 is the Law on Confirming the Decrees Adopted by the President During the

8 State of War.

9 A. Yes, here the parliament, the People's Assembly, takes action in

10 compliance with Article 83, paragraph 7. If we look at Article 2, we see

11 that some of these decrees are mentioned, there is a list which decrees

12 exactly, and when they were abolished on which date, when these decrees

13 ceased to have effect on a particular date, for example. Some of the

14 decrees from the list are abolished on the day of adoption of this new

15 law. Three different regimes are envisaged here in relation to the

16 specific dates when the decrees will cease to have effect.

17 Q. Thank you, Professor. Now yet another power - I don't want to

18 repeat myself but I think this is very important for the course of our

19 examination - this is the power under Article 83, paragraph 5 of the

20 constitution. This is another reserve competence. This is clearly within

21 the competence of the federal state. For that reason I would like to ask

22 you to comment on paragraphs 99.9 and 135 of the Constitution of the

23 SFRY -- of the FRY. This is tab 5, 586, and the translation is D139.

24 Article 135 in relation to the president of the Federal Republic of

25 Yugoslavia and Article 99.9 in relation to the federal government.

Page 12932

1 A. Article 135 says that the Republic of Serbia has no armed force at

2 its disposal, no army. The army is at the command of the Federation.

3 This is the meaning of Article 135. Other than that there are three

4 things being envisaged in the article: Who is in command of the army,

5 being the first among these; the composition of these bodies being the

6 next, the Supreme Defence Council; and thirdly, who presides over the work

7 of this body. Article 89, I'm not sure which paragraph you mean --

8 Q. Paragraph 9.

9 A. It says that it is the federal cabinet or the federal government

10 that orders general mobilisation and organises preparations for defence,

11 which means that this is not something that is within the remit of the

12 president of the Republic of Serbia, either at least under Article 83,

13 paragraph 5.

14 Q. Thank you. Professor, we shall now briefly address Article 83,

15 paragraph 1 of the Constitution of Serbia. This is something you've

16 explained already in quite some detail, I think, especially when you

17 talked about the inability of the president to take such decisions

18 independently without consulting the parliament -- parliamentary majority.

19 I would like to ask you to comment on one thing that we came across at one

20 point in time. Theoretically speaking, should the president appoint the

21 president designate to head the cabinet, someone not enjoying the support

22 of the majority, what sort of situation would that constitute in your

23 opinion, the prime minister designate, that is?

24 A. He should know that a designate like that cannot draw the

25 parliamentary majority. So the only possible interpretation would be that

Page 12933

1 he is obstructing the establishment of a cabinet, thereby violating the

2 constitution. Any violation of the constitution is grounds enough to

3 recall a president of the republic or to revoke him. This person does not

4 enjoy the support of the parliamentary majority, and yet the president is

5 opening this avenue to him that he should establish the set-up and the

6 composition of the cabinet, thereby unduly influencing the work of the

7 future cabinet.

8 Q. We had a situation like that in Serbia quite recently. It was

9 something along these lines. Could you please shed some light on that,

10 sir.

11 A. It was similar to the extent that they had a great difficulty

12 putting together a coalition, a political coalition within the Assembly, a

13 majority you might say. As soon as there was a majority to speak of, on

14 the eve of the expiry of the constitutional deadline, he -- the president

15 did eventually appoint prime minister designate, thereby garnering the

16 necessary majority.

17 Q. What I had in mind, sir, was the fact that the president of

18 Serbia, Tadic, who is the president of the democratic party, despite the

19 fact that the democratic party had nominated Mr. Djeric, failed to offer

20 the position to the candidate from the ranks of his own party. But rather

21 he offered it to a candidate who enjoyed the support of the majority, the

22 parliamentary majority, just to illustrate the situation, that's my

23 intention?

24 A. Yes, that's precisely the position. It was not offered to a

25 candidate from his own party but rather from a different one because that

Page 12934

1 candidate had been successful in garnering the support of the majority in

2 parliament. As we said, he is bound by the result of the parliamentary

3 elections, and certainly he's bound by the parliamentary coalition and the

4 parties constituting that coalition. He's bound by their positions and

5 opinions. He's not at liberty to appoint or nominate candidates to the

6 cabinet as he sees fit.

7 Q. Thank you. Thank you very much, Professor.

8 Just to avoid repetition, similar things apply to Article 83,

9 paragraph 2, when it comes to appointing candidates to become judges of

10 the Constitutional Court, right?

11 A. Yes, and I've just provided an example for you.

12 Q. That's all right. Professor, I think there is one thing that we

13 need to explain to the Chamber, and it's about the powers of the president

14 under Article 83, paragraph 3, where he propagates laws by decree. The

15 reason being in our own legal practice we have the distinction between

16 "ukaz" and "uredba," ordinance and decree. In English the legal nature

17 of these two is quite different.

18 What we see here is that CLSS have decided to translate both by

19 using the same word "decree," but could you please try to explain the

20 difference between ukaz, u-k-a-z on the one hand as a legal enactment and

21 uredba, u-r-e-d-b-a, on the other, as another type of legal enactment,

22 u-r-e-d-b-a. It is for this purpose that we had prepared our next

23 PowerPoint presentation.

24 MR. ZECEVIC: The PowerPoint presentation number 2, and if we can

25 have the IC number, please.

Page 12935

1 THE REGISTRAR: That will be IC132, Your Honours.

2 MR. ZECEVIC: I think usher can take away the previous

3 presentation away, thank you very much, from the ELMO. And we don't need

4 the -- thank you very much. Could we have the page 1.

5 Q. [Interpretation] Professor, you see the presentation on your

6 screen, don't you, your left screen?

7 A. Fine.

8 MR. ZECEVIC: Can we have page 2, please, slide 2 --

9 JUDGE CHOWHAN: I beg your pardon, I apologise interrupting. I

10 have certain confusions, and I thought Professor will very kindly help me

11 out with that.

12 MR. ZECEVIC: By all means, Your Honour.

13 JUDGE CHOWHAN: Now, I have seen Article 83.5 of the Serbian

14 constitution, and I've also seen 99 of the Federal Republic of Yugoslavia,

15 the constitution. And according to the interpretation which has been

16 given by the learned Professor and also the report -- in the report he has

17 mentioned that the powers given under 83.5 of the Constitution of Serbia,

18 the powers of the president of the Republic of Serbia is superseded

19 because of Article 99 of FRY. Now, where does he get this from because as

20 we -- as we compare constitutions, we find that usually there are lists of

21 powers. There is the enafridgration [phoen], the federal unit has a list,

22 the Federation has a list, and then there is also the concurrent list.

23 Now, what I -- what I was understanding of 83.5 and 99 was as if

24 these were concurrent jurisdictions. I shall feel very grateful if the

25 Professor would kindly dilate on this. How does he say that 99 supersedes

Page 12936

1 83.5 of the Serbian constitution. And then I have an ancillary question

2 later to ask. I'm very grateful for this.

3 THE WITNESS: [Interpretation] May I? Thank you.

4 As far as defence powers go, in Article 77 of the constitution of

5 the Federal Republic of Yugoslavia lists the powers of the federal state,

6 the Federation. And in paragraph 7 it says defence and security of the

7 Federal Republic of Yugoslavia. So the subject matter of defence falls

8 within the competence of the federal state, not the republic. As for

9 control of the armed forces in peace and war, that's according to Article

10 135 of the constitution of the FRY, paragraph 1. It says that the Supreme

11 Defence Council or the president of the republic has this power. But as

12 for ordering a general or partial mobilisation according to Article 99,

13 paragraph 9, this is within the competence of the federal government. Why

14 are these provisions of the federal constitution valid here rather than

15 the constitutions of the, or rather, the Constitution of the Republic of

16 Serbia?

17 Well, because of Article 115 of the Constitution of the Federal

18 Republic of Yugoslavia, which says that the constitutions of the member

19 republics have to be in harmony with or in conformity with the

20 Constitution of the Federal Republic of Yugoslavia. So lex superior

21 derogat inferoiori the federal constitution supersedes the constitution of

22 Serbia as a federal unit of the Yugoslav federation.

23 JUDGE CHOWHAN: My second question would be -- of course these are

24 two constitutions, one is of the federal unit, the other is of the

25 Federation. Now, was this constitution of FRY adopted by Serbia or

Page 12937

1 accepted in some terms and what were those terms? Did those terms spell

2 out this sort of a relationship where concurrent powers are given? Thank

3 you.

4 THE WITNESS: [Interpretation] Both of the Republic of Serbia and

5 the Republic of Montenegro decided to associate themselves into the

6 Federal Republic of Yugoslavia by this constitution of 1982 -- 1992, and

7 it says that it is the Republic of Serbia and the Republic of Montenegro,

8 and that's in Article 2, which are the member republics. By associating

9 into the Federal Republic of Yugoslavia, both Serbia and Montenegro

10 recognised the priority of federal law, that is, the federal constitution,

11 federal law, and other federal legislation in relation to the law of each

12 republic.

13 Every federation in the world rests on such a law, the law of the

14 priority of federal law over the law of the federal unit. That is the law

15 of supremacy of the federal legal order in relation to federal units.

16 This same rule applied to the Yugoslav Federation which existed until the

17 year 2003, when it was transformed into a union and as of 2006, the 21st

18 of May, 2006, the real union also ceased to exist, and in its place we now

19 have two independent states: Serbia and Montenegro, both of which are

20 independent and sovereign as of the 21st of May, 2006.

21 JUDGE CHOWHAN: Now professor, thank you very much. Now, one

22 little more clarification coming from your learned self. Now, 99 of the

23 FRY and 83.5, do you think there's a clash? Because both seem to be

24 concurrent jurisdiction. There's no clash, it appears. How would you

25 kindly help me get out of this?

Page 12938

1 THE WITNESS: [Interpretation] Both powers are identical when it

2 comes to partial or total mobilisation, but Article 99 takes precedence

3 over Article 83 because it is contained in the federal constitution. And

4 the federal constitution takes supremacy over the constitutions of the

5 republic members -- member republics, so that the -- the legislation which

6 has a greater legal force invalidates the legislation which has a lower

7 legal force. The Constitution of the Republic of Serbia says that it is

8 the president of the republic who decides on mobilisation, whereas the

9 federal constitution says that it is the federal government that makes

10 this decision. As the rule is that the federal constitution takes

11 precedence over the republican constitution, it follows that it is the

12 government of the Federation which decides on the call for a general

13 mobilisation.

14 JUDGE CHOWHAN: Professor, do you have any constitutional case on

15 this point or is it your own interpretation, please? Any decision by the

16 Constitutional Court on what you have said.

17 THE WITNESS: [Interpretation] Well, for example, when the state of

18 war was declared, we saw it was done by the federal government and not by

19 the president of the republic. The same applies for mobilisation, both

20 general and partial. So this is not my own personal interpretation, it is

21 a federal rule. The federal constitution states that it supersedes the

22 constitutions of the member republics, and when a situation arose where

23 this had to be tested, it was the federal government which acted according

24 to the federal constitution rather than the president of the republic. It

25 was not the president of the republic who declared a state of imminent

Page 12939

1 threat of war or a state of war, nor did he order general or partial

2 mobilisation. All this was done by the federal government. So this is

3 not my own personal interpretation; it is simply a matter of the mutual

4 relationship of two pieces of legislation which are not equal in terms of

5 legal strength, power. But we have not had any such cases before the

6 Constitutional Court to date to the best of my knowledge.

7 JUDGE CHOWHAN: Thank you.

8 JUDGE BONOMY: Mr. Zecevic.

9 MR. ZECEVIC: Thank you, Your Honours.

10 Q. [Interpretation] Just to clarify a point, Professor. To be quite

11 clear, when in your previous response you said the president of the

12 republic, you are referring to the president of the Republic of Serbia?

13 A. Yes.

14 Q. Because there is also a federal president, so please pay attention

15 to that when speaking. We have --

16 MR. ZECEVIC: Your Honour, do you wish me to pursue this issue

17 anymore or you're satisfied with the answers?

18 JUDGE CHOWHAN: I'm most grateful. I just wanted to clarify some

19 cobwebs to be removed. But as we go ahead, there may be more questions as

20 we go through the text, but I'm grateful for the patience.

21 MR. ZECEVIC: Thank you very much, thank you very much. At any

22 time, of course.

23 Q. [Interpretation] Professor, please look at the monitor before you.

24 We started --

25 MR. ZECEVIC: Oh, I'm sorry, we need the PowerPoint again, the

Page 12940

1 PowerPoint number 2, IC132, on the screen, slide number 2.

2 Q. [Interpretation] Professor, can you comment briefly on this slide.

3 What does it represent?

4 A. Well, I remember your question. You asked me what the legal

5 difference was between these two words "ukaz" and "uredba," and the

6 difference is many-fold. First of all, who issues the document, and

7 "ukaz" can be issued exclusively by the president of the Republic of

8 Serbia; and "uredba" is an enactment issued by the government. That's one

9 basis to differentiate. The second basis is the content. Ukaz is a

10 proclamation, it confirms a law and if so provided by the constitution it

11 confirms that certain facts have arisen which have certain legal

12 consequences. For example, the termination of the mandate of the Assembly

13 by force of law or, for example, the president might issue an "ukaz"

14 stating that the federal government has dissolved the Federal Assembly.

15 That's in the constitution of 1992. Unlike "uredba," which is general

16 enactment issued by the government and which execute legislation, they are

17 connected to the government.

18 Q. Thank you. Professor, you said that an "ukaz" is exclusively

19 issued by a president, the president?

20 A. Yes. In our legal system there is no possibility of any other

21 state organ issuing an "ukaz."

22 Q. As we see in slide number 2, there are two kinds of "ukaz,"

23 declarative enactments and constitutive act. Can you just explain briefly

24 what the difference is between a declarative and a constitutive.

25 A. The difference is as follows. If an "ukaz" is a declarative act

Page 12941

1 it simply states certain facts which have arisen, for example promulgating

2 a law. It is simply established that the National Assembly in the

3 legislative procedure adopted a law with the required majority. So the

4 president of the republic issues an "ukaz" promulgating the law, the law

5 when it is published or promulgated enters into force. That's an example

6 of an "ukaz" as a declarative act. As a constitutive act, it's an

7 individual act, something is being created by it.

8 Q. Just slow down, Professor, please.

9 A. For example, at the federal level there was an ukaz on appointing

10 an ambassador. Ambassadors and other diplomatic representatives are

11 appointed by an "ukaz" or promoting someone to the rank of general, for

12 example, or -- well, these are examples of the "ukaz" as constitutive acts

13 which as a rule are individual acts. These are the two main types of

14 "ukaz" existing in the legal system of our country.

15 Q. Thank you.

16 MR. ZECEVIC: Could we have slide number 3.

17 Q. [Interpretation] Slide number 3. There are three colours. Red

18 designates the president of FRY, green the president of Serbia, and yellow

19 the government or cabinet. Is that correct, Professor?

20 A. Yes.

21 MR. ZECEVIC: Could we have slide number 4.

22 Q. [Interpretation] Professor, this slide refers to the types of

23 "ukaz" issued by the president of the Republic of Serbia, which is why

24 they are green?

25 A. Yes. "Ukaz" or ordinance promulgating a law or ordinance on

Page 12942

1 pardon and ordinance on promotion. In addition to this -- well, yes.

2 You've put it here: Ukaz proclamation or ordinance. That's the

3 explanation, the linguistic explanation.

4 Q. I said just some --

5 JUDGE BONOMY: What is meant by ordinance on promotion?

6 MR. ZECEVIC: I'm sorry, Your Honour.

7 THE WITNESS: [Interpretation] An ordinance on promotion was based

8 on the law on ranks of members of Ministry of the Interior when the

9 president of the republic, pursuant to this law and under the conditions

10 provided for in the law, was able to promote someone to the rank of a

11 general of the police, of the police force.

12 JUDGE BONOMY: Where would the -- where would that power be set

13 out in the first place?

14 THE WITNESS: [Interpretation] These powers are in the law on the

15 ranks of the members of the Ministry of the Interior and as this law

16 established a power not established by the Constitution of the Republic of

17 Serbia in Article 83, that's precisely the situation I mentioned

18 previously. The law extended the powers of the president that he has

19 under the constitution, and for this reason the Constitutional Court

20 declared this provision of the law unconstitutional and it was rendered

21 null and void. Of course this was the Constitutional Court of Serbia.

22 JUDGE BONOMY: So although this power was exercised at some stage,

23 it was unconstitutional and we could strike it off the bottom of this

24 list, could we?

25 MR. ZECEVIC: Yes, it was declared unconstitutional, Your Honour,

Page 12943

1 by the Constitutional Court.

2 [Trial Chamber confers]

3 MR. ZECEVIC: [Interpretation]

4 Q. Professor, this is slide 5. These are the types of "ukaz" adopted

5 by the president of the Federal Republic of Yugoslavia, this is why they

6 are marked in red.

7 A. The president of the Federal Republic of Yugoslavia has many more

8 different types of "ukaz," given the competencies of the Federation.

9 Since the Federation is a subject of international law and the Republic of

10 Serbia is not, then the president of the federal state can issue "ukaz" to

11 appoint ambassadors and diplomatic representatives.

12 Q. They are appointed to various posts?

13 A. Correct, they are appointed to various posts, positions, pursuant

14 to Article 135, for example, that of the Federal Republic of Yugoslavia,

15 or rather, I apologise, Article 136 of that constitution. According to it

16 president -- federal president can appoint and dismiss officers of the

17 federal army, president, judges of military courts, military prosecutors,

18 all of this is done via "ukaz."

19 Q. Professor, let us just explain another matter. The key difference

20 between the powers of the president of FRY and those of the president of

21 Serbia when it comes to "ukaz" is that the president of FRY on the basis

22 of the quoted article, Article 136 of the Constitution of FRY, can appoint

23 and remove from office various individuals. No such -- the president of

24 Serbia has no such powers, correct?

25 A. The president of Serbia has only the power that I mentioned.

Page 12944

1 Q. You meant the power to promote?

2 A. Yes, the power to promote. He has no power to appoint or remove

3 from office. He can also issue an "ukaz" on awarding or decorating

4 someone, given that at the level of the Federation there is a federal law

5 on awards and decorations.

6 Q. Professor, this could perhaps be an opportune moment to give some

7 comments on what a promotion means in your view. What does an act on

8 promotion mean, Professor?

9 A. An act on promotion is an individual constitutive act when it

10 comes to its nature. As to its content, its substance, it is synonymous

11 with the word "promotion," it promotes someone.

12 Q. Can a certain individual to whom that enactment pertains be

13 appointed to a certain position or can that person be given some powers

14 via this enactment?

15 A. No. The president of the Republic of Serbia did not have such

16 power, either on the basis of the constitution or on the law on the ranks

17 of the members of the Ministry of the Interior. The Constitutional Court

18 proclaimed the provisions that we mentioned unconstitutional; that is to

19 say that the president could only promote somebody to a rank, but could

20 not appoint or remove someone from office. Pursuant to the Constitution

21 of Serbia, and I think that's in Article 90, it is only the Serbian

22 cabinet or the Serbian government that can do that, that can appoint or

23 remove someone from office, meaning the officials in the organs of the

24 state administration. The president has no such powers.

25 It is in Article 90, paragraph 5, where it says that it is the

Page 12945

1 cabinet that appoints and removes from office officials in the ministries.

2 Based on the Law on Ranks, the president could only promote somebody to a

3 certain rank, but he could not appoint somebody to a ministry. No, that

4 was something that only the Government of Serbia was entitled to do.


6 JUDGE BONOMY: I'm rather confused by this now, Mr. Zecevic. Is

7 the point now being made that, in fact, a rank could be awarded by the

8 president but not a position?

9 MR. ZECEVIC: That's right, Your Honour --

10 JUDGE BONOMY: So where -- well, let me go back to Professor.

11 Where is the power then to award a rank?

12 THE WITNESS: [Interpretation] This power stems from the Law on

13 Ranks of the members of the Ministry of the Interior, I think it's in

14 Article 6 and 10 of that law. However, the Constitutional Court --

15 JUDGE BONOMY: Yes -- I'm sorry, on you go --

16 THE WITNESS: [Interpretation] The Constitutional Court declared

17 those articles to be unconstitutional, and thus they became invalid. That

18 is to say that the Assembly adopted a law that had some unconstitutional

19 provisions; it is something that happens in all countries, including the

20 Republic of Serbia.

21 JUDGE BONOMY: So in the end of the day are you saying that the

22 president of Serbia had no power either to appoint or dismiss someone from

23 a ministry or to give them a rank or appoint them to a position?

24 MR. ZECEVIC: Your Honour, may I?


Page 12946

1 MR. ZECEVIC: Your Honours, president of Serbia was never even

2 with that law on the ranks, was never given a power to appoint or dismiss,

3 so that is completely out, and has never been one of his even

4 unconstitutional competencies.

5 Now, according to the Law on Ranks, he had the competence to

6 promote, according to the law, which we will see later on, but that law

7 was declared unconstitutional in these parts because, as Professor said at

8 the very beginning, the rights, the competencies, and the powers of the

9 president of Serbia derive -- derive only from the constitution. And it

10 cannot be -- he cannot be awarded the competencies and the powers by law,

11 and that was the reason why later this -- this law was declared --

12 declared unconstitutional by the Constitutional Court of Serbia. But at

13 the time relevant to the indictment, this law was still in the full force,

14 and that is why we have been -- it was declared unconstitutional only

15 later --

16 JUDGE BONOMY: If you go back to page 92, of line -- 92, line 23

17 of the transcript --

18 MR. ZECEVIC: Yes.

19 JUDGE BONOMY: And line 24, in fact, the answer was: "The

20 president of Serbia has only the power that I mentioned." And you then

21 say: "You mean the power to promote?" And the answer was: "Yes."

22 Now, what I'm understanding by all of this is that he didn't have

23 the power to promote because the law that gave him that power was

24 unconstitutional.

25 MR. ZECEVIC: Well, he had it during the time relevant to this

Page 12947

1 indictment. He had it. It was declared unconstitutional only later.


3 MR. ZECEVIC: That is the point of the --

4 JUDGE BONOMY: So he thought he had the power?

5 MR. ZECEVIC: Yes, he thought he had the power at that time.

6 JUDGE BONOMY: So is General Lukic a general or not?

7 MR. ZECEVIC: Yes, he is a general.

8 JUDGE BONOMY: He is. And was he created a general in this

9 period?

10 MR. ZECEVIC: He was promoted to a higher general post, yes.

11 JUDGE BONOMY: And was that act unconstitutional eventually or

12 constitutional?

13 MR. ZECEVIC: No, the powers of the president to do that has been

14 declared unconstitutional, not the fact -- not the promotion itself.

15 JUDGE BONOMY: So if he got it in in the time that the president

16 misunderstood his powers, it's okay? Perhaps I understand that, now

17 let's move on then.

18 MR. ZECEVIC: If Your Honour want me, I can consult the Professor

19 on the issue and have the expert opinion on that.


21 MR. ZECEVIC: After all, I'm just a lawyer and lay person in this

22 respect.

23 JUDGE BONOMY: No it's consistent with the evidence now, but I was

24 finding it confusing to think that if you have never had the power

25 constitutionally, that anything you did could possibly be valid. I assume

Page 12948

1 that normally when things are declared unconstitutional or enactments

2 are -- everything that's happened under them is null and void, but you're

3 saying that in Serbia a different practice was followed.

4 MR. ZECEVIC: [Interpretation]

5 Q. Professor, can you comment on this --

6 JUDGE CHOWHAN: A question would arise -- sorry, I apologise.

7 THE WITNESS: [Interpretation] If I may explain.

8 MR. ZECEVIC: [Interpretation]

9 Q. Yes, please proceed.

10 A. The decision of the Constitutional Court declaring the entire law

11 or some of its provisions unconstitutional does not have retractive

12 effect, does not have ex tunc effect, it has ex nunc effect. So the legal

13 effects produced by an unconstitutional law or one of its provisions

14 remain in force, they remain valid. It's just that in the future that law

15 cannot be applied. This is the legal regime produced by a decision of a

16 constitutional court, both at the level of the Federation while we still

17 were a Federation, as well as at the level of the Republic of Serbia.

18 In this new Constitution of Serbia from 2006, the same legal

19 regime is applied, that is to say that the decision of the Constitutional

20 Court did not have retractive effect that do not void the legal

21 consequences produced by some unconstitutional provisions. It is just

22 that their further application is made impossible.

23 Thus, all the promotions which came about on the basis of that law

24 by the president of the republic remain valid, even though later on the

25 Constitutional Court declared those provisions to be unconstitutional.

Page 12949

1 JUDGE CHOWHAN: We are used to such declarations by the court. If

2 something is ab initio void, then it is void. But then there are

3 provisions which are remedial which means that the court protects those

4 actions notwithstanding the fact that those provisions were void

5 ab initio.

6 Now, please be specific in helping us know whether the

7 Constitutional Court protected those actions and notwithstanding the fact

8 that they declared the law to be void or there was no protection. And if

9 there was no protection how can they be valid? Was there a protection

10 given in the judgement itself, sir? Thank you.

11 THE WITNESS: [Interpretation] The Constitutional Court adopts

12 decisions, not judgements. They adopt decisions, and the decisions of the

13 Constitutional Court are of general effect, they are final, they are not

14 appealable, and they are enforceable. So regardless of how it may seem

15 from some other point of view, how illogical it may seem, this is how it

16 was regulated in our legal system for as long as we have had a

17 Constitutional Court. And we have had a Constitutional Court since 1963

18 in our country back in the times when we were a socialist country. And we

19 were the only socialist country in the world who had a Constitutional

20 Court.

21 JUDGE CHOWHAN: But who brought about the curing? I mean if the

22 courts adjudicate, okay, or declare something that the powers were never

23 there, then how did these acts that were so performed protected? There

24 has to be either a court's order or a constitutional protection through a

25 curative law or remedial law as we understand in the constitutional

Page 12950

1 framework of laws?

2 THE WITNESS: [Interpretation] It doesn't exist because the

3 decisions of the Constitutional Court are final and are applied from that

4 point on. They simply derogate an unconstitutional provision, they do not

5 void it. This is our legal system. Our Constitutional Court, the

6 Constitutional Court in the Republic of Serbia and earlier the one in

7 Yugoslavia, was modelled after the German Constitutional Court and that in

8 Austria and Italy. Those are three types of Constitutional Courts

9 existing in Europe, and our Constitutional Court was modelled after them.

10 Perhaps it's a bit difficult for someone coming from a different legal

11 system to understand that, but this is how it is regulated in the European

12 system of Constitutional Courts.

13 JUDGE BONOMY: Mr. Zecevic.

14 MR. ZECEVIC: Thank you, Your Honour.

15 Q. [Interpretation] If I understood you well, Professor, our concept

16 of Constitutional Courts is not something that is unique to Serbia only

17 how -- on the contrary, it is modelled after the tradition of European

18 Constitutional Courts?

19 A. Yes, that's correct. We have adopted many solutions from these

20 countries, even in our latest constitution, the one from 2006, we have

21 used a lot of examples from the Constitutional Court of Italy. We

22 modelled our current court after that one in Italy which had 15 members

23 and the one now has nine. The authors of the constitution did not invent

24 anything, no; they simply applied the practice existing in the continental

25 law European countries with Constitutional Court.

Page 12951

1 Q. Professor, now that we have touched upon this topic, in order to

2 be of assistance to Their Honours in case they have some other questions

3 about this decision of the Constitutional Court, I would like to ask you

4 to look at tab 26 which is 1D639 [In English] 1D639.

5 [Interpretation] This is precisely this decision of the

6 Constitutional Court of Serbia, 26, tab 26. This is the decision of the

7 Constitutional Court of Serbia that you referred to just a minute ago, if

8 I'm not mistaken. Tab 26, 1D639.

9 A. Yes, that's precisely that decision.

10 Q. We have a complete translation. Perhaps you can comment on

11 various parts of the decision. [In English] Appreciate that.

12 [Interpretation] As I say --

13 JUDGE BONOMY: The language appears clear that the challenge

14 provisions shall cease to be valid, and that would presuppose that they

15 had been valid. I think what Judge Chowhan was seeking was the basis for

16 that sort of determination when it's something as fundamental as a breach

17 of the constitution. And it may be that that's something you can think

18 about and deal with tomorrow and we can proceed perhaps with something

19 else.

20 MR. ZECEVIC: Thank you. Thank you, Your Honour. Okay.

21 Q. [Interpretation] Professor, let's go back to our PowerPoint

22 presentation, IC132, slide number 6, please. All right. Now we come to

23 "uredba." "Uredba," or decree, as you have suggested, is an act within

24 the sole competence of the cabinet; is that right?

25 A. Yes. "Uredba," decree, is an enactment related to the enactment.

Page 12952

1 A law has to do with the people's assembly, with the parliament, decree

2 has to do with the government or the cabinet; and "ukaz," an ordinance or

3 a proclamation is something that is related to the president of the

4 republic.

5 Q. Thank you. If we look at this slide we see that a decree is a

6 constitutive act, right?

7 A. Yes, in the legal system of the Republic of Serbia and the

8 substance remains the same within the legal system of the Federation

9 total, a decree is purely executive. You cannot use a decree without

10 previously regulating a matter by law, change any -- or enforce any

11 changes to the social relations. A decree must invoke a certain law or

12 the provisions of a certain law for the implementation of which it is

13 adopted.

14 Q. With the -- with one single exception, right?

15 A. Yes, there is one exception, the imminent threat of war.

16 Q. Slow down, Professor, please, be so kind. Continue, please. I'm

17 sorry for interrupting.

18 A. The exception is an imminent threat of war or a state of war. We

19 looked at those provisional decrees that only apply for as long as there

20 is a state of war, and this is then adopted by the president of the

21 republic for the duration. Under Article 90 paragraph 1 a decree is an

22 act of the cabinet used to implement laws, other regulations and acts

23 adopted by the People's Assembly in accordance with the constitution.

24 Other articles discuss the manners in which this is done and how

25 decrees and other acts are adopted in order to have laws implemented. Not

Page 12953

1 in order to regulate any social relations such as a legislator would do by

2 passing laws. There is a single case of what we call an autonomous

3 decree. This is a decree adopted in order to autonomously regulate social

4 relations. This is from Article 90, paragraph 5, establishing principles

5 for the internal organisation of ministries and other bodies of state the

6 administration. If you look at that particular decree in Serbia's

7 Official Gazette and all the regulations are published there, you can see

8 that it invokes the constitution Article 90, paragraph 5 or the

9 implementation of which it was to be adopted to begin with. There are

10 thousands of other decrees that were adopted, and all of them invoke the

11 specific law for the implementation of which we were adopted to begin

12 with.

13 Q. Thank you.

14 It is precisely what the Professor has been addressing now that we

15 find in slides 7 and 8. And in order to avoid repetition let us move on

16 to a different subject matter altogether.

17 Professor, I believe we have now sufficiently analysed Article 83

18 of the Constitution of Serbia. This is tab 5, P0855. Nevertheless, this

19 entire chapter of the constitution entitled "President of the Republic,"

20 which includes Articles 83 through 89, all this is in relation to the

21 president, right? Can we, please, briefly comment on Article 84 as the

22 right of the president to impose suspensive veto. Let us clarify one

23 thing first. This right is in relation to the power under Article 83,

24 paragraph 3, where the president proclaims decree laws, whereas now here

25 he has the right to impose suspensive veto. Can you explain that, please.

Page 12954

1 ?

2 A. The right to suspensive veto is the right or the power of a

3 president to send a certain law back to the People's Assembly for another

4 vote. He can do this for two different reasons. Perhaps he considers the

5 law to be incomplete, which is in the very nature of the institute of

6 suspensive veto, or he can do this because he considers the law to be

7 unconstitutional; although, this is not the meaning of the suspensive

8 veto. It is not down to the president of the republic to judge the

9 constitutionality of a certain law; this is something that the

10 Constitutional Court should be in charge of.

11 However, if you look at the provisions of Article 84, suspensive

12 veto is not exactly a very strong or not exactly a primary power for the

13 president of republic. The deadline is short as this creates a

14 difficulty. The deadline is seven days -- as short as seven days from the

15 time the Assembly adopts a certain law. This is all the time that a

16 president has to study the laws and re-assure himself of the reasons that

17 it is, indeed, necessary to send this back to the Assembly for another

18 vote.

19 The other reason is that this is no major lever in the hands of

20 the president of the republic. If you have a vetoed law, the Assembly can

21 simply pass the law again by voting by the same majority as previously,

22 and then the president is duty-bound to promulgate this law. If a law is

23 vetoed, it's not really discussed again. So this institute was not really

24 a powerful tool in the hands of the president of the republic, except in

25 such cases where in order to have a law that was originally vetoed passed,

Page 12955

1 the majority that was required was the majority that was above the

2 parliamentary majority such as that enjoyed by the cabinet.

3 We see an example of this in the United States where what is

4 required is a two-thirds majority in order to have a law that is vetoed

5 passed again. In this case you need a same sort of majority as the first

6 time around when the law was passed. This is no major power for the

7 president you might say. I've been dealing with constitutional law for a

8 long time, and I've never seen a country with a deadline this short for

9 cases such as these, all of seven days to have a law sent back to the

10 Assembly by the president for another round of voting. This is an

11 exceptionally short deadline. If you look at this condition and you see

12 that the deadline was then extended from seven days to a total of 15 days.

13 Q. You spoke about this in 2.22 and 3.10 of your expert report.

14 MR. ZECEVIC: Please bear with me, Your Honour.

15 [Defence counsel confer]

16 MR. ZECEVIC: [Interpretation] I've just been warned by my

17 colleague that Article 84 -- the translation of Article 84, the very first

18 sentence, it's a poor copy, and you can't really see the deadline by which

19 the president -- the deadline for the president to send back a law to the

20 Assembly for another round of voting, so that's seven days, right?

21 A. Seven days.

22 Q. Seven days for the president to send it back to the Assembly and

23 this is the same deadline for the president to promulgate a law, right?

24 A. Yes, promulgate or send it back to the Assembly for another round

25 of voting.

Page 12956

1 Q. Professor, can we please comment on Article 85. You addressed

2 this in 3.18 and 3.20. Could you please comment briefly on Article 85 of

3 the law which concerns the power of the president to request the

4 government to state its positions concerning certain issues falling within

5 its jurisdiction, a brief comment, Professor, please, since we'll then be

6 moving on to the relations between the president and other state bodies.

7 You needn't look at your watch. I can assure you that this will not

8 happen before tomorrow. Just a brief comment, please.

9 A. Under this article the president of the republic can request the

10 government to state its positions regarding certain issues from its own

11 jurisdiction. He cannot request for reports to be submitted to him by the

12 government concerning the work of the government or the cabinet. The

13 cabinet is not answerable to the president of the republic, but rather to

14 the parliamentary majority, that's who they answer to. The president of

15 the republic does not preside over meetings of the cabinet, this is done

16 by the prime minister.

17 The president of the republic is not the person who signs any

18 enactments made by the cabinet; he cannot establish or abolish any of the

19 ministries. He has no power to appoint the prime minister or any of the

20 cabinets' ministers or to revoke them. This is all for the parliament and

21 the relationship between the cabinet and the parliament is based on the

22 principle of parliamentaryism; they answer to the majority for their work.

23 However, the president of the republic can order to do what is his job.

24 He can ask the cabinet to report back to him on issues from the cabinet's

25 remit or jurisdiction. But nothing happens no matter what the cabinet

Page 12957

1 says.

2 The cabinet enjoys full freedom to state their positions in a

3 forthright way. This is some sort of a report whereby the cabinet informs

4 the president of the republic. This is something that is quite important

5 in the president's work. This is not a vertical relationship between the

6 president of the republic and the cabinet. This is coordination by state

7 organs going about their state business.

8 Q. Thank you very much. We will be discussing this tomorrow as well,

9 so I'm not pressing the matter any further now. Can we please shed some

10 light on Article 86 now, paragraph 5 specifically. This is the wording of

11 the oath. What is the legal nature of the oath, Professor?

12 A. If you look at Article 86, the oath is not a constitutional norm.

13 The wording itself is not a norm. The wording is not included in the

14 constitution since this is under quotation marks, and the same thing

15 applies to all language in the world I think. Quotation marks mean what

16 somebody else is saying.

17 So these are the words spoken by the newly elected president of

18 the republic whereupon he assumes his office as the president of the

19 republic. The oath itself is not a legal norm, and it incurs no

20 penalties. This is an act that draws certain legal consequences, and the

21 same thing applies to constitutional law and --

22 Q. Just a minute, please. I think we'll need to call this document

23 up in e-court.

24 MR. ZECEVIC: Can we have [Realtime transcript read in error

25 "1D712"] 1D752, the German Basic Law Article 56, the oath of the German

Page 12958

1 president. The law is from 1949 and it's been amended in 1990.

2 JUDGE BONOMY: The tab number?

3 MR. ZECEVIC: I don't have -- 44, I'm sorry, Your Honours. Tab

4 44.

5 JUDGE BONOMY: We can all read that quickly.

6 Professor, what would happen if the president did not take the

7 oath or refused to take the oath?

8 THE WITNESS: [Interpretation] He must take the oath.

9 JUDGE BONOMY: Yeah, but you say --

10 THE WITNESS: [Interpretation] -- It's a prerequisite.

11 JUDGE BONOMY: You say it's not a constitutional norm, but what

12 would happen if he didn't take the oath, he couldn't become the president?

13 THE WITNESS: [Interpretation] This is a hypothetical situation.

14 You could ask the same question the other way around. It is the

15 constitution that forces him to take the oath. I don't think a person

16 could become the president without previously taking the oath, but that

17 itself does not lend any legal force to the oath itself. In other words,

18 there is no rule of conduct prescribed by the oath, no norms are

19 prescribed. He takes an oath concerning certain values which are

20 sometimes purely moral values, sometimes purely legal values, that he will

21 comply with the constitution and the law.

22 If you look at the German constitutional law, the president, while

23 taking the oath, invokes God to help him work for the benefit of the

24 German people, for the well-being of the German people that he will uphold

25 and protect the constitution, and then he ends in saying: "So help me

Page 12959

1 God." What if in his work he should not abide by these principles? What

2 could that possibly mean? Will God punish him? Will he perhaps torture

3 him in hell once he crosses over into the great beyond? So this shows

4 what the moral value inherent in the oath itself really means.

5 If we translate this into legal language, you can't base anyone's

6 responsibility solely on the wording of an oath. A judge takes an oath,

7 too. I was myself a judge of the Constitutional Court before I took up

8 office with the Constitutional Court, I took an oath invoking similar

9 values such as the oath we have before us right now.

10 JUDGE CHOWHAN: I have heard of your learned discourse, but I am

11 quite intrigued by what you have said. Now, Judges have a code of

12 conduct, and if they betray the oath they are subjected to penalty under

13 the code of conduct because that's against the oath. The president also

14 as a code of conduct, and he can be impeached if he betrays the oath. The

15 question could be, as you said, that this oath has no legal value. Now,

16 please kindly help me in understanding, can the president choose his own

17 words for the oath? Can he fabricate his own words to the oath?

18 It is correct that he may not be sincere to the oath, that's

19 different, but then there are consequences for that and there are remedies

20 for that, but can he choose other words? No, because the constitution has

21 given certain words for the oath, and they are as good as the

22 constitutional words. What I understand by your learned discourse is as

23 if these words are redundant. Can legislature give redundant, useless,

24 superfluous, meaningless words for an office as high as the president? I

25 should feel grateful, sir, if you kindly would give us your own thoughts

Page 12960

1 about so we better understand what is the meaning of the oath.

2 THE WITNESS: [Interpretation] In my view, the president has to

3 utter the text of the oath. He refers to some values that represent the

4 spirit of the constitution, but not just the constitution, also the

5 democratic order of a society. If the president is not guided by a

6 loyalty to these values in his work, then he will lose both personal and

7 political credibility. He will not be able to be sure that he would be

8 elected again, because the people would see that he was not loyal to his

9 oath, he did not abide by his oath. So this is more of a moral and

10 political penalty rather than a legal one. But far be it from me to

11 believe that an oath is a pointless matter. No. I believe it to be a

12 very important dignified act. However, it is very difficult to base the

13 responsibility of the president of the republic on the text of an oath.

14 I apologise, I get carried away and then I speak fast. The text

15 of an oath is not that of a legal norm. In an oath there is a lot of

16 emotional and a lot of pathetic which cannot be found in a legal norm,

17 legal norms are non-personal; whereas, the text of an oath usually has a

18 lot of text that can be considered pathetic, that can be considered

19 over-emotional. And we can see an example of that in Article 56 of the

20 basic law of Germany which is a kind constitution of Germany and which was

21 amended after Germany was united.

22 JUDGE BONOMY: Professor, when I was a much younger lawyer than I

23 am now, the oath in a criminal court in Scotland ran in these words: "I

24 swear by almighty God and as I shall answer to God at the great day of

25 judgement that I will tell the truth, the whole truth, and nothing but the

Page 12961

1 truth."

2 It's loaded with emotive, religious, and some would say irrational

3 content. But at the end of the day if I did not or the witness did not

4 comply with it, he would be prosecuted and convicted of perjury, one of

5 the most serious crimes we have. Now, are you saying that the oath of a

6 president taking office doesn't bear that sort of definitive effect, it

7 has no legal normative effect, is that what you're saying? So it must be

8 different in some way from an oath that a witness takes in court?

9 THE WITNESS: [Interpretation] The president of the republic can be

10 held responsible for violating the constitution pursuant to Article 88.

11 Violation of the constitution can only be seen as a violation of a legal

12 norm in the constitution and an oath cannot be considered as such. The

13 fact that it was put under quotation marks and the oath is the only text

14 that is put under quotation marks further illustrates this.

15 It is not my desire to diminish the importance of an oath.

16 Somebody who is a candidate for the post of the president of the republic

17 has to be necessarily a person of high moral values, and when such a

18 person utters this text it has certain weight. And when -- but he will

19 suffer moral consequences, not legal ones, if he fails to abide by this

20 text. I cannot think of a situation where the Constitutional Court or

21 whatever organ might judge the responsibility of the president of the

22 republic who would find him to be responsible for not abiding by the text

23 of the oath. As for perjury, yes, that is a crime. That is a crime all

24 right. However, we do not have a crime of failing to abide by the text of

25 an oath. In our criminal code a perjury is a crime for which a specific

Page 12962

1 punishment is envisaged.

2 JUDGE BONOMY: Mr. Zecevic.

3 MR. ZECEVIC: Thank you, Your Honour.

4 Just one thing before I continue. I was put on alert that on page

5 106, line 12, there has been in the transcript instead of 1D712 should be

6 1D752 which is the oath of the -- Article 56 of the German Basic Law.

7 JUDGE BONOMY: Thank you.

8 MR. ZECEVIC: [Interpretation]

9 Q. Professor, very briefly, please. All items mentioned in the oath

10 territorial integrity, sovereignty, human and civil rights, preservation

11 of the constitution and the laws, preservation of peace and so on, all

12 these items are values on which a constitution is based, correct?

13 A. Yes. Let me give you an example of the oath taken nowadays by the

14 president of the republic on the basis of the 2006 constitution. Among

15 other things, he takes an oath promising to do his best to ensure that

16 Kosovo and Metohija would remain within Serbia. This is beyond his

17 control. What if the Security Council decides that Kosovo-Metohija would

18 no longer be part of Serbia, would the president of Serbia be held

19 responsible for violating the constitution in those circumstances where

20 the president did nothing to diminish the territorial integrity of Serbia?

21 No. This was a decision taken by the Security Council.

22 You can look at the text of the oath which according to the

23 constitution of 2006 the president has to take and you will see that there

24 he takes it upon himself to do his best to ensure that Kosovo and Metohija

25 would remain within Serbia.

Page 12963

1 JUDGE CHOWHAN: The mere fact that without the oath he cannot

2 assume the office gives a legal shape to the requirement and that is law.

3 THE WITNESS: [Interpretation] Your Honours, I would say that it

4 rather gives dignity to the office, rather that than anything else.

5 JUDGE BONOMY: Mr. Zecevic.

6 MR. ZECEVIC: Yes. Just one more thing and we are, however, close

7 to the end.

8 Q. [Interpretation] Professor, sir, if we look at the oath in the

9 German Basic Law which we can see on the screen, we see that the German

10 president takes an oath to do justice to all. That is to say that

11 everybody is equal before the law. However, it is not up to the president

12 to ensure that everybody is equal before the law; rather, it is within the

13 jurisdiction of the courts. Isn't that right?

14 A. Yes. Based on this oath we can see that the president of the

15 republic takes it upon himself to ensure peace and welfare of all

16 citizens. So he swears that he will preserve peace and welfare of all

17 citizens. Given that more than half of the citizens of Serbia do not

18 currently live under good conditions, does it mean that all of those

19 people can request that the president be recalled, stating that he

20 violated his oath of office?

21 MR. ZECEVIC: Your Honours, I think it is a proper place and the

22 time is right to call it a day. Thank you very much.

23 Q. [Interpretation] Thank you, Professor.

24 JUDGE BONOMY: Professor, that brings us to the end of our

25 business for today. You will, as you know, require to return here

Page 12964

1 tomorrow to continue your evidence, that will be at 9.00 tomorrow morning.

2 Meanwhile, overnight it is essential that you have no communication with

3 anyone at all about the evidence in the case, that's either the evidence

4 you've given or the evidence you're going to give.

5 Talk to anyone you like about whatever you like, but just don't

6 talk to anyone about the evidence in this case. I hope you enjoy the

7 evening. Please leave the court with the usher now, and we look forward

8 to seeing you again at 9.00 tomorrow.

9 [The witness stands down]

10 JUDGE BONOMY: Court is now adjourned.

11 --- Whereupon the hearing adjourned at 3.30 p.m.,

12 to be reconvened on Tuesday, the 7th day of

13 August, 2007, at 9.00 a.m.