Tribunal Criminal Tribunal for the Former Yugoslavia

Page 35018

1 Thursday, 13 January 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.05 a.m.


6 MR. NICE: Before the witness is called, two short points on

7 exhibits. First, nothing to do with the present state of the evidence.

8 I've been intending for some time to try to make available to you another

9 map or atlas of Bosnia because you've got one of Kosovo, you've got one of

10 Croatia which covers parts of Serbia, but we do have an in-house -- or not

11 that we have in-house, an atlas produced, I think, by the New York Times.

12 But in any event, it's been copied. Perhaps I can distribute it for you

13 to consider. The index is not that easy to read but it's shown on a

14 couple of examples to be comparatively detailed and thus making it

15 comparatively easy to find towns that may be named, or villages that may

16 be named in Bosnia. So perhaps in due course we could consider having it

17 as an aid or indeed as an exhibit, but I don't do any more than simply

18 provide it at the moment.

19 JUDGE ROBINSON: It was actually prepared by The New York Times,

20 is it?

21 MR. NICE: It looks like it, yes. MacMillan Atlas is on the back.

22 But we're not interested in anything except the atlas's -- the maps and

23 the index to them.


25 MR. NICE: I've always been intending, on trips to the former

Page 35019

1 Yugoslavia, to see if there is a single comprehensive atlas that covers

2 the whole territory. Probably there is but I haven't managed yet to find

3 one.

4 MR. KAY: Perhaps we can take the journalism out at the front.

5 That might be a good idea, I think.

6 JUDGE ROBINSON: Well, yes. It's a bit unfortunate.

7 MR. KAY: The commentary.


9 MR. KAY: And when did the war begin, et cetera, all those

10 articles, so we get to what we're really dealing with, which is the just

11 the map itself.

12 JUDGE ROBINSON: Just the maps, yes.

13 MR. NICE: -- to physically destroy the document in order to avert

14 its eyes from the pages that concern Mr. Kay.

15 The second point, if I can raise it -- I think if Your Honour does

16 that you're likely to wreck the spine. A pair of scissors at the break

17 might be a safer method of preserving the integrity of the document as a

18 whole, or alternatively, the judicial aversion -- averting of the eyes.

19 The exhibits for this witness are substantial in number and we

20 know that the evidence of the witness is forecast as taking, I think, 6

21 hours in chief. The exhibits originally came for the most part in B/C/S

22 with some exhibits in English. We first received translations last night,

23 I think 7.00 or something like that. Although I was of course working on

24 the case last night I didn't actually have time to turn to any of those

25 documents.

Page 35020

1 This witness the Court may think it will be quite inappropriate to

2 go through an exercise of collective admission of evidence at the end of

3 his -- of exhibits at the end of his evidence and I would invite the Court

4 to make its own work and everybody else's work perhaps easier with this

5 witness by dealing with exhibits as they are dealt with by the accused and

6 the witness.

7 I shan't, of course, take an obstructive approach but it may be

8 that where exhibits haven't been translated until last night or haven't

9 been translated now, an appropriate course might be simply not to admit

10 them, either to wait for reconsideration of the position at the end of his

11 evidence, which I think will be sometime next week when, of course, the

12 Prosecution may be in a position to say as to exhibits or proposed

13 exhibits X, Y, and Z, yes they should be admitted, with the alternative

14 procedure of allowing for a later hearing when, on notice and when

15 translations are available, we can reconsider the exhibits. This is

16 something I raised in the recent filing, but with the witness produce -- a

17 witness of importance producing so many exhibits, I would ask that we in

18 principle proceed exhibit by exhibit, dealing with their admissibility at

19 the time he speaks of them.

20 JUDGE ROBINSON: Thank you, Mr. Nice. With regard to the map,

21 we'll have a look at it minus the commentary. And we intended, in any

22 event, to consider the exhibits individually.

23 Mr. Milosevic, this witness has fairly lengthy testimony. We must

24 try to proceed as efficiently as possible, as quickly as possible. With

25 regard to the exhibits, remember you must seek to introduce the exhibits,

Page 35021

1 bring our attention to particular passages and draw them to the attention

2 of the witness. By this time, we should have developed a fairly efficient

3 way of moving ahead with examination-in-chief when you have a number of

4 exhibits as you do in this case.

5 Call your next witness.

6 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson. I'd just

7 like to mention that this isn't a map of Bosnia but a map of

8 Bosnia-Herzegovina.

9 JUDGE ROBINSON: Well, whatever it is, Mr. Milosevic, we're just

10 going to look at it. We're not making any ruling on it, on its

11 acceptance.

12 THE ACCUSED: [Interpretation] All right, fine. I call my next

13 witness, Ratko Markovic.

14 [The witness entered court]

15 JUDGE ROBINSON: Let the witness make the declaration.

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

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

18 JUDGE ROBINSON: Please sit.


20 [Witness answered through interpreter]

21 JUDGE ROBINSON: You may begin, Mr. Milosevic.

22 Examined by Mr. Milosevic:

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

24 A. Good morning, Mr. President. Good morning to you one and all.

25 Q. Before we go on to the matters that you're here to testify about,

Page 35022

1 could you please briefly give us your curriculum vitae, particularly

2 focusing on your professional career.

3 A. I was born in the town of Pozarevac in 1944. Having graduated

4 from secondary school, I graduated from the faculty of law in Belgrade,

5 and my entire professional career up to my 50s was an academic one

6 exclusively. I never delved in politics or was interested in politics. I

7 began as an assistant professor, and in 1984 I was elected as full

8 professor for the subject of Constitutional law at the faculty of law. In

9 1985, I became regular full professor for comparative law at --

10 administrative law at the faculty of law.

11 I entered the realm of politics when the Constitutional question

12 came up in Serbia and when it was a matter of professional honour and

13 national honour to help do away with a Constitutional injustice that was

14 done to Serbia and a constitution which did not merit the right of being

15 called a constitution because it was everything but a constitution should

16 be changed and amended.

17 So my involvement in that field led me to enter the world of

18 politics when I was in a very mature man, even too mature in terms of

19 years. That was in 1992, and I was elected a deputy in the federal

20 parliament. My term of office, my mandate was for four years, until 1996,

21 and in 1994, I was also elected one of the five vice premiers of the

22 government of the Republic of Serbia, and I was in charge of legislation

23 and the legal system. This lasted until the year 2000, which is how long

24 the government was in power for. I was also elected to other governments

25 as vice premier to deal with those same matters, and then in the year 2000

Page 35023












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Page 35024

1 I withdrew permanently from the realm of politics and devoted my life to

2 scientific research work and pedagogical work; teaching.

3 I have published so far 250 works, mostly from the sphere of

4 Constitutional law and other areas, amongst them eight textbooks,

5 Constitutional right and political institutions, my textbook was

6 published, had nine editions. I took part in the writing of four -- the

7 constitutions of four countries. I wrote one myself independently. I

8 also took part in drafting laws, but this is mostly in the realm of

9 political legislation. So that would be that to begin with.

10 JUDGE ROBINSON: Mr. Milosevic. Mr. Markovic, you said you took

11 part in the writing of the constitutions of four countries. What are the

12 four countries?

13 THE WITNESS: [Interpretation] Well, I can't enumerate them all. I

14 can tell you the names of three but not the fourth. One was the

15 constitution of the Republic of Serbia, the 1990 one; the constitution of

16 the Republic of Montenegro, the 1992 one in October; and the constitution

17 of the Federal Republic of Yugoslavia dating to 1992. I still come under

18 the Official Secrets Act, so I can't quote you the fourth country.

19 JUDGE ROBINSON: I see. Yes, Mr. Milosevic, continue.

20 MR. MILOSEVIC: [Interpretation]

21 Q. Professor Markovic, will I be correct in saying that you have

22 dealt with Constitutional law for a full 40 years?

23 A. That would be precisely it. On the 11th of September last year,

24 that is to say in 2004, it was a full 40 years since I've been dealing

25 with Constitutional law.

Page 35025

1 Q. Thank you, Professor Markovic. Your testimony here today, and I

2 think this will be useful for anybody following these proceedings, will

3 have to do with three groups of questions. The first group of questions

4 relates to the decisions that the Constitutional Court of Yugoslavia made

5 assessing the constitutionality of the legal provisions of the Yugoslav

6 republics and laws and bills of the Yugoslav republics as well as the

7 documents of the Autonomous Province of Kosovo and Metohija.

8 The second group of questions will relate to the Constitutional

9 amendments 1989 to the constitution of Serbia of 1974, and then they will

10 relate to the 1990s constitution of Serbia and the constitution of the

11 Federal Republic of Yugoslavia of 1992.

12 And the third group of questions will focus on the discussions and

13 conversations and debates between the delegations of the government of

14 Republic of Serbia with the representatives of national communities in

15 Kosovo and Metohija, the negotiations in Rambouillet and Paris, and so on

16 and so forth.

17 Now, my question with respect to all these three groups of

18 questions that your testimony is going to focus on is this: Did you have

19 direct knowledge about all these three groups of topics or, rather, were

20 you a direct participant in those events, the events covered by these

21 three groups of topics; and if so, in what capacity?

22 A. I was a direct participant in all three groups of topics. When I

23 was a judge of the Constitutional Court of Yugoslavia in its last years of

24 existence -- the Constitutional Court of Yugoslavia ceased to exist when

25 the constitution of the Federal Republic of Yugoslavia was enacted on the

Page 35026

1 27th of April, 1992, in fact, but according to that constitution, the

2 Constitutional Court still continued to exist but it changed its name into

3 the Federal Constitutional Court. So I took part in all the

4 decision-making, the critical decisions that were made which had to do

5 with the decomposition of the SFRY, that is to say the Socialist Federal

6 Republic of Yugoslavia. And that can be seen by the signatures under each

7 of the relevant decisions taken, the decisions which had a bearing on

8 those acts and documents.

9 I was also a member of the constitutional commission at the time

10 the amendments were brought in to these constitution of the Socialist

11 Republic of Serbia in 1974. They were amendments of 1989 when there were

12 41 amendments passed with respect to that constitution; and I was a member

13 of the constitutional commission that drafted the 1990 Serbian

14 constitution; and a member of the constitutional commission to draft the

15 constitution for the Federal Republic of Yugoslavia in 1992; and after

16 that, I was the head of the state delegation for negotiations with the

17 representatives of the Albanian political parties held in Pristina. There

18 was a total of 15 such attempts at negotiation. And finally, I was the

19 head of the state delegation for negotiations at the conference in

20 Rambouillet and Paris.

21 Q. What was the state organ, the constitution of Yugoslavia, what was

22 the attitude towards the Yugoslav 1974 constitution?

23 A. Yugoslavia was the first socialist country which introduced

24 constitutional jurisdiction in 1963, so that the Constitutional Court in

25 Yugoslavia has a tradition spanning over four decades. The Constitutional

Page 35027

1 Court of Yugoslavia is a body which -- actually, it became the Federal

2 Constitutional Court later on, with the same competencies, but they --

3 they functioned in the abstract control of jurisdiction and legality and

4 constitutionality, referring to general acts regardless of a conflict in

5 place, independent of cases of controversy. So despite cases of

6 controversy, if the person proposing or initiating this with the

7 Constitutional Court of Yugoslavia, the Constitutional Court of Yugoslavia

8 would assess the constitutionality of the laws and other provisions, acts,

9 and bills, et cetera.

10 Once we had a proposal made by somebody bringing in the process,

11 it would decide upon the plaintiff's proposal and would assess whether the

12 initiative was an opportune one or not. If it found that it was,

13 proceedings would go forth, either ex officio or not. The decisions were

14 binding. They were acta ergo on this, they were final and executive.

15 However, this institution, too, which was the final construction and the

16 roof of the building of a state in which we have the rule of law, had to

17 pay the price of the specific federal system that reigned, and the

18 Assembly system of power and authority of which the Assembly was the

19 highest organ of power and authority, not like in the system of division,

20 just a vehicle of the law-giving legislative function.

21 Q. What was the composition of the Constitutional Court of

22 Yugoslavia, for instance?

23 A. According to the constitution of the Socialist Federal Republic of

24 Yugoslavia dating back to 1974, the Constitutional Court was made up of

25 the president and three Judges -- and 13 judges. Each republic had two

Page 35028

1 members in the Constitutional Court. That is to say a total of 12 from

2 the republics since we had six republics in all and each autonomous

3 province had one judge. So that makes a total of 14 members of the

4 Constitutional Court of Yugoslavia, and they were elected by the Assembly

5 of the SFRY at proposals put forward by the Presidency of the SFRY. Their

6 mandate was a long one, eight years, an eight-year term of office, but

7 they were not subject to re-election because there was strict

8 incompatibility with their other functions, the other functions they had

9 to do if they were also judges of the Constitutional Court, and the judges

10 of the Constitutional Court enjoyed the same immunity as did the deputies

11 in the federal parliament.

12 JUDGE BONOMY: Mr. Milosevic, may I just ask a question at this

13 stage to clarify one point.

14 Professor, are you saying that the job of the Constitutional Court

15 was to decide in advance of a law coming into force whether it was

16 constitutional rather than to decide upon a challenge against a law after

17 it had come into force?

18 THE WITNESS: [Interpretation] I have fully understood your

19 question. It did not have so-called preventive control of

20 constitutionality, as opposed to France. The council in France can

21 actually judge the constitutionality of a law before it is promulgated by

22 a head of state. But the Constitutional Court of Yugoslavia could assess

23 a law only once it had entered into force and once it had been applied, if

24 there are any problems in the application of that law.

25 I'm sorry, Mr. Milosevic, I did not quite understand your

Page 35029












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Page 35030

1 question. Did you ask me about the composition of the Constitutional

2 Court?

3 MR. MILOSEVIC: [Interpretation]

4 Q. Yes, I asked you about the composition of the Constitutional

5 Court, and what you explained to me was that out of the 14 members, there

6 were two from each republic respectively, one from each province, and the

7 president. So there were 13 members and one president. But in order to

8 make things clear, the context of the situation clearer, the context of

9 decision-making on all these questions that you're going to be testifying

10 about, could you please tell me, if you can remember, who the judges of

11 the Constitutional Court of Yugoslavia were at the time when these

12 decisions were made about the acts adopted by the republics of Slovenia

13 and Croatia that had decided to leave the federation? Who were the

14 judges? Can you remember that?

15 A. I'm pausing on purpose between your questions and my answers

16 because this is what I was told, that all of this is being interpreted.

17 When I was a judge of the Constitutional Court of Yugoslavia, from

18 Bosnia-Herzegovina there were Milovan Buzadzic and Omer Ibrahimagic. From

19 the Republic of Montenegro, Branislav Ivanovic and Slobodan Blagojevic.

20 From the Republic of Macedonia, the judges were Dimce Kozarov and Krste

21 Calovski. From the Republic of Slovenia, the judges were Ratko Mocilnik,

22 and Ivan Kristan. From the Republic of Croatia, the judges were Hrvoje

23 Bacic and Vladimir Seks. From the Republic of Serbia, that I was from,

24 the judges were Veljko Markovic and I, Ratko Markovic.

25 Q. Thank you. Tell me, what kind of majority was needed in order to

Page 35031

1 pass a decision by the Constitutional Court?

2 A. By absolute majority. That is to say there were a total of 14

3 members, so the minimum for passing a decision was eight votes in favour

4 of a particular decision.

5 JUDGE BONOMY: Professor, again, just for clarification, where

6 does the 13th judge come in? Two --

7 THE WITNESS: [Interpretation] I beg your pardon. I didn't prefer

8 to the provinces. From the province of Kosovo, there was Pjeter Kolja,

9 and from the Autonomous Province of Vojvodina the judge was Dusan Ruzic.

10 That's the way it was, and that's how we had 14. You're right. Thank

11 you.

12 MR. MILOSEVIC: [Interpretation]

13 Q. So decisions were passed by an absolute majority.

14 A. Absolute majority.

15 Q. Eight votes had to be cast in favour of a particular decision so

16 that it would be passed.

17 Tell me, if a judge were absent when the Constitutional Court was

18 making a decision, how did that affect the decision-making process itself?

19 A. The Constitutional Court could function only if there was a

20 quorum. If, due to absence of judges, there wasn't a proper quorum, the

21 court could not work or operate. But the absence of one member only could

22 not affect the decision-making process.

23 Q. Now I would like to clarify a particular matter which basically

24 should not be of much significance but regrettably it's turned out to be

25 significant here in the context of the questions that are being dealt

Page 35032

1 with. So judges of Serb ethnicity, even together with the Montenegrins,

2 could they have outvoted the other judges on the court?

3 A. Even theoretically that was impossible. Mr. Veljko Markovic and I

4 were ethnic Serbs. We represented the Republic of Serbia. And also

5 Mr. Dusan Ruzic, who represented the Socialist Autonomous Province of

6 Vojvodina. In addition to that, there was a Serb from Bosnia, namely the

7 then president of the Constitutional Court, Mr. Milovan Buzadzic. And two

8 Montenegrins, Mr. Branislav Ivanovic and Slobodan Blagojevic were

9 Montenegrins. So the total of Serbs and Montenegrins in terms of ethnic

10 affiliation on the Constitutional Court at that time was five out of 14

11 members. So in no way could they decisively affect the decision-making

12 process, because eight votes were required at least.

13 JUDGE ROBINSON: Please stop a minute. I'm going to consult.

14 [Trial Chamber confers]

15 JUDGE ROBINSON: Continue, Mr. Milosevic.

16 THE ACCUSED: [Interpretation] Thank you, Mr. Robinson.

17 MR. MILOSEVIC: [Interpretation]

18 Q. So, Professor Markovic, if I have understood you correctly, the

19 ethnic Serb Judges, on their own or even together with the Montenegrins,

20 did not even have a theoretical or let alone practical possibility of

21 outvoting anybody.

22 A. They could not even constitute a quorum.

23 Q. So they could not even hold a session of the Constitutional Court.

24 All right.

25 Now, tell me, ethnic affiliation of the judges, did that play any

Page 35033

1 role whatsoever, in your experience, in the decision-making process of the

2 Constitutional Court?

3 A. This is something that is valid for any judge let alone of a

4 Constitutional Court: Even Montescu said that judges should utter the

5 words of the law and judges are expected only to look at the letter of the

6 law. However, when these processes in relation to Yugoslavia started, it

7 was felt, nevertheless, that national affiliation did play a certain role.

8 I cannot say that a large number of judges were objective -- were not,

9 rather, objective; however, Judge Kristo [as interpreted] obviously

10 deviated from that. He wanted the laws of Slovenia to be treated as

11 constitutional by all means, and when Slovenia passed a declaration on the

12 sovereignty of the Republic of Slovenia in 1990, and since in that

13 declaration it proclaimed the priority of its own law and its own

14 constitution vis-a-vis the federal law and federal constitution, he came

15 to this Constitutional Court that his own state did not recognise because

16 it did not recognise the federal constitution, and he took part and

17 actively so in the debate on the constitutionality of the laws passed by

18 the Republic of Serbia, especially the amendments of 1989. That was the

19 only case that I would have to mention.

20 As for my other colleague from Slovenia, Mr. Ratko Mocilnik, he

21 absolutely abided by the principle of objectivity and work and he went

22 only by the letter of the law and the constitution when assessing a

23 particular law.

24 JUDGE ROBINSON: Professor, let me just be clear about this.

25 "Judge Kristo" it says here on the transcript. Is that Judge Kristan

Page 35034

1 from Slovenia, Ivan Kristan?

2 THE WITNESS: [Interpretation] Absolutely. Ivan Kristan. Kristan,

3 with an N at the end.

4 JUDGE ROBINSON: That was the Prosecution witness, Mr. Nice?

5 MR. NICE: Indeed it was.

6 JUDGE ROBINSON: Yes. Okay. Continue.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Now we're going to move on to more concrete matters or, rather,

9 the very merit of the case. Tell me, please, which acts pertaining to

10 secession, that is to say acts that were passed by the Republic of

11 Slovenia and the Republic of Croatia, were discussed by the Constitutional

12 Court of Yugoslavia and judged on their constitutionality or

13 non-constitutionality? Could you please list these acts that were

14 reviewed.

15 A. Yes. I'm going to try to do so, although there's quite a few of

16 them.

17 Secession started gradually, and actually the first attack against

18 the federal constitution were the amendments to the constitution of the

19 Republic of Slovenia, the so-called Slovenian Amendments that were adopted

20 in 1989 when this joint change was carried out of all the constitutions of

21 the republics and both provinces which followed on the amendments to the

22 federal constitution in 1988.

23 These other amendments or, rather, all amendments of all republics

24 and provinces were reviewed in terms of their constitutionality.

25 Actually, what was done was assessing whether they were in contravention

Page 35035












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Page 35036

1 of the federal constitution.

2 As regards of -- as regards the amendments to the Montenegrin

3 constitution, it was found that it was not in contravention of the federal

4 constitution in any way. As for the other republics and provinces,

5 perhaps a provision or two in the opinion of the Constitutional Court were

6 in contravention of the Constitutional Court. But the amendments to the

7 constitution of the Republic of Slovenia constituted a grave violation of

8 the federal constitution and federal laws. These amendments meant

9 practically the suspension of the federal constitutional order, also

10 halting the work of the federal organs and basically creating a new state

11 or, rather, giving the Republic of Slovenia a different state and legal

12 quality than ensured by the federal constitution. That was the first act

13 that hinted at the gradual emancipation of the republics from the federal

14 state.

15 For the first time, the amendments to the constitution of the

16 Republic of Slovenia, at that time in 1989, contained a provision

17 stipulating that the constitution of the Republic of Slovenia will

18 regulate the right to self-determination of the Republic of Slovenia.

19 Then the Republic of Slovenia passed a few acts that by then already meant

20 a clear breakaway from the federal state. I believe that you have all

21 these acts in the exhibits.

22 Q. I'm going to be dealing with that.

23 A. There was a total of six. There was a total of six, so I don't

24 have to deal with them one by one.

25 Slovenia also provided a model as to how secession would be

Page 35037

1 carried out from the federal state. I think that Slovenia was not the

2 first to do so by accident. Slovenia was ethnically the most pure

3 republic, the most homogenous republic, and I think that according to

4 constitutione artis principles, there would not have been any problems for

5 Slovenia to secede from the federal state because it was a monoethnic

6 state.

7 Since it was the first one to opt for secession, it was followed

8 by Croatia, then the Republic of Macedonia in a very specific way, and in

9 an even more specific way, the Republic of Bosnia-Herzegovina. All these

10 acts were reviewed by the court except for Bosnia-Herzegovina, because it

11 embarked on this much later, when the Constitutional Court of Yugoslavia

12 was no longer in existence. So all these acts were reviewed by the

13 Constitutional Court of Yugoslavia in terms of whether they were

14 constitutional or not, and that triggered off a series of acts, dozens of

15 acts, because on the basis of these initial acts on secession, new states

16 had to be created. A legal order had to be created. That meant to

17 nullify federal laws and adopt federal laws as republican laws.

18 Q. Professor Markovic, on the basis of what you've been saying just

19 now, can one draw the conclusion that secession took place in stages; and

20 if so, which were the stages involved?

21 A. Secession did take place in stages. The first one basically

22 charted the course for the rest. The first stage was the proclamation of

23 the republic as a sovereign state. These were declarations, resolutions,

24 or constitutional decisions on the sovereignty of such-and-such a

25 republic. Now, what was the point of such an act? The point of such an

Page 35038

1 act was not to completely sever all ties with Yugoslavia, the federal

2 state, but just to change the quality of the relationship involved.

3 Yugoslavia thereby became a union of sovereign states, not a sovereign

4 union of republics as was the case of the 1974 constitution.

5 So the underlying idea of this first stage was to proclaim the

6 republic concerned to be sovereign. Until then it had been a federal

7 unit, but then it was turned into a sovereign state and its legal system

8 was supposed to gain priority over the federal state.

9 The second stage was a referendum or a plebiscite, the citizens,

10 populus, demos, if you wish, the voters were asked whether they were in

11 favour of having their republic become an independent, self-reliant state.

12 Since the answer obtained was yes, then the following stage was a

13 declaration or whatever it was called in different places, resolution too,

14 but in most cases it was called a declaration on the proclamation of the

15 said republic as a sovereign independent state.

16 And then came the final act of severing all ties to the federal

17 state of Yugoslavia and denying it legality and legitimacy, that is to say

18 denying the federal state legality and legitimacy. So that was the final

19 state in the breakaway of the federal republics.

20 Q. All right. So we saw what the stages were. Later on we will

21 analyse the quality and the character of these decisions and the legality

22 of various decisions and various phases, but now another question: Tell

23 me, what was the total number of enactments proclaiming secession? When I

24 say the total number of enactments, I have in mind both the basic ones and

25 the ones originating from the basic fundamental ones. So what was the

Page 35039

1 total number of these enactments which were then reviewed for their

2 constitutionality by the Constitutional Court of Yugoslavia?

3 A. Just to add on to something: The phases that I mentioned did not

4 have the same chronological nature in all republics. They existed as four

5 separate stages, four separate acts. In Croatia, for example, they had a

6 different chronology. First they had a referendum and then a declaration

7 on independence, and so on.

8 Q. All right. We'll go into details later on, but let's clarify this

9 question that I earlier put to you. What was the total number of direct

10 or basic enactments and those originating from them? And here I -- what I

11 have in mind are only the enactments that the Constitutional Court

12 proclaimed to be unconstitutional, not any other ones.

13 A. Well, the Constitutional Court was able to review these acts as

14 long as it existed physically, which meant that it reviewed the

15 constitutionality of enactments of Slovenia, Croatia, Macedonia, but not

16 Bosnia-Herzegovina because, chronologically, that was later on.

17 There always was an initial decision which came first, the main

18 decision proclaiming an independence of a republic, and that had a nature

19 of a constitutional decision laying the foundation, the normative

20 foundation for the independence of the republic. And then this

21 fundamental enactment would be followed by a series of legislation and

22 enactments which then did not rely on the constitution of the republic

23 but, rather, on that main fundamental secessionist decision or enactment.

24 There were dozens of such enactments or decisions. I did not

25 count them, but the then president of the Constitutional Court, Milovan

Page 35040

1 Buzadzic, later on wrote a book entitled Secession of the Former Yugoslav

2 Republics in Light of the Decisions of the Constitutional Court of

3 Yugoslavia.

4 Q. Mr. Markovic, let us just pause for a moment.

5 THE ACCUSED: [Interpretation] Gentlemen, I would like to draw your

6 attention to the list of exhibits which has 53 tabs. This book is listed

7 under 46, tab 46. So this is the only exhibit which has not been

8 translated because this is quite a voluminous book. All other exhibits

9 have been translated.

10 This is a book which actually is a collection of all decisions of

11 the Constitutional Court. It is entitled Secession of Former Yugoslav

12 Republics in Light of Decisions of the Constitutional Court of Yugoslavia

13 and it contains all of the decisions passed by this Constitutional Court.

14 JUDGE KWON: My index shows only up to 54. It does not show tab

15 55 and further.

16 THE ACCUSED: [Interpretation] I have 53 on my list. There's a

17 total of 54 tabs, but let me just draw your attention that number 46 is --

18 so this is a collection of decisions. It's not really a book expressing

19 an opinion, this is simply a collection of documents, all of the documents

20 passed by --

21 JUDGE ROBINSON: The position is clear now -- the position is

22 clear now, Mr. Milosevic.

23 THE ACCUSED: [Interpretation] Thank you. Thank you.

24 MR. MILOSEVIC: [Interpretation]

25 Q. You may continue, Professor Markovic.

Page 35041












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Page 35042

1 A. So the last president of the Constitutional Court of Yugoslavia

2 published this book.

3 MR. NICE: For good order, we've been pointed to a tab that

4 relates to a book that is not translated. We know that CLSS typically

5 declines to translate books if they are presented as a single item,

6 because they just don't have the resources to do that. I haven't seen the

7 document and I would ask that there be no question of admitting this

8 document at this stage.

9 JUDGE ROBINSON: Yes. We agree. Yes. But you may refer to it.

10 THE ACCUSED: [Interpretation] Very well. I will refer to it. We

11 believed that it wasn't rational to have the whole book translated because

12 it is nothing but a collection of documents. However, if you take this

13 attitude that I can put in a request to translate the whole book. Many of

14 those documents, especially the most pertinent ones, are contained in

15 various tabs and have been translated themselves. So we will be able to

16 go into details with respect to those.

17 JUDGE ROBINSON: Mr. Milosevic, you know what the procedure is.

18 You should identify specific passages in the book, and then the CLSS would

19 translate those passages. You can't put the book as a whole. But we are

20 allowing you, nonetheless, to put specific passages.

21 THE ACCUSED: [Interpretation] Very well.

22 JUDGE ROBINSON: If it is really necessary --

23 JUDGE BONOMY: Is sounds to me as though this is not really a

24 necessary exercise. The witness has personal experience of the decisions

25 that were made, the book could be an aide-memoire insofar as he requires

Page 35043

1 it, which I suspect is to very little extent, and there is no need to have

2 the burden of such a big document being translated when it doesn't, on the

3 face of it at the moment, appear to be necessary. If that were to change

4 then the position might be different.

5 THE ACCUSED: [Interpretation] Precisely my train of thought,

6 Mr. Bonomy. I believe that it wasn't rational to request that the whole

7 book be translated, because it is nothing but a collection of documents.

8 However, we will examine the contents of certain documents.

9 MR. MILOSEVIC: [Interpretation]

10 Q. Professor Markovic, how many decisions there were contained in

11 this book -- if you wish, you can take a look at the book of Mr. Buzadzic;

12 you have it with you, I believe. So how many decisions there were which

13 were declared to be unconstitutional?

14 A. All of these decisions were published in the Official Gazette of

15 the Federal Republic of Yugoslavia or, rather, at the time it was called

16 the Socialist Federal Republic of Yugoslavia. So all of the decisions

17 came from the Official Gazette in which they had been published.

18 There were a total of six such capital decisions with respect to

19 the Republic of Slovenia, four referring to the Republic of Croatia, and

20 then a series of laws which both republics adopted later on. There are

21 dozens of them. I didn't count them.

22 When we speak of Bosnia and Herzegovina, the enactments of that

23 republic were not reviewed by the Constitutional Court because it no

24 longer existed at the time; and the secessionist enactment declaring the

25 sovereignty of the Republic of Macedonia was also reviewed by the

Page 35044

1 Constitutional Court and declared to be unconstitutional and its

2 provisions voided.

3 Q. Please tell me, who brought an action for determining the

4 constitutionality of these enactments?

5 A. Most frequently or, rather, exclusively the actions were commenced

6 by federal organs which had standing. I've already explained what were

7 the -- what was the difference between the proposal of the authorised

8 plaintiff and the initiators.

9 Most frequently the actions were brought by the Chamber of the

10 republican parliament. There were several Chambers. And then also the

11 Federal Executive Council, which was the cabinet, the government.

12 In addition to these organs, also the Presidency of the SFRY,

13 which was a collective head of state, also had standing. And depending on

14 the enactment challenged, the action also could have been brought by

15 various agencies. For example, the Ministry of the Interior. Sometimes

16 ex officio the court itself could initiate an action.

17 JUDGE KWON: Just for clarification. So the constitutionality of

18 the law can be challenged even without the existence of an actual

19 controversy by the federal organs. So in other words, you adopt a

20 so-called abstract, norm-control system. It's norm-control -- it's

21 translate: Control, norm, abstract, control of norm system. It's

22 originated from Germany, I guess.

23 THE WITNESS: [Interpretation] Yes. This is the system of the

24 so-called abstract control which exists in the Federal Republic of

25 Germany, in Austria, and in Italy. The Constitutional Court of Yugoslavia

Page 35045

1 was modelled after the Constitutional Courts in those countries; Germany,

2 Austria, and Italy.

3 So the action is brought when the authorised proponent believes

4 that a certain enactment is unconstitutional, regardless of its

5 application or implementation, just as you said. So the federal agencies

6 had a duty, when initiating an action, to list the reasons why they

7 believed that the certain enactment was unconstitutional. So this wasn't

8 just a mere initiation of an action but the proponent or the plaintiff

9 also had to enlist the reasons and enumerate specific articles of the

10 constitution which they believed the enactment violated.

11 JUDGE KWON: Thank you, Professor.

12 MR. MILOSEVIC: [Interpretation]

13 Q. So you just explained that the plaintiffs, those who proposed that

14 certain enactments be reviewed, were either the collective Presidency or

15 federal parliament or federal government or a federal agency, federal

16 ministry, the relevant ministry.

17 A. That's right.

18 Q. Now, what was the composition of these bodies initiating an

19 action? Who were the members of the Federal Executive Council, various

20 Chambers within the Federal Assembly, and so on, at the time, at the

21 relevant time when these actions for assessing the constitutionality were

22 brought?

23 A. As is well known, the 1974 SFRY constitution set forth that all of

24 the federal organs had equal representation of all republics and

25 proportional representation of provinces. So each republic had an equal

Page 35046

1 number of representatives in all of these organs and an appropriate

2 representatives of provinces were present as well. The only exception was

3 the Federal Executive Council, which is the government, the cabinet,

4 concerning which the constitution set forth that it will be set in

5 accordance with the proportionality of the nations and nationalities

6 comprising Yugoslavia. So all of these organs had equal representation.

7 As for the composition itself, at the time the president of the

8 Federal Executive Council was Mr. Ante Markovic, president of the

9 Presidency I believe was Mr. Jovic, whereas the federal Chamber, which was

10 the lower Chamber within the Assembly, had its chairman who was not really

11 a president. He was a primus inter pares, so he was one of the equals.

12 That was his capacity.

13 Q. Very well. You've explained the composition, and let us just sum

14 it up and say that all of the nations and nationalities were equally

15 represented.

16 A. Yes, that's right. Let's take, for example, the federal Chamber.

17 Each republic had 30 deputies and each province 20 deputies in the Chamber

18 of the Assembly; a total of 120. A similar system was applied in the

19 other Chamber of the Assembly, and a similar system was applied in the

20 Constitutional Court of Yugoslavia. So there was an absolute parity when

21 it came to republics and appropriate representation when it came to

22 provinces.

23 Q. Mr. Markovic, what was the decision-making process in those

24 organs?

25 A. In the Presidency, they worked based on the principle of

Page 35047












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Page 35048

1 coordinating their views.

2 Q. What about the Assembly?

3 A. They applied the majority principle, at least when it came to the

4 federal Chamber. They needed a majority in their decision-making process.

5 In certain cases they need a special majority, a two-thirds majority. And

6 when we're speaking of federal organs, they had an executive, a minister.

7 This is how they functioned.

8 Q. All right. I will put a similar question now to you, similar to

9 the one when I asked you about the decision-making process and the

10 Constitutional Court.

11 Please tell me whether the republics, especially Serbia and

12 Montenegro, in view of the composition, could have had dominant influence

13 in various bodies and dominant role in the decision-making process. Let

14 us analyse the federal executive -- federal Chamber. If the federal

15 Chamber was the one initiating an action before the Constitutional Court,

16 could their actions have been influenced by the representatives of Serbia

17 and Montenegro?

18 A. No. Even theoretically that would not have been possible for the

19 simple reason that when we add up the numbers of deputies of the federal

20 Chamber. I already told you that Serbia had 30 deputies, and the total

21 number of deputies was 220. So half of the 220, the quorum need was 111.

22 And even if Serbian and Montenegrin deputies were to pull together, they

23 would not have had the quorum, even theoretically.

24 Q. Now that you've told us who had standing before the Constitutional

25 Court, who could have initiated an action, please tell us whether Serbia

Page 35049

1 initiated any action to evaluate the constitutionality of these

2 enactments.

3 A. No, Serbia didn't; neither did any Serbian organ. Based on the

4 proposal of Judge Kristan, the court ex officio initiated an action to

5 evaluate the constitutionality of one Serbian law, but Serbia itself or

6 any of its republican organs never initiated such an action. None of its

7 authorised organs ever did that.

8 JUDGE KWON: Does the republic have the standing at all to

9 initiate a law against the federal law?

10 THE WITNESS: [Interpretation] The republic was authorised, or

11 republican organ was authorised to initiate an action to review a

12 constitutionality of an enactment legislation if they believed it to be

13 unconstitutional. The federal constitution of Yugoslavia, as I've told

14 you, differentiated between proponents and initiators of such actions, and

15 there was an exhaustive list specifying who could be proponents initiating

16 such an action.

17 This is Article 387 of the constitution. Although I know this

18 text practically by heart, I will now refer to it. So let me give you who

19 were the authorised proponents: Republican parliament, republican

20 president, republican Executive Council, republican Constitutional Court,

21 republican prosecutor, and the same applied for appropriate organs in the

22 provinces. This is stated in Article 387 of the constitution from 1974.

23 MR. MILOSEVIC: [Interpretation]

24 Q. In tab 39, you will find the translated constitution of the

25 Federal Republic of -- or, rather S -- Federal Republic of Yugoslavia.

Page 35050

1 You can find this in tab 39. I think that in another tab we also have the

2 constitution of the SFRY.

3 A. I have the English version of the constitution here, and I can

4 read it out to you.

5 JUDGE ROBINSON: Just a minute, Mr. Milosevic. Tab 39, we find

6 the English version of the constitution. I'm just trying to track the

7 article to which the professor just referred. Article 387.

8 THE ACCUSED: [Interpretation] Just a moment, please.

9 JUDGE ROBINSON: But it's not here.

10 THE ACCUSED: [Interpretation] Yes, yes. The constitution of the

11 SFRY, the 1974 constitution, is contained in tab 15. Of the Socialist

12 Federal Republic of Yugoslavia, the '74. The other tab is the Federal

13 Republic of Yugoslavia. The SFRY 1974 constitution is to be found in tab

14 15.

15 JUDGE ROBINSON: Let me just find it so I can begin to develop a

16 familiarity with the constitution. 387.

17 THE WITNESS: [Interpretation] May I be of assistance?

18 JUDGE ROBINSON: Yes. Whenever you're going to cite a document or

19 quote from a document, let us know what it is before you read from the

20 document.

21 Yes, I have found it. Continue, Mr. Milosevic.

22 JUDGE BONOMY: Before you do so, the opening words, Professor, of

23 that article are: "Anyone may initiate institution of proceedings for the

24 assessment of constitutionality and legality." That would suggest that

25 any individual could do so and that what follows is a list of

Page 35051

1 organisations which can do so.

2 MR. NICE: Your Honours on this occasion, by the way, have the

3 advantage over me. I haven't tracked it down. It's tab?

4 JUDGE BONOMY: That's 15, Article 387.

5 JUDGE KWON: Page 292.

6 THE WITNESS: [Interpretation] You see, let me go back to this

7 question. This first formulation anyone may initiate [In English]

8 institution of proceedings for the assessment of constitutionality and

9 legality. [Interpretation] That's just the initiative, which anybody can

10 take - an individual, a legal person - but the Constitutional Court is not

11 duty bound to move proceedings at the initiative of the initiator. It

12 will assess whether there is any reason to move for proceedings; and if

13 so, it will bring in an act saying that.

14 The second point, "Proceedings before the Constitutional Court of

15 Yugoslavia may be instituted by..." et cetera, this now brings us to the

16 authorised initiators, who are limited and enumerated, and their total

17 number is 10. If they forward a proposal, then the Constitutional Court

18 is bound to act upon it; it must act upon it.

19 JUDGE KWON: So institution is distinguished from initiation.

20 THE WITNESS: [Interpretation] Completely, yes. Completely

21 different with respect to the legal regime, the legal system. A different

22 legal system for an initiative, a different legal system for the proposal.

23 JUDGE ROBINSON: Maybe at the end of this trial we'll all write

24 books like you, Professor, on your constitution.

25 Continue, Mr. Milosevic.

Page 35052

1 THE WITNESS: [Interpretation] I did not write this constitution,

2 and I don't have a good opinion of this constitution, let me tell you.

3 MR. MILOSEVIC: [Interpretation]

4 Q. All right. But let's just clarify one point. Regardless of

5 whether the constitution or, rather, the Constitutional Court makes a

6 decision to move proceedings on the basis of initiative, if it considers

7 initiative to be justified, or on the basis of a proposal for moving it

8 coming from an authorised organ, once the decision has been made to assess

9 the constitutionality, the proceedings don't differ after that?

10 A. No. The proceedings don't differ after that. Laws and provisions

11 govern the way the proceedings will be conducted. Once a motion is set in

12 motion -- into motion, it is subject to the general rules.

13 Q. Yes. That's clear now. Now, tell us briefly, what were the

14 reasons given in the proposals to assess constitutionality of the

15 decisions governing secession, on the decision to secede?

16 A. Well, they -- the following reasons were usually put forward:

17 First of all, the reasons for lack of respect for the principle of

18 constitutionalism. That is to say, the republican constitution was in

19 contravention with the federal constitution.

20 Next, and this you will find in Article 2 -- Mr. Robinson told me

21 to refer to articles -- it is 206, points 1 and 2 of that constitution.

22 Then we have 2 -- Article 270 quoted most often, which prescribed

23 that federal laws and other enactments were to be put in force throughout

24 the territory of the given state. So that is Article 270. Because

25 enactments were brought in proclaiming the republic a sovereign one, that

Page 35053












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Page 35054

1 means that the federal law was suspended in its territory, and that was

2 what we called the law of nullification, which the republic usurped. And

3 we have that in Article 270, which states that the federal statutes and

4 other regulations and enactments shall be binding throughout the entire

5 territory of the Socialist Federal Republic of Yugoslavia. Then we come

6 to Article 1 of the constitution, the very first article of the

7 constitution of the Federal Republic of Yugoslavia, which defines the

8 federation itself and tells us what a federation is, what the federation

9 is. So the secessionist enactments violated this provision on federation.

10 It is Article 1, if you have found it.

11 When we go into explaining all these enactments and statutes,

12 we'll go back to what the meaning of them are -- is.

13 Then we come to Article 2, which defined the structure, the

14 composition of the federal state, and what the federal units were which

15 comprised the federal state. Every federation, every federal state has a

16 provision of this kind.

17 Q. Thank you, Professor. You don't have to quote everything.

18 A. Let me just say that Article 5 is also pertinent relating to

19 territory, state territory.

20 Q. So these were the reasons that were stipulated in the proposal

21 made for an assessment of constitutionality by the proponents.

22 Now, tell us about the constitution of Yugoslavia. What reasons

23 was it guided by? What basic provisions was it guided by in looking at

24 the basic enactments when they were proclaimed contrary to the

25 constitution and abolished?

Page 35055

1 A. The Constitutional Court of Yugoslavia stipulated several reasons

2 in that connection, and the one that was always present was a definition

3 of the federal state itself and the constitutional concept of the

4 federation itself. Then the second reason which was quoted by the

5 Constitutional Court was the composition of the federation itself and the

6 constitutional definition and legal system or regime of a state territory.

7 Next we come to the organ which decided upon the change of borders

8 or frontiers, which was an unauthorised one. Then we come to Article 3

9 which changes the constitutional status of a republic, and finally, it is

10 the entire latter part of the constitution determining the -- what we

11 called the revisional proceedings to amend the constitution and included

12 Articles 398 and 403. And this is what the arguments of the

13 Constitutional Court put forward were when it came to the concept of the

14 federation.

15 The concept of the federation was determined in Article 1 of the

16 constitution of the Socialist Federal Republic of Yugoslavia, and the

17 first basic principles set out there. And article 1 says: "The Socialist

18 Federal Republic of Yugoslavia is --" I think that you have this, the

19 translation of it. "The Socialist Federal Republic of Yugoslavia --" as I

20 was saying -- I'll try and speak more slowly -- "is a federal state having

21 the form of a state of community of voluntarily united nations and their

22 socialist republics and of the socialist autonomous provinces of Vojvodina

23 and Kosovo which are constituent parts of the Socialist Republic of Serbia

24 based on the power of and self-management by the working class and all

25 working people. It is at the same time a socialist self-management

Page 35056

1 democratic community of people and citizens and of all -- and of nations

2 and nationalities having equal rights."

3 So this is a very idealised definition of the state, but there is

4 a stable nucleus within it. And that is the federation, that is to say

5 the federal state, is sovereign and that the reason for the federation to

6 exist is the multi-ethnic character of the country. So each nation and

7 nationality voluntarily is united within that federal state and therefore

8 that federal state is by definition multinational, multi-ethnic.

9 According to this definition, it is not a mechanical conglomerate

10 of sovereign republics. It wasn't the sovereign republics that gave up

11 their sovereignty to the advantage of having a sovereign state. On the

12 contrary, the federation is the sole sovereign element here. So the

13 federation is the federal republic itself. It has the quality of both a

14 state externally speaking and internally speaking.

15 The first principles state why Yugoslavia is or was a federation.

16 It was a federation because it was multinational, multi-ethnic, a

17 multi-ethnic state. And because the national question in 1943 when it was

18 constituted as a federation was the basis for a federal structure of the

19 country.

20 At the second session of AVNOJ, the anti-fascist Council of

21 National Liberation of Yugoslavia, known as AVNOJ, it was the wartime

22 parliament, which was the sole central organ of power and authority that

23 was established during 1941 and 1945, made the decision to have the

24 national question of Yugoslavia resolved in such a way that Yugoslavia

25 would be constituted according to the federal principle.

Page 35057

1 Yugoslavia, since its inception in 1918, whether it was called the

2 Kingdom of Serbs, Croats, or Slovenes, whether, by 1929, the Kingdom of

3 Yugoslavia as it was called then, from 1929 to 1941, it was a unitarian

4 state. It was only in 1943, although it was a multi-ethnic state,

5 multinational state and there were proposals then in that kind of

6 Yugoslavia for Yugoslavia to be constituted on the federal principle even

7 then in those days, it was only in 1943, in order to resolve the national

8 question on the basis of national sovereignty, that a modus vivendi was

9 found for that resolution and that modus was Lenin's principle of the

10 right of every nation to self-determination until secession, and that

11 empty phrase was contained in the AVNOJ decisions and all the Yugoslav

12 constitutions of the various Yugoslavias.

13 So from 1946, the 1943 one, 1963 one, the 1974 constitution. So

14 it was the nations, the ethnic groups within federalised unitarian state,

15 as it had been up until then, in such a way as each nation received its

16 republics. So nations existed first and foremost and then republics were

17 constituted to fit those nations. In other words, the Yugoslav federation

18 was not an aggregation, an aggregate composition of individual states,

19 like the United States, for example, came into being, or the Swiss

20 federation, for example, or the German federation as another example. It

21 -- through devolution. So these are two well known ways of creating a

22 federation established by Kenneth Ware in his day in his classical book

23 Federal Government, the method of aggregate or devolution, and Yugoslavia

24 came into being through the method of devolution. The nations existed

25 first, the republics came second, and at that -- this second session of

Page 35058

1 AVNOJ, the borders and frontiers were established between the republics

2 and it was only the Republic of Bosnia-Herzegovina which --

3 MR. NICE: I think I must make three observations. The witness is

4 going really quite fast.

5 THE INTERPRETER: Interpreters agree. Thank you.

6 MR. NICE: Second, I observe, without more, that the evidence is

7 coming in undivided blocks, contrary to the approach that Your Honour

8 indicated was preferred by the Chamber yesterday.

9 Third, when we first saw the name of this witness on the accused's

10 list of proposed witnesses, we invited the Defence to provide an expert

11 report. I'm not going to seek to stop any of the evidence being given now

12 that the witness is here, but I have to observe that it would have been

13 infinitely easier to have dealt with this material had there been a

14 detailed report served in advance.

15 JUDGE ROBINSON: The first matter. Professor, you are speaking a

16 bit fast, and you have to take account of the interpreters. So speak more

17 slowly.

18 Secondly, Mr. Nice, yes, I agree that the evidence is coming in in

19 a manner that is contrary to the mode that I outlined yesterday, but I

20 myself find it quite interesting, and I'm following it.

21 But, Mr. Milosevic, try to get the witness to give his answers in

22 a shorter version. That's always better. It's only because I personally

23 find it interesting why I haven't stopped. It is not consistent with the

24 manner that I like, and probably because it's a kind of academic

25 constitutional discourse why I haven't intervened.


Page 35059












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Page 35060

1 But, Professor, I'd like you to give shorter, shorter answers.

2 Third, Mr. Nice makes the point that it would have been better for

3 this witness to have been treated as an expert so that a report could have

4 been provided for the benefit of the Chamber, but that, as we have said

5 before, Mr. Nice, is essentially a matter for the Defence. If they want

6 to bring him as a -- as a fact witness, then his evidence will be assessed

7 in that way.

8 But do try to give shorter answers, Professor.

9 THE ACCUSED: [Interpretation] Let us just understand each other

10 over one matter. About the third point you made, Mr. Robinson. Without a

11 doubt, Professor Markovic would be the best expert because he's the best

12 constitutionalist on the territory of the former Yugoslavia, and that is a

13 generally recognised fact. We can never question or challenge that. But

14 I am bearing in mind the fact that -- a fact that I cleared up with him at

15 the very beginning when I set the thematical groups that he was going to

16 talk about. He was a direct participant in all these events and therefore

17 valuable as a witness who took part in all these events. So he is a

18 witness of fact.

19 It would be quite another matter had he not taken part in any of

20 these things and we were just using his academic knowledge per se, but he

21 was a participant, and in that sense his testimony is all the richer. And

22 on the other hand, as this is really the best constitutional expert that

23 we have who can speak about and address Yugoslav issues, everybody will

24 have the chance of asking him any questions whatsoever and his answers are

25 so transparent and can be checked out that they can always be assessed and

Page 35061

1 evaluated on the basis of full competence and authority that any other

2 witness could have. He's the best kind. And everything that he says is

3 verifiable. So he is a witness of fact and an expert in his field and

4 that is not a shortcoming of his. I hope that that is his worth and will

5 clarify matters for us.

6 JUDGE ROBINSON: But for the fact that he's testifying as to

7 certain facts, it occurs to me that you might have offered him to the

8 Prosecution in their search for an expert. Nonetheless --

9 MR. NICE: Your Honour, if I -- I'm so sorry. There is actually a

10 serious difficulty here if any of these issues ultimately needs -- any of

11 these expert issues ultimately needs to be resolved, and I don't conceive

12 that any of the ones actually covered so far necessarily does, but if they

13 do need to be resolved the question will arise whether this evidence, not

14 preceded by an expert report, should in fact qualify as expert evidence.

15 The Chamber will remember that Professor Kristan was stopped from

16 giving evidence of an expert nature in respect of an issue that probably

17 does need to be resolved and for which we have to get evidence because

18 none has been available. And so although I'm not going to stop or seek to

19 stop this witness giving evidence, the status of his evidence when his

20 evidence is concluded may be something we should review, because I'm not

21 -- I certainly don't concede the characterisation of this witness that

22 the accused has volunteered, not at all. I'll deal with that when I

23 cross-examine him. But in any event, the question will arise, is his

24 evidence before you in the form of expertise that you can rely on, and it

25 may be that the answer to that will be no.

Page 35062

1 JUDGE ROBINSON: Yes. We have considered the comparison between

2 his position and that of Judge Kristan, and it is something that we are

3 sensitive to.

4 JUDGE BONOMY: May I ask two things. Mr. Nice, Professor Kristan

5 was not able to give evidence on matters in which he was personally

6 involved. Is that the position?

7 MR. NICE: Yes. He was involved to an extent in relation to

8 matters --

9 THE INTERPRETER: Microphone for Mr. Nice, please.

10 MR. NICE: He was involved in matters related to Kosovo.

11 JUDGE KWON: And that as an expert witness.

12 MR. NICE: Expert witness.

13 JUDGE BONOMY: Yes. But there might have been a distinction to be

14 made in the character of his evidence into -- or it might have been

15 characterised in two parts as, first of all, expert evidence insofar as he

16 had to research it but evidence of fact insofar as he was a participant,

17 similar to the witness before us at the moment.

18 MR. NICE: It might have been had he been allowed to give the

19 evidence but he wasn't allowed to --

20 JUDGE BONOMY: Yes, but perhaps that was the distinction that

21 wasn't noted at the time. I don't know whether that can be resolved later

22 but it may have been a distinction which would have enabled him to give

23 evidence.

24 MR. NICE: Well, we tried every method we could to have him give

25 evidence and indeed returned to the topic on, I think, two or three

Page 35063

1 occasions.

2 JUDGE BONOMY: All right. Thank you, Mr. Nice.

3 The second question was for the Professor. The concept that's

4 contained in the theoretical basis for the establishment of the Republic

5 of Yugoslavia, the concept of the national right to self-determination

6 until secession is a concept I have great difficulty with. Can you

7 elaborate on that for me and explain exactly what is meant by the national

8 right to self-determination in this context where there are several

9 national ethnic groups involved in the one ultimate sovereign state?

10 THE WITNESS: [Interpretation] I shall try to speak slower and to

11 speak more succinctly as well. I wanted to draw a vivid picture of all of

12 this for the Court, but of course I can be much briefer on all these

13 matters.

14 What is meant by this, the right of every nation, every people to

15 their own republic? Instead of having one multi-ethnic unitary state, now

16 every one of the constituent nations, and when the federal state became

17 into being in 1943 at the second session of AVNOJ, every one of them got

18 its own state, its own republic, and it was named after the majority

19 people. The only exception was Bosnia-Herzegovina where not any one of

20 the constituent peoples had an absolute majority, and that is why they

21 were constituted as a republic on the basis of the historical principle,

22 because it existed within those borders from the Berlin Congress.

23 Now, let me continue why the Constitutional Court invoked Article

24 1. The Constitutional Court believed -- I mean, I took part in all of

25 this. I know what the arguments put forth were. The Constitutional Court

Page 35064

1 thought that according to Article 1, the mainstays of the right of

2 self-determination were the constituent Yugoslav peoples. There were five

3 constituent Yugoslav peoples or nations when the federal Yugoslavia came

4 into being, and that can be seen from the coat of arms. There are five

5 flames that all come together into a single fire, and this was meant to

6 show that Yugoslavia, although it is multi-ethnic, is united. It was only

7 in 1963 that the sixth flame was added to the coat of arms of Yugoslavia,

8 which was supposed to denote the sixth Yugoslav nation, and those were the

9 Muslims.

10 Therefore, Article 1 was invoked in the following way: It is only

11 on the basis of previously set principles that the constituent peoples of

12 Yugoslavia can only be sovereign and only secede.

13 The second question was structure. Article 2 mentions

14 specifically all six federal units. That is in numerous clauses, a set

15 number, neither more, neither less. So if any one of the republics were

16 to leave, that would disrupt the structure of the federation that was

17 established in Article 2 of the constitution. Then the Constitutional

18 Court also invoked the violation of Article 5. Article 5 stipulates the

19 territory of the state, and it says that the territory of the Socialist

20 Federal Republic of Yugoslavia is a single whole and that it consists of

21 the territories of the socialist republics.

22 So there is no federal district, as is the case in South America

23 or in the United States of America. Its territory is the territory of all

24 the federal units of all the republics. And according to Article 5,

25 subparagraph 4 -- or, rather, subparagraph 3, sorry, it can be changed

Page 35065

1 with only the consent of all the republics and autonomous provinces.

2 Then the fourth argument that was put forth by the Constitutional

3 Court was that according to the constitution of the SFRY, it is only the

4 organs that were envisaged to do so that can deal with that, and that is

5 in accordance with Article 283 of the constitution. 283, subparagraph 4.

6 It is the Assembly of the SFRY shall decide on alterations of the

7 boundaries of the Socialist Federal Republic of Yugoslavia because

8 secession changes state borders. Concretely on behalf of the SFRY

9 Assembly, it is the federal Chamber, that is to say the lower house of the

10 federal parliament, that decides about this, and that is in accordance

11 with Article 285, subparagraph 6 of the federal constitution.

12 And finally, any change in material constitutionality, any change

13 in the concept of the federation or the structure of the federation or

14 changes in state territory, an unauthorised agency that decided on the

15 change of a state border, any kind of material change of constitutionality

16 means changing it in contravention of the review proceedings that were

17 envisaged for changing the constitution, and that was envisaged in

18 Articles 398 and 403. The Constitutional Court thought that all of these

19 articles had been violated.

20 Last but not least, although this was not under the Constitutional

21 Court of Yugoslavia, the secessionist acts actually violated the

22 constitutions of the republics that were breaking away from Yugoslavia.

23 Every one of these constitutions, not to go into all of their articles,

24 both of Croatia and of Bosnia-Herzegovina, had the two following

25 provisions --

Page 35066

1 JUDGE ROBINSON: We are coming to the time for the break, and

2 Mr. Milosevic, when we resume, I want the testimony to proceed on the

3 basis of question and answer. It's not a tutorial. This is not a

4 tutorial. It's not a lecture. So we -- the evidence will be more

5 intelligible if it proceeds on the basis of questions from you and short

6 answers from the professor.

7 Mr. Nice.

8 MR. NICE: Two last points on the procedure and I hope I shan't

9 have to raise them again. The accused's answer several minutes ago would

10 certainly be consistent with his knowing full well that this was an expert

11 witness, getting him in as a fact witness, not serving a report in

12 advance. The evidence that the witness is giving is clearly expertise, as

13 evidenced by, and this is my second point, to talk about the 1974

14 constitution as an example, a constitution he did not draft, is to be

15 giving evidence of fact. I will do the best I can to cope with this

16 evidence and we'll perhaps be in a position to review the arguments about

17 its status, expert or otherwise, when it's completed.

18 JUDGE ROBINSON: Yes. We will take the break now. Twenty

19 minutes.

20 --- Recess taken at 10.36 a.m.

21 --- On resuming at 11.00 a.m.

22 JUDGE ROBINSON: Mr. Milosevic, let's continue with questions from

23 you followed by short answers where that's possible. But we don't want to

24 have a lecture. It's not a university tutorial.

25 THE ACCUSED: [Interpretation] I understand, Mr. Robinson.

Page 35067

1 However, please bear in mind that my question was what were the reasons

2 that the Constitutional Court of Yugoslavia mentioned in its decisions,

3 and Professor Markovic simply had to present these reasons, because that

4 is very important.

5 MR. MILOSEVIC: [Interpretation]

6 Q. Professor Markovic, am I right if I say the following: When you

7 presented these reasons, they actually involve four groups of reasons,

8 namely, those that have to do with the concept of the federation;

9 secondly, the structure of the federation as you explained; fourthly, [as

10 interpreted] reasons that have to do with the territory of Yugoslavia, and

11 reasons that have to do with the jurisdiction of those who are supposed to

12 pass the decisions. Is it these four basic groups of reasons that were

13 taken into account by the Constitutional Court of Yugoslavia when ruling

14 on the unconstitutionality of these enactments?

15 THE INTERPRETER: Could both speakers please slow down.

16 JUDGE ROBINSON: Professor, the interpreters are asking you to

17 slow down, and the same thing for Mr. Milosevic.

18 THE WITNESS: [Interpretation] Yes, those were the reasons. And as

19 far as the federation is concerned, the secessionist acts also redefined

20 the federation as such, and these involved changes of material provisions

21 of the constitution that were not envisaged by the constitution itself,

22 and therefore these were violations of Articles 398 and 403 of the

23 constitution.

24 I was interrupted at the point when I said that these secessionist

25 acts actually violated the constitutions of their own republics,

Page 35068

1 especially two provisions; namely, that each and every one of these

2 republics is within the Yugoslav federation, and the second provision that

3 says that the territory of that republic is an integral part of the single

4 territory of the federation.

5 Q. Thank you. Could you please clarify the following for me now: In

6 view of the answer you gave me that had to do with the fundamental

7 principles of Yugoslav federalism, when you said that it was a fact that

8 it was a multi-ethnic state and that therefore it is the people or nations

9 that had the right to self-determination, you explained that there were

10 five nations in the constitution of Yugoslavia, defined as nations,

11 Yugoslav nations; that is to say Serbs, Croats, Slovenes, Macedonians, and

12 Montenegrins. Later on, several decades later, there was a sixth people

13 that were qualified in this way by the constitution, and those were the

14 Muslims; is that right?

15 A. Yes, that's right.

16 Q. Tell me now, what was the position of the Serb people in Croatia?

17 Were the Serb people -- did the Serb people enjoy the position or the

18 status of a people or a national minority in Croatia on the basis of

19 Croatian constitutions?

20 A. At the second session of AVNOJ, when the federalisation of

21 Yugoslavia was spelled out, the constituent peoples were specifically

22 stated. The Serb people are a constituent nation, regardless of whether

23 they live in Serbia or some other republic. So therefore they are a

24 constituent people. Also, it works the other way around. The Croat

25 people are a constituent people regardless of where they live. The

Page 35069

1 Macedonian people or the Macedonian nation, regardless of the republic

2 they live in. So even in Croatia where there were a significant number of

3 Serbs, and in Bosnia-Herzegovina, Serbs were a constituent people or a

4 constituent nation. As a matter of fact, the constitutional definition of

5 the Republic of Croatia and the Republic of Bosnia-Herzegovina

6 specifically says that the Republic of Croatia is the state of the

7 Croatian and Serb peoples, and the constitution of Bosnia-Herzegovina says

8 that Bosnia-Herzegovina is the state of the Muslim, Croatian, and Serb

9 peoples. So the Serb people cannot have the status of national minority

10 because they did not realise their right to a state anywhere else but in

11 the federation of Yugoslavia.

12 Q. And what about this right of self-determination of the Serb people

13 in Croatia or, rather, in Bosnia-Herzegovina? How is it expressed? How

14 is it treated from a constitutional point of view?

15 A. The right to self-determination, first and foremost, was expressed

16 in the following way: First and foremost, when the authorities of Croatia

17 were made up, there was supposed to be proper representation. Also in

18 Bosnia-Herzegovina. So the ethnic composition was supposed to be

19 reflected in the relevant authorities, and that is where this

20 constitutionality was expressed too. But constitutionality was

21 particularly provoked by the act of self-determination of the republic as

22 a territory, not the self-determination of a constituent people that is

23 the only holder of that right. So it is the people, it is human beings

24 that are the holders of this right, not dead territory.

25 Q. So a territory could not be a holder of sovereignty. I'm talking

Page 35070

1 about the constitution, not your convictions.

2 A. I'm talking about the constitution, too, and I was talking about

3 AVNOJ, but I'm afraid that I will be reprimanded for lecturing again. At

4 the second session of AVNOJ there were no republics, there were only

5 constituent peoples. So in order to have these people realise their

6 right, they were constituted in republics, but republics did not fully

7 overlap the ethnic criterion. As far as Bosnia-Herzegovina is concerned,

8 Croatia, et cetera, there -- it is only Slovenia that was more or less a

9 monoethnic state. And also in a way Macedonia, although Albanians who are

10 a -- in Macedonia a considerable part of the population is Albanians, but

11 the Albanians are a national minority as they already have a state of

12 their own so they do not have the right as a constituent people.

13 JUDGE BONOMY: I'm beginning to understand this far better now,

14 Professor. One question, though, that would assist further: What would

15 be the mechanism for a national group to secede?

16 THE WITNESS: [Interpretation] The right to secession was included

17 in the right to self-determination based on the first chapter of basic

18 principles. Let me tell you more about the 1974 constitution. It had two

19 parts. The first one was basic principles, and the second one was -- were

20 the norms, and these basic principles were the --

21 JUDGE BONOMY: Let me interrupt, because it's a very specific

22 question, and I would rather you gave me a simple answer.

23 I can understand how a republic might try to secede, might have a

24 mechanism for secession. It might have a -- it might carry out a

25 plebiscite to discover the wishes of its people, and it might try to

Page 35071

1 secede, albeit it is breaking the constitution in some way, but the will

2 of the people of this entity, the republic, is being recognised. What

3 concerns me is how you find a mechanism for a national group spread

4 throughout various republics to express a view that they wish to secede.

5 How did -- how was it envisaged that from the SFRY there could ever be the

6 secession of a national group?

7 THE WITNESS: [Interpretation] Very well. The constitution foresaw

8 the right to secession. Secession was possible. However, it wasn't

9 constitutionalised. That right was not regulated by norms. It was not

10 regulated, the process itself, so secession was possible in accordance

11 with the same mechanism that was envisaged for the changes of the

12 constitution. So prior agreement by the republics and then the change of

13 the constitution, where the definition of the federation would be changed,

14 its structure and its borders. Therefore, secession was possible but in

15 accordance with the procedures set forth for the change of the

16 constitution.

17 JUDGE BONOMY: Thank you.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Professor Markovic, I would like us to turn to some of the most

20 important arguments contained in the most important decisions of the

21 Constitutional Court of Yugoslavia, and those decisions which declared

22 certain enactments on secession unconstitutional.

23 THE ACCUSED: [Interpretation] To you, gentlemen, I would like to

24 say that we would now turn to the decisions which are contained in tabs 20

25 to 29. In order to be more specific and to quote the exhibits themselves,

Page 35072

1 I'm now taking the exhibit in tab 20, which is a photocopy of the Official

2 Gazette of Yugoslavia, which was a publication publishing all enactments

3 adopted in Yugoslavia. Therefore, in tab 20, we have a decision by the

4 Constitutional Court of Yugoslavia addressed to the Assembly of the SFRY.

5 MR. MILOSEVIC: [Interpretation]

6 Q. Professor Markovic, do you have that exhibit before you?

7 A. I do.

8 Q. I will quote some parts of this decision now and then put some

9 questions to you.

10 At the very beginning, it is stated that the Constitutional Court

11 in such-and-such and such, in a decision numbered such-and-such, decided

12 that the Assembly of the SFRY, by way of the -- by an act of the federal

13 Chamber of the SFRY, initiated proceedings before the Constitutional Court

14 of Yugoslavia as the authorised proponent pursuant to Article 387,

15 paragraph 2, item 1, to assess whether amendments to the constitution of

16 Slovenia are contrary to the constitution of the SFRY.

17 Therefore, it is stated here who the authorised organ is. In this

18 case it was the Assembly of the SFRY, and this authorised organ initiated

19 proceedings to assess the constitutionality of the amendments to the

20 Slovenian constitution. Is that the established constitutional procedure?

21 Are there any violations here in view of how the proceedings were

22 initiated?

23 A. No, no violations whatsoever. The authorised proponent, pursuant

24 to Article 387, commenced this action to assess constitutionality.

25 When we're speaking of the republic constitution, it did not have

Page 35073

1 to be in compliance with the federal constitution, which is a nonsense in

2 any federal state, because in every federal state federal constitution is

3 the supreme act. Therefore, the Constitutional Court had to assess

4 whether these amendments to the constitution of Slovenia were contrary to

5 the constitution of the SFRY.

6 Q. All right. Well, this second part is a long text of the decision

7 itself. I will skip the greatest part of this text because it would take

8 too much time, and I will quote only several things, several items towards

9 the end of item 4, which is the final part of the decision itself.

10 Therefore, towards the end of item 4. Fourth paragraph from the end of

11 item 4.

12 So I will quote: "In view of the above-mentioned provisions of

13 the SFRY Constitution," because the provisions themselves are listed here,

14 and so on. It states that when it comes to the change of borders, the

15 Assembly has the right to decide on that. And then it says: "... the

16 Constitutional Court of Yugoslavia believes that the right to

17 self-determination, including the right of secession, are the matters to

18 be decided upon by the constitution of the SFRY, not the constitution of

19 the republic. In view of the Constitutional Court of Yugoslavia, this --

20 the fulfillment of this right can be decided only jointly, with the

21 consensus of all socialist republics and autonomous provinces."

22 Have you found this quotation?

23 A. I have.

24 Q. Is this ruling of the Constitutional Court in strict compliance

25 with the constitution of Yugoslavia?

Page 35074

1 A. Yes.

2 JUDGE ROBINSON: Mr. Milosevic, you must ensure that the Chamber

3 has found --

4 MR. NICE: Page 7.

5 JUDGE ROBINSON: It's page 7. Yes. Yes, proceed.

6 MR. MILOSEVIC: [Interpretation]

7 Q. So this is the point that the Constitutional Court states, that

8 this is a matter for the constitution of the SFRY, not the constitution of

9 the republics, and that the fulfillment of the right to self-determination

10 can be decided only jointly with the consensus of all socialist republics

11 and autonomous provinces.

12 A. Yes, that's right. This is in full compliance with everything I

13 have stated earlier about the spirit and the letter of the constitution.

14 The constitution of Slovenia, in one of its -- in one of its amendments,

15 stated that they themselves will determine their right to

16 self-determination and secession. And the right to self-determination was

17 reduced to the right of secession. So they took only one component of

18 this concept that has several components. And the Constitutional Court

19 believed that, yes, it was possible to realise their right to

20 self-determination but only based upon the joint consensus of all federal

21 elements, all constituent federal units.

22 This is nothing new. This is a concept that was established over

23 a hundred years ago by the colonial secretary when New Scotia wanted to

24 secede from Canada. Then the same opinion was taken by the English

25 parliament when Western Australia wanted to secede from Australia. And

Page 35075

1 the same position was taken by the US Supreme Court in a decision Texas

2 versus White in 1868. So secession is possible but upon prior consensus

3 and in accordance with previously set procedure, not based on a decision

4 of just one federal unit.

5 Q. Now we will go back to the decision. So the procedure fulfilling

6 the right to self-determination and secession requires that there be a set

7 procedure taking into account not just the interests of one republic but

8 all of them together within SFRY as a joint state of all of these

9 republics. Therefore, the regulation of the rights and procedures for

10 fulfilling the rights to self-determination, including the right to

11 secession, has to do with SF -- matters of SFRY, its borders, its internal

12 relations. It also has to do with its position within the international

13 community and the rights and obligations set forth in international

14 agreements concluded by the SFRY.

15 So are all of these reasons the reasons which support the position

16 that it was not possible without the consensus of all nations and all

17 republics within the federation and without the change of the constitution

18 to fulfil legally this right?

19 A. Yes. These are the four reasons. This unilateral act of

20 secession violated various provisions of the federal constitution, namely

21 the provisions having to do with its structure, territory, and the rights

22 emanating from the international agreements concluded by the federal

23 state.

24 Q. Therefore, was it possible for one republic to secede if the

25 procedure prescribed by the Constitutional Court was applied?

Page 35076

1 A. Yes. Secession was possible, but by not -- but not by a

2 unilateral act of one republic. Based on their decision, a motion should

3 have -- a proceedings should have been set in motion where consensus would

4 have been required of all republics within the federation. The same

5 position was taken by the Constitutional Court of Canada pertaining to the

6 request of Quebec to secede.

7 Q. Therefore, in Canada, one decade after the events in Yugoslavia,

8 the Constitutional Court in that country took the same position?

9 A. Yes, that's right, because the nature of the federal state is one

10 and the same regardless of this -- of where this federal state is located,

11 on what continent. The concept is the same.

12 Q. Thank you, Professor Markovic. We will not dwell further on this

13 exhibit.

14 THE ACCUSED: [Interpretation] Mr. Robinson, since you asked me to

15 tender exhibits individually, I'm hereby tendering this exhibit of the --

16 actually, the decision of the Constitutional Court of Yugoslavia, which

17 can be found under tab 20, and it's in English. I believe there should be

18 no problems.


20 MR. NICE: Maybe it's already an exhibit as 526, tab 6. So it may

21 be a mere duplication, but it's a matter for the Court. I don't object to

22 it.

23 JUDGE ROBINSON: Unusually, you're ahead of Judge Kwon.

24 MR. NICE: It's an infrequent honour and it's only ever -- it's an

25 infrequent honour and it's only ever achieved by Ms. Dicklich, not by me.

Page 35077

1 JUDGE ROBINSON: So that's already exhibited. We'll give a number

2 to the entire binder, and then we'll deal with the exhibits later -- the

3 tabs.

4 JUDGE BONOMY: Can I ask the Professor, what was the particular

5 issue in this decision? There was an act -- or several acts passed by the

6 republic which were said to be contrary to the constitution. What was the

7 most serious of these? Was it seizing the power to declare a state of

8 emergency? Could you explain to me, what was the most significant act

9 that was challenged on this occasion?

10 THE ACCUSED: [Interpretation] I apologise, Mr. Bonomy. This

11 procedure was the procedure to assess constitutionality of amendments 9 to

12 90, amendments to the constitution of Slovenia. And you can find this in

13 the first section of the decision of the Constitutional Court. In the

14 first paragraph under item 1, the first section.

15 JUDGE BONOMY: But this wasn't a case of a declaration of

16 independence or sovereignty. This was a case of specific laws being made

17 which were declared to be unconstitutional, and what I was wanting to find

18 out, of these 9 to 90 laws or amendments, which was the most significant?

19 THE WITNESS: [Interpretation] You see, as you stated so

20 eloquently, there were a lot of amendments here, and some of them were, in

21 view of the Constitutional Court, contrary to the federal constitution.

22 However, it is difficult to assess the level of unconstitutionality,

23 because anything that is unconstitutional, for a lawyer, is invalid. So

24 it's difficult to assess the degree. But the most flagrant violation of

25 the federal constitution was the violation contained in amendment 48 to

Page 35078

1 the constitution of Slovenia, which set forth that the Republic of

2 Slovenia in its constitution could regulate all the issues that had to do

3 with the right to self-determination. So Slovenia itself had the ability

4 to decide on the secession from Yugoslavia, and which is an issue that can

5 only be covered by the federal constitution.

6 JUDGE BONOMY: Now, Professor, where is that referred to in the

7 judgement? Where is that particular decision referred to and where is the

8 -- where do I find the statement by the Constitutional Court that that

9 was unconstitutional?

10 THE WITNESS: [Interpretation] These were amendments,

11 constitutional amendments. You can see this in item 4, passage 10,

12 starting from the above, the Constitutional Court of Yugoslavia believes

13 that items 1 but not 3 of amendment 48 and amendment 72 to the

14 constitution of Slovenia are contrary to the constitution of Yugoslavia.

15 JUDGE BONOMY: But how do I find out what that amendment was? How

16 do I find out what it was that was proposed in the amendment?

17 THE WITNESS: [Interpretation] Well, once again with all due

18 apology, I hope you will not consider this to be a lecture but simply an

19 answer to your question.

20 In item 1 of this decision, it is stated who initiated the

21 proceedings, under Roman I. And then under Roman II, item 1, you can see

22 what were the reasons of the body initiating the proceedings.

23 JUDGE BONOMY: What I'm trying to find out is what it was that was

24 actually being challenged. What was the law that was -- or the amendment

25 to the law that was being challenged? I mean, one example is taking the

Page 35079

1 authority to declare a state of emergency. I can see that in the

2 document. But the one you've described as part of number 48, I can't see

3 in the document what that was.

4 THE WITNESS: [Interpretation] Well, you can't see it because the

5 amendments have not been attached to the constitution of Slovenia. There

6 are a lot of them, a large number. Ninety, in fact. You should have them

7 with this but this would be an enormous bulk of material, an enormous book

8 had you had all the amendments attached.

9 JUDGE BONOMY: But you see, in the presentation of a focused case,

10 a focused argument about the constitution and its amendment, one would

11 expect the person presenting the case to say, "This is what Slovenia tried

12 to do, and in particular it tried to change the law on this and this, and

13 these are the most important ones," and as a matter of principle in

14 dealing with that, the Constitutional Court made the statements which we

15 have been directed to by Mr. Milosevic, but it's in -- it loses a bit of

16 its context when you don't see exactly what was the issue, especially when

17 you have described a process which occurred over a period of time, and you

18 very carefully explain to us that there were four stages in this and that

19 the stages differed in Slovenia from Croatia, for example. And it would

20 have been interesting to see that develop. But in any event, I partially

21 understand for the moment, and I don't want to take up more time on this.

22 JUDGE KWON: If I can further take it up. Mr. Markovic, Professor

23 Markovic, is this decision dealing with only the constitutional amendment

24 of Serbia -- Slovenia and the synopsis, contents of the amendment is dealt

25 with in part 2.1? So my question is whether there's another Court

Page 35080

1 decision which dealt with the various enactment, laws of Slovenia, other

2 than this one.

3 THE WITNESS: [Interpretation] Of course, certainly. And I said a

4 moment ago that there were four stages. This just was intimated by these

5 amendments, that is to say where Slovenia was heading, what direction it

6 was taking. Now the next step would be to look at the four enactments

7 which meant the actual act of secession.

8 Here Slovenia says that it would itself in its constitution set

9 the provisions and procedure to realise its rights to self-determination,

10 but the enactments were to follow, and this was in 1989, if you note,

11 whereas the enactments in 1991 -- 1990 and 1991 was when the actual

12 secession took place.

13 THE ACCUSED: [Interpretation] Mr. Kwon, would you bear in mind the

14 fact that we should note first and foremost which provisions of which

15 amendments were violating the constitution and that all that is listed in

16 the decision in the previous portions that I did not quote myself.

17 For example, it says here, and that's the beginning of point 4 or

18 section 4 that I quoted towards the end, but it says at the beginning of

19 the section 4: "By the provisions of --"

20 THE INTERPRETER: Could the speaker repeat, please. Could

21 Mr. Milosevic please repeat this portion.

22 JUDGE ROBINSON: Look at the transcript. The interpreters are

23 asking you to repeat.

24 THE ACCUSED: [Interpretation] Very well. At the very beginning of

25 point 4. I quoted what the Constitutional Court said at the end, but it

Page 35081

1 explains at the beginning and says: "By the provision of point 4, item 1,

2 subparagraph 3 of amendment 68 to the constitution of the Socialist

3 Republic of Slovenia stipulates that the Assembly of the Socialist

4 Republic of Slovenia regulates questions and procedures in connection with

5 implementing the right to self-determination."

6 That means that the court has observed what it is in the Slovenian

7 amendment that gives rise to this and then assesses that it is

8 unconstitutional. And I quoted to you a moment ago the reasons set forth

9 for which the Constitutional Court considers them to be unconstitutional,

10 because it just doesn't say this is unconstitutional, it gives reasons for

11 that. It states its reasons. And Professor Markovic repeated those

12 reasons a moment ago.

13 I hope that that is quite clear now, because a description of the

14 decisions of the Constitutional Court implies a description of the

15 amendments that are being challenged, what they are saying and why they

16 are being challenged and why they are ultimately unconstitutional.

17 JUDGE BONOMY: The matter is now clear to me, Mr. Milosevic, but

18 as we try to listen to the question and answer, it's very difficult to

19 read through the document, which we haven't seen in advance, and identify

20 that paragraph. But that paragraph does answer the question. It's a pity

21 it's taken so long to get to that point.

22 THE ACCUSED: [Interpretation] Very well. That means we can

23 proceed, can we.

24 MR. MILOSEVIC: [Interpretation]

25 Q. Take a look at the next tab, Professor Markovic, tab 22, which is

Page 35082

1 a decision of the Constitutional Court of Yugoslavia, and we have a

2 photocopy of the Official Gazette here of the SFRY, and I think we have a

3 translation of it, too. The photocopy of the Official Gazette and the

4 decision to assess the constitution and the declaration of the sovereignty

5 of the Republic of Slovenia.

6 JUDGE ROBINSON: Tab 22, Mr. Milosevic.

7 THE INTERPRETER: Interpreters note there are no translations of

8 the Official Gazette. Thank you.

9 THE ACCUSED: [Interpretation] No, I mean 21. Sorry, Tab 21 I

10 meant.

11 MR. NICE: If the interpreters don't have translations, they will

12 need them and they are available. They should be distributed --

13 THE INTERPRETER: We do have tab 21, thank you.

14 JUDGE KWON: It's separate.

15 JUDGE ROBINSON: Is there another copy for Judge Bonomy?

16 JUDGE BONOMY: I have it. Thank you.

17 MR. MILOSEVIC: [Interpretation]

18 Q. To economise with our time, Professor Markovic, this, too, says

19 that the Presidency of the SFRY and the federal council of the Assembly of

20 the SFRY, which means first the collective head of state and the federal

21 parliament, together in this case, initiated --

22 A. The federal government, too.

23 Q. Yes, the federal government too. So all the federal organs

24 initiated before the Constitutional Court of Yugoslavia the procedure for

25 the assessment of constitutionality and legality of the declaration of

Page 35083

1 sovereignty on the part of the Republic of Slovenia. And then it goes on

2 to explain what the Presidency of the SFRY considers, et cetera, et

3 cetera.

4 And then we come to point 2, an explanation of what Article 1 of

5 the declaration of the sovereignty of the Republic of Slovenia provides,

6 referring to amendments, and I'm only going to quote now partially, or I'm

7 going to quote point 3. I'm going to go on to the point 3 of the decision

8 of the Constitutional Court, which states as follows: "The president of

9 the Assembly of the Republic of Slovenia replied by a letter to the motion

10 for the assessment of constitutionality of the declaration. He pointed

11 out that the organs and working bodies entitled by the manual of the

12 Assembly of Slovenia to prepare the reply to the Constitutional Court

13 consider that the declaration is the act of the Assembly of the Republic

14 of Slovenia which is a democratic and legitimate representation of its

15 people and citizens and that the declaration has been passed on the basis

16 of natural by the constitution of Slovenia recognised right to

17 self-determination."

18 So it's the natural recognised right to self-determination, which

19 is also recognised by international law. The contents of the declaration

20 itself, which affirms the principles of state sovereignty and priority of

21 the constitution and laws of the Republic of Slovenia exclude the

22 jurisdiction of the Constitutional Court of Yugoslavia to assess the

23 constitutionality and legality of legal acts on which the political,

24 economic and legal system of the Republic of Slovenia are based. For

25 these reasons the Assembly of Slovenia and its bodies and therefore the

Page 35084

1 Assembly itself have not closely involved themselves in certain

2 contentions by which the procedure for the assessment of constitutionality

3 of the declaration had been initiated.

4 THE INTERPRETER: As written, interpreter's note.

5 MR. MILOSEVIC: [Interpretation]

6 Q. Now, what can we deduce from this, Professor Markovic? Is it

7 customary -- was it customary procedure for the Constitutional Court to

8 ask the proponent of the challenged decision to state their views about

9 the procedure to reassess the constitutionality of that decision? Was

10 that something the proponent could do?

11 A. That is a component part of the proceedings before the

12 Constitutional Court. The Constitutional Court, before it assesses

13 constitutionality or not or legality or not, seeks opinions from the

14 enactors whose constitutionality is being questioned and challenged. So

15 he asks for their views. As this act was passed by the Assembly of the

16 Republic of Slovenia, then it asked the Assembly of Slovenia itself what

17 it has to say about the alleged unconstitutionality of the enactment

18 stipulated by the proponent.

19 Q. Does it emerge from that that since the Constitutional Court

20 provides an opinion, the Republic of Slovenia in fact does not consider

21 the Constitutional Court to be the competent authority to assess the

22 constitutionality of the enactment in question? Is that it?

23 A. That is the first stage towards secession, when nullification, as

24 it is called, is done of the federal legal system. That is to say, the

25 legal system of the federation is declared null and void, and it is

Page 35085

1 subservient to the federal unit. So the Republic of Slovenia here has

2 said that it is not going to listen to the federal constitution and laws

3 and proclaim the primacy of its own constitution and laws. And in doing

4 that, it could not refer to the federal constitution but, as you see, it

5 refers to its divine right or natural right. It refers to the

6 international pact on citizens and other rights, covenant. But it does

7 not state the actual covenant vesting it with this right.

8 Q. Can an international covenant establish a right of that kind? Do

9 you know of any international covenant that can be the basis upon which

10 one can rely for the furtherance of those rights?

11 A. In this case, since we're talking about a constitutional matter,

12 it can only be the constitution in force. When it comes to a pact or

13 covenant, it implies something quite different. And I should like to

14 stress here and emphasise straight away that self-determination, since

15 1943, has been -- Lenin's empty phrase or platitude on the right of

16 nations, the ethnos -- not populace, the ethnos, the ethnic group -- to

17 self-determination and a state of its own, up until secession. So

18 Slovenia quite obviously understood it that way too and not the right to

19 self-determination, which would be linked to the democratic principle and

20 concept. In international acts and covenants self-determination means the

21 rights of people to decide their own fate. Political decisions, economic

22 decisions, social decisions, cultural development decisions, and so on,

23 and not the right to secession. The right to secession is just one of the

24 components of the right self-determination.

25 Q. Towards the end of this decision, we see that after all the

Page 35086

1 explanations provided, the Constitutional Court referring to the

2 constitution, annuls, declares null and void the provisions, et cetera, et

3 cetera. And then we can see the composition of the decision. It says The

4 president of the court, Milan Buzadzic, that is the judge from

5 Bosnia-Herzegovina, then Hrvoje Bacic, Bozidar Bulatovic, Krste Calovski,

6 Omer Ibrahimagic, Branislav Ivanovic, Pjeter Kolja, Dimce Kozarov, Ivan

7 Kristan, Veljko Markovic, Dusan Ruzic, and Milosav Stijovic. And the

8 president signed, Milovan Buzadzic. That was in 1991. So formally and

9 legally speaking, is that in conformity with the Yugoslav constitution and

10 the laws upon which governed the work of the Constitutional Court and does

11 it indeed nullify or declare null and void the declaration of sovereignty

12 on the part of the Republic of Slovenia?

13 THE INTERPRETER: Could the speakers please slow down.

14 JUDGE ROBINSON: Again Mr. Milosevic and Professor, the

15 interpreters are asking you to slow down. You speak the same language so

16 you tend to overlap. Observe a pause between question and answer.

17 THE ACCUSED: [Interpretation] Very well.

18 MR. MILOSEVIC: [Interpretation]

19 Q. May we go on to tab 22 now, please.

20 THE INTERPRETER: The interpreters note they do not have a

21 translation and might it be placed on the overhead projector.

22 MR. MILOSEVIC: [Interpretation]

23 Q. It is the decision on constitutionality --

24 JUDGE ROBINSON: Mr. Milosevic, there is no translation for this

25 one. Let it be placed on the ELMO.

Page 35087

1 MR. NICE: If there is any question of producing tab 21 at the

2 moment, I have no objection to that. The only possible match that there

3 may be is between this and part of Defence Exhibit 138, but that exhibit

4 is in something of disarray, and Ms. Dicklich can't at the moment find a

5 match, but I have no objection to its production as an exhibit.

6 JUDGE ROBINSON: Thank you.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Professor Markovic could you place the decision on the ELMO,

9 please, the assessment on the constitutionality of the resolution

10 proposing dissolution and independence.

11 I'd just like to quote point 3 in this decision by the

12 Constitutional Court. And may we have it on the ELMO, please. Point 3,

13 please.

14 JUDGE KWON: Professor, look into the monitor or the ELMO, rather,

15 whether it is the right one.

16 THE WITNESS: [Interpretation] Mr. Kwon, I do apologise, but I'm

17 not well-versed in the use of modern technology. All I know is paper and

18 text.

19 JUDGE KWON: You can read the real document which is to the left

20 of you, which is on the electric monitor. Left side. If the usher could

21 help the witness.

22 THE WITNESS: [Interpretation] Point 3.

23 MR. MILOSEVIC: [Interpretation]

24 Q. Professor, take a look at point 3. I'm just going to quote

25 briefly. This is what is says: "By the provisions of Article 2 of the

Page 35088

1 constitution of the SFRY, it has been ascertained that the territory of

2 the Socialist Federal Republic of Yugoslavia is united, is one, and that

3 it is composed of the territories of the socialist republics."

4 JUDGE BONOMY: We're looking at the wrong part of this, I think.

5 MR. NICE: It's the bottom right-hand part of the document, if the

6 usher would perhaps assist, and it will be over to the next page.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Do you have it now? If you look at the ELMO, you'll be able to

9 see whether we're looking at the proper passage, Professor Markovic. It

10 says: "The provisions of Article 5 of the constitution of the SFRY it has

11 been determined that the territory of the Socialist Federal Republic of

12 Yugoslavia is united and one and that it is composed of the territory of

13 the socialist republics, and that the borders of the Socialist Federal

14 Republic of Yugoslavia cannot be changed or altered without the consensus

15 of all the republics and autonomous provinces."

16 And the provisions of Article 283, number 4, it says that the

17 federal republic shall decide about changes in the borders of the SFRY.

18 Professor, Article 5 of the SFRY constitution that is being quoted

19 here, is that the basis for declaring null and void this declaration?

20 A. Yes, that's precisely it. A territory -- the territory of the

21 Federal Republic of Yugoslavia as a federation cannot be altered

22 unilaterally or through informal means. This is a matter that can only be

23 decided upon about the competent organ established by the constitution,

24 which is to be found in point 4 of Article 283, which means the Assembly

25 in this actual fact or Article 285.6, the lower house of the Assembly of

Page 35089

1 the SFRY.

2 Q. And now another quotation towards the bottom of that page, it says

3 that this -- since it is an unconstitutional general act which on the

4 basis of the Constitutional Court of Yugoslavia can no longer be applied,

5 therefore according to the views of the Constitutional Court, the said

6 declaration is not in conformity with the SFRY's constitution because the

7 enactment can no longer be applied and therefore is not -- if it is not in

8 conformity with the SFRY constitution.

9 So once again there we have all the constitutional and legal

10 provisions and reasons. Are there any others, other essential ones, other

11 vital reasons? I think that this is sufficient, because once again the

12 composition of the members of the Constitutional Court has been

13 stipulated, and they say that the declaration is declared null and void

14 for the independence, and the Official Gazette of Slovenia is quoted and

15 they order that this decision be published in the Gazette of the SFRY, and

16 the date is the 9th of October, 1991, by the president of the

17 Constitutional Court.

18 Was that decision made in conformity with the constitutional

19 provisions?

20 A. Yes, in keeping with all the provisions and the constitution

21 itself, because the Constitutional Court of Yugoslavia, which is there to

22 defend the constitution, it cannot itself violate the constitution. So

23 since it is a decision of the Constitutional Court published in the

24 Official Gazette, then it is constitutional. The decision taken thereof

25 is constitutional.

Page 35090

1 Q. We see that the judges from Bosnia-Herzegovina, Croatia,

2 Montenegro, Serbia, as far as I can see, Vojvodina. I cannot see here at

3 the session of the Constitutional Court anyone from Slovenia. Is that the

4 time when somebody did not want to attend or why are none of them there?

5 A. Well, you see, formally Slovenia had seceded on the 8th of

6 October, and it is the 8th of October in 1991 that they relate their

7 independence to. And since it was no longer within Yugoslavia, their

8 interpretation was that its representatives were no longer represented in

9 the federal organs.

10 Q. All right. Let us move on to tab 23, 23A.

11 MR. NICE: Can I suggest that we deal with this tab and don't let

12 us pass to the next one until we've considered it.

13 The accused introduced it as tab 22. In fact, we see that he had

14 marked it or had had it marked as 22A and B, which led to the first

15 confusion because I, I'm afraid, thought we were on 22A and we were on

16 22B. The realities are I may get a translation in English this week, I

17 don't know. Whenever I get a translation, the chance for my -- the

18 opportunity of my being able to consider this and the mass of other

19 material adequately to deal with it by the time I conclude

20 cross-examination of the witness is necessarily limited. I do not know --

21 it's true this is a comparatively short document. I do not know if

22 there's anything else I'm going to want to draw your attention. And if,

23 either A, the translation comes in in practical terms too late for me to

24 deal with it fully, or alternatively, after the witness has concluded his

25 evidence, the question arises whether it should be before you in full or

Page 35091

1 whether it is satisfactory, sufficient, and more desirable that we should

2 simply have his answers as on the transcript.

3 I, on this document, don't express a particularly strong view one

4 way or the other because it is a short document. The problem will become

5 much more acute if we have any substantial documents in which the same

6 translation realities apply. It may be, therefore, that if there is a

7 principled approach to be initiated today, it could being to say not

8 admitted and the matter to be specifically listed and dealt with on a

9 subsequent occasion so that if by chance on a subsequent occasion, whether

10 at the end of this witness's evidence if we've got the translations, or

11 later still, if on such an occasion I wanted to make some point on the

12 document, either to challenge its admissibility or more probably to draw

13 to your attention something that it hadn't been possible to draw to your

14 attention while the witness was here, I could do so.

15 [Trial Chamber confers]


17 MR. KAY: Yes. I notice Your Honours were discussing the matter.

18 There is always the provision for recall of a witness if a point is

19 arising. We're dealing with a relatively small document here. There are

20 people within the Prosecution team who speak this language and can

21 interpret and translate documents. It doesn't have to only come through

22 the official channels to aid Mr. Nice. That must be borne in mind. They

23 may even already have translations of this document to hand within their

24 archives anyway.

25 If there is a point on it, a witness can be recalled. It's often

Page 35092

1 very difficult for the Defence, in assembling what has been a

2 document-heavy case against them, much of which comes from archive

3 material, and the preparation of their own materials, which is going to be

4 document heavy, often working ab initio and working from the basis of

5 witnesses bringing their own documents, which is going to cause a problem.

6 Yes, Judge Bonomy.

7 JUDGE BONOMY: I'm concerned about the question of recalling

8 witnesses. I accept what you say in principle, but I can't leave out of

9 account the sort of mass refusal of witnesses to come to the Tribunal, and

10 one must always have in mind the possibility of a difficulty arising. I

11 don't know if this was one of the witnesses who refused to come or not,

12 but I would like to see a situation where we can deal with things in an

13 orderly way and also ensure that the witness doesn't have to come back.

14 And I'm quite sympathetic to what Mr. Nice says. I also understand all

15 the points that you're making, but at the end of the day the rules are not

16 being complied with here, and it does seem to me that the Prosecutor has a

17 fair point.

18 MR. KAY: The problem is in dealing with a case where the

19 materials we're now looking at are in a language other than that which

20 most of us speak in this courtroom, and we have appreciate that and have

21 some sympathy to it, particularly when the accused is working in his own

22 language and relying on documents that he is producing which will

23 inevitably be in the B/C/S language, the facilities for translation and

24 the resources that are available within this institution are quite

25 limited. They cannot cope with the volume that is being sent their way,

Page 35093

1 but in many respects if, of course, this matter was being tried in the

2 jurisdiction of the accused, this would not be a problem for him and his

3 party.

4 JUDGE ROBINSON: Was this particular document sent for

5 translation?

6 MR. KAY: Yes, they're all in for translation, as I understand it.

7 There are 60 cases within this building, and there's great pressure on

8 those resources. Defence counsel are limited to 1.000 pages a month as a

9 standard norm. I think that puts things into perspective when we're

10 having to deal with, on a single day, this volume of material on important

11 matters that arrive from the very jurisdiction that we're having to try in

12 this court. So I do ask for sympathy.

13 If there are real problems and they go to real issues, then please

14 let the Prosecution make the point.

15 Right. I got the figures wrong: It's 500 pages for the Milosevic

16 Defence are allotted a month, 250 in other cases. This is a resource

17 issue within this building as much as anything else.

18 It's -- it is a problem. This is a witness who is speaking what

19 the content of the material is. We've got translators who are relaying

20 the information, who have copies of the documents before them. It is of a

21 general background nature in relation to the issue, and quite frankly, my

22 submission is the Prosecution can cope and deal with this without making

23 too much of a fuss.

24 Well, we're reading it into the record. We had this in the

25 Prosecution case at times where documents were read into the record that

Page 35094

1 hadn't been translated. It wasn't only a Defence problem in this case.

2 JUDGE BONOMY: Mr. Kay, what's wrong with the suggestion that if

3 it emerges later that there's a point to be made, that the Prosecution

4 can't just come along and make that point and direct our attention to an

5 aspect of this document which they weren't alerted to because of the

6 absence of translation? Do you see anything wrong with that?

7 MR. KAY: They can make a filing on that.

8 JUDGE BONOMY: That, I think, is what Mr. Nice is proposing and

9 that's what seemed to me to be quite sensible.

10 MR. KAY: He was not wanting it not to be made an exhibit in the

11 case, and that I see as being a difficulty, because if there isn't a

12 problem, then we've, on the Defence side, lost a valuable piece -- well,

13 the Judges have lost a valuable piece of evidence or potential valuable

14 piece of evidence.

15 MR. NICE: Can I just add two points? If there is any translation

16 of any document available to us, informal or otherwise, we always make it

17 available. The only English translation of this document that may exist,

18 and Ms. Dicklich is still trying to check on this, will be within the

19 defendants's own exhibit tab 138, which is so poorly organised as to make

20 it difficult to find out whether this document is there.

21 And the second point is it is for the accused. He's chosen to run

22 this case himself. It is for him to have these things in order and he

23 can't plead sympathy.

24 My preference would be not to have the opportunity -- well, I can

25 always have, I suppose, the opportunity to make filings about exhibits

Page 35095

1 that are introduced but the realities are that we are fully stretched in

2 dealing with the Defence case and with this quantity of material.

3 Resources here are not limitless. A better way to ensure that we focus as

4 the Court and as the parties on documents that come in untranslated is for

5 them to remain not exhibited until translated, and what would probably

6 happen is that there would be a time set aside to consider the

7 admissibility of particular documents now translated. We would probably

8 admit them all or concede their admission or without argument but we might

9 want them to raise points. That would be my proposal.

10 JUDGE KWON: Just to get a clearer picture --

11 THE ACCUSED: [Interpretation] Mr. Robinson. Just a second,

12 please.

13 JUDGE KWON: Do you know -- take tab 21, which we received today.

14 Do you have any idea when this document was handed over to the Translation

15 Unit?

16 MR. KAY: No. I'll take instructions.

17 THE ACCUSED: [Interpretation] Mr. Robinson, allow me, please, to

18 clarify this confusion. Mr. Nice says that I ask for understanding. I'm

19 not asking for any understanding. All of these materials were handed in

20 to the translation service on the 9th of December, as far back as that.

21 So I've carried out my obligations.

22 I can have understanding for the fact that the translation service

23 is overburdened, but I will not accept any objection, from the point of

24 view of the presentation of documents, that this was not done in good

25 time. It is out of my hands now.

Page 35096

1 So the 9th of December. And you do the arithmetic. Today is the

2 13th of January. So it's been 35 days since it was handed over. It far

3 exceeds the deadline that you set for the hand-over of documents. That is

4 one point.

5 The second point is the following: I think that the question of

6 acceptability of exhibits cannot be raised at all. How can that question

7 be raised of the acceptability of an official decision of the

8 Constitutional Court? It's a different matter how people are going to

9 appreciate what the decision actually says, but this is a decision of the

10 Constitutional Court of Yugoslavia.

11 JUDGE ROBINSON: We'll consult and give a decision.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: We will mark it for identification pending

14 translation.

15 THE ACCUSED: [Interpretation] Can we proceed?

16 JUDGE ROBINSON: Proceed, yes.

17 MR. MILOSEVIC: [Interpretation]

18 Q. Professor Markovic, could you please look at tab 23. That is the

19 decision on constitutionality of basic constitutional charter of

20 independence of the Republic of Slovenia. And already in the first

21 paragraph it can be seen that it was the federal government that initiated

22 these proceedings before the Constitutional Court, and already in the

23 second paragraph it says --

24 THE INTERPRETER: Could the speakers please read slower. The

25 interpreters do not have a translation.

Page 35097

1 JUDGE ROBINSON: Mr. Milosevic, look at the transcript. The

2 interpreters are again asking you to speak slowly because they don't have

3 this document.

4 MR. NICE: It's 23A or 23B.


6 THE ACCUSED: [Interpretation] 23A. Quite simply, I'm trying to

7 give brief quotations, because it would take a vast amount of time to read

8 decisions in their entirety. I believe that's not in anyone's interest.

9 But these are official rulings of a court, and as far as I'm concerned,

10 each and every word can be used.

11 MR. MILOSEVIC: [Interpretation]

12 Q. So 23A: "The Federal Executive Council believes that the

13 provisions of the first section of the challenged charter which

14 established that the Republic of Slovenia is an independent state, that in

15 the Republic of Slovenia the constitution of the SFRY ceases to exist and

16 that the Republic of Slovenia takes over all rights and duties that by the

17 constitution of the Republic of Slovenia and the constitution of the SFRY

18 were transferred to the organs of the SFRY are not in accordance with the

19 provisions of Article 2 of the constitution of the SFRY."

20 And then it goes on to say what are the other provisions that this

21 enactment of Slovenia is not in accordance with. I'm not going to read

22 out the whole thing. So it's just this excerpt that I'm going to read

23 from paragraph number 2. Professor, please bear that in mind. A few

24 lines down, after item 2 begins --

25 MR. NICE: I'm grateful to Ms. Dicklich. Exhibit 138, tab 11 may

Page 35098

1 be an English version of this.

2 JUDGE ROBINSON: Thank you for that information.

3 MR. NICE: And what may help is if, assuming this is correct, if I

4 make our copy which is immediately available to the usher. There it is.

5 Ms. Anoya has it first. Then that can go on the overhead projector and

6 we'll check from what is being read whether indeed it is the correct

7 document.

8 JUDGE ROBINSON: Yes, proceed.

9 THE ACCUSED: [Interpretation] I really don't understand. I really

10 don't understand whether anybody doubts that what is being read out is the

11 actual document. I'm reading the Official Gazette from that time. I

12 don't understand this observation that was just made.

13 MR. NICE: May I just make --

14 JUDGE KWON: No, no, it is for us to follow. For the Judges and

15 the other parties to follow.

16 MR. NICE: I was going to make the same point. The -- never mind.

17 JUDGE BONOMY: The Exhibit 138 that you've referred to, that's a

18 Defence exhibit.

19 MR. NICE: Yes it's a defence exhibit.

20 JUDGE BONOMY: That's an example of a complete and utter waste of

21 resources that this document should have been submitted at all to the

22 translation service when an English version exists. And if that's the

23 state of the Defence case, then it's very unfortunate that that is a

24 contributing factor to the problems that the institution has in dealing

25 with translation in general.

Page 35099

1 JUDGE KWON: The Exhibit D138 is a bundle of decisions of

2 Constitutional Courts, 27 decisions.

3 MR. KAY: Twenty-four.

4 JUDGE KWON: And that must have been translated by this unit in

5 the Tribunal.

6 MR. KAY: It was presented through the witness Kucan. And I

7 wasn't here at that stage of the trial, and I don't have that exhibit

8 myself. We've been trying to get it from our resources as we were unable

9 to preserve ours.

10 JUDGE KWON: So it is that the Defence is asking the Translation

11 Unit to translate them twice.

12 MR. KAY: I don't know about that. I'm unable to confirm whether

13 they had been translated or not in the first place because it is a

14 problematical exhibit.

15 JUDGE ROBINSON: Let us proceed in any event. Mr. Milosevic,

16 proceed.

17 THE INTERPRETER: Microphone, please.

18 THE ACCUSED: [Interpretation] Let's be clear on this,

19 Mr. Robinson. I don't understand why I have to have -- why I have to ask

20 for anything to be translated. I am supposed to hand in documents in

21 their original form, and I assume that then it's for the translation

22 service.

23 JUDGE ROBINSON: The point that Judge Bonomy and Mr. Nice and

24 Judge Kwon are making is that, to the extent that this document is already

25 an exhibit and was translated, there was no need to resubmit it for

Page 35100

1 translation, and that it -- it's a commentary on the organisation of your

2 case, an adverse commentary. But let us proceed with this particular

3 document. What are the questions you wanted to ask?

4 MR. MILOSEVIC: [Interpretation]

5 Q. Constitutionality was challenged here, Professor. Can you see

6 item 2, paragraph 2, which describes what the charter says, and where it

7 says that the state boundaries of the Republic of Slovenia are

8 internationally recognised borders of the existing SFRY with the Republic

9 of Austria, the Republic of Italy, and the Republic of Hungary in the

10 parts where these states border on the Republic of Slovenia as well as the

11 border between --

12 THE INTERPRETER: Could we have the text back on the ELMO, please.

13 MR. MILOSEVIC: [Interpretation]

14 Q. Now, this explanation provided in the Slovenian document, was it

15 based on the rights stemming from the constitution of Yugoslavia and even

16 the constitution of the Republic of Slovenia?

17 A. This is the main enactment, that capital document pertaining to

18 the secession of Slovenia, that is to say this charter. The Republic of

19 Slovenia took over from the federation all the rights and duties of the

20 federation, in direct violation of Articles 244 and 281 of the

21 constitution of the SFRY of 1974. By this one-sided act whereby it took

22 over the authorities of the federation that can only be exercised by

23 federal organs, not republican organs, Slovenia set its own borders. But

24 these are state borders that have now been requalified into the borders of

25 the Republic Of Slovenia.

Page 35101

1 For all those reasons, referring to the articles of the

2 constitution that were violated, this constitutional charter, although

3 it's called constitutional, is a general act, not a constitutional act,

4 and that's why it was abolished. Sorry, it was not even abolished, it was

5 annulled, and that is the gravest sanction that can be imposed by the

6 Constitutional Court because, ex tunc, then it means that it is

7 declared null and void and it means that the decision is passed

8 retroactively.

9 Q. Thank you, Professor. Please look at tab 24 now. That is the

10 decision on the constitutionality of provisions of Articles 4 and 10 of

11 the law on plebiscite concerning the independence of the Republic of

12 Slovenia. And then the following is mentioned here: Since it is the

13 federal department that initiated this, it is stated already in the second

14 paragraph, towards the end of the second paragraph, that "the composition

15 of the Socialist Federal Republic of Yugoslavia regulated by the

16 constitution is changed in a one-sided manner and its borders are being

17 changed without asking the other republics."

18 In order to save time, towards the end of paragraph 3, it says --

19 or, rather --

20 THE INTERPRETER: The speaker will have to slow down. The

21 interpreters cannot follow at this pace.

22 MR. NICE: Really. It is entirely impossible to follow this

23 evidence. The accused doesn't seem to understand, and I can't understand

24 for the life of me why, if this material, which is of a technical nature,

25 is to be of any value to his case, the Court and the Prosecution have to

Page 35102

1 be able to follow it, and I simply can't follow it at this speed without

2 an English text to compare.

3 Ms. Dicklich suggests that it's likely that this will also be part

4 of Exhibit 138. She hasn't yet tracked it down.

5 And may the previous exhibit be marked for identification.

6 JUDGE ROBINSON: Yes. It will be marked for identification.

7 Mr. Milosevic, much of the way you conduct your

8 examination-in-chief gives the impression that you are engaging in a

9 private dialogue with your witness and in total disregard of the Court and

10 the other parties. We have to be able to follow the evidence, and that's

11 why these points, although technical, are being made.

12 JUDGE BONOMY: Mr. Nice, why does that document require to be

13 marked for identification? We don't need it at all, do we?

14 MR. NICE: No. It could simply -- if the other one -- the only

15 reason I suggest that it would be marked for identification, as we've

16 seen, the other one stops at -- stops short of where this one.

17 Incidentally, and I don't want to take time, but it may be that the

18 observation of Your Honour, which I understood and shared, it may be a

19 little over severe as a matter of fact on the accused because it may be

20 when documents are submitted for a second time for translation and the

21 identity is picked up in CLSS, there is a checking process rather than a

22 whole retranslation process. I'm not sure about that. It's clear that

23 it's not something with which the accused was aware of or concerned, but

24 as a matter of fact, to that extent, the consequences may not be as grave

25 as Your Honour had proposed.

Page 35103

1 JUDGE ROBINSON: Thank you for the correction.

2 MR. KAY: I can assist on that because it would be of importance

3 to the Court. There is a section called ODM --


5 MR. KAY: Something Document Management is my guess. Office of

6 Document Management. And they apparently have the responsibility to do a

7 double-check system because of the volume, and this material probably

8 isn't exclusive to this case.

9 JUDGE ROBINSON: Yes. Thank you.

10 Mr. Milosevic, it's time anyhow for the 20-minute break. We will

11 rise for 20 minutes.

12 --- Recess taken at 12.20 p.m.

13 --- Upon commencing at 12.46 p.m.

14 JUDGE ROBINSON: Mr. Milosevic, yes, proceed.

15 THE ACCUSED: [Interpretation] Just some brief information before

16 we continue. The information is of technical nature. So these exhibits

17 were handed in on the 9th of December. There is an Office of Document

18 Management, a so-called office here, and my aid, Professor Rakic, talked

19 to Madam Robinaf [phoen] on the 23rd of December. She's the person in

20 charge of the Office of Document Management, and pointed out that the

21 decisions of the Constitutional Court must definitely be translated. He

22 believed them to have been translated earlier, because all of them were

23 tendered through Milan Kucan when he testified here. And he pointed out

24 that they must have already been translated.

25 Therefore, I did not request for a repetitive translation, for

Page 35104

1 double translation. On the contrary, we pointed out that all of these

2 documents most likely had been translated earlier.

3 I'm saying this because with my next witness, I wish to tender in

4 exhibits from the sessions of the Presidency of Yugoslavia in 1991. We

5 wanted to see whether these documents had already been translated, because

6 these documents are 15 years old, and so far we have not received an

7 answer as to whether they had already been translated.

8 So in none of these cases did I or my associates make an error.

9 On the contrary, we're doing our best not to burden the translation office

10 too much.

11 JUDGE ROBINSON: Mr. Milosevic, we note your explanation, and --

12 we note the explanation. Let us proceed.

13 JUDGE BONOMY: I'm not prepared just to sit back and listen to

14 that. The -- everyone seems to be at fault except you, Mr. Milosevic,

15 whenever a difficulty arises. What we've discovered today is that

16 documents had been translated as part of one of your exhibits. You're

17 conducting this case. You ought to know what has happened with your

18 exhibits, and for you to hand in documents to the translation department

19 and say to them, "Translate them if you can't find out that you've

20 translated them already," is ridiculous. It seems to me it's entirely

21 your responsibility that this confusion has arisen.

22 THE ACCUSED: [Interpretation] Mr. Bonomy, I suppose that you said

23 that because you are misinformed. You should look into how the matters

24 evolved and then you will see that you are wrong, but let us not waste any

25 more time on that.

Page 35105

1 JUDGE KWON: No, Mr. Milosevic. It is you or your team as a whole

2 who produced this binder. In producing this binder, you have to check

3 whether this has already been translated or not and include them, if any.

4 Please proceed.

5 THE ACCUSED: [Interpretation] Mr. Kwon, that was the purpose of

6 the conversation between Mr. Rakic and the head of the office of

7 management on the 23rd of December, to try and locate these translations,

8 to see whether these documents had already been translated. However,

9 there was recess in progress, many people were away, and they didn't have

10 time to check this. But this is definitely not an error committed by any

11 of my associates.

12 May I continue?

13 JUDGE BONOMY: Why is it you don't know yourself what documents

14 you've already had translated? You're the man that's desperate to run

15 your own case. Why do you not know what's actually happening in your own

16 case?

17 THE ACCUSED: [Interpretation] I don't know how would I be able to

18 establish whether a document had already been translated other than

19 sending my associate to the relevant service to verify whether it is the

20 case. What other options do I have? And all my steps were taken in good

21 time.

22 MR. KAY: Apparently they were submitted by the Registry and the

23 liaison has been away over the Christmas vacation, so information on this

24 occasion may not have been passed through.

25 JUDGE BONOMY: But, Mr. Kay, is it wrong of me to think that

Page 35106

1 Mr. Milosevic ought to know or ought to keep some record of what documents

2 have actually been already submitted by him as exhibits and actually

3 translated?

4 MR. KAY: On 138 there is a problem. I haven't received the

5 translations from the Kucan exhibits myself, and there are problems in the

6 format of it and its structure that both sides have experienced, and I

7 think of all the exhibits to choose, this is the one that has created a

8 problem within the institution.

9 MR. NICE: I'm sorry, I'm going to have to interrupt there. We've

10 had these documents in translation for a long time. One of the problems

11 with the amici -- there are two problems with the amici. One is that

12 Mr. Kay frequently returns documents when they come to him in translation

13 or otherwise and doesn't retain them. These documents were translated

14 into English a long time ago, and they were available to the accused.

15 Another of the problems that I think beset the amici is that, as the

16 Chamber may know, they destroyed, for various administrative reasons, an

17 entire set of their records on the departure of Mr. Tapuskovic.

18 MR. KAY: I certainly don't return English translations. I've

19 returned B/C/S that I can't read, because Mr. Tapuskovic could deal with

20 it, but shall we just call an end to this.

21 JUDGE ROBINSON: Mr. Milosevic, proceed.

22 MR. MILOSEVIC: [Interpretation]

23 Q. Professor Markovic, we are now dealing with tab 24, the decision

24 on constitutionality of provisions of Articles 4 and 10 of the law on

25 plebiscite concerning the independence of the Republic of Slovenia. The

Page 35107

1 proceedings were initiated by the Federal Assembly with the explanation

2 that the unilateral act changed the structure provided for in the

3 constitution of the SFRY, also affecting the state borders. Have you

4 found this?

5 A. Yes, I have.

6 Q. The decision was adopted here that these provisions are not in

7 compliance with the SFRY constitution. I can see it here in this decision

8 that --

9 MR. NICE: Part translated as Defence Exhibit 138, tab 6.

10 JUDGE ROBINSON: As tab 6. Yes. Would you place that on the

11 ELMO, please.

12 MR. MILOSEVIC: [Interpretation]

13 Q. Professor Markovic, at the end of the decision, as usual, there is

14 a list of Judges of the Constitutional Court, the composition who handed

15 down this decision, and I see your name here as well. The date is the 7th

16 of November, 1991. Do you remember this session?

17 A. Yes, I do. And you could also see my name in previous decisions,

18 because I was a member of the Constitutional Court of Yugoslavia then, and

19 only if for some reason I was absent from a session my name wouldn't be on

20 the decision. But I do remember this decision very well.

21 This enactment of the Republic of Slovenia was used as a legal

22 basis for a plebiscite or a referendum which was carried out in that

23 republic in December of 1990.

24 Q. From the point of view of the constitution of Yugoslavia, could

25 that enactment serve as the legal basis for plebiscite?

Page 35108

1 A. No, not at all. Not from the constitutional point of view,

2 especially since the constitution does not recognise a plebiscite, only a

3 referendum. Both of Slovenia and the SFRY. But only when it comes to the

4 issues which are within the competency of the Assembly. So there is no

5 legal possibility to hold a plebiscite on independence. And in order to

6 create a legal basis for such a plebiscite, the Republic of Slovenia had

7 to adopt the law on the plebiscite, on the independence of the Republic of

8 Slovenia, which once again served as the legal basis for the plebiscite

9 held in that republic. The Constitutional Court ruled that that law was

10 unconstitutional.

11 Q. Thank you. I would like you now to turn to tab 25, which brings

12 only a short excerpt from the constitution of the Socialist Republic of

13 Croatia. Please take a look at Article 1 of the Socialist Republic of

14 Croatia. This is the constitution of 1974. In Article 1, paragraph 2, it

15 states --

16 MR. NICE: [Previous translation continues] ... evidence, and I

17 confirm whether it's 25A or B. I can assist him, and I'm sure he'd be

18 grateful for the assistance, in telling him that we do have tab 25B

19 translated already as his own Exhibit D138, tab 24. Again courtesy of Ms.

20 Dicklich. So if he wants tab 25B, we can put it on the overhead.

21 JUDGE ROBINSON: We certainly would want it. Put it on the ELMO,

22 please.

23 THE ACCUSED: [Interpretation] Yes, but now I'm discussing tab 25A.

24 This is the text of the constitution of the Socialist Republic of Croatia

25 adopted in 1974. We have it here in this tab.

Page 35109

1 MR. NICE: We have not located that yet. Ms. Dicklich says we

2 don't have that one.

3 JUDGE ROBINSON: Perhaps you'll find that soon.

4 MR. NICE: No. I don't think it's there.

5 JUDGE ROBINSON: You don't have it.

6 MR. NICE: I don't think it's there.

7 MR. MILOSEVIC: [Interpretation]

8 Q. Professor Markovic, do you have the text, this portion of the

9 constitution?

10 A. Yes, I do.

11 Q. All right. Why don't you read out paragraphs 2 and 3 of Article 1

12 of the constitution of Croatia.

13 A. Yes. So Article 1, paragraph 2 states as follows: "Socialist

14 Republic of Croatia is a national state of Croatian people, state of the

15 Serb people in Croatia, and the state of nationalities residing therein."

16 Paragraph 3 states: "The Socialist Republic of Croatia is within

17 the composition of the Socialist Federal Republic of Yugoslavia."

18 Q. Very well. Thank you. Now, please read paragraph 2 of Article 4

19 on the following page.

20 A. It reads as follows: "The territory of the Socialist Republic of

21 Croatia represents an integral part of the territory of the Socialist

22 Federal Republic of Yugoslavia."

23 Q. Now, please explain to us from the constitutional legal point of

24 view this entire process of Croatian secession. To which extent could

25 this rely simultaneously both on the constitution of Croatia and the

Page 35110

1 constitution of the SFRY?

2 A. Well, that can be gleaned from the decisions of the Constitutional

3 Court of Yugoslavia. The Republic of Croatia did not have a basis for

4 those secessionist enactments, either in its own constitution or the

5 federal constitution. Because in its own constitution Croatia was defined

6 as a state of two constituent peoples. Its territory in its own

7 constitution was defined as the territory of the federal state, which is

8 one whole, and therefore in its own constitution it is stated that Croatia

9 is within the Socialist Federal Republic of Yugoslavia. Therefore, it

10 could not have enacted a regulation which changed the territory of the

11 federal Yugoslavia, which ignored the will of the Serbs who were

12 constituent people within Yugoslavia.

13 Q. Now please take a look at the decision kindly offered by Mr. Nice,

14 which is tab 25B, namely this is decision on assessing the

15 constitutionality of the resolution agreeing procedure for the

16 disassociation of the Socialist Federal Republic of Yugoslavia. And at

17 the end of item 1, Federal Executive Council and the Presidency of the

18 SFRY initiated the proceedings. This is on the 29th of November, 1991.

19 At that time, the proceedings were initiated by the federal

20 government, at the time headed by Ante Markovic, who was a Croat; is that

21 right?

22 A. Yes, that's right.

23 Q. So the federal government, at the end of point 1, claims that this

24 ignores the constitution of the SFRY and the provisions on changing that

25 constitution.

Page 35111

1 Did you find that portion?

2 A. Yes, I did.

3 Q. All right. Now, let's see what was the ruling of the

4 Constitutional Court and what was the explanation given.

5 I see here that it is stated that this enactment was nullified.

6 A. Yes, that's right. And that was the gravest consequence, the most

7 grave consequence which was reserved only for gravest violations. This is

8 ex nunc nullification. And this enactment was nullified because the

9 Constitutional Court found that this enactment ignored the only organ

10 authorised to decide on the composition and the borders, which was the

11 federal parliament, and there was also a procedure prescribed for the

12 change of the SFRY constitution.

13 Q. All right. So my question to you is whether this enactment of the

14 -- of Croatia was constitutional or unconstitutional.

15 A. Well, this enactment -- or, rather, this resolution was

16 unconstitutional because it was sanctioned with the gravest consequence.

17 And I was one of the judges participating in adopting that decision. All

18 of these decisions were adopted after a public discussion where everybody

19 was free to express their opinion, following which the Chamber withdrew to

20 debate the issue and then adopt a decision.

21 Q. We can see here that 11 judges participated in this session. Can

22 you tell us, who was the judge from Croatia?

23 A. The judge from Croatia was Mr. Hrvoje Bacic.

24 Q. Thank you.

25 Under tab 26 we have the decision of the Constitutional Court on

Page 35112

1 the constitutionality of the decision on sovereignty and independence of

2 the Republic of Croatia?

3 MR. NICE: This will not be 138, which dealt with Slovenia and not

4 Croatia. Are the previous exhibits marked for identification?

5 JUDGE ROBINSON: I was just discussing that with Judge Kwon.

6 [Trial Chamber confers]

7 THE WITNESS: [Interpretation] I apologise. This is Croatia, not

8 Slovenia. Croatia.

9 [Trial Chamber confers]

10 JUDGE ROBINSON: Can we just mark for identification the last --

11 JUDGE KWON: I was informed that 25B is already admitted under the

12 name of 138, tab 24.

13 MR. NICE: Correct. But I think in all cases -- not necessarily

14 in all cases, in most of these cases where there is a match between 138

15 and the document now submitted, it's only a partial translation that we've

16 had before so that the probability is that CLSS, even if they make the

17 connection between the two, will now provide a slightly different but

18 fuller version. That's all I can expect.

19 JUDGE ROBINSON: Mark them for identification, please.

20 MR. MILOSEVIC: [Interpretation]

21 Q. Professor Markovic, in tab 26, we have the decision on the

22 constitutionality of the decision on sovereignty and independence of the

23 Republic of Croatia. I will read out very slowly the text on page 2 of

24 this document, namely the explanation, the statement of reasons given by

25 the Constitutional Court, where it says: "The right of the people of

Page 35113

1 Yugoslavia to self-determination, including the right to secession,

2 cannot, in the view of the Constitutional Court of Yugoslavia, be

3 exercised through unilateral enactments of the people of Yugoslavia or,

4 rather, the acts -- enactments of Assemblies of the republics within the

5 SFRY. This right can only be exercised in accordance and following the

6 mechanism established by the SFRY constitution, either through an

7 enactment of the Assembly of the SFRY or on the basis of a consensus of

8 the people of Yugoslavia and their republics. Although the right to

9 exercise the right to self-determination, including the right to

10 secession, was not established by the SFRY constitution, that does not

11 mean that that right can be exercised on the basis of unilateral act of

12 self determination and secession. No nation and no republic Assembly can

13 decide on the basis of the unilateral enactment on exercising that right

14 before the procedure is established as well as the terms under which that

15 right can be exercised."

16 And then in penultimate paragraph it states that the

17 Constitutional Court of Yugoslavia believes that the entire enactment is

18 contrary to the constitution of the SFRY and then goes on to speak about

19 the sovereignty and so on.

20 So on the basis of the constitution in force, both the

21 constitution of SFRY and Croatia, was it clear that this enactment was

22 unconstitutional and invalid?

23 A. Let me say straight away that this is the capital, basic act of

24 secession which Croatia brought in. So it is the oldest enactment

25 determining Croatia's secession and therefore the most important one from

Page 35114

1 which are to be derived enactments that attended secession later on. And

2 as far as the constitution is concerned, or, rather, the position of the

3 Constitutional Court is concerned, the Constitutional Court ruled that the

4 decision was in contravention to the constitution because it changes the

5 composition of the joint state. It changes the borders, the frontiers of

6 Yugoslavia, but it did not deny or negate the right of nations to

7 self-determination. The Constitutional Court did not do that. It just

8 said that the right was not constitutionalised and elaborated in the

9 normative sense, which was not an impediment for bringing in provisions

10 enacted by the Assembly of the SFRY on the basis of agreement reached by

11 all the nations and nationalities and their republics and ascertaining the

12 conditions under which self-determination or, rather, secession was to

13 take place.

14 Q. Does that mean this, then: What you're claiming is that it was

15 possible to realise this if a joint agreement was reached beforehand and

16 if the Assembly of Yugoslavia, according to set procedure to undertake

17 amendments to the constitution, should make a decision of that kind?

18 A. Absolutely so. So secession was possible. What was needed was

19 the will to be done constitutione artis, which means in conformity with

20 all the units of the federation and not a unilateral decision on the part

21 of one of the federal units.

22 JUDGE ROBINSON: [Previous translation continues] ...

23 THE WITNESS: [Interpretation] Political will to do that? No,

24 there was not. And I'm sure that we'll come to discussing a proposal for

25 a law to realise the rights of people to self-determination in due course,

Page 35115

1 which the secessionist republics did not wish to accept for the simple

2 reason that they wished to secede as a unilateral act, as an act performed

3 by their own bodies, their own act, and not as a joint act on the part of

4 all the members, all the constituent parts of the federal state.

5 MR. MILOSEVIC: [Interpretation]

6 Q. So in that light, what did the Constitutional Court rule? What we

7 find in tab 27, how did it view tab 27, which is the decision of the Sabor

8 or Assembly of the Republic of Croatia establishing when Croatia

9 separated, and in 27D we have the Constitutional Court decision which is

10 the subject of your testimony on assessing the constitutionality of the

11 Sabor's decision to sever ties with the SFRY?

12 MR. NICE: Found at Exhibit 641, tab 22, and she can put this one

13 on Sanction for you if you're happy with that as a method of display.

14 Unfortunately, the English version was not yet loaded onto the

15 Sanction system. The hard copy English version is being brought down but

16 we can't, of course, bring every exhibit here every day.

17 JUDGE ROBINSON: Well, we'll proceed with what we have.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Professor Markovic, I'd like to draw your attention to the fact

20 that in tab 27B, containing the decision on assessing the

21 constitutionality of the decision of the Assembly of the Republic of

22 Croatia on rupture of legal links with the SFRY, on page 2 of that

23 decision, paragraph 5 from the top says that, according to the

24 constitution of the SFRY, the Republic of Croatia is one of the

25 constituent republics of the SFRY and within the composition of the SFRY,

Page 35116

1 and for that reason it cannot by any unilateral act sever legal ties with

2 the federal state of which it is a part, nor can by doing so change the

3 position of the republic ascertained by the constitution and step down

4 from the SFRY and change its borders.

5 Therefore, Professor Markovic -- I omitted to say but here you are

6 with us taking part, and you took part in the work of that session, let me

7 ask you this: Was it clear there, too, that this was unconstitutional but

8 that there was a constitutional way of achieving that end, of achieving

9 those aspirations and goals on the part of Croatia, ideals, ideas like

10 that and wishes like that and interests like that? Was there a

11 constitutional way of doing that?

12 A. Well, the leitmotif of the Constitutional Court in all these

13 decisions is that secession is indeed possible but in a constitutional

14 manner, not as the unilateral act on the part of an individual republic.

15 Because Yugoslavia was a federation, it was not the alliance of sovereign

16 states, it was itself a sovereign federal state. Therefore, the republics

17 were not behaving like states which were sovereign in the international

18 legal -- as international legal subjects, because it was only the federal

19 state that enjoyed that status, and it was only the federal state that

20 could take a decision of that kind.

21 But of course none of the republics, and we see Croatia, wanted to

22 follow that path. They wanted to pass a unilateral decision by its own

23 organ without respecting its own constitution ultimately either, because

24 the constitution of the Republic of Croatia and Slovenia and Macedonia

25 didn't provide for that. There were no legal grounds for making decisions

Page 35117

1 of this kind because a republic could not decide upon no longer being a

2 federal unit but being an independent, autonomous state suddenly. This is

3 not a right granted by the republics under their own constitutions either.

4 Q. Now, the Constitutional Court, through these decisions, did it

5 indicate to the republics who wanted to secede of the possible legal

6 method of realising that goal of theirs? Did they point that road out to

7 them?

8 A. The Constitutional Court did point that out, and you read out some

9 of these arguments put forward, saying that all this was possible in a

10 manner which would be constitutione artis, which means in conformity with

11 the constitution, with the acquiescence of all the federal units, and

12 through a revision of the constitutional amendment -- or constitution,

13 rather; the constitutional amendments.

14 Q. Thank you, Professor Markovic.

15 THE ACCUSED: [Interpretation] Now, Mr. Robinson, I would like to

16 have these -- to tender these tabs, tab 27 and tab 28, tendered into

17 evidence, the decision to determine the constitutionality of the

18 independence of the Republic of Croatia, which practically contains the

19 same arguments and same explanations given so that I don't want to lose

20 time over that and have to go through it with this witness. But I would

21 like to tender it as an exhibit because it is a decision of the

22 Constitutional Court, after all, and therefore cannot be challenged. It

23 is unequivocal.

24 JUDGE ROBINSON: We'll follow the same practice; we'll mark it for

25 identification pending translation.

Page 35118

1 THE ACCUSED: [Interpretation] Have I understood this correctly,

2 Mr. Robinson, because I took it step-by-step, decision by decision, that

3 what you have just said relates to all the Constitutional Court decisions

4 ranging from tab, I think, 20 it was, to tab 28; is that right?

5 JUDGE ROBINSON: I believe we have dealt with them individually.

6 We've dealt with them individually. I don't have a clear recollection,

7 I'd have to ask the Court Registrar. But I don't think we should be

8 spending time on that now.

9 THE ACCUSED: [Interpretation] Very well.

10 MR. MILOSEVIC: [Interpretation]

11 Q. Professor Markovic, we have gone through a whole series of rulings

12 of the Constitutional Court of Yugoslavia, its decisions, the arguments

13 put forward, the statements of reasons, et cetera. Now, in view of the

14 fact that you yourself were a judge, let me ask you this: Did the

15 Constitutional Court of Yugoslavia, on the basis of these decisions -- we

16 can see that the constitution did not allow secession as a unilateral act

17 and the decisions confirm that secession was contrary to the constitution.

18 Now, did the Constitutional Court, in standing by its positions, was it

19 only guided by the letter of the constitution itself or the constitutional

20 and legal practice of jurisdictions elsewhere in the world as well --

21 jurisprudence of other countries as well?

22 A. The Constitutional Court was governed by the constitution that was

23 in force, but at the public debates organised on this topic, and the

24 public debate is always conducted between the proponents and those called

25 upon to assess constitutionality, and the public, the scientific public,

Page 35119

1 that is, which means the representatives of the profession and of science,

2 and at these debates I myself insisted upon an understanding of this legal

3 practice with respect to secession, and three cases were emphasised. And

4 I mentioned them. First of all, the Nova Scotia example, which as soon as

5 the Canadian federation was established in 1868, and the Canadian

6 federation was founded in 1867, so in 1868 Nova Scotia wanted to secede,

7 and the colonial secretary said that the secession called upon by one

8 unit, one unilateral federal unit, could not go through. It couldn't be

9 done.

10 Then we have the other well known case, Texas versus White,

11 another case in point in which it was stated that by the very fact that

12 Texas remained as one of the federal units, one of the states of the

13 United States of America, that it thereby had inseverable ties with it,

14 and the act that was confirmed with the reception of Texas into the

15 federal union was something more than a contract. It was more than

16 contractual, stated the decision. And it goes on to say that a new member

17 is therefore incorporated into the political body, and that was final.

18 That was the final ruling. That is just part of the text, of course,

19 taken from the decision of Texas versus White.

20 So the federal state is understood to be a united creation, and

21 the United States of America, for example, doesn't tolerate secession at

22 all. There are constitutions in the world who recognise the possibility

23 of secession.

24 Now, the third case that was mentioned in constitutional law

25 practice was with regard to Western Australia in 1934, in fact, when the

Page 35120

1 British parliament refused demands for Western Australia to step down from

2 Australia, to leave the Australian federation, and the reason it gave was

3 that --

4 MR. NICE: [Previous translation continues] ... deprive us of an

5 interesting period in this case but I wonder to what extent exploring the

6 materials before the Constitutional Court are going to be of value.

7 JUDGE ROBINSON: Mr. Milosevic, what is the importance of this?

8 THE ACCUSED: [Interpretation] The importance of this,

9 Mr. Robinson, is in the question itself, the question I put myself.

10 Because I asked Professor Markovic this question in view of the fact that

11 he was a judge, a judge of the Constitutional Court which ruled this way:

12 Did the Constitutional Court guide itself by the letter and spirit of the

13 constitution or by constitutional jurisprudence in other countries in the

14 world? Because from what he has now been saying, we see that the

15 Constitutional Court made rulings in practically the same manner and

16 assumed the same positions that other federations in the world had

17 assumed, the positions they took when they were faced with similar

18 problems.

19 So we're not dealing with --

20 JUDGE ROBINSON: Yes, Mr. Milosevic. Yes. I understand the

21 explanation. But don't deal with it at length. Let us move on. We have

22 the point.

23 THE ACCUSED: [Interpretation] Very well. It is not my intention

24 to deal with it at length, but I would like you to tender into evidence

25 this document or, rather, Exhibit 42 -- tab 42, and that is the 20th of

Page 35121

1 August, 1998, is the date, and what it refers to is the secession of

2 Quebec. It refers to the secession of Quebec, that's the reference, where

3 you'll find similar arguments put forward many years after the kind of

4 practice that we saw in Yugoslavia and the conduct of the Constitutional

5 Court of Yugoslavia. The arguments put forward are almost identical when

6 it comes to the highest judiciary in Canada.

7 I'd like to draw your attention to the fact that on page 2 of that

8 document, which numbers 38 pages --

9 JUDGE ROBINSON: Mr. Nice is on his feet.

10 MR. NICE: Let me give notice that if this document is produced,

11 notwithstanding the presence of Canadians in the Office of the Prosecutor

12 and indeed in this very team, I shall not be making any effort to

13 understand the relevant Canadian law or to deal with it, and I must urge

14 the Chamber to be cautious before allowing its record to be burdened down

15 with what would appear to be, at best, some of the material relied upon by

16 another Court on another occasion.

17 JUDGE BONOMY: Mr. Nice, is this not something that could be

18 referred to in legal argument at some stage if it was thought to be of any

19 relevance at all? Is it something that needs to be addressed in evidence?

20 MR. NICE: I think Your Honour is quite right that if this issue

21 is of any value and if it is a legal issues, both of which are points yet

22 for determination, it would be a public document available to lawyers to

23 argue from. Your Honour is quite right.

24 THE ACCUSED: [Interpretation] May I continue?


Page 35122

1 MR. MILOSEVIC: [Interpretation]

2 Q. Professor Markovic, where does the value lie as a basis for

3 presenting legal argument of this document referring to the secession of

4 Quebec?

5 A. Briefly speaking, according to the advisory opinion of the Supreme

6 Court of Canada, secession cannot be allowed from the aspects of internal

7 law and international law. Internally it is not allowed because --

8 JUDGE ROBINSON: I stopped you because I think the question was

9 misdirected. Where does the value lie? We're talking about the value for

10 the Court and for these proceedings, but I believe you are going on to

11 explain. You were mentioning something about the importance in terms of

12 international law.

13 Go ahead, yes.

14 THE WITNESS: [Interpretation] Briefly. From internal law, the

15 arguments. The Supreme Court of Canada proceeded from the fact that each

16 federation was based on a system of constitutional values and that the

17 right to self-determination, which the Court does not understand

18 exclusively as the right to secede, has its support in the democratic

19 principles and democracy but the joint values of the Canadian

20 constitution, federalism, constitutionalism, democracy and the rule of

21 law, and protection of minorities, by favourising the principle democracy

22 they run the risk of being -- of having the other constitutional values

23 ignored upon which the constitutional system of Canada is based, and

24 indeed the system of every federation. That is federalism,

25 constitutionalism and the rule of law and the protection of minority

Page 35123

1 rights, and that is why these decisions - and they coincide with the

2 decisions made by the Supreme Court of Serbia - can only be enacted only

3 if all elements of the federation agree, and that is what we call internal

4 self-determination. According to the understandings of that court, the

5 right to self-determination is untenable from the aspects of international

6 law, if a state or a federal state which is functioning properly enables

7 the expression of the will of the entire people, if it represents the

8 entire people or part of the people on its territory.

9 Now, if it represents them on a footing of equality with no

10 discrimination and if the possibilities exist for nations to take part in

11 decision-making about their economic, political, social, and cultural

12 development, then secession is -- when is secession possible? Only in

13 three cases, according to the Canadian court. If the nation availing

14 itself of that right is part of the Commonwealth; second, if that nation

15 is subject to exploitation, foreign domination or anything like that or if

16 their rights have been -- if they have been deprived of their rights.

17 Then they have the internal right to self-determination within the

18 frameworks of that particular state. If the country, a federal state

19 enables internally speaking self-determination, then it has the right to

20 territorial integrity, whereas other states, members of the international

21 community, should recognise it -- or its territorial integrity.

22 JUDGE ROBINSON: Mr. Milosevic, I think the purpose of this line

23 of examination is to show that the decision of the Constitutional Court

24 was well-founded, was well-grounded in law. What is the importance of

25 that for these proceedings?

Page 35124

1 THE ACCUSED: [Interpretation] Precisely because on the basis of

2 illegal enactments an armed secession was carried out. You can find this

3 in the texts of the Kosovo indictments. And you see that armed secession

4 -- or, rather, that war was a consequence of that secession. I quoted

5 that to you before.

6 Now I would like to draw your attention to --

7 [Trial Chamber confers]

8 JUDGE ROBINSON: All right. Mr. Milosevic, I consider it to be

9 important and relevant, but it is something which you can, you know, hand

10 in with your list of authorities. It need not be tendered as an exhibit.

11 In your closing arguments, you will have a list of authorities, and this

12 will be one of them.

13 THE ACCUSED: [Interpretation] Mr. Robinson, I wish to draw your

14 attention to points 89 and 90 -- or, rather, counts 89 and 90 of this

15 so-called Kosovo indictment. Count 89 reads as follows --

16 MR. NICE: I object to -- the accused's process of learning

17 English seemed to have suffered a setback when we were being described in

18 inappropriate terms. I didn't interrupt then, but through the Court I'd

19 like to remind the accused that the indictment is an indictment and we are

20 the Prosecution, because yesterday he seemed to overlook that.

21 JUDGE ROBINSON: Mr. Milosevic, we've been through this already.

22 The indictment was challenged and the challenge was rejected. The

23 indictment exists as a matter of fact and law, and that kind of reference

24 is inappropriate.

25 You were directing us to paragraphs 89 of the -- which indictment?

Page 35125

1 The Kosovo indictment.

2 THE ACCUSED: [Interpretation] 89 and 90. I'm just going to quote

3 them in part. In the middle of -- "[In English] On 25 June, 1991 Slovenia

4 declared its independence from SFRY which led to the outbreak of war..."

5 [Interpretation] Then: "[In English] Croatia declared its

6 independence on 25th of June, 1991, leading to fighting between Croatian

7 military forces on the one side and JNA paramilitary units and the army of

8 Republic of Serbian Krajina -- Srpska Krajina."

9 [Interpretation] And count 90 says: "[In English] On 6 March 1992

10 Bosnia-Herzegovina declared its independence, resulting in wide scale war

11 after 6th of April, 1992."

12 That is why I believe that it is a highly relevant fact that

13 illegal secession led to violence or, rather, the outbreak of war and that

14 that is a direct consequence. That is why I believe that this exhibit

15 indicates a totally identical situation when the Supreme Court of Canada

16 acted and that that is a very important part of this argumentation,

17 because these are rules established throughout the world, not some kind of

18 special rules established only in the former Yugoslavia.

19 JUDGE ROBINSON: The point is that the important decision is the

20 decision of the Constitutional Court, and of course you have other

21 precedents to rely on. As I said, those are things -- those are

22 precedents which you can introduce in your argument. They need not be

23 tendered as exhibits. These are precedents which go to support the

24 decision of the Constitutional Court. It's the Constitutional Court's

25 decision which is the important decision here, and we have already

Page 35126

1 admitted that. The Supreme Court decision is something which you can

2 tender in your list of authorities. So please proceed, Mr. Milosevic.

3 THE ACCUSED: [Interpretation] All right, Mr. Robinson.

4 MR. MILOSEVIC: [Interpretation]

5 Q. Mr. Markovic, you're a university professor. You follow

6 professional literature both at home and abroad. Are you familiar with

7 comments made by world renowned experts in this field and do they agree

8 with the positions contained in the ruling of the Constitutional Court of

9 Yugoslavia?

10 A. Absolutely, especially in the Canadian jurisprudence.

11 MR. NICE: I -- I'm almost admiring of the bravado of that

12 question. Not only is it entirely leading if form on any reckoning,

13 entirely insubstantial in substance. Were one expert to be invited to

14 comment - and that's assuming this witness counts as an expert - were one

15 witness to be invited to comment on the opinions of others, those others

16 would have to be cited and available for us to consider, but a question in

17 this general form is wholly unacceptable and should be rejected.

18 [Trial Chamber confers]

19 THE ACCUSED: [Interpretation] Very well. Very well. I'll quote

20 it.

21 [Trial Chamber confers]

22 JUDGE ROBINSON: What are you going to do? Quote what? What are

23 you going to quote?

24 THE ACCUSED: [Interpretation] Well, I'm going to quote it.

25 Because Mr. Nice wants me to quote the opinion, I'm going to quote one and

Page 35127

1 I'm going to ask Professor Markovic whether he can deal with others.

2 JUDGE ROBINSON: You can't approach it that way. If you couldn't

3 approach it in the previous way, I don't see how it could be approached in

4 this way.

5 We'll consult.

6 [Trial Chamber confers]

7 JUDGE ROBINSON: Mr. Kay, assist on this point.

8 MR. KAY: I find myself in difficulty on it in the sense that

9 calling upon a witness who is a witness of fact rather than being used as

10 an expert witness, then giving opinions of other like-minded people

11 throughout the world, I find it difficult to find an argument in support

12 of that one; and if I do, it is a problem.

13 JUDGE ROBINSON: Yes. I think that's the answer. He's here as an

14 expert -- he's here as a witness of fact, and you're now seeking to lead

15 him as an expert without complying with the procedure requirements. We

16 will not allow that, Mr. Milosevic.

17 THE ACCUSED: [Interpretation] Mr. Robinson, may I ask the witness

18 who is testifying here, who, inter alia, is a university professor,

19 whether he is aware of the position taken by Antonio Cassese?

20 Self-determination of Peoples is the title of his book, and you have that

21 in tab 37.

22 JUDGE ROBINSON: No. That's precisely the point. That's

23 precisely the point, that that is expertise. That testimony would be

24 characterised as testimony of an expert, but you haven't complied with the

25 procedural requirements for this witness to testify as an expert. You

Page 35128

1 can't have your cake and eat it. So move on to another area.

2 THE ACCUSED: [Interpretation] Objectively speaking, this witness,

3 no doubt, has the ability to do so in any capacity; as a fact witness, an

4 expert witness. I believe no one can challenge that. But you know --

5 JUDGE ROBINSON: But if you had complied with the requirements, if

6 you are seeking to adduce evidence from him as an expert, then you would

7 have had a report, you would have had Professor Cassese's book mentioned

8 in it, you would have had the relevant passages cited, and the Prosecution

9 would have been able to read them and to make their own assessment of

10 those passages. And all of this is set out in Rule 94, I think.

11 It's time for the adjournment now, Mr. Milosevic, in any event.

12 I have just been shown paper here which shows that we have not yet

13 dealt with three documents - I'll consult with Judge Kwon - in terms of

14 admitting them.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: 20 and 21 are admitted, are to be admitted. And

17 23A, not yet dealt with?

18 MR. KAY: 22A.

19 JUDGE ROBINSON: 23A is marked for identity.

20 We are adjourned to --

21 THE REGISTRAR: Could I get the number for the binder. 271.

22 Exhibit D271. It was not reflected on the transcript.

23 JUDGE ROBINSON: Please have that reflected. The binder is 271.

24 Mr. Milosevic, you'll yet make a weight-lifter out of me with

25 these heavy documents.

Page 35129

1 THE ACCUSED: [Interpretation] I assume that Mr. Nice has trained

2 you well enough for this, because his documents were much heavier.

3 JUDGE ROBINSON: I think you're right.

4 We are adjourned.

5 --- Whereupon the hearing adjourned at 1.47 p.m.,

6 to be reconvened on Tuesday, the 18th day of

7 January, 2005, at 9.00 a.m.