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          Whether the military judiciary has been abolished or not and whether military courts still work legally or it is illegal - has been the matter of wide spread discussions lately. The opinions are mixed. Both those who think that military courts have been abolished so they work illegally and those who believe the opposite refer to the same articles of the Constitutional Charter of Serbia and Montenegro and the Law on Implementation of the Constitutional Charter. The supporters of the first opinion start with the wrong premise that the articles mentioned have immediate legal consequences, leaving out the fact that some other legal acts should be adopted, indicating the date when military judiciary should stop working and defining, at the same time, who would take their jobs over. And this is not so simple as it looks at first.

          Let us, first, examine the articles of the Constitutional Charter and the Implementation Law, referring to the military judiciary. In the Art. 66 of the Constitutional Charter, it has been said that "the authority of the military courts, prosecutor’s office and legal office is transferred to the organs of the state members, according to the law". Therefore, it was decided in principle that military courts, military prosecutors’ offices and military legal offices are abolished but "according to the law". It means that this can be realised only when that law (or a number of laws) which is to regulate completely the transfer of authorities has been brought. The Art. 24 paragraph 1 of the Law on Implementation of the Constitutional Charter prescribes "military judiciary keeps working until the law has been brought according to the Art. 66 of the Constitutional Charter". In the paragraph 2 of the same article, it is prescribed "the law mentioned in the paragraph 1 of this article is to be adopted within six months from the day when the Constitutional Charter has been passed into effect". Hence, it was prescribed the military judiciary will keep working until the law, which is to prescribe the transfer of their jobs to civilian judiciary of the state members, has been adopted. Without this law, the transfer is impossible. The law was to be brought by August 4th 2003 but it has not been adopted so far and it is totally questionable when it will be brought. Since it has not been brought, "military judiciary keep working". They cannot stop working according to the law which has not been brought, or according to the legal obligation of the law creator to adopt the law within six months after the Constitutional Charter was passed into effect, the obligation which has not been fulfilled. Non-existing law, the law that has not been brought (although there is legal obligation that it should be brought) cannot have any legal consequences. And until that law has been brought, present laws are in effect - the Law on Military Courts brought in 1995 and the Law on Military Prosecutor’s Office brought in 1995. Therefore, military courts and military prosecutors’ offices have not been abolished, those are legal organs, which work legally until the law, which is to regulate the subject to take their jobs and the time when it should happen, has been adopted.

          When the Constitutional Charter and the Law on Implementation were adopted, no care was taken of the issue which civilian courts and civilian judiciary in general should take over the jobs of military courts, or military judiciary and whether they are professionally capable of doing this, particularly not in such a short time as it was prescribed by Art. 24 paragraph 2 of the Law on Implementation. It seems the most important thing for somebody was to take over the building of military judiciary organs in Ustanička Street in Belgrade and to situate special courts and special prosecutors’ offices there. For it was only in October 2003, when the deadline for adopting the law has passed, that the representatives of the Serbian Ministry of Justice, Supreme Military Court of Serbia and Serbian Prosecutor’s Office met with the representatives of the Defence Ministry and military judiciary, when the latter presented the data on the cases being processed by the military judiciary (more than 2,500 cases in the administrative trials before the Supreme Military Courts, with more than 2,000 new cases each year, several thousands of non-solved criminal cases in different phases of the process, starting from criminal charges to appeals) the representatives of the Serbian Ministry of Justice simply said they cannot take them over. For taking the cases over from the military judiciary, so they can stop working, it is necessary that the law on the level of State Union is brought, as well as the laws on the level of the state members and, moreover, these laws must be harmonised. They are to regulate which criminal cases, for which the criminal procedure has already been started, are to be completed by military courts and which are to be taken over by civilian courts and in which phase. There are also many other issues to be solved since there must be no slowdown in processing cases which military courts have been charged for so far.

          A special problem, which is to be regulated by the laws of the state members of the State Union, refers to so-called military crimes. These laws are to regulate which courts are to process these crimes. One should keep in mind that not all the courts should be authorised to process these trials but only several district courts should be defined, and so-called military chambers must be established within these courts (as it was done in Germany, for example, as well as in some other countries which abolished military courts) as well as within court of appeals. Judges of civilian courts have never judged in the trials for so-called military crimes and have no professional education necessary for them since the organisation of the armed forces should be well understood, as well as the system of commanding, decision making, internal affairs and numerous military regulations. In Germany, for example, the judges of so-called military chambers are specially trained and prepared for hearing military crimes. This is the way we also should take and for the beginning, military chambers should include the judges from military courts.

          The process of transferring authorities from the civilian courts to the military ones is very complex and take a longer period of time, not less that a year, after all necessary laws have been brought on the level of the State Union and its members. There is a huge number (several thousands) of the criminal cases of avoiding military service and the only regular way, in the legal sense of this word, is to adopt the law on their amnesty since it is impossible and stupid to try so many people. But, there is nobody who could bring the amnesty law. There is a huge number of uncompleted cases from the war period and in some cases the death penalty was passed which is to be finally decided by the Federal Court, which does not exist any more and the new court of the State Union has not even been established. Moreover, it will not have any authority in crime cases (persons convicted to the death penalty by criminal court were exchanged in 1992 according to the principle "all for all" between the FRY and Croatia).

          The lifetime of the State Union of Serbia and Montenegro has been projected to three years period and it is not certain whether it will survive. The Serbian and Montenegrin Army has just started reforms and it is not certain whether there will be one or two armies, it is not known how big it will be - taken into consideration future professionalization of the army; political circumstances are not very stable, many state institutions hardly exist. Under these circumstances, it was not very wise to reach for so radical solutions that cannot be permanent, such as abolishing military judiciary, particularly since the field for taking those jobs over has not been prepared. The argument that military courts are not independent under local conditions is not very strong since civilian courts are not independent either. Therefore, the problem is not whether military courts will exist but how to make them independent. Most European countries have military courts and this is no problem at all.

        • Tags: Serbia, Law, military, reform, court, military courts, control
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