Implementation of Transitional Laws in Serbia 2006

Implementation of Transitional Laws in Serbia 2006

Implementation of Transitional Laws in Serbia 2006Report number 19Human Rights Protection ProgramImplementation ofTransitional Laws inSerbia 2006Date of publishing: December 8th 2006Human Rights Protection Program and publishing of this reportwas supported by Swedish Helsinki Committee for Human Rightsand Comité Catholique contre la Faim et pour le Développement(CCFD)

Implementation of Transitional Laws in Serbia 2006Youth Initiative for Human RightsHuman Rights Protection ProgramReport number 19December 8th 2006BelgradeFor publisher:Andrej NosovPrepared by:Dragan PopovićMiroslav D. JankovićTranslators:Djordje JankovicKatarina KovacevicSvetlana PopaProofreading:James MayTrevor DaneLektura i korekturaTamara KaliternaDesignUroš ĐorđevićReport was supported by Swedish Helsinki Committee for Human Rightsand CCFDWe are grateful for all the supportPrintingStandard II, BelgradeCopies: 500ISBN: 86-85381-08-8Copyright© Youth Initiative for Human Rightswww.yihr.org

Implementation of Transitional Laws in Serbia 2006IntroductionIn the period from January to December 2006, the Youth Initiative for HumanRights (hereinafter the Initiative) conducted research into the implementationof transitional laws. The Initiative monitored the implementation of theLaw on Public Information , the Law on Broadcasting , the Law on FreeAccess to Information of Public Importance (hereinafter the Law on FreeAccess to Information) , the Law on the Organization and Jurisdictionof Governmental Organs in Procedures for War Crimes (in further textthe Law on War Crimes Prosecution) , and the Law on the Protector ofCitizens. For research into the implementation of each of the five observed laws, dueto their specifications, a special methodology was used. The implementationof laws that regulate the sphere of the media, the Law on Public Informationand the Law on Broadcasting, were observed by obtaining and analyzingmedia reports, as well as the reports of non-governmental organizationsthat deal with the protection of marginalized groups and fight against hatespeech. The activities of state organs and institutions appointed by the lawitself were also observed, especially the Republic Broadcasting Agency.The methodology for observing the implementation of the Law on FreeAccess to Information consisted primarily of directly testing whether, inwhat measure and in which way the organs of public government implementthis law. During 2004 and 2005, the Initiative sent requests for free access toinformation to the organs of public government, and analyzed their actionsregarded the submitted requests. Testing of the efficiency of the Officeof the Commissioner for Information of Public Importance (hereinafterthe Commissioner) , with regular contact with this institution, was alsocontinued.The implementation of Laws on the processing of war crimes was tested The Law on Public Information, adopted on April 22 nd , 2003, Official Gazette of RS number 43/04 The Law on Broadcasting, adopted on July 18 th , 2002, entered into force on July 27 th , 2002, Official Gazetteof RS number 42/2002 The Law on Free Access to Information of Public Importance, adopted on 2 nd , November 2004, entered intoforce on November 13 th , 2004, Official Gazette of RS number 120/04 The Law on the Organization and Jurisdiction of Government Organs in Processes against the Perpetrators ofWar Crimes, adopted on July 1 st , 2003, Official Gazette of RS number 67/03 The Law on the Protector of Citizens, adopted on September 16 th , 2005, entered into force on September 24 th ,2005, Official Gazette of RS number 79/05 The Law on Free Access to Information, article 30, see above under 3

Implementation of Transitional Laws in Serbia 2006by monitoring the trials before the War Crimes Chamber of the DistrictCourt in Belgrade, tracking and analyzing media reports, as well as througha series of interviews with the spokesperson of the War Crimes Chamber.The implementation of the Law on the Protector of Citizens has recentlybegun, due to the recent adoption of the law, so the Initiative analyzedthe regulations of this law by comparing it to similar laws in surroundingcountries. The process of electing the first Protector of Citizens in Serbiawas also monitored.The Initiative analyzed the legal basis of the new Constitution of Serbia 7 .Those regulations that incited disputes in professional and general publicwere firstly analyzed. The Referendum campaign and the observance ofelectoral and media laws, which regulate this process, were monitored aswell. The Law on the Referendum and People’s Initiative , the Law on theElection of Parliamentary Representatives , the Law on Financing PoliticalParties 10 , the Law on Advertising 11 , the Law on Public Information and theLaw on Broadcasting.At the end of the report, there are two annexes. The first annex presentscases that lawyers and the legal team of the Initiative presented beforecourts and other state organs in the name of the victims of violations ofhuman rights. The report refers to matters concerning hate speech, policetorture, the right to free access to information, instigating racial, religiousand national hatred, discord and intolerance and rehabilitation.The second report analyzes the efficiency of courts and prosecution inSerbia, when dealing with the criminal acts of causing racial, religious andnational hatred, discord or intolerance. This report was written with the helpof the mechanisms provided by the Law on Free Access to Information ofPublic Importance.The report based on information obtained until November 25th2006. The Constitution of Serbia, adopted and entered into force on November 8 th , 2006, Official Gazette of RS98/06 The Law on Referendum and People’s Initiative, Official Gazette of RS number 48/94 i 11/98 The Law on the Election of Parliamentary Representatives, Official Gazette of RS number 35/2000, 57/2003- decision USRS, 72/2003 – sec. law, 75/2003 - corr. sec. law, 18/2004, 101/2005 - sec. Law and 85/2005 - sec.law10 The Law on Financing Political Parties, adopted on July 18 th , 2003, Official Gazette of RS number 72/0311 The Law on Advertising, adopted on September 16 th , 2005, Official Gazette of RS number 79/05

Implementation of Transitional Laws in Serbia 2006Evaluation of the Degree of theRule of Law in SerbiaIn 2006, the tendency to disobey transitional laws and the derogationof institutions in Serbia has been continued. In this way, GovernmentalRepresentatives continue to undermine the rule of law and the legal statein Serbia.The new Constitution seriously undermines the achieved level of humanand minority rights, what is strictly prohibited, both by the domesticlegislature, and by international legal norms. The Constitution does notprovide regional autonomy for Vojvodina, places the terms of ParliamentaryRepresentatives in the hands of political parties and does not enable thecomplete independence of Court authorities. Adopting the highest legalact without any kind of public discussion and the Referendum campaignduring which numerous legal norms were violated seriously questions thelegality of the Constitution.The implementation of the Law on Free Access to Information is still onlypartial; public authority organs do not fully obey the regulations of thislaw. Amongst those organs which have broken this law in 2006, there arealso Ministries of the Government of the Republic of Serbia. Particularlyparadoxical is the fact that the Ministry of Culture, in whose job descriptionit is to control the implementation of this law, has also broken the law.Trials based on the Law on War Crimes Prosecution have been continuedbefore the War Crimes Chamber of the Regional Court in Belgrade.Problems facing the prosecutors and the courts include insufficient financialassistance from the Government, and the new criminal legislature, whichdefines command responsibility as a separate criminal act.Despite the existence of regulations within the Law on Public Information,which forbids hate speech, such speech is still present in the media andthere are no examples of its sanctioning. The Youth Initiative for HumanRights has brought two charges for hate speech against daily newspapers,GLAS JAVNOSTI and KURIR. The charges against KURIR have beendenied in a first-degree process. The further processing of these chargeswill be a clear indicator of whether the courts in Serbia are willing to finallydeal with hate speech in the media.

Implementation of Transitional Laws in Serbia 2006The Law on Broadcasting was in the focus of public attention becauseof the assignment of permits for broadcasting radio and televisionprogramming in the area of Serbia and Vojvodina. The assignment ofpermits, which comes under the jurisdiction of the Council of the RepublicBroadcasting Agency (RRA), caused loud reactions from journalists,specialist associations, citizens and politicians. Especially controversial arethe actions of the Council of the RRA concerning BK Television, whosefrequency was taken away and afterwards, with the help of police, the workof this media house was banned. The law has been changed for a thirdtime, again without public discussion and along with significant criticism byexperts, media and journalist associations.The Government in Serbia is not acting in accordance with existing legalnorms, and is breaking the law. Because the law is broken by the institutions,which adopt or implement those laws, the rule of law is being dramaticallyundermined. Serbia cannot be a legal state as long as the representativesof the Government do not obey legal order, and unless all those whoundermine this order by breaking the law are punished.

Implementation of Transitional Laws in Serbia 2006react, considering the proclamation in the Constitution. The declaration onconstitutional obligations to protect the interests of Serbia in Kosovo in alldomestic and foreign political relations creates a difficult obligation for thefuture generations of politicians. On the other hand, it is in discordancewith the attitude of parties of the so-called democratic block that a war asa solution is out of discussion. There is no reason why the preamble wouldnot be understood as call to take over Kosovo by arms. It is also evidentthat by not accepting the decision of the United Nations, Serbia risks goingback to a state of isolation similar to that during the nineties.According to many journalists and analysts, Kosovo was the very reason foradopting a new Constitution of Serbia 16 . Furthermore, a large part of themedia campaign for the adoption of the Constitution rested on messagesconnected to the future status of Kosovo 17 . Through messages that thenew Constitution would enable Kosovo to stay within Serbia, the rulingelite gave one more hope that is false to the inhabitants of Kosovo ofSerbian nationality. This will result in great disappointment if the solutionfor Kosovo turns out to be independence. It is also possible that a partof the Serbian population in Kosovo will move into Serbia. The mediacampaign and the messages integrated in the Constitution further deepenthe gap between Serbs in Kosovo and the local institutions of government.The expectations of Serbs in Kosovo and the degree to which the SerbianGovernment has managed to once again radicalize the inhabitants ofthe area can be seen in the celebration of the proclamation of the newConstitution in Kosovska Mitrovica 18 , and the Belgrade meeting for theproclamation of the Constitution, in which the representatives of almostall parliamentary parties participated, and at which the name of the HagueTribunal defendant Ratko Mladic was cheered 19 .16 Constitution needed, but not like this, B92, October 25 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=75&nav_id=216877, visited on November 23 rd , 2006; Vesna Rakić Vodinelić, Whyto say NO to the Constitution, October 10 th , 2006, available at the website: http://www.cedajovanovic.com/code/navigate.php?Id=579, visited on November 23 th , 200617 See this reports analysis of the referendum campaign18 Celebration in Kosovska Mitrovica, B92, October 29 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=45&nav_id=217645, visited on November 23 rd , 200619 The meeting for the Constitution in K. Mitrovica, B92, October 26 th , 2006, website: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=10&dd=26&nav_category=11&nav_id=217110, visited on November 23 rd , 200610

Implementation of Transitional Laws in Serbia 2006In the Constitution of 1990 Serbia was defined as the state of „all citizenswho live in it“ 25International RelationsArticle 16The foreign policy of the Republic of Serbia shall be based on generally accepted principlesand rules of international law.Generally accepted rules of international law and ratified international treaties shallbe an integral part of the legal system in the Republic of Serbia and applied directly.Ratified international treaties must be in accordance with the Constitution.As in the case of the Constitutional Charter of the State Union of SCG 26 ,international relations are regulated in Article 16. However, unlike theConstitutional Charter, which stated that „Ratified international contractsand generally accepted rules of International law have precedence overthe laws of Serbia and Montenegro and the legislature of its constituentstates“ 27 , a sentence is added here that fundamentally changes the relationsof Serbia towards International law. Namely, in the final paragraph of thisarticle there is a regulation that the confirmed international contracts haveto be in accordance with the Constitution.The question arises, what happens when an international contract is differentfrom the Constitution. The Constitution does not envisage that possibility.It is clear that the Constitutional Court of Serbia cannot find articles of aninternational contract unconstitutional. On the other hand, it difficult toimagine that parties to a contract will change their document because it isdifferent from the Constitution of Serbia. The only remaining solution isfor Serbia to make all the documents contrary to its Constitution invalid. Itis not necessary to explain in detail where that would lead. In any case, thisstipulation constitutes a legal nonsense and it is impossible to implementit.php?id=122&start=75&nav_id=215343, visited on November 23 rd , 200625 The Constitution of the Republic of Serbia from 1990, adopted and entered into force on March 28 th , 1990,Official Gazette of RS number 1/90, Article 126 The Constitutional Charter of the State Union of Serbia and Montenegro, adopted and entered into force onFebruary 4 th , 2003, Official Gazette of SCG number 1/0327 Ibid, Article 1612

Implementation of Transitional Laws in Serbia 2006Considering the significant reduction of the degree of human rights inthe new Constitution, this erases one of the guarantees, which used to beavailable to the citizens. It is worth noting some of the most importantinternational documents, which are not in accordance with the Constitutionof Serbia, and therefore, it would seem, are not valid in Serbia:1. The International Covenant on Civil and Political Rights 28 stipulatesthe protection of the right to private and domestic life in Article 17.In the Constitution of Serbia, this right is not guaranteed.2. The European Convention for Human Rights 29 also guaranteesthe right to privacy in Article 8. The prohibition of religiousorganizations in the Constitution is much wider than the limitationsplaced on the freedom of association or the freedom of practicingreligion in the European Convention 30 .3. Protocol 4, following the European Convention in Article 1, predictsprohibition of debtor’s prisons. The Constitution of Serbia hasthrown out this prohibition from the catalogue of human rights 31 .4. Resolution 337 of the Council of Europe with Recommendation476 (1967) and 816 (1977) of the Parliamentary Assembly of theCouncil of Europe, as well as Recommendation R (87) 8 32 regulatethe right to Conscientious Objection. The Constitution of Serbiahas reduced this right to serving in the army without weapons,which betrays the very essence of Conscientious Objection.5. The European Charter on the Law for the Judges of the Councilof Europe 33 , as well as Recommendation number R (94) 12 ofthe Committee of Ministers of the Council of Europe 34 predictthe election of judges by an independent body in which at leasthalf the members are judges, as well as the permanency of judicialfunctions. According to the new Constitution, judges are electedfor the period of three years by the National Assembly (i.e. theparliamentary majority). Only after this does the jurisdiction moveto the hands of an independent body.28 International Covenant on Civil and Political Rights, adopted by the Resolution 2200A (XXI) of the GeneralAssembly on December 16 th , 1966, entered into force on March 23 rd , 197629 The European Convention on the Protection of Human Rights and Basic Freedoms, adopted on November4 th , 1950, entered into force on September 3 rd , 195330 See this reports analysis on religious freedoms31 Protocol 4 with the European Convention, Official Gazette of SCG (International Contracts) 9/0332 All the documents can be found translated in the book: Lawyers’ Committee for Human Rights, Objection ofConsciousness, Belgrade, 200033 European Charter on the Law for Judges of the Council of Europe from July 199834 Recommendation number R (94) 12 by the Committee of Ministers of the Council of Europe for the MemberStates on independence, efficiency and the roles of courts13

Implementation of Transitional Laws in Serbia 20066. The Framework Convention for the Protection of NationalMinorities of the Council of Europe 35 regulates in Article 15 theright of the minorities to be represented in the organs of publicgovernment. The Constitution of Serbia has reduced the achievedlevel of minority rights regulated by the Charter on Humanand Minority Rights 36 , leaving out the right of minorities to berepresented in the Representational bodies of the republic, theprovinces and local self-government, and the right to appropriaterepresentation in public services, organs of state authorities andlocal self-government.7. The OSCE Document from Copenhagen 37 regulates that a termbelongs to the representative and considers it one of the preconditionsfor the development of democracy and the parliamentarysystem. The regulations of the document are made valid by explicitreference to it in the European Security Charter from 1999 (theIstanbul Document) 38 . The Constitution of Serbia regulates thatthe terms of the representatives belong to political parties, on thebasis of blank resignations signed in advance.Thanks to the new Constitution, Serbia is facing the danger of isolation fromthe Council of Europe and the Organization for Security and Cooperationin Europe. Additionally, it is clear that for entering the European Unionwould not be possible with such constitutional regulations, because of thepossibility of transferring parts of Serbian sovereignty to a supranationalbody is not predicted anywhere in the Constitution. It is unclear why partieswhich are, at least according to their words, unanimously in favor of Serbiaentering into the European Union, have not in a single instance remembermade this goal possible in the new Constitution.35 Framework Convention for the Protection of National Minorities of the Council of Europe, ratified andentered into force on September 1 st , 2001, Official Gazette of SRY (International Contracts) 6/9836 Charter on Human and Minority Rights and Fundamental Freedoms, adopted and entered into force on February28 th , 2003,Official Gazette of SCG number 6/0337 The Document from Copenhagen is available at the website:http://www.osce.org/documents/odihr/1990/06/1902_en.pdf, visited on November 23 rd , 200638 The complete Charter can be obtained at the website: http://www.osce.org/documents/mcs/1999/11/17497_en.pdf, visited on November 23 rd , 200614

Implementation of Transitional Laws in Serbia 20062. Human and Minority Rights and FreedomsRestriction of Human and Minority RightsArticle 20Human and minority rights guaranteed by the Constitution may be restricted by thelaw if the Constitution permits such restriction and for the purpose allowed by theConstitution, to the extent necessary to meet the constitutional purpose of restriction in ademocratic society and without encroaching upon the substance of the relevant guaranteedright.Attained level of human and minority rights may not be lowered.When restricting human and minority rights, all state bodies, particularly the courts,shall be obliged to consider the substance of the restricted right, pertinence of restriction,nature and extent of restriction, relation of restriction and its purpose and possibility toachieve the purpose of the restriction with less restrictive means.Concerning restrictions on human and minority rights, legislation is reducedin comparison to the regulations of the Charter on Human and MinorityRights and Fundamental Freedoms of the State Union of Serbia andMontenegro 39 (in further text the Small Charter) can be seen. Above all, theregulation from Article 8 is missing, which used to forbid:No restriction shall be permitted of human and minority rights guaranteed by universallyaccepted rules of international laws, international treated valid in the state union and byvalid laws and other regulations, under the pretext that they are not guaranteed by thischarter or are guaranteed to a lesser extent. 40This regulation disabled restrictive interpretations of the human andminority rights guaranteed by the Constitution, i.e. it did not allow for thescope of rights achieved on the international level to be reduced. Thatsuch a situation is not unthinkable, can, however, be seen in the exampleof the human rights which have not been entered into the Constitution,such as the right to a private life, regulated by Article 8 of the EuropeanConvention 41 . Through restrictive interpretations of the Constitution, thecitizens could be left without the right to privacy and a private life.39 The Charter on Human and Minority Rights, see above under 3640 Ibid, Article 841 The European Convention for the Protection of Human Rights, see above under 2915

Implementation of Transitional Laws in Serbia 2006A similar stipulation exists in almost all the documents that deal withhuman rights. It has been articulated more than two centuries ago in the 9 thAmendment of the USA Constitution. It states:“The enumeration in the Constitution, of certain rights, shall not beconstrued to deny or disparage others retained by the people.” (Constitutionof the United States of America, adopted 1787, Amendment number 9,adopted 1791).The principle that a human right (which is innate and belongs to anindividual as soon as he/she is born), although not explicitly guaranteed bya document, is a very powerful principle and represents one of the cornerstones of international law as it pertains to human rights. By erasing it fromthe Constitution of Serbia, a clear message is being sent that human rightswere not a priority to the creators of this constitution.Another thing that can be noticed is the unnecessary reduction of the earlierthree Paragraphs of the Small Charter to only one sentence in Paragraph1 of the new Constitution. Unpolished and unintelligible sentences, whichare found in abundance in this Constitution, are not welcome in any legalacts, especially not in the supreme legal act. As in many other articles ofthe Constitution, it is unclear why identical regulations in the Small Charterwere not simply copied.The Constitution of Serbia can be compared only to the previous legaldocument which used to regulate human and minority rights. In the case ofSerbia, that is the Charter on Human and Minority Rights. Considering this,the arguments of some politicians and lawyers that human and minority rightsare better regulated by this Constitution than by Milosevic’s Constitution,are superfluous 42 . The only point of reference for the improvement oraggravation of the matter of regulating human and minority rights is theSmall Charter, and not the Constitution from 1990.42 The text of the Constitution is better, but the implementation…, B92, October 16 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=75&nav_id=216597, visited on November 23 rd , 2006; ThisConstitution is better than Milosevic’s, B92, October 3 rd , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=150&nav_id=214073, visited on November 23 rd , 200616

Implementation of Transitional Laws in Serbia 2006Prohibition of DiscriminationArticle 21All are equal before the Constitution and law.Everyone shall have the right to equal legal protection, without discrimination.All direct or indirect discrimination based on any grounds, particularly on race, sex,national origin, social origin, birth, religion, political or other opinion, property status,culture, language, age, mental or physical disability shall be prohibited.Special measures which the Republic of Serbia may introduce to achieve full equality ofindividuals or group of individuals in a substantially unequal position compared to othercitizens shall not be deemed discriminationThe regulation on the prohibition of discrimination is by all means one ofthe most important in any Constitution. Unfortunately, those who framedthe Constitution have determined that it is necessary to leave out somebases for discrimination. In this way, compared to articles of the SmallCharter, skin color has been ignored as a basis for discrimination 43 , eventhough numerous reports state that skin color is one of the most frequentbases for discrimination in Serbia 44 . The fact that all other aspects haveliterally been copied from the Small Charter is especially confusing.Furthermore, the absence of sexual preferences as the basis for discriminationis conspicuous. Although this basis was not specifically named in theSmall Charter either, the legislative practice in Serbia has already entered itinto many legal acts. Discrimination on the basis of sexual preferences isrecognized in the Law on Public Information 45 (Article 38) and the LaborLaw 46 (Article 18). Research by non-governmental organizations, indicatesthat discrimination on the basis of sexual preference is very frequentin Serbia 47 . Despite this, and despite the already achieved standard ofprohibition of this kind of discrimination in various laws, the Constitutiondoes not name sexual preference as a basis for discrimination. Organizationsthat deal with the protection of the rights of the LGBT population havesharply protested against this decision 48 .43 Article 3, Paragraph 3 of the Small Charter, see above under 3644 Humanitarian Law Center, The Roma in Serbia, Belgrade, 2003; Minority Rights Center, Violations of rights of theRoma in Serbia, report number 2, Belgrade, 200345 Law on Public Information, see above under 146 Labor Law, adopted on 15 th , March 2005, Official Gazette of RS number 24/0547 Labris, Annual report on the status of LGBT population in Serbia, Belgrade, 2006; Belgrade Center for HumanRights, Human Rights in Serbia 2005, Belgrade, 200648 What is offered in the draft of the Constitution, B92, October 24 th , 2006, see website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=45&nav_id=216774, visited on November 23 rd , 200617

Implementation of Transitional Laws in Serbia 2006Protection of Human and Minority Rightsand FreedomsArticle 22Everyone shall have the right to judicial protection when any of their human orminority rights guaranteed by the Constitution have been violated or denied, they shallalso have the right to elimination of consequences arising from the violation.The citizens shall have the right to address international institutions in order to protecttheir freedoms and rights guaranteed by the Constitution.The regulation of the protection of human and minority rights alsorepresents a setback compared to the solutions in the Small Charter. In theConstitution, it is stated that everyone has the right to judicial protection,while in the Small Charter efficient judicial protection was guaranteed 49 . Inthe European Convention, a right to an efficient legal solution is guaranteed 50 .This difference is of great significance, since not every judicial protection issufficient guarantee for the protection of human rights. On these grounds,the European Court for Human Rights has taken the position that the stateis obliged to provide not any, but efficient judicial protection 51 . In this waythis right became a part of generally accepted rules in Europe, and it isunclear why those who framed the Constitution decided to ignore it in thisway. It can also be assumed that the practice of the European Court willnot be recognized by the local judicial organs, considering the fact that it isin this case in discordance with the Constitution. This is so thanks to theArticle 16 of the Constitution, by which international contracts must be inaccordance with the Constitution!In the text of the Small Charter, along with the regulations on protection,there were also regulations on who a person can protest to in the case ofthe violation of human rights 52 . There are no such regulations in the 2006Constitution. Although it can be concluded from the fact that the regulationon constitutional appeals is placed in the chapter on the Constitutional courtthat this institution has jurisdiction over decisions on appeals, howeverthis is not explicitly stated anywhere. Moreover, in the Article 167 of the49 Article 9, Paragraph 1 of the Small Charter, see above under 3650 Article 13 of the European Convention, see above under 2951 For example, see the cases: Wille v. Lichtenstein, Aksoy v. Turkey or Klass and others v. Germany52 Article 9, Paragraph 2 of the Small Charter, see above under 3618

Implementation of Transitional Laws in Serbia 2006Constitution in which the jurisdictions of the Constitutional court are listed,there is no explicitly stated jurisdiction over the decisions on constitutionalappeals!In the Constitution of Serbia, the field of individual petitions of citizensto the international bodies for the protection of human rights is verypoorly regulated. The Constitution states: citizens have a right to turn tointernational institutions for the protection of their freedoms guaranteed bythe Constitution. In the Small Charter it was explicitly stated that the stateis obliged to carry out the decisions of the international organs, as well asto compensate for damages 53 . Also, unlike the Small Charter, which speaksof the rights guaranteed by the international contract valid in the territoryof Serbia and Montenegro 54 , the Constitution is limited only to the rightsguaranteed by the Constitution. It is unclear how the courts in Serbia willact if an international organ (for example the European Court for HumanRights) decides that a citizen’s right, which has not been regulated by theConstitution, was violated (for example the right to a private life). Will thedecisions of the court be carried out, or will Serbia have to step out of themembership in the Council of Europe?Right to Freedom and SecurityArticle 27Everyone has the right to personal freedom and security. Depriving of liberty shall be allowedonly on the grounds and in a procedure stipulated by the law.Any person deprived of liberty by a state body shall be informed promptly in a language theyunderstand about the grounds for arrest or detention, charges brought against them, and theirrights to inform any person of their choice about their arrest or detention without delay.Any person deprived of liberty shall have the right to initiate proceedings where the court shallreview the lawfulness of arrest or detention and order the release if the arrest or detention wasagainst the law.Any sentence which includes deprivation of liberty may be proclaimed solely by the court.Unlike the Small Charter, the Constitution omits an important regulationthat is an integral part of the right to freedom and security: the prohibition53 Ibid, Paragraph 354 Ibid19

Implementation of Transitional Laws in Serbia 2006of debtor’s prisons. In the Small Charter, in Article 14, Paragraph 3, it isstated that:„No one can be deprived of freedom only because they cannot fulfillcontractual obligation 55 .“Although it is clear that the whole of this article had been copied from theSmall Charter, the reason for canceling the prohibition of debtor’s prisonsremains ambiguous. Protocol 4, Article 1 of the European Convention alsoregulates this prohibition:„ No one can be deprived of freedom because they cannot fulfill thecontractual obligation 56 “To omit such an important prohibition from the constitutional catalogueof human rights represents an act of utter carelessness, at the very least. Aswith the right to privacy, there also remains the question whether the courtsin Serbia will be able to apply the regulations of the European Conventionand whether the practice of the European court on this matter will beacknowledged. In any case, the omission of the prohibition of debtor’sprisons in the Constitution represents a dangerous act without any kind ofexplanation and it can be expected that it will cause negative consequencesin the future.55 Article 14, Paragraph 3 of the Small Charter, see above under 3656 Article 1of the Protocol 4 with the European Convention, see above under 3120

Implementation of Transitional Laws in Serbia 2006Inviolability of HomeArticle 40A person’s home shall be inviolable.No one may enter a person’s home or other premises against the will of their tenant norconduct a search in them. The tenant of the home or other premises shall have the right to bepresent during the search in person or through his legal representative together with two otherwitnesses who may not be under age.Entering a person’s home or other premises, and in special cases conducting search withoutwitnesses, shall be allowed without a court order if necessary for the purpose of immediatearrest and detention of a perpetrator of a criminal offence or to eliminate direct and gravedanger for people or property in a manner stipulated by the law.Confidentiality of Letters and Other Meansof CommunicationArticle 41Confidentiality of letters and other means of communication shall be inviolable.Derogation shall be allowed only for a specified period of time and based on decision of thecourt if necessary to conduct criminal proceedings or protect the safety of the Republic ofSerbia, in a manner stipulated by the law.Protection of Personal DataArticle 42Protection of personal data shall be guaranteed.Collecting, keeping, processing and using of personal data shall be regulated by the law.Use of personal data for any the purpose other the one were collected for shall be prohibitedand punishable in accordance with the law, unless this is necessary to conduct criminalproceedings or protect safety of the Republic of Serbia, in a manner stipulated by the law.Everyone shall have the right to be informed about personal data collected about him, inaccordance with the law, and the right to court protection in case of their abuse.One of the standard rights, guaranteed by the European Convention onHuman Rights and by the Small Charter, is the right to respect private and21

Implementation of Transitional Laws in Serbia 2006family life and the right to privacy. The European Convention defines thisright in Article 8 in the following way:„1. Everyone has the right for their private and family life, home andcorrespondence to be respected.2. Public authorities will not participate in the execution of this right, unlessit is in accordance with the law and necessary in a democratic society in theinterest of national security, public security, or the economic welfare of thecountry, for preventing riots and crimes, protection of health or morals, orfor the protection of rights and freedoms of others. 57 “In a similar way, the Small Charter regulates the same thing in Article 24,Paragraph 1:„Everyone has a right for their private and family life, home and secrecy ofcorrespondence to be respected 58 “.The 1990 Constitution of Serbia also regulated the right to private life inArticle 18, in which it is stated that human dignity and the private life of aperson are inviolable 59 . One of the basic international documents on theprotection of human rights, the 1966 United Nations’ Covenant on Civiland Political Rights, in Article 17 also regulates the right to a private life 60 .In this Article it is stated that:„1. No person can be the object of arbitrary or unlawful interference in theirprivate life, their family, their home or their correspondence, nor unlawfulinjuries to their honor or their reputation.2. Every person has the right to protection by the law from such interferenceand injuries 61 “However, this right has not been put in the catalogue of human rights ofthe new Constitution. Instead of the standard and so far undisputed way ofregulating and stipulating this law, those who framed the constitution havedecided to single out three of its segments, the inviolability of home 62 , the57 Article 8 of the European Convention, see above under 2958 Article 24, Paragraph 1 of the Small Charter, see above under 3659 The Constitution of Serbia from 1990, Article 18, see above under 2560 The International Covenant on civil and political rights, see above under 2861 Ibid, Article 1762 Article 40 of the new Constitution, see above under 722

Implementation of Transitional Laws in Serbia 2006secrecy of correspondence and other means of communication 63 , and theprotection of data about a person 64 . This completely original solution is notonly an unjustified and unnecessary tailoring of existing human rights, butit also dangerously diminishes the rights of citizens to exercise some otheraspects of law, developed through the practice of the European Court forHuman Rights in Strasburg.Practice of European Court recognize right to privacy as one of the mostefficient obstacles for unjustified meddling of the state in the private livesof the citizens and an abundant source of new solutions and improvementsfor the protection of individuals 65 . According to the previous practice, inthe field of this right, the Court dealt with the following subjects: gatheringand using information about a person 66 , medical examinations 67 , rights ofpersons with same sex orientation 68 , abortion 69 , privacy of sexual life 70 ,name 71 , business and professional relations 72 , psychological integrity 73 ,biological parenting 74 , problems of child adoption 75 , endangering family lifeby deportation 76 , contact of prisoners with family members 77 , inviolabilityof the home 78 , violation of home by means of noise, smell, pollution orharassment 79 , correspondence of prisoners 80 , issues on the quality of lawswhich regulate were tapping and gathering information 81 , and other aspectsof life in which the violation of privacy is conceivable.Practicing the right to privacy even in its narrow meaning has beenprecluded by leaving out this article. The concept of the right to privacyhas been articulated in the end of the 19. Century in US legal theory. It wasformulated in an expert article by Samuel D. Woren and Luis Brendis in the63 Ibid, Article 4164 Ibid, Article 4265 The European Court has taken the position that the contents of this right cannot be taxatively determined inadvance in the case Costello – Roberts v. Great Britain66 For example: the case X v. Great Britain, case X v. Austria, case Gaskin v. Great Britain, case Leander v. Sweden orthe case Rotaru v. Romania67 For example: X v. Austria, X v.Federal Republic of Germany or X v. Holland68 X v. Federal Republic of Germany, X v. Great Britain, case Noriss i Modinos or the case Dudgeon v. Great Britain69 Case Bruggemann and Scheuten v. Federal Republic of Germany or Hertz v. Norway70 Case Dudgeon v. Great Britain or X v. Federal Republic of Germany71 For example: case B v. France or the case Stjerna72 For example: case: Niemietz v. Germany73 For example: case X i Y v. Holland or the case Costello Roberts v.Great Britain74 For example the case Kroon75 For example: case X v. France or Cecilia i Lisa Eriksson v. Sweden76 For example: case Moustaquin v. Belgium or Beldjoudi v. France77 For example: case X v. Austria, X v. Great Britain or X i Y v. Switzerland78 For example: case Gillow, Cyprus v. Turkey or the case Velosa Barreto79 For example: case Arrondelle v. Great Britain or the case Powell i Rayner80 For example: case Boyle and Rice, case Reed v.Great Britain or the case Pfeifer and Plankl81 For example: case Klass and others v.Germany, Kopp v. Switzerland or Rotaru v. Romania23

Implementation of Transitional Laws in Serbia 2006end of the 19. Century, and accepted in practice in 1905. in the ruling ofthe Supreme Court of the state of Georgia in Pavesich v. New England LifeIns. Co 82 . A constricted understanding of the right to privacy is used eventoday in many cases, primarily as a restriction to the right to free press. 83These two rights can often be in conflict (when details from the private lifeof an individual are published), therefore it is very important to keep thesetwo rights in a balance and to not let either one of them become moreimportant. Both of these interests need to be protected. 84 One can notspeak about a balance between these two rights in Serbia because the newConstitution has eliminated the right to privacy.In this way the obligations of Serbia resulting from it’s membership inthe European Council and the obligations of the European Conventionas a ratified international document have been severely violated. Theaccomplished level of protection of human rights has also been reduced,which is explicitly prohibited by International law and the previousconstitutional solutions (this prohibition has remained also in the newConstitution) 85 . Considering the fact that Article 22 Paragraph 2 of theConstitution allows for citizens to appeal to international bodies only in thecase of the violation of rights in this Constitution, it is unclear how citizenswill appeal in the future on the violation of Article 8 of the EuropeanConvention, and whether governmental organs in Serbia will be obliged toapply the potential decisions of the Court. It is hardly necessary to pointout that not accepting the European Convention and court decisions willhave enormous negative consequences for Serbia, including the cancelingof membership in the European Council.Churches and Religious CommunitiesArticle 44Churches and religious communities are equal and separated from the state.Churches and religious communities shall be equal and free to organize independently their82 Sasa Gajin, Contemporary understanding of the concept and structure of the right to privacy in the practiceof the Supreme Court of the United States of America, published in: Institute for comparative law, Foreign legallife, Belgrade, 199183 For further reading: Sasa Gajin, Concept of Article 8 European convention for human rights, published in:Institute for comparative law, Foreign legal life, Belgrade, 199284 See for example: a case before the European Court for Human Rights: Carolina of Monaco v. Germany85 See Article 20, Paragraph 2 of the new Constitution of Serbia and Article 57, Paragraph 1of the Small Charter,see above under 3624

Implementation of Transitional Laws in Serbia 2006internal structure, religious matters, to perform religious rites in public, to establish and managereligious schools, social and charity institutions, in accordance with the law.Constitutional Court may ban a religious community only if its activities infringe the right tolife, right to mental and physical health, the rights of child, right to personal and family integrity,public safety and order, or if it incites religious, national or racial intolerance.Concerning the article which regulates the position of churches andreligious communities, Paragraph 3 which deals with the possibility ofbanning a religious community is singled out as especially controversial.Although the term „churches and religious communities“ is used in thepreceding two Paragraphs, in the third Paragraph it is explicitly stated thatthe Constitutional Court can ban only a religious community. Consistentinterpretation of this article leads to the conclusion that it is not possibleto ban the work of churches in Serbia, regardless of their activities. Inaddition to that, it is unclear how churches are defined, and how religiouscommunities are defined. The small Charter did not make this sort ofdistinction, but spoke only of religious communities 86 . If we take thedistinction between churches and religious communities from the Lawon churches and religious communities as relevant, traditional religiouscommunities are only the Islamic and the Jewish religious communities,while all Christian denominations are organized into churches 87 . Accordingto this, by the new Constitution the banning of Islamic and Jewish religiouscommunities is allowed, but not of the Serbian Orthodox Church or theRoman-Catholic Church. Such a solution is in discord not only with thealleged equality of churches and religious communities guaranteed in thefirst two Paragraphs of Article 44 of the Constitution, but also with previousconstitutional solutions which did not make this kind of distinction 88 .The list of reasons for banning a religious community is impressive.The whole new Constitution introduces the practice of legal galimatiasconcerning the reasons for the limitation of a particular right. Instead ofthe usual formulation from the European Convention where public safety,public order, health, morals and the rights and freedoms of others aremainly mentioned, the list in the Constitution is creatively widened fromone article to another. In that way we have formulations such as „the morals86 Article 27 of Small Charter, see above under 3687 Law on Churches and Religious Communities, Official Gazette of RS, number 36/06, Article 1088 Article 27 of Small Charter, Article 41 of Constitution of Serbia from 199025

Implementation of Transitional Laws in Serbia 2006of a democratic society 89 “, or „morals in a democratic society 90 “ whichmean absolutely nothing, while in Article 54 which regulates the freedomof gathering, the reason is only the morals. It is unclear what the differenceis between „ordinary“ and the „morals of a democratic society“, as wellas why the framers of the constitution felt the need to point out that inregulating religious beliefs the morals of a democratic society should betaken into account, while that society does not have to be democratic whenit comes to the freedom of gathering.The framers of the constitution acted in a similar way when they regulatedthe reasons for banning religious communities. The European Conventionrecognizes the following reasons for limitations of the freedom ofassociation: public or national security, health or morals, preventing riotsand crime and the protection of the rights of others 91 . Paragraph two ofArticle 9 of the European Convention states:The freedom of practicing religion or convictions can be submitted to only those limitationswhich are stipulated by the law and necessary in a democratic society in the interest ofpublic safety, for the protection of public order, health or morals, or for the protection ofrights and freedoms of others. 92The new Constitution also accepts similar grounds for limitations of thefreedom of practicing religion 93 . The practice of the European Court hasestablished that it is possible to violate this right also by banning a religiousorganization 94 , so articles 43 and 44 of the Constitution of Serbia havenot been coordinated. Instead of taking these standard principles, withadditional warranties to do this only when necessary in a democratic societyand as stipulated by the law, the framers of the Constitution have decided todramatically widen the scope of reasons which allow religious communitiescan be banned. It is unclear how the court will interpret the regulationby which a religious community can be banned because of the violationof the right to personal and family integrity, or the right to property. Thefear remains that such regulations provide overly wide possibilities forinterpretation, especially keeping in mind the hostile relations betweenreligious communities in Serbia 95 .89 Article 43 of Constitution of Serbia, see above under 790 Ibid, Article 3291 Article 11, Paragraph 2 of the European Convention, see above under 2992 Article 9, Paragraph 2 of the European Convention, see above under 2993 Article 43, Paragraph 4 of the Constitution of Serbia, see above under 794 See the case Mitropolian church of Besarabia and others v. Moldavia95 On the position of small religious communities more in: Belgrade Center for Human Rights, Human rights in26

Implementation of Transitional Laws in Serbia 2006Conscientious ObjectionArticle 45No person shall be obliged to perform military or any other service involving the use of weaponsif this opposes his religion or beliefs.Any person pleading conscientious objection may be called upon to fulfill military duty withoutthe obligation to carry weapons, in accordance with the law.The regulation concerning the Objection of Conscience is another classiccase of the reduction of the achieved level of human rights. Althoughthis regulation had been copied from the small Charter, Paragraph two inwhich it was stated that a person pleading objection of conscience can becalled to fulfill an appropriate civil service as regulated by the law, hadbeen changed 96 . In the new Constitution, the term „civil service“ had beenreplaced by „army obligation“. While the intention of the framers of theconstitution is unclear, it is extremely important that they omitted the words„civil service“.The right to the objection of conscience is a right which enables a person toexchange their military obligation with serving in the civil service, not onlywithout weapons, but also without serving in military objects, institutionsor services. This is also clearly regulated by international documents whichprotect the right to the objection of conscience. This right had beenregulated in 1967 by the Parliamentary Assembly Resolution of the Councilof Europe number 337 97 , and later confirmed by the Recommendations476 (1967) and 816 (1977) of the Parliamentary Assembly of the Councilof Europe, as well as Recommendation R (87) 8 on the right to an objectionof conscience to military service which was adopted by the Committee ofMinisters of the Council of Europe 98 .By regulating the right to the objection of conscience in this way, Serbia hasreturned to the solution which was relevant to the Law on the army from2002 99 , and which was criticized by both the local public and experts andSerbia and Montenegro 2005, Belgrade, 2006, as well as on the website: www.forum18.org96 Article 28, Paragraph 2 of the Small Charter, see above under 3697 Article 1 of the Resolution 337 of the Council of Europe98 The translations of all the documents are available in the book by the Lawyers’ Committee for Human Rights:Objection of Conscience, Belgrade, 200099 The law on changes and additions to the law on Yugoslav Army, Official Gazette of SRJ number 3/200227

Implementation of Transitional Laws in Serbia 2006the Council of Europe 100 . The solution accepted in the new Constitutionleads to the narrowing of the right to objection of conscience, achieved inboth the legislature and practice, which is strictly forbidden in the field ofhuman rights.Right to InformationArticle 51Everyone shall have the right to be informed accurately, fully and timely about issues of publicimportance. The media shall have the obligation to respect this right.Everyone shall have the right to access information kept by state bodies and organizationswith delegated public powers, in accordance with the law.The right to free access of information has been renamed in the newConstitution as the right to be informed. The creators of the Constitutiondid not explicate why they have changed the name of this right. In additionto the name, the substance of the right has been changed as well. In theLaw of the Free Access to Information of Public Importance one can findthe following definition:Everyone shall be entitled to be informed as to whether a government agency possesses aspecific piece of information of public import, and/or whether it is otherwise accessibleto him.Everyone shall be entitled to have an information of public import accessible to him, byenabling him to have an insight into the document containing the piece of information ofpublic import, the right to a copy of such document, as well as the right to be sent, at therequest, a copy of the document by mail, telex, electronic mail or in some other way. 101In addition to a broader definition of the obligations of the governmentalbodies, even those bodies are defined by the Law as much broader than inthe Constitution. Thus, the Law states that the following are consideredgovernmental bodies:1) a public agency, a territorial autonomy agency, a local self-government agency, as wellas organizations entrusted with carrying out public powers (hereinafter: public agency);100 More on this in the book by the Lawyers’ Committee for Human Rights: Objection of Conscience, Belgrade,2000101 Law on free access to information, Article 5, see above under 328

Implementation of Transitional Laws in Serbia 20062) a legal entity established or financed, in its entirety and/or predominantly, by a publicagency. 102According to Constitution, everyone has the right to the access to dataowned by state bodies and organizations which are entrusted with publicauthorizations. There is no word about the bodies of territorial autonomynor local self-governance or legal entity set up or backed up by a state body.In this way, already reached level of right to free access to information isextremely lowered.Also, the Commissioner had not been made a constitutional category, unlikethe ombudsman 103 . According to the Constitutional law, it is regulated thatthe newly elected members of the Parliament will, during the first session,coordinate with the Constitution the laws which regulate the Protector ofcitizens and the realization of the right of the citizens to be informed andelect the Protector of citizens, the organ responsible for monitoring therealization of the right of the citizens to be informed, the President of theNational Bank of Serbia and the organs of the State revisory institution 104 .There is no need to coordinate the law on free access to information withthe Constitution, so the intention of the framers of the law is not clear.Furthermore, „the organ responsible for monitoring the right of thecitizens to be informed”, as the Constitution calls it, already exists. His titleis the Commissioner for information of public significance and accordingto the law his term lasts for seven years. A question arises why the lawanticipates the election of this organ. There are objective indications thatthe Government wants to significantly narrow the authorizations of thecommissioner or to cancel it as an institution, and possibly name a neworgan which would monitor a so far non-existent „right of the citizens to beinformed”. Another function of the commissioner is not only to monitorthe realization of the right of free access to information, but also to protectit. By such an act the accomplished rights would be diminished, which isforbidden both by the international regulations, and the Constitution ofSerbia 105 .Nongovernmental organizations Center for the Advanced Legal Studies102 Ibid, Article 3103 Ibid, Article 131104 Constitutional Law for the implementation of Constitution of Serbia, adopted November 10 th , 2006, OfficialGazetta of RS, number 98/06, Article 5105 Constitution of Serbia, Article 20, see above under 729

Implementation of Transitional Laws in Serbia 2006and Youth Initiative for Human Rights sent an open letter to the MPs onNovember 9 th , 2006. In this letter, they warned that decreasing the right tofree access of information in inadmissible: 106“Do not even think about introducing the new legal provisions in orderto reduce the Commissioner’s work to “the monitoring of the right ofcitizens to be informed”. The Commissioner’s work is clearly stipulated bythe Law and consists, primarily, of providing legal aid to those who havebeen denied access to the information possessed by a state institution. Thisis the European and world standard from which MPs must not deviate,because any deviation would be conducive to a breach against the rule whichprohibits the attained level of human rights protection to be subsequentlyabased (Article 20, Count 2, new Constitution of Serbia)”. 107Right to Enter into Marriage and Equality ofSpousesArticle 62Everyone shall have the right to decide freely on entering or dissolving a marriage.Marriage shall be entered into based on the free consent of man and woman before the statebody.Contracting, duration or dissolution of marriage shall be based on the equality of man andwoman.Marriage, marital and family relations shall be regulated by the law.Extramarital community shall be equal with marriage, in accordance with the law.In this Article the achieved level of human rights had also been reduced. Thesmall Charter contained a regulation in which it was stated that a marriagecan be concluded on the basis of free consent of the future spouses 108 .Contrary to that, the Constitution defines the sex of the future spouses, sothat they have to be a man and a woman. By this restriction the strugglerecognition of marriage between persons of the same sexual orientation,which has already been recognized, is limited 109 . In Serbia, such aspirations106 The letter is available at the web site: http://www.yihr.org/english/PressReleases/2006/2006HTML/DO%20NOT%20TOUCH%20THE%20LAW%20ON%20FREE%20ACCESS%20TO%20INFORMATION.php,visited on November 25 th 2006107 Ibid108 Article 25, Paragraph 1 of the Small Charter, see above under 36109 Holland, Belgium, Spain, Sweden...30

Implementation of Transitional Laws in Serbia 2006will automatically be stopped by this kind of constitutional solution, whichhad not been banned in the previous Charter.Freedom to ProcreateArticle 63Everyone shall have the freedom to decide whether they shall procreate or not.The Republic of Serbia shall encourage the parents to decide to have children and assist themin this matter.Regulations on the freedom to procreate have unnecessarily been changed,which has created confusion about who can make a decision on childbirth.The logical and natural solution, until now undisputed in the Serbianlegislature, was that the mother decides whether to give birth or not. In theEuropean system of human rights this is also a right of privacy, which hasnot been regulated by the Constitution. Instead of the right of a motherto decide on childbirth, the new Constitution regulates that anyone candecide on childbirth. Such a formulation, besides being nonsensical (whatdoes everyone mean? — father, state, party, church...), also gives rise to thequestion of the intentions of the framers of the Constitution concerningthe right to abortion. A conservative attitude of a future ConstitutionalCourt of Serbia could easily interpret this regulation in a way that wouldendanger the achieved level of human rights, and even ban abortion.Right to Legal AssistanceArticle 67Everyone shall be guaranteed right to legal assistance under conditions stipulated by the law.Legal assistance shall be provided by legal professionals, as an independent and autonomousservice, and legal assistance offices established in the units of local self-government in accordancewith the law.The law shall stipulate conditions for providing free legal assistance.Legal assistance is regulated in the Constitution in a way which does notleave space for the public discussion which is now in progress in Serbia, onwhat legal assistance is and who has the right to give it. The Constitution31

Implementation of Transitional Laws in Serbia 2006has taken the side which has already been characterized as restrictive andunsatisfactory in the civil sector 110 . By such a regulation, the right to givinglegal assistance has been taken away from exactly those subjects which haveuntil now been doing it most, and in the most expertise way. First of all,these subjects are non-governmental organizations, unions, universitiesand the like. In the past 15 years non-governmental organizations havebeen giving legal assistance to the most endangered groups of citizenssuch as refugees, victims of discrimination, victims of domestic violence,the poor, the Roma, victims of police torture, etc. Furthermore, the nongovernmentalorganizations were engaged in the making of a draft of theLaw on legal assistance 111 .On the other hand, even the draft of the law on legal assistance from theMinistry of Justice workgroup, anticipates the possibility of giving primarylegal assistance by the organizations of civil society (legal council, somekinds of petitions, etc.) 112 . The Constitution explicitly states who can givelegal assistance and reduces the providers to the legal profession and servicesof legal assistance in the units of local self-management. It is unclear whythe implementation of one of the human rights, such as the right to legalassistance, would be limited and given only to particular institutions andprofessions.Right to Preservation of SpecificityArticle 79Members of national minorities shall have a right to: expression, preservation,fostering, developing and public expression of national, ethnic, cultural, religiousspecificity; use of their symbols in public places; use of their language and script; haveproceedings also conducted in their languages before state bodies, organizations withdelegated public powers, bodies of autonomous provinces and local self-governmentunits, in areas where they make a significant majority of population; education110 On the attitudes of the civil sector on legal assistance see the addition in the daily newspaper DANAS fromJune 24 th , 2005, available at website: http://www.danas.co.yu/20050624/pravo1.html, visited on November 3 rd, 2006111 The result of these efforts is the draft of the law done by the Center for Advanced Legal Studies, availableat website: http://www.cups.org.yu/files/model_ZAKONA_o_pravnoj_pomoci.doc, visited on November 3 rd, 2006112 The draft of the law by the Ministry of Justice Workgroup had been presented at the meeting with nongovernmentalorganizations in Belgrade, May 25 th , 2006, the report from the meeting is in the documentationof the Initiative32

Implementation of Transitional Laws in Serbia 2006in their languages in public institutions and institutions of autonomous provinces;founding private educational institutions; use of their name and family name intheir language; traditional local names, names of streets, settlements and topographicnames also written in their languages, in areas where they make a significant majorityof population; complete, timely and objective information in their language, includingthe right to expression, receiving, sending and exchange of information and ideas;establishing their own mass media, in accordance with the Law.Under the Law and in accordance with the Constitution, additional rights ofmembers of national minorities may be determined by provincial regulations.The regulations in this Article have been completely copied from Article 52of the small Charter. However, two rights have been left out. Those are:- to a certain number of mandates in the Assembly of the state unionof Serbia and Montenegro, proceeding from the principle of directrepresentation, in accordance with the laws of the member states;- to be adequately represented in public services, state authorities and localself-governance authorities;By leaving out these rights, the achieved level of the protection of minorityrights has been dramatically reduced, which is explicitly forbidden by theLaw on national minorities 113 . Furthermore, by leaving out the warrantiesto equal participation in government, the Article 15 of the FrameworkConvention for the protection of national minorities is being violated 114 .In this way another important international document has been brought todiscord with the new Constitution, and is in danger of being left out of thelegal system in Serbia.The right to equal representation in the organs of public authorities is oneof the rights of national minorities which is violated the most. Reportsfrom non-governmental organizations speak of under-representation ofthe members of national minorities in almost all state services, especiallyin the police and judicial organs 115 . Citizens of Serbian nationality make themajority in the police even in municipalities where more than 90 per cent of113 The Law on the Protection of Rights and Freedoms of National Minorities, adopted on February 27 th , 2002,Official Gazette of SRY number 11/02114 Article 15 of the Framework Convention, see above under 35115 Humanitarian Law Center, Alternative report for the implementation of the Framework Convention for the protection ofnational minorities, Albanians in Serbia, Belgrade, 2003; Humanitarian Law Center, The Roma in Serbia, Belgrade, 2003;Helsinki Committee for Human Rights, In conflict with the ethnical identity of the state, Belgrade, 2004; Youth Initiativefor Human Rights, The implementation of transitional laws in Serbia, Belgrade, 200533

Implementation of Transitional Laws in Serbia 2006the population is of non-Serbian nationality 116 . In the Parliament of Serbia,only two per cent of 250 representatives belong to one of the parties ofthe national minorities 117 . None of the Ministers in the Government of theRepublic of Serbia belong to any of the minority parties 118 . By leaving thisright out of the Constitution, discrimination on employment in the organsof the public authorities will be legalized. In this way also, the Constitutionwill, in addition to defining Serbia as a national state, send a message tothe members of national minorities that they do not have an equal legalposition and that will not be treated in the same way as the citizens ofSerbian nationality.116 For example the Tutin municipality, more on this in: The Sandzak Board for the protection of human rightsand freedoms, The state of human rights and recommendations for their protection, Novi Pazar, 2004117 The list of the Representatives in the National Assembly of Serbia is available at the website: http://www.parlament.sr.gov.yu/content/cir/sastav/poslanici.asp, visited on November 4 th , 2006118 The structure of the Government of the Republic of Serbia is available at the website: http://www.srbija.sr.gov.yu/vlada/sastav.php, visited on November 14 th , 200634

Implementation of Transitional Laws in Serbia 20063. Organization of Government3. 1. National AssemblyStatus of DeputiesArticle 102The term of office of the deputy shall begin on the day of confirmation of terms of officein the National Assembly and last four years, that is until the expiry of terms of officeof deputies of that session of the National Assembly.Under the terms stipulated by the Law, a deputy shall be free to irrevocably put his/herterm of office at disposal to the political party upon which proposal he or she has beenelected a deputy.Deputy may not be a deputy in the Assembly of the autonomous province, nor anofficial in bodies of executive government and judiciary, nor may he or she perform otherfunctions, affairs and duties, which represent a conflict of interest, according to the Law.Election, expiry of the term of office and status of deputies shall be stipulated by theLaw.The new Constitution of Serbia states that the parliamentary representativeis free to put his term of office irrevocably in the hands of the politicalparty on whose suggestion he had been elected as a representative. Such aformulation avoids to determine clearly who the term of the representativebelongs to, i.e. whether it is free or connected to the party. Through analysis,a conclusion can be made that this depends on the wishes of both theparty, and the representative himself. It is not difficult to assume that sucha regulation had been accepted in order to legalize the custom by which therepresentatives, in order to be elected, give their parties blank resignations.The parties can activate those resignations at any given moment. In thisway, a system in which the term of office is practically the property of theparty, and not the representative himself is established.This is in direct opposition with the attitude of OSCE, which hasrecommended that the representatives should be able to handle their termsof office themselves 119 . The recommendation of OSCE directly leans on119 See the final report of OSCE on the elections in Serbia 2003, on the website: http://www.osce.org/documents/odihr/2004/02/2177_sr.pdf,visited on November 23 rd , 200635

Implementation of Transitional Laws in Serbia 2006the Copenhagen Document adopted in 1990 120 , which Serbia had acceptedby entering this organization 121 . The Copenhagen Document regulates thatthe Governments of the members of OSCE are obligated to: „provide thecandidates who get the necessary number of votes by the law to be orderlyintroduced in their duties and to be enabled to stay on duty until theirterm expires, or is brought to an end in another way stipulated by the law,according to democratic, parliamentary and constitutional procedures“ 122 .In the abovementioned report of the mission of OSCE from 2003 on theregulation by which terms of office are in the possession of the parties andnot the representatives, it is, among other things, stated: „Such a regulationis in discord with Paragraph 7.9 of the Copenhagen Document from1990, which Serbia and Montenegro have signed 123 “. In the same report,Recommendation number 3 in the part which deals with legal frames states:„Regulations which deal with the ownership of the terms of office of theelected representatives (Article 88 of the Parliamentary Election Law) needto be changed in order to reflect the decisions of the Constitutional Courtand be in accordance with the preferences and obligations of OSCE 124 “.The Constitutional Court of Serbia declared on 27th May 2003 that it isunconstitutional to tie representatives’ terms to political parties 125 . This time,neither the mission of OSCE in Belgrade 126 , nor Slobodan Vucetic, at thetime president of the Constitutional Court of Serbia 127 had any objectionsto the contents of the Constitution.Considering that the new Constitution stipulates the obligatory accordanceof international documents with constitutional regulations, it is obviousthat Serbia is facing not only elimination from the Council of Europe, butOSCE also.120 The Document from Copenhagen is available on the website:http://www.osce.org/documents/odihr/1990/06/1902_en.pdf, visited on November 23 rd , 2006121 On the occasion of the former SRY joining in OSCE on November 27 th , 2000, at the ministerial council inVienna, the President of SRJ Vojislav Kostunica also signed the document from Istanbul, the Charter for EuropeanSafety, see the announcement of OSCE on the website: http://www.osce.org/item/5584.html, visited onNovember 23 rd , 2006. In Item 25 of this Charter it is stated: „We confirm our obligation to conduct free and fairelections in accordance with the obligations of OSCE, and especially the Copenhagen Document from 1990.”The complete Charter can be found on the website: http://www.osce.org/documents/mcs/1999/11/17497_en.pdf, visited on November 23 rd , 2006122 Item 7.9 of the Copenhagen Document123 The Final Report of the OSCE Mission, see above under 119124 Ibid125 Decision of the Constitutional Court of Serbia from May 27 th , 2003, by which the regulations from Article88, Paragraphs 1 and 9 of the Law on the election of parliamentary representatives have been proclaimed unconstitutional126 On the attitude of OSCE, see the open letter of 20 non-governmental organizations on the website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=60&nav_id=215784, visited on November 23 rd , 2006127 Slobodan Vucetic has stated his attitude on the Constitution in the text published in BLIC, on October 20 th, 2006, website: http://www.blic.co.yu/blic/arhiva/2006-10-20/strane/tema.htm#2, visited on November 23 rd, 200636

Implementation of Transitional Laws in Serbia 20063.2 CourtsPermanent Tenure of OfficeArticle 146A judge shall have a permanent tenure.Exceptionally, a person who is elected a judge for the first time shall be elected for theperiod of three years.Election of JudgesArticle 147On proposal of the High Judicial Council, the National Assembly shall elect as a judge theperson who is elected to the post of judge for the first time.Tenure of office of a judge who was elected to the post of judge shall last three years.In accordance with the Law, the High Judicial Council shall elect judges to the posts of permanentjudges, in that or other court.In addition, the High Judicial Council shall decide on election of judges who hold the post ofpermanent judges to other or higher court.3.3 The High Judicial CouncilStatus, Constitution and ElectionArticle 153The High Judicial Council is an independent and autonomous body which shall provide for andguarantee independence and autonomy of courts and judges.The High Judicial Council shall have eleven members.The High Judicial Council shall be constituted of the President of the Supreme Court ofCassation, the Minister responsible for justice and the President of the authorized committeeof the National Assembly as members ex officio and eight electoral members elected by theNational Assembly, in accordance with the Law.Electoral members shall include six judges holding the post of permanent judges, of which oneshall be from the territory of autonomous provinces, and two respected and prominent lawyerswho have at least 15 years of professional experience, of which one shall be a solicitor, and the37

Implementation of Transitional Laws in Serbia 2006other a professor at the law faculty.Presidents of Court may not be electoral members of the High Judicial Council.Tenure of office of the High Judicial Council’s members shall last five years, except for themembers appointed ex officio.A member of the High Judicial Council shall enjoy immunity as a judge.The independence and permanence of judicial functions are the basicprinciples of the right to a fair trial. They are undisputed in countries witha democratic social structure. Their contents are regulated by Acts of theEuropean Council. Recommendation number R (94) 12 of the Committeeof Ministers of the European Council regulates the rules of independence,efficiency and roles of the court. In Principe I, Paragraph 2c of theRecommendation it is stated:The organ which brings decisions on the election of judges and their advancement incareer should be independent from the Government and the complete executive authorities.In order to provide its independence, regulations should be made, for example, that ismembers are elected by the judiciary and that this body only decides on the rules by whichit will act 128 .Following the solutions from the Recommendation, the European Counciladopted in 1998 the European Charter on the Law for judges. In GeneralPrinciples, Paragraph 1.3 it is also stated:Concerning every decision which has influence on the choice, employment, appointment,advancement in career or the cessation of functions of judges, the law anticipates anintervention of organs independent from executive and legislative authorities, of whosemembership at least five are judges elected by their colleague judges, in a way whichguarantees the greatest representation of the judiciary. 129The Constitution regulates that the Parliament chooses the judges for thefirst time on the recommendation of the High Judicial Council. However,contrary to the recommendations of the Council of Europe, the electionof the members of the High Judicial Council who come from the judicialsphere is completely left to be regulated by the law. That means that theparliamentary majority could regulate the criteria for the election, determinewho gives recommendations and in the end elect six judges of their own128 Recommendation of the Council of Europe number 12, see above under 34129 European Charter on the law for judges, see above under 3338

Implementation of Transitional Laws in Serbia 2006liking in the High Judicial Council. With this solution, the principle of theindependence of judicial authorities has been seriously threatened. TheEuropean Commission has listed the faults of the mechanisms whichwould guarantee the independence of the judiciary as one of the basicfaults of the new Constitution 130 . Representatives of the judiciary in Serbiahave also criticized such a solution, stating that it would lead to a greatinfluence of executive authorities on the judicial authorities 131 . The Judge ofthe District Court in Belgrade, Omer Hadziomerovic, claims that the HighJudicial Council is „by its composition and the way of electing members,actually a parliamentary body“ 132 . Objections to the election of the HighJudicial Council, but also to some other regulations in the Constitutionwhich regulate judicial authorities, were presented by the President of theSupreme Court of Serbia, Vida Petrovic Skero 133 .130 The report of the EC can be found on the website of the Delegation of the European Commission inBelgrade: http://www.delscg.cec.eu.int/en/eu_and_fry/key_documents/documents/2006_Annual_Progress_Report_(sr_sec_1389_en).pdf,visited on November 24 th , 2006; the cited part of the report in Serbian wastaken fro the website of B92: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=11&dd=08&nav_category=11&nav_id=219052, visited on November 24 th , 2006131 Interview of Dragana Boljevic, spokesperson of the Judges’ Association of Serbia in the TV show«Poligraf» on B92, 25th October 2006, available at the website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=60&nav_id=217052, visited on 14th November 2006132 Independence without warranties, POLITIKA, November 10 th , 2006, available at the website: http://www.politika.co.yu/detaljno.php?nid=11642, visited on November 24 th , 2006133 Better judiciary wants good judges, POLITIKA, November 10 th , 2006, available at the website: http://www.politika.co.yu/detaljno.php?nid=11644,visited on November 23 rd , 200639

Implementation of Transitional Laws in Serbia 20064. The Constitutional CourtJurisdictionArticle 167The Constitutional Court shall decide on:1. compliance of laws and other general acts with the Constitution, generallyaccepted rules of the international law and ratified internationaltreaties,2. compliance of ratified international treaties with the Constitution,3. compliance of other general acts with the Law,4. compliance of the Statute and general acts of autonomous provincesand local self-government units with the Constitution and the Law,5. compliance of general acts of organizations with delegated publicpowers, political parties, trade unions, civic associations and collectiveagreements with the Constitution and the Law.The Constitutional Court shall:1. decide on the conflict of jurisdictions between courts and state bodies,2. decide on the conflict of jurisdictions between republic and provincialbodies or bodies of local self-government units,3. decide on the conflict of jurisdictions between provincial bodies andbodies of local self-government units,4. decide on electoral disputes for which the court jurisdiction has not beenspecified by the Law,5. perform other duties stipulated by the Constitution and the Law.The Constitutional Court shall decide on the banning of a political party, trade unionorganization or civic association.The Constitutional Court shall perform other duties stipulated by the Constitution.Constitutional AppealArticle 170A constitutional appeal may be lodged against individual general acts or actions performed bystate bodies or organizations exercising delegated public powers which violate or deny human orminority rights and freedoms guaranteed by the Constitution, if other legal remedies for theirprotection have already been applied or not specified.40

Implementation of Transitional Laws in Serbia 2006Constitutional Appeal is one of the most important institutions of theprotection of human rights 134 . The previous Constitution of Serbiawas justly disputed among other things because of the non-existenceof Constitutional Appeal. The Constitution of the Federal Republic ofYugoslavia had introduced this institution, but it was legally formulated ina way which disabled its implementation 135 . A Constitutional Appeal couldbe filed only „if no other kind of legal protection was available“ 136 . TheFederal Court decided to interpret this regulation in a restrictive way, so thatthe institution of Constitutional Appeal was useless 137 . This Constitutioncorrected the mistake, but left plenty of space for dilemma. Consideringthe experience with the Federal Constitutional Court and their restrictiveinterpretations, every possibility of something similar happening againshould have been prevented.The first and largest objection is that of leaving out the regulation on actionsupon constitutional appeals from the jurisdictions of the ConstitutionalCourt. The article on Constitutional Appeals is placed in the section onthe Constitutional Court of Serbia, which is simultaneously the only wayto interpret that this court has jurisdiction over deciding appeals. In Article167 in which the jurisdictions of the Constitutional court are listed, there isno mention of Constitutional appeals! This is by all means an unusual andillogical solution, so that a great question remains whether this detail wasoverlooked in an effort to adopt a new Constitution as soon as possible, orthe intention of the framers of the Constitution.Problems with the work of the Constitutional Court could also arise froman imprecise formulation that an appeal can be filed if other legal solutionshave been exhausted or are not specified. Comparative practice shows thatthe question of whether it is about only the regular legal cures or if specialones are taken into consideration, always arises as an important previousissue 138 . In this manner the constitutional systems of Germany and Austriastipulate the exhaustion of regular legal cures 139 , while in Croatia theexhaustion of a section of special legal cures is required as well (revision in134 More on Constitutional Appeals in: Vladimir Djuric, Constitutional Appeal, Belgrade Center for Human Rights,Belgrade, 2000135 The Constitution of SRY, adopted and entered into force on April 27 th , 1992, Official Gazette of SRYnumber 1/92136 Article 128 of the Constitution of SRY137 More on this problem in: Vesna Rakic-Vodinelic, Judicial protection of the rights of man in Rights and Freedoms– International and Yugoslavian standards, Belgrade, 1995138 Vladimir Djuric, op.cit139 Ibid41

Implementation of Transitional Laws in Serbia 2006court and out-of-court proceedings) 140 . Narrow linguistic interpretations ofthe constitutional appeal in the new Constitution can lead to the solutionthat it is necessary to exhaust all the special legal cures as well in order tomake an appeal. This will to a large extent weaken this legal institution andcomplicate its implementation.The second problem comes from determining who exactly has a right toan appeal. It is stated in the Constitution that those are human or minorityrights guaranteed by this Constitution. In the analysis of the catalogue ofhuman and minority rights, numerous faults in their regulating have alreadybeen pointed out. This necessarily leads to the problem of protecting thosehuman rights which are not or are in a smaller scope guaranteed by theConstitution. A solution by which it would be possible also to complainabout the violation of the rights guaranteed by international contracts andgenerally accepted rules of international legislature would by all means bemore complete and more useful for the citizens. Unfortunately, the solutionaccepted by this article is in accordance with the spirit of the Constitutionwhich treats the international system of human rights as subordinate todomestic constitutional norms.140 Ibid42

Implementation of Transitional Laws in Serbia 20065. Territorial Organization5.1. Provincial Autonomy and LocalSelf-governmentConceptArticle 176Citizens shall have the right to the provincial autonomy and local self-government, which theyshall exercise directly or through their freely elected representatives.Autonomous provinces and local self-government units shall have the status of legal entities.Definition the CompetencesArticle 177Local self-government units shall be competent in those matters which may be realized, in aneffective way, within a local self-government unit, and autonomous provinces in those matterswhich may be realized, in an effective way, within an autonomous province, which shall not bethe competence of the Republic of Serbia.What matters shall be of republic, provincial or local interest shall be specified by the Law.Delegation of CompetencesArticle 178The Republic of Serbia may, in accordance with the law, delegate particular matters within itscompetence to autonomous provinces and local self-government units.According to its decision, an autonomous province may delegate particular matters within itscompetence to local self-government units.Resources to execute the delegated competences shall be provided for by the Republic of Serbia oran autonomous province, depending on who the competences were delegated by.Right and duties of autonomous provinces and local self-government units and powers of theRepublic of Serbia and autonomous provinces in the process of monitoring the execution ofdelegated competences shall be regulated by the Law.43

Implementation of Transitional Laws in Serbia 2006The Right to Autonomous Organization ofBodiesArticle 179Autonomous provinces, in accordance with the Constitution and the Statute, and local selfgovernmentunits, in accordance with the Constitution and the Law, shall autonomously regulatethe organization and competences of its bodies and public services.The Assembly of an Autonomous Province and LocalSelf-government UnitArticle 180The Assembly shall be the supreme body of the autonomous province and a local selfgovernmentunit.The Assembly shall be constitutes of deputies, and the assembly of a local self-governmentunit of councilors.Deputies and councilors shall be elected for the period of four years, in direct electionsby secret ballot, namely, deputies in accordance with the decision of the Assembly of theautonomous province, and councilors in accordance with the Law.In those autonomous provinces and local self-government units with the population ofmixed nationalities, a proportional representation of national minorities in assembliesshall be provided for, in accordance with the Law.Cooperation of Autonomous Provinces and Local SelfgovernmentUnitsArticle 181Autonomous provinces and local self-government units shall cooperate with the correspondingterritorial communities and local self-government units from other countries, within the foreignpolicy of the Republic of Serbia, observing the territorial integrity and legal system of theRepublic of Serbia.44

Implementation of Transitional Laws in Serbia 20065.2 Autonomous ProvincesConcept, Establishment and Territory ofAutonomous ProvinceArticle 182Autonomous provinces shall be autonomous territorial communities established by theConstitution, in which citizens exercise the right to the provincial autonomy.In the Republic of Serbia, there are the Autonomous Province of Vojvodina and theAutonomous Province of Kosovo and Metohija. The substantial autonomy of the Autonomousprovince of Kosovo and Metohija shall be regulated by the special law which shall be adopted inaccordance with the proceedings envisaged for amending the Constitution.New autonomous provinces may be established, and already established ones may be revokedor merged following the proceedings envisaged for amending the Constitution. The proposal toestablish new, or revoke or merge the existing autonomous provinces shall be established bycitizens in a referendum, in accordance with the Law.Territory of autonomous provinces and the terms under which borders between autonomousprovinces may be altered shall be regulated by the Law. Territory of autonomous provincesmay not be altered without the consent of its citizens given in a referendum, in accordance withthe Law.Competences of Autonomous ProvincesArticle 183Autonomous provinces shall, in accordance with the Constitution and their Statutes, regulate thecompetences, election, organization and work of bodies and services they establish.Autonomous provinces shall, in accordance with the Law, regulate the matters of provincialinterest in the following fields:1. urban planning and development,2. agriculture, water economy, forestry, hunting, fishery, tourism, catering,spas and health resorts, environmental protection, industry andcraftsmanship, road, river and railway transport and road repairs,organizing fairs and other economic events,3. education, sport, culture, health care and social welfare and publicinforming at the provincial level.45

Implementation of Transitional Laws in Serbia 2006Autonomous provinces shall see to exercising human and minority rights, in accordance withthe Law.Autonomous provinces shall establish their symbols, as well as the manner in which they shallbe put to use.Autonomous provinces shall manage the provincial assets in the manner stipulated by theLaw.Autonomous provinces shall, in accordance with the Constitution and the Law, have directrevenues, provide the resources for local self-government units for performing the delegated affairsand adopt their budget and annual balance sheet.Financial Autonomy of AutonomousProvincesArticle 184An autonomous province shall have direct revenues for financing its competences.A kind and amount of direct revenues shall be stipulated by the Law.The Law shall specify the share of autonomous provinces in the part of revenue of the Republicof Serbia.The budget of the Autonomous Province of Vojvodina shall amount to at least 7% in relationto the budget of the Republic of Serbia, bearing in mind that three- sevenths of the budget ofthe Autonomous Province of Vojvodina shall be used for financing the capital expenditures.Legal Acts of Autonomous ProvinceArticle 185The Statute shall be the supreme legal act of the autonomous province.The Statute of the Autonomous Province of Vojvodina shall be adopted by its Assembly,subject to prior approval of the National Assembly.The autonomous province shall enact other decisions and general acts pertaining to matterswithin its competences.46

Implementation of Transitional Laws in Serbia 2006Monitoring the Work of Bodies ofAutonomous ProvinceArticle 186The Government may institute, before the Constitutional Court, the proceedings of assessingthe constitutionality and legality of a decision adopted by the autonomous province, prior to itscoming into force. In that sense, prior to passing its decision, the Constitutional Court may defercoming into force of the challenged decision of the autonomous province.Protection of the Provincial AutonomyArticle 187A body designated by the Statute of the autonomous province shall have a right to lodge anappeal with the Constitutional Court, if an individual legal act or action of a state body or bodyof local self-government unit obstructs performing the competences of the autonomous province.A body designated by the Statute of the autonomous province may institute the proceedingsof assessing the constitutionality or legality of the law and other legal act of the Republic ofSerbia or the legal act of the local self-government unit which violates the right to the provincialautonomy.In the new Constitution of Serbia, none of the requests made by politiciansand representatives of non-governmental organizations from Vojvodina, toonce again grant autonomy to this province, which had been taken away bythe Milosevic government, were carried out 141 .Contrary to that, according to the Constitution, Vojvodina has practicallybeen made equal to the units of local self-management, so the first sectionin the seventh part of the Constitution is called „Provincial autonomy andlocal self-management“. Vojvodina, according to the Constitution, doesnot have either legislative, executive or judicial authority. Although theConstitution stipulates that Serbia has two autonomous provinces, in whichone of them, Kosovo and Metohija, is granted essential autonomy 142 . It isnot stated precisely anywhere in the Constitution what essential autonomyreally means. The only thing which is evident is that Vojvodina does not141 More on the demands for autonomy of Vojvodina on the websites: www.lsv.org.yu; www.vp.org.yu; www.helsinki.org.yu; www.wmsz.org.yu; www.vojvodina.org.yu; www.vojvodina.com142 Article 182, Paragraph 3 of the Constitution of Serbia, see above under 747

Implementation of Transitional Laws in Serbia 2006have this type of autonomy. This raises the question of the basis on whichthe two provinces differ, and what the criteria are on the basis of which oneprovince does, and the other does not have essential autonomy.Issues which are of provincial significance are regulated by the law (whichthe Parliament of Serbia brings) 143 , while in the Article 183 it is stated thatthose issues can be in the field of:1. urban planning and development,2. agriculture, waterpower, forestry, hunting, fishery, tourism, catering, spas andsanatoriums, protection of environment, industry and craftsmanship, road, riverand railway traffic and road reconstruction, organizing fairs and other economicmanifestations,3. education, sports, culture, health and social protection and public informing on theprovincial level 144 .Autonomous provinces regulate issues in these areas in accordance withthe law (which is passed by the Parliament of Serbia, because the ProvincialParliaments are not allowed to pass laws) 145 . While autonomous provinceshave authentic incomes and are allowed to administer their revenues, theymust be in ways that fully comply with the stipulations in the law. Thispractically means that Vojvodina will possess its revenues and property(which will be determined by the Parliament of Serbia through laws), but theParliament of Serbia will legally regulate how Vojvodina should administerits property. Such a formulation of provincial autonomy looks more like afostering relation of the Republic towards the Province, than like autonomyof a modern European region.The highest legal act of the Province, the Statute, is also passed with theprevious consent of the Republic Assembly 146 . This practically means thatby denying consent, the Parliament of Serbia can obstruct the process ofadopting the Statute. There are no regulations in the Constitution whichwould prevent such behavior of the Republic Parliament.The Government of Serbia is allowed to challenge the constitutionality of143 Ibid, Article 177, Paragraph 2144 Ibid, Article 183, Paragraph 2145 Ibid146 Ibid, Article 18548

Implementation of Transitional Laws in Serbia 2006provincial decisions before the Constitutional Court. 147 In addition to this,the Constitutional Court is allowed to determine efficiency of the decisionuntil they have reached their own decision 148 . The Constitutional Courtdoes not have this right when it comes to the preceding decision of theconstitutionality of republic laws 149 .Besides the warranties on the property and authentic incomes (on which theParliament of Serbia decides), the Constitution anticipates that the budgetof Vojvodina must be at least 7 per cent of the budget of Serbia 150 . Puttinga percentage into the Constitution represents a legal precedent, and it haspreviously not been recorded either in the domestic, nor the comparativeconstitutional practice. The Constitution goes even further, regulating inthe same Paragraph that the province must use 3 per cent of the 7 per centfor „financing capital expenditures“ 151 . There is no answer to the questionsof what capital expenditures are, whether this percentage can be larger and,in the end, and which criteria included this in the constitutional subjectmaterial.The Autonomous Province only has an Assembly 152 . Other organs aredetermined by the Statute of the province 153 . This practically means thatthe Parliament of Serbia, which has the right to block the Statute of theprovince, can prevent an Executive Council of Vojvodina from beingformed which would leave the province without executive authorities.147 Ibid, Article 186148 Ibid149 Ibid, Article 169150 Ibid, Article 184, Paragraph 4151 Ibid152 Ibid, Article 180, Paragraph 1153 Ibid, Article 17049

Implementation of Transitional Laws in Serbia 2006Analysis of the Process of Adopting theConstitution of SerbiaAdopting the Proposition of the ConstitutionThe Proposition of the Constitution was adopted in the session ofthe Parliament of Serbia on September 30 th , 2006. The parliamentaryrepresentatives were given the text of the Constitution at 10AM of the sameday, while participation in the parliamentary discussion was allowed onlyto the Representatives of Parliamentary groups 154 . The Proposition of theConstitution was adopted unanimously later in the evening of the same day.For the previous few days, the Prime Minister of Serbia Vojislav Kostunica,the President of Serbia Boris Tadic and the leader of the oppositionalSerbian Radical Party Tomislav Nikolic had talks behind closed doors 155 .TheMinister of State Government and Local Self-government Zoran Loncarand Dragor Hiber from the Democratic Party worked on the text of theConstitution following the instructions of the three leaders 156 .Except for these five people, no one knew the contents of the Constitutionuntil it was put up for parliamentary discussion. The only gathering on theProposition of the Constitution, although its contents were unknown, wasorganized by the Liberal-democratic Party in cooperation with the CivicAlliance of Serbia, the Social-democratic League of Vojvodina, SocialdemocraticUnion and non-governmental organizations 157 . Furthermore,according to their own confession, neither the Minister of Foreign Affairsand the President of the Serbian Renewal Movement Vuk Draskovic 158 ,nor the Vice president of the Government of Serbia and the G17 PlusParty Ivana Dulic Markovic 159 attended the process of the formation ofthe Proposition of the Constitution. Non-governmental organizations 160 ,154 See the news on B92 on the adoption of the Constitution on the website: http://www.b92.net/info/vesti/u_fokusu.php?id=122, visited on November 24 th , 2006155 Ibid156 Ibid157 Reactions to the Proposition of the Constitution, B92, September 29 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=150&nav_id=213590, visited on November 24 th , 2006158 Consultations on the Constitution continued, B92, September 27 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=150&nav_id=213253, visited on November 24 th , 2006159 The final text of the Constitution tomorrow, B92, September 29 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=150&nav_id=213388, visited on November 24 th , 2006160 Ibid50

Implementation of Transitional Laws in Serbia 2006representatives of minority communities 161 as well as some political parties 162protested against the way the Constitution adopted.The representatives of the authorities had different ways of explaining thelack of public discussion. While some claimed that the discussion had beenlead for the previous six years, others pointed out that the public discussionis „the heritage of titoism“ 163 . The Prime Minister of Serbia assumed bothof these attitudes, however unbelievable that sounds 164 . The President ofSerbia expressed regret that there was no public discussion 165 , even thoughhe personally participated in the process of proposing the Constitution.The absence of public discussion represents a serious violation of generallyaccepted democratic procedures. Representatives of the OSCE 166 publiclycommented on this very point. On the absence of public discussion, theProfessor of Belgrade Faculty of Law Vesna Rakic Vodinelic wrote:„On adopting a Constitution or Laws, however, it is not only importantwhat the legal text states, but also how it was reached. The procedure isestablished precisely in order to respect the rights of addressees — thosewhom the legal norm refers to. To adopt a Constitution which was notavailable to any citizens of this state, who are not in the Government orclose to it, and at the same time to put in Article 2 of the Proposition of theConstitution that sovereignty originates from the citizens, represents notonly hypocrisy but also the breaking of democratic procedures“ 167 .161 Representatives’ groups on the Proposition of the Constitution, B92, September 26 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=150&nav_id=213118, visited on November 24 th , 2006162 Ibid163 Aleksandar Simic, advisor of the Prime Minister of Serbia, website: http://www.srpskapolitika.com/Tekstovi/Analize/154.html;visited on November 24 th , 2006164 Kostunica stated in an interview for the daily newspaper Politika from October 13 th , 2006 that there werethree public discussions since the year 2000, but also that the public discussion “used to be characteristic ofthe worst communist period in the development of Yugoslavia, when it served as an excuse for imposed legaland constitutional solutions. That is the Constitution from 1974, or the amendments which preceded it”, availableat the website: http://www.b92.net/info/vesti/pregled_stampe.php?yyyy=2006&mm=10&dd=13&nav_id=215232, visited on November 24 th , 2006165 Reactions to the Proposition of the Constitution, B92, September 29 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=150&nav_id=213590, visited on November 24 th , 2006166 Ibid167 Vesna Rakic Vodinelic, Why say NO to the Constitution, October 2006 10 th , available at the website: http://www.cedajovanovic.com/code/navigate.php?Id=579, visited on November 24 th , 200651

Implementation of Transitional Laws in Serbia 2006Breaking of Regulations on Referendum andElectionsThe Parliament of Serbia had, in the same session on September 30 th , 2006,also adopted the Decision on scheduling the referendum 168 . It was explicitlystated in the decision that the Republic Election Commission (RIK) wouldadminister the referendum process, and that the Referendum would lastfor two days. Although the Law on Referendum and people’s initiative is ineffect in Serbia 169 , on this occasion it was seriously violated.In the session on October 25 th , 2006, RIK established the final numberof voters in the Referendum 170 . Almost all inhabitants of Kosovo ofAlbanian nationality were left out without an explanation. Article 4 ofthe Law on Referendum states that the right to vote in the referendum isgiven to all voters with the right to vote who are resident in the territoryvoted on 171 . Since it is also stated in the new Constitution that Kosovois a part of Serbia, it is not clear on what basis the voters of Albaniannationality were left out. Such discrimination caused severe criticism fromthe domestic non-governmental organizations and experts. Four nongovernmentalorganizations filed a complaint to the Constitutional Courtof Serbia to proclaim the Decision on the scheduling of the referendumunconstitutional 172 . Even though the Constitutional Court did not make anyannouncements on this matter, the former president of this body SlobodanVucetic stated that the new Constitution will be legal even without theparticipation of Albanians, because “.there is a possibility that in Kosovoand Metohija only the voters who want to vote do so, considering thatKosmet is under international jurisdiction and that the legal order of Serbiadoes not apply to that part of the territory 173 “.In this way more than a million citizens of Serbia were taken off the votinglist, thus enabling the referendum to succeed. If the citizens of Albanian168 Decision on scheduling a Republic Referendum for the confirmation of the new Constitution of the Republicof Serbia, Official Gazette of RS, number 83/06169 The Law on Referendum and People’s Initiative, Official Gazette of RS number 48/94 and 11/98170 The eighty-seventh conference of RIK, October 25 th , 2006, available at the website: http://www.rik.parlament.sr.gov.yu/cirilica/sednice_frames.htm,visited on November 24 th , 2006171 Article 4 of the Law on Referendum, see above under 8172 The organizations are: Lawyers’ Committee for Human Rights, Helsinki Committee for Human Rights,Youth Initiative for Human Rights, and Center for Cultural Decontamination; the complaint was filed on October5 th , 2006 and is in the documentation of the Initiative173 Slobodan Vucetic, Legitimacy even without the Albanians, BLIC, September 29 th , 2006, available at the website:http://www.blic.co.yu/blic/arhiva/2006-09-29/strane/politika.htm, visited on November 24 th , 200652

Implementation of Transitional Laws in Serbia 2006nationality had been on the voting list, as the law prescribes, the referendumon confirming the new Constitution would not have succeeded. A particularparadox is the fact that the politicians pointed out that in this way the futureof Kosovo is being decided 174 , but at the same time the inhabitants of thatterritory were not allowed to vote on it.In Article 12 of the Law on Referendum it is stated that it is necessary tospecify the territory for which the referendum is scheduled 175 . Instead ofdoing this, the National Parliament only stated in the Decision that thereferendum is “on the level of the Republic“ 176 . Although such a formulationrepresents a violation of the law, it was interpreted it could result in theReferendum being scheduled for the whole territory of the Republic ofSerbia (i.e. for what the Parliament considers to be the territory of Serbia,which also includes Kosovo). On the other hand, in the Regulations forconducting a Referendum, RIK states that “the Referendum... will also becarried out in Kosovo, in the voting places in which the conditions forconducting the referendum were fulfilled, and in which all the participantsand the election materials are safe 177 ”. In this way, RIK had excluded a largenumber of citizens of Serbia from the voting process, and gave themselvesthe right to determine where both the participants, and the voting materialsare safe. Considering that no part of Serbia is engaged in war, or a state ofemergency, it is unclear which criteria lead the decision of RIK to proclaima large part of the territory unsafe for people and materials.According to the Decision on scheduling the referendum it was determinedthat the voting would last for two days 178 . This is the first time in the historyof Serbia that voting has lasted for two days. There was no excuse forsuch a solution even in the number of voters (which was, let us remind,inexcusably reduced), nor in the complexity of the procedure (the citizenswere given only one sheet of paper, so there were no delays at the votingstations). Furthermore, the date of voting is mentioned twice in the Law onReferendum, in Articles 12 and 20. In both places this word is used in thesingular, so that it is unclear on what basis the Parliament concluded thatvoting is allowed to last for two days 179 .174 Another call to vote, B92, October 27 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&nav_id=216374&start=45, visited on November 24 th , 2006175 Article 12 of the Law on Referendum, see above under 8176 The Decision on scheduling a republic Referendum, see above under 168177 Instructions for conducting a republic referendum for the confirmation of the new Constitution of theRepublic of Serbia, Official Gazette of RS, number 84/2006178 The Decision on scheduling the Referendum, see above under 168179 In Article 12 “the date for holding the referendum” is anticipated, while in Article 20 it is regulated that thevoting sheet contains the “day of holding the referendum” , the Law on referendum, see above under 853

Implementation of Transitional Laws in Serbia 2006The Law on referendum regulates the matter of referendum campaigningpoorly. In order to fill in these blanks, Regulation 42 180 stipulates that allmatters not regulated by this law, the solutions from the Law on the electionof parliamentary representatives are applied 181 . Practically this means thatthe solutions from the Law on the election of parliamentary representativesare applied in all the cases where there are legal gaps. However, RIK ignoredthis rule.In this way, by the decision of RIK from October 23 rd , 2006, an “attitudewas assumed“ that there will be no pre-election silence and that the citizenswill be summoned to the referendum on 28 th and 29 th , October 182 . TheLaw on the election of parliamentary representatives, which is applied onthis occasion, because the matter had not been regulated by the Law onreferendum, regulates in Paragraph 5 that pre-election silence is obligatory48 hours before the elections, as well as on the day of the elections 183 . RIKhas no right, especially discretional right, to determine whether they will orwill not obey a regulation of the law. It is legally unfounded and against thelaw that an administrative organ should “assume an attitude“ on whetherto obey the law or not.The situation is similar with other regulations stipulated by the Law onthe election of parliamentary representatives. By the decision of RIK, allobjections to the referendum process were rejected 184 . Among other things,RIK did not consider that voting without documents is a violation 185 , norvoting in the name of family members 186 , the presence of propagandamaterial in the vicinity, or even at the voting station 187 , the presence ofuniformed police officers 188 , etc 189 . For these reasons the voting in those180 Article 42 of the Law on Referendum, see above under 8181 The Law on the election of parliamentary representatives, see above under 9182 The eighty-sixth conference of RIK, October 23 rd , 2006, available at the website: http://www.rik.parlament.sr.gov.yu/cirilica/sednice_frames.htm, visited on November 24 th , 2006183 The Law on the election of parliamentary representatives , Article 5, Paragraph 3, see above under 9184 RIK dismissed several objections, November 1 st , 2006, B92, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=15&nav_id=218128, visited on November 14 th , 2006185 Forbidden by Article 68, Paragraph 2 of the Law on the election of parliamentary representatives, see aboveunder 9186 Ibid, Article 55, Paragraph 1187 Ibid, Article 55, Paragraph 4188 Ibid, Article 58, Paragraph 5189 On specific irregularities see: The report on scheduling and conducting the referendum by the LiberaldemocraticParty, available at the website: http://www.cedajovanovic.com/code/navigate.php?Id=618, visitedon November 24 th , 2006; The report of four non-governmental organizations: Analysis of the irregularitiesduring the referendum process, available at the website: http://www.yihr.org/english/Reports/Documents/Analysis%20of%20Irregularities%20that%20Occurred%20During%20Referendum.pdf, visited on November 24 th ,2006 and CESID, The Report on the Referendum, available at the website: http://www.cesid.org/articles/download/files/Izvestaj_o_referendumu_final.doc?id=37,visited on November 24 th , 200654

Implementation of Transitional Laws in Serbia 2006voting stations should have been revoked. However, RIK did not evenaccept objections from a voting station where it was recorded that a personvoted on someone else’s behalf, without checking the documents andmaking the wrong marking with the voting spray 190 .One of the members of RIK, Dobrivoje Glavonjic 191 , stated that thesurplus of voting sheets in a box after the voting is finished is not asignificant violation of the voting process 192 . This statement was metwith sharp reactions from the representatives of the civil sector and fromexperts 193 . RIK was also criticized for not enabling the members of theanti-referendum block to participate in controlling the process of voting 194 .The parliamentary parties The Civic Alliance of Serbia and the Social-Democratic Union, were given the right to name 0.8 and 0.4 per cent of themembers of the election boards 195 . Such a way of determining the numberof members in the election boards is a mockery of democratic proceduresand an obvious violation of the basic principles of the multi-party system.It is inadmissible for any member of the election or referendum process tobe allowed to control all voting places.The non-governmental organization which has for years been dealing withmonitoring the election processes in Serbia, the Center for Free Electionsand Democracy (CESID) 196 , stated that this is the worst organized voting inSerbia since the year 2000, and represents two steps back 197 . Concerning themistakes and rough violations of the law by the members of RIK and theRegional Election Committees and Election Boards, the Public Attorney’soffice had not filed a single complaint.190 The complete footage can be seen on the website: http://www.cedajovanovic.com/code/navigate.php?Id=2,visited on November 14 th , 2006191 Dobrivoje Glavonjic is famous for punishing the media at the time of the rule of Slobodan Milosevic,see the announcement of NUNS and NDNV, October 11 th , 2006, available at the website: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=10&dd=11&nav_category=11&nav_id=215032&fs=1, visited onNovember 24 th , 2006192 The decision of RIK explained, B92, October 27 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=45&nav_id=217466,visited on November 24 th , 2006193 CESID: Irregular or illegal, B92, October 24 th , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=60&nav_id=216728, visited on November 24 th , 2006194 See the announcement of the Civic Alliance of Serbia available at the website: http://www.gradjanskisavez.org.yu/srp/saopstenja.php, visited on November 13 th , 2006; and the report on scheduling and conducting thereferendum by the Liberal-democratic Party, available at the website: http://www.cedajovanovic.com/code/navigate.php?Id=618,visited on November 25 th , 2006195 RIK, Decision number: 014-182/06, adopted on October 13 th , 2006196 More about this organization on the website: www.cesid.org, visited on November 25 th , 2006197 CESID: Two steps back, B92, October 31 st , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=30&nav_id=217972, visited on November 25 th , 200655

Implementation of Transitional Laws in Serbia 2006The Referendum CampaignThe Referendum campaign was followed by aggressive media propagandain which citizens were called to vote in the referendum and say “YES“to the Constitution. The Government of Serbia, almost all parliamentaryparties, state institutions, religious and sports organizations and respectedindividuals were included in the campaign. The campaign was characterizedby uniformity of the messages, i.e. open cheering for one of the options(the confirmation of the Constitution) and threats to all those who werein favor of boycotting of the referendum. A group of political parties(the Liberal-democratic Party, the Civic Alliance of Serbia, the Social-Democratic Union and the Social-Democratic League of Vojvodina) andnon-governmental organizations had taken the position that the referendumshould be boycotted. The main reasons were of both procedural (theabsence of public discussion, secrecy on the framing of the Constitution)and statutory nature (the reduction of the achieved level of human rights,mentioning Kosovo in the preamble, the definition of Serbia as a nationalstate, insufficient level of autonomy of Vojvodina, etc) 198 . This block wasmainly ignored by the largest media houses (RTS, „Vecernje novosti“, thetabloids) or ignored to a large extent (RTV B92, TV Pink, „Politika“) 199 .The messages of the anti-referendum block could only be found in thelow-circulation daily newspaper „Danas“ 200 . For the purpose of illustration,the daily newspaper with the largest circulation, „Vecernje novosti“, in theperiod of the 17th to 28th of October, published 84 positive, and only fournegative texts on the proposition of the Constitution 201 .On the proposition by the Government, the Parliament of Serbia votedfor the Law on Rebalancing the Budget, by which funds were obtainedfor the referendum campaign of the political parties 202 RIK had, on 17th198 On the reasons for boycotting the referendum see the announcement of twenty eight non-governmental organizationsfrom October 25 th , 2006, available at the website: http://www.yihr.org/Srpski/Saopstenja/Saopstenja%202006/Saopstenja2006html/Stop%20snizavanju%20nivoa%20zastite%20ljudskih%20prava%20i%20sloboda.php, visited on November 25 th , 2006; also see the announcements of the following parties: LDP, October 5 th ,2006, available at the website: http://www.cedajovanovic.com/code/navigate.php?Id=567, visited on November25 th , 2006; GSS, October 6 th , 2006, available at the website: http://www.gradjanskisavez.org.yu/srp/saopstenja2.php?id=784, visited on November 25 th , 2006; LSV, October 5 th , 2006, available at the website: http://www.lsv.org.yu/?menu=1&news=1859, visited on November 25 th , 2006199 Report of the Press Council of the Media Center on the referendum campaign, published on November 6 th ,2006, available at the website: http://www.mediacenter.org.yu/upload/Savet%20za%20stampu/Referendum%20izvestavanje%20final.pdf, visited on November 25 th , 2006200 Ibid201 Ibid202 The Law on the changes and additions of the Law on Budget, adopted on September 29 th , 2006, OfficialGazette of RS number 85/0656

Implementation of Transitional Laws in Serbia 2006October, divided 150 million dinars amongst the parliamentary parties forthe referendum campaign, according to the number of representatives.The most money, 49.2 million dinars (615 000 €) was given to the SerbianRadical Party, the Democratic Party of Serbia 31.2 million (390 000 €),the Democratic Party 19.2 million (240 000 €), G17 Plus 18.6 million (232500 €), and the Socialist Party of Serbia 13.2 million dinars (165 000 €) 203 .There are no legal frames which regulate the financing of the referendumcampaign. The Law on Referendum regulates only the financing of theReferendum itself 204 , while there is no mention of the possible campaign.On the other hand, the Law on financing political parties speaks specificallyof the pre-election campaign 205 .The non-governmental organization Transparency Serbia 206 also warnedabout this legal gap and the non-existence of legal means to appointfunds to political parties. CESID also pointed out in it’s report on themonitoring of the elections that there is no legal basis to appoint fundsfrom the budget to political parties in this way 207 . Both non-governmentalorganizations warned about the impossibility of controlling spending offinancial funds given to the parties 208 . Considering that the procedure ofgiving and spending money was not regulated anywhere, there are also noregulations which would oblige the political parties to inform RIK, theNational Assembly and the public of their expenses. Still, some partiesannounced that they would submit a report to RIK on the expenses of thecampaign, and even return a part of the money 209 . However, it is evidentthat this depends exclusively on the good will of the parties, so the citizensof Serbia, besides being obliged to give some of their money to politicalparties, were denied the information on how that money was spent.During the pre-referendum campaign in Serbia, media laws were also harshlyviolated. Although there were three options for the citizens to choose from,all electronic and printed media gave unconcealed support to the option203 What happened to the money for the referendum, B92, November 2 nd , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=15&nav_id=218255, visited on November 25 th , 2006204 Article 30 of the Law on referendum, see above under 9205 The Law on financing political parties, adopted on July 18 th , 2003, Official Gazette of RS number 72/03206 The announcement of the Transparency Serbia organization from October 6 th , 2006, available at the website:http://www.transparentnost.org.yu/aktivnosti/fos/06102006.html, visited on November 25 th , 2006207 CESID, The report on Referendum, available at the website: http://www.cesid.org/articles/download/files/Izvestaj_o_referendumu_final.doc?id=37, visited on November 25 th , 2006208 Ibid, see also above under 206209 What happened to the money for the referendum , B92, November 2 nd , 2006, website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=15&nav_id=218255, visited on November 25 th , 200657

Implementation of Transitional Laws in Serbia 2006which was in favor of adopting the Constitution 210 . Furthermore, during thevoting on Saturday and Sunday, announcers and journalists publicly calledthe population to vote for the Constitution (Radio Television of Serbia,RTV Pink, RTV Kosava, RTV Palma plus, RTV Most, RTV Super...) 211 .Such behavior is prohibited by the Law on Public Information 212 (Article2) and the Law on Broadcasting 213 (Article 68), and also empowered by theregulation on the obligation of public services to respect the principles ofimpartiality and objectivity in Article 79 of the Law on Broadcasting 214 .Adopting the Constitution was represented as an act of patriotism, andfrom that it can be concluded that the opposite option is treacherous andworks against its country 215 . Even the representatives of state institutionsdid not shy away from such harsh qualifications, and the media uncriticallybroadcasted all of this. What’s more, the journalists of the Public service ofSerbia began their reports with the words: „The citizens are fulfilling theircivic duties in large numbers“, „The citizens have shown here also that theylove their country“, etc 216 . Taking one side during the campaign in this wayhas not been recorded since the time of Slobodan Milosevic. Even at thattime, there were media houses which broadcasted the attitudes of the otheroption. This time, with modest exceptions (RTV B92 from time to time),there were no media houses in the country which reported equally on thereferendum campaign 217 .Some representatives of the authorities publicly supported the attacks onthe representatives of the anti-referendum block. The Serbian NationalCouncil and the Students’ Association from Kosovska Mitrovica organizeda meeting at the Republic Square in Belgrade on October 24 th218 . Themost eminent representatives of the block for boycott were accused inthe meeting that they were working in the interest if independent Kosovoand that they were traitors 219 . On this occasion messages of hate directed210 Source: the team of the Initiative for monitoring the electronic media; Jovanka Matic in a statement for thenewspaper DANAS, October 30 th , 2006, available at the website: http://www.danas.co.yu/20061030/dogadjajdana1.html#2,visited on November 25 th , 2006; the report of the Press Council of the Media Center, see aboveunder 199211 Ibid212 The Law on Public Information, see above under 1213 Law on broadcasting, Article 68, see above under 2214 Ibid, Article 79215 On the sources see above under 189216 Ibid217 Ibid218 Insults for those in favor of the boycott, B92, October 24 th , 2006, website: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=10&dd=24&nav_category=11&nav_id=216785, visited on November 25 th , 2006219 Ibid; Leaders of the boycott block, Cedomir Jovanovic, Natasa Micic, Nenad Canak, Natasa Kandic, Sonja58

Implementation of Transitional Laws in Serbia 2006towards both these people and the Albanian people could be heard 220 .Among the demonstrators there were people dressed in t-shirts withemblems of the Unit for Special Operations, as well as the officials of theruling Democratic Party of Serbia, Milan Ivanovic and Marko Jaksic 221 . Thedaily newspaper Kurir supported this gathering in a text headlined Siptarlobby 222 . Similar messages to the “traitors“ were sent from the pages of thedaily newspapers Glas javnost 223 and Press 224 .The media, wishing to make a large number of citizens vote in thereferendum, resorted to publishing false news. Namely, on the second dayof the referendum it was announced that the Government of Kosovoand its Prime Minister Agim Ceku were preparing a celebration andfireworks in Pristina if the referendum failed 225 . The TV stations Mostand Palma Plus announced this first, citing unnamed sources from theRepublic Government 226 . Later, the news was broadcasted by televisionswith republic wide coverage (RTS, Pink, Kosava...), but this time citingthe National Council of Kosovo and Metohija 227 . Article 3 of the Law onPublic Information regulates that the journalist and the editor are obligedto check the origin of information before publishing it 228 . This news, whichwere evidently false, represent one of the harshest violations of the fearsand prejudices of a part of the population. No media house in Serbia foundit appropriate to call the Kosovo Government and check the authenticityof the information.Article 86 of the Law on Advertising 229 allows state institutions toadvertise by calling the citizens to vote in the referendum. However, theGovernment of Serbia violated this law severely, by calling the citizens tocircle YES 230 . Such a form of influence on the electoral body is not allowedand represents an abuse of public power and the funds from the budget.Biserko i Goran Svilanovic were presented with the traditional Albanian cap “keche”, and derogative awards suchas “the golden keche” and “the golden wooden slipper” were given to them220 Some of the slogans were: „Ceda is an Albanian” and “we will kill Ceda”221 Ibid222 KURIR, The Shiptar lobby, October 25 th , 2006223 GLAS JAVNOSTI, At the voting places at five minutes to eight, October 30 th , 2006; GLAS JAVNOSTI, Boycott inthe service of independent Kosovo, October 29 th , 2006224 PRESS, Who do you prefer, the Patriarch or the lesbians, October 29 th , 2006225 On sources see above under 189226 Ibid227 Ibid228 Article 3 of the Law on public information, see above under 1229 The Law on advertising, see above on 11230 All the news about the campaign of the Government for adopting the Constitution can be found on thewebsite: http://www.srbija.sr.gov.yu/vesti/sekcija.php?id=240, visited on November 25 th , 200659

Implementation of Transitional Laws in Serbia 2006Commercials in which it was called to circle YES in the referendum werebroadcasted in almost all informative shows, even though advertising inshows shorter than 30 minutes is prohibited (Article 17, Paragraph 7 of theLaw on Advertising), but also the regulations on the length of broadcastingwere violated, because on Sunday, in the afternoon hours, calls to vote wereincessantly broadcasted in the top or the bottom of the screen on most TVstations, including the Public Service of Serbia 231 . The Law on Advertisingprohibits the advertising of political parties outside of pre-electioncampaigns 232 . Considering that these were not elections, all the TV stationshad severely violated this regulation of the law. The Republic BroadcastingAgency did not react to the violations of the Law on Broadcasting.In the end, the very members of RIK were included in the campaign tovote and confirm the Constitution. The Secretary of RIK Marko Danilovicadvocated during the voting that the citizens should vote in the referendumand for the Constitution in large numbers 233 , while the President of RIK,and also the judge of the Supreme Court of Serbia, Mihajlo Rulic, statedin a press conference on 30th September: „As a citizen, I am very pleasedtoday that I live in Serbia. I am glad that the citizens of Serbia know howsignificant the adoption of the new Constitution is for Serbia, in both asymbolic and formally-legal way“ 234 .231 See above under 210232 Article 106 of the Law on broadcasting, see above under 2233 Reports of the team of the Initiative for monitoring electronic media, the documentation of the Initiative234 Statement available at the website: http://www.rik.parlament.sr.gov.yu/latinica/saopstenja_frames.htm, visitedon November 25 th , 200660

Implementation of Transitional Laws in Serbia 2006Law on Free Access to Information of PublicImportanceThe Law on free access to information of public importance (in furthertext the Law on free access to information) 235 was adopted, on theproposition of the Government of the Republic of Serbia (in further textthe Government), by the National Parliament of the Republic of Serbia (infurther text the National Parliament) on November 2 nd , 2004, and came intoeffect on November 13 th , of the same year. This Law regulates the right ofcitizens to access information of public significance and the obligation ofstate organs to enable the implementation of this right.The methodology of the way the implementation of the Law on free accessto information was monitored was based on activating the mechanismsanticipated for the implementation and protection of this right. Requestsfor free access to information were submitted (in further text the requests),as well as complaints to Commissioner, and misdemeanor procedureswere started in cases when there was a legal basis for it. By this research,the Initiative wants to separate precisely and clearly the legal mechanismswhich are applied in practice, from those whose implementation was nottaken up. Their recognition, as well as introducing the authorities into theirexistence, could add to a more complete implementation of this law, alongwith informing the citizens of Serbia on issues of public interest. Theinformation was also obtained through daily monitoring of the media anddirect contact with all state organs which are included in the implementationof this law. The purpose of the research is also to introduce as large anumber of public organs with the contents of the Law on free access toinformation, through direct contact with requests.Statistical Data on the Implementation of the Lawon Free Access to InformationSubmitted requests and received informationThe Initiative had submitted 747 requests for free access to informationin 2006 at the addresses of 378 organs of public authorities in Serbia, and235 The Law on free access to information, see above under 361

Implementation of Transitional Laws in Serbia 2006received 540 responses, i.e. 72.28 per cent. The fact that an increase hasbeen recorded in the percentage in which responses are received to therequested information is positive, because last year 645 requests were sent,and 318 responses were received, i.e. 49.30 per cent. It can be concludedthat in comparison to last year, the percentage of received information hasrisen 22.58 percent.In the year 2005, of 212 tested organs, 81 obeyed the law, i.e. 30.92 per cent,and in 2006 167 organs of public authorities from the 378 tested, whichmeans 44.18 per cent. Therefore, the increase has been recorded here also,as well as an improvement in the quality of the implementation of the law.Appointing authorized people in the public authority bodiesfor action upon requestsMunicipalities in Serbia were tested on whether they had appointed theauthorized people for actions upon requests. The law does not regulatethe duty of the organs of public authorities to name this person, only thepossibility of it, and in case the authorized person has not been named,the administrator of the organ is responsible 236 . The Initiative believesthat the appointment of an authorized person would significantly add tothe improvement of the implementation of the law in practice, becausein every organ of public authorities there would be a person whose soleduty would be to enable access to information of public significance, andthere would not be any dilemmas about the potential responsibility for notobeying the law.One hundred forty one requests were sent to the addresses of 141municipalities in Serbia. Eighty four municipalities delivered an answer,among which 66, i.e. 46.80 per cent had named an authorized person,and 18 had not. Sixty eight of the tested municipalities did not answer thesubmitted request.236 Ibid, Article 38, Paragraph 262

Implementation of Transitional Laws in Serbia 2006Making the Report on the workState organs are obliged to make a report with basic information on theirwork 237 at least once a year, and to enable any interested persons to seeor receive a copy with the compensation of necessary expenses 238 . Thepurpose of the report on the work is, among other things, to simplify forthe organs of public authorities the execution of obligations stipulated bythe law. The existence of a report of good quality and availability to thecitizens would lead to the requesters not needing to file requests to thestate organs, but be able to simply look into the report and in that way“avoid” the often long procedure of receiving the requested information.Such a way of working would represent a step forward in the direction oftransparent and democratic communication between the organs of publicauthorities and the citizens.The report was not done by 46 of 154 tested organs, and 11 had donethem but not in accordance with the Law and the Directions for publishinga report on the work of a state bodies 239 . A report which is completely inaccordance with the law was done by 48 organs of public authorities inSerbia. On the request of the Initiative for information on the making ofthe Report, 49 bodies did not reply.Some municipalities in Serbia stated the lack of financial means as a reasonfor not filing the report. Although the Law on free access to informationwas adopted on the proposition of the Government, they did not manageto provide sufficient monetary funds for its functioning in practice. Thisis most visible in some, smaller municipalities which do not possess thefinancial means to employ persons who would work on the requests. Suchmeans are not anticipated by the budget of the municipalities. DraganaStevanovic, the chief of the Svilajnac municipality, stated in a conversationwith the investigator of the Initiative that the municipality does not havea person who could answer the obligations which are required by theimplementation of the Law on free access to information. She mentionedthat the Ministry of Finances did not allow her to open new positionsbecause there are not enough funds for additional employees 240 . In her237 Ibid, Article 39238 Ibid, Article 40239 Instructions for publishing the report on the work of state bodies, published on May 23 rd , 2005240 The report on the conversation with Dragana Stevanovic – the chief of the Svilajnac municipality, is in thedocumentation of the Initiative63

Implementation of Transitional Laws in Serbia 2006opinion, the aggravating circumstance is the low paycheck for employeesin the Svilajnac municipality 241 , which can not stimulate quality personnelto work in such a responsible function. Many municipalities have stated thelack of financial funds as the reason for not making a Report.The Municipality of Jagodina had, 37 days after the request was sent,delivered the Initiative an answer with the notice that the Report hadnot been made, but that “...Jagodina municipality is known in the wholeterritory of Serbia by the fact that all persons who are interested candirectly turn to the President of the Municipality and the organs of localself-management, in order to receive the requested information or to seethe documentation...” 242In an answer to the request, the Municipality of Kladovo notified theInitiative that “considering the fact that in the year 2005 not one requestconnected to the mentioned law had been submitted by the citizens orinstitutions, the Kladovo municipality was not able to print or publish theReport” 243 . The printing or publishing of the report does not depend on thenumber of submitted requests. It is a legal obligation which was preciselydefined concerning its contents by the Law on free access to information,and the Instructions for making the Report. It is not stated anywhere inthe mentioned documents that in case no requests are submitted to theorgan of public authorities, the obligation of making the Report does notapply. 244The Minister of Culture Dragan Kojadinovic stated on the obligation ofpublishing the report: “We have held press conferences in which we statedwhat the job of the Ministry is... And what, now we are supposed to printbrochures on that, to spend money without a reason... We absolutely obeythe laws, especially those for whose implementation the Ministry of Cultureis responsible” 245 . The Ministry of Culture is one of the organs which hasnot filed the Report in the anticipated period of time.241 According to the words of Dragana Stevanovic, around 15 000 dinars242 The requests was sent to the Municipality of Jagodina on March 10 th , 2006, and the answer arrived on 17thApril 2006. It was signed by Petar Milosevic and it is in the documentation of the Initiative243 The reply of the Kladovo municipality arrived to the Initiative on April 3 rd , 2006, signed by Dragan Keratovicand Jovan Stingic, and it is in the documentation of the Initiative244 The reply of the Niska Banja municipality arrived to the Initiative on March 25 th , 2006, signed by GradimirPeric – lawyer, and it is in the documentation of the Initiative245 N. Calukovic: Minister for media hides information, BLIC, April 15 th , 200664

Implementation of Transitional Laws in Serbia 2006Implementation of Mechanisms for theRealization and Protection of Right to Free Accessto InformationSubmitting requestsThe Law on free access to information regulates that everyone has the rightto be told whether the organ of public authority is in possession or hasaccess to certain information of public importance 246 . This right refers toevery person, regardless of their citizenship, place of residence, domicile orother personal characteristics such as race, religious convictions, nationalityand ethnicity, sex and the like 247 . The discrimination of journalists andother means of informing, i.e. the positioning of some journalists orpublic means of information in a better position than the others is strictlyforbidden 248 . The Ministry of Interior had conducted an action markedas “strictly confidential”, in which, among other things, Goran Kljajevic 249and Sekula Pijevcevic 250 were arrested. The weekly magazine NIN, RTSand the daily newspapers Press and Politika were given exclusive footageof the arrest on the very day it happened, while the other media did noteven get an announcement for the public 251 . A similar situation happenedon the publication of official notes on the surrender of Milorad Ulemek– Legija, made by the Minister of Interior Dragan Jocic, when only the dailynewspaper Press received the information 252 .This right is realized through insight into the document or the copy ofthe document which contains the requested information, or by deliveringa copy of the document through mail, fax, e-mail or in another way 253 . It isrequired that a written request for free access to information is submitted,which should contain: the name of the authority body, name, surname andthe address of the submitter and a precise description of the informationrequested 254 . The request can also be submitted orally on the record, when246 Law on free access to information, see above under 3, Article 5, Paragraph 1247 Ibid Article 6248 Ibid, Article 7249 The President of the Commercial Court in Belgrade250 Director of the„Credit-export Bank“251 J. Jovanovic: Jocic’s favorites, KURIR, April 17 th , 2006252 Ibid253 Law on free access to information, Article 5, Paragraph 2254 Ibid, Article 15, Paragraph 165

Implementation of Transitional Laws in Serbia 2006it is specially filed, and the deadlines are the same as for a written request 255 .If the submitted request contains any irregularities, the public authoritybody is obliged to teach the submitter how to remove those irregularities 256 ,for which action the submitter has fifteen days 257 .The Initiative had submitted 747 requests in the year 2006, and 378 publicauthority bodies were tested.Actions before the public authority bodiesFirst of all it should be pointed out that the submission of a requestrepresents the starting of an administrative action before the first-degreeadministrative organ. After receiving the request, the organ of publicauthority is obliged to notify the submitter of the request on the possessionof the information in fifteen days, and to provide insight and issue or senda copy of the document 258 . A request which refers to the informationof significance for the protection of life or freedom of a person, or theendangerment or protection of health of the population or the environmentmust be replied to in 48 hours 259 . If a public authority body is not able toinform the submitter of the possession of the requested information fora good reason, they can determine a deadline which should not be longerthan 40 days 260 . In any case, the public authority body must, on the basis ofa written request, reach a decision with a written explanation and a note onthe legal cure 261 .The practice in the implementation of this law has shown that the mostfrequent reaction of the state organs on the submitted request is theso-called “silence of the management” 262 . It also happens that an organof public authority asks that the requested information be stated moreprecisely, and in a number of cases, which have caused the most controversy,as a reason for denying access to information, the legal regulations whichregulate the conditions for the denial or limitation of this right on a255 Ibid, Article 15, Paragraph 7256 Ibid, Article 15 Paragraph 5257 Ibid, Article 15 Paragraph 6258 Ibid, Article, 16 Paragraph 1259 Ibid, Article, 16 Paragraph 2260 Ibid, Article, 16 Paragraph 3261 Ibid, Article, 16 Paragraph 10262 Silence of the management (silence of the administration) is a special institution of the administrative rightin cases when the authorized organ does not reach a solution on the petitioned request in the period predicted bythe law, Legal Encyclopedia, Savremena administracija, Belgrade, 1985, page 20366

Implementation of Transitional Laws in Serbia 2006submitted request are stated. The submitter will be denied or limited theaccess if the realization of this right would cause the endangerment oflife, health, security or some other important property of a person 263 , theobstruction, prevention or revealing a criminal act or some of the phasesof a court procedure 264 , endangering the defense of the country, nationalor public safety or international relations 265 , or a significant reduction of theability of the state to manage economic processes or accomplish justifiedeconomic interests 266 . The public authority bodies however, have in mostcases stated as a reason the last basis predicted by the law, by which therequested information will not be made available if it is considered to bea state, official, business or another kind of secret by the regulations orofficial acts based on the law, and because of whose revealing severe legalor other consequences for the interests protected by the law will arise,which overweigh the interest of access to information 267 . According tothe law, it is not enough that information should be a secret, but anothercondition must be fulfilled, and that is that the access to information wouldlead to severe legal consequences for the interests protected by the law. Theorgan of public authority, as a first-degree organ, can decide on this issue,but the final judgment is given by the Commissioner for information ofpublic importance as a second-degree administrative organ. It is predictedby the law that the Law on free access to information will exceptionallybe submitted to limitations regulated by this law if it is necessary in ademocratic society for the protection from a severe violation of a higherinterest based on the Constitution or the Law 268 . It is pointed out that noregulations of this law should be interpreted in a way which would lead tothe cancellation of rights predicted by this law, or its restriction in a higherdegree than is regulated 269 . The submitter will be denied this right if theright to privacy, reputation or some other right of the persons which therequested information refers to will be violated by it 270 . The exceptions areif the person gives consent to it 271 , if it is about a person of interest to thepublic, and especially if the person is an occupant of a state or politicalfunction 272 and if the person had given a cause for the request by their263 Law on free access to information, Article 9, Item 1, see above under 3264 Ibid, Article 9, Item 2265 Ibid, Article 9, Item 3266 Ibid, Article 9, Item 4267 Ibid, Article 9, Item 6268 Ibid, Article 8, Paragraph 1269 Ibid, Article 8, Paragraph 2270 Ibid, Article 14271 Ibid, Article 14, Item 1272 Ibid, Article 14, Item 267

Implementation of Transitional Laws in Serbia 2006behavior, especially in connection to their private life 273 .According to the Law, the submitter is not allowed to abuse this right 274 .This includes requests which are unreasonable, frequent, when the requestfor already obtained information is repeated, or when too many informationare requested 275 .The public has a justified interest in knowing when the information refers tothe endangerment and protection of the health of the population and theenvironment 276 . When other information is requested, the justified interestof the public also exists, but the organ of public authority can prove theopposite 277 .In cases when the authority body does not possess the requested information,the request will be forwarded to the Commissioner and the Commissionerand the submitter will be informed in whose possession, according to theirknowledge, the document is 278 .Concerning the enabling of access to information of public significance, theresearch of the Initiative has shown both positive and negative examples.The Ministry of Finances has been singled out as an organ of publicauthority which has made their activities transparent, and which completelyobeys the law. Five days after submitting the request, this Ministry delivereda copy of the Contract on buying and selling the shares of the NationalSavings Bank by the Republic of Serbia to EFG Eurobank 279 . In additionto this, the Ministry of Finances had also delivered information which theGovernment had adopted on selling minority state stock packages of theNational Savings Bank 280 .A drastic example of disobeying this law is the Coordination Center. TheInitiative had asked the delivery of the following information from theCoordination Center:• A list of all formal and informal collective centers in the territoryof the Republic of Serbia;273 Ibid, Article 14, Item 3274 Ibid, Article 13275 Ibid276 Ibid, Article 4277 Ibid278 Ibid, Article 19279 The copy of this contract is in the documentation of the Initiative280 The copy of the Information adopted by the Government on selling minority state packages in the NationalSavings Bank is in the documentation of the Initiative68

Implementation of Transitional Laws in Serbia 2006• The budget disposed of by the Coordination Center in the purposeof financing collective centers on the territory of the Republic ofSerbia;• How this budget was assigned to individual collective centers;• The parameters on which the assigning of funds to the collectivecenters is based on 281 .An answer to the submitted requests was not delivered in the periodpredicted by the law. The Coordination Center did not in any of the casesproduce a decision on denying the request with a written explanation anda note on the legal cure 282 . After an appeal submitted by the Initiative tothe Commissioner, the Coordination Center replied that they do not havejurisdiction over the collective centers, and therefore neither the data on thenumber of the collective centers, the budget, refugees and displaced personsand the means which are intended for financing the collective centers 283 .The Oil Industry of Serbia and Telecom Serbia consider that theinformation on the paychecks of the managers and the members of theAdministrative board represent a business secret and as such cannot beavailable to the public. It is predicted by the law that the submitter will bedenied access to information if it is predicted by a regulation or an officialact that such information is kept as a state, official, business or anothertype of secret and if severe legal or other consequences for the interestsprotected by the law which overweigh the interest of access to informationcould arise 284 . The Initiative does not consider the information on thepaychecks of the highest functioneers of public firms to be informationwhose revealing is not allowed by the law. The requests sent to powerutility “Elektrodistribucija Srbije”, JAT Airways and the Railway TransportFirm were met with „silence of the management” 285 . Only the City TrafficCompany acted according to the law and made transparent the paychecksof the managers and members of the Administrative board. This poses thequestion of whether the Law on free access to information applies equallyto all the organs of public authorities, in this case the public firms. TheCity Traffic Company in Belgrade is completely transparent concerning281 Request to the Coordination Center was sent on February 17 th , 2006 and is in the documentation of theInitiative282 Law on free access to information, Article 16, Paragraph 10, see above under 3283 The reply of the Coordination Center arrived to the Initiative on April 20 th , 2006, signed by Zlatan Ribac,and is in the documentation of the Initiative284 Law on free access to information, Article 9, Paragraph 1, Item 5, see above under 3285 See above under 26269

Implementation of Transitional Laws in Serbia 2006the paychecks of the managers and members of the Administrative boardand the Supervising board, while other firms consider this information abusiness secret. This issue should be precisely defined by the law.In the year 2006, on 747 submitted requests, the Initiative had received540 replies. In 124 cases this happened only after an appeal was sent to theCommissioner, i.e. after the commissioner had addressed the organ of publicauthority and notified them of the appeal submitted by the Initiative.The right to file a complaint to the CommissionerA complaint to the Commissioner is filed in the period of 15 days fromthe delivery of the decision to the submitter by the organ of authority,or in the case of „silence of the management” 286 . The reasons for filing acomplaint can be if the organs of authority: refuse to inform the submitteron the possession of the information, to give him insight, issue or addressa copy of the requested document, or if this is not done in the appropriateperiod of time 287 , if they do not answer in the appropriate period of time 288 ,the conditions of issuing a copy by paying a compensation higher thanthe costs of making a copy 289 , and if they do not provide insight into thedocument in a way regulated by this law 290 .A complaint to the Commissioner is not allowed against the decisions of theNational Parliament, the President of the Republic, the Government of theRepublic of Serbia, the Supreme Court of Serbia, and the Republic PublicProsecutor 291 . In these cases, the submitter can start an administrative casein the Supreme Court of Serbia. 292In the year 2006, the Initiative had filed 214 complaints to the Office of theCommissioner for information of public importance.The process before the CommissionerThe rules of an administrative process which deal with the decision of asecond-degree organ upon a complaint are applied to the process before286 Law on free access to information, Article 22, see above under 3287 Ibid, Article 22, Item 1288 Ibid, Article 22, Item 2289 Ibid, Article 22, Item 3290 Ibid, Article 22, Items 4 and 5291 Ibid, Article 22 , Paragraph 2292 Ibid, Article 22, Paragraph 370

Implementation of Transitional Laws in Serbia 2006the Commissioner, unless it is otherwise regulated by this law 293 .Upon receiving a complaint, the Commissioner establishes the facts, andthen reaches a decision 294 . The decision must be reached without delay, andin the period of 30 days at most from the day the complaint was filed 295 .Therefore, the period of 30 days is the final deadline the Commissioner hasto reach a decision upon receiving the complaint, and he is obliged to reachit “without delay”. Unallowed, untimely complaints and the complaintsissued by unauthorized persons will be dismissed by the Commissioner 296 .Upon a completed process, the Commissioner reaches a decision in whichhe either dismisses the procedure upon a request, or orders the organ ofpublic authority to send the prosecutor the requested information in threedays and to inform him of this in seven days.Six months after Rodoljub Sabic was elected Commissioner 297 , on 1st July2006, the authorized services of the Government provided the necessaryconditions for his work. Because of the constant increase in the number ofcomplaints, the working space in which the Commissioner’s office operatesis no longer satisfactory 298 . Also, a number of people must be employedurgently 299 . At this time the Commissioner’s office employs six people,of which three work on the processing of cases upon complaints by therequesters of the information 300 . Such a small number of people are belowthe actual needs, and the employment of new ones is conditioned by theproviding of a new working space 301 . Based on the results of the research,we can conclude that the Commissioner if fully obeying his legal obligations,and that he and his service deserve the most credit for the fact that the Lawon free access to information has finally started to be applied. Without hisefforts and enormous commitment, the citizens of Serbia would not beable to practice the right of access to information, nor would the organs ofpublic authorities have modernized their attitude toward this law.The Commissioner had, in January 2006, brought documents by which the293 Ibid, Article 21294 Ibid, Article 26, Paragraph 1295 Ibid, Article 24, Paragraph 1296 Ibid, Article 24, Paragraph 2297 Decision of the Serbian Parliament number 91 from December 22 nd , 2004, by which Rodoljub Sabic wasappointed the Commissioner298 The report on the implementation of the Law on free access to information, number 021-01-9/2006-01, Commissionerfor information of public significance, can be found on the website: www.poverenik.org.yu, visited on November23 rd , 2006299 Ibid300 Ibid301 Ibid71

Implementation of Transitional Laws in Serbia 2006work of his service is regulated, and which were approved by the Parliamenton May 23 rd , 2005. The documents are: the Decision on the formation of theOffice of the Commissioner for information of public importance 302 , theDecision on the salaries in the Office of the Commissioner for informationof public importance 303 , and the Rulebook on the inner organization andsystematization of job positions in the Office of the Commissioner forinformation of public importance 304 .The Commissioner is, according to the law, obliged to file a Report to theParliament of Serbia on actions taken by the organs of the authorities inthe implementation of this law in their actions and outputs, three monthsupon the ending of the fiscal year 305 . The Commissioner did this on 14thMarch 2006, for the year 2005 306 .The Commissioner also had the obligation to issue in Serbian and otherlanguages in official use, a Manual with the instructions for the realizationof the rights regulated by this law 307 , as well as the Directions for publishingthe Report on the work of state organs. The first obligation was fulfilledwith decisive help from OEBS and the Coalition of non-governmentalorganizations for the freedom of access to information, when the “Guidethrough the Law on free access to information of public significance” wasbrought. This guide was done in Ruthenian 308 , Romanian 309 , Albanian 310 ,Slovakian 311 , Bulgarian 312 and Hungarian 313 . The help was necessary inspite of the legal regulation that the financial means for the work of theCommissioner and his expert team come from the budget of the Republic302 Decision on the formation of the Office of the Commissioner for information of public importance, canbe found on the website: http://www.poverenik.org.yu/Dokumentacija/28_ldok.pdf, visited on November 23 rd ,2006303 Decision on the salaries in the Office of the Commissioner for information of public importance, can befound on the website: http://www.poverenik.org.yu/Dokumentacija/30_ldok.pdf, visited on November 23 rd ,2006304 Rulebook on the inner organization and systematization of job positions in the Office of the Commissionerfor information of public importance, can be found on the website: http://www.poverenik.org.yu/Dokumentacija/29_ldok.pdf,visited on November 23 rd , 2006305 Law on free access to information, Article 36, see above under 3306 See above under 298307 Law on free access to information, Article 37, see above under 3308 The guide in Ruthenian language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/41_ldok.pdf,visited on November 23 rd , 2006309 The guide in Romanian language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/40_ldok.pdf,visited on November 23 rd , 2006310 The guide in Albanian language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/39_ldok.pdf,visited on November 23 rd , 2006311 The guide in Slovakian language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/38_ldok.pdf,visited on November 23 rd , 2006312 The guide in Bulgarian language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/37_ldok.pdf,visited on November 23 rd , 2006313 The guide in Hungarian language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/34_ldok.pdf,visited on November 23 rd , 200672

Implementation of Transitional Laws in Serbia 2006of Serbia 314 . The obligation of issuing a Manual, the Commissioner hadfulfilled according to the law on 23rd May 2005 315 . At the beginning of2006, the Government had, on the proposition of the Commissioner andthe Ministry of Culture, brought a Regulation on the height of the necessaryexpenses for issuing a copy of the documents containing information ofpublic importance 316 , by which the basic legal conditions for the work ofthe Office of the Commissioner were fulfilled.The Office of the Commissioner published the Guide through the lawon free access to information of public significance also in the Romalanguage 317 . This is the first legal act in Serbia published in the language ofthis national minority.The Constitution of Serbia did not anticipate the „right to free accessto information” as such, but defined a new „right to be informed” 318 .This means that everyone has the right to be accurately, completely, andtimely informed on issues of public significance, that the means of publicinforming are obliged to obey this rule 319 and that everyone has the rightof access to data in the possession of state organs and organizations whichhave public authorizations 320 . Therefore, such a definition in a large extentdiffers from the already regulated right to free access to information. Also,the Commissioner had not been made a constitutional category, unlike theombudsman 321 . According to the Constitutional law, it is regulated thatthe newly elected members of the Parliament will, during the first session,coordinate with the Constitution the laws which regulate the Protector ofcitizens and the realization of the right of the citizens to be informed andelect the Protector of citizens, the organ responsible for monitoring therealization of the right of the citizens to be informed, the President of theNational Bank of Serbia and the organs of the State revisory institution 322 .There is no need to coordinate the law on free access to informationwith the Constitution, so the intention of the framers of the law is not314 Law on free access to information, Article 34, Paragraph 4, see above under 3315 Instructions for publishing the report can be found on the website: http://www.poverenik.org.yu/Dokumentacija/26_ldok.pdf,visited on November 23 rd , 2006316 Regulation on the height of the necessary expenses for issuing a copy of the documents containing informationof public importance, can be found on the website: http://www.poverenik.org.yu/dokumentacija.asp?ID=4, visited on November 23 rd , 2006317 The guide in the Roma language can be found on the website: http://www.poverenik.org.yu/Dokumentacija/56_ldok.pdf,visited on November 23 rd , 2006318 Constitution of Serbia, Article 51, see above under 7319 Ibid, Paragraph 1320 Ibid, Paragraph 2321 Ibid, Article 131322 Constitutional Law, Article 5, see above under 10473

Implementation of Transitional Laws in Serbia 2006clear. Furthermore, „the organ responsible for monitoring the right ofthe citizens to be informed”, as the Constitution calls it, already exists.His title is the Commissioner for information of public significance andaccording to the law his term lasts for seven years. A question arises why thelaw anticipates the election of this organ. There are objective indicationsthat the Government wants to significantly narrow the authorizations ofthe commissioner or to cancel it as an institution, and possibly name anew organ which would monitor the until now non-existent „right of thecitizens to be informed”. Another function of the commissioner is notonly to monitor the realization of the right of free access to information,but also to protect it. By such an act the accomplished rights would bediminished, which is forbidden both by the international regulations, andthe Constitution of Serbia 323 .From 1st July 2005 to 30th October 2006, the Office of the Commissionerhad had the total of 1992 cases in their work 324 . 1329 cases were resolved,while 663 are in the process of being resolved 325 . From the resolved1329 cases, 1014 were complaints 326 . Deciding on the complaints, theCommissioner had made 357 decisions by which the organs of publicauthorities were ordered to enable access to the requested information 327 .Of these 357 decisions, 30 have not been realized 328 .On the complaints filed by the Initiative to the Office of the Commissioner,25 decisions were made. In a large number of cases the organs of publicauthorities had delivered the Initiative the requested information as soon asthe commissioner informed them of the filed complaint, so that there wasno need for the commissioner to reach a decision on every complaint.Starting an administrative procedure against the decisionof the CommissionerIf a person is not satisfied with the decision reached by the Commissioner,they can file an administrative procedure though bringing charges to theSupreme Court of Serbia 329 . In the previous practice 32 charges were brought323 Constitution of Serbia, Article 20, see above under 7324 See above under 298325 Ibid326 Ibid327 Ibid328 Ibid329 Law on free access to information, Article 27, see above under 374

Implementation of Transitional Laws in Serbia 2006against the decision of the commissioner, of which 16 were delivered tothe commissioner to explain 330 . Six charges were resolved, one was rejected,and five were dismissed 331 .The Security Informative Agency (BIA) had filed one of the charges againstthe decision of the commissioner, by which BIA was instructed to deliverthe requested information in three days to the Initiative. Deciding on thecharges, the Supreme Court of Serbia had, not entering the meritum, decidedto drop the charges because BIA did not have any active legitimacy to bea party in the procedure 332 . Namely, the prosecutor in an administrativeprocedure can be a physical person, juristic person or other party whichconsiders that a right or an interest based on the law was injured by theadministrative procedure 333 . In this case the issue was for BIA to deliverto the Initiative the requested information, and not its right or an interestbased on the law 334 .Petition to the Government of the Republic of Serbia toprovide the execution of the Commissioner’s decisionThe law has predicted the Government as the organ responsible for theenablement of the execution of the conclusions and the decision of thecommissioner 335 . In previous practice it was noticed that the Governmenthad not executed any of the decisions of the commissioner when thiswas required. The way in which the Government will make sure that thedecisions and the conclusions of the commissioner are carried out, isnot regulated by the Law on free access to information. The deadline hasalso not been determined, so it is unclear in which time the submitter canexpect that the Government will do it. The possible procedure, which isanticipated by the Law on administrative processes 336 , is for the decisionsof the commissioners to be secured by a compulsory measure in the formof a monetary fine which can be repeated several times until the obligationis fulfilled.330 See the web page: http://www.poverenik.org.yu/Dokumentacija/15_informatorldok.pdf, visited on November25 th , 2006331 Ibid332 The Decision of the Supreme Court of Serbia from May 23 rd , 2006, number U 247/06, in the documentationof the Initiative333 Ibid334 Ibid335 Law on free access to information, Article 28, Paragraph 2, see above under 3336 Law on Administrative Procedures, Official Gazette of SRY, number 33/97 and 31/01, Article 276, Paragraph375

Implementation of Transitional Laws in Serbia 2006The Initiative had, on 29th May, submitted a request to the Governmentfor the execution of the decision of the commissioner on the occasion ofbreaking the law by BIA, and their refusal to provide us with the informationon how many citizens of Serbia had been tapped during the year 2005.Until November 2006, the Government had not provided the Initiativewith feedback concerning this request.Starting misdemeanor procedures against responsibleindividualsFor not obeying the law, the monetary fine in the amount of 5000 to50000 dinars is anticipated 337 . The misdemeanor has been committed ifthe authorized person in the organ of public authorities: acts against theprinciple of equality 338 , discriminates a journalist or a means of publicinforming 339 , does not mark the bearer of the information where andwhen the information was published 340 , does not announce or does notenable insight into a document which contains accurate and completeinformation 341 , does not enable insight or does not make a copy of thedocument in the language the request was submitted on 342 , and refuses toreceive a request, not informing the submitter on the possession of theinformation, does not reach a decision on the denial of the request anddenies the submitter the necessary assistance for the realization of theirrights 343 . The same fine is anticipated if the state organs do not make aReport 344 i.e. do not submit an annual report to the commissioner on theprocedures which were conducted in the purpose of the implementationof this law 345 .For the processing of misdemeanor procedures for disobeying the Law onfree access to information, according to the place where the misdemeanorwas committed, City or Municipal Judges for misdemeanors are responsible.The Initiative had filed 10 requests for starting misdemeanor procedures337 Law on free access to information, Article 46, see above under 3338 Ibid, Item 1339 Ibid, Item 2340 Ibid, Item 3341 Ibid, Item 4342 Ibid, Item 5343 Ibid, Item 6344 Ibid, Article 47345 Ibid, Article 4876

Implementation of Transitional Laws in Serbia 2006against Rade Bulatovic, the Director of BIA, and the Chief of his cabinetNikola Bajic 346 , Velimir Ilic — the Minister for Capital Investments 347 ,Dragan Jocic - the Minister of Interior 348 , Dragica Miovanovic — theCommissioner of the Ministry of Justice 349 , Nenad Cekic — the Manager ofRRA 350 , the Managers of JAT 351 and the “Elektrodistribucija” of Serbia 352 ,as well as the Presidents of the Municipalities of Mionica 353 , Trgoviste 354and Novi Pazar 355 . No verdicts were reached until November this year.Conclusions on the Implementation of the Law onFree Access to InformationOn the basis of the research on the implementation of the Law on freeaccess to information, the Initiative has reached the following conclusions:• The results of the research have shown that, of 378 organs ofpublic authorities, 167 of them, i.e. 44.18 per cent have obeyed theLaw on free access to information• Of 154 Municipalities and cities, 48 of them have made an accurateReport. Answers to the requested information were producedby 105 municipalities and cities, so that it cannot be positivelydetermined whether the other 49 municipalities have fulfilled theirlegal obligation. The Law on free access to information was fullyobeyed by 27 municipalities and cities in Serbia• Although the Government is obliged to obtain financial means forthe work of the Commissioner and his expert service, as well asto ensure the execution of the decisions and conclusions of theCommissioner, the results of the research have shown that theGovernment had not sufficiently fulfilled these obligations. Of 134decisions of the Commissioner by which access to information wasordered, 30 decisions have not been carried out. The Governmentdid not react in any of the 30 mentioned cases.• The Ministry of Culture is the most conspicuous example of not346 Request for starting a misdemeanor process was submitted on June 9 th , 2006347 Request for starting a misdemeanor process was submitted on November 1 st , 2006348 Request for starting a misdemeanor process was submitted on November 8 th , 2006349 Request for starting a misdemeanor process was submitted on May 3 rd , 2006350 Request for starting a misdemeanor process was submitted on June 15 th , 2006351 Request for starting a misdemeanor process was submitted on July 20 th , 2006352 Request for starting a misdemeanor process was submitted on July 20 th , 2006353 Request for starting a misdemeanor process was submitted on October 24 th , 2005354 Request for starting a misdemeanor process was submitted on October 24 th , 2005355 Request for starting a misdemeanor process was submitted on October 24 th , 200577

Implementation of Transitional Laws in Serbia 2006obeying the laws. Except for the fact that they have not made aReport and that they have not processed any of the 222 complaintsof the Commissioner, the mentioned ministry did not, even two yearsafter the law was made efficient, name the person who would workon the implementation of the Law on free access to information.This job position is anticipated by systematization. This leads tothe conclusion that the Ministry of Culture is approaching theimplementation of this law in a frivolous and irresponsible way, andthat they make a selection of laws as important and unimportant.• The Ministry of Interior is prone to discrimination of certainjournalists and public means of informing, because during thearrest of Goran Kljajevic and Sekula Pijevcevic they gave exclusivefootage of the arrest to the RTS media service, the weekly magazineNIN and the daily newspapers Press and Politika, while the othermedia did not even get an announcement for the public.• Even two years after the Law on free access to information wasmade efficient, the Municipalities of Kladovo, Niska Banja andOsecina are still not acquainted with its contents, and therefore arenot able to adequately fulfill their obligations.• Many municipalities have stated the lack of monetary funds as thereason for not fulfilling the obligation of issuing a Report.• The Oil Industry of Serbia and Telecom Serbia consider theinformation on the salaries of the managers and the members ofadministrative boards to be a business secret, and as such cannotbe available to the public. The City Traffic Company in Belgrade,as an organ of public authorities which has the same status asthe mentioned public firms, has an opposite attitude towards thematter.• The Initiative had filed 124 complaints for the violation of the lawon free access to information to the Commissioner. 121 complaintswere based on the „silence of the management”, two were filedbecause of the refusal of the organs of public authorities to answerthe request claiming that the information are a business secret, andone was filed because of the conditioning of issuing a copy bypaying a monetary compensation.• At this moment the Initiative is leading ten misdemeanor proceduresfor the disobeying of the Law on free access to information.Although the first requests for starting misdemeanor procedures78

Implementation of Transitional Laws in Serbia 2006were filed in October 2005, no verdicts have been reached to thisday.• On the basis of the research we can conclude that the Commissioneris completely fulfilling his legal obligations and that he and hisOffice deserve the most credit for the fact that the Law on freeaccess to information has started to be applied. The Office of theCommissioner, concerning the personnel and the working space,is already not in the position to fulfill the obligations which theincrease of the number of cases carries.• The mission of OEBS in Serbia and Montenegro and the Coalitionof non-governmental organizations for freedom of access toinformation have fulfilled the obligation the law had given to theGovernment. This particularly refers to the making of the „Guideto free access to information” and the training of the employees inthe organs of public authorities.• From 1st July 2005, to 30th October 2006, the Office of theCommissioner had worked on the total of 1992 cases. 1329 wereresolved, while 663 are in the process of resolving. Of the 1329resolved cases, there were 1012 complaints. Deciding on thecomplaints, the Commissioner had reached 357 decisions by whichthe organs of public authorities were ordered to enable access tothe requested information. Of these 357 decisions, 30 were notcarried out.• Of all the mechanisms for the realization and protection of the rightto free access to information, only the Office of the Commissionerfor information of public significance is fully functional.• There are indications that the achieved rights, especially the right tofree access to information of public significance as an institution,could be reduced by the Constitution of the Republic of Serbia andthe Constitutional Law.79

Implementation of Transitional Laws in Serbia 2006Recommendations for the Implementation of theLaw on Free Access to InformationOn the basis of the research of the implementation of the Law on free accessto information, the Initiative has reached the following recommendations:• Authorized persons in the organs of public authorities mustbear responsibility for the violation of the Law on free access toinformation, so that the penal regulations of the law would beobeyed, and its implementation advanced.• The Government must start fulfilling their legal obligations.Monetary funds must be provided for the organs of publicauthorities, especially smaller municipalities in Serbia, in order toemploy the personnel which would work on the implementation ofthe laws• The Government must make sure that the conclusions anddecisions of the Commissioner are executed. Since there has notbeen such a case in practice, the question of the mechanisms on thebasis of which the Government fulfils this obligation is imposed.The recommendation of the Initiative is that the decisions andconclusions of the Commissioner be ensured through thecompulsory measure in the form of a monetary fine which can berepeated several times until the obligation is fulfilled.• The responsible persons in the Ministry of Culture must bearresponsibility for the non-fulfillment of the obligations from the Lawon free access to information. The correction and amendment ofthe Article 45 of the law is needed immediately, which should state:„The supervision over the implementation of this law is done bythe Ministry for Local Management and Self-management”, insteadof the current article: „The supervision over the implementationof this law is done by the Ministry responsible for the affairs ofinforming”. The Ministry of Culture has shown that they are notup to the task.• Journalists and public means of informing must have equal conditionsand equal access to information. By putting some media in a betterposition than others the Law on free access to information, in thepart by which the prohibition of the discrimination of journalistsand means of public informing is regulated, is being broken. This80

Implementation of Transitional Laws in Serbia 2006has been the previous practice of the Ministry of Internal Affairs.• The training of personnel in the organs of public authorities whichdeal or will deal with the implementation of this law must beapproached more seriously and more persistently• It is necessary to precisely define by the law whether the salaries ofmanagers and members of administrative and supervising boardsof the public firms represent information which should not beavailable to the public. It happens in practice that some public firmsallow access to these information, and some do not.• In order to make the work of the Commissioner and his officebetter, additional support of the authorized organs in the form ofemployment of new personnel and the securing of a new, largerworking space is needed.• Paragraph 1 of the Article 2 of the Constitutional law should beerased.Law on the Protector of CitizensUpon the suggestion of the Government of the Republic of Serbia, Lawon the Protector of citizens 356 was adopted in the National Assembly of theRepublic of Serbia on September 16th 2005, and it took effect on September24th 2005. The law derives its name from Swedish word “ombudsman”meaning a representative, advocate or confidant. This democratic institutionhas a long-standing tradition and was first introduced in Sweden in 1809.As for the Serbia, the concept of ombudsman exists in autonomous regionof Vojvodina and local self-governing bodies. Though each municipalityhas right to decide upon a local, municipal ombudsmen, there are noprecise data on the number of local bodies which have made use of such apossibility in their citizens’ best interest. It is interesting that the lawmakeropted for the phrase “protector of citizens”, though in Vojvodina the word“ombudsman” is used, whereas in local self-governing bodies the alternativeterm “ombudsman” or “citizens’ advocate” has been introduced. In Austriaand Macedonia the term “defender of citizens’ rights” can be met. Serbiawas amongst the last European countries to introduce this concept.356 Law on the Protector of citizens; see above under 581

Implementation of Transitional Laws in Serbia 2006Comparative Analysis of Laws on the OmbudsmanThe Initiative conducted a comparative analysis of the Law on the Protectorof citizens with other laws in the region that regulate the organization andwork of the „ombudsman“. Reference material used for the analysis wasthe following: Montenegrin Law on the Protector of Human Rights andLiberties 357 , Law on the Ombudsman for Human Rights of Bosnia andHerzegovina 358 and Act on the Institution of the Ombudsman 359 in Kosovo.The objective is to point to the sections of the Law which do not complywith the pattern of democracy and which, in turn, could form a practicalobstacle in the development of the institution in our society.This law establishes the institution of The Protector of Citizens (in furthertext: Ombudsman). This is an ex lege institution, established as an independentstate body which protects citizens’ rights, monitors governing state bodies’activities 360 and protects and improves human rights and liberties 361 . Theterm „citizen“, as used in the Law, encompasses each physical person andlegal entity, local or international, whose rights and duties governing statebodies decide upon. 362The Law foresees that the Ombudsman should be an independent, selfgoverningbody, whose work and activities no one has right to influence.363Every caucus can propose a candidate for the Ombudsman to theConstitutional Board (hereinafter: Board) 364 , then the Assembly votes uponthe Board’s motion and elects Ombudsman 365 by relative majority, that is, bythe majority of the present members of Parliament. This solution, thoughconstitutional, can cast doubt with the public concerning Ombudsman’sindependence and impartiality. It should be stated here that Act on theInstitution of the Ombudsman in Kosovo 366 as well as Montenegrin Lawon the Protector of Human Rights and Freedoms 367 both envisage thatOmbudsman can be elected by absolute majority, that is, by majority votes357 Law on the Protector of Human Rights and Liberties, adopted on July 8 th 2003. Official Gazette of theRepublic of Montenegro No 41/2003358 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, adopted on June 25th 2002. inthe National Assembly session and on July 3 rd , 2002 in the Representative Assembly session, official gazette BiH70/02359 Act on the Institution of the Ombudsman in Kosovo was brought on February 16th 2006, No 2006/6360 Law on the Protector of Citizens, Article 1, see above under 5361 Ibid, Article 1, Item 2362 Ibid, Article 1, Item 3363 Ibid, Article 2, Item 1364 Ibid, Article 4, Item 1365 Ibid, Article 4, Item 2366 Act on the Institution of the Ombudsman in Kosovo, Article 6, Item 2 , see above under 359367 Law on the Protector of Human Rights and Freedoms, Article 8, see above under 35782

Implementation of Transitional Laws in Serbia 2006of the total number of members of Parliament. Law on the Ombudsmanfor Human Rights of Bosnia and Herzegovina states that the Ombudsmancan be elected by two-third majority, both in the House of Commons andHouse of Representatives of the BH Parliamentary Assembly. 368The conditions that have to be met in order for someone to be electedan Ombudsman are the following: citizenship of the Republic of Serbia,degree in law, minimum ten years of working experience in legal domain,high degree of expertise and personal, moral qualities and relevant,commendable experience in citizens’ rights protection. 369 Ombudsman hasfour Deputies who are elected, on his proposal, by the Assembly. 370Act on the Institution of the Ombudsman in Kosovo foresees a veryinteresting solution that, amongst people elected the Ombudsman, FirstDeputy Ombudsman and other three Deputies, there should be at leastone representative of Kosovo Albanians, Kosovo Serbs and some otherminority group eligible for representation in the Kosovo Parliament. 371There must be at least one female amongst them. 372At the same time, Assembly is also a body that can brought Ombudsman’sterm to an end and this can happen in the following instances: in case theincumbent does their job without due level of expertise and conscience,if they are simultaneously engaged in some other public or professionalactivities or in case they act in contravention of the Law on conflict ofinterest prevention. The same applies if the incumbent is convicted of anact of crime that renders them unsuitable for performing Ombudsman’sduties. 373Ombudsman’s jurisdiction is to monitor the human rights implementationand establish damage incurred by state agencies’ activities, regulations orinertia, especially when it means flouting the laws, other regulations andgeneral acts of the Republic of Serbia. 374Apart from this, the incumbent’s duty is to monitor and check the legality368 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, Article 9, Item 1, see above under358369 Law on the Protector of citizens, Article 5, see above under 5370 Ibid, Article 6371 Act on the Institution of the Ombudsman in Kosovo, Article 6, Item 7. See above under 359372 Ibid, Article 6, Item 7373 Law on the Protector of citizens, Article 12, see above under 5374 Ibid, Article 17, Item 183

Implementation of Transitional Laws in Serbia 2006and legitimacy of the governing agencies’ activities 375 , bar the activities ofthe Assembly, President of the Republic, Prime Minister, ConstitutionalCourt, judiciary and public prosecutors. 376 Therefore, this law 377 protectsthe highest state governing bodies in Serbia, whose activities cannot becontrolled by the Ombudsman. Ombudsman is also authorized to submitto the Government and the Assembly motions for amendments to the laws,regulations and other general acts as well as to initiate the introduction ofnew laws that would contribute to the implementation and protection ofcitizens’ rights. 378 The incumbent can also instigate a procedure with theConstitutional Court with the view to appraising legality and constitutionalityof laws and other acts 379 ; he/she is authorized to propose a public motionto sack a dignitary liable for citizens’ rights infringement 380 as well as to filefor or submit report leading to the initiation of a criminal, offence or otherrelevant procedure. 381 The Law obliges state agencies to put at Ombudsman’sdisposal all the data, regardless their confidentiality, except when this wouldcontravene the positive laws. 382 This stipulation thus allows state agencies todeny Ombudsman’s request for accessing certain confidential data by callingupon other positive laws. According to Montenegrin Law on the Protectorof Human Rights and Liberties, a governing body is under obligationto grant Ombudsman insight to all data, regardless their confidentiality.Therefore, there is no possibility for Ombudsman in Montenegro to bedenied insight into certain data by merely calling upon some other laws. 383Upon their own initiative or, alternatively, upon citizens’ complaint 384 , theincumbent instigates procedure but can also act preventatively by providingdecent service, mediating or giving advice and opinion on issues withintheir remit. 385 Complaint can be filed by any physical person, legal entity,domestic or international, who considers their rights infringed upon. 386Before filing a complaint though, the submitter is obliged to try and protect375 Ibid, Article 17, Item 2376 Ibid, Article 17, Item 3377 Law on the free access to information of public interest (see above under 4) also prescribes that decisionsbrought by the Assembly, President of the Republic, Prime Minister, Supreme Court, Constitutional Court andRepublic General Attorney cannot be appealed against378 Law on the Protector of citizens, Article 18, see above under 5379 Ibid, Article 19380 Ibid, Article 20, Item 1381 Ibid, Article 20, Item 2382 Ibid, Article 21, Item 1383 Law on the Protector of Human Rights and Freedoms, Article 40, Item 1. See above under 357384 Law on the Protector of citizens, Article 24, Item 1, see above under 5385 Ibid, Article 24, Item 2386 Ibid, Article 25, Item 184

Implementation of Transitional Laws in Serbia 2006their rights in an appropriate procedure. 387 Exception to this rule appliesfirstly in situations when the party filing a complaint has been incurred anirrecoverable damage or loss or, secondly, if the complaint concerns theinfringement of the good management principle, especially state agencies’unfair treatment of the submitter, untimely response or other instances ofmisconduct and breaking rules of ethic code on the part of public servants 388 ,in which cases Ombudsman is allowed to initiate procedure even before alllegal means have been exhausted. Therefore, the existing premise in Serbiais that all the available legal means have to be exhausted prior to initiatingprocedure with the Ombudsman. As opposed to this solution, MontenegrinLaw on the Protector of Human Rights and Liberties is premised on theidea of all available legal means not constituting an absolute prerequisitebut rather being an available solution for the Ombudsman to opt for in caseit is deemed a more efficient means. 389 The complaint is to be submitted inwriting or in spoken words accompanied by making official notes 390 at thelatest within a year after citizens’ rights infringement took place. 391The following are the cases in which Ombudsman is not to act uponcomplaints: if subject of the complaint does not fall within his/herjurisdiction, if the complaint is untimely submitted, if it is submittedprior to exhausting all available legal means, if it is anonymous and doesnot include all necessary information in order for the procedure to beinstigated. 392 Governing bodies are obliged to reply to all of ombudsman’srequests and within a deadline that the incumbent stipulates, the deadlineneither being shorter than 15 nor longer than 60 days. 393 After establishingall relevant facts and circumstances, Ombudsman decides upon thelegitimacy of the complaint. 394 In case the incumbent detects faults onthe part of a governing body, he/she is to propose recommendationsto the body as to how to rectify them. 395 Within 60 days after receivingthe recommendation, the governing body is under obligation to informOmbudsman on the measures undertaken or, alternatively, reasons fornot acting upon the recommendations. 396 As an exception, the deadline387 Ibid, Article 25, Item 3388 Ibid, Article 25, Item 5389 Law on the Protector of Human Rights and Freedoms, Article 35. See above under 357390 Law on the Protector of citizens, Article 26, Item 1, see above under 5391 Ibid, Article 26, Item 2392 Ibid, Article 28393 Ibid, Article 29394 Ibid, Article 31, Item 1395 Ibid, Article 31, Item 2396 Ibid, Article 31, Item 385

Implementation of Transitional Laws in Serbia 2006can be shortened to the minimum of 15 days in case there is a dangerof permanently or substantially damaging the submitter’s rights. 397 In casestate agency fails to act upon the recommendations, Ombudsman informsthe public, Assembly and Government but can also propose a motion forestablishing the agency management’s liability. 398 As opposed to our lawthat does not mention the possibility at all, Law on the Ombudsman forHuman Rights of Bosnia and Herzegovina envisages an excellent legalsolution by stating that a complaint submitted to Ombudsman or any otherintervention on his/her part is certain not to lead to a criminal, disciplinaryor other sanctions against the submitter and that it shall not incur any otherdiscomfort or discrimination. 399Thereby, as the Law protects them against a potential institutional retribution,citizens of Bosnia and Herzegovina whose human rights are encroachedare encouraged to file complaints to the Ombudsman.The Ombudsman is to submit to the Assembly a report on their activitiesin the previous year at the latest till March 15 th of the following year, andcan also submit special reports if needed. 400 An Expert Office of theOmbudsman is formed with the view to performing of the incumbent’sduties in the most efficient possible manner. 401Within six months of the day of this Law taking effect, the Assembly shallelect the Ombudsman 402 , and the incumbent shall, in turn, firstly propose amotion for electing Deputies within three months after taking their office 403and, secondly, bring within 60 days a General Act on the Organizationand Work of the Expert Office. 404 The incumbent shall not act upon thecases initiated before this Law taking effect. 405 As opposed to this, ratherprescriptive a solution, Kosovo Law on the Ombudsman stipulates thatOmbudsman is in charge not only of the cases originated after the Law tookeffect but also those based on the events and facts that happened beforethe date, when these facts bring about the continuation of the human rights397 Ibid, Article 31, Item 4398 Ibid, Article 31, Item 5399 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, Article 18, Item 2. See above under358400 Law on the Protector of Citizens, Article 33, see above under 5401 Ibid, Article 38402 Ibid, Article 39, item 1403 Ibid, Article 39, Item 2404 Ibid, Article 40405 Ibid, Article 4386

Implementation of Transitional Laws in Serbia 2006infringement or abuse of powers. 406 Law on the Ombudsman of Bosniaand Herzegovina regulates the issue even further and more precisely bystating that Ombudsman is not to consider cases concerning decisions,facts or events that took place before December 15 th 1995. 407 It, therefore,predates the adoption of the Law by seven years. 408Other laws in the region 409 oblige the Ombudsman to cooperate withrelevant human rights and liberties organizations, whereas our Law neverexplicitly mentions even the possibility.Law on the Protector of citizens includes no penal stipulations. MontenegrinLaw on the Protector of Human Rights and Liberties includes a goodstipulation saying that liable party who fails to act timely upon Ombudsman’srequest or disregards Ombudsman’s summons shall be fined for thecommitted offence. 410Law on the Protector of Citizens – ImplementationThe six month deadline of the day the Law was promulgated in the OfficialGazette of the Republic of Serbia expired on March 24 th 2006, without theAssembly nominating anyone for the office. The first session of the Firstregular gathering of the Assembly was scheduled for March 20 th 2006, butthen was delayed and started on March 27 th 2006. 411 Voting an Ombudsmanwas not on the agenda of either that or the following session of theAssembly. 412 It was only in the Sixth session, on April 3 rd 2006, that the Boarddecided on including urgently the motion for vote on Ombudsman in theforthcoming Assembly session agenda. 413 At the same time, no authorizedproposing party had recommended an Ombudsman candidate to the Boarduntil March 24 th 2006. 414 There were members of Parliament who, asked byDanas journalists who they would propose for the Ombudsman, replied“they could not remember what the incumbent’s responsibilities were”. 415406 Act on the Institution of the Ombudsman in Kosovo, Article 3.3. See above under 359407 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina, Article 2, Item 1, Point 5. Seeabove under 358408 Law on the Ombudsman for Human Rights of Bosnia and Herzegovina was adopted on July 3rd 2002409 Law on the Protector of Human Rights and Liberties foresees it in Article 23, Item 2, and Act on the Institutionof the Ombudsman in Kosovo stipulates it in Article 11, Item 2410 Law on the Protector of Human Rights and Freedoms, Article 54. See above under 357411 See Web Site: http://www.parlament.sr.gov.yu/content/lat/index.asp , visited on November 24 th 2006412 M.T: Uninformed caucuses, DANAS, March 8 th 2006413 M.Torov: Saša Janković-candidate for Serbian ombudsman, DANAS, April 4 th 2006414 R.B – M.T: Dragan Milkov- Serbian candidate for Ombudsman, DANAS, March 25 th 2006415 M.T: Uninformed caucuses, DANAS, March 8 th 200687

Implementation of Transitional Laws in Serbia 2006Members of the Board, Sava Urosevic from G17+ and Zarko Obradovicfrom Socialist Party of Serbia, said that their respective caucuses had notdealt with the issue over the last couple of months at all. 416 According tothe Radical Party of Serbia Secretary General Aleksandar Vucic, this partywas unwilling to nominate an Ombudsman candidate as they held the officea burden for the budget. On this occasion he added: “In the same way as Ihold the existence of the Citizens’ Office a liability, I see the Ombudsmanoffice as being equally useless and established with the sole purpose ofripping people off.” 417 It was on May 30 th that the Board (chaired by PredragMarkovic, who acts as the Assembly Chairman as well) was in session lasttime. 418 At the 29 th session of the Assembly European Integrations Boardthat took place on March 3 rd 2006. Stefano Valenti, European Council Headof Mission in Serbia and Montenegro, presented the Board members withthe 10 th European Council report on Serbia and Montenegro situation.On this occasion Mr. Valenti reminded the Economic Integrations Boardmembers of their duty to appoint an Ombudsman, having in mind thesix-month deadline for his/her appointment. The Board ChairpersonKsenija Milivojevic said on the occasion: “The Ombudsman election legaldeadline expires at the end of March, which is very soon, and this Board,the European Integrations Board, has already drawn the Assembly’s, thatis the competent Board’s attention, to the imminent deadline and the needto initiate the election procedure….and I really do hope that, given thatlegally set six-month deadline is a decent period of time, the Assembly,that is, the relevant Board, will manage to meet the deadline, all the morebecause we deal here with a completely new institution, new on the Republiclevel.” 419 Despite the promise, Ombudsman was not appointed within thelegal deadline.At the 6 th Session of the Constitutional Board, Democratic Party ofSerbia’s caucus nominated for the Ombudsman’s office Sasa Jankovic, thenational legal advisor in the Democratization Unit of OSCE in Serbia andMontenegro. 420 Sasa Jankovic was the only Ombudsman candidate. Lawon the Ombudsman of the Check Republic foresees four Ombudsman416 M.T: Uninformed caucuses, DANAS, March 8 th 2006417 B. Vukčević: No one is to act the role of citizens’ protector, GLAS JAVNOSTI, April 6th 2006418 See Web Site: http://www.parlament.sr.gov.yu/content/lat/aktivnosti/skupstinske_detalji.asp?Id=766&t=A,visited on November 24 th 2006419 Notes taken in short hand at the 29 th Session of the Assembly European Integrations Board from March 3 rd2006, pages 16 and 17. The notes are included in the Initiative’s archives420 See Web Site: http://www.parlament.sr.gov.yu/content/lat/aktivnosti/skupstinske_detalji.asp?Id=1036&t=A,visited on November 25 th 200688

Implementation of Transitional Laws in Serbia 2006candidates proposed, two out of who are to be nominated by the Presidentof the Republic and the other two by the Senate, that is, the upper house ofthe Parliament. 421 The whole process of appointing an Ombudsman in Serbiawas rather a non-transparent one, as Serbian public had no opportunityto discuss the proposed candidates. A group of non-governmentalorganizations 422 objected to the Ombudsman election system, underliningthat it was “inappropriate in a democracy-aspiring society to elect (theonly!) Candidate for such an important office without any discussion andwider support from the experts and the public…This way of electionwould in itself serve to cast a serious doubt on the independence of theinstitution from the very beginning.” 423 Democratic Party of Serbia caucus’scandidate Sasa Jankovic, relinquished the candidacy on April 6 th 2006. 424Accounting for the decision, he said that some eminent non-governmentalorganizations for the protection of human rights had voiced suspicion overthe system employed upon the nomination of candidates and also thatthere were different interpretations concerning the fulfillment of legalconditions set on the appointment of Ombudsman. 425 This was followedby the Parliament Chairman Predrag Markovic calling on the caucuses topropose new candidates.As of November 2006 the Protector has not been appointed, and the factthat the law has been broken is not a matter of public or expert debate inSerbia.The Constitution of the Republic of Serbia, 426 proclaimed on November8 th , 2006, has foreseen a Protector of Citizens as a constitutional category. 427Based on this constitutional stipulation, Constitutional law anticipatedthat the National Assembly would reconcile the Law on the Protector ofCitizens with the Constitution and choose the Protector of Citizens duringits first session, after a government has been elected. 428421 Statement by Ottacar Moteil, Ombudsman of the Check Republic, at the meeting of the Check delegationwith non governmental organizations of Serbia and Montenegro, held at the Cultural Decontamination Centreon April 4 th , 2006422 Belgrade centre for human rights, Belgrade fund for political excellence, Peace and democracy developmentcentre, Children rights centre, Legal studies enhancement centre, European movement for Serbia, Humanitarianlaw fund, Helsinki committee for Human rights, Integration and tolerance humanitarian centre, Citizens’ initiatives,Group 484, Human rights jurists’ committee, Praxis, Vojvodina human rights centre and Women in black423 Statement “Jeopardizing the Ombudsman institution’s credibility” issued on April 4 th 2006 by a group ofNGOs, available on the site: http://www.bgcentar.org.yu/index.php?p=116, visited on November 25 th , 2006424 M. Torov: Saša Janković gives up candidacy, DANAS, April 6 th 2006425 Ibid426 The Constitution of Serbia, see above under 7427 Ibid, Article 138428 Constitutional Law, see above under 10489

Implementation of Transitional Laws in Serbia 2006Conclusions on the Implementation of the Law onthe Protector of CitizensAfter researching the implementation of the Law on the Protection ofcitizens, the Initiative reached the following conclusions:• The Assembly did not adhere to the legally stipulated six monthdeadline for appointing the Protector.• The whole procedure of nominating and appointing the Protectorwas not very transparent and as a consequence the Assembly’sConstitutional Board, without public debates and wider supportof the professional circles and the public, nominated Sasa Jankovicfor the Protector – national legal adviser in the DemocratizationUnit of OSCE in Serbia and Montenegro.• Sasa Jankovic was the only candidate nominated for the Protectorof citizens, although the Law stipulates that each Parliamentcaucus can nominate their candidate. As a result, political partiesdemonstrated grave irresponsibility towards responsibilities thatthey, as caucuses, have. The Assembly’s Constitutional Boardwhich was supposed to consider caucuses’ proposals, was last insession on May 30 th 2005, four months before the Law on theProtector of citizens was adopted.• The shortcoming of the Law is that it does not leave thepossibility for the organizations and institutions already includedin the monitoring, protection or promotion of human rights andfundamental freedoms to submit their proposals for the Protector,but gives that possibility only to Assembly’s caucuses.• Relative majority is needed for the election of the Protector, i.e.the majority of MPs present. Although this is in keeping withthe Constitution, this procedure can cause the public to questionProtector’s independence and autonomy. Certain laws in the regionenvisage absolute majority, i.e. the majority of total number ofMPs, or two-thirds majority for the election of the Protector.• The Law does not envisage that the Protector or certain numberof his deputies have to be members of national minoritiesliving in Serbia or that some of them should be females. Thissolution is encompassed within the Act on the Institution ofthe Ombudsman in Kosovo, which is in line with the current90

Implementation of Transitional Laws in Serbia 2006European legal standards.• The Protector is not authorized to control the work of theAssembly, President of the Republic, Government, ConstitutionalCourt, other courts and public prosecution offices by which thehighest bodies of public authority in Serbia are being protectedby this Law from the possible complaints regarding their workperformance, raised by the citizens of Serbia.• The Law gives the option to the Governmental agencies to rejectthe Protector’s request to have access to secret documents insituations when that is not in coherence with the Law. The Lawon the Protector of human rights and freedoms in Montenegroexplicitly says that the Governmental agencies are obliged to makeall data available for the Ombudsman regardless of the level oftheir sensitivity.• Serbian legislation starts off with the premises that beforeinitiating procedures in front of the Ombudsman, all otherexisting legal means. Unlike this solution, Montenegrin’s Law onthe Protector of human rights and fundamental freedoms startingpoint is that there is no need to exhaust all legal means, but thatthe Ombudsman can ask for it if he considers it to be moreefficient.• The Law does not regulate the protection of the complaintsubmitter from the later possible institutional retaliation forinitiating the proceedings before the Ombudsman. The excellentlegal solution of the Law on Human rights Ombudsman in Bosniaand Herzegovina is that a complaint before the Ombudsmanor any sort of intervention on his part will not bear criminal,disciplinary or other sanctions for the complaint submitter, or anykind of distastefulness or discrimination for him.• The Protector will act only in cases that occur after this Law hasbeen adopted. It means that all cases which occurred in the past,and whose consequences are suffered from in the present in theform of breaching of human rights or misuse of governing bodyauthority, will remain unprocessed.• The Law does not contain penalty provisions.• As of November 2006 the Protector has not been appointed,which puts this institution on the margins of institutional andpublic interest;91

Implementation of Transitional Laws in Serbia 2006• Constitutional law puts off the appointment of the Protector ofCitizens until the spring of 2007, by stating that he/she will beappointed only after the elections in Serbia.Recommendations for the Implementation of theLaw on the Protector of CitizensBased on a research regarding the implementation of the Law on theProtector of citizens, the Initiative has reached the following conclusions:• The Assembly shall appoint Ombudsman at the earliest possibletime.• Caucuses shall assume the responsibility delegated to them bySerbian citizens and take active part in putting forward proposals forthe Ombudsman to the Board.• Organizations and institutions involved in monitoring, protectionand promoting of human rights and basic liberties shall be granteda right by law to propose their Ombudsman candidates.• As opposed to the current solution that foresees a relative majorityvote as sufficient, the Ombudsman election should require anabsolute majority vote, that is, the majority of the total number ofthe members of parliament.• The Law should prescribe that it is obligatory for the Ombudsmanor certain number of his Deputies to represent different nationalminorities, as well as for females to constitute a set number of thestaff in the Ombudsman’s Office.• The stipulation of the Law stating that Ombudsman has no possibilityto monitor the work of the Assembly, President of the Republic,Government, Constitutional Court, courts and Public Prosecutorsshould be abolished.• State governing bodies should enable the Ombudsman insight intoall the data they have at their disposal, regardless the confidentialitylevel. No document should remain unavailable to the Ombudsman,with a proviso that, in extra sensitive and precisely law-definedsituations, the Ombudsman is under obligation to safeguard thedisseminated data as confidential.• The stipulation saying that all available legal means must be exhausted92

Implementation of Transitional Laws in Serbia 2006before initiating a procedure with the Ombudsman should bechanged, and instead, a premise should be introduced saying thatemploying all available legal means is necessary only in those caseswhen the Ombudsman holds it efficient.• Submitter of a complaint must be protected by law in such a waythat a stipulation should be introduced stating that the submitter’sintervention and complaint will not incur criminal or disciplinarysanctions or any other kind of discomfort or discrimination for thesubmitter.• One of the most needed amendments to the Law should be itsretroactive implementation in those cases when the consequencesin the form of human rights infringements or abuse of powers byGovernmental agencies can still be felt.• Penal stipulations must be included in the Law, prescribing fines forbreaching the Law, as for example in cases when an official failsto timely act upon the Ombudsman’s request or when a persondisregards Ombudsman’s summons.Law on Public InformationThe Serbian National Assembly adopted the Law on Public Informationon April 22, 2003. 429 While it monitored the enforcement of this law, theInitiative focused on provisions regulating the ban on the use of hate speechin reporting, pressing charges for hate speech cases and the procedure underwhich such cases were processed.The Law forbids publication of ideas, information and opinions that incitediscrimination, hatred or violence against an individual or a group ofindividuals on grounds of their race, religion, nationality, ethnicity, genderor their sexual inclination 430 . Hate speech is forbidden regardless of whethera criminal offence has been committed by such publication 431 . The legalprocedure of sanctioning hate speech is regulated in the following manner:the charges for hate speech can be pressed by a person who has been directlydamaged 432 or an organization that protects human rights and protects the429 The Law on Public Information, see above under 1430 Ibid, Article 38431 Ibid432 Ibid, Article 39, Paragraph 193

Implementation of Transitional Laws in Serbia 2006rights of some of the groups mentioned in the previous article 433 . The legalcharges against the author of the information and against the responsibleeditor of the media outlet 434 that published the hate speech is submittedto the municipal or city department for misdemeanors, depending on thedefendant’s place of residence 435 , and the charges may seek an injunctionon repeated publication of the information and the publication of thecourt ruling at the expense of the defendants 436 . In a case where theinformation pertains exclusively to a specific person, organizations maypress charges only with the consent of the person the information refersto 437 . In these proceedings, provisions of the law regulating litigation areaccordingly applied 438 . There is no breach of the prohibition of hate speechif the information is part of a scientific or a journalistic text that has beenpublished without the intent to incite discrimination, hatred or violence,especially if such information is part of an objective journalistic report 439 .There is also no breach of the prohibition of hate speech in the cases whenthe information has been published with the intent to provide a critical viewof the discrimination, hatred or violence against abovementioned persons,or of phenomena that constitute or might constitute incitement of suchbehavior 440 .The law stipulates that at the proposal of public attorney, authorizedmunicipal courts in Serbia may ban distribution of the information whennecessary in a democratic society in order to prevent, inter alia, inducementto direct violation or advocacy of racial, national or religious hatred thatpresents opinions that incite discrimination, hostility or violence 441 . Thecondition is that publication of the information threatens to result in aserious, irreparable consequence whose realization cannot be preventedotherwise 442 .Among international standards sanctioning hate speech there isRecommendation of the Committee of Ministers of the Council of433 Ibid, Article 39, Paragraph 2434 Ibid, Article 39, Paragraph 1435 The Law on Litigation (Official Gazette of RS, number 125/2004) was adopted on November 22 nd , 2004 andwas enforced on February 23 rd , 2005, Article 40, Paragraph 1436 Ibid437 Ibid, Article 39, Paragraph 3438 Ibid, Article 39, Paragraph 4439 Ibid, Article 40, Paragraph 1440 Ibid, Article 40, Paragraph 2441 The Law on Public Information, Article 17, see above under 1442 Ibid94

Implementation of Transitional Laws in Serbia 2006Europe No. R (97) 20 443 , which states that the term hate speech coversall forms of expression which spread, incite, promote or justify racialhatred, xenophobia, anti-Semitism or other forms of hatred based onintolerance, including intolerance expressed by aggressive nationalism andethnocentrism, discrimination and hostility against minorities, migrantsand people of immigrant origin 444 . The same document recommendsthat national law and practice in the area of hate speech should take dueaccount of the role of the media in communicating information and ideaswhich expose, analyze and explain specific instances of hate speech andthe underlying phenomenon in general as well as the right of the public toreceive such information and ideas. To this end, national law and practiceshould distinguish clearly between the responsibility of the author ofexpressions of “hate speech on the one hand and any responsibility ofthe media and media professionals contributing to their dissemination aspart of their mission to communicate information and ideas on matters ofpublic interest on the other hand 445 .It should be pointed out that the International Convention on theElimination of All Forms of Racial Discrimination 446 defines the term“racial discrimination” as any distinction, exclusion, restriction or preferencebased on race, color, descent, or national or ethnic origin which has thepurpose or effect of nullifying or impairing the recognition, enjoyment orexercise, on an equal footing, of human rights and fundamental freedomsin the political, economic, social, cultural or any other field of publiclife 447 . The preamble of this convention states that all states signatories,including Serbia and Montenegro, agree that any doctrine of superioritybased on racial differentiation is scientifically false, morally condemnable,socially unjust and dangerous, and that there is no justification for racialdiscrimination, in theory or in practice,” and that the existence of racialbarriers is repugnant to the ideals of any human society 448 .443 Recommendation of the Committee of Ministers of the Council of Europe No. R (97) 20, adopted on October30 th , 1997, is available at: http://www.mediacenter.org.yu/upload/pravo_doc/Preporuka%20R%20_97_%2020.pdf#search=%22Preporuka%20Komiteta%20ministara%20Saveta%20Evrope%20br.%20R(97)20%22 ,visited on November 25 th , 2006444 Ibid, Appendix to Recommendation, part “Scope”445 Ibid, Principle 6446 The International Convention on the Elimination of All Forms of Racial Discrimination, adopted on December21 st , 1965 and entered into force on January 4 th , 1969, is available at: http://www.unmikonline.org/regulations/unmikgazette/05bosniak/BRacialdiscrimination.pdf,visited on November 25 th , 2006447 Ibid, Article 1448 Ibid, Preamble95

Implementation of Transitional Laws in Serbia 2006The Convention condemns all propaganda and all organizations which arebased on ideas or theories of superiority of one race or group of personsof one color or ethnic origin, or which attempt to justify or promote racialhatred and discrimination in any form, and states parties undertake toadopt immediate and positive measures designed to eradicate all incitementto discrimination 449 . Finally, states parties agreed to assure 450 to everyonewithin their jurisdiction effective protection and remedies, through thecompetent national tribunals and other State institutions, against any actsof racial discrimination which violate his human rights and fundamentalfreedoms contrary to this Convention, as well as the right to seek fromsuch tribunals just and adequate reparation or satisfaction for any damagesuffered as a result of such discrimination.Internationally, there has been a louder and louder discussion lately onnormative regulation of “hate speech” that appears on the Internet 451 .Examples of Hate-SpeechHate-speech is largely present in Serbian print media. 452 Cases of courtprocesses against the hate-speech users are very rare.On March 16 th 2006, the daily GLAS JAVNOSTI (GLAS) published inits Economy section an ad headlined “Boycott”. 453 In the text, signed by“Persecuted Serbs”, the citizens are invited to gather in front of the IMMOmall in New Belgrade and express their protest against the opening ofthe Croatian shop IDEA. 454 The reason for this action was “the Croatianboot which freely marches through Serbian lands, buying companies andopening shops across Serbia”. 455 The ad warns that any purchase at theIDEA represents “a donation to those who killed us and evicted us fromour homes”. 456 Towards the end, the undersigned voice a clear threat:449 Ibid, Article 4450 Ibid, Article 6451 See webpage http://www.selfregulation.info/iapcoda/rxio-rapporteur-020923.htm, visited on November25 th , 2006452 See: Media Center Print Council’s Report for 2005 and 2006; the reports are available at the Media Center’sweb site: http://www.mediacenter.org.yu/code/navigate.asp?Id=668, visited on November 25 th , 2006; see also:reports by non-governmental organizations about hate-speech: Implementation of Transitional Laws in Serbia, YouthInitiative for Human Rights, Belgrade, 2005; Human Rights in Serbia and Montenegro, 2005, Belgrade Center for HumanRights, Belgrade, 2006; Human Rights and Colelctive Identity, Helsinki Committee for Human Rights in Serbia,Belgrade, 2005453 Boycott, GLAS JAVNOSTI, March 16 th , 2006454 Ibid455 Ibid456 Ibid96

Implementation of Transitional Laws in Serbia 2006“We will monitor those who purchase in this store and refuse to expresssolidarity with the hundreds of thousands of refugees and persecutedSerbs”, accompanied with: “STOP to Croatian occupation of Serbia” 457This advertisement made the Initiative bring charges to the First MunicipalCourt in Belgarde to determine whether it was hate speech or not sinceit considered this text as hate speech according to both the internationaland domestic standards and that its publishing indubitably resulted inspreading, instigating, inciting and justifying national hatred, xenophobiaand intolerance 458 .Both associations of journalists responded to the ad. President of theJournalists’ Association of Serbia (UNS), Nino Brajovic, said that advertisingought to be subjected to ethical standards, and that discrimination opposesthe spirit of professional code. 459 President of the Independent Journalists’Association of Serbia (NUNS), Nadezda Gace, assessed that the ad clearlyfalls within the definition of hate-speech, and as such should be punishednot only by professional code, but also by the Law on Public Information. 460Associate of the Minister of Trade, Srdjan Sreckovic, expressed bitterresentment, and threatened the GLAS with a punishment stipulated bythe Law on Advertising. 461 GLAS then informed the public that both theofficials of the Information Intelligence Agency (BIA) and the police hadcome to the GLAS editorial offices and inquired about the person who hadsubmitted and paid for the ad. 462 This was the last piece of information thepublic has heard about this case. Neither the journalists’ associations, northe responsible ministry, nor the judiciary have undertaken the necessarymeasures to punish this example of hate-speech.Hate-speech is prohibited by the Law on Public Information and otherregulations, both domestic and international. 463 Hate-speech prohibition isregulated by Article 317 of the Criminal Code, which bans the spreading457 Ibid458 Charges for determining hate speech submitted to the First Municipal Court in Belgrade on April 7 th , 2006can be found in Initiative’s documentations459 Condemnation of an Ad against the Croatian Company, B92, March 17 th , 2006, see: B92’s web site: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=03&dd=17&nav_category=12&nav_id=191877, visited onNovember 25 th , 2006460 Ibid461 Srećković: the Call for Boycotting of Croatian Goods is Scandalous, GLAS JAVNOSTI, March 18 th , 2006462 Ibid463 Some of the international mechanisms worth mentioning are: the International Convention on Eliminatingall Forms of Racial Discrimination, SFRY Official Gazetta, No. 6/67, and the Recommendation of the Councilof Europe’s Committee of Ministers, No R (97) 20, adopted on October 30 th , 1997 at the 607 th meeting ofministers’ deputies97

Implementation of Transitional Laws in Serbia 2006and incitement of religious, racial and national hatred and intolerance. 464A sentence ranging from 6 months to up to 5 years in prison has beendetermined as the punishment for the incitement of hatred and intolerance. 465The state attorney is due to initiate legal proceedings for the commission ofthis act. However, as in so many previous cases, the attorney’s office failedto act accordingly.On April 13 th 2006, daily KURIR, in its Sport section, published an articleheadlined “Even the Shiptars Mock Us”. 466 The text, signed by initials D.P.,focuses on the slogan in English language, which the football fans postedin the Prishtina football stadium: “Serbia Like Nokia – Getting Smaller Dayby Day”. 467 The KURIR journalist notes that this is a joke already circlingaround Serbia, and adds: “Finally, after several months, the joke reached theShiptars, which only proved that they would have progressed more swiftlyhad they still considered Belgrade their tutor”. 468 The journalist then goeson to “explain” that at first only a small number of fans “got the message”,understood the joke, and it wasn’t until 10 minutes later, that the stadiumfinally responded – 10 minutes was needed “for the joke to reach the mindof the last Shiptar in a traditional small white hat to comprehend the linkbetween technological evolution of this Finnish product and the Serbianterritorial problem”. 469 The text closes with: “The literate and illiterate, bothseem to have only now become acquainted with the use of soap, while untiljust recently they used to stick their teeth in unpeeled lemon, whereas todaythey’ve been given the chance to mock the incapability of Serbs. That’sprecisely what we’ve deserved.” 470In this article the whole nation has been labeled as illiterate, uncultured,uneducated, with clear allusion to a “lesser race”. Such qualifications arestrictly forbidden by the law. Apart from hate-speech, these formulationscontain unabashed racism, which easily transforms itself into open violenceagainst the members of the “denounced” national community. The Initiativepressed charges on May 12, 2006 to the First Municipal Court in Belgrade toestablish whether there has been hate speech 471 . The charges require from464 Criminal Code of the Republic of Serbia, Official Gazetta of RS, Number 85/05, Article 317, Paragraph 1465 Ibid466 D.P: Even the Shiptars Mock Us, KURIR, April 13, 2006467 Ibid468 Ibid469 Ibid470 Ibid471 The charges for establishing “hate speech” in daily KURIR were submitted to the First Municipal Court inBelgrade on May 12 th , 2006 and are in the Initiative’s documentation.98

Implementation of Transitional Laws in Serbia 2006the First Municipal Court in Belgrade to pass a court ruling establishingthat the mentioned text is hate speech, to remove the disputed text fromthe internet site of this daily, to ban further publication of this or similararticles in the future, that the court ruling against KURIR is published asa whole and without commentary and that the attorney is jointly paid outexpenses for the lawsuit 472 .On October 6, Judge Vesna Lazarevic of the First Municipal Court inBelgrade threw out the charges pressed by the Initiative for hate speechagainst KURIR 473 . Judge Lazarevic explained in the rationale of the courtruling that citations from the article are not sufficient for inciting hatred,although they are “questionable”, 474 according to her. The judge pointedout in her verdict that the use of the word “Shiptar” is not offensive, noris offensive an assumption that one whole people can speak English 475 .According to her, offenses against Albanians are not cases of hate speechas “hate is a strong feeling of hostility that can cause extremely negativereactions …” 476 .The judge characterized the words saying that Albanians “…are in positionto mock Serbian incapability. That’s what we deserve” as “an expression ofdeep worry because of difficult political situation, which is the idea of thetext. 477 ” The judiciary’s reactions to hate speech in the media are illustratedby the following citations from the court ruling:“The disputed article needs to be seen in connection with current politicalevents in Kosovo-Metohija, as it was this background that led to a text ofsuch content and consequently a harsh reaction of the press, and which isstill shown in the uncertain destiny of the Serbian southern province, thereporting to the public for years on ghettoization and difficult conditions inwhich the Serbian people in Kosovo-Metohija live, with constant reportingof the media on violence, even with lethal consequences exercised againstfew Serbs who continued to live in Kosovo. Also, historical importance ofKosovo in the collective conscience of Serbian society must not be neglectedeither as it is related to the memory of numerous and large victims who fellfor this part of Serbia. 478 ”472 Ibid473 The court ruling following the charges of the Initiative against daily KURIR was passed on October 6 th , 2006and is in the Initiative’s documentation474 Ibid475 Ibid476 Ibid477 Ibid478 Ibid99

Implementation of Transitional Laws in Serbia 2006This is not the first time the daily KURIR has used hate-speech, especially inits Sport section. After a volleyball match between “Zagreb” and “Partizan”in March 2005, KURIR published an article headlined “Hate”, 479 which,among other things, says: “In the aftermath of everything that happenedin Zagreb, there emerges, again, a question – is the war between Serbs andCroats really over? Does it make any sense at all to have sport matches withCroatian teams and its representation? What else there needs to happen forus to finally understand that overwhelming majority of Croats pathologicallyhates everything that’s Serbian?” 480 The State Attorney never reacted to thiscase, nor did he respond to other similar examples of hate-speech, althoughhe had been warned about them by YIHR, among other organizations. 481On September 25, 2006 daily Glas published a poster with three photographsof Ratko Mladic, a Hague suspect. One of the photographs presents Mladicin uniform, while the other two feature a man holding a big poster ofMladic with Serbian Army officers passing by it 482 . The largest photographon the poster was placed so that it gives impression that a young officeris saluting while passing by the large poster of Mladic 483 . Radio-TelevisionB92 reported that coordinators of the Action Plan for the arrest of RatkoMladic, Rasim Ljajic and Vladimir Vukcevic, requested from the SerbianProsecution to start investigation against responsible persons in dailyGLAS for conducting a criminal act “of inciting resistance or disobedienceto legal decisions or measures of state bodies” 484 . The Serbian Ministry ofDefense stated after this incident that in the course of the preparationsfor a ceremonial parade of Military Academy students, staff sergeant Ž. S.,“on his own will” saluted the photograph of Hague suspect Ratko Mladic,and that he was immediately removed from the military police and thatdisciplinary procedure was launched against him immediately afterwards 485 .The editorial board of GLAS also issued a press release saying that “bypublishing photographs that caused tumultuous reactions in the domesticand international public, the editorial board of GLAS did not intend todisturb the public, and particularly not to back anyone’s crime. It is strangethat no one who reacted to the publication of the photographs has thought479 D.V: Hate, KURIR, March 15 th , 2005480 Ibid481 Implementation of Transitional Laws in Serbia, Youth Initiative for Human Rights, Belgrade, 2005, page 75482 See webpage: http://www.nuns.org.yu/vesti/view.jsp?articleId=6752, visited on November 26 th , 2006483 Ibid484 Mladic’s poster in newspapers, B92, September 25 th , 2006, see webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=09&dd=25&nav_category=11&nav_id=213018&fs=1, visited on November 25 th ,2006485 Ibid100

Implementation of Transitional Laws in Serbia 2006that we might have helped the authorities to identify the man who is hidingmore easily... 486 ”.Daily KURIR published an article on September 11 titled “Ustasha’sAccomplice” accusing the family of Serbian Deputy Prime Minister IvanaDulic-Markovic of “hiding the well-known ustasha criminal, Ivan Jovanovica.k.a. Crni, for more than two years” 487 . The end of the article adds: “Thatthe Dulics, and in this particular case Deputy Prime Minister Ivana, are‘fond of ustashas’ as witnessed by her meeting in Subotica with AntoDjapic, leader of the extremist pro-ustasha Croatian Party of the Right.Djapic, the commander of HOS, a paramilitary formation known by blackuniforms, ustasha signs and numerous crimes against Serbs, stressed thathe spent ‘a pleasant time’ with Serbian Deputy Prime Minister Ivana Dulic-Markovic, but also with Speaker of the Serbian National Assembly PredragMarkovic!” 488 . The Serbian Ministry of Culture asked the public attorneyto react following the article in Kurir and to require a ban on spreadinginformation inciting national hatred 489 . The public attorney rejected to starta procedure because “a procedure can be started only if there is a directthreat, that is, if someone is killed because of a call for lynching publishedin a newspaper.” 490 .486 See webpage: http://www.nuns.org.yu/vesti/view.jsp?articleId=6751, visited on November 25 th , 2006487 R.K. Ustasha’s Accomplice , KURIR, September 11, 2006, available at webpage: http://www.kurir-info.co.yu/Arhiva/2006/septembar/11/V-04-11092006.shtml , visited on November 25 th , 2006488 Ibid489 See webpage. http://www.nuns.org.yu/vesti/view.jsp?articleId=6768, visited on November 25 th , 2006490 See webpage: http://www.nuns.org.yu/vesti/view.jsp?articleId=6775, visited on November 25 th , 2006101

Implementation of Transitional Laws in Serbia 2006Conclusions on the Implementation of the Law onPublic InformationOn the basis of the research of the implementation of the Law on PublicInformation, the YIHR arrived at the following conclusions:• Hate-speech is still present in the Serbian media.• State Attorney’s office does not act on the law and does not initiatelegal proceedings against the perpetrators of the criminal act ofinciting racial, religious and national hatred.• Journalists’ associations in Serbia have not adequately responded tohate-speech in print media. There is not a single litigation againstjournalists and/or editors-n-chief responsible for hate-speech; eachhate-speech case ends in verbal condemnation.• YIHR filed lawsuits against the responsible persons in GLASJAVNOSTI and KURIR for their having incited hate-speech againstone national community.• A Judge of the First Municipal court in Belgrade has rejected thesuit against KURIR with the excuse that there is not hate speech inthat case.Recommendations for the Implementation of theLaw on Public InformationHaving monitored the implementation of the Law on Public Information,the YIHR came up with the following recommendations:• Authorities in Serbia are due to do everything in their power in orderto prevent the spreading of hate-speech in Serbian print media.• The Serbian Ministry of Culture, a body responsible for the areaof public information, must assume a more active role in order toprevent the spreading of hate-speech in the media.• State Attorney is due to prosecute the perpetrators responsible forthe commission of a criminal act of inciting religious, racial andnational hatred. The State Attorney's failure to act in the line of hisduty is a violation of the law and as such must be punished.• Journalists’ associations in Serbia should urgently initiate the102

Implementation of Transitional Laws in Serbia 2006proceedings before the court of honor to condemn all journalistswho use hate-speech.• Non-governmental organizations should more often reach for thelegal mechanisms provided by the Law on Public Information, andinitiate legal proceedings against all those who use hate-speech,in order to include the judicial bodies in the struggle against thisphenomenon and create adequate court practice which will prohibithate-speech and ban it from the media.• The Courts in Serbia are obliged to judge according to law andinternational documents. That excludes the possibility that theirruling could be based on their political and ideological attitudes.Law on BroadcastingThe Law on Broadcasting was adopted in July 2002. 491 The law regulatesthe broadcasting area, i.e. the conditions for program broadcasting,the establishment of the Broadcasting Agency, the founding of publicbroadcasting services and other related issues. Among the principlesof regulating the broadcasting area, the law prohibits discriminationand stipulates full respect of civic rights and freedoms. 492 According tothe law, the Agency’s Council conducts a tender for the allocation offrequencies to electronic media, 493 controls the work of these media, 494and is responsible to punish and withdraw the licenses. 495Youth Initiative for Human Rights monitored the implementation of theLaw on broadcasting, which is perceived as extremely important, particularlynow, when the tender for the allocation of broadcasting frequencies andthe appointment of the members of the Stirring Committee of the Radio-Television of Serbia (RTS) are in full sway. Furthermore, at the end of 2005the first Agency Council’s formal decision was brought, induced by hatespeechcomplaint in electronic media.491 Law on Broadcasting, see above under 2492 Ibid, Article 3493 Ibid, Article 11494 Ibid, Article 13495 Ibid, Article 17103

Implementation of Transitional Laws in Serbia 2006Allocation of Broadcasting FrequenciesIn keeping with Article 49 of this law, the Broadcasting Agency announcedtender in March 2006 for the allocation of TV and radio broadcastingfrequencies. 496 The tender concerned national frequencies for the territoryof Vojvodina and Belgrade. 497 Implementation requirements were publicizedand posted on the Agency’s web site. 498 Sixteen television stations applied toobtain national frequency. 499 On April 3, 2006, within the proscribed legaldeadline, 500 the Agency announced the acceptance of 12 implementations. 501Disqualified were: the RTL, on grounds of questionable ownershipparticipation (more than 49% of foreign investment); the RTV Politika,for numerous reasons; the IBC – 100% state ownership; and the TV A forcontinuous failure to make deposits. 502Of all rejected radio and television stations, the RTL draws most attention,for it comprises more than 30 television stations throughout Europe. 503The RTL’s implementation was turned down on grounds of questionableownership structure – the Agency established that more than 49%of investment in this media house is foreign, the rejection having beenstipulated by Article 41, Section 3 of the Law on broadcasting. 504 The saidsection orders that “a foreign party may take part in the founding capitalof the license-holder for program broadcasting in the amount of up to49% of total capital, unless international agreements countersigned by theFederal Republic of Yugoslavia stipulate otherwise.” 505Formulated as such, this legal provision caused numerous disagreementsand doubts among both the experts 506 and the Agency members. 507 Thus,detailed interpretation was requested from the Ministry of Culture, asthe body responsible for radio-diffusion area. 508 In the formal document,496 Public tender for the allocation of licenses for television and radio broadcasting, see the Agency’s web site: http://www.rra.org.yu/srpski/RRA-Oglas.pdf, visited on November 23 rd , 2006497 Ibid498 Ibid499 The List of Applicants to the Public Tender for the Allocation of Licenses for Television and Radion Broadcasting, see theAgency’s web site: http://www.rra.org.yu/srpski/listaprijava.pdf, visited on November 23 rd , 2006500 Law on Broadcasting, Article 53, Paragraph 1, Item 2, see above under 2501 See above under 499502 Ibid503 Tamara Skrozza, How did Vuk Hamović become a foreigner, VREME, April 6 th , 2006504 See above under 504505 Law on broadcasting, Article 41, Paragraph 3, see above under 2506 RTL has been eliminated illegally, BLIC, April 7 th , 2006507 See above under 499508 Ibid104

Implementation of Transitional Laws in Serbia 2006dated February 23 rd , 2006, 509 the Minister of Culture, Dragan Kojadinovic,submitted the formal exposition ordering the Broadcasting Agency toconsider as foreign both the foreign capital, but also the foreign origincapital by a domestic party. The Minister’s exposition stirred contradictoryresponses. Consultant for Foreign Investment, Milan Kovacevic, statedthat all enterprises founded in the country should be considered domestic:hence, the RTL had every legal right to apply for frequency license. 510Representatives of RTL expressed surprise at the Agency’s decision. Theirchief representative expressed hope that the Agency’s decision would becancelled and RTL reinstalled into the procedure for the allocation ofbroadcasting frequencies. 511 Additional doubts stemmed from the fact thatthe exposition had been given by the Ministry of Culture, which is notauthorized to determine the grounds for foreign and domestic investmentparty. Another dissatisfaction at the manner in which the matter had beenhandled came from the erroneous fact that the Ministry’s explanation,submitted on February 23 rd , concluded that the expert interpretation hadbeen requested on March 30 th 2006. 512RTL representatives were invited to meet with the Agency on April 7 th ,2006, in order to clear the misunderstanding. 513 At this meeting, the Agency’sCouncil modified its previous decision to some extent, claiming that thedecision should not be considered formal and that the RTL remain in thefrequencies allocation competition. 514 The Agency Council President, NenadCekic, said the Council would consider the objection concerning the natureof RTL’s capital ownership in the process of decision-making. 515 AnotherMinistry of Culture’s exposition was soon to be issued, accompanied byprevious consultations with the Ministry for Economic Affairs with ForeignCountries, 516 which concluded that the overall capital of the RTL consistsof 49% of foreign capital, which makes this television eligible to competefor broadcasting frequency. 517509 Exposition issued by the Ministry of Culture on February 23, 2006, see the Agency’s web site: http://www.rra.org.yu/srpski/ministar-tumacenje.pdf, visited on November 23 rd , 2006510 See above under 499511 RTL won’t give up its broadcasting frequency, BLIC, April 6 th , 2006512 See above under 499513 Meeting between Agency and RTL, B92, April 7 th , 2006, see B92’s web site: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=04&dd=07&nav_category=12&nav_id=194045,visited on November 23 rd , 2006514 RTL left without the broadcasting frequency, DANAS, April 8 th , 2006515 Ibid516 Opinion of the Ministry of Culture, November 25th, 2006. see the Agency’s web site: http://www.rra.org.yu/srpski/minkult2.pdf, visited on November 25 th , 2006517 RTL can take part, B92, April 14 th , 2006, see the B92’s web site: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=04&dd=14&nav_category=12&nav_id=194839, visited on November 25 th , 2006105

Implementation of Transitional Laws in Serbia 2006Television and radio broadcasting licenses for the territory of Vojvodinaand Belgrade were allocated on April 19 th , 2006. 518 Television frequencylicenses were allocated to: TV Pink, TV B92, TV Focus, TV Avala and TVKosava/Hepi (national coverage), and TV Super from Subotica (Vojvodinacoverage). 519 Radio frequency licenses were allocated to: Radio B92, RadioS, Radio Focus, Radio Roadstar and Radio Index (national coverage); nota single radio station had applied for the Vojvodina coverage, which iswhy the competition would be re-ran. 520 Appeals were announced by TVBK Telecom, TV 5 from Nis and the RTL. 521 After the decision had beenannounced, TV BK launched a serious public campaign, through which itfiercely criticized the Agency’s decision. 522Permits for Belgrade were awarded on July 4 th , 2006. 523 The permits werereceived by TV stations: Art, Enter, SOS, Metropolis, Plus and Studio B, aswell as 14 radio stations. 524518 Decision on the allocation of radio and television broadcasting frequencies, see on the Agency’s web site: http://www.rra.org.yu/srpski/odluka-dozvole.pdf, visited on November 26 th , 2006519 Ibid520 Ibid521 Allocation of frequencies has been decided, B92, April 21 st , 2006, see the B92’s web site: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=04&dd=21&nav_category=12&nav_id=195534, visited on November 26 th ,2006522 A fragment of this campaign can be seen on the BK Telecom’s website: http://www.bktv.com/forum/,visited on November 27 th , 2006523 The decision to award permits for the Belgrade region is available on the website: http://www.rra.org.yu/srpski/odluka-bg.htm, visited on November 26 th , 2006524 Ibid106

Implementation of Transitional Laws in Serbia 2006Closing down MediaIn the evening of April the Agency issued a decision on suspension of TVBK Telecom, after a closed session with the station’s editor-in-chief, MilomirMaric. 525 The Agency then explained its decision as having been made afterTV BK Telecom’s repeatedly illicit behavior that followed the warning in2004. 526 TV BK was warned for having fostered rather biased reporting infavor of the presidential candidate Bogoljub Karic. 527 The Agency’s decisionwas enforced in the night between April 25 th and 26 th , when the Agency’sofficial, with the assistance of the police, interrupted the broadcasting ofTV BK’s program from the transmitter and tried to enter the televisionpremises. 528 The attempt was prevented by the TV BK’s employees andcitizens who gathered in the meantime. The police withdrew after severalhours. 529 The following day, April 26 th , all cable distributors were ordered tostop broadcasting TV BK’s program, which they obeyed; 530 all transmittersbelonging or used by this television station were turned off, 531 as the AgencyCouncil’s President, Nenad Cekic, warned that those who eventually acceptto broadcast the TV BK’s program would be punished. 532 BK televisionwas thus shut down, although it refused the Agency’s formal decision. 533All journalists’ and broadcasters’ associations have condemned this wayof banning and shutting down of a television station, and all seriouslycondemned the police’s late-night intervention and its attempted forcibleentry on the TV BK’s premises. 534 The Government of the Republic ofSerbia did not issue any press release, nor did it publicly react to the tenderprocedure,allocation of frequencies or the “BK case”. 535 Instead, recordedwere only isolated incidents of some of the ministers voicing their supportto the Agency’s work 536 or fiercely condemning its decisions. 537525 Police intervenes in the BK, program interrupted, B92, April 25 th , 2006, see on B92 website: http://www.b92.net/info/vesti/index.php?nav_category=12&dd=25&mm=4&yyyy=2006, visited on November 27 th , 2006526 A Decision on the Suspension of BK Telecom’s License, see the Agency’s web site: http://www.rra.org.yu/srpski/odlukaBK.pdf, visited on November 27 th , 2006527 Ibid528 See above under 525529 Ibid530 Most of Serbia left without BK’s signal, B92, April 26 th , 2006, see B92’s website: http://www.b92.net/info/vesti/index.php?nav_category=12&dd=26&mm=4&yyyy=2006, visited on November 27 th , 2006531 Ibid532 Ibid533 Ibid534 TV BK: re-examination and petition, B92, April 27 th , 2006, see B92’s website: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=04&dd=27&nav_category=11&nav_id=196029,visited on November 27 th , 2006535 All Government’s press releases can be found at the Government’s website: http://www.srbija.sr.gov.yu/vesti/sekcija.php?id=250, visited on November 27 th , 2006536 Minister Mladjan Dinkic, see above under 534537 Minister Dragan Kojadinovic, see above under 534107

Implementation of Transitional Laws in Serbia 2006BK television is the only station that has been closed down in this manner.The Serbian Broadcasting Agency (RRA) ordered that all electronic mediathat were not granted broadcasting license to stop broadcasting theirprograms. However, a decision was made that no media will be closeddown by the end of the year. Many members of the media connected thisdecision with the referendum campaign in Serbia. The last warning beforethe forced closedown was sent to radio and TV stations on November 1 st ,2006.New Changes to the Law on BroadcastingThe Serbian National Assembly’s committee for culture and informationsent the draft law on changes and amendments to the Law on Broadcastingto parliament for urgent adoption 538 . This was done without the knowledgeof the ministry and while the ministry was working on amendments to thesame law 539 . The main changes refer to granting jurisdictions to the RRACouncil to forcefully close down electronic media that has not been granteda broadcasting license 540 , then the deadline for broadcasters to start workingwas prolonged from 60 to 90 days 541 and the RRA Council was given the rightto grant licenses to cable and satellite distributors for broadcasting programwithout public contest 542 . Also, one of the provisions stipulates that insteadof the Serbian National Assembly, the consent to RRA’s financial plan isgiven by the government 543 .Associations of journalists, NGOs, but also representatives of the OSCEMission and the Council of Europe in Belgrade immediately reacted to thedraft law. In its press release, the OSCE Mission called for a public debateand pointed to numerous omissions in the work of the RRA Council 544 .Also, at the request of the OSCE Mission to Belgrade, an independent legalanalysis of RRA’s decisions was made 545 . The analysis was done by Karol538 Amendments to the Law on Broadcasting, B92, July 17 th , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=07&dd=17&nav_category=12&nav_id=204992&fs=1, visited on November 25 th , 2006539 A new chance for broadcasting, B92, August 2 nd , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=08&dd=02&nav_id=206598&nav_category=12, visited on November 25 th , 2006540 The Law on Changes and Amendments to the Law on Broadcasting, adopted on September 29 th , 2006, OfficialGazette of RS, number 85/06, Articles 11 and 12541 Ibid, Article 10542 Ibid, Article 7543 Ibid, Article 6544 Press release of the OSCE Mission in Belgrade, June 18 th , 2006, webpage: http://www.osce.org/serbia/item_1_19909.html, visited on November 25 th , 2006545 Legal opinion available at: http://www.osce.org/documents/srb/2006/05/20006_en.pdf, visited on November25 th , 2006108

Implementation of Transitional Laws in Serbia 2006Jakubovic, an expert for media regulatory bodies and director of the centerfor strategy and analysis of the Polish National Broadcasting Council 546 .Jakubovic stressed in his report that the process of decision-making was fullof fundamental weaknesses and that there is serious concern whether theRRA Council was guided by the principle of public interest in the processof decision-making when granting frequencies 547 .The Council of Europe pointed out that media standards have beenthreatened and that it is particularly worrisome that there was no publicdebate on this law 548 . The European Commission (EC) sent a letter tothe parliament speaker to warn that no urgent procedure without a publicdebate is allowed for this kind of matter and that enlargement of discretionjurisdictions of the RRA Council through amendments to the Law isdangerous 549 .The Association of Independent Electronic Media expressed bitterness notonly that the repeated changes to the broadcasting law were made withouta public debate, but also because of stronger government control over theRRA Council 550 . The Serbian Independent Association of Journalists, whichwas also opposed to this law, stated in a press release that with the adoptionof this law “the opinions of the President of the Republic, domestic expertpublic, as well as the top OSCE and EC officials in Serbia were arrogantlyignored.” 551The criticisms to the amendments to the law refer primarily to the factthat the agency was on the one hand placed under government control asthe government is to give consent to RRA’s financial plan instead of theAssembly. This solution directly causes that the RRA Council is dependanton the government, which may pressure the agency at any time by notgiving consent to its financial plan. On the other hand, the RRA was giveneven wider discretion jurisdictions on issues of regulation over the media,issuance of licenses and closing-down of stations that work without alicense.546 Ibid547 Ibid548 EC worried about broadcasting, B92, August 28 th , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=08&dd=28&nav_category=11&nav_id=209654&fs=1#, visited on November 25 th , 2006549 Ibid550 ANEM’s statement dated September 29 th , 2006, available at: http://www.anem.org.yu/anemnews/list.jsp?category=stat&language=sr&datey=2006&datem=09&dated=29&id=7400#id7400, visited on November 25 th ,2006551 What will happen with broadcasting, B92, September 30 th , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=09&dd=30&nav_category=11&nav_id=213706&fs=1#,visited on November 25 th ,2006109

Implementation of Transitional Laws in Serbia 2006The RRA Council reacted to such numerous accusations with counteraccusations,both against domestic critics 552 , as well as against internationalorganizations 553 . In response to the criticism of the German Ambassadorto Belgrade Andreas Zobel, the RRA Council said the following:“It is certain that such television in Germany would not get a broadcastinglicense, but Mr. Zobel seems to be led by the rule that what you are notallowed to do at your home, you can do at someone else’s” 554 .Apart from that, in its press release the RRA Council again repeated itsclaim that RTL has foreign capital in the amount higher than allowed bythe law. It is clear from this press statement that the RRA Council fullyignored the binding interpretation from the Ministry of Culture along withconsultations with the Ministry of International Economic Relations, whichsaid that the majority capital share of RTL is domestic 555 . It is not clear thenwhy it was accepted that RTL participates in the competition as an equalcandidate in the first place.There were several electronic media that accused the OSCE Mission toBelgrade of working in favor of German RTL and advocating repetitionof the contest because RTL was not given the broadcasting license 556 . Astatement was sent from the offices of Radio Index, station where RRACouncil members Nenad Cekic and Aleksandar Vasic used to work, andwhich was granted a national broadcasting license 557 .Serbian President Boris Tadic did not sign the Law on changes andamendments to the law on broadcasting 558 after it was adopted by theNational Assembly on July 19, 2006 559 . In his letter, Tadic severely criticizedthe solutions offered in the Law which, according to him, limit the freedomof the media and introduce control of executive authorities over RRA’swork 560 . Inter alia, Tadic said in his letter:552 RRA Council: NUNS threatens, B92, July 31 st , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=07&dd=31&nav_category=12&nav_id=206407&fs=1#, visited on November 25 th , 2006553 OSCE tied with RTL, B92, July 29 th , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=07&dd=29&nav_category=12&nav_id=206209&fs=1#, visited on November 25 th , 2006554 RRA seeks protection from Zobel’s statement, B92, July 20 th , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=07&dd=20&nav_category=12&nav_id=205368&fs=1#,visited on November 25 th ,2006555 See above under 516556 OSCE tied with RTL, see above under 553557 Ibid558 A new chance for broadcasting, see above under 539559 Law on Broadcasting changed, B92, July 19 th , 2006, webpage: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=07&dd=19&nav_category=11&nav_id=205169&fs=1#, visited on November 25 th , 2006560 Why haven’t I signed the Law on Broadcasting, BLIC, July 28 th , 2006, available at: http://www.b92.net/info/vesti/110

Implementation of Transitional Laws in Serbia 2006Apart from the period of notorious information law from the Milosevic-Radical-YugoslavLeft era, never has the media been closed down in such a way. As President of Serbia, Icannot allow our country to go back to that period and that democratic heritage that wefought for on October 5, 2000 is ruined.It is clear that the state, that is, all citizens will have to pay compensation for the damagecaused by illegal decisions of the Council. By making this decision, I protect citizens, butalso the state as I am the president, from the immeasurable damage that would be inflictedby pressing down on the media, pluralism of opinion, democracy.The passing of this law despite essential remarks of the Organization for EuropeanSecurity and Cooperation (OSCE), the Serbian Ministry of Culture, professionalassociations, would seriously inflict damage to the credibility of our country 561 .In spite of all, the Serbian Assembly again adopted the same Law, so Tadicwas forced to sign it in September. The current convocation of the SerbianNational Assembly changed the Law on broadcasting as many as threetimes. Every change was followed by protests and serious remarks fromjournalists’ and media associations, NGOs and international communityrepresentatives.Hate-speech in Electronic MediaOne of the principles protected by the law within the radio-diffusion area isthe ban on hate-speech in electronic media. 562 The Agency is due to ensurethat the programs are free from information containing the elements that stiror incite discrimination, hatred, intolerance or violence against individualsor groups on grounds of their gender, religious, racial, national, politicalor sexual orientation and affiliation. 563 Disciplinary measures against hatespeechare to be pronounced by the Agency, which uses official warnings,suspension or permanent withdrawal of license for this purpose. 564 Publicservices of Serbia and Vojvodina are exempt from license-withdrawalmeasure. 565 Furthermore, if a broadcaster’s behavior contains elements thatcan be qualified as criminal act, the Agency may initiate legal proceedingspregled_stampe.php?yyyy=2006&mm=07&dd=28&nav_id=206062&fs=1, visited on November 25 th , 2006561 Ibid562 Law on broadcasting, Article 21563 Ibid, Article 21, Paragraph 1564 Ibid, Article 17, Paragraph 1565 Ibid, Article 17, Paragraph 2111

Implementation of Transitional Laws in Serbia 2006before authorized courts. 566 Since incitement of racial, religious and nationalhatred has been prohibited by the Criminal Code of Serbia, 567 this provisioncould be applied in practice as a powerful means against hate-speech.The first legal hate-speech proceeding the Agency has initiated was theone based on the official complaint previously filed by Belgrade basedorganizations for the protection of lesbian rights – Labris and Gayten-LGBT, the Center for the promotion of the rights of sexual minorities. 568On November 16 th , 2005 these organizations filed official complaint to theAgency, against hate-speech incidents in the TV Pink program “Pyramid”,broadcast one month earlier, on October 16 th , 2005. 569 In this program,the lawyer Toma Fila said the same-sex couples should be treated the wayPrince Milos had treated them when he “placed them in a barrel full ofsomething . . . and said this was their place . . . “ 570 The program’s host,Branka Nevistic then asked her guest: “Mr. Fila, when was it exactly that youthought to yourself – Why, these fags have really gone too far this time?” 571The Agency then submitted an official response to the complainants, inwhich it informed them that the Agency had established the existence ofhate-speech in Toma Fila’s and Branka Nevistic’s comments. 572 This was thefirst hate-speech case against electronic media which was legally establishedby a domestic state institution. Apart from Fila’s offensive comments andapart from the fact that the program’s host did not distance herself fromher guest’s comments, the Agency labeled as hate-speech the use of word“fag” when used as a term to designate male gay population. 573 The decisionis a precedent and may serve as the basis for all future Agency’s decisionsin similar cases, but can also help create clear criteria in the future for allbroadcasters to refrain from the use of hate-speech in their programs.However, despite the established hate-speech case, the Agency did notapply any disciplinary measure against the TV Pink, because according tothe law, this television is not formal broadcaster – their license had not beenissued by the Agency. 574566 Ibid, Article 17, Paragraph 3567 Criminal Code of the Republic of Serbia, Official Gazetta of RS, number 85/05, Article 317568 Complaint submitted to the Agency Council against hate-speech, November 16 th , 2005, see Labris’ website:http://www.labris.org.yu/index.php?option=com_content&task=view&id=465&Itemid=43, visited on November25 th , 2006569 Ibid570 Ibid571 Ibid572 Council’s reply to the hate-speech complaint, press release by Labris, January 18, 2006573 Ibid574 Ibid; It should be noted, however, that the Council did punish the TV BK despite the fact that it had notissued its broadcasting license either112

Implementation of Transitional Laws in Serbia 2006Organization for lesbian human rights – Labris, filed another complaintagainst the same broadcaster on March 1 st , 2006. 575 Despite the fact thathate-speech against gay persons and same-sex couples had already beenestablished as having occurred on this television, the same broadcaster, in thesame program, on February 26 th , 2006 again stirred discrimination againstgay persons. 576 This time the program’s guest was Uros Suvakovic whoqualified homosexuality as “social pathology” and “something essentiallydecadent”. 577 The Agency’s decision about Labris’ complaint is still pending.However, repeated discriminatory behavior of the TV Pink shows that themedia are not yet ready to accept the authority of the Broadcasting Agencyand to respect its decisions. The fact that TV Pink refuses to show anyrespect for this institution and the Law on broadcasting has been alreadydetermined by the Agency’s previous decision, 578 which claims TV Pink tohave breached Article 14 of the Law on broadcasting, “for it failed to declareitself about the complaint within the legally determined deadline.” 579575 Complaint to the Agency Council against hate-speech, March 1 st , 2006, Labris’ website: http://www.labris.org.yu/index.php?option=com_content&task=view&id=603&Itemid=43, visited on November 25 th , 2006576 Ibid577 Ibid578 See above under 572579 Ibid113

Implementation of Transitional Laws in Serbia 2006Conclusions on the Implementation of theLaw on BroadcastingOn the basis of the monitoring of the implementation of the Law onbroadcasting, the YIHR arrived at the following conclusions:• The Council of the Broadcasting Agency announced the tenderwithin legal deadline for the allocation of radio and televisionfrequencies for the territory of Serbia, Vojvodina and Belgrade. Thecompetition for regional networks was launched only in November2006, which was explained by technical problems.• Elimination of RTL in grounds of its alleged failure to meet thelegal conditions has stirred contradictory reactions by experts andprofessionals; the initial elimination-decision was soon amended,allowing the RTL to remain as candidate in the competition.• The Agency’s Council allocated the licenses for the broadcasting onthe territory of Serbia and Vojvodina. The final Agency’s decisionhas stirred numerous fierce comments and objections.• After the public campaign against the Agency’s decision to withdrawthe TV BK’s license, the Agency’s Council ordered the suspensionof TV BK’s program. The order was executed in late-night hours,with the assistance of the police, which caused numerous protestsand comments.• The Serbian Assembly passed new amendments to the Law onBroadcasting through an urgent adoption and without a publicdebate. Domestic and international media experts agree thatamendments to the Law made a step backward in regulating themedia sphere. The main remarks refer to the greater control of thegovernment over the RRA and expanding discretion jurisdictionsof the RRA when the closedown of the media is in question.• The Serbian President rejected to sign the Law, so the Assemblywas forced to adopt it again. It was finally adopted in September2006 despite numerous remarks by the OSCE, Council of Europe,the EC, NUNS, ANEM and respected experts for media law andthe media.• The Agency’s Council established the existence of hate-speech inthe TV Pink program “Pyramid”. This was the first case in whichthis state institution has established the existence of hate-speech inelectronic media.114

Implementation of Transitional Laws in Serbia 2006• The Agency’s Council refused to punish TV Pink, because,officially, this television does not qualify as broadcaster, since theirbroadcasting license had not been issued by the Agency. However,when it suspended the TV BK’s program, the Council decided thatit did have the right to punish this broadcaster despite the fact thatit had not issued its broadcasting license.• Even after the existence of hate-speech had been established inthe TV Pink program “Pyramid”, the practice of discriminationagainst the citizens of “other” sexual orientation continues. Anothercomplaint has been submitted to the Agency’s Council against TVPink.Recommendations for the Implementation of theLaw on BroadcastingOn the basis of the research of the implementation of the Law onBroadcasting, the YIHR establishes the following recommendations:• Allocation of frequencies, especially the national ones, must becarried out under clear and transparent conditions. It is intolerablethat legal provisions and regulations be interpreted in the midst ofthe competition, and it is just as intolerable to change the rules andconditions under which the media houses are eligible to apply forfrequencies.• Any suspicion regarding the Agency Council's impartiality andobjectivity must be eradicated. Allocation of frequencies for theterritory of Serbia and Vojvodina was carried out hastily and withoutclear explanations, which created among the public an impressionof injustice and partiality.• The Agency Council must be careful and moderate in executingits decisions and orders. The intervention of the police in latenighthours must not be the way in which Agency’s decisions areeffectuated.• The latest changes to the Law happened hastily and without apublic debate. Despite criticisms of very relevant organizations andrespected individuals, the Serbian Assembly still adopted the Law.• Arrogant behavior practiced by RRA Council members, accusingdomestic and international organizations and experts, must be115

Implementation of Transitional Laws in Serbia 2006condemned and sanctioned clearly. The behavior of heads of thisinstitution is a reason enough to start a debate on their work in theSerbian Assembly.• It is necessary that the Agency Council immediately start fulfillingits duty in preventing and punishing the occurrence of hate-speechin electronic media.• Double standards applied in the cases of TV Pink and TV BK areharsh mocking of the law which casts serious doubt at Council’sobjectivity.• In future decisions about possible complaints against TV Pink, thecontinuation of hate-speech, even after it had been warned against,must be considered.Law on War Crimes ProsecutionThe Law on War Crimes Prosecution 580 was adopted in the NationalAssembly of the Republic of Serbia on July 10 th , 2005. The first versionwas brought on July 1 st , 2003 581 and its amended version took effect onDecember 29 th 2004. 582 The current content of the Law dates from July18 th , 2005. 583 This Law governs education, organization, jurisdiction andpowers of state agencies and their departments with a view to detecting andprosecuting war crimes perpetrators. 584The law applies to criminal acts against humanity and international law 585and these acts are enumerated in the Chapter XVI of the Basic CriminalCode. 586 These are as follows: genocide 587 , crime against humanity 588 , warcrimes against civilians 589 , war crimes against the wounded and ill 590 and war580 Law on War Crimes Prosecution, see above under 4581 Law on War Crimes Trials, adopted on July 1 st 2003., took effect on July 9 th 2003, Official Gazette of theRepublic of Serbia 67/2003582 Amendments to the Law on War Crimes Trials, adopted on December 21 st 2004., took effect on December29 th 2004, Official Gazette of the Republic of Serbia 67/03 and 135/2004583 Amendments to the Law on War Crimes Trials, adopted on July 10 th 2005., took effect on July 18th 2005,Official Gazette of the Republic of Serbia 61/2005584 Law on War Crimes Prosecution, Article 1, see above under 4585 Ibid, Article 2, Item 2586 Basic Criminal Law, adopted in 1976, Official Gazette of SFRY 44/1976, 36/1977, 34/1984, 37/1984,74/1987, 57/1989, 03/1990, 38/1990, 45/1990 and 54/1990, Official Gazette of FRY 35/1992, 16/1993,37/1993, 24/1994 and 61/2001 and Official Gazette of the Republic of Serbia 39/2003587 Ibid, Article 370588 Ibid, Article 371589 Ibid, Article 372590 Ibid, Article 373116

Implementation of Transitional Laws in Serbia 2006crimes against prisoners of war 591 , organizing and inciting genocide andwar crimes 592 , use of the forbidden means of combat 593 , illegal productionof prohibited weapons 594 , killing and wounding enemy soldiers 595 , lootingthe dead 596 , hurting parliamentarians 597 , cruel treatment of the wounded,ill and prisoners of war 598 , unjustified delay of the prisoners of warrepatriation 599 , destruction of cultural heritage 600 , failure to preventcommitting acts of crime against humanity and other entities protectedby the international law 601 , aggressive war 602 , abuse of internationalsigns 603 , racial and other discrimination 604 , human trafficking 605 , adoptionprompted children trafficking 606 , enslaving persons and transporting themas such 607 , international terrorism 608 , taking hostages 609 and funding terroristactivities 610 . The need for amendments to the Law can already be witnessedat this point for, as from the January 1 st 2006, new Criminal Code 611 tookeffect whereby the abovementioned Basic Criminal Code ceased to exist.Criminal acts prosecuted under the Law on War Crimes Prosecution are nolonger encompassed by Chapter XVI of the Basic Criminal Code but ratherby Chapter XXXIV of the Criminal Code. The title of the section has beenchanged as well so instead of the previous “Criminal acts against humanityand international law” now it is called “Criminal acts against humanity andother entities protected by international law”.Besides this, the law governs the cases of severe breaching of the internationalhumanitarian law in the former Yugoslavia as from January 1 st , 1991, whichare regulated by the International Criminal War Crimes Tribunal for the591 Ibid, Article 374592 Ibid, Article 375593 Ibid, Article 376594 Ibid, Article 377595 Ibid, Article 378596 Ibid, Article 379597 Ibid, Article 380598 Ibid, Article 381599 Ibid, Article 382600 Ibid, Article 383601 Ibid, Article 384602 Ibid, Article 386603 Ibid, Article 385604 Ibid, Article 387605 Ibid, Article 388606 Ibid, Article 389607 Ibid, Article 390608 Ibid, Article 391609 Ibid, Article 392610 Ibid, Article 393611 Criminal Code, adopted on October 6 th 2005, took effect on January 1 st 2006, Official Gazette of the Republicof Serbia 85/2005, 88/2005 and 107/2005117

Implementation of Transitional Laws in Serbia 2006former Yugoslavia Statute 612 (in further text: The Hague Tribunal Statute 613 )This is, in effect, a copied Hague Tribunal Statute’s stipulation prescribingthe court’s jurisdiction. 614Authorities of the Republic of Serbia, as established by the law, shallprosecute the enlisted criminal acts if they were committed on the territoryof the former Socialist Federal Republic of Yugoslavia, regardless ofthe perpetrator’s or victim’s citizenship. 615 The following institutions aretherefore to be founded: Prosecutor’s Office for War Crimes (hereinafter:Prosecution) 616 , War Crimes Investigation Service (hereinafter: Service) 617 ,War Crimes Chamber 618 and Special Detention Unit 619 . The NationalAssembly elects the Prosecutor for War Crimes (hereinafter: Prosecutor),and, in turn, he/she appoints and dismisses Deputy Prosecutors. 620 Atthe request of the Prosecutor for War Crimes all government bodies andorganizations are required to cooperate and contribute to the war crimesperpetrators detection and prosecution. 621 The Service is establishedwithin the Ministry of the Interior and it is the Minister who appoints anddismisses the Head of the Service, following proposals obtained from theProsecutor of War Crimes. 622 War Crimes Chamber judges have a fouryearterm. 623 It should be underlined that the Law foresees founding ofa Special Administrative-Technical Department dealing with the tasksrelated to witness and victim protection and facilitating conditions for theimplementation of procedural provisions of this Law (hereinafter “SpecialDepartment”). 624When the presence of a witness or victim at the main hearing cannotbe ensured, their statements may be taken via video conference link andtheir questioning may be conducted through international legal aid. 625 TheProsecutor may initiate criminal proceedings based on facts from The612 Law on War Crimes Prosecution, Article 2, Item 1, Point 2613 The Hague Tribunal Statute was adopted on May 25 th 1993, amended on May 13 th 1998, can be downloadedfrom the site www.lawinitiative.com updated on April 3 rd 2006614 Ibid, Article 1615 Law on War Crimes Prosecution, Article 3, see above under 4616 Ibid, Article 4, Item 1617 Ibid, Article 8 , Item 1618 Ibid, Article 10, Item 1619 Ibid, Article 12, item 1620 Ibid, Article 5621 Ibid, Article 7622 Ibid, Article 8623 Ibid, Article 10, Item 2624 Ibid, Article 11, Item 2625 Ibid, Article 14118

Implementation of Transitional Laws in Serbia 2006Hague Tribunal indictment 626 but also based on facts and evidence gatheredby The Hague Tribunal Prosecutor. 627 Domestic law shall be applied inthose cases when The Tribunal hands them over to domestic judiciary. 628If a person, otherwise resident abroad, comes to Serbia in the capacity ofa witness, damaged party or giving an expert opinion in front of the WarCrimes Chamber, the person then cannot be apprehended or prosecuted fora criminal act committed in the past. 629 The Hague Tribunal representativesare allowed to be present at all phases of the criminal proceedings beforethe domestic judiciary and may also be informed on its course. 630 An audiorecording shall be made of all the proceedings at the main hearing andconsequently transcribed within 72 hours of its completion. 631626 Ibid, Article 14a, Item 1627 Ibid, Article 14a, Item 2628 Ibid, Article 14a, Item 3629 Ibid, Article 14a, Item 6630 Ibid, Article 14a, Item 7631 Ibid, Article 16119

Implementation of Transitional Laws in Serbia 2006War Crimes Chamber CasesPresident of the War Crimes Chamber is Sinisa Vazic who is also a Presidentof Belgrade District Court, and his Deputy is Tatjana Vukovic. Aside fromthe two, the War Crimes Chamber consists of the judges: Gordana Bozilovic-Petrovic, Olivera Andjelkovic, Vinka Beraha-Nikicevic, Vesko Krstajic andthe investigating judges Milan Dilparic and Miroslav Alimpic 632 .There are currently four cases being trialed before the War Crimes Chamber:“Skorpioni”, “Zvornik”, “Anton Lekaj” and “Sasa Radak”. On July 10 th ,2005, the Prosecution brought charges 633 against five members of former“Skorpioni” unit for war crimes against civilians. The accused are: SlobodanMedic 634 , Pera Petrasevic 635 , Aleksandar Medic 636 , Aleksandar Vukov 637 andBranislav Medic 638 . The indictment 639 in the “Zvornik” case was issued onAugust 12 th , 2005, and persons charged for war crimes against civilians 640are: Grujic Branko 641 , Popovic Branko 642 , Slavkovic Dragan 643 , Korac Ivan 644 ,Filipovic Sinisa 645 and Dragicevic Dragutin 646 . For performing the criminalact of a war crime against a civilian population, jointly, in the case “SuvaReka” the following have been charged: Mitrovic Radoslav 647 , RepanovicRadojko 648 , Jovanovic Nenad 649 , Cukaric Sladjan 650 , Nisavic Milorad 651 ,Petkovic Miroslav 652 , Petkovic Zoran 653 i Papic Ramiz 654 . In the case “BitiqiBrothers” for committing a war crime against Prisoners of War, PopovicSreten 655 and Stojanovic Milos 656 have been charged.632 See Belgrade District Court Work Bulletin, page 25, which can be downloaded from http://okruznisudbg.org.yu/content/2006/informator/informator2005, visited on November 23 rd , 2006633 Indictment Ktrz number 3/05634 Former commander of the “Škorpioni” unit, nickname “Boca”635 Member of Slobodan Medić’s security and of “Škorpioni” unit636 Member of Slobodan Medić’s security and of “Škorpioni” unit, nickname “Aca”637 Former deputy commander of the “Škorpioni” unit and commander of reconnaissance squad, nickname“Aca”638 Driver for the “Škorpioni” unit, nickname “Zekan”639 Indictment Ktrz number 17/04640 SFRY Criminal Law, Article 142, item 1641 At the time he was acting president of: Crisis Staffs, Municipality, Temporary Government and War Presidenciesin Zvornik, nickname “Brana”642 Alias “Pavlović Marko”, commander of Territorial Defence and member of War Presidencies in Zvornik643 Member of “Igor Marković” – “Yellow Wasp” unit, nickname “Major Toro”644 Member of “Igor Marković” – “Yellow Wasp” unit, nickname “Zoks”645 Member of “Igor Marković” – “Yellow Wasp” unit, nickname “Lopov”646 Member of “Igor Marković” – “Yellow Wasp” unit, nickname “Bosanac”647 Nickname “Rade“, - colonel, assistant to the commander of the Gendarmery648 Assistant commander in the Krusevac Police Station649 Nickname “Neša“ criminal inspector in the Lazarevac Police Station650 Nickname “Božo“, police officer in Leskovac Police Station651 Nickname „Miško“, by trade sailor652 Nickname “Miki“, by trade worker653 By trade traffic technician654 Police officer in Sjenica Police Station655 Nickname “Pop”, in the rank of lieutenant-colonel of Gendarmerie656 Called “Šešelj”, in the rank of sergeant first class120

Implementation of Transitional Laws in Serbia 2006For the war crime against civilians 657 , the Prosecution issued an indictment 658against Anton Lekaj 659 . The Prosecution issued an indictment 660 against SasaRadak 661 on April 13 th , 2005, charging him of committing criminal act, warcrime against the prisoners of war 662 .The first case initiated before the War Crimes Chamber was the “Ovcara”case. The indictment 663 charges 17 people for committing criminal actsof war crimes against the prisoners of war 664 on the “Ovcara” farm. Theprocessing of this case was crucial in establishing the rule of law andcontinuing the process of facing the past. That was, also, an opportunityfor the War Crimes Chamber to demonstrate in front of the Serbian andinternational public that they are capable of handling such a difficult casein adequate manner, in spite of the pressure put on by parts of Serbianpublic. After difficult and straining process, on December 12 th 2005, the WarCrimes Chamber reached a verdict by which 14 accused were sentenced toprison sentences in range between five and 20 years 665 . Two of the accused,Ljuboja Mare and Katic Slobodan were freed of all charges and released 666 .That was the first verdict reached by the War Crimes Chamber.In mid-2006, the War Crimes Prosecution issued a complaint regardingthe court ruling which acquitted Marko Ljuboje and Slobodan Katic forwrongfully establishing a factual situation, which is a serious breach ofcriminal proceedings regulations and a breach of the criminal code. 667The War Crimes Prosecution also issued a complaint in relation to MilanLancuzanin also for wrongfully establishing a factual situation, which is aserious breach of criminal proceedings regulations 668 and in relation toVuja Zlatar, Jovica Peric, Milan Vojnovic, Predrag Madzarac, Goran Mugosand Nada Kalaba for the sentence 669 .657 Basic Criminal Code, Article 142, item 1, see above under 586658 Indictment Ktrz number 7/04659 Member of Kosovo Liberation Army, “Cipat” group Military Police, nickname “Pinđo” or “Balt”660 Indictment Ktrz number 4/03661 Member of “Leva supoderica” unit, nickname “Cetinje”662 SFRY Criminal Law, Article 144663 Indictment K.V. number 1/03664 SFRY CL, Article 144665 Mugoša Goran was sentenced to five years, Kalaba Nada was sentenced to nine years, Predrag Madžaracto 12 years, Jovica Perić, Milan Vojinović and Zlato Vujo to 15 years, and Miroljub Vujović, Stanko Vujanović,Ivan Atanasijević, Milan Lančužanin, Predrag Milojević, Đorđe Šošić, Miroslav Đanković and Predrag Dragovićto 20 years666 The Initiative’s Report from the main inquest in “Ovčara” case from December 12 th 2006, Initiative’s documents667 The complaint is available at http://www.tuzilastvorz.org.yu/html_lat/zalbe_zavrsne_reci/za_29_09_2006.htm, visited on November 25 th , 2006668 Ibid669 Ibid121

Implementation of Transitional Laws in Serbia 2006The second verdict by the War Crimes Chamber was reached on January 30 th ,2006, in the “Bulic” case. The accused Milan Bulic was sentenced to eightyears in prison for committing a criminal act, war crime against prisonersof war 670 .Criminal proceedings against Milan Bulic were separated fromthe main “Ovcara” case on January 28 th 2005, because of his poor healthcondition 671 .After that, a court ruling was passed in the case of “Sasa Radak”, whowas sentenced to 20 years of prison for participating in the liquidationof prisoners of war who were taken from the “Ovcara” agricultural farmand killed at “Grabovo” on November 21, 1992. The ruling states thatSasa Radak, a.k.a. “Cleaner”, headed the so-called “Death platoon of theTerritorial Defense”, that he was with the soldiers who beat the prisonersand that he continued with the maltreatment of prisoners in a storageshed in Ovcara. 672 When the sentence was being read out, Sasa Radak wasremoved from court as he swore and called the judge “a tramp” 673 .The last in a serious of verdicts by the War Crimes Council of theBelgrade District Court was passed on September 18, when Anton Lekajwas sentenced to 13 years of prison for executing war crimes against civilpopulations 674 . The indictment charged Lekaj with execution or involvementin the execution of four individuals. It was proven that Lekaj was certainlyinvolved in the murder of Salja Redj, but not in the executions of SaljaBedri, Zvezdana Ljusaj and Rade Gagovic 675 . It was established that AntonLekaj together with Arben Skupi killed Salja Redj, but it was not establishedwhich of the two of them did it 676 . In any case, the court decided that evenif he did not shoot, Anton Lekaj was an accomplice 677 . It was proven thatAnton Lekaj raped minor Sofija Tafaj in a room at the Pastrik hotel, but it wasnot established that he raped her again on a table in the hotel’s basement 678 .The court also ruled that Anton Lekaj did not do a sexual perversion overSalja Bedriju for which he had been charged 679 . Therefore, Anton Lekaj is670 CL SFRY, Article 144671 Second verdict of the War Crimes Chamber, see web page: http://okruznisudbg.org.yu/content/2006/Druga%20presuda/view?searchterm=bulić%20OR%20булић, visited on November 25 th , 2006672 20 years for Radak because of Ovcara, B92, September 16 th , 2006, See: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=09&dd=06&nav_id=210842,visited on November 25 th , 2006673 Ibid674 The report of the Initiative from the pronouncement of the verdict to Anton Lekaj from September 18 th ,2006, is in the Initiative’s documentation675 Ibid676 Ibid677 Ibid678 Ibid679 Ibid122

Implementation of Transitional Laws in Serbia 2006responsible for murders, tortures, inhuman acts, inflicting body wounds andraping civilians on the territory of the Djakovica municipality in June 1999 680 .Finally, the president of the council, Olivera Andjelkovic, pointed out thatthe court encountered a great obstruction on the side of UNMIK judiciary,which, following a request of the Belgrade District Court, decided to allowthe hearing of defense witnesses only, but not of prosecution witnessesliving in Kosovo 681 . Taking into account all extenuating and aggravatingcircumstances of the case, requests of the prosecution and the defense andthe Criminal Code of the FRY, under which a maximum prison sentence isone of 20 years for this deed, the court decided to sentence Anton Lekajto 13 years of prison 682 . Olivera Andjelkovic ended the court proceedingsby saying: “Mr. Lekaj, we did not sentence you because you were a KLAmember, nor because you are an Albanian. We have sentenced you for thecrimes you committed against civilians, and civilians are sacred” 683 .Before the War Crimes Chamber was formed, two war crime cases wereinitiated and completed before Belgrade and Prokuplje District Courts,“Sjeverin” 684 and “Sasa Cvjetan” 685 .Interesting is the fact that the War Crimes Chamber is authorized to process23 different criminal acts, listed in chapter XVI of the Basic CriminalCode and certain number of criminal acts which were envisaged by theHague Tribunal Statute, but so far they have only processed two types ofcriminal acts: war crimes against prisoners of war 686 and war crimes againstcivilians 687 .680 Ibid681 Ibid682 Ibid683 Ibid684 K. no. 668/2002685 K. no. 1823/04686 “Ovcara” case, K.B. 01/03, verdict reached on December 12 th , 2005687 Cases: “Sjeverin” – K.B. 94/02, “Sasa Cvjetan” – K.B. 1273/02, “Anton Lekaj” – K.B. 7/04, “Zvornik”– K.B. 17/04, “Skorpioni” – K.B. 3/05123

Implementation of Transitional Laws in Serbia 2006Prosecutor’s Office for War CrimesThe Office was founded on July 1 st , 2003, and on July 23 rd , 2003. SerbianAssembly elected Vladimir Vukcevic the War Crimes Prosecutor 688(hereinafter: Prosecutor). Dragoljub Stankovic, Veselin Mrdak, MilanPetrovic, Bogdan Stankovic and Dusan Knezevic 689 were elected DeputyProsecutors.Apart from the abovementioned, completed cases, there are some othersin the pre-criminal or investigative phase: “Minic” 690 , “Povlen”, “PustoSelo” 691 , “Cuska”, “Zahac”, “Suva Reka” 692 , “Orahovac”, “Meja” 693 , “MejaOrize” 694 , “Korenica” 695 , “Bistrazin” 696 , “Izbice (Srbica)” 697 , “Gnjilane” 698 ,“Bitiqi” 699 and others 700 .On March 1 st 2006, the Office requested for initiating investigation on twopersons, based on reasonable doubt of having committed the criminal actof crime against prisoners of war 701 . 702 Victims of this crime were AgronBitiqi, Ilil Bitiqi and Mehmed Bitiqi, all American citizens murdered in 1999,whose bodies were recovered in 2001, in Petrovo village near Kladovo. 703Immediately after requesting the instigation of investigation, Districtprosecutor in Negotin, Miroslav Srzentic was anonymously threatened onthe phone „to be careful, for his own good, for protecting murderers“. 704Srzentic got similar threats in 2001. Fatos Bitiqi, brother of the murdered,said: “Order for my brothers’ murder was issued by the present GendarmerieChief of MUP Serbia Goran Radosavljevic Guri”. I saw that in the statementgiven to the Investigative judge in Kladovo by a police officer from Pristina.688 See the web site http://www.tuzilastvorz.org.yu/html lat/onama.html, visited on November 25th, 2006689 Ibid690 12 casualties691 92 casualties692 48 casualties693 103 casualties694 15 casualties695 13 casualties696 1 casualty697 116 casualties698 7 casualties699 3 casualties700 See the web site http://www.tuzilastvorz.org.yu/html_lat/predmeti.html, visited on November 25 th , 2006701 Criminal Code of SFRY, Article 144702 See the web site http://www.tuzilastvorz.org.yu/html_lat/saopstenja/s_01_03_2006.htm , visited on November25 th , 2006703 Investigation on brothers Betiqi murderers, B92, March 1 st 2006. See B92 web site: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=03&dd=01&nav_id=190153&nav_category=64 , visited on November 25 th , 2006704 The Prosecutor threatened over Betiqi case, B92, March 8 th , 2006. See B92 web site: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=03&dd=08&nav_id=190964, visited on November 25 th , 2006124

Implementation of Transitional Laws in Serbia 2006I went to Kladovo last year and talked to the judge; I was urged to sign thecriminal reports against Vlastimir Djordjevic and I asked what happenedwith others, what was happening with the investigation against Guri, policeinspector for foreigners in Prokuplje Zoran Stankovic, jail headmasterAleksandar Djordjevic...The judge remained silent. Vlastimir Djordjevic issaid to be in Moscow, all right, but all the others are either still in office orretired” 705 Djordjevic was threatened by anonymous callers as well and told:“We’ll kill you if you come back, we know that you intend to return”. 706The War Crimes Prosecution filed an indictment against Sreten Popovic 707and Milos Stojanovic 708 for committing war crimes against prisoners ofwar 709 . The indictment reads: “Sreten Popovic ordered Milos Stojanovic todeprive the damaged parties of liberty in front of the Prokuplje DistrictPrison and to take them to the instruction center in Petrovo Selo. MilosStojanovic engaged members of the unit Aleksandar Nikolic and DejanStamenkovic, who took over the damaged parties, deprived them of liberty,by putting handcuffs on their hands. He took them to the instruction centerin the handcuffs and handed them over to Sreten Popovic, who held themthere and put them into a room with metal doors, which was located inan unfinished building under the runway, and held them in those closedconditions until July 9, 1999. Late in the evening of July 9, he handedthem over to the so far unidentified members of the Serbian police andSpecial Antiterrorist Unit (SAJ), who tied the damaged parties with wire,,took them to a pit for depositing waste, which is some 500 meters behindthe instruction center, and then they gun fired projectiles into the back ofthe heads of the three damaged parties, which caused their death...” 710 .705 Bojan Toncic: Goran Radosavljević Guri ordered my brothers murder, DANAS, February 19 th , 2004706 R. Femic: I am not afraid of dying; I am coming to Belgrade, DANAS March 25 th , 2006707 A.k.a. “Priest”, employee of the Serbian Ministry of Interior, during 1999 he was patrol and sabotage platooncommander of operational pursuit units, now lieutenant colonel at the gendarmerie708 A.k.a. “Seselj”, employee of the Serbian Ministry of Interior, during 1999 he was commander of the patroland sabotage platoon department of the operational pursuit units, now sergeant first class at the gendarmerie709 The indictment is available at http://www.tuzilastvorz.org.yu/html_lat/optuznice/bitici.htm, visited on 25 th ,2006710 Ibid125

Implementation of Transitional Laws in Serbia 2006Implementation of the Law on War CrimesProsecutionWhen government bodies for organized crimes are concerned, this law isfully applies. The War Crimes Chamber, Prosecution, Service, and Specialprison unit were formed. A special department that should offer support tovictims and witnesses in order to more easily go through stressful situationsthat war crimes trials bring is a recently formed body. The act regulatingthe work of a special department, that was supposed to be passed by thepresident of the District Court with agreement of the minister in chargeof justice 711 , was passed in the form of Information Booklet for Damagedparties and Witnesses 712 . This set the rules on the basis of which victimsand witnesses participating in war crimes trials are treated. Although thegovernment was obliged to provide financial means for the work of specialdepartment 713 , it did not do so 714 . Due to this, the War Crimes Councilwas forced to seek help elsewhere, so the funding was provided by the USEmbassy 715 . The US Embassy continually supports the work of the Serbianjudiciary so on April 12, 2006 it signed an Agreement with representativesof the District Court and Prosecution on assistance for the procurement oftechnical equipment and promotion of investigation worth USD 40,000 716 .This happened despite a strict legal regulation that the ministry in charge ofthe judiciary should provide all necessary means for safe and efficient workof the Prosecution, the War Crimes Council, the Special department, andthe Special prison unit 717 .During the proceedings, the War Crimes Chamber employs specialstipulations regarding criminal act of organized crime and other CriminalProceedings Code stipulations shall be applied when necessary. 718 Takingstatements from witnesses via conference link has been conducted so far intwo cases – “Ovcara” and “Skorpioni”. During the hearing of Kosanovic711 The Law on war crimes prosecution, Article 11, item 2712 Information booklet for damaged parties and witnesses is available at http://okruznisudbg.org.yu/content/informatorzasvedokelat, visited on 25 th , 2006713 Ibid, Article 20714 Report from the meeting with Ivan Ramic, spokesperson of the War Crimes Chamber is in the Initiative’sdocumentation715 Ibid716 A.R, US Donation to the Belgrade District Court, DANAS, April 13 th , 2006717 The Law on war crimes prosecution , Article 19, see above under 4718 Ibid, Article 13126

Implementation of Transitional Laws in Serbia 2006Dusko 719 in the “Skorpioni” case, Zoran Jevric, 720 the lawyer, refusedto question Kosanovic on grounds of non-existence of such witnessquestioning method in our legal system. 721 Jevric did the same in the courseof questioning the protected “witness A” at the main hearing held on April12 th /13 th 2006. Conference link hearing proved a very important and usefulsource of information for the War Crimes Chamber in those cases whenwitnesses could not or would not give statements in Belgrade. Were it notfor such an opportunity, the Chamber would be deprived of certain, oftcrucial, testimonies. 722District Court in Belgrade has so far received a substantial internationallegal aid, first of all by the Hague Tribunal. The evidence gathered by theHague investigators has so far been used in the cases “Ovcara”, “Skorpioni”,“Zvornik” but also in the “Anton Lekaj” case. 723 This issue is regulated bythe European Convention on Legal Aid in Criminal Cases 724 ratified bySerbia and Montenegro 725 , as well as by bilateral agreements on legal aid thatRepublic of Serbia signed with Croatia 726 and Bosnia and Herzegovina. 727Besides this, the Legislator decided to include in the Amendments to the Lawon War Crimes Trials a stipulation governing the use of evidence gatheredby the Hague Tribunal, that is, by the Tribunal’s Prosecutor’s Office. Bymeans of accepting statements given before the Hague Tribunal, nationalcourts will avoid direct questioning of witnesses on the same events. Thus,the obstacles in taking statements from persons not resident on the territoryunder Serbian judiciary competence will be circumvented, and it will savetime and resources too. The remaining moot point is whether, based onevidence gathered by The Hague Tribunal Prosecution, the Prosecutorwill be able to initiate proceedings and prosecute any case or only thosehanded over to Serbian judiciary by the Tribunal. 728 A logical and systematic719 Dusko Kosanovic was a driver in the „Skorpioni“ forces and at the same time person through whom theHumanitarian Right Fund and The Hague Tribunal got hold of the cassette showing murdering six civilians inTrnovo720 Zoran Jevric is the defendant’s, Branislav Medic’s, lawyer721 The Initiative’s archives contain the report on the main hearing in “Skorpioni” case held on April 11 th 2006722 As proven by the statement of Dusko Kosanovic, who testified via conference link in the “Skorpioni” case.The Initiative’s report from the hearing in the “Skorpioni” case dating April 11 th /12 th 2006723 The Initiative’s archives contain the report from the meeting with the War Crimes Chamber spokesperson,Ivana Ramic724 European Convention on Mutual Legal Aid in Criminal Cases was brought on April 20 th , 1959. in Strasbourgand the Additional Protocol to the Convention was adopted on March 17 th , 1978 also in Strasbourg725 Law on ratification of the European Convention on Mutual Legal Aid in Criminal Cases was adopted onNovember 9 th , 2001, Official Gazette of FRY 10/2001726 The agreement between FRY and Republic of Croatia on legal aid in criminal and civil proceedings wassigned on September 15 th , 1997727 The agreement between FRY and Bosnia and Herzegovina on legal aid in criminal and civil proceedings wassigned on February 24 th , 2005. in Sarajevo728 The use of witness statements given before the ICTY in procedures before the domestic courts, Dragoljub Stanković, can127

Implementation of Transitional Laws in Serbia 2006interpretation indicates that this stipulation is to be applied exclusively tothe cases handed over to the domestic judiciary, whereby the scope of theuse of such evidence is substantially limited. 729Lawyer Dragoljub Todorovic, authorized by the victims’ families in cases“Zvornik” and “Skorpioni” 730 , gives an interesting view on “commandresponsibility” according to the old and the new Criminal Code. 731 He holdsthat the new Criminal Code completely excludes criminal liability for thecriminal acts committed before its taking effect. He supports this view by thefollowing arguments: 1) The new Criminal Code introduced a new criminalact of “failing to prevent perpetration of criminal acts against humanityand other entities protected by international law” 732 , but this act of crimecannot be tried in courts for the period 1990-January 1 st , 2006, through oneof the criminal law basic principles nullum crimen sine lege (no law, no crime).Therefore, we deal here with the prohibition of retroactive implementationof criminal law stipulations, which makes the new criminal act stipulationapplicable only to the cases that happened after January 1 st 2006; 2) Thescope of possible perpetrators has been substantially reduced by the newCriminal Code due to leaving out the phrase “or by other means” 733 fromthe previous Code, whereby the complicity of superiors is completely ruledout in cases when staff commit crime. According to the new legal solution,the superior has to take active and direct part in the act of crime, which,in turn, means that there is no complicity without active participation inthe crime, the old law allowing the possibility; 3). The former CriminalCode of FRY envisaged criminal liability of criminal groups organizers’,whereby, regardless of whether they personally committed crime or tookactive part in it, they were seen as liable for all criminal acts stemmingfrom the group’s plans to the same extent they would have been if theyhad committed them themselves. 734 This stipulation was erased from thenew Code, without foreseeing a new one; 4) Stipulations on commandresponsibility generated by Service Rules of the former JNA, The YugoslavArmy, or any other military formation, cannot be applied to criminal actsdone through non-action, as the new Criminal Code requires that actionbe downloaded from the web site: http://www.tuzilastvorz.org.yu/html_lat/strucni.html, visited on April 15 th ,2006729 Ibid730 Dragoljub Todorovic was also the authorized lawyer in the cases: “Strpce”, “Sjeverin”, “Podujevo” and“Ovcara”731 Dragoljub Todorovic: Abolition for commanders, DANAS March 13 th , 2006732 Criminal Code of the Republic of Serbia, Article 384733 Criminal Code of FRY, Article 22734 Criminal Code of FRY, Article 26128

Implementation of Transitional Laws in Serbia 2006should be prescribed only by law. 735 Therefore, it is only if the law foreseesaction as obligatory, and what happens is non-action, can the criminal actof non-action be committed. As Service Rules and similar acts are sublegal,not legally binding acts, no army official of the JNA or other militaryformation can be held criminally liable for the act of non-acting accordingto the new code.735 Criminal Code of RS, Article 15, see above under 611129

Implementation of Transitional Laws in Serbia 2006Conclusions on the Implementation of the Law onWar Crimes ProsecutionBased on a research on the implementation of the Law on War CrimesProsecution, The Initiative reached the following conclusions:• The new Criminal Code took effect on January 1 st , 2006, wherebythe Basic Criminal Code ceased to exist. As a result of this, wehave got a situation where the Law on War Crimes Prosecution, inthe part regulating its jurisdiction, calls upon the no longer existentBasic Criminal Code.• A special department has been formed, and the document whichdefines its work has been announced as a Catalogue for victims andwitnesses.• As the Government fails to fulfill its legal obligations with respectto providing funds for the functioning of the War Crimes Chamber,Prosecutor’s Office, Special Department, Service and SpecialDetention Unit, these bodies are more often than not forced toseek funds elsewhere. The help is most often provided by the USEmbassy.• Ministry of Justice fails to fulfill its legal obligations with respect toproviding all technical conditions necessary for the safe and efficientfunctioning of all the bodies formed by this law, including DistrictCourt and Prosecutor’s Office. As a result, American Embassy hassigned with these bodies an Agreement on assistance in technicalequipment procurement and investigation enhancement.• There is almost no investigation or a case where the advantages ofthe international legal aid have not been made use of. Therefore, itcan be concluded that the domestic judiciary cooperation with theHague Tribunal and other judiciary systems in the region has beengoing on quite smoothly.• The War Crimes Prosecution stipulations regarding the cooperationwith the Hague Tribunal are not prescriptive enough when it comesto the question of whether the Prosecutor will be able to utilizeevidence gathered by the Hague Tribunal Prosecution, initiateproceedings and prosecute any case or only those handed over toSerbian judiciary by the Tribunal.• The adoption of the new Criminal Code casts a serious doubt on130

Implementation of Transitional Laws in Serbia 2006the possibility of our courts prosecuting persons liable on count ofso called “command responsibility” for the War Crimes perpetratedup till January 1 st , 2006.Recommendations for the Implementation of theLaw on War Crimes ProsecutionBased on a research on the implementation of the Law on War CrimesProsecution, The Initiative reached the following recommendations:• The Law on War Crimes Prosecution should be amended in sucha way that the stipulation stating “This law is to be applied withthe view to detecting, prosecuting and trying criminal acts againsthumanity and international law as defined in Chapter XVI of theBasic Criminal Code” should be replaced by the one that would say“This law is to be applied with the view to detecting, prosecuting andtrying criminal acts against humanity and other entities protected bythe international law as defined in Chapter XXXIV of the CriminalCode.” The Basic Criminal Code ceases to be applied as from theday the new Criminal Code takes effect.• The Government has to fulfill its obligations and provide fundsfrom the Republic of Serbia budget for the financing of WarCrimes Chamber, Prosecutor’s Office, Special Department, Serviceand Special Detention Unit, as at the moment, these duties arecarried out by others, primarily the American Embassy. In case thefunding cannot be provided through the budget, then the stipulationstating “Funding for proper functioning of War Crimes Chamber,Prosecutor’s Office, Special Department, Service and SpecialDetention Unit are to be provided within the Republic of Serbiabudget” should be replaced by one that would say “Funding forproper functioning of War crimes Chamber, Prosecutor’s Office,Special Department, Service and Special Detention Unit are to beprovided either within the Republic of Serbia budget or from theinternational institutions financial assistance”.• The Ministry of Justice has to fulfill its obligations and provide alltechnical conditions necessary for the safe and efficient work of allthe institutions formed by the law, as at the moment, these duties are131

Implementation of Transitional Laws in Serbia 2006carried out by others, primarily the American Embassy. In case thatthe Ministry of Justice is not in the position of fulfilling its dutiesthrough the lack of resources, then the stipulation stating “TheMinistry of Justice provides appropriate premises and all the othertechnical conditions necessary for the proper and efficient work ofthe War Crimes Chamber, Prosecutor’s Office, Special Departmentand Special Detention Unit” should be replaced with one stating“The Ministry of Justice or alternatively international institutionsprovide appropriate premises and all the other technical conditionsnecessary for the proper and efficient work of the War CrimesChamber, Prosecutor’s Office, Special Department and SpecialDetention Unit”• Stipulations of the law regarding the cooperation of Serbian judiciarywith the Hague Tribunal and The Hague Tribunal Prosecution needto be made more precise by means of introducing a stipulationaccording to which, based on the evidence gathered by the TribunalProsecution, the Prosecutor will be able to initiate investigation andprosecute any case, not only those handed over to the domesticjudiciary by the Tribunal.Law on RehabilitationThe Law on Rehabilitation 736 came into effect on April 25 th , 2006. Thislaw regulates rehabilitation of persons who were killed, imprisoned ordeprived of some other rights for political or ideological reasons througha court or administrative decision starting from April 6 th , 1941 to the dayof coming into force of this law 737 . One of the legal conditions for startingthe process of rehabilitation was that the person whose rehabilitation isrequested has the residence on the territory of the Republic of Serbia 738 . Itis important to point out that any interested physical or legal person maysubmit a request for rehabilitation and that the right to submit this requestdoes not expire 739 . A district court in the place of residence, i.e., the seatof requester or place where the exile or injustice was committed shall be incharge to act in cases of submitted requests 740 . The rehabilitation procedure736 The Law on Rehabilitation, adopted on April 17 th , 2006, Official Gazette of RS, number 33/06737 Ibid, Article 1738 Ibid739 Ibid, Article 2740 Ibid, Article 3 item 1132

Implementation of Transitional Laws in Serbia 2006is public and a council of three judges shall decide on it 741 . The rehabilitationrequest should contain personal data on the person whose rehabilitation isrequested and evidence on justifiability of the request 742 . A legal provisionthat should encourage all potential requesters refers to taxes and expensesas there are no taxes and expenses for the rehabilitation procedure 743 . Afterthe procedure is carried out, the court shall pass an explained decisionadopting or rejecting the request 744 . The consequences of adopting therequest are that the decision that has been made against the rehabilitatedperson is void from the moment when it was passed as well as that all itslegal consequences, including the punishment of property confiscation, 745and that the rehabilitated person shall be considered non-convicted 746 . Inthe cases when court or administrative decision was not adopted, the courtshall establish that the rehabilitated person was victim of persecution orviolence for political or ideological reasons 747 . Also, the ministry in chargeof judiciary shall publish the names and data on rehabilitated persons in theOfficial Gazette of the Republic of Serbia 748 .The complaint to the solution on rejection of request for rehabilitationcan be submitted to the Serbian Supreme Court no later than 30 days fromreceiving the decision 749 , and a council of five judges shall decide on thecompliant 750 . The procedure of execution of rights to compensation ofthe damage and the right to return of confiscated property of rehabilitatedperson is regulated in a special law 751 .When the Law on Rehabilitation was voted, 22 deputies of the SocialistParty of Serbia (SPS) voted in favor, while the Radicals did not participatein the voting. President of the SPS main committee Ivica Dacic said thatthe passing of this law is a way to rehabilitate those who must not berehabilitated 752 .741 Ibid, Article742 Ibid, Article743 Ibid, Article 3, item 4744 Ibid, Article 4, item 3745 Ibid, Article 5, item 1746 Ibid, Article 5, item 2747 Ibid, Article 5, item 3748 Ibid, Article 7749 Ibid, Article 6, item 1750 Ibid, Article 6, item 2751 Ibid, Article 8752 Sinisa Dedeic: Removing Labels from 1945, Glas Javnosti, October 24 th , 2006, available at http://arhiva.glasjavnosti.co.yu/arhiva/2006/10/24/srpski/T06102301.shtml,visited on November 25 th , 2006133

Implementation of Transitional Laws in Serbia 2006Implementation of the Law on RehabilitationAt this moment, argumented conclusions on implementation of this law inpractice cannot be made as only recently first decisions on rehabilitation inSerbia were made. Spokesperson of the Belgrade District Court Ivana Ramicsaid that the Belgrade District Court received 214 rehabilitation requestsand that there were much fewer requests than expected 753 . According toher, the court formed seven councils each comprising three judges thatwill decide on requests in out-of-court proceedings 754 . Ivana Ramic alsoadded: “Every three-member council comprises a criminal judge, litigantand one judge from the department for administrative disputes. Most ofthe submitted requests do not contain all necessary documentation, but thecourt is obliged by the law to request from state authorities and organizationsthat are obliged to submit the documents at the court’s request within 60days. Therefore, we may say that a non-public phase of the procedure iscurrently underway” 755 . So far, two persons were rehabilitated before thiscourt, namely former lieutenant of the Yugoslav National Army (JNA)Kosana Milosevic and owner of a sawmill in Kraljevo before the SecondWorld War Miljko Petrovic 756 .The submitted requests include ones requiring rehabilitation of ZankaStokic 757 , Slobodan Jovanovic 758 , Momcilo Nincic 759 , Konstantin Fotic 760 ,the Teokarovic brothers 761 et al.Immediately upon adoption of the law, the Serbian Constitutional Courtrequested from the Ministry of Justice, the government and the NationalAssembly to urgently draft and adopt amendments to the law that willregulate the rules of the procedure which are to be applied in rehabilitationprocedures 762 . The Ministry of Justice responded that if a specific law does753 See webpage: http://www.serbiancafe.co.uk/news/showshort.cfm?NewsID=15507,visited on November 25 th , 2006754 Ibid755 Ibid756 First decisions on discrimination, B92, November 14 th , 2006, webpage: http://www.b92.net/info/vesti/u_fokusu.php?id=26&start=0&nav_id=219869,visited on November 25 th , 2006757 Zanka Stokic (1887-1947), actress, was sentenced to eight years of prison for loss of national honor in1945. The Pozarevac committee of the League for Protection of Private Property and Human Rights submittedrequest for rehabilitation758 Famous Serbian lawyer and historian who was also Prime Minister in exile759 Foreign Affairs Minister of the Kingdom of Yugoslavia760 Former ambassador in the United States of America761 Pioneers of textile industry in Serbia and owners of the factory with latest technology in the pre-war Yugoslavia762 See above under 756134

Implementation of Transitional Laws in Serbia 2006not stipulate the type of procedure, the provisions of the Law on Out-of-Court Proceedings shall be applied 763 .The Initiative submitted a request for rehabilitation of Senad Sljivo to theJagodina District Court, who in late 1990s, during the NATO bombardmentof Serbia, got fired in the Secretariat of Interior in Jagodina as he rejectedto go to Kosovo as member of a special police unit.With this request, the Initiative asked from the Jagodina District Courtto proclaim null and void the decision on Senad Sljivo’s termination ofemployment in the Serbian Interior Ministry as well as all its effects until themoment of the passing of the decision and to get him back on duty to theInterior Ministry where his employment had been forcefully terminated 764 .Also, the Initiative requested that the Official Gazette of the Republicof Serbia publishes the name and data on Senad Sljivo as rehabilitatedperson 765 . Since the District Court did not submit any return informationon the current status of the request, the Initiative called the District Courtin the middle of October 2006 and got the following information: thenumber of the case is REH 2/06 and acting judge is Svetlana Jeremic 766 .Soon after that conversation, the Initiative received an official summons forhearing on rehabilitation of Senad Sljivo which is scheduled for December28 th , 2006 767 .763 Ibid764 The Initiative filed a request for rehabilitation of Senad Sljivo on May 22 nd , 2006, available in the Initiative’sdocumentation765 Ibid766 Report on telephone conversations of Initiative’s researchers with Judge Svetlana Jeremic, available in theInitiative’s documentation767 Summons for court proceedings in the Jagodina District Court, available in the Initiative’s documentation135

Implementation of Transitional Laws in Serbia 2006Conclusions on the Implementation of the Law onRehabilitation• The Law on Rehabilitation was legally enforced on April 25 th , 2006and 217 requests for rehabilitation arrived until October. Theyprimarily refer to the period after the Second World War and theperiod just after the war. There is still a small number of passeddecisions on rehabilitation;• The Initiative submitted a request for rehabilitation of Senad Sljivoto the Jagodina District Court on May 22 nd , 2006, and the hearingis scheduled for December 28 th , 2006, which is seven months afterthe request was submitted;• If citizens who want to start a rehabilitation procedure do not havethe necessary documentation for the proceedings, it is enough thatthey only submit a request, and competent courts are obliged tocollect the documentation, which is their official duty;• The rehabilitation procedure is freed of taxes and expenses and canbe submitted by any physical and legal person;• The rehabilitation procedure is conducted under provisions ofthe Law on Out-of-Court Proceedings, although the law does notspecify it anywhere. If a specific law does not specify which type ofproceedings is to be applied, the Law on Out-of-Court Proceedingsshall be applied.Recommendations for the Implementation of theLaw on Rehabilitation• The Law on Rehabilitation refers to all violations of rights ofSerbian citizens in the period from 1941 to the date the law is legallyenforced. Citizens whose rights were violated in the near war past,during the 1990s, should submit requests for their rehabilitation orto go to legal persons that will do so in their name;• Authorized courts in Serbia should start rehabilitation proceduremore efficiently so that it does not happen that the hearing isscheduled as many as seven months after the request is submitted;• Citizens should be encouraged to submit requests according toprovisions of the law regulating that rehabilitation procedures are136

Implementation of Transitional Laws in Serbia 2006exempted from expenses and taxes and that the court is obliged toask for necessary documentation that is missing in the requests thatis often hard for citizens to get;• All citizens, as well as other physical or legal persons representingtheir interests in the rehabilitation procedure should consult theNon-litigation Proceedings Law before the hearing so as to learnin more detail the regulations of the proceedings, and since theLaw on Rehabilitation does not explicitly regulates what type ofproceedings is applied for this procedure.137

138Implementation of Transitional Laws in Serbia 2006

Implementation of Transitional Laws in Serbia 2006ANNEX IINITIATIVE BEFORE COURTS IN THE NAME OF VICTIMS(Report on cases the Initiative is carrying out in the name of thevictims of human rights violations)139

Implementation of Transitional Laws in Serbia 2006IntroductionDuring 2006 and during previous years, the Youth Initiative for HumanRights (hereinafter: the Initiative) investigated the violation o human rights inSerbia. The international and domestic standards regulate all-encompassingprotection of human rights corpus, but the Initiative focused this year onthe right to free access to information, instigation of racial, religious andnational hatred and intolerance, hate speech, the right to rehabilitation, andpolice torture.The right to free access to information is regulated by the Law on FreeAccess to Information of Public Importance (hereinafter: the Law onFree Access to Information) 768 . This law regulates mechanisms that shouldpreventively provide protection of this citizen right, but also sanction thoseresponsible for its violation. Except for the institution of commissioner forinformation of public importance, which has shown large credibility anddedication to the rule of law, we may conclude that the said mechanismsdid not fulfill expectations and that they did not justify their existence. Onthe one hand, this came as a result of their wrong concept and the factthat they are inapplicable in practice, but on the other hand it is a resultof irresponsible, unprofessional and unserious approach of state authoritybodies in implementation of this right and its protection in practice. At theend of 2005, the Initiative submitted first requests for starting infringementprocedures against responsible persons in public authority bodies, and tenof these requests were submitted until October this year. Competent cityand municipal departments for misdemeanors have not started any of theprocedures, which consequently means that we do not have one single ruling.A first ruling due to disrespect of the Law on Free Access to Informationwas recently passed in Montenegro 769 .Racial, religious and national hatred and intolerance exist in Serbia. TheInitiative described the cases of “Four assaults against Zivota Milanovic,Brahman of Hare Krishna religious community” and “Ethnically MotivatedViolence in the Serbian Army “. The first case encompasses incidents whichZivota Milanovic has been facing since 2001. He has been attacked fourtimes, he was stabbed in his stomach with a knife twice, beaten with baseball768 The Law on Free Access to Information, see above under 3, Article 5769 The Montenegrin Administrative Court fined the National Security Agency as it held the number of its employeesas state secret although no legal act regulated that such type of information is state secret140

Implementation of Transitional Laws in Serbia 2006bats, and recently attackers carved a cross on his forehead. The Police inJagodina have still not discovered the perpetrators of these crimes. Whileserving his military service in the military barracks “Sopot” in Pozarevac,Anis Masovic was a victim of a group of soldiers who decided to “beatup the Muslims” that night. During the night, they covered him with ablanket and beat him with shovels, causing him grave bodily injury. In thiscase the District prosecutor’s office in Pozarevac has been conducting aninvestigation for a year and a half now. The reactions of the institutions incharge are indicative and they show that there is no legal will in Serbia toinstitutionally admit, through court rulings and punishing those who areresponsible, to acknowledge the existence of racial, religious and nationalhatred and animosity.The Law on Rehabilitation 770 was recently enforced as a result of whichthere is still no court practice that could provide more precise estimationof the exercise of this right. With the aim of controlling the regulatedlegal mechanisms and creating court practice, the Initiative initiated a caserequesting the rehabilitation of Senad Sljivo from Jagodina, his return towork in the Serbian Ministry of Interior and publication of data about himas a rehabilitated person in the Official Gazette of the Republic of Serbia.Although the request for rehabilitation of Senad Sljivo was submitted at theend of May 2006, the Jagodina District Court has not started the procedureuntil November this year.Hate speech 771 is a frequent occurrence in the Serbian media space, withdaily newspapers GLAS JAVNOSTI and KURIR as leaders. The Initiativepressed charges to establish the hate speech against responsible personsin these newspapers. GLAS JAVNOSTI published an advertisement titled“Boycott” asking the citizens of Serbia to boycott shopping in Croatianshop IDEA with an explanation that “the Croatian foot is walking theSerbian land without any problem,” that “every purchase is a donation tothose who killed us and evicted us from our homes,” and with a threat that“those who shop in that store and who do not show solidarity with hundredsof thousands of refugees and persecuted Serbs will be monitored.” In anarticle titled “Even Shiptars Mock at Us” KURIR reported that “Shiptars770 The Law on Rehabilitation, see above under 736771 Recommendation of the Committee of Ministers of the Council of Europe No. R (97) 20 defines “hatespeech” as a forms of expression which spread, motivate, incite or justify racial hatred, xenophobia, anti-Semitismand all forms of hatred based on intolerance, including intolerance incited by aggressive nationalism andethnocentrism, discrimination and hostility to minorities, migrants and persons of immigrant origin141

Implementation of Transitional Laws in Serbia 2006would advance at greater pace if they had more guardians in Belgrade” that“they seem to have only now become acquainted with the use of soap”, and“they used to stick their teeth in unpeeled lemon.” Both proceedings areunderway, and court rulings are expected by the end of the year.The relation between police members and Serbian citizens is largelycharacterized by torture that is, molesting, torturing, inflicting harmfulpsychic and physical injuries, violation of one’s jurisdictions andunconscientiously work. It often happens that Serbian citizens who arevictims of police torture are accused for “disrupting an official person inexecution of security affairs” 772 . This is a kind of preventive action, afterthe torture, so as to justify the use of force by police officers, which iswitnessed by victims’ medical documentation. The police officers whoparticipated in torture always have support of their superiors, but also ofjudges in these procedures.The monitored human rights in Serbia are often violated and there is noadequate reaction of authorized institutions that would bring to courtpunishment of responsible persons. By creating a no-punishment traditionfor violation of human rights of Serbian citizens, all perpetrators of thesecriminal acts are encouraged to continue their practice in the future andpreventive element that every legal sanction should have is thereby lost.This attitude of judicial bodies in Serbia toward perpetrators and victims ofviolated human rights does not contribute to the development of the ruleof law in Serbia and creation of a democratic, civil, open and responsiblesociety, which Serbia declaratively hopes to become.This report was written on the basis of information collected untilNovember 2006.772 The Law on public order and peace (Official Gazette of RS, number 51/92, 53/93, 67/93, 48/94), Article23, item 1142

Implementation of Transitional Laws in Serbia 2006Violation of the Right to Free Access toInformation“Everyone shall have the right to be informedwhether a public authority holds specific informationof public importance, i.e., whether it is otherwiseaccessible.Everyone shall have the right to access informationof public importance by being allowed insightin a document containing information of publicimportance, the right to a copy of that document,and the right to receive a copy of the document uponrequest, by mail, fax, electronic mail, or in anotherway. 773Security Intelligence Agency (BIA)BIA is an institution in charge of protection of security of the Republic ofSerbia, discovery and prevention of activities which threaten to undermineor disturb the constitutional order of the Republic of Serbia; the acquisition,processing and analysis of security-intelligence information relevant to thesecurity of the Republic of Serbia, informing competent state authoritiesabout security issues, and other responsibilities determined by the Law 774 .As it budget is fully financed from the budget of the Republic of Serbia,in the context of the Law on Free Access to Information, BIA is thepublic authority obliged to allow anyone access and submit informationof public importance that occur in its work or in relation to it 775 . For that,it is necessary to submit a regular request for free access to information.On October 31, 2005 the Initiative submitted a request to BIA asking theagency to present the following information:773 Law on free access to information, Article 5, see above under 3774 Law on Security Intelligence Agency (Official Gazette of RS, number 42/2002), was passed by the SerbianNational Assembly on July 18 th , 2002 and came into effect on July 27 th , 2002775 Law on free access to information, Article 3, see above under 3143

Implementation of Transitional Laws in Serbia 2006• How many requests for wiretapping was submitted to BIA during2005;• How many persons were tapped during 2005 out of the wholenumber o filed requests. 776Information of public importance is any information created during workor related to the work of the public authority body, contained in a document,and related to everything that the public has a justified interest to know 777 .The Law on Free Access to Information stipulates a legal deadline of 15days during which the public authority is to inform the applicant whether itholds the requested information 778 . More precisely, the public authority bodyis obliged to submit the required information in the said period or to issuea decision on the rejection of the request and give a written explanation ofsuch a decision and the legal remedy 779 .On November 4 th , 2005 BIA submitted a document to the Initiative thatcannot be called a decision as it is not in the required form nor does itcontain legal remedy 780 . With this document BIA rejected Initiative’s requestwith an explanation that “it is in direct collision with Article 9, Item 5 of theLaw on Free Access to Information” 781 .The mentioned article stipulates that a public authority will not allow theapplicant to exercise the right to access to information of public importanceif the required information on the basis of legal act or official act representsa state, official or business secret as a result of which harmful legal or otherconsequences might occur for interests protected by the law and outweighthe access to information interest 782 .The Initiative was not satisfied with such explanation so on November 17,2005 it submitted a complaint to the commissioner 783 . It was agreed that thenumber of people that BIA tapped during 2005 is not the information thatcan result in harmful legal or other consequences to interests protected by776 The Initiative submitted a request for free access to information BIA on October 31 st , 2005 and available inthe Initiative’s documentation archives777 Law on free access to information, Article 2, see above under 3778 Ibid, Article 16, item 1779 Ibid, Article 16. item 10780 The document that BIA submitted to the Initiative available in the Initiative’s documentation archives781 Ibid782 Law on free access to information, Article 9, Paragraph 1, item 5, see above under 3783 The Initiative submitted the complaint on November 17 th , 2005 and available in the Initiative’s documentationarchives144

Implementation of Transitional Laws in Serbia 2006law and that BIA in this way deprived the Initiative of its constitutionallyand legally guaranteed right to free access to information. Had the Initiativerequested the names of persons who were tapped, BIA’s argument may havebeen accepted, but since this was only about the number of tapped persons,the argumentation is legally ungrounded. It is necessary to stress thatpublic authority body is obliged to follow the criteria applied by democraticsocieties when evaluating whether access to information in the specific casecould substantially imperil any of the interests set out in the Law 784 . Also,the public authority body that denies requested access must prove that, inthe particular case, the applicant did not have justified interest to know 785 .The argumentation used by the Initiative in the complaint ends with a legalsolution under which no provision of the Law must be interpreted in theway that would result in ban of some of the rights regulated by this Law orits limitation to a greater degree from the one that has been regulated 786 .The commissioner first submitted a complaint to BIA for opinionleaving them a three-day deadline and did not receive a response 787 . Whenconsidering the complaint submitted by the Initiative, the commissionerestablished that its arguments were justified and that BIA’s argument “couldnot have been accepted because the required information is not such thatwould result in no or limited freedom of access on the basis of provisionsspecified in Article 9, item 5 of the Law... The authority did not statethose more prevalent interests, nor did it announce anything following thesubmitted compliant, and the commissioner does not see that such interest,in this particular case, exists” 788 . On November 22 nd , 2005 passed a decisionordering BIA to submit the required information to the Initiative.54 days after the commissioner passed his decision 789 , BIA pressed chargesto the Serbian Supreme Court requesting annulations of the commissioner’sdecision, namely saying: “Bearing in mind that the subject of the requiredinformation that refers to one of the methods of Agency’s work is directlythreatening freedoms and rights of man and citizen guaranteed by theConstitution of the Republic of Serbia, the law regulates under whichconditions the authority may miss to obey the principle of inviolability784 A Guidebook to the Law on Free Access to Information of Public Importance, page 35785 Law on free access to information, Article 4, see above under 3786 Ibid, Article 8787 Decision of the commissioner no. 07-00-00297/2005-03, available in the Initiative’s documentation788 Ibid789 Decision of the commissioner was passed on November 22, 2005, and BIA raised charges to the SerbianSupreme Court on January 18 th , 2005145

Implementation of Transitional Laws in Serbia 2006of secrecy of letters and other forms of communication. In that sense,decisions on such actions are classified as secret in the Law on SecurityIntelligence Agency and sub-legal acts of the Agency” 790 . It is true that theConstitution of the Republic of Serbia considers this as legal in certainsituations, but it is questionable to what degree BIA does it, as violation ofthe rights and freedoms of Serbian citizens is allowed only to a certain limitand does not depend on the discretion evaluation of BIA’s managers.The Serbian Supreme Court in a closed session held on April 19, 2006passed a decision that BIA rejected 791 . Members of the council were judgesJadranka Injac, Borivoje Bunjevacki, Zoja Popovic and court counselorVera Marinkovic 792 . Not going deeper into the merits, the Supreme Courtestablished that BIA cannot be the party in the procedure and thereforeit cannot be the prosecutor in administrative procedure either. BIAhad no active legitimacy in the dispute as execution of the right to freeaccess to information is an administrative affair that is solved through theimplementation of the Law on General Administrative Procedure 793 , whichstipulates that prosecutor in the administrative procedure can be a physicalperson, legal person or other party if it thinks that administrative act violatedsome right or legal interest 794 . The decision of the commissioner did notdecide on BIA’s right or legal interest, but the agency’s obligations to actas first-instance administration body following a request of the Initiative.Following this decision of the Serbian Supreme Court, the decision of thecommissioner became executive so BIA was obliged to submit the requiredinformation within seven days. BIA has not done so to date.After BIA’s rejection to submit the required data, apart from the decision ofthe commissioner and decision of the Serbian Supreme Court, the Initiativedecided to use the last mechanism to protect the right to free access toinformation that the law allows and to submit a request for execution of thecommissioner’s decision to the Serbian government 795 . Under the Law onFree Access to Information, the commissioner decisions are obligatory, and790 The charges that BIA raised to the Serbian Supreme Court are available in the Initiative’s documentation791 Decision of the Serbian Supreme Court no. U. 247/06 of May 23 rd , 2006, available in the Initiative’s documentation792 Ibid793 The Law on General Administrative Procedure (Official Gazette of the FRY Nos. 33/97 and 31/2001),adopted on July 19 th , 1997. Changes and amendments to this law were adopted on July 5 th , 2001794 See above under 791795 The Initiative submitted a request to the Serbian government on May, 29 th , 2006 and it available in theInitiative’s documentation146

Implementation of Transitional Laws in Serbia 2006if necessary, their execution is secured by the Serbian government 796 . SinceBIA disrespected the law, the government, by using its authorizations, wasobliged to “make” it do so. Interestingly, the Law does not specify the wayin which the government is supposed to do it, or the deadline during whichit should happen. The Initiative regards this as a big omission. A potentialsolution to the problem is that the procedure in which the governmentsecures execution of the commissioner decision is based on regulationsof the administrative procedure, i.e., that pronouncement of money fineis repeated several times until the decision is executive. The mentionedrequest was submitted on May 29, 2006 and the government of Serbia hasnot responded to the Initiative to date nor has it undertaken anything tofulfill its legal obligations.The “BIA case” largely attracted attention of wider public in Serbia 797 ,which shows that there is interest of Serbian citizens in free access toinformation and methodology of BIA’s work. The discussion involved manylaw experts and government representatives, so various comments could beheard. Djordje Mamula, a Democratic Party of Serbia (DSS) deputy, said:“The analysis of foreign services may lead to information required fromBIA by mixing that data with the number of Serbian citizens, number ofcitizens of legal age... I have not heard that Americans or Russians publishinformation that BIA is required to give... The action of the Youth Initiativemay look nice at the first place, but with all due respect, youth is not alwaysan argument sufficient enough” 798 .Serbian Minister of Justice Zoran Stojkovic saw the whole case like this: “Wewould have noting else but pure politicking from request to BIA to submitinformation on tapping...What commissioner for information RodoljubSabic is doing is only damaging the state” 799 . Director of the Center forAdvanced Legal Studies in Belgrade Vladimir Vodinelic, PhD, claims: “BIAis wrong in this case, as this is about statistical data, which nowhere in theworld can be secret” 800 . Professor Bogoljub Milosavljevic, author of bookson control of security services, said: “The decision of the commissioner796 Law on free access to information, Article 28, see above under 3797 According to the data of the Initiative’s media team, printed media published around 30 articles on this casein the period from May 24 th to May 31 st , 2006 while electronic media reported eight times on this case in thesame period798 Milan Galovic, BIA would not disclose wiretapping information, POLITIKA, June 22 nd , 2006799 BLIC, June 5, 2006800 Nebojsa Jankovic, Serbian BIA does not respect Law on Free Access to Information: Catch-28, NETNOVINAR, June6, 2006147

Implementation of Transitional Laws in Serbia 2006and the Serbian Supreme Court is good and can serve as motive to start thequestion of full civil control of BIA” 801 . Rodoljub Sabic, the commissioner,said about the BIA case: “I can understand that the secret service is tryingto mystify its work, but I cannot understand that the government directlyor indirectly supports it by ignoring the Law on Free Access to Informationof Public Importance” 802 .A fine of between 5,000 and 50,000 dinars is imposed for disrespect ofthe Law on Free Access to Information and the person authorized to actfollowing filed requests in a public authority is held responsible 803 . Theprocess of fining persons responsible for disrespect of the law should be asfollows: after the claimer files a complaint, and if the public authority failsto submit the required information even after commissioner’s reaction, thecommissioner shall inform the ministry in charge of information affairs 804(the Ministry of Culture). According to latest data, the commissionersubmitted 222 offence reports and none of them have so far beenprocessed 805 . However, the fact that the commissioner informed theMinistry of Culture on violation of the law excludes the possibility thatthe claimer initiates the infringement procedure against the public authoritybody in an authorized court.The Initiative used legal means in this but in other cases as well. Namely, theInitiative submitted a request to the city magistrate in Belgrade for startingan infringement procedure against Nikola Bajic, head of office of BIAdirector 806 , as he failed to provide required information to the Initiative. Wecame to a conclusion that Nikola Bajic is a person who is responsible forviolation of the law due to the fact that he was signed as authorized personin the document in which BIA informed the Initiative on rejection toprovide the required information 807 . The Law regulates that if an authorizedperson in the public authority body has not been appointed, the dutiesof the authorized person shall be performed by the head of the publicauthority 808 . It is because of this legal solution that the Initiative stated in801 V.C.Z, BIA has to state how many persons are being tapped, BLIC, May 25, 2006802 BIA would not disclose wiretapping information, see above under 798803 Law on free access to information, Article 46, see above under 3804 Ibid, Article 45805 Response of the Ministry of Culture at the request of the Initiative no. 401-00-000047/2006, of April 6 th ,2006, was signed by Minister Dragan Kojadinovic and available in the Initiative’s documentation806 Request for starting an infringement procedure against Nikola Bajic was submitted on June 9 th , 2006 andavailable in the Initiative’s documentation807 See above under 780808 Law on free access to information, Article 38, see above under 3148

Implementation of Transitional Laws in Serbia 2006the request for initiating infringement procedure that if Nikola Bajic is notthe authorized person to act following the requests, BIA director, that is,Rade Bulatovic, is to be considered responsible for violation of the law.The city magistrate did not submit any information to the Initiative on thecurrent status of the request for initiating infringement procedure.Other Infringements Caused by Disrespect of theLaw on Free Access to InformationApart from the infringement proceedings launched due to the disrespectof the Law on Free Access to Information against Nikola Bajic andRade Bulatovic as responsible persons at BIA, the Initiative initiatedinfringement proceedings against responsible persons in the SerbianMinistry of Interior 809 , the Serbian Ministry of Justice 810 , the SerbianMinistry of Capital Investment 811 , the Serbian Broadcasting Agency 812 ,public company Elektroprivreda Srbije 813 , public company Jat Airways 814and the municipalities of Mionica 815 , Novi Pazar 816 and Trgoviste 817 .Serbian Ministry of InteriorOn February 2, 2006, the Initiative submitted a request to launchinfringement procedure against Mirjana Orasanin, colonel and advisor tothe Serbian Minister of Interior 818 , as it did not allow the Initiative accessto information of public importance and did not submit a decision onrejecting the request with a written explanation and rationale on legal remedy.Namely, the Initiative sent a request to the Serbian Ministry of Interior onOctober 31, 2005 asking the submission of the following information:809 Request for starting an infringement procedure against responsible persons in the Serbian Ministry of Interiorwas submitted on February 2 nd , 2006 and available in the Initiative’s documentation810 Request for starting an infringement procedure against responsible persons in the Serbian Ministry of Justicewas submitted on May 3 rd , 2006 and available in the Initiative’s documentation811 Request for starting an infringement procedure against responsible persons in the Serbian Ministry of CapitalInvestment was submitted on June 15 th , 2006 and available in the Initiative’s documentation812 Request for starting an infringement procedure against responsible persons in the Serbian BroadcastingAgency was submitted on June 15 th , 2006 and available in the Initiative’s documentation813 Request for starting an infringement procedure against responsible persons in public company ElektroprivredaSrbije was submitted on July 20 th , 2006 and available in the Initiative’s documentation814 Request for starting an infringement procedure against responsible persons at Jat Airways was submitted onJuly 20 th , 2006 and available in the Initiative’s documentation815 Request for starting an infringement procedure against responsible persons in the municipality of Mionicawas submitted on October 24 th , 2006, available in the Initiative’s documentation816 Request for starting an infringement procedure against responsible persons in the municipality of Novi Pazarwas submitted on October 24 th , 2006, available in the Initiative’s documentation817 Request for starting an infringement procedure against responsible persons in the municipality of Trgovistewas submitted on October 24 th , 2006 and available in the Initiative’s documentation818 See above under 809149

Implementation of Transitional Laws in Serbia 2006• The number of requests sent to the Security and IntelligenceAgency for tapping certain persons during 2004 and how manypeople were tapped, and how many criminal charges were pressedto competent prosecutions at your request. 819After the deadline during which the Serbian Ministry of Interior was obligedto act following the request, and did not do it, the Initiative submitted acompliant on November 22, 2005 to the commissioner for information ofpublic importance 820 . On January 26, 2005 the commissioner for informationof public importance submitted a decision to the Initiative 821 concludingthat the complaint is grounded and ordering the Ministry of Interior tosubmit the requested information within three days. The Serbian Ministryof Interior did not do that until October this year. The city magistrate hasstill not informed the Initiative on the scheduling of the hearing followingthe submitted request for starting an infringement procedure againstMirjana Orasanin.Serbian Ministry of JusticeThe Initiative submitted the next request for starting an infringementprocedure on May 3, 2006 against Dragica Milovanovic, commissioner ofthe Serbian Ministry of Justice, as she did not allow the Initiative accessto required information of public importance and as she did not pass adecision rejecting the request with a written explanation and rationale onlegal remedy 822 . The Initiative requested the following information from thementioned public authority body:• List with addresses of all public authority bodies under thejurisdiction of the Justice Ministry, as regulated by the Law onFree Access to Information (or more precisely, by Article 3 of thisLaw.) 823819 The Initiative submitted a request for free access to information to the Serbian Ministry of Interior on October31 st , 2005 and available in the Initiative’s documentation820 Complaint to the commissioner was submitted on November 22 nd , 2005, available in the Initiative’s documentation821 The decision of the commissioner arrived to the Initiative on January 26 th , 2006 and available in the Initiative’sdocumentation822 See above under 810823 The Initiative submitted a request for free access to information to the Serbian Ministry of Justice on March24 th , 2006 and available in the Initiative’s documentation150

Implementation of Transitional Laws in Serbia 2006The city magistrate has not informed the Initiative yet on schedulingthe hearing following the submitted request for starting an infringementprocedure against Dragica Milovanovic.Serbian Ministry of Capital InvestmentsThe Initiative requested from the Ministry of Capital Investments submittalof the following pieces of information:• Did the Ministry of Capital Investments participate in some projectswhich were not carried out in the area of municipalities of Presevo,Bujanovac and Medvedja? We ask you to inform us on the amountof investments on the territories of these three municipalitiesduring 2005 and in the first quarter of 2006. 824As we encountered “administration silence” in this case again, the Initiativefiled a request for starting an infringement procedure against Minister ofCapital Investments Velimir Ilic as he did not allow access to informationof public importance to the Initiative and as he did not submit a decisionon rejection of the request with a written explanation and rationale onpublic remedy 825 . In this case, the head of the public authority body wasaccused, as the Ministry of Capital Investments has not appointed anyoneto act following requests for free access to information. The city magistratehas not informed the Initiative yet on the scheduling of hearing followingthe submitted request to start an infringement procedure against Ministerof Capital Investments Velimir Ilic.Serbian Broadcasting AgencyThe Initiative requested from the Serbian Broadcasting Agency to providethe following information:• How many requests have been filed by physical and legal personsand broadcasters that refer to work of other broadcasters to theSerbian Broadcasting Agency since its establishment to date?• How many and what kind of measures has the Serbian BroadcastingAgency undertook to broadcasters in line with the Law onBroadcasting? 826824 The Initiative submitted a request for free access to information to the Serbian Ministry of Capital Investmentson May 18 th , 2006 and available in the Initiative’s documentation825 See above under 811826 The Initiative submitted a Request for free access to information to the Serbian Broadcasting Agency onApril 11 th , 2006, it available in the Initiative’s documentation151

Implementation of Transitional Laws in Serbia 2006After encountering “administration silence” again, the Initiative submitted arequest for starting an infringement procedure against Nenad Cekic, as headof this public authority body as he failed to provide access to informationof public importance to the Initiative and as he did not submit a decisionon rejection of the request with a written explanation and rationale onlegal remedy 827 . The city magistrate has not informed the Initiative yeton the scheduling of hearing following the submitted request to start aninfringement procedure against Nenad Cekic.Public companies: power utility Elektrodistribucija Srbijeand JAT AirwaysPublic companies Elektrodistribucija Srbije and JAT Airways were requiredto give the following information:• How much do director general, members of the managing boardand members of the supervisory board make? 828As none of these two companies submitted a request to the Initiative to therequired information, requests for starting an infringement procedure weresubmitted against Vladimir Djordjevic, director general of ElektrodistribucijaSrbije 829 and Nebojsa Starcevic, director general of JAT Airways 830 . The citymagistrate has not informed the Initiative yet on the scheduling of hearingfollowing the submitted request to start an infringement procedure againstthe above-mentioned persons.Municipalities of Mionica, Trgoviste and Novi PazarOn October 24, 2005, the Initiative submitted requests for launchinginfringement procedures against president of these municipalities as theydid not allow the Initiative access to information of public importance andthey did not submit a decision on the rejection of request with a writtenexplanation and rational on legal remedy. The mentioned requests were827 See above under 812828 Both requests for free access to information were submitted to the Initiative on March 24 th , 2006 and are inthe Initiative’s documentation829 See above under 813830 See above under 814152

Implementation of Transitional Laws in Serbia 2006submitted to municipal magistrates in Vranje 831 , Mionica 832 and NoviPazar 833 . To date municipal magistrates have not informed the Initiativeyet on the scheduling of hearings following the submitted requests. Thefollowing information was requested:• Are financial funds are provided from the municipal budget tosupport religious communities? If yes, we ask you to inform uswhich religious communities are supported and in what amounts?831 See above under 816832 See above under 817833 See above under 815153

Implementation of Transitional Laws in Serbia 2006Instigating Racial, Religious and National Hatred,Discord and Intolerance“Whoever instigates or exacerbates national, racialor religious hatred or intolerance among the peoplesand ethnic communities living in Serbia shall bepunished by imprisonment of six months to fiveyears.If the criminal act specified in para. 1 hereof iscommitted by coercion, maltreatment, compromisingsecurity, exposure to derision of national, ethnic orreligious symbols, damage to other persons’ goods,desecration of monuments, memorials or graves, theoffender shall be punished by imprisonment of oneto eight years.Whoever commits the criminal act specified in para.1 and 2 hereof by abuse of position or authority, orif these offences result in riots, violence or other graveconsequences to co-existence of peoples, nationalminorities or ethnic groups living in Serbia, shall bepunished for the offence specified in para. 1 hereofby imprisonment of one to eight years, and for theoffence specified in para. 2 hereof by imprisonmentof two to ten years. 834Four Assaults on Zivota Milanovic, Brahman ofHare Krishna in JagodinaZivota Milanovic was born on August 16, 1961 in the village of Belica,15 kilometers from Jagodina, where he resides today 835 . He temporarilyresides in his uncle’s apartment in Jagodina. He is free artist and is currentlyunemployed. He is member of Hindu Vaishnava religious community since1984 836 . Today he is Brahman of Hare Krishna religious community withtwo initiations. This religious community was registered as back as at thetime of the SFRY, in the 1980s. Its center was first in Ljubljana, then in834 Criminal Code of Serbia, Article 317, see above under 611835 Report on incident in the “Zivota Milanovic case” of November 18 th , 2005, available in the Initiative’sdocumentation836 Ibid154

Implementation of Transitional Laws in Serbia 2006Zagreb, whereas today it is based in Subotica 837 . Zivota Milanovic’s religiouschoice is known to everyone in Jagodina as he was already target of seriousassaults, swears and mockery on the street. Priests of the Serbian OrthodoxChurch in Jagodina also mock his religious choice. Zivota Milanovic toldInitiative’s investigators about this: “Even the archpriest of the SerbianOrthodox Church in Jagodina spits thrice when he passes by me on thestreet” 838 .Zivota Milanovic told Initiative’s investigators that first serious problemsstarted in 2001. It was then that he started receiving telephone calls andthreats that he would be killed, that he was spreading the “Gypsy religion”and that he would be put on fire along with the house in which he lived 839 .The persons who called him then presented themselves as “Serbianknights” and “guards of the fatherland’s honor” 840 . According to him, onenight in September that year, he went out from his uncle’s apartment inJagodina to throw the garbage. Three young men waited for him in frontof the building and inflicted aggravated assaults and batteries with baseballsticks 841 . Ten days later, when he was entering his own building in Jagodina,Zivota noticed one young man behind him and another two who stood atthe end of the stairway. It was very dark in the corridor, so he could notdiscern their faces well. The young man behind him took out a knife andattacked Zivota, who got cut on his head and chest while he was tryingto enter his apartment. The mentioned person then came to him whilehe was lying at the entrance to his apartment, cut a lock of his hair andtook the box with his rosaries 842 . Soon after, Zivota called the police andreported what happened. He only got advice from the police inspector whocame on the spot “that he has to install a sensor at his entrance that wouldturn on automatically when someone gets in” 843 . During the conversationZivota Milanovic had with inspectors in the Jagodina police, the theme wasmainly the Hindu Vaishnava religious community, i.e., questions on howmany followers it has, where the center is, who is financing it, etc. 844 Theperpetrators of these criminal acts have not been found yet.837 Ibid838 Ibid839 Ibid840 Ibid841 Ibid842 Ibid843 Ibid844 Ibid155

Implementation of Transitional Laws in Serbia 2006According to Zivota Milanovic, another assault took place on July 11, 2005in Jagodina 845 . Zivota Milanovic told the Initiative’s investigator that someten meters away he noticed three young men with hoods on their headscoming toward him. As they were approaching, he noticed that one ofthem was holding a knife in his hand. He covered his head with his hand.The young man who held the knife came to him and stabbed him in thechest. Then all three of them ran, as some people from the building whoheard the screams went down and took Zivota to hospital. The knife wentbetween two ribs and did not hurt Zivota Milanovic’s lungs 846 . This casewas also reported to the police. One of the police officers who was takingthe statement commented: “Don’t go out at night, you provoke people...” 847Zivota waited for the next conversation with the police until September19, 2005. As he was asked to come to the police station, he came regularly.He described the conversation at the police station like this: “Everyonewas looking at me in a strange way, and there were police officers comingout of their offices to see who goes to room 32, where I was supposed togo. I do not know what the reason to such behavior was. Two older policeofficers interrogated me in room 32. They asked me a lot about my religiouscommunity, and often this discussion was about religious rights and thelike. Then I gave the police officers one issue of “Serbian Front” magazinepublished by some “Serbian Nationalist Association” from Jagodina, andI assume it was their members who attacked me” 848 . After that, the policedid not contact him again. Zivota first contacted a NGO in Belgrade – theLawyers’ Committee for Human Rights (hereinafter: YUKOM), whichwrote a request on July 20, 2005 to the Inspectorate General of the SerbianInterior Ministry 849 . YUKOM received a response from the InspectorateGeneral on October 19, 2005 saying: “After checkups, it was establishedthat based on the information they received from the damaged person andinformation collected during the operational work in the field, employeesof the Jagodina Secretariat did not take all measures and actions fromtheir competence to identify persons who attacked Milanovic and inflictedassaults and batteries on him, which is why the request will be consideredgrounded. However, the work on discovering and identifying John Does willcontinue, and after these persons are found and identified, measures will be845 Ibid846 Report o doctor specialist Dr Valentin Mihajlov of July 11 th , 2005, protocol no. 225, available in the Initiative’sdocumentation847 See above under 835848 Ibid849 YUKOM’s request to Inspectorate General was submitted on July 20 th , 2005156

Implementation of Transitional Laws in Serbia 2006taken against them in accordance with the law, on which Mr. Milanovic willbe informed on time”. 850 The perpetrators of this criminal act have notbeen found yet.According to Zivota Milanovic, a new incident happened on June 18,2006 851 . It was the night between Saturday and Sunday, that is, betweenJune 18 and June 19. At around 2 pm, Zivota started to open the door ofhis apartment to air it out from the smell of the lacquer for boats that heused for painting. As soon as he opened the door, he heard a thump, as ifsomeone jumped on the floor, and a person in hooded sweatshirt of darkcolor appeared in front of him. That person stabbed him in the stomachimmediately. Then he fell on the ground and somehow managed to pushthe doors of the apartment. The John Doe person who attacked him wasstrongly built, according to Zivota. Everything that he could do was to windup on the ground and wait for the next attack. The attacker then came tohim and started to cut him in the head without a word. He carved a crosson his head 852 . While lying on the ground, Zivota saw another person whostood next to the entrance door and who seemed to have stand guard. Thenboth attackers left the apartment. Zivota had two stabs in the stomach. Hishead was covered with blood. He managed to get up and call a cab. Thecabdriver was shocked with what he saw. Zivota described the quantity ofblood that he lost: “I didn’t even realize there is so much blood in one’shead” 853 .The cabdriver took him to the emergency in Jagodina, where he got stitched.The doctors called police patrol as it was their duty to do so, the police patroltook a statement from Zivota and told him he could go home. The nextday, again two police officers came to take him and took him to the policestation in Jagodina, where he gave a new statement and signed minutes.Since then, the police did not contact him any more. Zivota Milanovic saidabout the attackers: “I don’t know the people who stabbed me, but judgingby their body build, they look like the ones who stabbed me last year too.What happened to me is religiously motivated, only because I am priest850 Communication of the Serbian Interior Ministry, Inspectorate General of October 19 th , 2005, no. 12080/05,was signed by colonel Mirjana Orasanin, available in the Initiative’s documentation851 Report on the incident, case “New assault against Zivota Milanovic”, available in the Initiative’s documentation852 Photographs of Zivota Milanovic’s wounds are in the Initiative’s documentation853 Report on the incident, case “New assault against Zivota Milanovic”, available in the Initiative’s documentation157

Implementation of Transitional Laws in Serbia 2006of Hare Krishna” 854 . The perpetrators of this criminal act have not beenfound yet.On March 15 th , 2006 the Initiative submitted the first criminal report againsta John Doe 855 for execution of a criminal act of “instigating national, racialand religious discord and intolerance” 856 . To date, no information arrivedon measures that the prosecution undertook with the aim to find andsanction responsible persons. The second criminal report 857 to the DistrictPublic Prosecution in Jagodina was submitted on July 3 rd , 2006 againstJohn Doe for execution of criminal act “of instigating national, racial andreligious hatred of discord and intolerance” 858 and “aggravated assault andbattery” 859 . The District Public Prosecution in Jagodina has not broughtone indictment to date for the mentioned incidents.Under the Criminal Code of the Republic of Serbia, whoever instigatesor exacerbates national, racial or religious hatred or intolerance amongthe peoples and ethnic communities living in Serbia shall be punished byimprisonment of six months to five years 860 . If this criminal act is committedby coercion, maltreatment, compromising security or damage to otherpersons’ goods, the offender shall be punished by imprisonment of oneto eight years 861 . Instigating means creating hatred, discord and intolerancethat did not exist until then, while exacerbating assumes existence of someof these feelings and its further development and strengthening. Hatred ishostile feeling to someone and represents a psychosocial ground for creatingconflict situations and taking certain actions 862 . Although the right to freechoice of religion is protected in the above-mentioned documents, butalso in many domestic and international documents, including the Charteron Human and Minority Rights and Fundamental Freedoms of Serbia-Montenegro 863 , Constitution of the Republic of Serbia 864 , the InternationalCovenant on Civil and Political Rights 865 , the Universal Declaration of854 Ibid855 The Initiative filed the first criminal charges against a John Doe on March 15 th , 2006 and available in theInitiative’s documentation856 Criminal Code of Serbia, Article 317, item 2, see above under 611857 The Initiative submitted the second criminal charges against a John Doe on July 3 rd , 2006 and available in theInitiative’s documentation archives858 See above under 856859 Ibid., Article 121860 Ibid., Article 317, item 1861 Ibid., Article 317, item 2862 Yugoslav Criminal Law, Ljubisa Lazarevic, Savremena Administracija, 1998.863 Charter on Human and Minority Rights, see above under 36864 Constitution of the Republic of Serbia, see above under 7865 The International Covenant on Civil and Political Rights, see above under 28158

Implementation of Transitional Laws in Serbia 2006Human Rights 866 and the European Convention for Protection of HumanRights and Fundamental Freedoms 867 , the assaulters against Zivota Milanovichave not been brought to justice to date.Ethnically Motivated Violence in the Serbian ArmyAnis Masovic (21) from Prijepolje served his military service in 2005in Pozarevac, army post office 5303/4a. By what he told the Initiative’sinvestigator 868 , on May 25 th , 2005 Anis was mowing the grass in the barrackswhen one soldier threw a stone and hit him in the neck. Anis respondedto this by saying: “Why are you throwing stones, moron?” 869 According toAnis, such incidents are common in the army and he did not think thatany bigger incident might take place. Anis described the events the nextnight: “I came tired into the dormitory room, so I lay to bed right away...At around 11 pm I was awoken by a blow. When I opened my eyes, I saw ashovel nearing me. I pulled my head fast so they did not hit me in the back.Only then I saw that a group of five to seven young men was attacking mewith shovels, metal bars and fists. I tried to defend myself, but there weremore of them so I got several hits in my body. Then I started to screamand ask for help... At that moment, a light turned on and I saw the last two.I recognized them as two soldiers from my platoon, Nemanja Djuric andAleksandar Stanojevic” 870 .Damaged Anis Masovic told Initiative’s investigators that he was presentwhen two soldiers were giving statements on the incident that happened tothe soldier on call and that soldier Zeljko Bacinac said that he was contactedby some soldiers during the day (he told their names to the solider on call)and asked him whether he wanted to be involved in the beating up ofMuslims that night. Other soldier, Dusan Savic was witness of the assaultand he recognized the attackers. In a statement to Judge of the PozarevacMunicipal Court Dragan Todorovic, Anis Masovic pointed out that he wasappointed platoon commander, but the soldiers unwillingly executed thewarrants he was giving them, commenting that they do not want to beordered by a Muslim 871 .866 Adopted and proclaimed in the United Nations General Assembly’s Decision 217 (III) of December 10,1948; 48 states voted for, none voted against, while eight were restrained (including Yugoslavia)867 The European Convention for Protection of Human Rights, see above under 29868 Report on the incident – case “Anis Masovic”, available in the Initiative’s documentation869 Ibid870 Ibid871 Report from the trial of October 24 th , 2005, available in the Initiative’s documentation159

Implementation of Transitional Laws in Serbia 2006After the investigation and analysis of all circumstances of this case,the Initiative pressed criminal charges against Nemanja Djuric and sixJohn Does on August 11, 2005 to the Pozarevac Public Prosecution forinstigating national, racial and religious hatred, discord or intolerance 872and criminal acts of inflicting milder assault and battery 873 . Based on thesubmitted criminal charges, the District Public Prosecution in Pozarevacconducted investigation before the Pozarevac District Court, and theacting investigative judge was Dragan Todorovic. During the investigation,suspect Aleksandar Stanojevic gave a statement in which he said: “A groupof Muslim soldiers in our barracks was always separated, they stuck tothemselves, they often made orders to others, so some of the commanderswere afraid of them…Tension grew between Muslim and Serbian soldiers... At around 11 pm,I laid and fell asleep, I was awoken by noise, I heard someone yelling, thedoor knocking, and the light was on.I heard Anis Masovic, who was a damaged party, saying, “They beat likegirls, he stood there next to my bed without a single scratch.” Later Anisshowed me a bruise on his thigh, I think it was his right thigh, but the bruisewas rather small… In the next few days we had problems with Muslimswho were led by Muhamed Kukuljac threatening openly to everyone. Therewas no plan to attack the Muslims.” 874After the investigation, the Pozarevac district prosecution filed a requestto the Pozarevac district court to start an investigation against suspectsNemanja Djuric, Aleksandar Stanojevic and Igor Babic 875 . Magistrate at thedistrict prosecution Dragan Vukicevic interrogated suspect Nemanja Djuricwho said: “on the critical night, I was asleep, I don’t know what happened,Goran Nikolic who was sleeping in the bed under mine woke up sayingthere was some fight. I saw Anis standing by the bed and there was nobodyholding anything in their hands nor wearing anything on their head…. Ihave never been involved in “beating with blankets” 876 . Suspect Igor Babicsaid he was asleep on the critical night because he had sound sleep and hefound out later from soldiers what had happened 877 .872 Basic Criminal Code, Article 134, item 2, see above under 586873 Ibid, Article 54, item 2874 Trial report, investigations from December 21 st , 2005, available in the Initiative’s documentation875 Trial report from April 19 th , 2006, available in the Initiative’s documentation876 Trial report from May 5 th , 2006, available in the Initiative’s documentation877 Trial report from May 18 th , 2006, available in the Initiative’s documentation160

Implementation of Transitional Laws in Serbia 2006Witness Dusan Savic 878 stated at the hearing on January 17 th , 2006: “At onemoment I was awoken up by someone’s scream and I figured out at thatpoint it was the voice of Anis Masovic… Nemanja Djuric was holding inhis hands broken broom’s handle, the bigger one, and Babic was holdinga pillow… Anis was lying in his bed covered with bruises. I know thatbecause I approached first… Most bruises he had on the body, left thighand left side of the stomach but left thigh the most…. I saw under his beddismantled military spade …” 879District court judge Dragana Jevremovic ordered on February 7 th , 2006court and medical expertise in this case. The expertise was performed byDoctor Slobodan Nikolic and the report says: “According to the doctor’sreports, the following can be concluded: Anis Masovic on this criticaloccasion suffered the following injuries: haematoma in the upper third ofthe inner side of the left thigh (the diameter of haematoma was 10x8 cm),haematoma in the area of the left hip – trohanter, haematoma on the leftgroin and haematoma in the left part of the back area (the diameter of thehaematoma was 6x2 cm)… he was also diagnosed painful sensitivity in thethorax area and right thigh area… the urologist also found haematoma in areaof left scrotum.. the reports also diagnosed bruises with the injured party ina sense of head, thorax and stomach contusions….”. 880 At the end of thereport called “Opinion”, Doctor Slobodan Nikolic concludes: “Accordingto type, position, localization and other characteristics of injuries sufferedby Anis Masovic on this critical occasion, it can be concluded that all werecaused by at least four-times active blunt mechanical instruments”. 881Investigation by the Pozarevac district court is still underway. Soon after theincident, Anis Masovic was dismissed from the army because he becametemporary incapable for further military service 882 .Stoning of Roma Community in NisIn Nis on February 25 th , 2006 group of young men attacked the house wherethe Romas live in the suburb “Beograd Mahala”, on Cokotska, Vinaverska878 One of two witnesses who made statement to the officer on duty in the army barracks in Pozarevac879 Trial report from January 17 th , 2006, available in the Initiative’s documentation880 Report on forensic expertise in the file Ki 470/05-32 signed by Doctor Slobodan Nikolic is in the Initiative’sdocumentation881 Ibid882 Ibid161

Implementation of Transitional Laws in Serbia 2006and Sarajevska streets. 883 According to witnesses’ statements, at around 2am, 2.30 am, a group of seven to nine young men, shorthaired and slightlydrunk came to the Roma houses in these streets. 884 Inhabitants were wokenup by the exclamations: “Gypsies, you are asleep”, “Screw you, Gypsies,”and cheering songs such as: “We are the champions”. 885 Soon after theyoung men stoned houses in the suburb. 886 According to police report, sevenhouses were hit and windows were broken on five. 887 Three inhabitants ofthe community whose houses were stoned Bajram Dalipovic, Zaim Ramicand Abdula Sakir went in their cars to look for the attackers. 888 At the sametime, the inhabitants called the police. According to the statement givenby the young men who stoned the houses and magistrate’s decision, threeRomas came first to the attackers when they had beaten up two with fistsand metal rod. 889The police brought in four attackers, Marko Vidic, Goran Markovic andolder minors J.N. and S.P. Also, Dalipovic, Ramic, Sakir and their neighborsDanijel and Damir Kurtesevic had been called in the police station CrveniKrst first thing in the morning and were detained there for nine hours 890 . Asa reason for there detention, the police stated the attack on the young menwho caused the incident. 891 The police officers did not let detained Romasto leave the building nor take food or medicines even though two of themwere diabetes patients. 892 According to the witnesses’ statements, policeofficer Terzic, who was interrogating them, acted arrogantly and cynically,threatening them they would be prosecuted while minor-offence chargeswould be pressed against the attackers on Roma houses. 893During the police investigation, the young men who had stoned the housesdefended themselves claiming they were throwing stones on each otherand hit a few houses on that occasion and that they were beaten up by the883 All data are from reports about Initiative’s incident, police and judicial transcripts as well as decision fromoffence organ. All stated documents are available in the Initiative’s documentation884 Report on incident made by Initiative’s investigator, Initiative’s documentation885 Ibid886 Ibid887 The hearing minutes of the witness Zvonimir Mikic, police patrol commander/head, February 26 th , 2006,Initiative’s documentation888 Incident report, see above under 883889 The hearing minutes of the defendants and witnesses, Municipal Offense Body’s decision, Initiative’s documentation890 Incident report, see above under 883891 Ibid892 Ibid893 Ibid162

Implementation of Transitional Laws in Serbia 2006house-owners after that. 894 The Romas denied claims of the young menthat they had beaten up two of them 895 . Witness Marko Tripkovic, who waswalking his dog at that time, did not see how two young men were beingbeaten but he claimed he “had heard the slapping.” 896 Police had searchedRoma houses but the metal rod which was allegedly used for violence wasnot found. 897The police submitted a request to open offence procedure against sevenpersons, four young men of Serbian nationality who, due to houses’ stoning,were accused of misdemeanor, 898 noise and clamor 899 and three persons ofRoma nationality who were accused of violence. 900 All these offences areregulated by the Law on Public Peace and Order. The police have not atany point taken into consideration criminal charges against young men whostoned Roma houses for inciting racial, religious and national hatred andintolerance. 901The municipal magistrate fined 20.000 dinars each to Marko Vidic, GoranMarkovic on March 28, 2006 and older minors J.N. and S.P. 10,000 dinarseach whereas Romas Barjam Dalipovic, Zaim Ramic and Abdula Sakir werefined 15,000 dinars each. 902 Neither the demand for offence proceduresubmitted by the Nis Secretariat of Interior nor decision by the municipaldepartments for misdemeanors mentions nationalistic insults directed tocitizens of Roma nationality. 903NGO Minority Rights Center pressed criminal charges against young menwho stoned the houses for provoking religious, racial and nationalistic hate.The prosecutor’s office in Nis has not announced anything yet regardingthese charges 904 .The Youth Initiative for Human Rights issued a statement requiring fromstate authorities to start applying laws and sanctioning instigation of racial,894 The hearing minutes of the defendants and witnesses, Initiative’s documentation895 Ibid896 Ibid897 Incident’s report, see above under 883898 The Law on Public Peace and Order, Article 12, item 1899 Ibid, Article 6, Item 1900 Ibid, Article 6, Item 3901 Incident’s report, see above under 883902 Decision, No 15-2460/06, Initiative’s documentation903 Decision from The Municipal Offense Body, demand for instituting offence procedure, Initiative’s documentation904 Incident’s report, see above under 883, Minority Rights Center’s website: http://www.mrc.org.yu/?id_tekst=35&sta=saopstenja, visited on November 21 st , 2006163

Implementation of Transitional Laws in Serbia 2006religious and nationalistic hatred in order to prevent these incidents in thefuture. 905 Instead of response, spokesperson of the Secretariat of Interiorin Nis, Lidija Pavlovic in a statement with NARODNE NOVINE, pointedout that incident was not performed by skinheads as police found out norwas it motivated by racial or religious intolerance. 906 On that occasion, sheadded: “To be sure about this, and also to prevent potential guessing andspeculations in the media and among various non-governmental and otherorganizations, we have taken all necessary measures to check whether thesefour young men of Serbian nationality belong to any group.” 907905 Press release on the incident in Beograd Mahala, March 20, 2006, Initiative’s documents906 Drunk young men stoned houses in Sarajevska, NARODNE NOVINE, February 28 th , 2006907 Ibid164

Implementation of Transitional Laws in Serbia 2006Right to RehabilitationThis law regulates rehabilitation of persons who were killed, imprisoned or deprived ofsome other rights for political or ideological reasons through a court or administrativedecision starting from April 6, 1941 to the day of coming into force of this law andhad the residence on the territory of the Republic of Serbia. 908Rehabilitation of Senad SljivoSenad Sljivo was employed in the Serbian Ministry of Interior from February1, 1986 to April 2, 1999. 909 All the time he had worked in the Secretariat ofInterior in Jagodina except for the period from June 1990 to 1993 when heworked in the Secretariat of Interior in Cuprija 910 . His engagement in thepolice started on June 1, 1980 when he got employed in the police stationin Foca in Bosnia-Herzegovina and later he was transferred to Serbia. 911He spent around twenty years in the police and he has never made a singeoffence, infringement of discipline or any other 912 .During the 1990s, as a member of the Serbian Ministry of Interior, heoften went to Kosovo – to Kosovska Vitina, Kosovska Kamenica, Prizren,Djakovica and the last time he was in Kosovo was in 1995 913 . According tothe statement given to the Initiative’s investigators, Senad Sljivo witnessed,during his stay in Kosovo, many violations of the service rules and variouscriminal acts committed by his fellow police officers against citizens ofAlbanian nationality 914 in Kosovo. All those cases, bearing in mind that a lotof members of his family were killed during the war in Bosnia-Herzegovina,that his three houses were burnt down and his health was poor, led him todecide not to the battlefield, not to Kosovo nor anywhere else 915 .Sljivo Senad spent two summer months of 1998 having hospital treatmentand operation in Health Center in Cuprija 916 . Still, he came back to duty in908 Law on rehabilitation, Article 1, see above under 736909 Incident’s report – case “Sljivo Senad”, February 8 th , 2006, available in the Initiative’s documentation910 Ibid911 Ibid912 Conviction of The Jagodina Municipal Court No 497/01 from May 14 th , 2001, available in the Initiative’sdocumentation913 Decision from The State Secretariat of Interior on Sljivo Senad’s sending to Vitina and Kosovska Kamenica,numbers 112-1596/90 from April 25 th , 1990 and 112-1596/90 from January24 th , 1992, available in the Initiative’sdocumentation914 See above under 909915 Ibid916 Release form with medical explanation from the Cuprija Health Center number 772, signed by doctor Balov165

Implementation of Transitional Laws in Serbia 2006the Secretariat of Interior in Jagodina. Urologist in Health Center in Cuprijasaid that Senad could not perform activities related to long standing onfeet, work in more difficult conditions or any other manual work 917 . Eventhough urologist Doctor Milan Balov advised him to go on sick leave, hedid not want to due to the lack of crew in Secretariat of Interior in Jagodina918. Three months after the surgery his illness reappeared 919 .On January 13, 1999, although he was not on sick leave, Senad wassent to medical commission of the Interior Ministry which ascertainedthe illness and diagnosed it in the same way as the doctor from HealthCenter Cuprija 920 . They told him he had to go on sick leave for he also hadinflammation of the right testicle which was operated on. It is said in theevaluation of Senad Sljivo’s working ability that: “Evaluation of his previoustemporary incapability is justified” 921 . Vascular surgeon also established thatmentioned illness was present and on the right leg below the shank therewas life-threatening thrombus. He advised surgical intervention on thethrombus 922 .During the 1990s, the Serbian Ministry of Interior formed a Special PoliceUnit whose member was Senad Sljivo. It was the unit Sljivo went with tothe mentioned fields 923 . In 1998 he was again put on the list of this SpecialUnit which was about to go to Kosovo 924 . Due to the mentioned reasons,Sljivo refused to go on this field. Nor his colleagues wanted to go with himbecause they spread a rumor he would, as a Muslim, slaughter them in theirsleep 925 . According to Senad Sljivo’s statement, Toplica Jovanovic, at thattime police officer in Secretariat of Interior in Jagodina told Senad thatSredoje Lukic 926 was looking for him because he wanted to chop off hishead him and play football with it. Even some older fellow police officers,who were on good terms with him, told him not to go on the field becausehe would be killed by the police officers who did not trust him 927 .Milan from August 6 th , 2006, is available in the Initiative’s documentation917 Sljivo Senad’s complete medical records are available in the Initiative’s documentation918 See above under 909919 See above under 917920 Ibid921 Evaluation of Sljivo Senad’s working capability, provided by The Health Care Institute for employees in TheMinistry of the Interior in Belgrade, 9 Durmitorska Street, number 82/99 from January 13 th , 1999, is availablein the Initiative’s documentation922 See above under 917923 See above under 909924 Ibid925 Ibid926 Sredoje Lukic is accused by the Hague tribunal of persecutions, murder, inhuman and cruel treatment andextermination of the Bosnian Muslims. He surrendered to the Hague tribunal on September 14 th , 2005927 See above under 909166

Implementation of Transitional Laws in Serbia 2006When NATO bombing started in 1999, Sljivo Senad wanted to go on sickleave because his medical condition again got complicated. Doctors oncemore recommended a surgery 928 . Then he was called up again for Kosovo. 929The bombing started on March 24 and on the same day at 10 pm, assistantcommander Radisavljevic Rale came to Senad’s house and informed himto report to the police station in Jagodina in the morning 930 . Senad didthat but he also informed authorities he did not want to go for he hadto be operated on and he did not to be involved in activities performedon the field by Serbian Interior Ministry 931 . Another reason was his wife’sdeteriorated health. Senad and Radmila Sljivo have two underage children(Elvira and Sabina), who were also in bad medical condition 932 . Head ofthe police department in Jagodina, Zika Trifunovic, told him at that pointpolice officers could not go on sick leave as they could be shot dead on thespot 933 .There were eight notorious police officers in the Special Unit and Senadwas the ninth even although he had never made any troubles 934 . That unitleft for Kosovo that very day and Senad was sent a message they would seehow he would be treated. Some of the commanders said he should not goto Kosovo because, as Muslim, he would ruin the unit’s self-confidence 935 .After six days, police came to his house again and took him to the policestation in Jagodina 936 . He was there met by Dragan Scekic, labor relation juristin Secretariat of Interior in Jagodina and Commander Dejan Stankovic 937 .He was told he had to sign termination of his employment contract or theywould press criminal charges against him in front of military court becausehe did not respond and he evaded military service 938 . Senad Sljivo turned tomany people for help and talked about injustice which was about to happenbut nobody wanted to help him 939 . He was blackmailed by pressing criminalcharges and then forced to sign termination of the contract after 20 yearshe spent in the police service 940 . The mentioned decision shows that Senad928 Ibid929 Ibid930 Ibid931 Ibid932 Medical condition and treatment records of Radmila Sljivo and their daughters Elvira and Sabina are availablein the Initiative’s documentation933 See above under 909934 Ibid935 Ibid936 Ibid937 Ibid938 Ibid939 Ibid940 The decision of the Ministry of Interior, Jagodina Secretariat number 118-7/99, on Sljivo Senad’s labor167

Implementation of Transitional Laws in Serbia 2006Sljivo’s employment stopped on April 2 nd , 1999 because he declared inwritten form he wanted to terminate his employment contract 941 .Soon after, on May 19 th , 1999, eight military policemen came looking forSljivo Senad in his apartment in Jagodina 942 . The whole family was in thebasement because of the bombing. With the use of force on him and hisfamily (his wife was hit with rifle-stock), he was arrested and first taken tothe barracks in Cuprija and then to the Military Court in Kragujevac 943 .According to the Sljivo Senad’s statement given to the investigators of theInitiative while he was in the barracks in Cuprija, military policemen used tosay to him: “Now we are going to fuck you up, to shoot you, to show you whatSerbia is” 944 . All the time he had a gun pointed at his head. He was not givensummons for interrogation or anything similar and in the Military Courtin Kragujevac he was read minutes from the hearing he never attended 945 .He then found out that the Ministry of Interior, Secretariat in Jagodina,on March 26 th , 1999 pressed charges against him due to alleged groundeddoubt he committed criminal act of not responding to the summons andby evading military service 946 . These charges were pressed to the MunicipalPublic Prosecutor in Jagodina that forwarded it to the Military Prosecutorin the county of Kragujevac 947 .After that, the Military Prosecutor’s Office in Kragujevac district pressedcharges against Sljivo Senad due to criminal act of not responding to thesummons and of evading military service 948 . After the interrogation in theMilitary Court he was said to have been temporarily released home. SljivoSenad’s family went to Montenegro soon after 949 . They spent there onemonth and then left for Bosnia. After spending two months in Bosnia,Sljivo Senad’s family returned to Jagodina and he got back in 2000 950 . Hereceived a decision that investigation against him had been terminated forthe criminal offence on evading military service and not responding to thecontract termination941 Ibid942 See above under 909943 Ibid944 Ibid945 Ibid946 Criminal charges pressed by The Ministry of the Interior – Jagodina Secretariat against Sljivo Senad onMarch 26 th , 1999947 Official letter sent by the Public Municipal Prosecutor in Jagodina to the Military Prosecutor in the countyof Kragujevac from April 2 nd , 1999948 Charges pressed by the Military Prosecutor in the county of Kragujevac to the Military Court in Kragujevac949 See above under 909950 Ibid168

Implementation of Transitional Laws in Serbia 2006call-up 951 . The military prosecutor thereby determined Sljivo Senad did notcommit the criminal offence he was accused of. Milorad Jerotijevic, also thepolice officer in the Secretariat of Interior in Jagodina, told Senad Sljivothere were many more police officers who had refused to go to Kosovo butnobody except him received criminal charges or was blackmailed to signlabor contract termination. All of them are still employed in Secretariat ofInterior in Jagodina 952 .The Law on Rehabilitation 953 came into force in April 2006 and soon after,at the end of May, the Initiative filed request for rehabilitation of SenadSljivo 954 in the District Court in Jagodina. This law regulates rehabilitationof those who were deprived of life, freedom or some other rights, withor without court or administrative decision out of political or ideologicalreasons, starting from April 6 th , 1941 till the day when this law came intoforce 955 . The person is also required to have the residence on the territoryof the Republic of Serbia 956 . By this request, the Initiative asked from theDistrict Court in Jagodina to rule out the decision on the termination ofemployment contract and all its consequences and to put him back onduties he had performed in the Serbian Ministry of Interior before forcedtermination of his employment contract 957 . Also, the Initiative requested topublish Sljivo Senad’s name and details about him as rehabilitated person 958in the Official Gazette of the Republic of Serbia. Since the District Courthas not passed any feedback on this request’s status, the Initiative calledthe District Court in the middle of October and received the followinginformation: case number is REH 2/06 and proceedings judge is SvetlanaJeremic 959 . Soon after that conversation, the Initiative received officialsummons for the main hearing on Senad Sljivo’s rehabilitation scheduledfor December 28 th , 2006. 960 .951 Military Prosecutor’s statement on dropped charges against Sljivo Senad and decision of the Military Courtin Belgrade on investigating procedure suspension952 See above under 909953 Law on rehabilitation, see above under 736954 Demand for Sljivo Senad’s rehabilitation filed by Initiative on May 22 nd , 2006 and it was one of the firstrehabilitation demands filed to the courts in Serbia955 Ibid, Article 1956 Ibid957 Sljivo Senad’s rehabilitation demand, filed by Initiative on May 22 nd , 2006, is available in the Initiative’sdocumentation958 Ibid959 Report on phone call made by Initiative’s investigator and judge Svetlana Jeremic is in Initiative’s documentation960 Call up for the main hearing in the Jagodina District Court is in the Initiative’s documentation169

Implementation of Transitional Laws in Serbia 2006Hate Speech“It is forbidden to publish ideas, information and opinions that incite discrimination,hatred or violence against an individual or a group of individuals on grounds of theirrace, religion, nationality, ethnicity, gender or their sexual inclination” 961“Person who is as member of group personally regarded bythe information from Article 38 hereof has the right tobring charges against the author of the information andeditor-in-chief of the public media outlet where the information has beenpublished and person can demand a ban on its republishing and publishingof the ruling at defendants’ expenses.Charges can be pressed against author and editor-in-chief by any legal entitywhose aim is to protect freedoms and rights of man and citizen as well theorganization whose aim is protect interests of groups from Article 38 hereof. If theinformation from Article 38 hereof personally refers toa certain person, legal entity or organization from para. 2 hereofcan press charges only with consent of person information refers to.In the proceedings following charges specified in para. 1 to 3 hereof, legal provisions ofthe law regulating litigation are accordingly applied” 962Hate Speech in Glas JavnostiGlas Javnosti is a Serbian daily founded by Radisav Rodic 963 . The issue datedMarch 16 th , 2006 published an announcement under the title “boycott”saying:“Fellow Serbs!We invite you to rally on March 17, 2006 at 10.30 am in front of mallIMMO in New Belgrade in block 64 and express our discontent due to theopening of a Croatian store called IDEA. Whereas we are exiled from ourancestral homes all over Croatia and enabled to return, the Croatian foot iswalking down Serbian land freely, buying companies and opening stores allover Serbia.When will they stop?961 The Law on Public Information, Article 38, see above under 1962 Ibid, Article 39963 See the web site of Glas Javnosti: http://www.glas-javnosti.co.yu/redakcija/srpski/redakcija.shtml, visitedon November 21 st , 2006170

Implementation of Transitional Laws in Serbia 2006Fellow Serbs, we invite you to make a mass gathering and prevent theopening of the Croatian store in Belgrade and boycott shopping in theirstores. Every purchase in IDEA is a donation to those who killed us andevicted us from our homes. We will monitor those who purchase in thisstore and refuse to express solidarity with the hundreds of thousands ofrefugees and persecuted Serbs.STOP to Croatian occupation of Serbia!Persecuted Serbs” 964The Law on Public Information forbids proclamation of ideas, informationand opinions encouraging discrimination, hatred or violence against personor group of persons due to affiliation to certain race, religion, nationality,ethnic group 965 . Persons affected directly by the hate speech, as membersof certain group and legal persons in charge of protecting freedoms andhuman rights and above mentioned groups, have the right to be protectedin court in cases when hate speech appears in the media 966 . The charges dueto “hate speech” are pressed against author of the information and editorin the media outlet where the information was published. Determination ifthere is a hate speech, bans on republishing and publishing of the verdictat defendant’s expenses can be demanded by the charges 967 . The Lawenvisions the principles for potential release from any responsibility whichmay occur if the information is a part of scientific or newspaper article andwas published without intention to incite discrimination, hatred or violenceagainst person or group of persons mentioned above, especially if theinformation is part of unbiased journalist investigation 968 .Among international standards sanctioning hate speech there isRecommendation of the Committee of Ministers of the Council ofEurope No. R (97) 20 969 , which states that the term hate speech coversall forms of expression which spread, incite, promote or justify racialhatred, xenophobia, anti-Semitism or other forms of hatred based onintolerance, including intolerance expressed by aggressive nationalism andethnocentrism, discrimination and hostility against minorities, migrants964 Original page of the daily paper GLAS JAVNOSTI where announcement headlined Boycott was published onMarch 17 th , 2006, is the Initiative’s documentation965 Law on public information, Article 38, see above under 1966 Ibid967 Ibid968 Ibid, Article 40969 Recommendation of the Committee of Ministers of the Council of Europe No. R (97) 20 was adopted onOctober 30 th , 1997, it can be downloaded from the web site:http://www.mediacenter.org.yu/upload/pravo_doc/Preporuka%20R%20_97_%2020.pdf#search=%22Preporuka%20Komiteta%20ministara%20Saveta%20Evrope%20br.%20R(97)20%22, visited on November 25 th , 2006171

Implementation of Transitional Laws in Serbia 2006and people of immigrant origin 970 . The same document recommendsthat national law and practice in the area of hate speech should take dueaccount of the role of the media in communicating information and ideaswhich expose, analyze and explain specific instances of hate speech andthe underlying phenomenon in general as well as the right of the public toreceive such information and ideas. To this end, national law and practiceshould distinguish clearly between the responsibility of the author ofexpressions of hate speech on the one hand and any responsibility of themedia and media professionals contributing to their dissemination as partof their mission to communicate information and ideas on matters ofpublic interest on the other hand. 971Using, among other things, above mentioned legal arguments the Initiativefiled charges for determination of hate speech to the First Municipal Courtin Belgrade 972 regarding this article for hate speech in terms of internationaland domestic standards and undoubted consequences of its publicationare spreading, inciting, encouraging, justifying national hatred, xenophobiaand intolerance. The charges were pressed against Ivan Corbic who was, atthat time, editor-in-chief 973 . With the charges, the Initiative demanded fromthe First Municipal Court in Belgrade to reach the ruling determining thatthe mentioned article represents hate speech, to remove article in questionfrom this daily paper’s website 974 , to ban its publishing or any similar articlein the future, to publish the ruling in GLAS JAVNOSTI in whole andwithout any comments and to pay out the prosecutor for the expenses oflegal proceedings.In response to the charges, defendants’ lawyer Aleksandra Glogonjacdisputed complaint and demand in whole 975 . It reply to the complaint it isstated: “The mentioned announcement enabled use of rights guaranteedby fundamental state laws and exiled Serbs publicly expressed their opiniontowards the state which violated their human and civil rights and expressedextreme intolerance, xenophobia, discrimination and hostility and exiledthem from their homes 976 …. Facts that Croats walk freely on Serbian land970 Ibid, Recommendation Annex, Implementation Field part971 Ibid, principle 6972 Complaint for hate speech determination was filed to the First Municipal Court in Belgrade on April 7 th , 2006and it is available in the Initiative’s documentation973 Ibid974 Disputable article is on the web site: http://www.kurir-info.co.yu/Arhiva/2006/april/13/SP-06-13042006.shtml, visited on November 21 st , 2006975 Reply to the complaint was filed on June 2 nd , 2006 and its copy is in the Initiative’s documents976 Ibid, page 1172

Implementation of Transitional Laws in Serbia 2006are indisputable and there is no advocacy of hate or discrimination for thatmatter but on a contrary they aim at reciprocity establishment and makingit equally possible for Serbs to walk freely on Croatian ground 977 .The First Municipal Court in Belgrade scheduled the first hearing on thismatter for June 6 th , 2006 and proceeding judge was Aleksandra Culin-Vujic 978 . At the hearing, both the prosecutor and defendant retained theiropinions and the next hearing was scheduled for July 10 th , 2006 979 . At thathearing, the court agreed to question Ivan Corbic on the next main hearing,scheduled for October 26 th , 2006 980 . Therefore, the legal proceeding for thiscase is ongoing.Hate speech of MP Zoran KrasicSerbian Radical Party MP, Zoran Krasic, stated during a parliamentdebate on June 6 th , 2006 that Ivana Dulic-Markovic, who was at that timeMinister of Agriculture, “an example of how Ustashas are dragged intothe government” 981 . He added that “close relatives of the lady in questionbragged how they took part in the Croatian Statehood War and madeconsiderable contribution. Make some inquiries what are their trails like”,Krasic pointed out 982 . Minister Dulic-Markovic exclusively chooses herassociates among “her Ustashas” 983 . This case of open hate speech towardsthe citizen whose only “sin” is her Croatian nationality provoked numerousreactions in the public 984 . Among others, party G17 Plus, the member ofwhich is the mentioned minister, requested a ban on the work of the SerbianRadical Party 985 . Other ruling parties only condemned it verbally.The Youth Initiative for Human Rights also pressed charges against MPKrasic quoting Article 317 of the Serbian Criminal Code 986 . This articleregulates offence in terms of provoking or encouraging national, racial or977 Ibid, page 1978 Call up for the main hearing, number p 3236/06 is in the Initiative’s documents979 See trial report in the case GLAS JAVNOSTI from June 6 th , 2006, available the Initiative’s documentation980 See trial report in the case GLAS JAVNOSTI from July 7 th , 2006, available the Initiative’s documents981 Radical Party hate speech again, B92, June 6 th , 2006, B92 web site: http://www.b92.net/info/vesti/u_fokusu.php?id=26&start=105&nav_id=200171, visited on November 25 th , 2006982 Ibid983 Ibid984 Ibid985 Petition for Radical Party abolishment, B92, June 10 th , 2006, B92 web site:http://www.b92.net/info/vesti/u_fokusu.php?id=26&start=105&nav_id=200679 ,visited on November 25 th ,2006986 Criminal charges against Zoran Krasic, June 8 th , 2006, Initiative’s documentation173

Implementation of Transitional Laws in Serbia 2006religious hatred and intolerance 987 . A sentence of six months to five yearsin prison is set for this offence 988 . The stated offence exists for a long timein internal legislation but its practical implementation is very limited 989 .Moreover, even when on rare occasions prosecutions initiated such cases,most of them were the cases of national minorities, and not of the majoritypeople. 990 .Apart from the domestic legislation, prohibition of hate provoking isregulated by international documents. International Covenant on Civil andPolitical Rights in its Article 20, para. 2 states:“Any advocacy of national, racial or religious hatred that constitutesincitement to discrimination, hostility or violence shall be prohibited bylaw 991 ”The Socialist Federal Republic of Yugoslavia signed this covenant, ratifiedand published it in the Official Gazette of the SFRY (International treaties)No. 7 from 1971. 992Although this criminal act is prosecuted in the line of duty, the DistrictProsecutor’s Office did not react. That kind of reaction came from FirstMunicipal Prosecutor’s Office which, after investigating actions, cededthe case to the District Prosecutor’s Office so the offence of initiatingracial, religious and national hate could be processed 993 . However, DistrictProsecutor’s Office concluded there was no enough evidence for thatoffence 994 .987 The Criminal Code, Article 317, see above under 611988 Ibid989 See Initiative’s reports on Implementation of the Transition Laws in Serbia for years 2005 and 2006990 Ibid991 International Covenant on Civil and Political Rights, see above under 28992 Ibid993 B92 web site: http://www.b92.net/info/vesti/u_fokusu.php?id=26&start=75&nav_id=202100, visited onNovember 25 th , 2006994 Official Letter from The District Attorney’s Office in Belgrade, dated August 28, number Kt. 1690/06 isavailable the Initiative’s documentation174

Implementation of Transitional Laws in Serbia 2006Hate speech in KurirKURIR is a Serbian daily founded by Vukadin Rodic 995 .The issue from April13, 2006 brings an article titled “Even Shiptars Mock at Us” saying:Pristina team supporters on their last match showed a slogan in Englishsaying “Serbia Like Nokia – Getting Smaller Day by Day”. The joke whichwas being retold among Serbs finally reached Shiptars after a few monthswhich prove the fact they would make better progress if they had guardianin Serbia. Reaction, of 15,000 supporters on the match of the “Kosovochampionship” between Pristina and Besa which ended without goals, wasalso interesting. Only one hundred observers got the joke in English andthe reaction of the stadium was waited for about ten minutes so the lastShiptar with his while little cap perceived connection between technologicalevolution of the Finnish product and Serbian problem with territory. Resultwould be definitely better if the “copycat” of the Serbian joke wrote it inAlbanian so those few who knew English would be spared from so muchtranslating. Literate or illiterate, only yesterday they discovered soap, andthey ate lemon with peel, today they have an opportunity to ridicule at theexpense of Serbian incapability. We deserved no better.” 996In quoted article, special attention should be given to these lines: “Albanianswould make better progress if they still had a guardian in Belgrade”, then,“Only one hundred observers got the joke in English so the reaction ofthe stadium was waited for about ten minutes so the last Shiptar with hiswhile little cap perceived connection between technological evolution ofthe Finnish product and the Serbian problem with territory” and “theyseem to have only now become acquainted with the use of soap, whileuntil just recently they used to stick their teeth in unpeeled lemon, whereastoday they’ve been given the chance to mock the incapability of Serbs”.According to international and internal standards 997 expressions hate speechrepresents all ways of expressing which spread, encourage and initiate orjustify racial hate, xenophobia, anti-Semitism or other forms of hatred basedon intolerance, including the intolerance expressed through aggressivenationalism and ethnocentrism, discrimination and hostility towards995 See Kurir’s web site: http://www.kurir-info.co.yu/Redakcija/redakcija.shtml, visited on November 25 th ,2006996 Original article in question is available in the Initiative’s documentation997 See above in the section case “Hate-speech in Glas Javnosti”175

Implementation of Transitional Laws in Serbia 2006minorities, migrants and people of immigrant origin 998 . The Law on PublicInformation forbids publishing of ideas, information and opinions initiatingdiscrimination, hatred, violence against person or group of persons due totheir race, nationality or ethnic group 999 . Besides, insulting term “Shiptar” isused throughout the text when it refers to ethnic Albanians from Kosovo.The Initiative pressed charges on May 12 th , 2006 for determination of hatespeech to the First Municipal Court in Belgrade where Antonije Kovacevic,KURIR’s editor-in-chief, was charged 1000 . Complaint demanded formthe First Municipal Court in Belgrade to reach the ruling saying that thementioned article represented hate speech, to remove disputable articlefrom this daily paper’s internet site, to ban its publishing or publishing ofany other similar texts in the future, to publish the ruling in KURIR, inwhole and without comments and to pay with solidarity to the prosecutorfor the expenses of legal proceedings.The accused disputed the entire demand in his reply to the complaint 1001 .Among other things, following argument had been used in his reply to thecomplaint: “The article published in daily paper KURIR on March 16 th ,2006 on the page 23 does not at all represent hate speech… Comment onthe banner in English shown by Pristina supporters – Serbia like Nokia,getting smaller day by day – might possibly represent hate speech fromPristina supporters towards Serbian and Serbian people” 1002 . Then thefollowing: “in the last hundred years when Serbian people was eliminatedin acceptable and unacceptable way, exiled, turned into national minority(with the position similar to American Indians) in Kosovo, there is no legalground for protection of those who did it” 1003 .The first hearing 1004 before the First Municipal Court in Belgrade was held onJune 14 th , 2006. and proceeding judge was Vesna Lazarevic. Prosecutor anddefendant stated the same as in the complaint and reply to the complaint 1005 .Next main hearing was held on July 17 th , 2006 and defendant was not998 Recommendation of the Committee of Ministers of the Council of Europe No. R (97) 20 was adopted onOctober 30 th , 1997, See above under 969999 The Law on Public Information, Article 38, see above under 11000 See Kurir’s we site: http://www.kurir-info.co.yu/Redakcija/redakcija.shtml, visited on November 25 th ,20061001 Reply to the complaint arrived in Initiative on May 29 th , 2006 and is available in the Initiative’s documentation1002 Ibid, page 11003 Ibid, page 21004 Case court number XV – P.No. 4172/061005 Trial report of the case KURIR dated June 14 th , 2006 is available in the Initiative’s documentation176

Implementation of Transitional Laws in Serbia 2006present so the main hearing was postponed for October 6 th , 2006. 1006 . Inthe main hearing held on October 6 th , 2006. defendant Antonije Kovacevicsaid that he was ashamed he had to meet such accusations in Serbia and thatthe only insulting thing in the whole article is the very picture showing thebanner insulting for Serbia and its territorial integrity which is protected bythe Constitution so he considers article for defense and reply to the photowith the banner 1007 .On October 6 th , Judge Vesna Lazarevic of the First Municipal Court inBelgrade threw out the charges pressed by the Initiative for hate speechagainst KURIR 1008 . Judge Lazarevic explained in the rationale of the courtruling that citations from the article are not sufficient for inciting hatred,although they are “questionable”, 1009 according to her. The judge pointedout in her verdict that the use of the word “Shiptar” is not offensive, noris offensive an assumption that one whole people can speak English 1010 .According to her, offenses against Albanians are not cases of hate speechas “hate is a strong feeling of hostility that can cause extremely negativereactions …” 1011 .The judge characterized the words saying that Albanians “…are in positionto mock Serbian incapability. That’s what we deserve” as “an expression ofdeep worry because of difficult political situation, which is the idea of thetext. 1012 ” The judiciary’s reactions to hate speech in the media are illustratedby the following citations from the court ruling:“The disputed article needs to be seen in connection with current politicalevents in Kosovo-Metohija, as it was this background that led to a text ofsuch content and consequently a harsh reaction of the press, and which isstill shown in the uncertain destiny of the Serbian southern province, thereporting to the public for years on ghettoization and difficult conditions inwhich the Serbian people in Kosovo-Metohija live, with constant reportingof the media on violence, even with lethal consequences exercised againstfew Serbs who continued to live in Kosovo. Also, historical importance of1006 Trial report of the case KURIR dated July 17 th , 2006 is available in the Initiative’s documentation archives1007 Trial report of the case KURIR dated October 6 th , 2006 is available in the Initiative’s documentation archives1008 The court ruling following the charges of the Initiative against daily KURIR was passed on October 6 th ,2006 and is in the Initiative’s documentation1009 Ibid1010 Ibid1011 Ibid1012 Ibid177

Implementation of Transitional Laws in Serbia 2006Kosovo in the collective conscience of Serbian society must not be neglectedeither as it is related to the memory of numerous and large victims who fellfor this part of Serbia. 1013 ”Police Torture“No one shall be subjected to torture or to inhuman or degrading treatment orpunishment” 1014“Police duties are performed in accordance wit para. 1 hereof during which policeobey international standards of police treatment especially demands regulated byinternational acts referring to: duty to serve people; to abide law and sanction illegalactions; the exercise of human rights; non-discrimination in police work; limit andrestraint when using means of coercion and; prohibition of torture and implementationof inhuman and humiliating procedures; helping the victims; obligation to refuse illegalorders and resistance to bribe and corruption” 1015Severe Police Torture of Citizens in SuboticaMarinko Vranjas (28) and Erne Ceh (28) are citizens of Subotica. Accordingto the statement given to the investigators of Initiative, Marinko Vranjasreceived summons on March 30 th , 2006 to report to the police station inSubotica for an interview 1016 . Since he responded straight away, he wastaken to room 64 where he was met by the inspector Obrenic and askedto tell everything about the case when his friend Erne Ceh had beaten upVujkovic Anton, who was also from Subotica 1017 .This is how Marinko Vranjas described the event in the police station inSubotica: “I told him I did not know if my friend had beaten up anyone.Then he stated one day, Saturday and asked from me to tell him where Iwas and what I had been doing. I told him I had taken a car that night andgone out. I mentioned three places we went to and that later I went home.1013 Ibid1014 The European Convention for Human Rights, see above under 291015 The Law on Police (The Official Gazette of the Republic of Serbia No. 101/2005) adopted on November14 th , 2005 entry into force on November 29 th , 2005, Article 121016 Incident’s report – case “Severe police torture in Subotica” on September 28 th , 2006 is available in theInitiative’s documentation1017 Ibid178

Implementation of Transitional Laws in Serbia 2006He banged his fist on the table I said: “You have no right here whatsoever,I’ll call a lawyer when I want to and you will talk what I demand”. I replied:“That’s what happened, sir”. Then, inspector Tomislav Lendvai, entered theroom. I knew him by sight, from 2000 when I was in the Resistance. He satnext to me and again started to question me. I asked if I was accused and ifI had a right to call lawyer but he responded “You are not accused but youdon’t have the right to call lawyer”. Tomislav Lendvai approached to myface and said: “Let’s get things straight, you are not accused, nor guilty, youare eye-witness. We will press charges against you but now you have twooptions, so choose: either tell us what you friend did or I will beat you up”.I asked him what would happen when I decided and he replied: “Dependson your decision”. I told him I would not speak against my friend becausehe had not done it. He replied: “You will spend so much time in courtso you will not be able to pay for lawyer, do you understand”. I replied Iunderstood and he got mad. He jumped all over me and yelled: “What doyou understand, you pussy”. He grabbed my jacket, pulled me from mychair, threw me down and dragged me on the carpet to the corner. Fearcaused asthma attack because I suffer from chronic asthma and I pulled theinhaler from my pocket. He stepped on my arm and at that moment, otherpolice officer who was there, Obrenic, told him “Tomo, let him go, don’tmess around”. Lendvai then told: “Come on, take it to make you feel betterbut there were people here in worse condition than you”. The he lifted meup, my jacket was torn in two places. During the interrogation, he hit meon my head once or twice, which is what I remember” 1018 . Marinko alsomentioned that inspector Tomislav Lendvai told him in the end to give amessage to Erne to report to him that day 1019 .After he had informed Erne he should report to the police, Marinko went tothe doctor’s and took written confirmation on injuries 1020 . Next day he wentto the Municipal Prosecutor’s Office in Subotica and told to the prosecutorMiroslav Krkelic what had happened, his reply being: “The fact he hit youis not strong enough to make us take any actions” 1021 .According to the statement given by Erne Ceh to the investigators ofInitiative, Erne immediately went to the police station and reported to the1018 Ibid1019 Ibid1020 Entire medical records of Marinko Vranjas, available in Initiative1021 See above under 1016179

Implementation of Transitional Laws in Serbia 2006inspector Tomislav Lendvai 1022 . Regarding the events from the police stationin Subotica, Erne Ceh says: “Tomislav Lendvai physically and mentallymaltreated me. He pulled my hair, slapped me on the face and was worse itwas happening in front of a lawyer on duty. He asked me to give him oralpleasure and my reply was I was not homosexual but heterosexual and Iwould gladly pay to someone to please him orally. Hearing that he snapped,pulled my hair, dragged me on the floor and took me to a third officewhere he probably wanted to attack me physically. However, some thirdinspector, Ljubisa Jovanovic, rushed in, pushed him away and said: “Tomo,it’s not right, stop it that was enough”. Tomislav Lendvai was telling me mycorpse would float in the Sava or the Danube, my trainers would hang onsome post, he would sit at the table in a café and there would be two, threepeople next to me, he would be leaned against his elbows, his arms underhis chin and he would watch me being beaten and maltreated and I wouldnot be able to defend myself as he was an inspector and so on. I was askedto admit something I was not part of ” 1023Erne Ceh claimed that police inspector Tomislav Lendvai with a group ofthree attackers wearing phantom mask 1024 assaulted him two more times.Statement he gave to the investigator of the Initiative on the first assault says:“Next thing that happens is Friday on Saturday night, between September8 and 9. In the street Strosmajer I was ran by Zastava 101 car maybe evenZastava 128, I can’t remember exactly. It was happening on the pedestriancrossing. Car was followed by Golf 4, perhaps dark blue or metallic grey;I can’t remember the color for it was dark. Inspector Tomislav Lendvaistepped out of the car and three guys stepped out of Zastava 101. Theywere wearing masks made unprofessionally. Those masks only had eye holesas if some put sock on the face. Then they clubbed me on my head and Ilost consciousness. The next thing I remember I was thrown from the carin front of a building. Tomislav Lendvai and his men wore civilian clothes.I can’t remember whether those clubs were batons something else. I hadwounds on my head and they are still noticeable. I woke up two days afterthat…. Inspector Tomislav Lendvai told them: `Kick his head, that will dofor now`. He has just said that and stood there watching. It means the mandid not touch me once” 1025 .1022 Ibid1023 Ibid1024 Phantom mask is an expression for mask which is pulled over head with eye-holes only1025 See above under 1016180

Implementation of Transitional Laws in Serbia 2006On the other assault, he reported following: “When I went to town nexttime, it was between September 14 and 15, at the corner of the policestation and military department in Subotica, the same four men who werepresent last time came in my way. Three men with masks stepped out ofthe car followed by Tomislav Lendvai who stood at the corner of the policestation literally giving orders to his men: “Now cut him, this is his secondwarning and he will see for the third one”. He also said “Cut him, Hungarian-Croatian motherfucker”. Then they brought me down, took off my shoesand socks and some kind of knife or sharp point between two toes, I leaveto doctors to see what it was. Wound was three to four centimeters deep.Someone stepped out of the police station as I was crying for help. There isparking place which belongs to both police station and military departmentand they took me there, lay on me. Someone came out but Lendvai wavedback, turned, said something and nobody approached. They put me on asock and shoe and left me there” 1026 .Erne Ceh and Marinko Varnjas stated they received text messages on aregular basis with the following content: “Hell with you, Hungarian-Croatian pricks”, “Admit what you have done, you better admit it or will befucked up”, “If you don’s admit, you know what will happen, I’ve alreadytold you once” and so on 1027 . Erne Ceh claimed he saved phone numbersfrom which he received texts but his mobile phone disappeared during theincident which took place between September 8 th and 9 th1028 .Initiative’s investigator immediately after the conversation talked toBorivoj Mucalj, head of the police station in Subotica and informed himabout what was going on in his police station. At the demand to urgentlyorganize meeting where material evidence would be given, he replied tosend him official fax with our demands what was done five minutes afterthe conversation 1029 . After that, Borivoj Mucalj did not come back to us.Initiative on September 27, issued a statement demanding from the Ministryof Interior and Police Inspector General to stop persecution and policetorture of the citizens in Subotica 1030 . After the reaction of the generalpublic, as Erne Ceh and Marinko Vranjas stated, threatening text messages,phone calls and late home visits temporarily stopped.1026 Ibid1027 Ibid1028 Ibid1029 Fax was sent to The Head of Police Department Borivoje Mucalj on September 26 th , 2006 and is availablein the Initiative’s documentation archive1030 Initiative’s press release headlined “Stop persecution and police torture of two citizens from Subotica” isavailable in the Initiative’s documentation archive181

Implementation of Transitional Laws in Serbia 2006Initiative filed charges to the District Prosecutor’s Office in Subotica onOctober 20 th against inspector Tomislav Lendvai and three John Doesbecause they committed criminal offences “abuse and torture” 1031 and“forced attempt” 1032 . For abuse and torture, eight-year imprisonment isanticipated and for the forced attempt up to five.Police Torture of Sead AlicSead Alic lives in Priboj, he was born in 1958 and his profession is highschoolteacher. On December 12, 2005 around 10 pm Sead Alic was stoppedby the police patrol on the way Priboj to Bistrica, on 29. Oktobra Street inthe place called Laktosko Polje 1033 . Two policemen were on patrol: MilkoSpajic and Radenovic from the Secretariat of Interior in Priboj 1034 . Alictold to the Initiative investigators that policeman Spajic previously behavedimproperly to him and he became fear stricken 1035 . Spajic suggested to Seadto sit in the car what he refused. Being asked if he had something to drinkand answered affirmatively 1036 . Policeman made records and told Sear hasbeen revoked his driving license 1037 .In the statement given to the Initiative investigators Sead described thesituation: “Then I asked his colleague Radjenovic whether the claimsfrom the records were true and he confirmed. Then I signed it. After thatpoliceman Spajic approached to me in a threatening manner as if he wantedto hit me. I was withdrawing and said: `You are not going to hit me, areyou`, he replied: `You are full of shit, you motherfucker` and he took aswing at my groins. I withdrew but kicked me on my left leg where I hadhaematoma with the complete shoe pattern on it 1038 .After the kick I turned my back and went two or three steps in the oppositedirection, powerlessly threw my phone towards the Lim 1039 and said to him:1031 The Criminal Code, Article 137, Paragraph 3 related to Item 2, see above under 6111032 Ibid, Article 135, Item 21033 YIHR’s incident report, case “Sead Alic” from February 9 th , 2006 is available in the Initiative’s documentation1034 Ibid1035 Ibid1036 Ibid1037 Ibid1038 See report from medical specialist Dr Bahra Alic dated December 16 th , 2005 No. 2718, available in theInitiative’s documentation1039 River passing through Priboj182

Implementation of Transitional Laws in Serbia 2006`What do you hit me, are you crazy?`. Then another blow from the backfollowed and I don’t know what with. I fell on the concrete. I just felt hewas kicking me. Next thing I remember was taking the hand-cuffs of myleft hand by the member of emergency police and I saw blood on theconcrete in front of my face. Police from the emergency unit lifted me up,saying: `Come on, get up, what’s wrong?`. I heard the voice from a distance:`He is faking, motherfucker`. It was Spajic. When I came to emergency unitcar, one policeman asked me if I was searched. Reply was negative and thenthey searched me. I was holding my stomach all the time saying I wanted tobe taken to ER because I was in lots of pain. They would just reply: `We’lltake you`1040 .Later Sead Alic was taken to the police station in Priboj where he beggedpolicemen to take him to ER their reply being they would do it as soonas they finished with some details 1041 . Alic also stated the following: `Iwas taken by emergency unit to ER. One policeman was there with meall the time. When they examined me, I came in the doctor’s office wherecommander Ratkovic, the one I black and two from emergency unit weresitting. I was then examined on the surface only and after two or three daysI got in touch with the doctor due to unbearable pains. X-ray showed twobroken ribs, 11 . and 12. 1042 ”.A few days after that, police filed demand for opening offence procedureagainst Alic due to violation of public peace and order 1043 . Demand foropening offence procedure states: “Driver Alic violated public peace andorder by insulting policemen without any reason, addressing them with thesewords `You are children and you don’t know what you are doing, you haveno idea who I am, give me that so I can blow and leave for Prijepolje, youare wolves, worthless people, you need to grow up`… When a policemanhanded a copy of the record to the driver, he threw it towards policemanSpajic, insulting: `You mother-fucker, go to hell`. After the insulting words,driver Alic started running from the vehicle, flapping, stumbling, and havingmade five to six steps, Alic fell over facing concrete with his arms and head.After the fall, Alic started rolling all over concrete and when policemenapproached him in order to lift him up, he turned a deaf ear yelling: `Oh,1040 See above under 10331041 Ibid1042 See medical condition report, registration No. 155 dated December 26, 2005, available in the Initiative’sdocumentation1043 The Law on Public Peace and Order, Article 6, item 3183

Implementation of Transitional Laws in Serbia 2006God, they’ll kill me, you mother-fuckers`. While falling on the concretesurface, driver Alic noticeably hurt himself and sustained few scratches onhis face 1044 .Alic Sead pressed charges against Milko Spajic 1045 , employee in the SerbianMinistry of Interior in Priboj, due to criminal offences severe physicalinjuries 1046 and abuse of authority 1047 . Both processes are underway.Initiative provides Sead Alic with legal help and Initiative lawyers representhis interests in both legal cases.Police Torture of Alija IglicaAlija Iglica was born on August 14, 1966 in Prijepolje and his permanentplace of residence is Stuttgart, Germany. On August 30, 2005, he cameto Belgrade with his wife to visit his cousins 1048 . Incident occurred onSeptember 6 when Alija Iglica went to the shop which was about fiftymeters from the building where he was staying 1049 . When he approachedthe shop, he saw some neighbors sitting in front and he asked them if theywanted something to drink. According to the statement given to Initiativeinvestigators, soon after that, while they were sitting and drinking, thepoliceman Bozic Miladin 1050 came along who asked a question which Alijadid not 1051 understand so he remarked: “Do you need ID or documents? 1052 ”Policeman approached Alija and asked him to show ID. Since he onlywent to the shop, he did not have his ID with him but he suggested to thepoliceman to go to his flat so he could show him an ID 1053 .According to Alija Iglica’s statement, policeman started aggressively to gothrough his pockets and through his things around 1054 . One of the thingshe dropped was a mobile phone “Motorola”. Then Alija replied: “Sir, whatis this all about, I come from an integrated environment”, and policemansaid: “Why are you swearing, I will frame you up to look like as if you hit1044 Demand for instituting offense procedure against Alic Sead, submitted by SUP Priboj, No. 1-908-00284/05,is available in the Initiative’s documentation1045 Alic Sead pressed charges on December, 20 th , 2006, available in the Initiative’s documentation1046 The Criminal Code of the Republic of Serbia, Article 53, Item 1, see above under 6111047 Ibid, Article 661048 Incident’s report – case “Alija Iglica”, available in the Initiative’s documentation archive1049 Ibid1050 Bozic Miladin works as policeman in New Belgrade police, Serbian Ministry of Interior1051 See above under 10481052 Ibid1053 Ibid1054 Ibid184

Implementation of Transitional Laws in Serbia 2006me” 1055 . On Alija’s remark he could not do it since there were many eyewitnessesaround, policeman started fisting him on the neck what causedhis falling on the ground 1056 . Then he jumped over him, put his knee againsthis neck and started choking him 1057 . After the comment that his action wasshameful made by a woman who was present there, policeman replied tohim: “You, get lost” 1058 . Since he remained breathless, Alija started to resistand policeman called back-up 1059 . Slobodan Vuletic, one of the presentneighbors, went to get Alija’s wife who soon after came with their cousinsto the spot bringing all Alija’s necessary documents from the flat 1060 . Noteven one policeman wanted to look at it. According to both Igica’s andhis wife’s statement, during this incident his golden necklace 1061 was rippedoff. Witness Slobodan Vuletic later stated that policeman had taken thenecklace and put it in his pocket 1062 .After the back-up, which pushed him on the back car seat, had arrived,Alija tried two times to open the door in order to tell his wife about thenecklace 1063 . As a result, one of the policemen in car told him: “If you tryone more to open the door, I’ll rip your arms off 1064 . Not until the car,policeman Bozic asked Alija about his name and after his reply said: “Youare that son-of-bitch from three years ago for `Rolex`. Do you know youTurkish bastard, I ran away from Krajina because of those like you?” 1065 .About things happening in the police car, he said: “Then he started fistingme all over. He was holding key to the handcuffs in his fistful hand andhit him with it so he could feel more pain. He constantly beat me. I stillhave scarves all over my body. Especially from handcuffs because he alsopunched my on my arms. With his elbow, too. I am speechless to describehow much he beat and insulted me. I said he could hit me as much as hewanted but to bear in mind two could play at that game. At one momentwhen we reached the station, he asked me: `Why didn’t you run away, youTurkish bastard`, my reply was I had no reasons for that. 1066 .1055 Ibid1056 Ibid1057 Ibid1058 Ibid1059 Ibid1060 Ibid1061 According to Alija Iglica’s statement, value of that necklace is around 2000 €1062 Statement of the witness Slobodan Vulovic is available in the Initiative’s documentation1063 See above under 10481064 Ibid1065 Ibid1066 Ibid185

Implementation of Transitional Laws in Serbia 2006After the statement Iglica gave to Initiative investigators, police torturecarried on in the police station: “One of the policemen, I really can’tremember his name, took a knife and told me to take off my shoe-laces.He swung the knife in my direction and I almost fell over the chair. Thenhe cut my shoe-laces… Before that I was threatened not to tell anyone theyhad beaten me up. Zeljko Rakovic, inspector in the Secretariat of InternalAffairs, was saying all that. He showed up at that point, in the station. WhileI was being taken out, he told me if I talked to anyone about the beating, itwouldn’t be good for me. Later I even said I had not been beaten but whatelse I could do. 1067 ”Though Iglica asked for a private attorney, police provided one on calland he was enabled phone call not before 1.30 am 1068 . Iglica also said thefollowing: “I was constantly being told I wouldn’t cooperate and it wasn’tgood for me. I told them I was not 20 years old and I would never hit apolice officer. They mostly wrote down things they wanted. I signed somekind of statement 1069 because I could not stand it and longer. They put meback in the cell and said I cooperated and I would be taken to a hospital.Around 3 or 4 a.m. I was taken to the ER receiving another threat frominspector Rakovic not to tell anyone about beatings. When I was examinedby a female doctor in the ER, she asked me why I had been in that kind ofcondition and what had happened to me. 1070 ”After all that Iglica was taken to investigating magistrate Rasa Jankovicwho prohibited him to leave place of residence 1071 because he was pressedcharges due to disturbing of officials in performing duties. Svilar Zeljko,who was Alija Iglica’s lawyer at that time, filed complaint 1072 against thisdecision which was rejected as unfounded 1073 by the Fourth MunicipalCourt constituted by the council including Milan Grkinic, Vladimir Duruzand Alekasandar Veljic. Due to these court decisions, Iglica lost his job inGermany even though he offered guaranty of 2000 euros and submittedevidence to the court that he worked abroad 1074 . Iglica filed charges against1067 Ibid1068 Ibid1069 See minutes from the hearing of the suspect Alija Iglica composed on September 7 th , 2005, available in theInitiative’s documentation archive1070 See above under 10481071 Decision on prohibition measures to leave the residence, number Kri.D.No. 437/051072 Appeal to the complaint of The Forth Municipal Court in Belgrade, number VII Ki 1568/05 from September28 th , 20051073 Decision denying Alija Iglica’s appeal, number Kv 1378/05 from September 28 th , 20051074 Employment confirmation, company Becirovic Transported from Stuttgart, 7 Schrozberger Street, is availablein the Initiative’s documentation186

Implementation of Transitional Laws in Serbia 2006policeman Miladin Bozic due to criminal offence abuse of position 1075 andminor injuries infliction 1076 .Iglica turned to the YIHR on November 14, 2005 and the Initiative tookover his legal representation. Initiative first sent petition to the GeneralInspector of the Serbian Interior Ministry 1077 . A response came on March 15,2006 when the Initiative was informed that its petition regarding policemanBozic Miladin is unfounded 1078 . The first main hearing regarding the caseof Iglica’s accusation of official’s disturbing in performing security dutieswas held on December 27, 2006 when the Initiative’s investigator observedtrial. Judge Dusan Milenkovic decided at the hearing to give passport backto Iglica 1079 .The next hearing was held on April 6, 2006 when testimony was taken bya witness Dusan Grahovac who confirmed Iglica’s allegations 1080 . The nextmain hearing was held on July 10, 2006 when Vulovic Slobodan testified.YIHR attorney, Tanja Drobnjak, pointed out at the main hearing heldon September 22, 2006: “There are no elements of criminal offence theaccused Alija Iglica was charged for in the indictment. In this very situationthe accused is injured party and, on this critical occasion, he suffered manyinjuries stated and confirmed by medical documentation 1081 . This is a typicalexample of basic human rights violation so I suggest the accused to bereleased from any responsibility. It is a fact that not having ID representsoffence but defense believes that the police exceeded its authorities inthis case because it had a possibility to determine identity of the accusedsince there were two witnesses next to him who could have confirmedhis identity” 1082 . After the closing words from the prosecutor and defense,court announced its decision which found the accused guilty and taken offsix months to two years probation 1083 . The Initiative filed complaint to theDistrict Court in Belgrade due to severe violation of the provisions of law,the Criminal Code and wrong and incomplete determination of facts 1084 .1075 Criminal Code, Article 66, see above under 6111076 Ibid, Article 54, Item 21077 Petition was sent to Inspector General in the Serbian Interior Ministry on December 19 th , 2005 and is availablein the Initiative’s documentation1078 Official letter from General Inspector number 12901/05 from March 16 th , 2006, signed by Mirjana Orasin,Head of the Office, is available in the Initiative’s documentation1079 Alija Iglica’s trial report dated December 27 th , 2005, is available in the Initiative’s documentation archive1080 Statement of the witness Dusan Grahovac, is available in the Initiative’s documentation1081 Medical condition record of Alija Iglica, No. 4102 from September 9 th , 2005, is available in the Initiative’sdocumentation1082 Alija Iglica’s trial report dated September 22 nd , 2006 is available in the Initiative’s documentation archives1083 Verdict, No. V-K.1337/05 DM/SR, is available in the Initiative’s documentation1084 Appeal to the District Court in Belgrade from November 1 st , 2006187

Implementation of Transitional Laws in Serbia 2006The criminal charges pressed again the police officer Bozic Miladin wasrejected as unfounded so Iglica submitted accusatory proposal to the FourthMunicipal Court in Belgrade. The first main hearing was held on September27, 2006 and proceeding judge Milan Grkovic. The accused police officerBozic Milan did not show up at the hearing which was postponed forDecember 29, 2006.Police Torture at the Royal HotelAccording to the testimony of Andrej Nosov, YIHR executive director,in the night between January 30 and 31, 2006, around midnight, in theparking lot in front of the hotel “Royal” in Belgrade, Street Kralja Petra56, police patrol with four police officers argued with two John Does,possible minors 1085 . Police vehicle driven by mentioned police officers hadregistration plates M94-11 1086 . There citizens were present in Royal motorpool, one of them being hotel worker. One of the police officers evidentlyupset and he addressed to one of the young men saying: “Do you wantto go home? Go home!” and he yelled and swore 1087 . During this verbalconflict, another policeman separated them and the other young man triedto take his friend away. Threats addressed to the young man by a policeofficer became more and more ferocious followed by swearing and threatsthat he would be arrested 1088 .The other police officer was unsuccessfully trying to calm down hiscolleague who kept on yelling furiously. In the end, he separated two youngmen and together with one of three present policemen pushed young manin the police vehicle saying: “I am now going to take you to the policestation; I am not going to mess around with kids” 1089 . The other young manwas completely calmly trying to persuade police officers not to do it and itbecame clear to him every next word would result in his arrest. Policemenwere explaining to the boy with a few slaps “it was not allowed to keep yourhands inside the pockets” 1090 . Witness Nosov is not familiar with furtherdevelopment and whether young man was taken to the police station 1091 .1085 Incident’s report – case “Police torture at the `Royal` hotel”, is available in the Initiative’s documentation1086 Ibid1087 Ibid1088 Ibid1089 Ibid1090 Ibid1091 Ibid188

Implementation of Transitional Laws in Serbia 2006After the incident analysis, Initiative pressed charges to the First MunicipalProsecutor’s Office in Belgrade against unidentified policemen 1092 due toabuse and torture 1093 . Criminal Code prohibits maltreatment/abuse ofothers and behavior insulting human dignity 1094 . The same law says that itwill imprison for six months to five years those who use power, threats orany other illegal ways to cause great pain and sufferings with the aim ofgetting confessions, statement or any other similar notice from him or somethird party or that he or some third party would be intimidated and illegallypunished due to any other incentives based on any form of discrimination 1095 .If mentioned criminal offences are performed by authorized employee onhis duty, it would be sentenced from three months to three years that is oneto eight 1096 . The same dame, Initiative also submitted petition to GeneralInspector in the Ministry of Interior Affairs in the Republic of Serbia inwhich it was demanded to urgently undertake measures with the aim tosanction illegal action of the police patrol 1097 .In the meantime, Department for Regulations Control (OZKZ) inside thepolice called Andrej Nosov to report to the police station to reconsiderhis complaint. Conversation was made with OZKZ officer, captain IgorMilovanovic who rated that police patrol, in this case, undertook all themeasures and actions in accordance with law, within its jurisdiction withoutany violations and abuse so Initiative’s petition is unfounded.Initiative Activists’ Arrest in NisThe Initiative’s office in Nis in cooperation with the Center for CivilResources Development, Lambda, the Nis Media Center, the Committee forHuman Rights, the Civic Youth Association, the LDP Youth, the Students’Unions from Faculties of Law and Mathematics and Science, the YoungHouse organized action on condemnation of crime which was committed inSrebrenica as well as its gelatinization 1098 . As part of this action, T-shirts andbadges with the image of Hague suspect Ratko Mladic saying “Wanted for1092 Criminal charges were presses on February 1 st , 20061093 Criminal Code, Article 137, Item 3 related to Item 1, see above under 6111094 Ibid, Article 137, Item 11095 Ibid, Article 137, Item 21096 Ibid, Article 137, Item 31097 Petition, the Initiative submitted to Inspector General of the Ministry of Interior on February 1 st , 2006, isavailable in the Initiative’s documentation1098 Incident’s report – case “YIHR activists’ arrest is available in the Initiative’s documentation189

Implementation of Transitional Laws in Serbia 2006Genocide” were distributed 1099 . The action was all the time on the verge ofincident. Passing by citizens shouted: “Are you Muslims? Leave our country!You do not belong here! We should send you to Kosovo to be raped! Youare not Serbs! How can you mess with national hero! He is our father!” 1100There were physical assaults and spitting on Initiative activists 1101 . After theaction, one citizen, with the support of the rallied burnt up T-shirt with thepicture of broken gun and inscription: “If my name were Edin and I wasborn in 1977 in Srebrenica, I would be dead” 1102 . Two persons involved inthe incident were pressed charges against 1103 . Spokeswoman of Nis policedepartment Lidija Pavlovic said: “After the rally held in the center of Nis,two persons are taken in and charges were pressed for breach of peaceand order. Policemen, who were on the spot, estimated that there were nosevere incidents so many things ended by warnings” 1104 .Initiative demanded from Nis police department to press criminal chargesagainst citizens of Nis who were disturbing street action, swearing, shoutingand burning T-shirts for inciting racial, religious and national hatred, discordand intolerance, not just charges for misdemeanor due to breach of publicorder and peace 1105 .That day, graffiti with the image of Mladic appeared in Nis saying:“Wanted for genocide” 1106 . Members of Nis police department twice tookin coordinator of Initiative office in Nis Maja Stojanovic, activists DusanPavlovic, Radojica Buncic and Ksenija Stojanovic under doubt they haddone it 1107 . Police during questioning lasted for a few hours often statedtheir political beliefs and said the following” “We are the boss here and theboss must know how does what”, “I would defend Mladic even if the warbroke out”, “Why don’t you put Clinton on your graffiti”, “Why do youprovoke people, how can’t you understand their wrath”, “Who gives youmoney”, “Humanitarian right is dead letter when it comes to killing”, “Howcan you think like this if you are refugee, change it”, “We should go to warfor Kosovo, me and my children”, “What will you do if Bulgarians attack1099 Ibid1100 Ibid1101 Ibid1102 Ibid1103 Ibid1104 Ibid1105 Ibid1106 Ibid1107 Ibid190

Implementation of Transitional Laws in Serbia 2006Nis”, “If you don’t feel like a Serb, go to Croatia” 1108 .Initiative submitted petition after few days to General Inspector of theInterior Ministry which demanded urgent measures aiming at investigationand sanctioning of possible law violation by the employees in Secretariatof Interior Affairs in Nis who interrogated and intimidated Initiativeactivists 1109 . General inspectorate send reply to Initiative on September26, saying: “After checks it was determined that police officers of PIMedijana, Police Headquarters in Nis made omissions while questioningyour activists…. Since these omissions have been determined, this Ministryhad undertaken measures against responsible employees 1110 .Since the Initiative did not have information on cases instituted due toan incident in Nis and police station, it filed a request to the Secretariatof Interior Affairs in Nis for free access of information in which theyrequested information about instituted proceedings against persons causingincident during the action “Condemn a Crime” in Nis as well as results ofthe procedures against policemen from the Nis police 1111 . Reply arrived onSeptember 21 and it said: “We inform you that on July 11, 2006, in Nis, inStreet Obrenoviceva during the action “Condemn a Crime”, public orderand peace were violated by Velickovic Nebojsa and Stefanovic Branka inNis. Request for instituting offence procedure UP No 1-322-01939/06...wasfiled against these persons to the municipal department for misdemeanors.We inform you we pressed disciplinary charges against three responsiblepolice officers for the neglect of duty” 1112 .Illegal Hearing of a Minor GirlAfter age-long problems between families Slavkovic and Radjenovic, due toa quarrel of their minor daughter R.K. and S.I. in Sarlinac near Nis, situationwas brought climax on March 27, 2003. 1113 Minors S.I. and R.K. went to1108 Ibid1109 Petition, Initiative submitted to Inspector General of the Serbian Interior Ministry on July 14 th , 2006, isavailable in the Initiative’s documentation1110 General Inspector’s reply to the Initiative’s petition from September 26 th , 2006 registered under No.8490/2006-2 was signed by Svetlana Sekulovic Kostic1111 Demand for free access to information Initiative filed on September 13 th , 2006 is available in the Initiative’sdocumentation1112 Response from the Nis police number 11/06 from September 21 st , 2006, is available in the Initiative’sdocumentation1113 Statements from Slavkovic Srboljub and Tanja, parents of the minor S.I. are available in the Initiative’sdocumentation191

Implementation of Transitional Laws in Serbia 2006same school and had disputes resulting in fight 1114 . Father of the minorR.K. is a policeman in the Doljevac police station. The Slavkovic familyclaim that during a long period of time minor daughters of the policemanRandjelovic Predrag R.K. and R.K. have violent behavior towards their minordaughter S.I. and therefore she turned to school principal, psychologist andpedagogue on several occasions but without any success 1115 .After the biggest fight of minors so far on March 27, 2003, police patrol ofthe Doljevac police, formed by two policemen Petkovic Slavisa and the onenick-named Mica, came to the Slavkovic family house in Sarlinac duringbirthday celebration of Slavkovic Srboljub and Tanja’s younger minordaughter S.Dj. 1116 Birthday celebration was interrupted because policemenwanted to make an informative interview with minor S.I. 1117 In the criminalcharges Slavkovic Srboljub and Tanja pressed against Randjelovic Predrag,Stamenkovic Ljubisa, Petkovic Slavisa and NN member of the police called„Mica“ due to authorities exceeding and abuse of duty it is said: “After thebirthday celebration had been stopped, patrol members in the presenceof those who pressed charges questioned minor S.I. what caused her bigstress… 1118 ”During police patrol in Doljevac, in the house of the Slavkovic family,minor S.I. locked herself in the bathroom with fear and she went out onlyat parents’ request 1119 . After submitters had seen the mental condition oftheir minor child and police patrol members saw it, too, professional helpwas asked in the Mental Health Clinic 1120 . S.I. was immediately hospitalizedand admitted for eight-day treatment in the clinic followed by thirteen-daytreatment hospital 1121 .The Municipal Prosecutor’s Office in Nis informed family Slavkovic onJuly 13 that the charges were dropped due to lack of foundation for legalproceedings against mentioned persons 1122 . On the other hand, after the1114 Ibid1115 See: Complaint to the Principal of “Vuk Stefanovic Karadzic” school, from March 27 th , 2006, available inthe Initiative’s documentation1116 See above under 11131117 See the Nis Municipal Court verdict No. K. 1344/2003, especially statements from witnesses JovancicVesna, Jovancic Sinisa and Jovancic Vlastimir1118 Criminal charges are available in the Initiative’s documentation1119 See above under 11131120 Entire medical record on minor S.I.’s health is available in the Initiative’s documentation1121 Ibid1122 See official letter from District Attorney’s Office in Nis regarding drops on criminal charges KT No. 416/03is available in the Initiative’s documentationIbid192

Implementation of Transitional Laws in Serbia 2006official letter Initiative sent to General Inspector of the Serbian InteriorMinistry stating complaint regarding misdemeanor of the police membersin the Doljevac police, following was replied: “We inform you that afterchecking statements from your petition it was determined that the petition,complaining to treatment of police members in the Doljevac police inSecretariat of Interior in Nis, was founded. There will be taken measuresagainst responsible employees under the jurisdiction of the Ministry ofInterior 1123 .After their charges were dropped, family Slavkovic filed request to themagistrate in Municipal Court in Nis for investigation against mentionedpolicemen in the Doljevac police 1124 , and then, as subsidiary prosecutors,direct indictment to the Municipal Court in Nis 1125 . The main hearing inthis case was finished on October 27, 2004 when the bar president KatarinaRanjelovic reached the verdict acquitting Predrag Randjelovic, SlavisaPetkovic and Miroljub Stevanovic and obliging subsidiary prosecutorsSlavkovic Srboljub and Tanja to pay for judicial expenses in the amount of63,000 dinars within 15 days from the final judgment 1126 .After an appeal filed by family Slavkovic against this verdict and due toviolation of criminal procedure acts, incorrect establishment of facts andbreach of Criminal Code 1127 , the Nis District Court on May 11 th , 2006adopted a decision taking the damaged party complaint into considerationand returned the case to the District Court in Nis for retrial 1128 . Expositionof this decision says: “When evaluating the evidence, subjective courtconviction is not substantial but conviction based on facts. Facts that minorinjured party S.I. is 11 years old, she had a birthday celebration in her houseattended by many people, defendants interrupted the celebration to act byorder of their superior Ljubisa Stamenkovic, who conducted an interviewwith the minor S.I. and duration of that interview represent facts whichthe first instance court did not give significance they had. The first instancecourt was obliged but failed to explain, with the help of professionals, howofficer should treat minors especially bearing in mind the reasons of such1123 Official letter from General Inspector number 3436/05 signed by colonel Mirjana Orasin is available in theInitiative’s documentation1124 Demand for investigation is filed on August 8 th , 2003 No. KTP 416/03 and is available in the Initiative’sdocumentation1125 Direct indictment filed on December 1 st , 2003 No. Ki 720/03 is available in the Initiative’s documentation1126 See the Nis Municipal Court Verdict No. K-1344/2003, available in the Initiative’s documentation1127 Appeal to the Nis Municipal Court Verdict No. K-1344/03, available in the Initiative’s documentation1128 Decision from the District Court in Nis, No KŽ 500/05, available in the Initiative’s documentation193

Implementation of Transitional Laws in Serbia 2006treatment and to draw conclusion about regular and irregular conduct ofauthorized persons” 1129 .After that, representation of the Slavkovic family in repeated procedurein front of the Municipal Court in Nis was taken over by the Initiative’sattorney. The repeated procedure in this case is underway.ConclusionsThe Youth Initiative for Human Rights drew the following conclusionsduring investigations of human rights violations and authorized court legalcases against those who were held responsible during year 2006. Focusingon free access to public information, inciting of racial, religious and nationalhatred, discord and intolerance, rehabilitation right, hate-speech and policetortures:• Legal mechanisms, serving to protect civil rights to have free access topublic information, excluding institution of commissioners for publicinformation, do not function;• Ministry of Culture is the public body obliged by Law on Free Accessto Information to supervise implementation of this law which, evenafter two years from coming into force, has not pressed any chargesagainst persons responsible for law violation regardless of 222 offencesof noncompliance with law submitted by the commissioner.• The Serbian government is obliged to conduct commissioner’s decisions.The Initiative, in the case of the Security Intelligence Agency (BIA),submitted request on May 29 th , 2006 to the Serbian government to try toimplement commissioner’s decisions and get to the Initiative necessaryinformation from BIA, what has not been done by the government tillNovember, 2006.• Authorized courts in Serbia, city and municipal departments formisdemeanors, not even after two years from coming into force andafter ten requests for instituting offense procedures filed by Initiative,did not institute any proceedings for violation of the Law on FreeAccess to Information;• BIA neither respects the Law on Free Access to Information norcommissioners’ Supreme Court decisions1129 Ibid194

Implementation of Transitional Laws in Serbia 2006• Zivota Milovanovic, Brahman of Hare Krishna religious communitywas attacked four times between 2001 and 2006 when he suffered severebody injuries. The Secretariat of Interior in Jagodina has not foundtill now perpetrators of these criminal offences and District Attorney’sOffice has not pressed any charges due to mentioned incidents;• The District Attorney’s Office, together with municipal and districtcourts in Pozarevac, investigated the case of Anis Masovic’s beatingon religious grounds during his military service in Pozarevac in theSopot barracks. This fact shows inefficiency and lack of readiness ofmentioned institutions to process persons responsible for inciting racial,religious and national hatred and intolerance;• The Jagodina District Court, after seven months from the Initiative’srehabilitation request for Senad Sljivo, set up the date for the hearing inthis case;• “Hate speech” often appears in the media reports in Serbia, especiallyin daily papers GLAS JAVNOSTI and KURIR. The Belgrade DistrictAttorney’s Office believes that words uttered by Serbian Radical PartyMP Zoran Krasic “that Agriculture Minister Ivana Dulic Markovic is anexample how Ustashas are dragged into the government... close relativesof the lady in question bragged how they took part in Statehood Warand made considerable contribution….. Minister Dulic-Markovicexclusively chooses her associates among “her Ustashas”, in front ofthe stand do not represent incitement of racial, religious and nationalhatred and intolerance;• Police torture exists in the police in Serbia. It happens very oftenthat after police tortures, victims are accused of disturbing officers inexecuting security actions. Investigating judges always trust the policeover the victims and medical records.RecommendationsThe Youth Initiative for Human Rights drew the following conclusionsduring the investigations of human rights violations and authorized courtlegal cases against those who were held responsible during year 2006focusing on free access to public information, inciting racial, religious andnational hatred, discord and intolerance, rehabilitation right, hate speechand police tortures:195

Implementation of Transitional Laws in Serbia 2006• All state authorities, planned by the Law on Free Access to Informationas mechanisms for right protection, must meet lawful obligations andlegal decisions not-applicable in practice must be changed by lawamendments. The authorities from the Ministry of Culture must betransferred to the Ministry of Public Administration and Local Self-Government;• The city and municipal offence bodies must more efficiently processthe cases dealing with violation the Law on Free Access to Informationso that responsible persons could be properly sanctioned;• Members of the Jagodina Secretariat of Interior must shortly order thecapture of persons responsible for severe physical injuries inflicted toZivota Milanovic whereas the District Attorney’s Office, on the basis ofall the facts related to this case, should press charges against perpetratorsof these criminal acts for inciting racial, religious and national hatredand intolerance;• Although the Law on Rehabilitation was passed in May this year,the court is practically doing nothing in these cases; district courts,authorized for rehabilitation on demands, must filed demands moreefficiently process so that there would be no hearings waited for eightmonths;• Authorized courts in Serbia should strictly respect the laws and sanctionproperly article authors and editors-in-chef of the public outletsspreading “hate speech” in the Serbian media;• Police members, when dealing with citizens, should strictly respectthe professional regulations present in the Law on Police, Statute onConditions and Ways of Force Use and Police Ethics and Police WorkInstructions;• Courts must sanction police torture cases as well as violation f humanrights of all vulnerable group members so that, by creating practicalcourt work, they could stop a no-punishment tradition, prevent actionof all potential perpetrators and upgrade theories and regulationsdealing with human rights on this territory.196

Implementation of Transitional Laws in Serbia 2006ANNEX IIIMPUNITY FOR INSTIGATING RACIAL, RELIGIOUS ANDNATIONAL HATRED, DISCORD AND INTOLERANCE197

Implementation of Transitional Laws in Serbia 2006In the period at the end of 2005 and the beginning of 2006, the YouthInitiative for Human Rights (in further text the Initiative) had conducted aresearch on the relations of District Public Prosecutor’s Offices in Serbiatowards the criminal act of „causing racial, religious and national hateand intolerance“ 1130 . The Initiative had sent petitions for free access toinformation on the addresses of 25 District Public Prosecutor’s Offices inSerbia. According to the Law on the Structure of Courts 1131 it is regulatedthat the District Courts in Serbia have jurisdiction over processingcriminal acts for which imprisonment for more than 10 years has beenanticipated 1132 , but also for a number of taxatively catalogued criminal actsamong which the causing of racial, religious or national hate, discord andintolerance are mentioned 1133 . On the other hand, according to the Lawon Public Prosecution 1134 , District Public Prosecutors have jurisdictionover procedures in the District Court 1135 . Therefore, the District PublicProsecutor’s Offices are responsible for prosecuting and bringing chargesin cases for the processing of which the District Courts have jurisdiction.Among other criminal acts which fall under the jurisdiction of DistrictPublic Prosecutor’s Offices, is „causing racial, religious and national hateand intolerance“ 1136 . The Initiative had asked the following informationfrom the District Courts:• How many proceeding are being handled in your District Courtfor committing the criminal act from Article 134 of the GeneralCriminal Law — causing racial, religious and national hate, discordand intolerance? We ask you also to deliver us the information onthe number of convictions for committing the earlier mentionedcriminal acts during the years 2004 and 2005 1137From the District Public Prosecutor’s Offices, we demanded the followinginformation:1130 Criminal Code, Article 317, see above under 6111131 The Law on the Structure of Courts (Official Gazette RS, No. 63/2001, 42/2002, 27/2003, 29/2004,101/2005 and 46/2006), adopted on 25th May 2006, made efficient on June 10 th , 20061132 Ibid, Article 22 Paragraph 11133 Ibid, Article 22 Paragraph 21134 The Law on Public Prosecutor’s Offices (Official Gazette number 63/2001, 42/2002, 39/2003, 44/2004,61/2005 and 46/2006), adopted on 25th May 2006, made efficient on June 10 th , 20061135 Ibid, Article 201136 See above under 11301137 All the requests to the District Courts were sent on August 25 th , 2005198

Implementation of Transitional Laws in Serbia 2006• How many criminal charges have been brought to your DistrictPublic Prosecutor’s Office during the years 2004 and 2005 for thecriminal act from Article 134 of the Basic Criminal Law — instigatingracial, religious and national hate, discord and intolerance? We alsoask you to deliver us the information on the number of complaintswhich have been processed in courts in the same period for thebefore mentioned criminal act 1138 .The intention of the Initiative was to obtain information from the DistrictPublic Prosecutor’s Offices on the number of filed complaints duringthe years 2004 and 2005 for causing racial, religious and national hateor intolerance, and on the number of indictments raised on the basis ofthe filed criminal complaints. The District Courts were asked to provideinformation on the number of processes which were lead at that time,as well as on the number of convictions during the years 2004 and 2005.Based on this data the number of complaints filed in Serbia during thesetwo years on the suspicion that this criminal act had been committed can beestablished, as well as how many indictments were brought and how manyconvictions there were in the District Courts of Serbia. By comparing theobtained data, it is possible to reach argumented conclusions on the relationof the legislative organs toward this criminal act, and the possible traditionof punishableness, or unpunishableness of the perpetrators.The Basic Criminal Law 1139 ceased to be efficient on 1st January 2006. Itanticipated the criminal act of „causing national, racial and religious hatred,discord or intolerance“ 1140 . The law stated that the person or persons whocaused or excited national, racial or religious hatred, discord or intoleranceamong nations and national minorities which live in SRJ (Federal Republicof Yugoslavia), would be punished by a prison sentence of up to fiveyears 1141 . In cases when this is done by force, harassment, endangering thesafety, mocking national, ethnic or religious symbols, destruction of otherpeople’s property, desecrating monuments, commemorative objects orgraves, such acts will be punished with a prison sentence in the durationof one to eight years 1142 . If such a criminal act is committed by abusinga position or authorizations, or if it caused riots, violence or other severe1138 All the requests to the District Public Prosecutor’s Offices were sent on August 25 th , 20051139 The Basic Criminal Code stopped being valid on the putting into effect of the Criminal Code1140 Ibid, Article 1341141 Ibid, Paragraph 11142 Ibid, Paragraph 2199

Implementation of Transitional Laws in Serbia 2006consequences for the joined life of nations and national minorities livingin SRJ, they will be punished by a prison sentence for a duration of one toeight years, and for the criminal act in Paragraph two, by a prison sentencein the duration from one to ten years 1143 .The new Criminal Code 1144 , in the part titled “Criminal acts againstconstitutional structure and safety of the Republic of Serbia and SCG”anticipates the criminal act of “Causing national, racial and religious hatredor intolerance” 1145 . It is immediately conspicuous that the title was changed,by leaving the word “discord” out from the title of this criminal act. Theprevious law used the term “among nations and national minorities”, andthe new one uses the term “among nations and ethnic communities”.Except for this, for the criminal act from the first Paragraph, the prisonsentence of one to five years was anticipated, and according to the new oneit is six months to five years. For committing a criminal act from the thirdParagraph, the sentence was one to ten years in prison, and according to thenew law it is two to ten years.District Prosecutor’s OfficesAccording to the results of the research, 66 criminal charges which werealleged to have caused “racial, religious or national hatred or intolerance”were filed in the District Public Prosecutor’s Offices in 2004 and 2005.Twenty four of these charges were dismissed immediately, and eightindictments were raised. The other criminal charges were in the process ofinvestigation at the time, obtaining notifications or their jurisdictions weretransferred to Municipal Prosecutor’s Offices.No criminal charges connected to this criminal act were filed in the DistrictPublic Prosecutor’s Offices in Prokuplje 1146 , Smederevo 1147 , Zajecar 1148 ,Cacak 1149 , Kraljevo 1150 or Pirot 1151 .1143 Ibid, Paragraph 31144 See above under 6111145 Ibid, Article 3171146 Report of the District Prosecutor’s Office in Prokuplje from September 12 th , 2005, number A 73/05, signedby Viseslav Bukumirovic – Public Prosecutor1147 Report of the District Prosecutor’s Office in Smederevo from November 10 th , 2005, number A 64/05,signed by Dragoslav Markovic – Public Prosecutor1148 Report of the District Prosecutor’s Office in Zaječar from November 7 th , 2005, number A 64/05, signedby Zorina Zogovic – Public Prosecutor1149Report of the District Prosecutor’s Office in Cacak from September 21 st , 2005, number 163/05, signed byMiodrag Surla – Deputy Public Prosecutor1150 Report of the District Prosecutor’s Office in Kraljevo from September 2 nd , 2005, number A 73/05, signedby Dragan Belcevic – Deputy Public Prosecutor1151Report of the District Prosecutor’s Office in Pirot from September 8 th , 2005, number A 71/05, signed by200

Implementation of Transitional Laws in Serbia 2006One criminal charge was filed to the District Public Prosecutor’s Officesin Kragujevac 1152 , Krusevac 1153 and Leskovac 1154 and all were dismissed.One criminal charge was also filed to the District Public Prosecutor’sOffices in Jagodina 1155 and Pancevo 1156 . In the memorandum sent to us bythe District Court in Jagodina, it is stated that a criminal charge was filedagainst Kostadinovic Bojan, Kitanovic Predrag, Sorlic Ljubise, StojanovicIvan, Rasic Zivadin, Sorlic Ivica, all from Trnava, and against Vasic Sasafrom Jagodina on the suspicion of committing this criminal act 1157 . Afteran investigation was conducted, it was determined that they had committedthe criminal act of “endangering safety” 1158 . The District Court in Pancevohad, after conducting an investigation, raised an indictment against twopersons, on the suspicion of committing this criminal act 1159 .Two criminal charges were filed to the District Public Prosecutor’s Officesin Negotin 1160 and Valjevo 1161 . The Negotin Prosecutor’s Office dismissedthe charges immediately, and the other was, at that time, still in the phase ofobtaining notifications 1162 , while the Prosecution in Valjevo dismissed oneof the charges, and raised an indictment on the other 1163 .Three criminal charges were filed to the District Public Prosecutor’s Officesin Uzice 1164 , Nis 1165 , Pozarevac 1166 and Sombor 1167 . The Prosecution in Uzicetransferred two charges to the Municipal Prosecution’s Office, becauseTihomir Djordjevic1152 Report of the District Prosecutor’s Office in Kragujevac from November 8 th , 2005, number A 380/05,signed by Slavoljub Dimitrijevic – Deputy Public Prosecutor1153 Report of the District Prosecutor’s Office in Krusevac from November 4 th , 2005, number KTR 417/05,signed by Radmila Jovanovic – Public Prosecutor1154 Report of the District Prosecutor’s Office in Leksovac from August 30 th , 2005, number A 127/05, signedby Edvarda Jerin – Public Prosecutor1155 Report of the District Prosecutor’s Office in Jagodina from August 31 st , 2005, number A 133/05, signed byGoran Busarcevic – Public Prosecutor1156 Report of the District Prosecutor’s Office in Pancevo from September 12 th , 2005, number KTR 306/05,signed by Niskanovic Milan – Public Prosecutor1157 See above under 11551158 The Criminal Code, Article 67, Paragraph 2, see above 6111159 See above under 11561160 Report of the District Prosecutor’s Office in Negotin from September 16 th , 2005, number A 102/2005,signed by Miroslav Sozentic – Public Prosecutor1161 Report of the District Prosecutor’s Office in Valjevo from September 5 th , 2005, number A 107/05, signedby Zlatko Sulovic – Public Prosecutor1162 See above under 11601163 See above under 11611164 Report of the District Prosecutor’s Office in Uzice from November 3 rd , 2005, number A 110/05, signed byBlazenko Vesnic – Deputy Public Prosecutor1165 Report of the District Prosecutor’s Office in Niš from September 21 st , 2005, number A 158/05, signed bySvetlana Savovic – Public Prosecutor1166 Report of the District Prosecutor’s Office in Pozarevac from September 1 st , 2005, number A 47/05, signedby Dragan Petrovic – Public Prosecutor1167 Report of the District Prosecutor’s Office in Sombor from September 2 nd , 2005, number A 49/05, signedby Borislav Krujakov – Public Prosecutor201

Implementation of Transitional Laws in Serbia 2006in their opinion the criminal acts committed were an „insult“ 1168 and„endangered safety“ 1169 . For one charge the process was still in progress 1170 .The Pozarevac Prosecution had dismissed two charges immediately, and theinvestigation was still in progress on one 1171 . The Prosecution in Somborwas still conducting an investigation on two criminal charges, and had raisedand indictment against an underage person 1172 . In one case the Prosecutionin Nis had raised an indictment, and the investigation was still in progresson the other two cases 1173 .The Zrenjanin District Public Prosecutor’s Office had received four criminalcharges, of which one was dismissed 1174 . The other three cases were in theprocess of investigation and failed in attempts to identify the suspects 1175 .Seven criminal charges were filed to the District Public Prosecutor’sOffices in Novi Pazar 1176 and Vranje 1177 . The Prosecution in Novi Pazardismissed one of the charges, raised an indictment on one, and submitted asuggestion of pronouncing a correctional measure in two cases 1178 . On theother criminal charges, the investigation was still in progress 1179 . Accordingto the data given to the Initiative by the Prosecution in Vranje, one chargewas dismissed, and in all other cases the conduction of an investigation orstarting of misdemeanor procedures for violating the Law on Public Orderand Peace were required 1180 . An indictment was raised in one of the sixinvestigated cases. 1181The District Prosecutor’s Office in Belgrade had, during the years 2004and 2005, received 16 criminal charges. Eight of which were, at the time,still unsolved, two cases were still in the process of obtaining necessarynotifications, four criminal charges were dismissed, and in one case the1168 Criminal Code, Article 93, see above under 6111169 Ibid, Article 67, Paragraph 21170 See above under 11641171 See above under 11661172 See above under 11671173 See above under 11651174 Report of the District Prosecutor’s Office in Zrenjanin from September 7 th , 2005, number A84/05, signedby Dragana Lazic – Public Prosecutor1175 Ibid1176 Report of the District Prosecutor’s Office in Novi Pazar from October 10 th , 2005, number KTR 103/05.signed by Salih Karisik – Public Prosecutor1177 Report of the District Prosecutor’s Office in Vranje from September 8 th , 2005, number 129/05, signed byMilan Bozilovic – Public Prosecutor1178 See above under 11761179 Ibid1180 The Law on Public Order and Peace (Official Gazette RS, No. 51/92, 53/93, 67/93, 48/94, 101/2005 - sec.law and 85/2005 - sec. law)1181 See above under 1177202

Implementation of Transitional Laws in Serbia 2006Prosecution decided to drop the case after conducting an investigation 1182 .The District Prosecutor’s Office in Novi Sad received 11 criminal charges,nine of which were dismissed, and two were processed 1183 .The District Prosecutor’s Offices in Sabac, Subotica and Sremska Mitrovicadid not answer the submitted requests.District CourtsIn the District Courts of Serbia during the years 2004 and 2005, fifteen courtprocedures were based on suspicion that a criminal act of causing racial,religious and national hatred or intolerance was committed. Of the fourverdicts that were reached, two were acquittals. In the other two verdicts, themeasure of obligatory psychiatric treatment outside of an institution waspronounced 1184 . The measure of obligatory psychiatric treatment outsideof an institution is pronounced to mentally incompetent perpetrators ofcriminal acts, in order to prevent the possibility of repeating the act 1185 . In11 cases, the procedure was still in progress.In 14 of 25 District Courts in Serbia, during the years 2004 and 2005,no procedures were lead for this criminal act, and accordingly, no verdictswere reached. This is the case with the Courts in; Belgrade 1186 , Prokuplje 1187 ,Smederevo 1188 , Krusevac 1189 , Kragujevac 1190 , Zajecar 1191 , Uzice 1192 , Negotin 1193 ,1182 Report of the District Prosecutor’s Office in Belgrade from September 20 th , 2005, number KT-2981/05,signed by Dusana Loncaerevic – Deputy Public Prosecutor1183 Report of the District Prosecutor’s Office in Novi Sad from November 8 th , 2005, number KTR – 1184/05,signed by Zoran Pavlovic, MA – Public Prosecutor1184 Criminal Code, Article 82, see above under 6111185 Ibid, Paragraph 11186 Report of the District Court in Belgrade from September 8 th , 2005, number 1/2005, signed by IvanaRamic1187 Report of the District Court in Prokuplje from November 2 nd , 2005, number 1/05-18, signed by DraganTomovic – office manager1188 Report of the District Court in Smederevo from August 30 th , 2005, number 166/05, signed by SlavoljubNikolic1189 Report of the District Court in Krusevac from September 12 th , 2005, number Su.br.34/05, signed by JankoMilenkovic – President of the Court1190 Report of the District Court in Kragujevac from September 7 th , 2005, number Su-18/2005-14, signed byMiroljub Tomic – President of the Court1191 Report of the District Court in Zajecar from September 5 th , 2005, number 19/05-5, signed by SlobodanMitic – President of the Court1192 Report of the District Court in Uzice from September 1 st , 2005, signed by Ljubisa Radulovic - President1193 Report of the District Court in Negotin from November 10 th , 2005, number 19/05, signed by judge SlobodanFancikic203

Implementation of Transitional Laws in Serbia 2006Jagodina 1194 , Pozarevac 1195 , Sombor 1196 , Cacak 1197 , Kraljevo 1198 and Pirot 1199 .When the above mentioned data is compared to the data obtained from theprosecutors from the same cities, only the data from the judicial organs inSombor are not compatible, because the Sombor prosecution claims thata juvenile procedure was started on one of the charges, while the Court inSombor claims that no criminal procedures were lead there on the suspicionthat this criminal act had been committed.The District Court in Leskovac lead one procedure, and reached anacquittal 1200 . In each of the courts in Pancevo 1201 , Valjevo 1202 and Subotica 1203there was one procedure, but the procedure in Subotica was a juvenileprocedure. The District Court in Vranje, in the only procedure lead duringthe years 2004 and 2005 against Halimi Nezir, for the perpetration ofthis crime, a measure of obligatory psychiatric treatment outside of aninstitution was pronounced 1204 .Each of the courts in Novi Pazar 1205 and Sremska Mitrovica 1206 lead twoprocedures. In one of the two cases in the District Court of Novi Pazar,Alickovic Feriz was acquitted 1207 , while Alickovic Edin was convictedto a prison sentence of nine months for the criminal act of „severephysical injuries” 1208 . Appeals to the Supreme Court of Serbia were filedon these verdicts. The second procedure against Drustinac Elvir was stillin progress 1209 . A juvenile procedure against M. Z., K. M. and K. M was1194 Report of the District Court in Jagodina from August 30 th , 2005, signed by Vladimir Golubovic1195 Report of the District Court in Pozarevac from September 9 th , 2005, signed by Svetlana Gaco – Presidentof the Court1196 Report of the District Court Sombor from September 1 st , 2005, number 19/05-3, signed by Ljiljana Vejnovic– President of the Court1197 Report of the District Court Cacak from August 31 st , 2005, number 37/05-145, signed by Radoslav Petrovic– President of the Court1198 Report of the District Court in Kraljevo from September 6 th , 2005, number 156/04, signed by BiljanaNikolic1199 Report of the District Court in Pirot from November 9 th , 2005, number 40/05, signed by Sveta Mancic1200 Report of the District Court in Leskovac from November 17 th , 2005, number 21/05, signed by Jovica Ilic1201 Report of the District Court in Pancevo from September 1 st , 2005, number 38/111-2005, signed by JovanovicPersida - Judge1202 Report of the District Court in Valjevo from August 31 st , 2005, number 19/05-3, signed by Dragan Obradovic– President of the Court1203 Report of the District Court in Subotica from September 21 st , 2005, number 74/2005-17, signed by SeregeljEdit – President of the Court1204 Report of the District Court in Vranje from September 22 nd , 2005, number 11/05, signed by Zoran Djordjevic1205 Report of the District Court in Novi Pazar from November 10 th , 2005, number 375/05, signed by CamilHubic – President of the Court1206 Report of the District Court in Sremska Mitrovica from September 13 th , 2005, number 40/05, signed byBranko Bancevic – President of the Court1207 Verdict Number K 71/041208 Criminal Code, Article 53, Paragraph 1, see above under 6111209 See above under 1205204

Implementation of Transitional Laws in Serbia 2006in progress before the court in Sremska Mitrovica 1210 . In the second one,Dejan Hlodo was charged, and later acquitted 1211 . The prosecution had filedan appeal on this verdict 1212 .The District Courts in Novi Sad 1213 and Nis 1214 , during the years 2004 and2005, each lead three criminal procedures. In the Nis District Court, theprocess against Djordjevic Dusan was still in progress 1215 , and the othertwo criminal procedures were, according to the received information, inthe process of investigation 1216 . Two procedures were in progress beforethe District Court in Novi Sad, and on one of the indictments the securitymeasure of obligatory psychiatric treatment outside of an institution waspronounced 1217 .The District Courts in Sabac and Zrenjanin did not answer the submittedrequests.1210 Case Number Kim 19/041211 Case Number K 141/041212 See above under 12061213 Report of the District Court in Novi Sad from September 21 st , 2005, number 43/05-22-3, signed by SofijaSamaradzija1214 Report of the District Court in Nis from August 31 st , 2005, number 19/05-5, signed by Danilo Nikolic1215 Case number K.br.192/051216 See above under 12141217 See above under 1213205

Implementation of Transitional Laws in Serbia 2006Conclusions• In 2004 and 2005, sixty six criminal charges on the suspicion ofthe criminal act of “causing racial, religious or national hatred orintolerance” were filed in the District Public Prosecutor’s Offices,and eight indictments were brought. Twenty four criminal chargeswere immediately dismissed.• The District Courts in Serbia lead 15 court procedures for theperpetration of the criminal act of “causing racial, religious andnational hatred or intolerance” during 2004 and 2005. Of these 15,the court procedure was still in progress in 11 cases.• During these two years the District Courts in Serbia reached fourverdicts on this criminal act, of which two were acquittals, and intwo cases the measure of obligatory psychiatric treatment outsideof an institution was pronounced.• In six of the 25 tested Prosecutor’s Offices no criminal chargeswere filed for this criminal act. In 14 of 25 tested Courts no criminalprocedures for the perpetration of this criminal act were lead in twoyears.• District Prosecutor’s Offices in Uzice and Jagodina passed thecriminal charges to the authorized Municipal Courts, because theyconsidered these to be the criminal acts of „insult” and „endangeringsafety”.• During the years 2004 and 2005 sixty six criminal charges onthe suspicion of the perpetration of this criminal act were filed.Only two verdicts were reached, and that of obligatory psychiatrictreatment outside of an institution, point to the fact that in Serbiathere is no will to institutionally acknowledge that racial, religiousand national hatred exists.• The new Criminal Code had left out the word „discord” from thedefinition of this criminal act. The term „among nations and nationalminorities” was replaced by the term „among nations and ethniccommunities”. Also, according to the old, Basic Criminal Code, theprison sentence for the mildest conviction of this criminal act usedto be one year, while in the new Code it is six months.206

Implementation of Transitional Laws in Serbia 2006Recommendations• The District Prosecutor’s Offices in Serbia should raise morecharges for the perpetration of this criminal act and interpret moreflexibly the regulations of the Criminal Code which regulate theconditions which must be fulfilled in order for this criminal act toexist;• District Courts in Serbia should conduct the criminal procedureslead for the perpetration of this criminal act more efficiently, inorder to prevent some of the procedures to last for two and a halfyears;• On finished procedures, the District Courts should pronouncesentences to prison in the duration of six months to ten years, andnot security measures of obligatory psychiatric treatment.BibliographyList of books, reports and magazines used as source1. Belgrade Centre for Human Rights, Human Rights in Serbia andMontenegro 2004, Belgrade, 20052. Belgrade Centre for Human Rights, Human Rights in Serbia 2005,Belgrade, 20063. Minority Rights Center, Violations of the Rights of Roma in Serbia,Report 2, Belgrade, 20034. Humanitarian Law Centre, Albanians in Serbia, Belgrade 20035. Humanitarian Law Centre: Roma in Serbia, Belgrade 20036. Helsinki Committee for Human Rights in Serbia, In Conflict withEthnic Identity of the State, Belgrade, 20047. Youth Initiative for Human Rights, Implementation of TransitionalLaws in Serbia, Belgrade, 20058. Lawyers’ Committee for Human Rights: Conscientious objection,Belgrade, 20009. Labris, Annual Report about status of LGBT population in Serbia,Belgrade, 200610. Ljubisa Lazarevic: Criminal Law in Yugoslavia, Savremenaadministracija, Belgrade, 199811. Law Encyclopedia, Savremena administracija, Beograd, 1985207

Implementation of Transitional Laws in Serbia 200612. Sandjak Committee for the Protection of Human Rights andFreedoms, Human Rights Situation and Recommendations for TheirProtection, Novi Pazar, 200413. Association for International Law of Serbia and Montenegro,Yearbook 2000-2003, Belgrade, 200414. Vesna Rakic-Vodinelic, Judicial protection of the rights of man inRights and Freedoms – International and Yugoslavian standards, Belgrade,199515. Vladimir Djuric, Constitutional Appeal, Belgrade Center for HumanRights, Belgrade, 200016. A guidebook through the Law on free access to information, Open SocietyFund, Belgrade 2005List of law documents used as source1. European Convention for the Protection of Human Rights andFundamental Freedoms, adopted on November 4 th , 1950, becameeffective on September 3 rd , 1953, supplemented by Protocol 11,which came into force on November 1 st , 19982. European Convention on Mutual Legal Aid in Criminal Cases wasbrought on April 20th 1959. in Strasbourg3. International Covenant on Civil and Political Rights adopted byResolution 2200 A (XXI) of the General Assembly of the UnitedNation, entered into force on March 23 rd , 19764. International Convention on the Elimination of All Forms of RacialDiscrimination, adopted on December 21 st , 1965 and entered intoforce on January 4 th , 19695. The decision on giving consent to the Acts of Commissionerfor information of public importance, containing the Decisionon establishing Commissioner’s Office for information of publicimportance, the decision on salaries in Commissioner’s Officefor information of public importance, and Rulebook on internalstructure and job systematization in Commissioner’s Office forinformation of public importance, made at the Third session ofregular sitting of Serbian parliament on May 23 rd , 20056. Decision on elections of the members of the Broadcasting AgencyCouncil, adopted on February 17 th , 2005, Official Gazette of RS,number 2/05208

Implementation of Transitional Laws in Serbia 20067. Decision on the election of the ninth member of the BroadcastingAgency Council, adopted on May 23 rd , 2005, Official Gazette ofRS, number 38/058. Decision on the appointment of the President and members of theBoard of Directors of the Republican Telecommunication Agency,adopted on May 23 rd , 20059. Decision on scheduling a Republic Referendum for the confirmationof the new Constitution of the Republic of Serbia, Official Gazetteof RS, number 83/0610. Decision of the Constitutional Court of Serbia from May 27th,2003, by which the regulations from Article 88, Paragraphs 1 and9 of the Law on the election of parliamentary representatives havebeen proclaimed unconstitutional11. Framework Convention for the Protection of National Minoritiesof the Council of Europe, ratified and entered into force onSeptember 1 st , 2001, Official Gazette of FRY, InternationalAgreements, number 6/9812. The Basic Criminal Code, adopted on September 29 th , 2005 shallbecome effective on January 1 st , 2006; the Official Gazette of RS,number 85/0513. Charter on Human and Minority Rights and Civil Liberties ofthe State Union of Serbia and Montenegro, adopted and enteredinto force on February 28 th , 2003, Official Gazette of Serbia andMontenegro, number 6/0314. Recommendation number R (94) 12 by the Committee of Ministersof the Council of Europe for the Member States on independence,efficiency and the roles of courts15. Recommendation of the Committee of Ministers of the Councilof Europe No. R (97) 20, adopted on October 30 th , 199716. UN Security Council Resolution number 827 adopted on May 25 th ,2005, Statute of the International Criminal Tribunal for the FormerYugoslavia17. The agreement between FRY and Republic of Croatia on legal aidin criminal and civil proceedings was signed on September 15th199718. The agreement between FRY and Bosnia and Herzegovina on legalaid in criminal and civil proceedings was signed on February 24th2005209

Implementation of Transitional Laws in Serbia 200619. Instructions for conducting a republic referendum for theconfirmation of the new Constitution of the Republic of Serbia,Official Gazette of RS, number 84/200620. Act on the Institution of the Ombudsman in Kosovo was broughton February 16th 2006, No 2006/621. Constitutional Charter of the State Union of Serbia and Montenegro,adopted and entered into force on February 4 th , 2003, OfficialGazette of Serbia and Montenegro, number 1/0322. Constitutional Law for the implementation of Constitution ofSerbia, adopted November 10 th , 2006, Official Gazette of RS,number 98/0623. Constitution of the Republic of Montenegro, Official Gazette ofthe Republic of Montenegro, number 48/9224. Constitution of the Republic of Serbia, adopted and entered intoforce on September 28 th , 1990, Official Gazette of RS, number1/9025. Constitution of the Republic of Serbia, adopted and entered intoforce on November 8 th , 2006, Official Gazette of RS, number98/0626. Constitution of SRY, adopted and entered into force on April 27 th ,1992, Official Gazette of SRY, number 1/9227. Law on Security Intelligence Agency, Official Gazette of RS,number 42/200228. Law on Budget of Serbia 2005, adopted on November 19 th , 2004,Official Gazette of RS, number 127/0429. Law on Churches and Religious Communities, Official Gazette ofRS, number 36/0630. Law on Financing of Political Parties, adopted on July 18 th , 2003,Official Gazette of RS, number 72/0331. The Law on the Election of Deputies, Official Gazette of RSnumber 35/2000, 57/2003 - decision USRS, 72/2003 – sec. law,75/2003 - corr. sec. law, 18/2004, 101/2005 - sec. Law and 85/2005- sec. law32. The Law on the changes and additions of the Law on Budget,adopted on September 29 th , 2006, Official Gazette of RS number85/0633. Amendments to the Law on War Crimes Trials, adopted onDecember 21 st 2004., took effect on December 29 th 2004, Official210

Implementation of Transitional Laws in Serbia 2006Gazette of the Republic of Serbia 67/03 and 135/200434. The Law on Changes and Amendments to the Law on Broadcasting,adopted on September 29 th , 2006, Official Gazette of RS, number85/0635. The law on changes and additions to the law on Yugoslav Army,Official Gazette of SRJ number 3/200236. Public Procurements Law, adopted on July 4 th , 2005, Official Gazetteof RS, number 39/0237. Law on Public Information, adopted on April 22 nd , 2003, OfficialGazette of RS, number 43/0438. The Law on public order and peace (Official Gazette of RS, number51/92, 53/93, 67/93, 48/94)39. Law on Public Prosecutor’s Office, adopted on April 22 nd , 2004,Official Gazette of RS, number 44/0440. Criminal Procedure Code, Official Gazette of SRY, number 70/02and 68/02 and Official Gazette of RS, number 58/04 and 85/0541. Law on Advertising, adopted on September 16 th , 2005, OfficialGazette of RS number 79/0542. Law on the Ombudsman for Human Rights of Bosnia andHerzegovina, adopted on June 25th 2002. in the National Assemblysession and on July 3rd, 2002 in the Representative Assemblysession, official gazette BH 70/0243. Law on General Administrative Procedure, Official Gazette ofSRY, number 33/97 and 31/0144. The Law on the Organization and Jurisdiction of GovernmentOrgans in Processes against the Perpetrators of War Crimes,adopted on July 1 st , 2003, Official Gazette of RS number 67/0345. Law on Litigation (Official Gazette of RS, number 125/2004),adopted on November 22 nd , 2004, entered into force on February23 rd , 200546. Law on Police (Official Gazette of RS, number 101/2005), adoptedon November 14 th , 2005, entered into force on November 29 th ,200547. Law on Misdemeanor, Official Gazette of SRS, number 44/89,Official Gazette of RS, number 21/90, 11/92, 20/93, 53/93, 63/93,28/94, 16/97, 39/98, 44/98 and 55/200448. Law on Broadcasting, adopted on July 18 th , 2002, entered into forceon July 27 th , 2002, Official Gazette of RS, number 42/02211

Implementation of Transitional Laws in Serbia 200649. Labor Law, adopted on March 15 th , 2005, Official Gazette of RS24/0550. Law on Referendum and People’s Initiative, Official Gazette of RS,number 48/94 and 11/9851. Law on Rehabilitation, adopted on April 17 th , 2006, Official Gazetteof RS, number 33/0652. Law on cooperation of Serbia and Montenegro with the InternationalTribunal for criminal prosecution of persons responsible for greatviolations of international humanitarian law committed on theterritory of ex Yugoslavia from the year 1991, adopted on April10 th , 2002, come in effect on April 10 th , 2002, Official Gazette ofFRY number 1853. Law on Free Access to Information of Public Importance, adoptedon November 2 nd , 2004, entered into force on November 13 th , 2004,Official Gazette of RS, number 120/0454. Law on Prevention of Conflict of Interests in Discharge of PublicOffice, adopted on April 20 th , 2004, Official Gazette of RS, number43/0455. Law on the Implementation of the Constitutional Charter of theState Union of Serbia and Montenegro, adopted on February 4 th ,2003, Official Gazette of Serbia and Montenegro, number 1/0356. Law on Judges, adopted on November 6 th , 2001 Official Gazette ofthe Republic of Serbia, number 63/0157. Law on Telecommunications, adopted on April 24 th , 2003, OfficialGazette of RS, number 44/0358. Law on Organization of Courts, adopted on November 5 th , 2001,Official Gazette of RS, number 63/0159. Law on the Army of Yugoslavia, Official Gazette of FRY, number37/02; Official Gazette of Serbia and Montenegro, number 7/05and 44/0560. Law on Protection of Rights and Freedoms of National Minoritiesadopted on February 27th, 2002, Official Gazette of FRY, number11/0261. Law on Protector of Citizens, adopted on September 16 th , 2005,Official Gazette of RS, number 79/0562. Law on the Protector of Human Rights and Liberties, adopted onJuly 8th 2003. Official Gazette of the Republic of Montenegro No41/2003212

Implementation of Transitional Laws in Serbia 2006List of web pages used as source1. Association of Independent Electronic Media: www.anem.org.yu2. Belgrade Center for Human Rights: www.bgcentar.org.yu3. Center for Free Elections and Democracy: www.cesid.org4. Center for Advanced Legal Studies: www.cups.org.yu5. Magazine NIN: www.nin.org.yu6. Magazine Nova srpska politička misao: www.nspm.org.yu7. Magazine Vreme: www.vreme.com8. Cedomir Jovanovic: www.cedajovanovic.com9. Decade of Roma: www.romadecade.org10. Delegation of European Commission in Belgrade: www.delscg.cec.eu.int11. Humanitarian Law Center: www.hlc.org.yu12. Forum NGO Kraljevo: www.zamislisrbiju.org13. Voice of America: www.voanews.com14. Civic Alliance of Serbia: www.gradjanskisavez.org.yu15. ICTY: www.un.org/icty16. Helsinki Committee for Human Rights in Belgrade:17. IWPR: www.iwpr.net18. Commissioner for Free Access of Information Office: www.poverenik.org.yu19. Lawyer’s Committee for Human Rights:20. Labris: www.labris.org.yu21. Liga socijaldemokrata Vojvodine: www.lsv.org.yu22. Daily Blic: www.blic.co.yu23. Daily Danas: www.danas.co.yu24. Daily Glas javnosti: www.glas-javnosti.co.yu25. Daily Kurir: www.kurir-info.co.yu26. Daily Politika: www.politika.co.yu27. Media center Belgrade: www.mediacenter.org.yu28. ICRC: www.icrc.org29. Serbian Ministry of Defense: http://www.mod.gov.yu30. Serbian Ministry of Foreign Affairs: www.mfa.gov.yu31. Serbian Parliament: www.parlament.sr.gov.yu32. Independent Association of Journalists of Serbia: www.nuns.org.yu33. District Court in Belgrade: okruznisudbg.org.yu213

Implementation of Transitional Laws in Serbia 200634. OSCE: www.osce.org35. Law Initiatives: www.lawinitiative.com36. President of Council of Ministers of SM: www.predsednikscg.yu37. RFE: www.slobodnaevropa.org38. Republic Election Commission: www.rik.parlament.sr.gov.yu39. Republic Broadcasting Agency: www.rra.org.yu40. B92: www.b92.net41. Council of Europe: www.coe.int42. Alliance of Hungarian in Vojvodina: www.wmsz.org.yu43. Transparency Serbia: www.transparentnost.org.yu44. Serbian Government: www.srbija.sr.gov.yu45. Vojvodina movement: www.vp.org.yu214

Implementation of Transitional Laws in Serbia 2006ContentIntroduction .................................................................................................................... 5Evaluation of the Degree of the Rule of Law in Serbia .................................................. 7Analysis of the Text of the Constitution of Serbia ............................................ 9• Constitution Principles ..................................................................................... 9• Human and Minority Rights and Freedoms ............................................ 15• Organization of Government .................................................................. 35• Constitutional Court ...................................................................................... 40• Territorial Organization .................................................................................. 43Analysis of the Process of Adopting the Constitution of Serbia ............................... 50• Adopting of the Proposition of the Constitution .......................................50• Breaking of Regulations on Referendum and Election .................................52• Referendum Campaign ............................................................................ 56Law on Free Access to Information ............................................................................ 61• Statistical Data on the Implementation of the Law on FreeAccess to Information ................................................................................. 61• Implementation of Mechanisms for the Realization andProtection of Right to Free Access to Information ............................... 65• Conclusions on the Implementation of the Law on Free Access toInformation ................................................................................................. 77• Recommendations for the Implementation of the Law onFree Access to Information ........................................................................ 80Law on the Protector of Citizens ............................................................................... 81• Comparative Analysis of Laws on the Ombudsman ................................. 82• Implementation of the Law on the Protector of Citizens ................... 87• Conclusions on the Implementation of the Law on theProtector of Citizens .................................................................................... 90• Recommendations for the Implementation of theLaw on the Protector of Citizens ............................................................. 92Law on Public Information .................................................................................. 93• Examples of Hate-Speech .............................................................................. 96• Conclusions on the Implementation of Law on Public Information ... 102• Recommendations for the Implementation ofthe Law on Public Information ................................................................ 102Law on Broadcasting ................................................................................................... 103• Allocation of Broadcasting Frequencies ............................................. 104• Closing Down Media ..................................................................................... 107• New Changes to the Law on Broadcasting ................................... 108• Hate-speech in Electronic Media ................................................... 111• Conclusions on the Implementation of the Law on Broadcasting ....... 114215

Implementation of Transitional Laws in Serbia 2006• Recommendations for the Implementation of the Law on Broadcasting .. 115Law on War Crimes Prosecution ..................................................................... 116• War Crimes Chamber Cases .................................................................... 120• Prosecutor’s Office for War Crimes .............................................. 124• Implementation of the Law on War Crimes Prosecution ................ 126• Conclusions on the Implementation ofthe Law on War Crimes Prosecution ....................................................... 130• Recommendations for the Implementation ofthe Law on War Crimes Prosecution ........................................................ 131Law on Rehabilitation ................................................................................................. 132• Implementation of the Law on Rehabilitation ........................................ 134• Conclusions on the Implementation of the Law on Rehabilitation ..... 136• Recommendations for the Implementation ofthe Law on Rehabilitation ........................................................................... 136Annex I – Initiative before Courts in the Name of Victims ............................. 139Introduction ................................................................................................................ 140Violation of the Right to Free Access to Information ........................................... 143• Security Intelligence Agency ................................................................ 143• Other Infringements Caused by Disrespect ofthe Law on Free Access to Information ................................................. 149• Serbian Ministry of Interior ............................................................. 149• Serbian Ministry of Justice ......................................................................... 150• Serbian Ministry of Capital Investments .............................................. 151• Republican Broadcasting Agency ............................................................. 151• Public companies: power utility ElektrodistribucijaSrbije and JAT Airways .............................................................................. 152• Municipalities of Trgoviste, Mionica and Novi Pazar ................... 152Instigating Racial, Religious and National Hatred, Discord and Intolerance .. 154• Four Assaults on Zivota Milanovic, Brahman of Hare Krishna inJagodina ........................................................................................................ 154• Ethnically Motivated Violence in the Serbian Army .......................... 159• Stoning of Roma Community in Nis .................................................... 161Right to Rehabilitation ............................................................................................... 165• Rehabilitation of Senad Sljivo ................................................................. 165Hate Speech .............................................................................................................. 170• Hate Speech in Glas Javnosti ................................................................. 170• Hate Speech of MP Zoran Krasic .............................................................. 173• Hate Speech in Kurir .............................................................................. 175Police Torture ............................................................................................................. 178• Severe Police Torture of Citizens in Subotica ................................... 178• Police Torture of Sead Alic ................................................................... 182• Police Torture of Alija Iglica ................................................................... 184216

Implementation of Transitional Laws in Serbia 2006• Police Torture at the „Royal” Hotel ....................................................... 188• Initiative activists’s arrest in Nis ...................................................... 189• Illegal hearing of a minor girl .......................................................... 191• Conclusions .............................................................................................. 194• Recommendations .................................................................................... 195Annex II – Impunity for Instigating Racial, Religious and NationalHatred, Discord and Intolerance ................................................................. 197• District Prosecutor’s Offices ................................................................... 200• District Courts ............................................................................................ 203• Conclusions ................................................................................................ 206• Recommendations ...................................................................................... 207Bibliography ................................................................................................................. 207Content ....................................................................................................................... 215217