Implementation of Transitional Laws in Serbia 2006

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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
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Implementation of Transitional Laws in Serbia 2006

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