Implementation of Transitional Laws in Serbia 2006

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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
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Implementation of Transitional Laws in Serbia 2006

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