PROJECT: "CITIZEN IN FRY LEGAL SYSTEM"The whole research is coming out as a book soon.
The following is the summary and the conclusions.
I Global framework
1. Preconditions for the establishment of the legal state and the rule of law:
Regarding the status of citizens, their rights and freedoms the key question is: can the legal state be constituted under the prevailing conditions in our country. Hence the main question is why the legal state has not been established to date rather than- why it does not "function" properly.
The principal task of the generation living in this period of time is to reach a consensus on fundamental principles on which the political community can be created and to lay the groundwork for its implementation.
Our legal system must be complex, flexible and comprehensive to be effective and to mirror the complexity of society in which it ought to function. A modern legal system presupposes not only a political system shaped by the law and honoring its procedures, but also the one which has enough "value capacity" to meet the legitimate demands of citizens. Reconstruction of the legal system will be a long process, once its direction is determined.
Global factors determining the establishment of the legal state are: democracy (general political framework for the establishment of legal state); civil society (anthropologically civilized milieu guaranteeing the existence of legality); legitimacy (social and moral precondition for any liberal constitution); distribution of power (mutual control and mutual delimitation of power); concept of human rights and freedoms (the most powerful and legitimate basis of contemporary political community and every legal system).
Particular and concrete factors presupposing the constitution of the legal state are linked to the legitimization of law in the following spheres: creation of law (parliamentarian system, electoral system and parliamentary, notably legislative procedure); law enforcement (free and independent judiciary; control of constitutionality and legality; control and responsibility of administration).
2. Citizen in the domestic and international legal order.
The second half of this century was characterized by an enhanced international regulation of human rights. This meant that in addition to the states, citizens also became subjects of international law. The new phenomenon manifested itself in the international legislation of human rights and freedoms and establishment of certain relations between states and the international community.
1. Gradually a model of internationalization of human rights was built. It included:
- international legal sources of human rights and freedoms- regulations of contents of some rights and freedoms of citizens;
- international protection of rights and freedoms of citizens, encompassing monitoring of implementation of human rights, including the judicial monitoring by international bodies;
- the right of individuals to address the international community (under certain conditions) and specific international bodies and ask them to protect their rights (threatened in their states).
If a state reacts by accusing the international community of interfering in its "internal affairs" and violating internationally recognized human rights, it means that it still adheres to the once predominant concept of "an exclusive sovereignty of the state." In the field of human rights such a response of a state has no longer a valid legal foundation.
2. When ideas that human rights, as universal values, must be promoted, expanded, implemented, monitored and sanctioned, are accepted this leads to the setting up of numerous and diverse international mechanisms, organizations and instruments exclusively dealing with human rights. The latter subsequently become an important vehicle in the implementation of integration policy.
3. Within the framework of the United Nations, through numerous acts adopted by this organization in recent past, an universal system of both collective and individual human rights has been established. It contains the most general and universal guarantees of human rights. In that context of paramount importance are international legal documents which, in view of massive human rights violations, guarantee human rights related to the preservation of human dignity and above all everyone’s right to life.
4. As regards our situation, we should pay special attention to two special systems of human rights, set up by the United Nations in response to widespread violations of fundamental human rights:
-Humanitarian law as a universal system protecting human beings from violence in all kinds of armed conflicts. International Criminal Courts ad hoc (The Hague International Criminal Courts tasked with prosecution of perpetrators of grave breaches of international humanitarian law committed in the former Yugoslavia since 1991) and the permanent ones ( The Permanent International Criminal Court, established in July 1998, tasked with trying all persons suspected of crimes against peace, genocide and other crimes against humanity and war crimes, committed anywhere in the world) should serve to that end.
-The Dayton Accord which covers the matter of regional stabilization through its special agreements such as, Agreement on Human Rights, Agreement on Refugees and Displaced Persons and Agreement on Implementation of Civilian Aspects of the Peace Settlement. The Dayton Accord could be studied as an example of how the international community tried to restore "order" and champion human rights to which are the citizens are entitled in the areas in which even the minimum of human rights, both in war or peace, was not observed.
5. Regional human rights systems feature prominently in recent history of regional integration. The European regional system of human rights as the most developed one (Councel of Europe, the European Union, the OSCE) is very important for Yugoslavia, in view of its geographical position. It is an excellent example of well-regulated system of human rights, boasting excellent protection and monitoring mechanisms provided by the European Commission of Human Rights and the European Court of Human Rights.
6. Globalization of human rights will be the trend and the most important feature of the twenty first century. Although this process has been initiated (for example the instutute of the European citizenry) at this moment it belong more to the realm of imagination than to reality. If under the changed conditions of both domestic and international order, we try to reduce globalization of human rights to the issue of status of citizens, we shall be faced with the basic dilemma: to which extent shall in the future the status of citizens depend on the legal order of the state and its treatment of human rights and will the influence of the international community reduce or entirely eliminate dependence of individuals on the state or its bodies. The status of Yugoslav citizens indicates that their well-being requires implementation of the subsidiary principle, that is, problem-solving at the lowest level of the existing organization of the state order. Cooperation in areas of common interest, notably human rights, can be effective even when when it covers distant nations. In view of that it can be expected that globalization of human rights will be a great success and will ultimately affect the world development and peace in the future.
3. Constitution and freedoms and rights of citizens
In the sphere of freedoms and rights of citizens and their protection, the existing constitutional concept has many drawbacks. In view of that we recommend the following changes:
1. It is necessary to operationalize the general viewpoint on the primacy of international law over domestic law in the normative part of Constitution, particularly in the part covering freedoms and rights of citizens and their protection;
2. Constitutional guarantees of contents of freedoms and rights of citizens, notably personal freedom and rights of citizens, regime of freedom and rights of citizens in time of war, imminent war danger and state of emergency, definition of state obligations in the area of exercise of social and economic freedoms and rights, should be harmonized with international conventions.
3. As regards international contracts the following should be established: a) is the implementation of ratified international contracts on human rights in Yugoslavia satisfactory, and if not, what should be done to improve it; b) is there any interest and need for Yugoslavia to ratify other international contracts from the aforementioned areas, if that has not been done so far, (for example the 1961 Convention on Decreased Number of Persons without Citizenship which has not been ratified to date), and c) diligent monitoring of developments in the area of international law related to human rights.
4. It is necessary to establish clear boundaries between the constitution and the law in the field of the guarantees of basic rights and freedoms The criterion for this division stems from the nature of a certain freedom or right:
- in view of a complex set-up of the FRY, basic freedoms and rights of citizens should be determined by the Federal Constitution;
- a legislator could be authorized to regulate only the procedure of enforcement of a constitutional rule, but not the contents of freedoms and rights;
- Constitution should also lay down the restrictions on fundamental freedoms and rights of citizens, by stressing a restriction placed on each concrete right and freedom and avoiding general rules and possibility of their subsidiary enforcement;
- abuse of rights should not be regulated by a general institute, and particularly not by an institute whose subsidiary enforcement is generally made possible; abuses of basic rights and freedoms should be regulated by the Constitution, and legislators prerogatives in each concrete freedom and right should be defined precisely;
-along with regulating guarantees of social and economic rights, it is necessary to specify who is duty-bound to provide the conditions for implementing the established guarantees; emphasis should be on the pertinent obligations of the state.
5. Constitutions of federal units must be harmonized with the Federal Constitution and principle of the supremacy of the Federal Constitution must be normatively and consistently expressed in legislation governing freedoms and rights of citizens. Constitutions of republics members of federation can deviate from the Federal Constitution in the positive direction, that is if they guarantee more freedoms and rights that the Federal Constitution. Restrictive approach of republican constitutions, that is their attempt to restrict guarantees provided by the Federal Constitution, should not be allowed.
6. Legislation governing freedoms and rights of citizens- notably its basic acts, must be included in a group of acts subject to a stricter legislative procedure, in order to protect them from frequent changes and amendments. This in turn would improve the legal security of citizens. The existing constitutional system allows such a possibility through the institute of agreement of federal units to degate their authority to federal bodies and empower them with regulating the areas originally under their jurisdiction.
7. Constitution should cover all essential institutes for the protection of freedoms and rights of citizens, and notably: protection of citizens from the administrative bodies, basic guarantees of this form of protection; direct protection of freedoms and rights of citizens before the Constitutional Court; institute of constitutional appeals should be made preferably in the the shape of popular appeal; essentially individualistic concept of protection should be made more complete with instruments and institutes of collective rights protection (for example organizational appeal or some other intrument.)
8. Constitution should guarantee the right of citizens to appeal to international institutions for the protection of freedoms and rights of citizens, under conditions prescribed by international law.
9. The need to establish the institution of Ombudsman, one acting as the protector of rights of citizens, and the other, in view of the mullet-ethnic structure of population, as protector of rights of national minorities, should be seriously considered.
10. As regards the legislation in force, it is advisable to revise all legal solutions regulating the contents of freedoms and rights of citizens in order to strictly reduce the scope of regulations to the constitutional framework and to the issues dealing with the procedure which guarantees a genuine exercise of citizens’ freedoms and rights. It is necessary to immediately bring into line the existing SFRY laws with the FRY Constitution.
11. Ensure swift proceedings before the internal bodies to enable the claimant to address international institutions if he/she is not satisfied with domestic judgement. Addressing international institutions is to be allowed only when all the legal remedies are exhausted in state proper.
II Property rights of citizens and the right to private business
The above rights are very important in the societies undergoing economic and political transition. The status of citizens was analyzed in the areas of civil rights and contract relations, as well as in the light of a new constitutional right- the right of citizens to private enterprise.
1. The Real Rights
Constitutions of the FRY, the Republic of Serbia and the Republic of Montenegro guarantee the right to property and other real rights in keeping with international law standards.
Legal voids which exist in the area of real rights affect adversely the legal security of citizens. Hence the pertinent legal regulations should be expanded. Firstly the republican regulations on the right to property and other real rights should be passed. Secondly, the possibility of passing a uniform and comprehensive civic code, regulating among other things, the matter of real rights, should be examined.
Comprehensive regulation of matter of real rights and total stabilization of economic, political and legal system would lessen the need for state interventionism.
Strengthening of constitutional and judicial control of constitutionality and legality should put an end to passing of sublegal acts restricting the real rights of citizens.
Restitution of expropriated and confiscated agricultural land to original owners positively affected the legal security of citizens.
Original owners should be given back their entire nationalized property or be compensated justly, in cash, for that property.
Original owners should be returned their building land.
Endowment institutions should be given back their nationalized property.
Property traformation should be preceded by de-nationalization.
Property transformation must be carried out in a just manner and its effects in the future should not be invalidated by retroactive enforcement of laws/legal acts.
Registration of real estate property should be returned to the judicial competence.
2. Contractual rights
The Act on Contractual Relations as a general law of the legal trade is one of the best acts which has stood the test of time and challenges of judicial practice. It is an act of freedom, and not an act of restriction. It allows the parties to regulate their contractual relations in keeping with the principle of freedom of contract-making alongside the generally adopted restriction of public order, good customs and compulsive regulations.
Problems related to its enforcement do not stem from shortcomings of that act, but from the particular legislation which has often generally suspended freedoms proclaimed by this act. The role of special legislation is to regulate accurately rights of special areas of contractual rights, but those areas should be instead regulated in keeping with the requirements of the market society and experiences of comparative law. Lex specialis’ of the civil law derogate general law only if they give more rights or serve to their clarification, but imperative regulations of special legislation should not fully deny freedom of contract-making as a principle. Special legislation is often supplanted by sublegal acts in the sphere of regulation of subjective civil rights along with encroachment on acquired civil rights through its (direct or indirect) retroactive effects.
Obstacles to enforcement of the Act on Contractual Relations are often of non-normative nature (property structure, adherence to the state property, property monopoly which hinders free initiative). A large number of privatization acts of different concepts has been put in place, but results of privatization are derogated by reevaluating sublegal acts, effects of inflation or new-concept acts. Under such conditions the legal insecurity is permanent (from privatization to hidden nationalization), whereby the so-called de facto privatization is continually unfolding, but not on the basis of purchase of capital and free competition.
3. Right to private business
Current transition problems confirm the widely held viewpoint that the market economy is not feasible without the legal state, that is without the rule of law. Rules of conduct (game) in the economic sphere, created to a large extent by the state (government) have a decisive influence on the course of economic engagement of individuals: whether he/she will opt for gray economy, high-technology enterprises, creation of new jobs etc. In the market economies the freedom of choice is limited by the rules of conduct (game).
To fully implement the right to private business it is necessary to do the following: to pass and enforce provisions clearly ensuring the equitable status of private sector with other economic sectors and to pass precise and solid regulations so as to exclude the possibility of too frequent and facile amendments (persons embarking upon private business must have the feeling of legal security, and be clearly presented with regulations and conditions specified by the legislator, in view of the fact that they are forced to operate under conditions of major economic uncertainty and risks). It is necessary to carry out privatization in parallel with development of market institutions. If there is competition all companies with have an equal chance to vie for the best economic results. The legal procedure has at its disposal the conflict-avoidance and conflict-resolution means. Law should encourage free, private negotiations based on autonomous will of economic subjects, including the exchange of legal competences. Lawsuits can be avoided if economic subjects are allowed to make private arrangements and conclude agreements which presuppose the exchange of legal authorizations.
III Economic and social rights
1. Legal provisions regulating labour position and trade union rights of citizens
For the past ten years the FRY has been undergoing the process of a comprehensive social transition. Property transformation of social property into other forms of property, as the basis of market-oriented labor relations, is still under way. It is characterized by ambiguities and contradictions. Consequently, labor relations are also being transformed from self-managing labor relations based on the social property to the market, two-sided, contractual labor relations based on plurality of property relations, but without social property. At work are both state and autonomous regulating of labor relations, whereby the former is more prominent. But the role of collective contracts will be strengthened once the position of market economy, that is of the free flow of commodities, labor and capital, is enhanced and the currently limiting factors of both internal and international character are overcome.
During the transition process an equitable and uniform legal nature of labor relations or equitable and uniform position of all the employed are not attainable, not so much because of normative aspect of things, but because of differences between the normative position and factual reality of relations between all protagonists, the state, workers and employers.
Even today labor relations are of a mixed character. They contain elements of two-sided labor relations based on labor contracts, to a large extent normatively presented, and also elements of self-managing labor relations which are slowly disappearing. This in turn implies that there is a disparity between normative and factual, caused by general social, political and economic state of affairs.
2. Social rights and social protection of citizens
The authoritarian communist regime of the former Yugoslavia at the same time openly repressed political and many civil rights and enabled the exercise of economic and social rights of a large majority of population. A high level of economic and social security was reached, and the regime combined it with the ideology of "equality", as one of the pillars of its legitimacy. In comparison with some other ideological postulates (for example the one of "socialist" democracy as the only real democracy), the postulate of a comprehensive, universal, social security of "workers" was closest to the social reality. A large part of population gave up, more or less willingly, individual freedom and initiative, in order to have social security provided for and guaranteed by the state.
The new state (the Federal Republic of Yugoslavia) in essentially altered political, economic and social conditions maintained a practically unmodified normative framework for the exercise of economic and social rights. The latter could be assessed as akin to the high standards of European states. Under conditions of a deep economic crisis and halved social product in the last several years, that caused a factual "emptying out" of economic and social rights and their reduction to "empty rights" (iura innania). All this happened also under conditions of across-the-board pauperization and increased social and other needs of a large part of population.
The largest part of heath care beneficiaries in Yugoslavia cannot exercise the minimal rights stipulated by article 10 of the Convention 102 on Minimal Social Care in the Field of Health Security, and they are: hospitalization and hospital care, purchase of prescribed medicines, health institutes care and assistance.
System of decision-making and management in the areas of economic and social policy is maximally centralized, which has enabled the state, that is the executive authorities to become a decisive and the only arbiter in the area of needs and rights of citizens and to act as the custodian thereof.
In the normative sphere international standards related to trade union rights and freedoms are accepted in principle, but constitutional provisions on the freedom of trade-union organization, trade-union pluralism and the right to strike are relativized by restrictive and repressive legislation.
Freedom of trade-union organization is restricted by the rigid Rules of Registration which envisage only registration with the Republican Ministry of Labor, and Veteran and Social Rights. That is in line with the practice of the current authorities to rule by decrees, rules of procedure and other sublegal acts which are often contrary to legal acts and Constitution.
IV Right to education and freedom of public information
1. Legal regulations in education from the standpoint of citizens
When establishing the education policy major care should be taken of the best interest of children. Legal acts regulating this matter should help decentralize the rights covered by this area.
The Republic of Serbia should task the provincial and municipal bodies with the administrative control over this area, to make that control more effective.
To revive the principle of constitutionality and legality in the area of education it is necessary to separate pedagogical and professional control from the administrative one. Only jurists with long-standing experience in the education area should be tasked with carrying out administrative control.
Only trained jurists familiar with the entire legal system of this state should be engaged in the field of normative-legal matter in the administrative bodies. This would mean a departure from the current practice of employing only jurists specializing in a certain legal area and unfamiliar with the other, closely related legal spheres.
When appointing directors of primary and secondary schools, as well as the faculty deans the basic criterion should be their expertise and moral qualities.
When enrolling students at Pedagogical Faculties one of the basic criteria for their admission should be "the psychological ability to work with children and pupils."
Pedagogical programs and curricula should have a mandatory group of pedagogical subjects. Educational programs and curricula at non-pedagogical faculties should include as their facultative subjects a psychological and pedagogical group of subjects for those students intending to work in pedagogical schools.
Any breach of legality and constitutionally by school directors and faculty deans should be legally qualified as a "grave offense of labor duty" entailing the suspension of that person.
2. Freedom of public information
After a detailed legal analysis of the Act on Public Information of the Republic of Serbia, promulgated on 20 October 1998, the analysts have unanimously concluded that the act is not legitimate and legal. Added to that they assessed that the Act is not legitimate for it established a rigorous control of public information, and it is not legal as the bevy of its essential provisions are contrary to the Constitution, international legal acts and laws regulating legal principles and general legal institutes. Therefore citizens have every right to contest this Act and launch initiatives with a view to establishing its unconstitutionality.
V Citizen as a sovereign political subject
Two areas, the electoral rights and the right to local self-rule, were analyzed as the areas in which citizens can best express themselves as sovereign political subjects.
1. Electoral rights of citizens and the legal system
Analysis of the electoral provisions indicated the need for fundamental changes in the field of electoral system.
1. It is necessary to achieve consensus of relevant social and political forces on basic prerequisites for and conditions of free elections. In other words consensus must be reached on the following: selection of the basic principle of representation for different levels of the state organization; democratization of the media and free media work during the pre-election campaign; funding of political parties and their financial equality; funding of electoral campaign.
2. In the constitution the following election matter should be regulated: content of electoral right and conditions of its acquisition; reasons for parliamentary incongruity; principles governing the making of electoral lists; criteria for setting up electoral constituencies; selection, composition and authority of electoral bodies; election control; protection of electoral right; possibility of establishing electoral courts as specialized courts (or court councils) handling electoral disputes; special procedure regulating the passing and enforcement of electoral act.
As in Yugoslavia elections are becoming an important vehicle in the democratic constitution of power, it is necessary to regulate the election matter in the very constitution. This and a special legal status accorded to electoral legislation would contribute to the establishment of more stable normative and institutional electoral framework and provide for the minimal legal standards for holding elections.
3. In view of the nature of the matter regulated by electoral legislation, it should be protected from frequent amendments by specifying a stricter revision procedure for electoral legislation, by banning the revision of electoral laws in the year in which elections are called and by passing special rules on the enforcement of the revision of the electoral regulations.
4. Legal regulation of electoral law should be under an exclusive jurisdiction of constitution.
5. Special attention should be attached to procedural electoral law, as the pertinent legislation is sketchy and incomplete. If their content were made cogent and stable, and then codified at the federal level it would contribute to the legal security of participants in elections and provide for their equitable legal status.
6. As the electoral geometry and the distribution of mandates are factors which play a decisive role in the selection of the electoral system, the effect of legal solutions on electoral conditions should be transparent, and such solutions ought to enjoy the same legal status as the other electoral acts.
7. It would be useful to adopt an Electoral conduct code, establishing rules of a democratic political culture in the electoral process. As all rules of electoral conduct are not covered by law such a document would be welcome. It could lay down rules under which an electoral campaign can be held, those of the media presentation, and then rules determining the scope and content of dialogue of election participants. Such a code would be a joint document adopted by participants in a round-table. By extension they would commit themselves to observing autonomous rules which they have formulated.
2. Right of citizens to local self-rule
In addition to electoral law, the right of citizen to local self-rule is one of the basic rights through which citizens express themselves as sovereign power-holders.
In this field we recommend decentralization:
1. Content and extent of original powers of local communties should be expanded notably in the areas in which needs and citizens can be met within the framework of local community.
2. Original authority of local communities should be determined and guaranteed by constitution and the local community statute.
3. Local communities must be independent in carrying out their operations, duties and responsibilities and must be guaranteed funds for their realization.
4. Uniform concept of local communities should be replaced with the pluralist one in view of diversity of local communicities in the country.
5. If case of delegated powers they must be adjusted to the needs of each concrete local community.
6. Funds granted to local communities should depend on their real needs. Objective criteria for communities’ funding as well as for their independent revenues should be established.
7. Citizens living in a local community should be empowered to organizing its operations in accordance with their needs.
8. Specific features of minorities’ local communities should be expressed.
9. Local communities should participate in central decision-making process if decisions are taken on issues relevant for local communities and their citizens.
10. Right to local self-rule should be protected through legal protection instruments, and particularly from central authority powers which encroach on the right to local self-rule.
11. Horizontal linking between local communities should be facilitated.
12. Principles of the European Charter on the Local Self-Rule should be incorporated in the legal provisions on the local self-rule.
VI Citizen and administration
In everyday life citizens have to contact a host of administrative bodies in order to exercise their freedoms and rights. Hence the administrative treatment of citizens is an important indicator of the extent of implementation of citizens’ rights and freedoms. By extension the police treatment of citizens indicates the degree of protection of personal freedom, which is one of the basic freedoms of citizens.
1. Legal state, reform of public administration and protection of citizens’ rights
Essential changes are needed in the public administration area. Namely instead of controlling citizens it should serve them through knowledge, techniques and methods yet to be mastered. When the latter is achieved the public administration functioning would be improved. The basic prerequisites for the above are the following: building of legal state, design and execution of radical, efficiently organized and controlled reform of administration to make it serve the market economy with the full backing of the political leadership; preparation of a project of administration transformation with the full backing of those who should carry out those changes and by relying on international experience; building of system of protection of freedom and rights of citizens in which administration would not oppress citizens, but rather serve them; establishment of specialized expert organizations dealing with administrative issues.
Administration must have its legal basis and framework, as well as precisely established legal and legitimate objectives, functional organization and highly professional staff trained to work under the high-tech conditions.
Legalization and legitimization of objectives from the standpoint of freedom and rights of citizens bring to the forefront the following courses of action: legality and concept of legal state; democratic legitimacy through de-politicization and existence of full professional independence of career clerks and full status independence of white-collars; legitimate social effectiveness with the right to discretionary assessment under the control of predominantly legal, but also moral principles: gradual transformation from the bureaucratic control to administrative control characterized by efficient activities and not by formalization of decisions (attention should be paid to results and not to work processes); the state-organized and encouraged development of administration, management, with full political backing of leadership.
Two general trends should be supported: de-politicization trend (as the result of introduction of multiparty system) and professionalization trend as the result of introduction of knowledge serving as the criterion for promotion. Modern state administration protects the rights of citizens and changes its character by assuming responsibility for successful functioning of public services. Hence administration trades its compulsive role for the one of service-rendering to citizens, and not to the political structure.
To implement such a concept of administration, in addition to meeting basic requirements the following should be done:
1. amend the Act on State Administration, which now represents only a interim outline of the changes yet to be introduced,
2. bring into line the Act on State Administration Employees with the new world standards and transform it into the Act on Public Employees,
3. raise the technical level, which would entail allocation of large budgetary funds to that end,
4. develop professional and management abilities in line with the world standards, which presupposes existence of special educational programs and continuous specialization during the years of service,
5. establish high ethic standards in administration while continuously curbing corruption, graft and misuse of official positions,
6. expand the control and supervision of legality of administrative acts by changing the system of administrative disputes.
2. Legality of police work
Having analyzed regulations governing the police organization, authority and work from the angle of freedoms and rights of citizens and their protection, we concluded that in that field changes had to be effected, particularly those which would introduce better guarantees for personal freedoms of citizens.
1. Legislation and accompanying provisions regulating this field, often contrary to constitution, represent a main obstacle to the implementation of constitutional guarantees of personal freedoms of citizens. in other works, the aforementioned provisions suspend constitutional guarantees. Instead of direct enforcement of constitutional guarantees, acts and accompanying provisions in direct collision with constitution are in force. Hence the removal of unconstitutional legal provisions is expedient.
2. The above problem could be resolved by adoption of new legal provisions in the pertinent field.
But as the adoption of new acts in this complex and sensitive legal field is a lengthy process, unconstitutional provisions could be swiftly and efficiently removed from the legal system by implementing the following legal possibilities:
- constitutional courts could rule that such legal provisions are unconstitutional and declare them invalid;
- immediate enforcement of constitutional provisions establishing rights and guarantees non-extant in the current administrative and police legislation and accompanying provisions.
3. As regards the police work the recommended changes concern general and particular conditions for the use of compulsory instruments; detention, and restriction of freedom of movement of citizens; the police prerogatives in the so-called pretrial or pre-criminal proceedings and special authority of police in undertaking formal, investigative actions.
4. A new concept of the police education should be formulated and implemented, and the issue of internal, and particularly external control of the police work should be adequately resolved.
VII Collective rights (social groups)
We also analyzed the body of collective rights, and singled out two groups- the national minorities rights and the refugees’ rights- in view of their importance for the FRY legal system.
1. Rights of national minorities
Insight into the rights of national minorities, particularly in Vojvodina, indicates that many changes should be introduced in this legal field.
1. The minorities issue in Vojvodina, and elsewhere in Yugoslavia, can be resolved permanently and in a satisfactory way only if democracy, constitutional order, legal state and freee market are instituted in Yugoslavia and its multi-national character of respected. It is not possible to build a centralized national state in the country in which more than a third of population are national minorities with specific features and political organizations.
2. It is necessary to accept those demands of national minorities which do not threaten sovereignty and integrity of state in which they live, and which at the same time aim at preservation of their culture, de-centralization and different types of autonomy and self-rule.
Comparative experiences offer different examples of legal-normative models which could enable realization of the principle of self-rule-ranging from special representation of minorities in the state bodies with the right to veto in certain areas, different forms of autonomy and minority self-rule, regionalization and decentralization, to the federal principle. All of them should facilitate a certain degree of self-rule in the key areas for the survival of minorities, their culture and identity. The said principles should be guaranteed by constitution.
3. Delegation of power to the smaller national minorities and decentralization should legally and institutionally empower them to hold sway in the following areas: education in mother tongue, public information, official use of national minority language, culture, etc. Decentralization in those areas would not treathen the sovereignty of the country, interests of Serbian people, nor would require large funds. It would only threaten a totalitarian, centralized power, and make it lose full control over specific areas of social life. Decentralization would bring about a genuine distribution of power and restriction of central power, and would represent a step forward in the process of building a democratic society based on limited and divided power, as well as on a genuine equality of all individuals and citizens in a multi-national community.
2. Rights of refugees, expellees and displaced persons
Several different acts and pertinent provisions regulate the legal status of refugees, expellees and displaced persons. They are not harmonized and some are not even in keeping with the Convention on the Status of Refugees.
Legal status of the aforementioned categories should be harmonized with provisions of the Convention on the Status of Refugees (for example provision on military obligation of refugees should be repealed.)
The legal system of the FRY and those of the states which once made up the SFRY should facilitate the acquiring of citizenship as an universal human right.
The newly-emerged states should adopt the following international standards and incorporate them into their legal systems:
- refugees ought not be asked to submit a certificate on the annulment of their earlier citizenship, unless they are a priorii guaranteed a new citizenship;
- the states reluctant to introduce a principle of dual citizenship should be made to do that in view of the fact that the granting of dual citizenship is a growing worldwide trend; also if the states have not signed the agreement envisaging dual citizenship on the basis of reciprocity, they should at least tolerate it;
-all persons who had EX-YU citizenship have the right to citizenship of the state in which they had their domicile at the moment of its legal inception;
-presumption of the republican citizenship should be determined in all the conflict-affected republics of the former Yugoslavia (as the birth registers in all those areas were destroyed, stolen and damaged such a presumption would relieve citizens of an almost impossible task of having to prove their citizenship);
-facilitate the proving of citizenship;
-when regulating the issue of citizenship take into account the internationally recognized principle of the family unity;
-procedure of naturalization of refugees must be simplified and exempted from administrative expenses;
-acquiring of citizenship in the country of reception should not be conditioned by the financial status of refugees, that is by their income.
2. In order to effect these changes in their legal systems the former YU states should cooperate in the implementation of international citizenship standards, and harmonize their domestic citizenship regulations to make these standards both a special instrument of refugee protection and guarantee of their right to citizenship.
VIII Legal system and personal freedom
Personal freedoms of citizens is one of the fundamental freedoms of citizens. It is most pronounced (and threatened) in the criminal legislation. Hence the focus should be on its procedural and offense aspects.
1. Protection of freedoms and rights of citizens under criminal law
The relationship between rights and freedoms is complex and multi-faceted, notably in the field of criminal law. Specific features of protection of human rights and freedoms stem from the very nature of criminal law, which is a public, repressive, punitive and preventive instrument in the protection of social values of society and individuals from violence and disorder. The legal basis of compulsion is the protection of citizens (as well as of other basic values of society). General institutions incorporated in the international and the domestic criminal law play a major role in the protection of freedoms and rights of citizens.
As the current system of legal and criminal protection of citizens’ rights and freedoms is flawed, we recommend the following changes in the key areas:
1. International standards must be incorporated in the criminal and legal protection of freedoms and rights of citizens, as the international aspect is stressed in the institutions of positive criminal law. Criminal and legal protection becomes an international issue if the content and enforcement of concrete domestic law are contrary to internationally undertaken commitments of the state. Constitution in force must be viewed in the context of international commitments of the state. Disharmonies between domestic and international law must be eliminated.
2. It is necessary to introduce an adequate legal communication between constitutional provisions on freedoms and rights of citizens and criminal law. Constitutional provisions have a primacy over the ones contained in the criminal law whereby the wholeness of legal norms in this area is ensured. A thorough analysis of the constitutional provisions on the protection of freedoms and rights of citizens indicates that they are not equally protected. This is not unnatural, but the new criminal law should nonetheless examine the issue of quality and degree of protection of freedoms and rights of citizens.
3. Analysis of criminal legislation made it clear that some drawbacks should be eliminated or overcome:
-the state-controlled approach to some parts of criminal law, its repressive nature and the widespread ideologizaiton of some legal notions. In principle liberal orientation, placing to the forefront the protection of individual, human and civil values, should be championed and accepted. However, this presupposes the balanced protection of individual and general values.
-extensive, subsidiary criminal legislation is not harmonized with the criminal law. All provisions should be properly harmonized.
-disharmony between the prescribed and enforced law has a bearing on the genuinely repressive nature of criminal law. Penalty&punishment policy and the judiciary play a major role in that. There are two lines of punishment policy: one is taken by the legislator and the other by the judiciary. Jurists should urge that the lower degree of repression be specified by the legal content of criminal law in order to formally prevent the judiciary to subsequently pronounce more repressive judgements. In this way the level of repression prescribed by criminal law will become more "authoritative" and effective.
-a wide-ranging set of permissive standards (particularly in the field of administrative law), condone certain conducts which in their gist are socially dangerous and punishable and exclude them from the jurisdiction of criminal law. These standards should be thoroughly re-examined and some made more stringent or even eliminated
- dynamic changes of concept, content and extent of freedoms and rights of citizens must be closely monitored by experts for criminal law with a view to subsequently effecting necessary changes in the pertinent legislation.
2. Procedural guarantees of personal freedoms of citizens
Analysis of procedural guarantees of personal freedoms of citizens indicated the following:
1. The new FRY Constitution contains a good and comprehensive system of just and specific procedural guarantees of personal freedoms of citizens. This is quite an improvement with respect to the past situation in this field. But due to their non-enforcement the procedural guarantees have no practical value. In order to set in motion the protection of human rights, in general, and the procedural protection of personal freedoms of citizens, in particular, it is necessary to put into practice the provisions of the new FRY Constitution.
2. As constitutions of republics are not harmonized with the FRY Constitution it is not clear which provisions have a bearing on the above sphere. Needless to say that this harmonization should be immediately effected.
3. Legislation governing the procedural guarantees and protection of personal freedoms of citizens is not harmonized with the FRY Constitution. In fact it relies to a large extent on the old SFRY constitution, which was only partly adjusted to human rights international documents. Hence all the relevant provisions should be harmonized with both the FRY Constitution and relevant international documents.
4. Under the Act on Implementation of the FRY Constitution the validity of the acts of the former state was extended and the new FRY Constitution ignored. In case of legal collision the unconstitutional norm of the old act is enforced and not the norm of the new constitution.It bears stressing that the new Constitution contains norms which provide for a full protection of personal freedoms of citizens in conformity with international documents. Hence the act confirming the primacy of the new FRY Constitution in this area should be immediately passed.
5. Passing of new federal acts, which would enable the full enforcement of the new Constitution, is slowed down. The pertinent legal work is done in a slipshod and routine manner, whereby the existing acts are only amended or supplemented, and their wording adjusted to the text of the new Constitution. There is no awareness that recent political and social changes necessitate a comprehensive reform of legislation. What is needed is a political will and readiness to embark upon extensive legal reforms, particularly in the field of criminal and procedural law, with a view to harmonizing the pertinent legislation with the FRY constitution and international documents which set the standards of procedural-legal protection of personal freedoms of citizens.
3. Offense law and legal protection
In our existing legislation offenses are qualified as "violations or disturbances of public order." A set of wide-ranging provisions governs the system of offense law. This legal matter is connected in a particular way with everyday life of citizens and their various associations. Hence the importance of institutions of offense law from the standpoint of protection of human rights and freedoms. This area merits our attention not only because it represents a wide "social scope" in which specific control of conduct is regulated by penalties, but also because it brings into question the whole issue of regulation of this relatively repressed matter in the Yugoslav legal theory.
1. The offense matter is regulated by numerous acts (institutes of offense law and offense procedure and sublegal acts (some offenses). There are also parallel provisions which regulate the same matter in a different way. Some institutes or branches of offense law are contrary to some provisions of the federal constitution. This means that first the offense law system as a whole must be harmonized with the constitution and then its segments.
2, In conformity with the idea of legal state and democratic, that is, liberal social relations, offense law should be regulated along the following lines:
-offense norms must provide for the protection of the constitutionally guaranteed rights and freedoms of citizens, and not constitute a threat to it. When passing new norms or their amendments and in the course of their enforcement it is necessary to avoid at all costs otherwise necessary restrictions of these rights.
-duties of citizens with respect to public order should not be overstated, as public order ( which has been devised to serve citizens’ interests) is already protected by offense law and constitution.
3. Concerning the field of sanctions the following should be re-examined:
-whether the existing protective measures remove the imminent danger of new offenses, and whether they trespass the zone covered by offense law and conversely, threaten the very rights and freedoms of citizens? In other words do they go beyond the notion of "public order" in the sense of legal offense and instrumentalize the offense sanction beyond that area?
-fines should be re-examined in order to establish whether some amounts involved correspond to the severity of offense, to compare them with the fines envisaged under criminal law, and to establish whether they are too high with respect to the financial status of largely impoverished populace.
-As regards the terms of imprisonment some things could be also called into question: how justifiable is a term of imprisonment in the offense law in view of its retributive nature?; Can this punishment be pronounced by an offense body which is not a court of law in the strict sense of that word?; Should this punishment be envisaged for some offenses, particularly those related to the exercise of some social and political rights of citizens?
The assessment of the relevant experts is that the offense procedure is in principle well-organized, particularly from the standpoint of the defendant, who, under the law, may be entitled to the shortened procedure and on-the-spot payment procedure, whereby such summary procedure is transformed into a regular one.
5. It is necessary to finally establish the legal status of offense bodies.
IX Institutions and organization of authorities
Preconditions for the establishment of legal state, freedoms and rights of citizens, particularly with respect to public authorities, should be created. This presupposes the establishment of power on the following principles: division of power and parliamentarism; independence of the judiciary and constitutional and judicial control of constitutionality and freedoms and rights of citizens.
1. Division of power
Although the principle of division of power is incorporated in our constitutions, it has not become a constitutional practice. Added to that this principle has not been consistently and consequently expressed in the normative area. To restrict the power, at least in the normative area, and make it stimulate from this sphere the desirable democratic changes in the political and social life, it is necessary to effect the three basic divisions of power: vertical (spatial) division of power between central and non-central bodies, horizontal (functional) division of different functions of power and social-political (interest) division of power between different social groups.
1. The horizontal division of power and establishment of parliamentary system instead of the current, authoritarian, and flawed presidential system, presupposes the following: mutual control and balance of different branches and institutions of power as a system of relations in which each power branch (institution) will influence the other and restrain it; bi-cameral structure of parliament which introduces the principle of mutual restriction of chambers in the legislative power and contributes to self-restraining of the legislative power; coalition governments guided by the principle of division of the executive power, consensus and self-restraint of the executive; instruments which establish relations of mutual control of different branches of power and currently unrecognized by the existing constitutions (interpellations, parliamentary investigation, etc.); organizational and procedural guarantees of the judiciary independence; separation of the prosecutor’s office (institution) from courts of law; judiciary control of the legislative power and direct judicial and constitutional protection of freedoms and rights of citizens; appointment of Ombudsman as the protector of freedoms and rights of citizens and an instrument of extra-parliamentary control of the executive and administrative power.
2. Vertical (spatial) division of power between central and non-central bodies should be based on the decentralization principle rather than on the principle of excessive centralization (the latter is supported by the existing normative solutions and as such practiced in the constitutional order). Decentralization and self-rule are institutional forms of expanded democratic basis of power and as such of primary importance not only for the division of power, but also for the status of citizens. They presuppose different forms of autonomy and self-rule which restrict absolute domination of central power and make room for expansion of civil society and democracy; original power and authority of local self-managing and autonomous communities will have precedence over the delegated power; division of power in line with legal principle, guaranteed by constitution, and impervious to political arbitrariness; participation of citizens and other subjects in the governing process, in the election of those who will govern, and in the process of making decisions which have a bearing on their life in a small community, etc.
3. Social and political division of power effected in conformity with differing interests of social and political strata, and among multitude of autonomous, economic, cultural, political associations, companies, trade-unions, ideological, cultural and religious groups, autonomous universities, independent and responsible print media, namely in the milieu of open civil society with liberal political culture and honoring differences, competition, tolerance, dialogue, compromise, as preconditions of social and political guarantees of human rights and the citizenry status.
2. Independent judiciary
Originally established to ensure legality and observance of human rights, independence of the judiciary morphed into one of the basic human rights.
1. Certain legal prerequisites and protective legal guarantees are necessary for the attainment of the independent judiciary. Changes in this area should be effected along the following lines: division of power presupposing major reforms of the judicial, notably criminal proceedings; amendments to the act on organization of courts of law, notably, appointment of judges, their responsibility, immunity and protection, permanent and fixed judicial positions, manner of establishing the judiciary budget and financial independence of courts, salaries of judicial staff, right to natural judge; establishment of legal guarantees of judicial independence and enhanced instruments of the judicial protection in view of the low level of legal awareness and political culture in the country; such guarantees and instruments should prevent any sway on courts of law and empower them to operate in accordance with constitution and other laws; basic legal guarantees of independent judiciary should be incorporated in constitution (constitutional guarantees) and in legal acts (legal guarantees); firm guarantees of execution of judicial judgments should be given to restore the trust of citizens in the judiciary and return the settlement of lawsuits in the fold of legal system; retroactive changes of judicial decisions should be banned; changing the composition of courts of law with a view to influencing the judicial decision-making process should be banned; judges should be appointed and dismissed by a politically neutral state body, independent of the executive and legislative power; eligibility of applicants for judicial positions should not be subject to any bias, and discrimination against judicial candidates on the grounds of political and other convictions should be eliminated; genuine candidates’ qualifications should be deemed the principal criterion for their eligibility to a judicial post.
2. Some provisions ought to be radically changed: status, manner of selection and criteria for eligibility of judges-jurors; military courts (should they exist only in wartime or should their authority be restricted in peacetime; the right to appeal against decisions of military courts to the civilian ones should be introduced).
3. Constitutional and judiciary protection of constitutionality and freedoms and rights of citizens
Some general preconditions must be met to in order to make constitutional courts the true protectors of constitution. The system of constitutional judiciary can function only if the confronted side, notably the one whose act is the subject of evaluation by the constitutional court, are ready to abide by a judicial decision and legally enforce it. The lack of consensus on the fundamental principles of community makes controversial the very subject of protection, that is, constitution. If constitution has not expressed consensus on the basic principles on which the political community rests then constitutional court does not have a clearly limited scope of activities.
Aside from the lack of general prerequisites for the functioning of constituional principles and their protection, in the field of positive law there are also other obstacles to the proper discharging of constituional court duties in the protection of constitutionality and freedoms and rights of citizens. And the obstacles are:
1. Status and oganization-related issues which shoudl provide for independnece of constitutional courts: selection and appointment of judges should be harmonized with the principle of division of power by combining selection and appointment and ensuring the praticipation of the judiciary and the executive power; conctitutional judges should elect the president of constitutional court; the main criterion for assessing applicants’ eligibility for a judcial post are their qulaifications, namely university degree in law and profesisonal experience (years of experience); party membership and political leanings should not play any role in the eligibility of applicants to judicial posts; judges should be allowed to serve a single, 10-year temr of orrice; financial security and independnece of jduges should be ensured by allocating a special budget to that purpose.
2. Powers of constitutional courts: legal criterion should be estalbished as the only criterion for the assessment of legality and constitutionality; constitutions of federal units should be harmonized with the FRY constitution; constitutional courts when assessing constitutionality and legality should observe the precepts of international contracts; it is necessary to specify who is authorized to evaluate acts and legal documents of political parties; when banning the political parties the court must observe the principle of contradiction in the procedural rules; the institute of constitutional appeal should be expanded on the model of comparative experiences; jurisdiction over settlement of electoral disputes should be defined more precisely as regards the content and procedure of decision-making; constitutional court should be empowered to take decisions (or participate in decision-making) in cases in which the high state officials are charged with constitutional violations.
X Problems of enforcement and execution of legal decisions
Totality of legal norms which should make up the legal order of the FR Yugoslavia to a great extent was ruined by prevalence of the right to heterogeneous political-party utility. Hence many legal regulations are contrary to Constitution and also mutually incompatible, obsolete, unclear, incomplete or contradictory, destined for ad hoc purposes and politically instrumentalized in the way which continually calls into question their legitimacy. In such a situation the totality of our legal norms could hardly be called the legal system. But even if we recognized it as the legal system, we still could not deny that the system in question was in a deep crisis.
Although Yugoslav law is based on written legal regulations, interpretation of norms has gained such an importance in their enforcement, that one can speak of a genuine dualism of legislation, divided between legislative power and laws in formal sense and the function of judicial power and its precedent hermeneutics. This is due to two reasons: on the one hand, many acts are obsolete, incomplete, contradictory are incompatible with constitution and on the other, in law enforcement there is a lot of political arbitrariness, which favors the principle of opportunism and disregards the one of legality.
Hence both those enforcing the norms and those seeking legal protection do not feel confident about the law enforcement procedure in the country. This pervasive uncertainty is compounded by blatant arbitrariness and normative high-handedness of the executive power, and glaring social subservience of the judiciary. The judiciary which lacks the necessary authority, is dependent, inefficient and unqualified.
The judiciary inefficiency is most pronounced in the execution of judicial decisions. Both the Act on Procedure of Execution and the judicial practice treat leniently the debtors, notably the state and privileged subjects which operate under the umbrella of centers of political power.
To eliminate the aforementioned problems from the legal system it is necessary to:
-bring into line the Constitution of the Republic of Serbia and totality of legal regulations with the FRY Constitution and build a coherent legal system, largely devoid of ideological contents and political preferences:
-sideline party and personal interests in the state management and abandon the practice of personal, authoritarian rule;
-limit the prerogatives of those in power and sanction any encroachment of thereof, irrespective of the real power of political exponents;
-encourage legal awareness and legal culture, and curb the media indoctrination glorifying the force and the party power;
-abandon the concept of the state as a supralegal subject and standardize its responsibility for all its obligations and courses of action;
-establish the implementation of the rule of law as the source of social order, freedom and rights of citizens, and of their equality and security;
-revoke all regulations which relativize, condition or suspend the exercise of civil rights and freedoms or make them subject of arbitrariness of authorities;
-liberate judicial and executive authorities of the guardianship and supremacy of administrative authorities; eliminate the prerogatives of the executive authorities (established by the political will) to pass decrees with the force of law in peacetime;
-adopt new regulations on the appointment and financial status of judges which will create prerequisites for independence of courts of law, and pave the way for the appointment of politically, socially and professionally emancipated judges;
-de-legitimize the jurist interpretation by which contents and significance of laws are changed;
-amend legal acts in such a way that possibilities of legal abuses are minimized and prevented and the execution of lawful judicial judgments is simplified and made more efficient. New legal acts should be devoid of clauses protecting the mighty debtors and invalidating the compensation to be paid to the creditors exhausted by drawn-out lawsuits;
-bring into line the system of sentencing and terms of imprisonment with international legal acts, along with introduction of external judicial control of the management and better protection of the convicted persons from the official misuses and violations of regulations.
Belgrade, July 1999
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