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The
importance of an independent judiciary is well recognized in the OSCE.
Nevertheless the threat to democratic reform posed by those in power
in a number of states has seen the judiciary face significant pressure
to bow to political control.
In
Serbia the provisions of article 95 and 96 of the Serbian
constitution guaranteeing that "courts of law are independent in
their work and they rule in accordance with the constitution" are
empty words. Senior judges who founded the independent Association of
Judges of Serbia were dismissed from their posts in December 1999 by a
decision of the Serbian Assembly, a move that heralded a large-scale
purge of judges seen as critical of the Belgrade regime. As the
Association of Judges had ceased to exist, judges could not even issue
a joint communiqué condemning such developments. Yet on 17
June, 13 judges from different courts wrote an open letter expressing
their outrage and concern that the regime was purging experienced and
professional colleagues and replacing them with young and politically
compliant jurists. One month later, on 12 July, all 13 judges who had
written to protest were themselves dismissed by the Serbian Assembly.
Article
125 of the FRY penal code, on the criminal offence of terrorism,
states: "Anybody who causes an explosion or fire, or commits any
other generally dangerous action or act of violence creating
insecurity among citizens, with the intention to threaten the
constitutional order or safety of Yugoslavia shall be punished by term
of imprisonment of minimum three years in prison. This article is used
against representatives of the independent media, opposition parties,
Otpor, NGO members and others proclaimed by the regime to be
"terrorists", having never committed any act which could
correspond to the legal or general definition of terrorism.
In
April 2000, 144 ethnic Albanians faced a summary trial – the largest
of its kind in the history of Serbia – in the District Court of Nis
in southern Serbia. At the end of April they were sentenced to long
prison terms totaling 1,632 years of imprisonment for alleged
organized hostile activity against the state.
Among
the ethnic Albanians held in Serbian prisons are several prominent
individuals, including Flora
Brovina (48), head of the Women’s Association of the LDK, doctor,
poet, and human rights activist, who was arrested on 21 April 1999
by Serbian special police in Prishtina. Brovina was at some point
thereafter taken to a prison in Pozarevac, Serbia and following a
trial, Brovina was sentenced on 6 December 1999 to 12 years’
imprisonment. According to reports in August 2000, her son claimed
she had become partially paralyzed as a result of her treatment in
detention. The Supreme Court of Serbia is expected to review her
case soon.
Albin
Kurti, head of the student union of Prishtina University, former
spokesman of Adem Demaci, and pre-war leading political
representative of the Kosovo Liberation Army (UKC), was arrested in
May 1999 by Serbian security forces and taken to prison in Serbia.
He was subjected to a show trial in March 2000 and sentenced to 14
years in prison.
With
the newly elected Yugoslav president Vojislav Kostunica, known as a
person with deep respect for the rule of law, hopes for an improvement
have risen. But it has to be noted, that at the moment the Federal
Republic of Yugoslavia is virtually non-existent with the real power
centre remaining on the level of Serbia. As to Albanian prisoners in
Serbia, the Federal President can grant abolition on a case-by-case
basis.
In
Kosovo, more than one year after the war, one of the major
hurdles to establishing the rule of law and providing of security and
stability for all its inhabitants irrespective of their ethnic or
other origins, remains the delay in (re)establishing a functioning
judicial and legal system along with efficient and robust law
enforcement agencies. The deficiencies in the post-war developments
have most gravely affected the Serb and Roma minorities, but Albanians
as well. The re-establishment of a functioning system has been
hindered by the lack of an efficient international police force
especially in the immediate post-war period but also today. Gradual,
visible improvements take place but suffer from insufficient dynamics.
The absence of a functioning law enforcement agency has left even
judges and legal officials vulnerable to intimidation in a climate of
general insecurity. Other difficulties include the partial destruction
of court premises and absence of basic equipment. However, since
spring 2000, there has been positive developments towards a
functioning judicial and more efficient law enforcement system in
Kosovo.
By
mid-August 2000, UNMIK had appointed 405 local judges as well as over
700 judicial personnel and other support staff. Setting up a
multi-ethnic judicial system has however proved difficult, with few
Serbs among those accepting these appointments and being employed. A
major difficulty in getting the judicial system functioning in Kosovo
has also been the slow appointment and dispatching of international
judges, as approved earlier by international authorities, in order to
guarantee unbiased handing of ethnically related cases.
The
Kosovo Helsinki Committee notes that a well-functioning, robust and
vigorous law enforcement and judicial system in Kosovo should be
accorded the highest priority by Kosovo’s administrators along with
law enforcement, to provide for the application of the rule of law and
provide security for all its citizens.
Montenegro’s
constitutional position
in Yugoslavia was changed on 6 July 2000 by the so-called federal
parliament, that changed several basic provisions of the constitution
of the federal state in an illegal manner, as also those persons who
had lost their MP status participated in the adoption of the new
constitution, the changes were done without a quorum, and under
violations of legal procedures. The public and the authorities of
Montenegro found out about it only a few hours before the changes were
to be adopted. These changes (proposed by the Republic of Serbia)
virtually placed Montenegro in the position of the 27th
region within the republic of Serbia. The constitution does not
provide for any mechanism to enable any influence by Montenegro in the
administration of the joint state. Even the theoretical equality
between Serbia and Montenegro established by the 1992 constitution was
abolished. Montenegrin authorities and the majority of the citizens
rejected these changes and the Montenegrin Helsinki Committee appealed
to international community and the OSCE not to recognize these
changes.
In
Romania the confidentiality of discussions between a lawyer and
a client in detention in police lockups had been grossly violated
until August 1999, as the investigating officer had to be present
during those discussions and listen to every word said. However, the
Romanian Helsinki Committee has found out that even after August 1999
at some police stations the old practice still continues under various
pretexts such as neither the lawyer nor the client have asked for
confidential discussions or due to lack of room for that kind of
meetings.
In
Kazakhstan, President Nazarbaev even admitted that the judicial
system in the country is under governmental control and began moves to
have control of the courts transferred from the government to the
presidency, through a new law on the judicial system.
In
former Soviet countries, old judicial practices still exist, even
where new legislation has been adopted. Long proceedings and heavy
sentences contribute to extreme overcrowding in prisons in virtually
all transition states. For example, in Belarus and Ukraine, stealing a
pack of coffee can result in a prison term. In Georgia, legal reforms
were passed to gain membership of the Council of Europe. However,
shortly after admission, amendments to the new Criminal Procedure Code
significantly reduced the rights of those under criminal
investigation. Lack of fair trial for political opponents remains.
Thank
you for your attention.
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