interview by Dimitrije BOAROV
Consequently, we initiated our interview with Dr. Grubac with the "most difficult" questions for every Yugoslav lawyer and politician.
VREME: Should former president Slobodan Milosevic, in spite of the international agreement regarding the formula that "that is not a priority", be extradited to the Hague Tribunal? How should citizens of FR Yugoslavia be tried for war crimes, based on the already issued or some new indictments?
DR. MOMCILO GRUBAC: That formula, that the question of the responsibility of the former president is "not a priority" has an obvious political background. Our peaceful "democratic revolution" is still weak. We have to destroy many remaining strongholds of the former authorities. That is the condition for a new approach, the reform, and the development of the rule of law in our state. We hope that the basic conditions for the rule of law will be established after the early Serbian elections in December. Let me be more specific. After the establishment of the new democratic authorities in Serbia, we will have normal authorities at all levels of government, from local government to the Federation, so that we shall be able to initiate the process of the development of the rule of law. One of the priorities in our future state, contrary to the present situation, will be the issue of responsibility for crimes and all other criminal actions. There is no rule of law without responsibility for past and future crimes.
Those who committed criminal acts during the last ten years cannot receive an amnesty for them. That is simply impossible as can be surmised from the reaction of the population, which is already demanding immediate prosecution for crimes. Therefore, the issue of responsibility follows and it must be solved using legal means. Consequently, we urgently have to prepare our judiciary for that job. We must urgently remove the defects in the organization of courts and prosecutor's offices. We must especially pay attention to the people employed in the judiciary and make sure that it can handle the future serious problems.
The issue of individual responsibility for crimes under jurisdiction of the Hague Tribunal should be observed in that context. The former FRY president, Slobodan Milosevic, took that obligation on behalf of our state by signing the Dayton Agreement. Every serious state fulfills all obligations it takes upon itself, regardless of the person who had the authority to accept these obligation on behalf of the state. It is necessary to fulfill that obligation, because the return of the confidence we have lost in the meantime depends on the fulfillment of these obligations.
What is the way to overcome the discrepancy between the view that is pretty widely accepted among our politicians, that Milosevic should be tried in the country rather than in the Hague, and the international indictment that demands that he be tried in the Hague?
That is an issue for courts and prosecutors, both ours and those in the Hague. I realize that you are hinting at the ideas that have been proposed in the past by the experts, that there is a possibility that our judge is included in the work of the Tribunal for certain trials, and that there is possibility to conduct certain trials on our territory etc. A Minister of Justice should not comment on these issues. Judicial institutions have the duty to process a certain case. Regarding the suspicions that crimes and grave crimes have been committed, a prosecutor is obliged to issue an indictment and the executive branch and Ministry of Justice should not meddle in that. We will only work on providing conditions in which ours and international judiciary can function, and nothing more. Executive authority has nothing to do with particular trials and indictments.
Does that mean that Milosevic or the chief of the State Security Forces, Markovic, can be investigated by any district prosecutor, as soon as he or she decides that there is sufficient suspicion that they have committed crimes or that a foreign court has a well-founded basis to demand prosecution?
Once those indictments are issued, handed in, publicized, once requests are received, we shall take adequate actions in every case, in accordance with the principles accepted for cooperation of our state with international organizations and institutions. If the current regulations are an obstacle for that cooperation (as was the case in some countries, even former Yugoslav republics and currently states) they can be modified.
As far as I know, only one trial in connection with war crimes in eastern Bosnia has been initiated in Serbia, and it was adjourned. Does it make sense that during the last ten years and all the wars we've been through, our judiciary hasn't indicted anyone among us for allegedly committed war crimes?
That is another indicator that our judiciary was under strong influence of politics. That judiciary continuously tried to follow the views of the political authorities, expected to receive orders from those authorities, instead of following the law. Consequently, we haven't had trials in the cases which could be qualified as related to war crimes. And we had such cases and such indications.
Now, when our judiciary is becoming separated from the political influence, it will function differently, independently from anyone's political will and in accordance with the law. The law indicates that an investigation must be initiated regardless of a likely culprit, as soon as specified conditions are met, every time there are indications that a crime has been committed. Had we followed those rules so far, we would have most likely had war-crimes trials, would not have destroyed the reputation of our judiciary abroad and most likely the pressure of the international court against the trials of our citizens on our soil would not be so strong.
If anyone had any dilemmas regarding the war-crimes allegedly committed by the former leadership, no one has any dilemmas regarding ordinary theft, which is widespread in our state. Recently, newspapers have been full of information about serious abuse of political influence for personal gain, indications of corruption, mafia type business practices etc. As a Minister of Justice, can you initiate, encourage, or prompt a more serious showdown with that unpleasant heritage from Milosevic's era?
That is also a job for the judiciary. In new conditions, it must carefully examine all cases. One should not rush and try people without reason with flimsy charges, and condemn them before a trial. The presumption of innocence is the fundamental principle of the criminal law. We must not abandon that principle.
You are putting a lot of emphasis on the judiciary. Can the judiciary, in its current state, really start to function?
Starting today, without any changes in the rules and organization, courts and prosecutors can, based on democratic social changes, if willing and capable, assert their independence. In my opinion, that is an important, perhaps the most important condition for their better work in the future. That is another achievement of the 5 October "revolution" since, keep that in mind, we've had a dictatorship here almost non-stop since 1929. Consequently, it is not surprising that the courts do not realize that they can be independent, and the prosecutors do not understand that based on the law they can and must show self-initiative.
We need to realize the immense importance of the finally assumed attitude that basic instruments of state power, courts, prosecutors, police and army, cannot be attached to any political party and become servants of a particular political option. These state institutions can only be slaves to law, and to no one else. That is the biggest and most important achievement of our "October revolution" in the judiciary. In my opinion that is the first condition for the establishment of an independent judiciary and prosecutors.
Therefore, starting with today, prosecutors, without waiting for a change of rules, should behave in accordance with the current law. They should prosecute every case in which there is a well-founded suspicion that a crime has been committed, without waiting for a sign, approval or instructions from a political center. They will not receive such instructions in the future. If someone does issue such instructions, they must be courageously and freely rejected. Prosecutors are obliged by the Constitution to do so.
Judges should follow the law in their decisions and free themselves from any influence, regardless of its origin. If certain judges do succumb to such influences, that will be the reflection of their moral laxness or depravity. The same applies to the Police, which should do its job and stop meddling in the job of the judiciary and stop exerting pressure on the courts.
If we implement only these two basic principles of a normally organized state with the rule of law, we can immediately begin to sort out the situation in the criminal courts. Of course, we must work on new regulations, and even regulations that will provide better guarantees for the independence of the judiciary. All the way to financial remuneration, which must be drastically improved. If the state manages to handle the Mafia, it will have enough financial resources to afford a well-paid judiciary, which is an important element of its independence.
It appears to me that you are making an assumption that the existing cadre in the judiciary and among prosecutors, as soon as released from fear, will be able to undertake a very important professional task that follows. Is a release from fear sufficient in the situation where the judicial appointments were based on political, rather than professional criteria? Have you considered more radical measures, such as a mass reappointment of judges, for example?
I think that something like that will have to happen as well, but it does not contradict anything I've said so far. However, before undertaking such an action, we shall probably have to enact a constitutional law about the reelection of judges. Once these labor pains of the democratization of our society are over, we shall have to initiate a detailed, careful and systematic analysis of all our institutions, including courts. It is very likely that a future constitutional law will authorize the reappointment of all judges. We need an independent, competent, and apolitical body, such as for example a judicial council (as in most developed western democracies), that would elect judges based on professional and moral criteria, instead of political criteria used by the previous regime.
Do the existing laws provide sufficient opportunity to recoup at least some of the looted public and private property for the damaged parties and the society in general?
Although positive laws without doubt have defects, even the existing laws, especially the criminal laws, provide sufficient instruments to overcome these serious problems that burden the social life. These laws simply must be applied in an unbiased and objective manner in every case and regardless of the potential culprit.
The existing state of irresponsibility and chronic violations of the legal order cannot be tolerated. However, the amount of accumulated caseload from the last decade of "irresponsible society" remains a problem.
I dare say that all state institutions are corrupt. Corruption hasn't only infected the economy, business (where it is commonly encountered everywhere in the world) but also all the state institutions. Corruption was actually the chief instrument of rule for the previous regime. It was consciously encouraged, even nurtured. It was condemned from time to time, only verbally, with appropriate announcements about the "fight against crime and corruption". The real state of things was completely different. Crime and corruption extended the life of the former regime. Thanks to them and in cooperation with them that deformed regime managed to survive for so long and inflict huge social losses.
Therefore, legal instruments to fight the crime and corruption existed in the past, but the problem was that those instruments were not used or were used extremely selectively.
Now, as a journalist, I would like to ask a university professor, although these laws are not under direct jurisdiction of the federal Minister of Justice, for your opinion on the notorious Serbian laws about press and higher education?
These laws are legal monstrosities. They are examples of injustice in the legal system. Those laws were prepared as monstrosities and unfortunately they are still formally valid. Fortunately, although formally valid, since the Parliament that had adopted them did not want, or did not have time to abolish them before it was dissolved, they were annulled in practice. The society has in practice annulled these laws and is ignoring them. These laws have been eliminated in practice and the life in the fields regulated by this law continues without them. No one is referring to these laws anymore. Practitioners in these fields are basing their organization of work on moral and international standards rather than on current laws. And it must be like that for now. Those laws discredited themselves and in new conditions they simply cannot be observed, without a fundamental threat for the essence of the new institutions and changes. That is an example of the death of unjust laws. These laws simply died on their own, because they were unjust.
A part of work in connection with the redefinition of relations in the federation falls under your jurisdiction. More specifically a part of work on the new Yugoslav constitution. Do you have any general ideas regarding the principles you will advocate in the Federal government?
First, let me point out that the biggest problem of the existing Yugoslav Constitution is of procedural nature. That was an imposed constitution. It was based on the will of two political parties [DPS in Montenegro and SPS in Serbia]. That is its basic defect. It is worse than its actual content. A constitution must be a result of a consensus of political factors representing the whole society (including of course the citizens) of every state. That must be taken into account in the process of the writing of a new constitution.
That political consensus is a guarantee that a new constitution will be respected. In that case, a new constitution has authority. The present constitution was enacted differently and consequently has no authority, since it was not approved by a majority, which then failed to respect it. That it why it must be replaced by a different constitution.
Regarding its content, especially in connection with rights and freedoms, many solutions will remain unchanged. In these cases, the problem was not in content, but in realization. The former regime, because of its political agenda, simply sabotaged the application of these constitutional rights.
Furthermore, regarding sabotage, I must mention that, using a crafty political manipulation, it was regulated by the Constitution that old laws, based on the former Yugoslav constitution from 1974 would remain in force in the new state after 1992, until they were adjusted to the new constitution. That process of adjustment was sabotaged. This was a deliberate decision and its goal was to suspend more liberal, contemporary and democratic solutions, above all in the area of human rights. Therefore, despite the new constitution we have old restrictions of human rights from the time of Socialism. For example we still have the institution of Police custody, while the Federal Constitution specifies that only a court can order that someone be kept in custody. We also have archaic solutions regarding search of premises etc.
However, to make sure there is no confusion, the key issue is that of the relation between the republics in the federation and I believe that that part of the Federal Constitution is obsolete and that significant changes will follow an agreement between Serbia and Montenegro. These political agreements will give a new profile to the future Constitution.
I do not want to ask you on your first day on the job questions you cannot answer. But, I can ask you about your general view of the division of jurisdiction in every state or a community of states?
I advocate decentralization. The past rigid centralization to which we paid dearly showed its catastrophic results. It can now be guessed that many things in the life of our society would have been different had it not been for the pretentious centralization. The regime believed that through centralization of authority, legislative, judicial and executive, it was ensuring its survival in power. It is true that that centralization extended the life of the previous authorities, but it ruined the state that much more. If it weren't for the centralization, i.e. if we implemented decentralization of the state, the problem of Kosovo would not appear in this form. It has become what it is today above all because autonomy was suppressed in the late eighties.
Therefore, if we take into account bitter experiences with centralization, we must decentralize power, including judiciary. Federal units always have significant jurisdiction in legal matters and legislative powers, but such powers should be also extended to autonomous provinces and regions. Local government should also be placed on new foundations. Its powers have also been reduced over the last ten years.
During the unfortunate conference in Rambouillet, the president of Serbia, Milan Milutinovic, started using in connection with Kosovo the term "real autonomy". Does that mean that the previous autonomy, Milosevic's, was "unreal"? Can a new place for Kosovo, much more desirable than the present one, be found in the constitutional order?
The question of autonomy is a serious and significant matter. An agreement of political forces in the republic [Serbia] and the province [Kosovo] is necessary for a solution of that issue. The term autonomy implies legislative powers. That term also implies strong executive powers. It also, naturally implies the right to utilize one's own economic resources.
Talking specifically about Kosovo, that is an important issue that will be included in all programs of the government and the ministries. I think that democratic changes and solution of economic questions will contribute to present the problem of Kosovo in a different light. The normalization of the situation in our state provides a chance for a normal solution of that problem. However, because of everything that has happened, we cannot approach the Kosovo problem without the international community. I hope that talks about the way out of the current dead-end situation, both with the inhabitants of the province and the international factor, will begin during the tenure of this government.
Both the wide public and experts fail to notice that the Hague Tribunal consists of two units, the court and the prosecutor. Then, a general claim is that the Tribunal is a political institution, that it is biased, that it applies different criteria on members of different nations and citizens of different states in trials etc. If we look into the essence of the organization of the Tribunal, then we must separate the court from the prosecutor in our assessment of its work.
In my opinion, the court cannot be accused of political bias. It is a guarantor of objectivity, independence and lack of bias. The decisions the court has made so far indicate that it has maintained all of the three mentioned aspects in its work. Judges sitting on the cases are respected professionals, elite judges, highly regarded in their national judicial systems. They come from stable democratic judicial systems, in which the matter of judicial independence has been resolved a long time ago. Their authority is such that it is impossible to doubt objectivity of their verdicts.
The work of the second unit of the Hague Tribunal, the prosecutor's office, is a different matter. The prosecutor's office is a political institution. Unlike the court, it hasn't been provided with attributes of judicial independence. This institution, besides the law, takes into account political factors when deciding about indictments. These political factors determine who will be indicted and tried, and when. I think that that needs to be taken into account in our future contacts with the Tribunal and there is no need for baseless criticism of the Tribunal. We can accomplish our political goals by establishing a dialog with the Tribunal.