Guilt, Responsibility, and Denial. Eric Gordy
Читать онлайн книгу.
Borba was shut down, the results of the 1996 and 2000 elections were overturned, and political opponents were harassed and intimidated through the courts. Judges who declined to allow their courts to be used for such purposes were fired.28
Consequently judicial institutions in Serbia received consistently low measures of public confidence in surveys. A 1996 survey found 57 percent of respondents declaring lack of trust in judicial institutions, with 37 percent expressing trust.29 This was less than the level of distrust displayed toward representative institutions such as the federal parliament (62 percent), the federal government (61 percent), the Serbian parliament (62 percent), the Serbian government (60 percent), and political parties (71 percent). However, among law enforcement, administrative and civic institutions, only the Serbian police (57 percent) and state-owned media (65 percent) received equal or higher ratings of distrust.30 This put the judicial system on a level of public esteem comparable to that of some of the most despised and reviled institutions in Serbia.
There would have been good reason to expect levels of trust to be lower still with regard to the ability of courts to try humanitarian law cases, considering the record the Serbian judiciary compiled from 1991 onward. Particularly controversial would have been the large number of dubious convictions on terrorism charges, principally against Kosovo Albanians.31 The most widely publicized of these was the conviction of 143 ethnic Albanians from Djakovica, despite a lack of evidence connecting any single one of them to any terrorist acts or attempts. The presiding judge in the case, Goran Petronijević,32 admitted that there was no evidence of guilt, but justified the verdict with an interesting innovation in legal theory: “It was not possible to demonstrate individual guilt, but for the essence of the crime of terrorism that is not necessary.”33 The precedent established by this case degraded the reputation of Serbian courts for competence to try crimes of this type, as well as presenting an inconvenience for political authorities who argued for a principled rejection of concepts of collective guilt.
The task of enabling judicial organs to function independently and capably got to a slow start after the change of regime in 2000. A record of pressure from the executive on the judicial authorities, from ordering verdicts to altering personnel, left a deep effect. The material situation of the courts was also difficult, as their budgets for office and trial space, investigation, and salaries of judges and other officials remained below levels in other parts of government. For capable attorneys, the financial compensation for judicial work could not compete with the potential rewards of private practice.34 Shortly after being named to preside over the Supreme Court of Serbia, Leposava Karamarković described the situation in an address to judges:
For decades in this country the principle of utilitarianism (svrsishodnost) dominated instead of the principle of legality, and it reached its shameful height during the previous regime. Legal pragmatism occupied the place of the legal system. In pursuing its goals, the oligarchy did not want its hands to be tied by formal or abstract rules or norms. So it expressed contempt for the law and for legal form, and recognized it only to the extent that it was useful.
That led to the worst possible consequence for the legal system of any country—the legal system collapsed, fell apart, and life went on in spite of it and outside it. And so a schizophrenic reality developed in which everybody was (declaratively) in favor of legality, while everybody knew that real life was in another category, in which interests are realized, and while the existing legal system simply postulated some idealistic and unattainable relationships.
The masters of manipulation brought fear into the courtroom, ordering up not only trials but sentences as well. Judges were reduced to minimal pay and a humiliating position, probably because it was believed that it is easier to direct and rule poor people without interference.
Few judges in the legal system managed to remain upright and oppose such methods, and when somebody did, and suffered because of it, and eventually lost their job, most other judges remained silent and acted as if it was not their problem. That indicates that some of the responsibility for their current state is borne by the judges themselves, who did not react when in the dissolution of Yugoslavia cities were destroyed, people were killed and shocking ethnic cleansing was carried out.
If more judges had resisted the influence and demands of the executive branch, the results might have been different.35
Even given the best of wills there existed considerable obstacles—tasks of extensive reform, replacement of personnel, and internal accounts of responsibility—before courts could take on the obligations of a credible and independent judiciary. Branislav Tapušković, president of the Society of Lawyers of Serbia, offered a pessimistic prognosis in 2001: “I am very familiar with the situation in the judiciary, I know how many people there are who have already violated many principles, and who do not deserve to be in the judiciary, but who is going to replace them? It takes at least a decade to make a good judge, and I simply cannot see how it is possible to get out of this vicious circle.”36 The challenge was further complicated by the uncertain political situation: reconstructing the judiciary depended not only on the extent of the damage done by the old regime, but also on the uncertain intentions of the new one.
An early illustration of institutional competition and confusion is provided by the law federal president Vojislav Koštunica proposed in 2001 to regulate the cooperation of the Yugoslav government with ICTY. The law was intended as an alternative to direct adoption of the ICTY statute, the course eventually taken; it would have guaranteed the involvement of domestic courts in actions against people indicted by ICTY, and provided greater guarantees of the rights of indicted suspects.37 Facing an unsuccessful vote, the government withdrew the law from parliament and adopted it instead as a decree. Milošević’s lawyers appealed to the Federal Constitutional Court for a ruling finding the decree unconstitutional, and on 28 June received a suspension of the decree pending a ruling. The republican government of Serbia acted quickly to circumvent judicial delay by adopting the ICTY statute, which requires suspects to be delivered to the tribunal, as domestic law.38 Milošević was immediately afterward transferred to ICTY, leading to a debate (which divided the governing parties) over the legality of the act. But the legality of the constitutional court’s action was also unclear.
Shortly after the protracted legal conflict, Omer Karabeg’s radio program Most featured an exchange on the topic between Dragor Hiber, chair of the judiciary committee of the Serbian parliament, and Slobodan Samardžić, a political scientist and advisor to Koštunica. Hiber contested the court’s action:
The session of the Federal Constitutional Court held on 28 June was called by the presiding judge of that court, or a person who represented himself as such, a judge of the court, Dr. Milutin Srdić, whose term on the court ended by law two weeks earlier. When that fact became public, Srdić said, well, because the court was in need he would stay in office a bit longer, but would go into retirement anyway to maintain legality. That day he established that his term of office had ended, and so the session was called, the quicker the better, by the oldest, that is the most senior, member of the court. So two things are possible.
The first is that the Federal Constitutional Court did not know who was or was not a member of the court, which means that it was not in a condition to apply the constitution to the question of its own composition. If it cannot do that, how can it apply the constitution to any other question. The other possibility is that the court knew, but nonetheless permitted its session to be called by a self-declared presiding judge. If that is the case, then it is no longer a constitutional court, but a group of citizens with suspicious intentions.39
Samardžić disagreed with Hiber’s dismissal of the court’s intervention, but nonetheless agreed that the credibility and legitimacy of judicial institutions were not clear. He argued:
To begin with, the fact is that from 5 October until now the constitutional court has not been reformed. That means that the political forces which govern this country have made a very sensitive omission. That has to be done as soon as possible, if we want to create a new legal system. The constitution is another matter. Serbia is stuck there, because in order to change its own constitution it has to wait for a new federal constitution, and that is not being created for reasons which