Tribunal Criminal Tribunal for the Former Yugoslavia

Page 25710

1 Monday, 1 September 2003

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.04 a.m.

5 JUDGE MAY: Yes, Mr. Nice.

6 MR. NICE: Your Honour, I fear there was probably a slip or

7 breakdown in communication last week about the witness for today. It was

8 our understanding that following the two previous occasions when the

9 witness, Professor Kristan, had been available for court but hadn't been

10 capable of being called, it was our understanding that following that he

11 was a fixed witness for today. The fixture being in large part required

12 by the limitations on the amount of time there would be available for

13 using Slovenian interpreters. That limitation we understand to be in

14 effect today and that the interpreters are available in the Slovenian

15 language only for today and we had understood that to be known to all

16 parties, and therefore, we had understood it to be understood that it

17 would be Professor Kristan being interposed this morning, which is our

18 intention.

19 I'm very sorry this wasn't clarified with the Court in open court

20 last week, but I hope that the Chamber is content for Professor Kristan to

21 be called in order that the accused may have enough time to cross-examine

22 him with the Slovenian interpreters present.

23 JUDGE MAY: Well, none of that was indicated to the Court, and it

24 wasn't until Friday afternoon that we received a message to the effect

25 that that was so and that the Slovenian interpreters were only here for a

Page 25711

1 day.

2 These matters really must be indicated in good time to the Trial

3 Chamber and to the accused in order that the trial can run properly.

4 MR. NICE: I entirely agree, and the fact that one party thought

5 the other had made the communication and the other party thought the first

6 party had is no excuse. We should have made it clear to you.

7 Nevertheless, the accused has been on notice that this is our

8 intention, and although the witness is himself flexible, for reasons of

9 the limitations placed on us by availability of Slovenian interpreters,

10 I'd ask that we take him today.

11 JUDGE MAY: Yes. Well, we will allow that, but of course there

12 must be time, if there's only one day available, for adequate

13 cross-examination.

14 MR. NICE: Your Honour, what I -- as the Court knows,

15 Professor Kristan is not allowed to give evidence in relation to matters

16 about Kosovo's autonomy and its revocation and the rights to

17 self-determination.

18 What we've done in those circumstances and bearing in mind that

19 although he's not at our hand subject to questioning on those topics, the

20 accused has already indicated he may ask more broadly about various

21 topics. What we've done is prepare an exhibit bundle which I think has

22 20 -- currently has 20 -- 30 tabs in it. It contains a range of

23 constitutional documents, and with your leave may we review at the end of

24 all the evidence which one should stand and which one should be withdrawn?

25 You'll see that this does still contain some of the basic Kosovo documents

Page 25712

1 in case they turn up.

2 Alternatively, the Chamber may want them produced in any event

3 without any comment on them by the witness so that those documents can be

4 referred to by any later constitutional expert we're able to call.

5 The Chamber also has a short summary and associated with the

6 summary a set of charts. May the charts in due course become an exhibit

7 perhaps as part of or as an exhibit in sequence with the report itself,

8 and I will be getting the expert to summarise the effect of his admissible

9 report by reference to those charts, and may he come in?

10 JUDGE MAY: Just a moment. I do not appear to have the summary.

11 Where should it be?

12 MR. NICE: Sorry. Coming straight away.

13 THE INTERPRETER: The interpreters do not have the summary

14 either.

15 JUDGE MAY: Do you have a copy for the interpreters of the

16 summary?

17 MR. NICE: Coming their way.

18 [The witness entered court]

19 JUDGE MAY: Dr. Kristan, if you would take the declaration,

20 please.

21 THE WITNESS: [Interpretation] I solemnly declare that I will speak

22 the truth, the whole truth, and nothing but the truth.

23 JUDGE MAY: If you'd like to take a seat.

24 WITNESS: IVAN KRISTAN

25 [Witness answered through interpreter]

Page 25713

1 Examined by Mr. Nice:

2 Q. Is your full name Ivan Kristan?

3 A. Yes.

4 Q. You are Slovenian by birth. You are a retired professor of

5 constitutional law from the University of Ljubljana where indeed you were

6 dean of the faculty of law between 1981 and 1985, also having served as

7 Justice of the Constitutional Court of Yugoslavia in Belgrade from 1987 to

8 1991 and having been president of the Slovenian Second Chamber of the

9 National Council of the Republic of Slovenia between 1992 and 1997?

10 A. Yes. The Constitutional Court, I was not its president. I was

11 the deputy president, but I was the president of the State Council of the

12 Republic of Slovenia.

13 Q. Did you prepare at the request and instruction of the Office of

14 the Prosecutor a report which has been filed publicly on the

15 constitutional and legal issues -- or some of the constitutional and legal

16 issues arising in this case?

17 A. Yes. At the request of the Prosecution.

18 Q. Professor Kristan, we are very pressed for time. And wherever a

19 question is susceptible to the answer yes or no, it would help us,

20 although I know it's an inconvenience, if you could just say yes or no.

21 A. I understand. Thank you.

22 Q. As you appreciate, it's not necessary for us to go through your

23 expert report in detail or indeed at all because the accused has had an

24 opportunity to read it and of course to be advised of it. Nevertheless,

25 in order to give a broad understanding for those viewing the trial of what

Page 25714

1 your evidence amounts to, have there been prepared some charts in respect

2 of which you're able to make comments, the charts representing in graphic

3 form the conclusions your report makes?

4 MR. NICE: May the first of those charts be placed on the overhead

5 projector, please.

6 THE WITNESS: [Interpretation] I have my own version.

7 Q. Here comes another one, the latest version incorporating the

8 amendments that you considered yesterday afternoon, and does the first

9 chart deal with the SFRY 1974 constitution in the absolute broadest of

10 outlines, showing -- and we've got it up on the screen --

11 JUDGE KWON: I don't think the ELMO is working.

12 MR. NICE:

13 Q. While that technical problem is being addressed -- while that

14 technical problem is being addressed and to avoid wasting time, since the

15 witness and the Chamber has the first chart, this chart shows on the

16 left-hand side, Professor Kristan, the six republics and the two

17 semi-autonomous regions of Vojvodina and Kosovo, part of Serbia but

18 nevertheless with very substantial rights. It then shows on the

19 right-hand side the SFRY Presidency with its eight members coming one from

20 each republic, one from each autonomous province of whom one member was

21 elected president for one year.

22 Now, drawn between those two, as people will see when the ELMO is

23 functioning publicly, is a circle or oval with the Presidents of the

24 Republics and the Autonomous Provinces identified within that circle, and

25 you've then drawn or we've drawn, to represent your conclusions, a solid

Page 25715

1 line going to the left to the republic themselves but a dotted line going

2 towards the Presidency.

3 Was there any formal relationship between the presidents of the

4 republics or the presidents of the autonomous provinces and the members of

5 the SFRY Presidency coming from the same republic or autonomous province?

6 A. The -- as far as a formal relationship of superiority or

7 subordination didn't exist. Members of the Presidency of SFRY from the

8 republics or provinces had a relationship with their respective Assemblies

9 that elected them, and they were accountable to them and not to the

10 president or Presidencies of the republics or provinces. The president of

11 Republic of Serbia, for example, could replace its member of the SFRY

12 Presidency in case he was -- this person was not in a position to occupy

13 his post.

14 Q. One more question only on this chart. In order to give us an idea

15 of the degree, or the way in which, rather, the autonomous provinces

16 approached the status of republics, was there something called a principle

17 of parity? If so, please explain.

18 A. This was the only case in the constitutional system of Yugoslavia

19 where the autonomous provinces were on equal footing with the republic.

20 The republics were considered states while the autonomous provinces were

21 not. However, the level of parity of the autonomous provinces with the

22 republics was rather high. And as far as the membership in the SFRY

23 Presidency, the autonomous provinces were in parity, in a position of

24 parity with the republics.

25 But in the Federal Assembly, in the two Chambers, the parity did

Page 25716

1 not exist. In the Federal Chamber, the first chamber, the republics were

2 represented with 30 members, and from the autonomous provinces 20. And

3 the second chamber, 12 members from each of the republics and eight

4 members from the autonomous provinces. So they had fewer -- fewer

5 representatives. But they were -- they -- in 1946, for example, there was

6 a difference in the status of the two provinces; Vojvodina had a higher

7 status and Kosovo a lower one constitutionally.

8 MR. NICE: Let's turn to chart number 2. As we do that, may the

9 report itself be given an exhibit number, and may the charts, which I

10 think should be exhibited, become either a part of that or a following

11 exhibit.

12 JUDGE MAY: Which is going to be convenient? At the moment, we

13 have the main exhibits which can be given one number. I should think it

14 better if the charts get another number.

15 MR. NICE: Very well.

16 THE REGISTRAR: The report will be P524. The chart will be P525,

17 and the rest 526.

18 MR. NICE: Thank you very much. And, Your Honour, it may be that

19 in my brief examination of the witness in chief I won't take time to go to

20 any of the exhibits. In due course, it may be a proper approach to decide

21 which have been produced to see which he's asked about in any

22 cross-examination and which are identified in his report, because they

23 plainly should be themselves exhibited. We'll tidy that up at the end of

24 the evidence.

25 Q. Chart 2, and if it's not operating on the -- it's unfortunate --

Page 25717

1 ah, there it is.

2 Chart 2 deals with the position under the 1974 constitution so far

3 as Defence is concerned, reproduces the passage in the first chart

4 identifying the SFRY itself and the Presidency. We note that under the

5 Presidency, there's the Supreme Command constituted by the president of

6 the -- or allowing the president of the Presidency to be a supreme

7 commander.

8 We then see that you've drawn -- or we've drawn, to reflect your

9 report, a line going down to the Federal Secretary for People's Defence,

10 with whom the Chamber is already familiar. Coming down from that box to

11 the Chief of the General Staff of the SFRY armed forces - and you've then

12 put down JNA and Territorial Defence - we see a solid line going from the

13 right of the Federal Secretariat for People's Defence down the right

14 towards Military Districts, and underneath Military Districts we see solid

15 lines leading to ovals containing the initials JNA and also Territorial

16 Defence.

17 Sticking with the solid lines, we see on the top left lines coming

18 from the republics and autonomous provinces down towards the Territorial

19 Defence with a solid line marked 1988 coming down towards and linking to

20 both the Chief of General Staff and the Military Districts.

21 Separately from those lines we see a dotted line marked pre-1988

22 going from the Territorial Defence to the Presidency, and a different

23 format of dotted line going from the Territorial Defence to the Presidents

24 of the Republics and Autonomous Provinces.

25 Now, we have to be very brief, and that's why we hope these charts

Page 25718

1 will help us, Professor. The -- just one minute. The lines on the

2 right-hand side, do they describe really rather conventionally the command

3 of the Supreme Command via the secretary, federal secretary, and via the

4 Chief of the General Staff for both military districts and the JNA and the

5 Territorial Defence?

6 A. Here I would like to draw the attention to the difference which

7 was introduced in 1998, namely the difference between the status between

8 the JNA and the TO. The JNA was a unified armed force with the General

9 Staff, while Territorial Defence was directly linked to the Presidency.

10 The Territorial Defence consisted of eight parts. Each of the republics

11 and the autonomous provinces had their TOs, and they were linked directly

12 to the Presidency. After that, a change took place when the Chief of

13 General Staff was introduced and the army and the Presidency and the

14 Territorial Defence came under the General Staff. After that, other

15 changes were introduced with the introduction of four strategic military

16 districts and the subordination of the army and the Territorial Defence

17 was in this sense.

18 Q. Thank you very much. Just to underline the point you've made, the

19 republics had -- and the autonomous provinces had Territorial Defence, but

20 they had no component part of the army. That was dealt with on a federal

21 basis; correct?

22 A. Yes. Territorial Defence was organised in the republics and the

23 provinces. That was the sense of it in order to ensure all people's

24 resistance on the territory. And the Territorial Defence was linked to

25 the bodies and institutions of the republics and provinces. The

Page 25719

1 Territorial Defence had a commander, commander who was accountable to the

2 president of the republic or the Presidency in order to -- concerning

3 matters of organisation of defence.

4 So we had the Presidency, the -- then the Chief of General Staff.

5 That was the sequence of subordination.

6 Q. Two more short questions, both on dotted lines shown on this

7 chart. The dotted line on the right-hand side of the chart between the

8 Chief of the General Staff and the Military Districts is said to be one of

9 communication. So how were the military districts commanded? We can see

10 that they were commanded by the Federal Secretary for People's Defence

11 because there's a solid line there, and we can see other solid lines

12 coming down from the left-hand side. What's the significance of that

13 little dotted line, please?

14 A. It would be difficult to describe this distinction. You have to

15 take into account the chain of command. At the head of it was the SFRY

16 Presidency, which could move and entrust certain competencies to the

17 Federal Secretary of People's Defence. From there to the CGS and then

18 down to the Military Districts. How -- as far as the differences in

19 communication goes, I couldn't elucidate on that. I must say that I do

20 not know exactly how this occurred. But this is the chain of command from

21 the Presidency downwards to the Military Districts which cover the units

22 of the JNA and of the Territorial Defence.

23 Q. Finally, on the middle and towards the top left of the chart, we

24 see a dotted line linking the Presidents of the Republics at an angle to

25 the Territorial Defence of the Republics and Autonomous Provinces. Can

Page 25720

1 you explain that? What it says on the legend is that personnel,

2 organisation, and equipment of the Territorial Defence and how in October

3 1987 the Chief of the General Staff became the Chief of the General Staff

4 of the armed forces. Can you explain that line, please, for us.

5 A. Concerning this dotted line from the SFRY Presidency to the

6 Territorial Defence, as I have mentioned earlier, was that the TO was

7 organised within the republics and provinces, and it is here that the

8 level of -- high level of competencies was, and responsibilities towards

9 the presidents of the respective republics, and the Territorial Defence

10 commander wasn't only responsible to the SFRY -- president of the

11 Presidency or the Federal Secretary but to the presidents of the republics

12 and of the autonomous provinces.

13 Q. If we look now at chart number 3, it seeks to summarise under the

14 same 1974 constitution the position in relation to the police. The top

15 part of the chart now already familiar. And indeed, on the right-hand

16 side we see the same reflection of SSNO, CGS, Military Districts.

17 Underneath Military Districts we've now added to the JNA and the

18 Territorial Defence the police for the republics and autonomous provinces,

19 and towards the left we've got an oval with the police connected by solid

20 lines coming from the republics and autonomous provinces and coming down

21 to join solid lines from the CGS and the Military Districts.

22 What was the position of the police? How did it change in one of

23 the three states with which the Chamber is already familiar?

24 A. I've understood this question as a question of subordination of

25 the Minister of Interior to the Minister of the Republic, and here I

Page 25721

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13 English transcripts.

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Page 25722

1 indicated that the police was not under the subordination of the president

2 but that it was a part of the government and it functioned on the basis of

3 the law of the government, and the president of the republic had a

4 position vis-a-vis the government. He also appointed the possible --

5 president of the government gave him the mandate.

6 So as far as the police was concerned in case of war, imminent

7 threat of war, the police was subordinated to the military and to the

8 Supreme Commander, the SFRY Presidency, and only in this sense it would

9 make sense to include the police here in case of -- and make it

10 subordinated in case of defence.

11 Q. But in the absence of one of those three states, by whom were the

12 police commanded?

13 A. It was commanded by the JNA commander. The police was -- it had

14 also a question of accountability. It was -- but otherwise, it's a part

15 of the Ministry of Interior. It has the tasks of assuring peace and

16 order, public order, and in a normal situation, it doesn't have a defence

17 function.

18 Q. Before we turn from this chart we see no reference on it to either

19 volunteers or paramilitary groups. Did they have any identified legal

20 status within the constitution or not? Indeed, were they legal or were

21 they outlawed?

22 A. The paramilitary units were not legal. Volunteers were legal, but

23 they had to organise on the basis of a provision issued on the basis of

24 the law on defence and all people's protection that in case of imminent

25 threat of war or war, in order to replenish the ranks of the military. In

Page 25723

1 these cases, the volunteers received a status of soldier, and on the basis

2 of this provision, decree of the Presidency ensured that the status of

3 volunteers was regulated and in order to avoid any possibilities of

4 paramilitaries.

5 Q. Thank you very much. Can we turn now, please, to chart 4 which

6 summarises or seeks to summarise changes between 1988 and 1992 that may be

7 material to assist the Chamber here.

8 We see in the box that you list some changes and the numbers of

9 your list or our list reflecting your report are then repeated at various

10 places on the chart so that the first change, the 1988 to 1999 so-called

11 Anti-Bureaucratic Revolutions in Montenegro and Vojvodina find themselves

12 reflected in the figure 1 on the chart. The result of that was what,

13 please, as you understood it, the result of those Anti-Bureaucratic

14 Revolutions?

15 A. The meaning of those Anti-Bureaucratic Revolution rallies was the

16 destabilisation in the province, province of Vojvodina where it began.

17 And the -- it -- the existing ordinance were replaced both in Vojvodina

18 and Montenegro. Such a meeting of truth was also planned for the 1st of

19 December of 1989 in Slovenia. However, Slovenia opposed it, and the

20 Ministry of Interior prohibited it. This attempt of destabilisation, an

21 individual stopped at that point when this meeting of truth didn't take

22 place in Slovenia.

23 Q. Number 2 mentions Kosovo and Vojvodina. As you know, your

24 opinions on these matters are not a topic upon which the Chamber seeks

25 your assistance, but as a matter of fact. Just for a chronological point

Page 25724

1 of view between 1989 to 1991, may it be said that there was a revocation,

2 as a matter of fact, of the autonomy of Kosovo and Vojvodina and you've

3 therefore reflected that by the figure 2 in the chart. Just yes or no.

4 A. This was a continuity of these events of the Anti-Bureaucratic

5 Revolution. And --

6 Q. I just really want -- because of the limitations placed on your

7 report by the Trial Chamber, we just need it as a fact that the revocation

8 occurred if that be correct.

9 A. Yes. In 1989, this procedure began with the amendment, then with

10 certain laws concerning Kosovo, and then the revocation was completed with

11 the Serbian constitution of 1990.

12 Q. Then as a matter of fact, following that revocation --

13 MR. TAPUSKOVIC: [Interpretation] Your Honours.

14 JUDGE MAY: Yes.

15 MR. TAPUSKOVIC: [Interpretation] I really believe that these are

16 key issues linked to the autonomy -- to autonomy in general, and the

17 expert cannot go beyond the chapters allowed by you. You allowed that we

18 hear his expert opinion in connection with all the points mentioned after

19 page 33. However, all that was said just now relates to matters having to

20 do with the revocation of the autonomy and the right to

21 self-determination, and I think you have ruled about that already.

22 JUDGE MAY: The witness is limited merely to dealing with the fact

23 and no more than that. So we will not allow him to go any further. Yes.

24 MR. NICE:

25 Q. Thank you. From the summary, the third bullet point -- and again

Page 25725

1 I simply want this as a fact, I don't want any expression of opinion, as

2 I've made clear. Following these changes, and thus in July 1990, was

3 Kosovo participating separately in the decision-making of the Federation?

4 Just yes or no.

5 A. Kosovo, according to the constitution of Yugoslavia, participated

6 in the decision-making of the Federation. It was in the structure of the

7 federal organs, and it was represented there, as we have already said,

8 according to the principle of parity in the Presidencies while in other

9 organs the representation was lower. But in all organs, the autonomous

10 provinces, including Kosovo, were included in decision-making at the

11 federal level.

12 Q. After the revocation of autonomy, did that participation cease?

13 Please just yes or no. Did the participation cease following revocation?

14 A. It did -- it did cease. It did cease in its basic elements. The

15 provinces could not participate in the decision-making on some issues.

16 First, Kosovo where the Presidency was abolished and then the Assembly.

17 Q. Thank you. If we then turn to the next item on your list of

18 changes, our list of changes reflecting the contents of your report: On

19 the 15th of March of 1991, did the SFRY Presidency reject proposals to

20 introduce a state of emergency?

21 MR. NICE: We've heard evidence about this. Mr. Mesic gave

22 evidence.

23 MR. NICE: Yes. Indeed he did.

24 THE WITNESS: [No Interpretation]

25 JUDGE MAY: We're not getting any interpretation, but in fact,

Page 25726

1 we've heard evidence about this, so we needn't go over it again.

2 MR. NICE: Very well. In which case can we go on in the summary

3 to what the witness refers to in his report on page 11 as happening on the

4 17th of March.

5 Q. As a matter of historical fact, what did the accused make clear in

6 the statement on the 17th of March, Professor Kristan?

7 JUDGE MAY: This witness is supposed to be an expert, giving us

8 evidence about the constitution, which he's done so far. You're now, Mr.

9 Nice, moving into different ground, in my view.

10 MR. NICE: Well, let me come back to that if --

11 JUDGE MAY: And matters, if I may add, of which we've heard

12 evidence. We don't need to go over it again and we certainly don't need,

13 with respect to the witness, his interpretation. He can deal with the

14 matters which he has dealt with heretofore, which are the constitutional

15 matters. Evidence about them is appropriate, but not about the facts

16 which are, after all, the things we're going to have to deal with.

17 MR. NICE: Very well. Then I'll come beyond those items in the

18 sequence to the 1st of October's decision on the imminent threat of war

19 and the amendments to the Presidency's rules of procedure that followed

20 that on the 3rd of October.

21 Q. In your judgement, what was the effect of the decision on the 1st

22 of October?

23 A. Well, this was the proclamation of the imminent threat of war by

24 the Presidency. However, I was looking for grounds for this proclamation,

25 and this is also summarised in the documentation after the Tanjug agency

Page 25727

1 in the draft of the minutes. I did not find any resolution or conclusion

2 on that the Presidency would adopt such a conclusion on the threat of an

3 imminent war in Yugoslavia.

4 Q. On the 3rd of October, there was a change in the decision-making

5 rules and change in the quorum, I think. What do you say about that?

6 A. This is linked. If there is a suspicion about the decision on the

7 proclamation of the imminent threat of war was on the 1st of October,

8 well, then this suspicion is prolonged to the 3rd of October, and in

9 addition, when the Presidency starts working under the conditions of

10 imminent threat of war, well, there is an additional problem, because at

11 this particular session, the Presidency did not have the required quorum

12 for decision-making, neither the majority for adopt such a resolution.

13 This means that this is an illegal act.

14 Q. You also deal - and this is not on the chart - or are able to deal

15 with the decision under rules of procedure for the SFRY to sit

16 continuously in Belgrade, this decision following the declaration of

17 imminent threat of war. What do you say about the decision to sit

18 permanently in Belgrade?

19 MR. TAPUSKOVIC: [Interpretation] Your Honours.

20 THE WITNESS: [Interpretation] This was indeed --

21 JUDGE MAY: Yes.

22 MR. TAPUSKOVIC: [Interpretation] Your Honours, please look at

23 paragraph 197 of the report. The expert said what he can say as an

24 expert. He stated very clearly this means that four members of the

25 Presidency of the SFRY could not function on behalf of the Presidency of

Page 25728

1 the SFRY. I think that this has been explicitly stated and there's no

2 need for him to go into the decisions that were taken. He stated that

3 very clearly, and I think there's nothing more to add to that.

4 JUDGE MAY: Let counsel take whatever course he thinks

5 appropriate. We'll bear in mind the points you made and indeed you can

6 cross-examine the witness about them.

7 Yes, Mr. Nice.

8 MR. NICE:

9 Q. What do you say of the decision to sit permanently in Belgrade,

10 which is covered by exhibits - we don't need to turn to them necessarily -

11 but what do you say about their effect and legality?

12 A. Well, this is related to the same session, and this decision, of

13 course, concerning a transfer to a state of emergency was, of course,

14 illegal, and it was also illegal that the Presidency may have taken

15 decisions by a majority vote of its members, as would usually be the case

16 for a Presidency, because this decision had not been taken, in fact, in a

17 valid way. And this obviously now would represent an additional

18 difficulty for those members of the Presidency that were not physically

19 present in Belgrade, for instance, for Mesic in Zagreb, Trnosek in

20 Ljubljana, and so forth.

21 Q. The last entry on this chart number 4, numbered 5 on the left-hand

22 side, relates to the SFRY presidential order of the 10th of December

23 whereby engagement of volunteers in the SFRY armed forces during the

24 imminent threat of war was dealt with, and we can see that reflected in a

25 new oval box at the bottom right-hand corner of the chart. Explain that,

Page 25729

1 please, to us.

2 A. I have already mentioned it in passing. This was paragraph 251

3 from my report, and that was the formal system as laid down in greater

4 detail regulating the status of volunteers whereby they were part of the

5 armed forces, had to abide by military discipline and eliminating thereby

6 also paramilitary units. And all these units within ten days had to

7 coordinate their status with this particular decision or order on

8 volunteers.

9 Q. We move then to chart number 5, which in summary form deals with

10 some changes in Serbia at the time of or following the 1990 constitution.

11 You might like to speak generally to the chart and then I'll pick

12 up whatever you haven't dealt with. Can you explain, using this chart and

13 in short form, what changes were effected particularly in the power of the

14 president by the 1990 constitution?

15 A. With your permission, I would like to point out that the whole

16 procedure of change in Serbia had begun already with the adoption of

17 amendments in 1989, the 23rd of March, 1989, especially because these also

18 regulated relations with autonomous provinces. Furthermore, also

19 essential changes with the change in the Serbian constitution on the 28th

20 of September 1990, and this was of course quite essential in terms of

21 revocation of autonomy.

22 As far as the executive is concerned and the president of the

23 republic, well, in fact, that meant strengthening the status of the

24 president and his powers in relation to the former Presidency and the

25 status of the president now becomes very strong by this constitution.

Page 25730

1 Additionally, also this position of the president was furthermore

2 determined by the law on defence with the express functions that the

3 president had as head of the executive power in Serbia.

4 Q. Very well. We see that you -- or we've drawn to reflect the

5 position solid lines between the oval in which the words "President of

6 Serbia" are written, and Serbia on the left, and the Assembly of the

7 Republic of Serbia on the right. What was his relationship with the

8 Assembly, for example?

9 A. Well, here the president on the one hand had a conventional

10 relation and his function being, for instance, proposing the mandatory and

11 so forth, the officials, top officials. On the other hand, the president

12 of the republic also enjoyed a sort of priority because he was directly

13 elected while there was this possibility for recall as well. However, a

14 very high majority would have been required in this case, and also with

15 the voting majority of the electorate.

16 In relation to the Assembly, actually the president was

17 autonomous, was independent. On the other hand, the strong position of

18 the president was also reflected in his position at the Supreme Command as

19 Supreme Commander and also his right of taking decisions on the basis of

20 the constitution as regards, for instance, the state of emergency or

21 extraordinary circumstances.

22 Q. His direct election, did that make him usual or unique within the

23 organs of the republics of the former Yugoslavia?

24 A. Well, he was not the only official directly elected. However, he

25 had the strongest position as per constitution. And he was directly

Page 25731

1 elected, for instance, and he was given a higher authority in the public.

2 However, he was not as strong or as independent as the president of the

3 Republic of Serbia.

4 JUDGE MAY: Before you leave 5, Mr. Nice, perhaps you could assist

5 us with the circle of Armed Forces.

6 MR. NICE: I was going to turn to that, and in particular it was a

7 question mark between that and Territorial Defence.

8 Q. The position of the president in relation to the armed forces is

9 shown on our map by a solid line, initially grey but nevertheless solid

10 going to the Armed Forces. And there's a question mark not very clearly

11 shown, but beneath that there is a double-ended arrow going to Territorial

12 Defence and Volunteers. Can you explain why we've drawn it in that way as

13 reflected in your report.

14 A. Well, this was a change that occurred in Serbia then because this

15 was not the case in other republics, namely by amending the constitution

16 in 1990, Serbia actually revoked the institute of Territorial Defence in

17 Serbia. We no longer find it in the 1990 constitution. Whereas in the

18 law on defence of 1991, the Territorial Defence was introduced, and it was

19 laid down in express terms on the basis of a definition well known in

20 Yugoslavia then. And the Serbian constitution actually referred to the

21 armed forces of Serbia, only the armed forces. And the president of the

22 republic was its Commander-in-Chief.

23 And this question mark implies that actually it is not clear what

24 the armed forces of Serbia are, how they are defined, because a law on

25 defence -- on armed forces had been announced, however, to my knowledge it

Page 25732

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Page 25733

1 had not been passed. Therefore, it is not quite clear what the armed

2 forces of Serbia refer to.

3 However, the law on defence speaks of a Territorial Defence, and

4 we can assume that the Territorial Defence units were in fact the armed

5 forces of Serbia to represent.

6 Q. The lines linking the President of Serbia to the police are

7 probably more --

8 MR. NICE: The accused wants to raise something, I believe, Your

9 Honour.

10 JUDGE MAY: Yes.

11 THE ACCUSED: [No interpretation]

12 JUDGE MAY: A minute? Yes. We'll rise for a minute, two minutes.

13 --- Break taken at 10.01 a.m.

14 --- On resuming at 10.06 a.m.

15 JUDGE MAY: Yes, Mr. Nice.

16 MR. NICE:

17 Q. On the chart, Professor Kristan, the dotted lines linking the

18 President of Serbia to the police, either separately or via the government

19 of the Republic of Serbia, speak for themselves when we see the legend

20 says that this relates only to war or the imminent threat of war. And I

21 have one other question to you ask about volunteers. Was there a decree

22 on the registration of volunteers on the 13th of August, 1991 and if so,

23 what did it affect or achieve?

24 A. As far as volunteers are concerned, I've already explained why

25 they were instituted, and there was this decree of December as well as the

Page 25734

1 decree in Serbia to regulate the status of volunteers. And this was, as

2 far as the dotted line is concerned, between the President of Serbia and

3 police. Well, there again, this -- the meaning is that the President of

4 Serbia, in exceptional circumstances, this is explained in 276 of

5 paragraph -- of the report, he could, for instance, recruit police as well

6 as certain other elements as far as the composition of the police force is

7 concerned. So much about this relationship. Otherwise, police is part

8 and parcel of the Ministry of the Interior and as such was part of the

9 government -- the governmental system and its policy, and there was no

10 direct subordination -- subordination to the president of the republic.

11 Q. Now, volunteers, the legend says, can be used to reinforce the

12 Territorial Defence of Serbia during one of the three states. Do we have

13 to distinguish volunteers from paramilitaries?

14 A. Well, indeed the meaning of this formal determination of the

15 status on the basis of the two decrees indeed was there to separate them

16 from the paramilitary units to know what units are illegal and what are

17 the units active within the armed forces and have to abide by the

18 necessary discipline, including also the law -- the legislation on war.

19 And this relates both to the military units or the police force that would

20 be also included in or involved, for instance, in any kind of violation of

21 the military -- of the war law.

22 Q. So volunteers could become lawful contributors to the armed

23 forces. Paramilitaries, were they ever in a position to become lawful

24 contributors to the armed forces?

25 A. Paramilitary units could not make legal their status unless within

Page 25735

1 the framework of this decision on the decree on regulating the status of

2 volunteers. If, for instance, they adapted to the decree on registration

3 of volunteers, in that case they would become volunteers and would also

4 have to abide by the military order and would be subordinated to the

5 military command and in the final analysis or so to the Supreme Command of

6 the armed forces. That was the meaning of this.

7 Paramilitary units were illegal, and it would have only been

8 possible to register them within the framework of this decree and also

9 with a time limit set, and that was a ten-day time limit.

10 JUDGE ROBINSON: Did that happen as a fact that paramilitary units

11 legalised themselves?

12 THE WITNESS: [Interpretation] Well, I do not have this

13 information. I have not been following what was happening, but I presume

14 this was the case. Those units which had not registered themselves were

15 considered as illegal units, and they did or they should have prosecuted

16 such units.

17 MR. NICE:

18 Q. I want to move swiftly to the conclusion of your

19 examination-in-chief because of the passage of time, so can we go to chart

20 number 6.

21 Tab 6 shows the FRY April 1992 Constitution in the boldest of

22 outlines, this new state being adopted on the 27th of April, 1992,

23 constituted by Serbia and Montenegro, as we already know.

24 What do you say as to the validity of the adoption of this

25 constitution and body?

Page 25736

1 A. Well, I would say here it is possible to discuss this issue, to

2 comment this issue from the constitutional and legal point of view. I'm

3 referring to the procedure of the adoption of the constitution of

4 Yugoslavia on the 27th of April, 1992. What is it about? The

5 constitution was passed and proclaimed by the Federal Chamber of the

6 Assembly of the Socialist Federative Republic of Yugoslavia, i.e., of

7 another, of a different state, not of the same state of which the

8 constitution was being passed at the time.

9 As a constitutional lawyer, I conclude that the Federal Chamber of

10 the Assembly of SFRY was not competent, did not have the required powers

11 to pass this constitution and to proclaim it. Neither was it operational,

12 because according to the constitution of Yugoslavia, for the work of the

13 federal Assembly a quorum was required, i.e., the majority of all the MPs

14 of the Federal Chamber. And as we know, the Federal Chamber consisted of

15 30 MPs of each republic and 20 MPs from each autonomous province, and half

16 of these MPs represented the quorum for the work of the Federal Chamber.

17 But as it is known, only two republics participated in the proclamation,

18 and only the deputies, the MPs of two republics, of these two republics.

19 According to the data I found in the media, around 70 -- a bit

20 more than 70 MPs were present at that session, and from this point of

21 view, the Federal Chamber was not competent and not operational in order

22 to perform this act.

23 Q. The chart shows the composition of the Supreme Defence Council,

24 with which the Chamber is familiar, composed at one stage of the three

25 presidents, the two of the republics and the one of FRY itself, they

Page 25737

1 operating through the Chief of the General Staff of the VJ to the army,

2 air force, and navy.

3 The voting system of the Supreme Defence Council is something with

4 which we are also familiar, it changing from majority to consensus. Do you

5 have any comments on the change in the voting system of the council or

6 not?

7 A. Well, this Defence Council was a very special body. It consisted

8 of three members, i.e., the president of FRY - of the Federal Republic of

9 Yugoslavia - and of the presidents of the two federal unit -- units.

10 Well, this composition was complicated, because formally all the three

11 members were equal. However, the president, on the basis of his position,

12 had a certain advantage in relation to the remaining two. The president

13 was the one to put forward the initiatives for the work, he was the one to

14 take care for the implementation of the decisions, and he had a much

15 stronger position in the joint bodies as well. In particular, as the

16 person who also was the commander of the federal -- of the federal armed

17 forces. And he was also the president of the Supreme Defence Council.

18 Vis-a-vis the Federal Assembly of Yugoslavia, his position was similar to

19 the position of a head of state. He had the powers of proposals and of

20 initiative.

21 The difference between the two -- well, in this case this

22 president is not directly elected but is elected by the federal -- Federal

23 Assembly. The term of office is four years. Only one election is

24 possible. While in the case of the president of Serbia, as we could see

25 before, the president of Serbia was elected directly, it was possible to

Page 25738

1 revoke the president of Serbia, however, the conditions to do this were

2 very demanding. And the president of Serbia also had the power of

3 dissolving the Assembly of the republic. This, however, was not so at the

4 case of the federal constitution.

5 If --

6 Q. Yes, go on.

7 A. Yes. If, for example, the Assembly for a longer period of time

8 would not discharge its -- its duties, the government could resolve the

9 Assembly of Yugoslavia. The Assembly of Yugoslavia was composed on the

10 parity principle basis, 20 MPs from each unit.

11 Q. I want quite literally one-line answers to the following questions

12 so that we can know what your position is, you being in a position to

13 answer questions to the accused on these topics if he raises them.

14 They're under Miscellaneous in the summary.

15 In your opinion - just yes or no - was SFRY and its armed forces

16 bound to humanitarian law?

17 A. Yes.

18 Q. By what -- similarly brief answer, please, or as brief as can

19 possibly be made: By what legal means could the accused have retained

20 Yugoslavia as a united state?

21 A. Here I see as a legal means, I see no other than the parliamentary

22 democratic means. An agreement would have to be achieved between the

23 members of the Federation, and then along the legal route undertake the

24 change of the constitution. Regrettably, this did not take place.

25 Q. Similar question: In your judgement as a constitutional lawyer,

Page 25739

1 was there a way in which the Serbs in Croatia could have declared

2 independence and achieved autonomy legally?

3 A. I believe not. Here I must add I don't have a sovereign opinion

4 concerning this, but I do take into consideration the Badinter Commission

5 and their arbitration on the self-determination of Serbs in Croatia and

6 Bosnia and Herzegovina, that here self-determination cannot be envisaged

7 in the sense of an independent state but that within the Croatia and

8 Bosnia-Herzegovina, they must have their rights that are due to them and

9 that the borders should not be changed at the time -- those borders

10 proclaimed at the time of independence.

11 Q. Thank you very much. If you'll wait there, please, Professor, you

12 will be asked further questions.

13 JUDGE MAY: Mr. Milosevic, you will bear in mind in asking

14 questions that we have excluded this witness's evidence about autonomy in

15 Kosovo and we have excluded the part of his report which deals with those

16 matters, so therefore, no questions on those topics will be permitted.

17 However, you may ask him, of course, about the rest of his report, about

18 the position under the various constitutions about which he's given

19 evidence further this morning. Yes.

20 THE ACCUSED: [Interpretation] Mr. May, the witness spoke about

21 this although you have excluded that subject, that is the autonomy of

22 Kosovo. So if you really did not wish to have any of that mentioned, then

23 you should have cautioned Mr. Nice so as not to deal with it.

24 JUDGE MAY: We have. We have dealt with that. There is no

25 evidence in relation to that unless you want to deal with a factual

Page 25740

1 matter, which you can, but no other matter. I suggest you deal with other

2 matters in relation to him.

3 THE ACCUSED: [Interpretation] Yes, I shall deal with factual

4 issues but also some questions that you say have been excluded but which

5 do not necessarily have to pertain to the autonomy of Kosovo. They can

6 reflect the reliability of the witness in this respect and in respect of

7 his testimony.

8 JUDGE MAY: If you're going to talk about his role in the

9 Constitutional Court, you can. Of course you can ask him about that. But

10 bear in mind we've excluded his opinion about the autonomy for that very

11 reason; because he was involved.

12 Also, you will have to show what it is that you challenge in his

13 evidence. If you're going to question his credibility, you will have to

14 show why it's necessary to do it. But go on.

15 Cross-examined by Mr. Milosevic:

16 Q. [Interpretation] Mr. Kristan, you said a few minutes ago, when

17 speaking about your career, that you were dean of the faculty of law, that

18 you are a professor of law. So in addition to the fact that you were a

19 Judge on the Constitutional Court, you were also involved in the science

20 of law. Isn't that right?

21 A. Yes.

22 Q. I assume that the positions you presented in professional articles

23 and other texts were based on professional arguments and the rules of the

24 profession as such. Is that right, Mr. Kristan?

25 A. Yes. On the basis of my knowledge, of course, level of knowledge.

Page 25741

1 Q. All right. So you did not adjust this to political needs and

2 necessities. You abided by the rules of the profession, didn't you?

3 A. That was certainly my intention.

4 Q. And this professional opinion, expert opinion that we got and that

5 you made, this is rather a voluminous paper. You did this at the request

6 of Mr. Nice, or, rather, his side. Did you also compile that strictly

7 abiding by the rules of the profession, avoiding political requirements

8 possibly?

9 A. That was certainly my intention. And if you have any doubts in

10 connection with that, I would ask you to quote the area where you have a

11 doubt, such a doubt.

12 Q. We'll get to that too, not to worry, Mr. Kristan. So as you said

13 yourself, you dealt with this exclusively on the basis of professional

14 rules and law. That means that your positions should have been stable,

15 that they should not have changed.

16 A. Yes. That's the logic of it. Depending on the time and the scope

17 when I presented my position.

18 Q. Very well. That is why I'm referring to stability, because

19 professional and scholarly criteria, I assume, are rather inflexible in

20 this regard. Do you believe that this scientific scholarly objectivity

21 makes you eligible to testify about such matters that you are testifying

22 about now, as a matter of fact? And does this give you a certain

23 credibility for constitutional legal matters? Is that right, Mr. Kristan?

24 A. Yes. Yes.

25 Q. And now, please, let us use a concrete example to verify the

Page 25742

1 stability of your positions and also your professional criteria and

2 reliability. I'm going to quote a few sentences from an article of yours.

3 I'm going to ask you whether it was political reasons and necessities that

4 led to the content of what you wrote then, and could you please confirm to

5 me whether your positions presented then remain stable or, rather, whether

6 you still espouse these views.

7 Mr. Kristan, this is your very own text, one that I have in front

8 of me. In volume number 10 of the periodical Socijalizam from 1981, you

9 published an article, and I assume that you recall it. It deals with the

10 constitutional legal position, and so on and so forth.

11 JUDGE MAY: Do you recall the article, Dr. Kristan, at least in

12 general terms?

13 THE WITNESS: [Interpretation] I do remember that -- this article,

14 but of course I would wish to see the area quoted, the paragraph quoted.

15 JUDGE MAY: Yes, Mr. Milosevic. You can ask the question, and if

16 necessary -- just a moment. Then the witness will be able to see the

17 article you're quoting from over the adjournment. Yes.

18 THE ACCUSED: [Interpretation] Yes. I'll certainly let him have a

19 look, but I need this for a few quotations. I need to have it with me,

20 because I have it highlighted here.

21 MR. MILOSEVIC: [Interpretation]

22 Q. This is on page 1731, Mr. Kristan. And may I tell you, gentlemen,

23 that this periodical has pages of its own regardless of the numbers. So

24 that is why there is such a large number of pages involved. The pages

25 started from the first issue of that periodical, actually.

Page 25743

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13 English transcripts.

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Page 25744

1 What you wrote here is as follows. I'm just going to quote a

2 section from here. You talk about the untenability of the position that

3 was then held by Albanian separatists, and you say: "When Dr. Hajrudin

4 Hoxha assessed the contribution of constitutional amendments from 1968 to

5 the equal positions of the nations and nationalities of Yugoslavia, he

6 pointed out that not in a single state where he followed the position of

7 national minorities he did not find such positive treatment of national

8 minorities as was the case in Yugoslavia."

9 And then you say further on: "Dr. Hajrudin Hoxha, Professor of

10 the Pristina University repeated this position even more decisively this

11 year after the irredentist demonstrations broke out in Kosovo".

12 And then you quote him. You say: I have visited over 60

13 countries. I attended various international gatherings organised about

14 this subject over the past several years, and I came to a conclusion that

15 no one can refute, not a single national minority did not attain the kind

16 of rights that the Albanian national minority attained in the Socialist

17 Federal Republic of Yugoslavia. The Albanian nationality has the same

18 right like any nation. I should just like to mention that it's only

19 Hungarians in Romania and Swedes in Finland that enjoy such rights and so

20 on and so forth.

21 And then you say in relation to the claims that Albanians in

22 Yugoslavia should have a republic of their own rather than only autonomy

23 so that they could become allegedly equal. Now these are your words:

24 "The slogan Kosovo Republic, the way the Albanian contra-propaganda put

25 it is counter-revolutionary, hostile because its aim is to change the

Page 25745

1 constitutional order of Yugoslavia, to change its constitutional borders,

2 and finally to realise annexation of Kosovo to Albania."

3 That is what you wrote yourself, Mr. Kristan.

4 Now, tell me, do you believe today as well that before the

5 constitution of 1974, inter alia thanks to the constitutional position of

6 the autonomous provinces, the nationalities or, rather, the ethnic

7 minorities in Serbia had an incomparably better position than anywhere

8 else in the world?

9 JUDGE MAY: Just deal with that very briefly, and then,

10 Dr. Kristan, we will give you the opportunity to read the article before

11 you're required to answer any more questions about it.

12 THE WITNESS: [Interpretation] I wish to consult this quotation. I

13 do remember this article, and it referred to the justification or not of

14 the slogan "Kosovo Republika." At the time, as I remember it now, I was

15 advocating the position that here a solution should be found in the sense

16 of an autonomy, not in the form of a republic, because self-determination

17 which was proclaimed at the second session of Avnoj in 1943,

18 self-determination was considered the right of nations to organise

19 themselves into states, while for ethnic minorities autonomy was envisaged

20 and ensured. And this was a part of the constitution. And this

21 referred -- applied to Vojvodina and Kosovo. They were not organised as

22 republics but as two autonomous provinces. And it is from this point of

23 view I -- which I hold today is for ethnic minorities is that autonomy is

24 viable. And this is also the position of the Badinter arbitration

25 committee.

Page 25746

1 JUDGE MAY: Just a moment, please. It's now time to adjourn.

2 Mr. Milosevic, show -- let the witness have the copy of that

3 article so he can read it over the adjournment and save us time. Yes, if

4 the usher would get a copy of the article.

5 THE ACCUSED: [Interpretation] I'm going to ask the registrar if

6 she would be so kind as to make a photocopy and give Mr. Kristan that

7 photocopy. It's not too long. And then could I have this particular copy

8 returned to me?

9 JUDGE MAY: Yes. We will do that if the registrar would arrange

10 for the copy to be made.

11 Dr. Kristan, we're going to adjourn now for 20 minutes. During

12 that adjournment, you'll have a chance to look at the article. Would you

13 remember, please, and we have to warn all witnesses formally of this, not

14 to speak to anybody about your evidence until it's over, and that does

15 include the members of the Prosecution team. Could you be back in 20

16 minutes.

17 THE WITNESS: [Interpretation] I understood. Thank you.

18 --- Recess taken at 10.37 a.m.

19 --- On resuming at 11.00 a.m.

20 JUDGE MAY: Dr. Kristan, you've now had the chance of reading that

21 article. Is there anything you want to add to your previous answer to

22 clarify your position?

23 THE WITNESS: [Interpretation] As I have already mentioned, one

24 should take the whole article and its meaning which was written in 1981 on

25 the basis of the then knowledge that I had and the fact that we had at our

Page 25747

1 disposal concerning the protection of the rights of ethnic minority in

2 Kosovo. One has to bear in mind that the constitution of 1974, compared

3 to other constitutions, protected very highly the ethnic minorities. But

4 it doesn't mean that it also applied to the ethnic Albanians in Kosovo.

5 And my article did not accept the thesis Kosovo Republic, because

6 it would imply the disintegration of Yugoslavia, and also because it was

7 against the decisions of the second session of Avnoj where some bases were

8 constructed for the future Yugoslavia, the right to self-determination of

9 the nations, and the status of ethnic minorities was defined.

10 Later, my understanding was broadened concerning the status of the

11 ethnic Albanians in Kosovo, and later in the Constitutional Court in 1989,

12 I initiated a procedure concerning the law on internal relations in Kosovo

13 --

14 JUDGE MAY: Doctor, those are two matters which we have excluded

15 evidence about. Thank you.

16 Yes. Yes, Mr. Milosevic.

17 THE WITNESS: [Interpretation] I apologise, Your Honours. I just

18 wish to add that later I determined that a lot of injustice was being made

19 to the ethnic Albanians in Kosovo. We had the facts, and I remember Josip

20 Ferhovic [phoen] and the discussion with him, namely members of ethnic

21 Albanians were being detained without any right of defence, and so on and

22 so forth.

23 JUDGE MAY: The effect of it was, you say, that that was your

24 understanding at the time you wrote the article but you received more

25 information and found out other things which would lead you to hold

Page 25748

1 different views subsequently. Would that be a fair summary?

2 THE WITNESS: [Interpretation] Yes. Yes, that would be a summary.

3 But already then, I advocated the position that it's not acceptable, this

4 demand for a Kosovo republic because it was against the Avnoj decisions

5 and against the constitution.

6 MR. MILOSEVIC: [Interpretation]

7 Q. Very well, Mr. Kristan. Is it correct to say that the status of

8 autonomous provinces in Serbia, according to the 1974 constitution, far

9 existed -- exceeded the notion of autonomy and was in fact very close to

10 the status enjoyed by the republics themselves?

11 A. Formally, as I have already mentioned, the status of autonomous

12 provinces was close to the status of republics, but formally they remained

13 at the level of autonomies and they never had the right to form their own

14 states.

15 In my report, I attempted to indicate that this formal status was

16 deteriorating concerning Albanians in Kosovo. This deterioration began

17 with the constitutional amendments in 1989 and the laws in 1989 referred

18 to concrete relations when some bodies and companies were disbanded, were

19 released, and special circumstances were introduced. Then the Assembly of

20 Kosovo were -- had to stop working, the Presidency, and all these were

21 concrete facts which led to the deterioration of the protection of the

22 Albanian nation -- nationality in Kosovo.

23 Q. Very well. You say on page 1731 of this article of yours, since

24 you have it in front of you, it is paragraph 4 on page 1731, you say that

25 claims that the Albanians in Yugoslavia were unequal, that they were

Page 25749

1 nationally in jeopardy, could only be described as an example of hostile

2 nationalist propaganda. Introducing parity and the decision-making in the

3 Federation equates the position of provinces with the republics. That was

4 your position then. Isn't at that right, Mr. Kristan?

5 A. I quoted here a secondary source which was quoting this

6 assessment, and I didn't go into that further. This was a conclusion for

7 me. And my position was that this does not imply the right to proclaim

8 Kosovo a republic and its severing from Yugoslavia, which on the basis of

9 the fact we -- facts we had in Yugoslavia was the interests of Albania.

10 And probably this interest existed at the time. And with that intention,

11 I did not agree on the basis of the right to self-determination of a

12 nationality.

13 Q. Yes. And you say in paragraph 3 on this same page which I'm

14 mentioning, the question of inequality of Albanians - that the word

15 "inequality" by you is placed in quotation marks - in Yugoslavia and

16 Kosovo should be viewed from two standpoints, first from the factual truth

17 and secondly from the point of view of the consequences should the

18 Albanians have a different status regarding the other nations and

19 nationalities of Yugoslavia.

20 Is that still your opinion as you wrote about the Albanian

21 separatist movement and its demands in 1981?

22 A. I still believe so, but the emphasis is on the true state of

23 affairs. What was the state of affairs in 1981. I quoted here secondary

24 sources what the situation was. But the understanding of the true state

25 of affairs I later on -- I also quote later on, that such matters should

Page 25750

1 be further elaborated as far as a possible, different organisational setup

2 in Kosovo as the Albanians were a majority in Kosovo. They were not their

3 minority. They had to have a different access to the various organs, and

4 they were subordinated to the Serbian minority there. And that was, I

5 believe, also the reason why Albanians requested a republic and not a

6 formal basis.

7 Q. [Previous translation continues]... claiming, Mr. Kristan, that

8 when you wrote this in 1981 after the revolt of 1980, that the Albanians

9 were not equal in Kosovo because they were under the authority of the

10 Serbian minority in Kosovo? Is that what you're claiming?

11 A. I assert that this comes out of a more detailed analysis, later

12 analysis of the relationships prevailing in Serbia, i.e., Kosovo.

13 Explicitly you could see that with the proclamation of the special

14 circumstances in Kosovo in February 1989 when the Kosovo Assembly was

15 forced to accept a change of the constitution of the Socialist Republic of

16 Serbia and of all the measures which were adopted by the Serbian Assembly

17 against Albanians.

18 Q. We won't go into this, whether the Assembly was forced or not, and

19 that is not a constitutional legal question. But on this same page, you

20 enumerate a number of facts, and then you say those facts elucidate

21 everything but rather than the exploitation of the Albanian nationality in

22 Kosovo. That is what you say. It is indicative of everything other than

23 national exploitation.

24 A. I have to repeat it -- you're repeating page 31, but I reiterate;

25 this is a secondary source. I quote this source, and the emphasis is of

Page 25751

1 an analysis and assessment of the true state of affairs which turned out

2 to be untrue. There was a gap between the formal status and the de facto

3 status between the Albanian nationality -- concerning the Albanian

4 nationality. And it didn't have the rights guarantee which formally

5 belonged to it.

6 Q. Doesn't what you say applies to the formal and the de facto? On

7 page 2 you say this comes to expression in the slogan Kosovo Republic and

8 nationalist propaganda coming from Albania in support of that slogan.

9 Albanian propaganda states the equality of Albanians in Kosovo as being

10 the main argument, and you quote, in favour of the justified demand for

11 Kosovo to gain the position of a republic. And you refer to Zeri i

12 Popullit, the Albanian newspaper, which says that the Albanians in

13 Yugoslavia do not have the rights that should be theirs for which they

14 shed blood, and there was a chauvinist policy being pursued, and you

15 attack these views as nationalist propaganda.

16 A. Mr. Milosevic, be more precise. Look at the individual parts of

17 the article are all parts of a whole. We know what later on turned out to

18 be the Albanian interest. I consider it on the next page, whether this

19 interest of Albania existed, whether it encouraged this demand of Kosovo

20 Republic and the secession of Kosovo which would merge with Albania. This

21 is a different level in -- state level interest. So this had to be

22 attacked as an acceptable propaganda, and I see nothing negative in that.

23 Q. Of course you don't see anything wrong with that. It was

24 nationalist propaganda indeed, and that is what I wish to assert.

25 Look at page 1733, please. You illustrate here their slogans "We

Page 25752

1 want a republic by force or by will," and all these slogans are directly

2 aimed at other nations and nationalities, especially the Serbs,

3 Montenegrins and Turks. The slogan on Kosovo Republic is equally

4 dangerous as the slogan on the annexation of that republic to parts of

5 Macedonia and Montenegro inhabited by Albanians. And the attack on the

6 constitutional order is only the first step towards jeopardising the

7 integrity and constitutional order of Yugoslavia.

8 A. Yes. And later on -- obviously you should go on reading this

9 article, because later on I do say and emphasise that the counting of

10 membership of a nation can be fatal for the ethnically mixed territory of

11 Yugoslavia. And this is what you can find in page -- on page 1734 and

12 also what Raja Vasiliw [phoen] says, emphasising the riskiness, the danger

13 of using such words and slogans. And it is in this respect that it is

14 unacceptable that one part on such a territory should want to proclaim its

15 independence. In these terms, this requirement, this demand is

16 unacceptable.

17 And then on page 35 I do stress that more understanding and also

18 consensual settling of these questions on Kosovo is what is called for.

19 Q. I agree with you, Mr. Kristan, regarding what you wrote in 1981.

20 The problem is that you don't appear to agree with yourself, or rather,

21 with the position you held at the time. So please, as I quoted a moment

22 ago, quite a concrete issue, that is an ethnically pure Kosovo, et cetera,

23 that you mention, my question is, and I wish to remind you of these things

24 and I'm sure that, a serious person, you will give very close thought to

25 this: The expressions "an ethnically pure," "ethnic cleansing," was that

Page 25753

1 expression first used --

2 JUDGE MAY: We have now spent the best part of half an hour on an

3 article which the witness wrote 22 years ago in the circumstances of the

4 time, as he has explained. His evidence which he's given today and his

5 report concern the constitutional issues, particularly the powers of the

6 president of Serbia, which is relevant to this indictment. 1981 was long

7 before the indictment period.

8 Now, you must move on to something else, Mr. Milosevic, because

9 time, as you know, is limited. This witness cannot be here longer than

10 today. Your time, therefore, must take account of that.

11 Now, I cannot see any relevance at all, as far as this witness is

12 concerned, about events in Kosovo at the time that you're dealing with.

13 So you must move on to something else.

14 THE ACCUSED: [Interpretation] Those events, Mr. May, continued

15 later on. I asked Mr. Kristan whether the expressions "an ethnically

16 pure" and "ethnic cleansing" first started to be used in Yugoslavia

17 precisely in connection with --

18 JUDGE MAY: Irrelevant as far as his evidence is concerned. He's

19 giving evidence about the constitutional position.

20 THE ACCUSED: [Interpretation] Precisely about constitutional

21 matters, because these terms first started to be used, that is ethnic

22 cleansing of Serbs and other non-Albanians, and the perpetrators were the

23 Albanian separatists. That's what Mr. Kristan speaks about.

24 JUDGE MAY: No doubt those are matters we shall have to rule upon

25 in due course, but for the moment, this evidence is not appropriate from

Page 25754

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Page 25755

1 this witness.

2 THE ACCUSED: [Interpretation] Very well.

3 MR. MILOSEVIC: [Interpretation]

4 Q. Mr. Kristan, in a broader sense and not just with respect to

5 Kosovo, on page 34, at the end of that page, you say that the slogan of

6 "Kosovo as a Republic" is in contradiction with the foundations of the

7 Yugoslav Federation which is based on the equality of nations and

8 nationalities of Yugoslavia. And this is one of the main achievements of

9 the national liberation struggle and revolution, and its substance is not

10 to separate nations and nationalities but to associate them, to strengthen

11 their community in this territory. And then you go on to say that is why

12 Josip Broz Tito said the Federation doesn't mean drawing borders between

13 federal units and then for each of them to work at will regardless of

14 others. And then you quote that the borders of federal units in federal

15 Yugoslavia were not borders of separation but borders of unification. Is

16 that right, Mr. Kristan?

17 A. Well, this is the meaning that can be deduced from my writing,

18 namely it is necessary to achieve a consensual solution of all the

19 relationships within the existing concept of the Federation which was

20 established at the second session of Avnoj, i.e., the principle of

21 self-determination and recognition of autonomy to national minorities.

22 And this is in the interest of preserving Yugoslavia such as it was

23 established after the end of the national liberation war, according to the

24 constitution of 1964 to 1974. Tito was the one who drew the attention to

25 the central issue of existence of Yugoslavia. And if you are referring to

Page 25756

1 Tito's position, then I believe it is necessary to refer also to his

2 position that it was necessary to respect not only formally but also in

3 concrete relations the equality of nations and nationalities.

4 The merit of Tito is that the new Yugoslavia, i.e., the second

5 Yugoslavia which was conceived in 1943, became different than was the

6 former Kingdom of Yugoslavia which was a unitary state and where the

7 principle of equality of peoples and nations was not applied. Some

8 nations. But not even mentioned, not to speak recognised. For example,

9 the Montenegrins were not mentioned. Macedonians were not recognised.

10 Only the Federation created by Tito gave an equal footing to all these

11 nations. So they were all equal subjects at that time. Then the

12 Montenegrins again obtained their statehood which was taken away from them

13 in 1918 when the King Nikola was toppled and when Montenegro was merged

14 with Serbia. This was Tito's historical role, and I -- when quoting Tito,

15 I believe that in line with his positions and with his active policies we

16 can find the struggle for equality of all nations and nationalities

17 including the Albanians in Kosovo.

18 Q. Just one minor correction, Mr. Kristan. I quoted him from your

19 own text, so I didn't quote him from anywhere else but from a text you

20 yourself wrote when you said borders were linking people rather than

21 separating them.

22 You also say something which I think has principled meaning or

23 substantive meaning for subsequent events. Also on this page 34, you say:

24 "Any such national counting and regrouping is particularly fatal for

25 nationally mixed territories such as these provinces are. Pressures are

Page 25757

1 brought to bear on other nations and nationalities; chauvinist incidents

2 going as far as certain members of nations and nationalities having to

3 move out because of the feeling of jeopardy. This has been happening for

4 a long time in Kosovo from which a large number of Serbs and Montenegrins

5 have already moved out. So according to the 1981 census as compared to

6 the 1971 census, members of these two nations are less numerous and not

7 only in relative terms." And then you say: "In 1971 there was 18.3 per

8 cent Serbs and Montenegrins 2.5 per cent, whereas in 1981 there were only

9 13.2 or 1.7 respectively. They are less numerous in absolute numbers of

10 Serbs 8.1, Montenegrins 4.8, whereas the number of Albanians at the same

11 time went up by 34 per cent." And then you say: "See tables regarding

12 the national composition of Serbia and Kosovo published in Jovan

13 Rajicevic's paper. What is the meaning of the slogan Kosovo Republic?"

14 So you refer to this other author.

15 So this counting the nationality members and exodus under pressure

16 that you referred to here, that is on the part of Serbs and Montenegrins

17 in large numbers from Kosovo. Isn't that right, Mr. Kristan? That is

18 what you yourself wrote about.

19 A. Well, I must say I wouldn't like to re-interpret these statistics.

20 I did not study these statistics in detail. I quoted them as a secondary

21 source.

22 With regard to the fact that slogan Kosovo Republika and its

23 implementation are not acceptable, it is from this angle that I am dealing

24 with this issue. This slogan is not acceptable. For this reason I

25 criticise also the interference of Albania and its interest in instigating

Page 25758

1 this counting and regrouping of the members of Albanian minority with the

2 potential possibility of secession and merging with Albania. It is from

3 this angle that I am quoting this as unacceptable. But the fact remains

4 that it would be necessary to -- as far as the statistics are concerned,

5 it would be necessary to study the statistics concerning the structure of

6 the population in Kosovo for further needs. It would also be necessary to

7 see what is the attitude of the Albanian nationality in Kosovo vis-a-vis

8 the remaining part of the population. I believe that the percentage right

9 now is around 90 per cent. And what was the representation, the rate of

10 representation of the Albanians in the bodies of the Republic of Serbia?

11 I believe that this is the problem that should be studied with regard to

12 these statistics, because in real life it became evident that the

13 Albanians were under-represented and could not cope, decide about issues

14 in Serbia and that this was the reason for their dissatisfaction and for

15 the slogan Kosovo Republic, because they believed that if they were a

16 republic, their position would have been different.

17 Q. Yes, but precisely in relation to what you've mentioned just now

18 in this article of yours, you say: "The irredentist tendencies of the

19 Albanian nationalists in Kosovo are not a recent phenomenon. They

20 actually appear as an extension of various quisling and fascist

21 organisations that fought during the war against the National Liberation

22 Movement of the Yugoslav peoples and against the achievements of the

23 revolution." Is that right, Mr. Kristan?

24 MR. NICE: Your Honour, I make the obvious point that we are well

25 outside the area of the witness's expertise and it will be regrettable in

Page 25759

1 the extreme if the accused finds himself at half past one saying he hasn't

2 had time to deal with the witness or whatever time limit we may reach. He

3 should frankly deal with matters of law. These matters of composition of

4 Kosovo can probably be taken from the article and put to the demographer

5 when the demographer is called in due course.

6 JUDGE MAY: Yes. Mr. Milosevic, I was consulting as to time.

7 You've only got, as you know, we only have the witness here today, so

8 you've only got that time. You're choosing to spend it on this article

9 and Kosovo and choosing it, in my judgement, to be spending it not wisely.

10 Just a moment. The time that you will have will be all but the last half

11 hour, unless Mr. Tapuskovic is prepared to give up some of his time to

12 you. But it will, of course, depend on how you choose to spend the rest

13 of that time whether it's right that you should get some extra or not.

14 Mr. Tapuskovic, how long do you anticipate being, at the moment,

15 with this witness?

16 MR. TAPUSKOVIC: [Interpretation] It is really hard for me to judge

17 at this point in time, but as for the time that is left for me, I will try

18 to deal with those questions that I can deal with within a short period of

19 time.

20 THE ACCUSED: [Interpretation] Very well, Mr. May. I think that

21 this is quite clear what Mr. Nice said, that the point that is being made

22 is of a demographical nature. That is not true. The point is quite

23 different. I think that this can be seen from Mr. Kristan's article. It

24 is not demography.

25 MR. MILOSEVIC: [Interpretation]

Page 25760

1 Q. Mr. Kristan, let us go back to the constitutional subject matter

2 that you are predominantly testifying about. It is not disputed on the

3 basis of what you wrote then that Albanian separatists attacked the

4 constitutional order and the integrity of the country. From a

5 constitutional point of view, do you think that the Republic of Serbia had

6 the obligation to protect the basic rights of its citizens throughout the

7 territory of the republic? Did the Republic of Serbia have the obligation

8 to protect the territorial integrity of the republic guaranteed not

9 only --

10 JUDGE MAY: We must have a question and not a series like this.

11 You were asked whether there was this obligation on the Republic

12 of Serbia to protect the basic rights of its citizens. Would you agree

13 with that, Dr. Kristan?

14 THE WITNESS: [Interpretation] Yes. Serbia did have that

15 obligation. On other hand, the Socialist Federative Republic of

16 Yugoslavia had the same obligation, the safeguarding of the integrity of

17 Yugoslavia.

18 MR. MILOSEVIC: [Interpretation]

19 Q. So I assume that you're not going to challenge that Article 5,

20 paragraph 2 of the constitution of the SFRY, that the territorial

21 integrity is guaranteed by Articles 5 and 3 of the constitution of the

22 SFRY? Isn't that right? Protection of the integrity of the republic and

23 Yugoslavia, which is defined in the constitution of the republic, and in

24 the constitution of the SFRY in these Articles and paragraphs of the

25 constitution of the SFRY which I also mentioned to you. Is that right,

Page 25761

1 Mr. Kristan?

2 A. Integrity has been guaranteed and the state is -- has the

3 obligation to safeguard the integrity.

4 Q. As far as Serbia is concerned and as far as Yugoslavia is

5 concerned. Is that right, Mr. Kristan?

6 A. In all areas of the state with appropriate means and not in a

7 general manner with some general actions.

8 Q. With appropriate means. Well, you do remember that the Presidency

9 of the SFRY had passed decisions to have certain measures taken as far

10 back as then, 1980 and 1981. You mentioned some of that too. You do

11 recall that, don't you, I assume? All republics took part in the

12 implementation of these measures. Is that right, Mr. Kristan?

13 A. Well, I do not remember this. I was not working on that. I

14 didn't do any analysis. But I believe that for the later situation, that

15 is for the crisis which emerged in Yugoslavia in 1986 and which culminated

16 in 1989 when on the 27th of March, 1989, the Presidency of Yugoslavia

17 proclaimed the state of emergency in Kosovo.

18 Well, this is a new situation. This is not 1980. This is not

19 1981, and therefore, I believe it is impossible to link the two. The

20 crisis of Yugoslavia was the crisis that occurred later. And this was the

21 crisis that needed to be resolved, and then it became obvious that all the

22 means which were tried to be used were unsuccessful, failed. Also,

23 because of the policies led by Serbia and also due to the accused

24 Mr. Milosevic who had his positions at that time, and he was in a position

25 to implement his stance not only in the framework of Serbia but in the

Page 25762

1 framework of Yugoslavia as a whole.

2 Q. All right, Mr. Kristan. As far as I can understand, you are

3 testifying here about constitutional legal matters, not about my

4 positions. Of course, as far as my positions are concerned, my conscience

5 is clear.

6 Mr. Kristan --

7 A. Well, if you allow me, I'll explain myself. What was I referring

8 to? I was referring to the events of 1989 with regards to the session of

9 the Presidency of Yugoslavia of the 15th of March, 1991. At that time,

10 the president, Jovic, tendered his resignation, and then you gave a

11 special statement for the Yugoslav media where you deny your obedience to

12 the Presidency and you also said that Serbia would not implement any

13 decision of the Presidency of Yugoslavia. At that time, you didn't have

14 any such powers, but you demanded from the Assembly of Serbia to dismiss a

15 member of the Presidency of Yugoslavia. This was not one of your

16 constitutional powers.

17 Q. As for my constitutional powers, they include presenting

18 proposals, suggestions, et cetera, and this decision was passed by the

19 competent authority, that is to say by the Assembly of Serbia. You, as a

20 constitutional lawyer, would have to know that.

21 As for Jovic's resignation, our insistence was that he should

22 return, and he did indeed return after a decision passed by the Assembly

23 of Serbia that he should return and that he should continue discharging

24 his duties at the Presidency of the SFRY. If you remember all of that,

25 and I assume you do, Mr. Kristan.

Page 25763

1 A. I do remember. I do remember. However, I also remember - and I

2 have to correct you - it wasn't your -- under your constitutional powers

3 to request the Assembly of Serbia to recall the member of the SFRY

4 Presidency from Kosovo, Sapundziu, because the Assembly of Serbia was not,

5 I say not empowered to recall him, and here you intervened erroneously.

6 Q. It's going to be easy for us to debate that issue, because even

7 citizens can present proposals, according to our laws, let alone the

8 president. And this also has to do with decisions of the National

9 Assembly of Serbia. So this cannot be challenged.

10 Now, your expert opinion that you presented here pertains to the

11 SFRY constitution, to the constitution of the Federal Republic of

12 Yugoslavia and the constitution of the Republic of Serbia. Is that right,

13 Mr. Kristan?

14 A. Yes. I also touch upon the constitution of the Federal Republic

15 of Yugoslavia, and I wonder what is contradictory that you find.

16 Q. Well, you've been called to testify here, and in this room here,

17 there are persons who, although lawyers, were trained in different legal

18 systems, and by the very nature of things, they cannot know or they cannot

19 know very well about the subject matter that you are testifying about and

20 that is why you have been called as a witness. That is what I assume.

21 And you are giving this expert opinion about these three constitutions.

22 Since you are a scholar, the number of published works, articles,

23 et cetera, is a touchstone for one's professional references. Tell me,

24 how many such works did you published in Yugoslavia?

25 A. I don't believe this is relevant. I was -- I'm a law professor,

Page 25764

1 and I wrote textbooks on the constitution, constitutional law, a group of

2 authors, Professor Ribicic, Professor Grad [phoen], Professor Kapcic

3 [phoen], and myself.

4 Q. So you published an article about the constitution of Yugoslavia.

5 You published this particular paper professionally?

6 A. Yes. Articles were published. It would be difficult for me to

7 enumerate all of that. I think that you have a list of my articles and my

8 professional biography, a list of articles in English and German.

9 Q. Did you write any articles about the constitution of the Republic

10 of Serbia?

11 A. No specific article. But for this occasion, I went through the

12 constitution of Yugoslavia, and on the basis of that I submitted my views

13 and which you can find from 75 onwards. And where I touched upon

14 particularly on the proclamation of the constitution and I question the

15 correctness of the procedure itself.

16 Q. All right. Since you did not write anything about the

17 constitution of Serbia, as you said yourself, that actually means that in

18 this field, as far as the constitution of Serbia is concerned, there is no

19 difference between you and the other lawyers sitting in this room because

20 you never really dealt with this. Isn't that right?

21 JUDGE MAY: No. That's not a fair point. The fact that a scholar

22 doesn't write on a particular subject doesn't mean that he's perfectly

23 competent to write about it. Now, this witness is a constitutional lawyer

24 with knowledge of the Yugoslav constitutions, and that has been his

25 evidence, and we've got his curriculum vitae. So let's move on.

Page 25765

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Page 25766

1 THE ACCUSED: [Interpretation] All right.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Mr. Kristan, a significant portion of your expert opinion pertains

4 to the relationship between the constitution of the SFRY and the

5 constitution of Serbia and the powers of the members of the Presidency and

6 the Presidency as such in the field of national defence and also the

7 powers of the republics; is that right?

8 A. Yes. A certain part of it is. Here the question is raised

9 concerning the relationship and the attitude towards the SFRY

10 constitution.

11 Q. All right. Since you're testifying under oath and you have the

12 obligation to tell the truth, why did you keep silent about Chapter 8 of

13 the constitution of Serbia which is entitled "Attitude Towards the

14 Constitution of the Socialist Federal Republic of Yugoslavia"?

15 A. I don't know what in concrete terms are you referring to. I

16 believe --

17 Q. In concrete terms, in that chapter of the constitution of the

18 Republic of Serbia, there is Article 135. There was a great deal of

19 debate with regard to this and it is impossible for an expert in this

20 field not to know about its substance and that particular paragraph. My

21 question is: Why did you remain silent about that particular chapter and

22 that particular article? Please answer my question.

23 JUDGE MAY: Why should he have commented on it? What is the point

24 you're making, Mr. Milosevic?

25 THE ACCUSED: [Interpretation] Well, Mr. May, the existence of that

Page 25767

1 chapter and that article in the constitution of Serbia and the fact that

2 it was left out of the expert opinion disfigures the constitution of

3 Serbia in many important aspects.

4 JUDGE MAY: Yes, in what way? Just explain what you mean.

5 THE ACCUSED: [Interpretation] I'm going to do that right now.

6 MR. MILOSEVIC: [Interpretation]

7 Q. Mr. Kristan, the constitution of the Republic of Serbia was

8 adopted on the 28th of September, 1990; isn't that right?

9 A. Yes.

10 Q. And at that time, the authorities of the Republic of Slovenia, the

11 Republic of Croatia had already expressed their intentions to secede from

12 the SFRY. They had already taken the first steps in that direction. For

13 example, on the 1st of July, the Assembly of Slovenia adopted a resolution

14 on the sovereignty of Slovenia. In April and May, when the HDZ came to

15 power, their programme also envisaged the creation of a sovereign state of

16 Croatia; isn't that right? Is that undisputed?

17 A. These events weren't completely synchronised, and I wonder how

18 Mr. Milosevic interprets the Article 135 for which he wants to hear my

19 interpretation. And I'd like -- why does he connect Slovenia and Croatia

20 with this? They were already on the way to independence.

21 JUDGE MAY: Just a moment. Just a moment. Dr. Kristan, don't, if

22 you can avoid getting into an argument with the accused because otherwise

23 time will be taken up.

24 Everybody is in the dark as to what the point is that you're

25 making. Now, if you've got a serious point and a concrete point about

Page 25768

1 this article, make it, but otherwise, let's move on to something else.

2 MR. NICE: Your Honour, the --

3 JUDGE MAY: Just a moment. Mr. Nice, yes.

4 MR. NICE: One of the relevant documents is listed in the list of

5 exhibits. It's one of the exhibits already listed. It's P132. I think

6 there were some courtesy copies in court but I'm not sure how many are

7 available. If you want to find it ... And perhaps one can go to the

8 witness as well.

9 JUDGE MAY: Yes. Mr. Milosevic, while we're getting a copy of

10 that, if you'd like to move on.

11 THE ACCUSED: [Interpretation] This is very important, Mr. May.

12 MR. MILOSEVIC: [Interpretation]

13 Q. In such a situation, I mentioned that before the constitution was

14 adopted, there was already the declaration of Slovenia and the express

15 desire on the part of Croatia --

16 JUDGE MAY: Just a moment. What is this? I've been given an

17 enormous bundle.

18 MR. NICE: I'm sorry. I didn't intend that you have the whole

19 bundle. This is all the previous exhibits that might sensibly be referred

20 to. It's the second of those. It's marked as P132. It's the second one

21 down and that's all you require. And it's actually the last page of that.

22 It's page 57 of that exhibit, as numbered. And the witness should be

23 provided with a copy of the original, which can be found on the top

24 right-hand corner on page 28 of 36.

25 THE ACCUSED: [Interpretation] May I proceed, Mr. May?

Page 25769

1 JUDGE MAY: Yes. We now have the article.

2 MR. MILOSEVIC: [Interpretation]

3 Q. Chapter 8 says Relationship to the Constitution of the Socialist

4 Federal Republic of Yugoslavia, Article 135 reads as follows: "The rights

5 and duties vested under the present constitution in the Republic of

6 Serbia, which is part of the Socialist Federal Republic of Yugoslavia,

7 violate the equal terms of the federal constitution are to be exercised in

8 the Federation shall be enforced in accordance with the legal

9 constitution."

10 So Mr. Kristan, is it clear that Serbia when it passes a

11 constitution on the 28th of September, 1990, when other republics had

12 already announced that they would leave Yugoslavia altogether, it does not

13 want to have any kind of legal vacuum left behind, but it considers all of

14 these provisions that pertain to the subject matter that you've been

15 dealing with here, that they are not being carried out in conformity with

16 that constitution but that they're actually being carried out in

17 conformity with the federal constitution.

18 A. This is a provision which, as I understand what Mr. Milosevic

19 stated, with which it was wished to cover up the fact that the Republic of

20 Serbia essentially changed the constitution of Yugoslavia in the sense

21 that it abolished the status of autonomous provinces which were a creation

22 of the constitution of Yugoslavia.

23 Now, if we quote the first paragraph of Article 135, that the

24 Republic of Serbia will be performing on the basis of the federal

25 constitution, that's not true. You've eliminated, you've abolished the

Page 25770

1 rights of the autonomous provinces which were enlisted in the federal

2 constitution. You've abolished their constitution. You've took from

3 them -- you abolished the Assembly as a legislative body and the

4 Presidency which was compulsory according to the federal constitution.

5 You've abolished the constitutional court there, all of that which was

6 envisaged in the previous order.

7 So this first paragraph does not meet that what was happening.

8 These rights were not being exercised any more, and they did not exist in

9 the constitution of Serbia.

10 JUDGE ROBINSON: I am not understanding this. The English version

11 of Article 135 doesn't read well. I'd like to ask the interpreter to

12 translate the version in the B/C/S language.

13 THE INTERPRETER: The interpreters do not have a copy of any text

14 in any language. We are sorry.

15 JUDGE ROBINSON: I see. Could they be provided with a text. They

16 can have one of ours, yes.

17 THE ACCUSED: [Interpretation] Mr. Robinson, Mr. Kristan is talking

18 about some special rights in terms of national defence. It is true that

19 the constitution of the Republic of Serbia does contain such provisions in

20 order to avoid the possibility of a legal vacuum, because before that both

21 Slovenia and Croatia had announced their secession. However, Article 135,

22 both de jure and de facto deals with the rights that the Republic of

23 Serbia has in accordance with this constitution. That is what it says,

24 the rights and responsibilities that Serbia has in accordance with this

25 constitution and which according to the federal constitution are being

Page 25771

1 exercised and the Federation shall be carried out in accordance with the

2 federal constitution. That means that nothing that was envisaged as a

3 power of the Republic of Serbia with regard to these issues that

4 Mr. Kristan is testifying about, that is to say defence and so on and so

5 forth, will not be carried out. This will be applied in accordance with

6 the federal constitution.

7 JUDGE ROBINSON: Mr. Milosevic, let us -- let us hear the

8 translation of Article 135 so we can have a better understanding of it.

9 The interpreters now have it?

10 THE INTERPRETER: Yes.

11 JUDGE ROBINSON: Would you give us an interpretation of Article

12 135.

13 THE INTERPRETER: Article 135 --

14 THE ACCUSED: [Interpretation] This is the first paragraph of

15 Article 135. They can see it now.

16 THE INTERPRETER: The interpreters will translate it as follows:

17 "Article 135. The rights and duties that the Republic of Serbia which is

18 within the Socialist Federal Republic of Yugoslavia has in accordance with

19 this constitution and which according to the federal constitution shall be

20 exercised within the Federation shall be carried out in accordance with

21 the federal constitution."

22 That is the end of the first paragraph.

23 JUDGE ROBINSON: It is totally different. That is more

24 intelligible than what we have here.

25 THE ACCUSED: [Interpretation] All right. Then we can proceed, I

Page 25772

1 hope, Mr. Robinson.

2 JUDGE ROBINSON: Could you conclude the interpretation. There is

3 a second part to 135.

4 THE INTERPRETER: The interpreters shall now interpret the second

5 paragraph.

6 "When enactments of the agencies of the Federation or enactments

7 of the agencies of another republic in contravention of the rights and

8 responsibilities that it has in accordance with the constitution of the

9 Socialist Federal Republic of Yugoslavia infringe upon the equality of

10 rights of the Republic of Serbia or in any other way jeopardise its

11 interests and if no compensation has been provided for, the republican

12 authorities shall adopt enactments in order to protect the interests of

13 the Republic of Serbia."

14 End of translation.

15 JUDGE ROBINSON: Thank you. Mr. Milosevic, I think what you

16 should now do is put very succinctly the significance of this article to

17 the witness and the witness will comment on it.

18 MR. MILOSEVIC: [Interpretation]

19 Q. All right. Mr. Kristan, is it clear that everything you said in

20 relation to national defence and the alleged responsibilities that are

21 contained in the constitution was not being applied in accordance with the

22 constitution of Serbia? Article 135, that is to say, these powers that

23 according to the federal constitution are exercised within the Federation

24 that will be carried out in accordance with the federal constitution.

25 That is what is highlighted that these powers that are envisaged by the

Page 25773

1 federal constitution will be carried out in accordance with the federal

2 constitution. So everything that you explained in terms of some kind of

3 powers of the authorities of Serbia in this domain has been eliminated

4 altogether. This shall be exercised in accordance with the federal

5 constitution. That is what Article 135 says.

6 A. I wanted to draw the attention to the specific nature of this

7 first paragraph, because each part of this first paragraph should be taken

8 into consideration. We speak of the rights and duties of the republic of

9 Serbia which is part of the Socialist Federal Republic, and on the basis

10 of this constitution adopted on the 28th of September in 1990, these

11 rights will be pursued in line with the federal constitution.

12 The fact is that the -- this constitution of the Republic of

13 Serbia does not have the institutions concerning the autonomous provinces

14 and which still exist in the federal constitution. The Presidency, for

15 example, of the autonomous province is linked to the federal organs, the

16 Federal Presidency. That's the problem.

17 Q. Mr. Kristan, what I am challenging from your testimony is the fact

18 that you glossed silently over Article 135 has nothing to do with the

19 provinces. It has to do with the competence of Serbia which you insisted

20 upon, and if you had mentioned Article 135 from the constitution of

21 Serbia, you would have seen that with respect to defence, the competencies

22 belong to the organs envisaged by the constitution of Yugoslavia and are

23 exercised as stipulated by that constitution. Then it would have been

24 clear how it would have been possible to envisage the armed forces of

25 Serbia and why such forces were never formed, in fact.

Page 25774

1 So if you hadn't been silent about Article 135, it would become

2 clear that in the area of defence, and I am now talking about defence, as

3 for the autonomy of provinces we've already discussed that, but in the

4 area of defence, the appropriate competencies are vested in the bodies

5 envisaged by the constitution of Yugoslavia, and that is very clearly

6 stated in Article 135 and are exercised accordingly.

7 JUDGE MAY: I have stopped you because the witness must have the

8 chance to answer the point. Yes, Dr. Kristan.

9 THE WITNESS: [Interpretation] Here we're dealing just with the

10 segment of defence. I didn't mention Article 135. I didn't deem it

11 relevant. But let me ask which part of my report is being disputed here.

12 I see no connection and no reason with which you are questioning my

13 report.

14 The fact that I didn't quote that article is not a question of

15 refuting my report. I think this article should be in detail explained.

16 But in this constitution, you haven't regulated the essential elements of

17 autonomy. This is what I stress in my report.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Mr. Kristan, virtually throughout the examination-in-chief,

20 Mr. Nice devoted almost all his time to these charts, and all these charts

21 and your examination-in-chief dealt mostly with the functions of defence

22 and the relationships between the various Presidencies. There are certain

23 incorrectness there too but I won't dwell on them, but all these charts

24 relate to defence. And I'm saying that precisely because of the fact that

25 you did not mention Article 135, one can see that those defence functions

Page 25775

1 were never, in fact, established in the Republic of Serbia because in that

2 area, the appropriate competencies belonged to the bodies stipulated by

3 the constitution of Yugoslavia, and Article 135 says that what the

4 constitution of Yugoslavia stipulates will be implemented in accordance

5 with those stipulations. And that is the explanation why no armed forces

6 of Serbia were ever formed, because for as long as SFRY existed, the

7 constitution of SFRY was implemented.

8 A. Well -- well, it seems to me important to emphasise once again. I

9 did not see where my positions are not correct. I would like you to quote

10 which is the position that I expressed that you do not want and which is

11 in conflict. You say --

12 JUDGE MAY: Rather than get into an argument about this, as you

13 interpret Article 135, Dr. Kristan, what effect did it have on any of the

14 defence provisions which you say were in the law on defence of Serbia, or

15 indeed on the constitution? What bearing, if any, did Article 135 have on

16 these matters?

17 THE WITNESS: [Interpretation] Well, I do not see any effect of

18 this article, and this article would not make impossible the defence of

19 Serbia. The concept of defence of Serbia and of Yugoslavia were very

20 clear and clearly defined in the constitution. This was the concept of

21 the armed forces. And we have already established what the position of

22 the armed forces and of the Territorial Defence were, and this has no

23 relation with Article 135, with the constitution. There is nothing that

24 would be unclear. This article did not rehabilitate or deny the concept

25 of defence.

Page 25776

1 In my opinion, this article is conflictual because it does not

2 spell out clearly something. Mr. Milosevic has approached me that I did

3 not mention on purpose this article. This was not the case. But in this

4 article, it is not clear that there are no longer the fundamental

5 institutions which had been provided for by the constitution.

6 Now, in this constitution, no reference is made to the relations

7 between the member of the Presidency of Serbia vis-a-vis the Assembly in

8 the past. In the constitution it was clearly defined that the member of

9 the Presidency elected by the Assembly of Serbia was answerable to the

10 Assembly, that he or she was bound to present their views to the Assembly.

11 Now this provision was deleted. What was the purpose of that? There is

12 no longer any Presidency of autonomous province, which means that the

13 structure of the Federation has thus been impaired in the sense that it

14 had been conceived previously.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Mr. Kristan, we are not talking about the Presidencies of

17 autonomous provinces, Mr. Kristan. You testified about alleged

18 competencies with respect to national defence and I quoted to tell you

19 that what is stipulated by the federal constitution to be exercised in the

20 Federation will be exercised in accordance with the federal constitution.

21 That is what Article 135 says, and that is why no armed forces of Serbia

22 were ever formed, because that was within the competence of the

23 Federation. And according to Article 135, what is the responsibility of

24 the Federation is done by the Federation. And later on, when the FRY was

25 established, it was the army of Yugoslavia again. So these competencies

Page 25777

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13 English transcripts.

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Page 25778

1 were realised in the Federation. That is why no armed forces of Serbia

2 were ever formed. That is quite consistent and in accordance with Article

3 135 of the constitution, which says that what is in the competence of the

4 Federation will be regulated in the Federation. Only if the whole country

5 had broken down, if Serbia had become an independent and autonomous state,

6 would those provisions be implemented because in that case there would be

7 no federal state which regulates matters of defence by its own

8 constitution. So that is the whole point, Mr. Kristan, and as a

9 constitutional lawyer, you know that full well.

10 A. Well, it seems to me it would be correct if Mr. Milosevic

11 explained why the constitution --

12 JUDGE MAY: Don't bother. If he doesn't make his point plain,

13 there is no point pursuing it. And as I say, we do not want an argument.

14 Yes, Mr. Milosevic. Your point is not clear. Now, you can either

15 try and make it again so it's clear or you can do something else, move on

16 to another point.

17 MR. MILOSEVIC: [Interpretation]

18 Q. Is it clear, Mr. Kristan, that you're talking about certain

19 independent competencies of Serbia in the realm of national defence in

20 your expert report and now in the examination-in-chief as well and in

21 commenting these charts shown to you by Mr. Nice?

22 A. Well, I apologise to the President Mr. May for having asked this

23 question. Because I wanted to know why Serbia in this constitution of

24 1990 left out the Territorial Defence which had been a constituent part of

25 the armed forces of Yugoslavia in all republics, in all constitutions, and

Page 25779

1 also in the previous constitution.

2 JUDGE MAY: I'm sorry, but let's try and shorten this. Is it your

3 point, Mr. Milosevic, that the reason there wasn't any mention of the

4 armed forces in the constitution was because its governed by Article 135?

5 Is that the point you're making?

6 THE ACCUSED: [Interpretation] The armed forces are mentioned in

7 the constitution, but Article 135 says that the competencies envisaged or

8 provided for by the federal constitution shall be exercised in the federal

9 state. Therefore, whatever is mentioned in the Serbian constitution about

10 armed forces will be implemented in accordance with the federal

11 constitution.

12 JUDGE MAY: It's subject to 135. That seems to be the point.

13 Yes. But the witness was dealing with the Territorial Defence, and that

14 was what his evidence was about.

15 Now, have you got any other points on this?

16 THE ACCUSED: [Interpretation] I can also draw attention to certain

17 other matters in that connection which are quite clear.

18 MR. MILOSEVIC: [Interpretation]

19 Q. Mr. Kristan, on the basis of the SFRY constitution, did the TO of

20 Serbia remain under the Supreme Command of the Presidency of the SFRY and

21 not the president of Serbia? Because according to the law on national

22 defence of SFRY, the commanders of Territorial Defence of the republics

23 and the commanders of the TOs of the autonomous provinces were accountable

24 to the Presidency of the SFRY for their work regarding combat readiness,

25 deployment of troops, institutions, control and command, et cetera. This

Page 25780

1 is Article 113 and 115 of the law of national defence. 113 and 115.

2 Therefore, in that sense, these charts of yours are not correct.

3 What is correct is that each republic --

4 JUDGE MAY: Let the witness answer these points.

5 Yes. Now, about Article 113 and 115.

6 MR. MILOSEVIC: [Interpretation]

7 Q. This is the law on all people's defence.

8 A. This law on general people's defence was based on a concept of the

9 armed forces of Yugoslavia, i.e., the army and the Territorial Defence.

10 This is what the constitution of Serbia of 1991 did not have. This

11 constitution of Serbia left out the Territorial Defence as an essential

12 segment of that defence of the armed forces of Yugoslavia, and this is

13 where I see the problem.

14 Q. Isn't that problem eliminated automatically by the fact that

15 questions of defence pursuant to Article 135 shall be implemented in

16 accordance with the federal constitution? So thereby automatically the

17 constitution of Serbia says that what is envisaged by the federal

18 constitution is implemented according to that federal constitution. Isn't

19 that clear?

20 A. Well, here I believe that the legislator should have been more

21 specific, more precise. Whenever such articles are concerned, the article

22 which is so important to Mr. Milosevic, here a delegation is foreseen from

23 the decisions and from the provisions which are in the constitution. I

24 believe that here we should have enumerated by virtue of these articles

25 these and these acts and regulations will be applied. I believe that it

Page 25781

1 should be stated very clearly what is considered as a -- as issue covered

2 by Article 135 of the constitution, and this was not done.

3 Q. Even I who is not a teacher but simply a lawyer, I think

4 understand that something is enumerated if it is an exception. But if it

5 says here that the rights and duties, that means all rights and duties

6 which the republic has pursuant to its constitution. Therefore, all

7 rights and duties which according to the federal constitution are

8 implemented in the Federation will be exercised in accordance with the

9 federal constitution. And because this relates to all rights and duties,

10 there is no need to enumerate anything specifically. Whatever is within

11 the competencies of the federal constitution, the Republic of Serbia

12 considers shall be regulated in accordance with that constitution. Why

13 would if be necessary to enumerate all these things, for the Republic of

14 Serbia to say that all those things shall be exercised in accordance with

15 the federal constitution? That is why there is no enumeration.

16 JUDGE MAY: This is the -- this is the last question we'll deal

17 with before the adjournment.

18 Yes. Do you have any comment you want to make, Dr. Kristan?

19 THE WITNESS: [Interpretation] Yes. Yes, of course. I believe

20 this deserves a comment because if you say "all," then we have to take

21 into consideration the fact that Article 135 excludes those things which

22 are regulated by the federal constitution and which do not figure in the

23 constitution of the Republic of Serbia. One of these things is the

24 Territorial Defence. In your constitution, you did not regulate the

25 Territorial Defence, and now you are saying that competencies according to

Page 25782

1 these things. But according to this constitution, you do not have the

2 Territorial Defence.

3 JUDGE MAY: I'm going to stop you. We're going to adjourn now.

4 Twenty minutes, please.

5 --- Recess taken at 12.23 p.m.

6 --- On resuming at 12.42 p.m.

7 JUDGE KWON: Before we go on, I would like to ask the OTP to

8 produce an official translation of Article 135 in due course, even if we

9 heard it from the interpreter.

10 MR. NICE: As far as I know, this is indeed an official

11 translation, but I think we will re-submit this entire article obviously

12 for a further reconsideration by the unit.

13 JUDGE KWON: Thank you.

14 JUDGE MAY: Yes, Mr. Milosevic.

15 MR. MILOSEVIC: [Interpretation]

16 Q. Let me just finish off with this part of the examination.

17 Mr. Kristan, according to what you've said about the changes in the

18 regulations in Yugoslavia, you spoke about the armed forces of Yugoslavia,

19 didn't you?

20 Therefore, let us clear this up. The expression "armed forces,"

21 does it absorb or include the Territorial Defence?

22 A. Yes. In terms of the constitutional order of Federal Yugoslavia,

23 yes, but not in terms of the Serbian constitution of 1990.

24 Q. Please. If the armed forces does imply the Territorial Defence as

25 well, does the constitution of Serbia mention the armed forces?

Page 25783

1 A. Well, as a constitutional lawyer, we have to be accurate. The

2 notion of armed forces is not clearly determined. A special law was

3 announced in this area. However, it had not been adopted. The fact is

4 that the Serbian constitution does not include Territorial Defence, which

5 beforehand had been a part of the Serbian constitution on the basis of the

6 concept of the Yugoslav constitution, federal constitution.

7 Q. You yourself have explained that in the laws of Yugoslavia, the

8 term "armed forces" was used, which does include the Territorial Defence,

9 doesn't it?

10 A. Yes.

11 Q. Therefore, if the constitution of Serbia mentions the armed

12 forces, then surely that means that it has used the terminology used in

13 Yugoslav regulations, which means that it implicitly includes the

14 Territorial Defence. Isn't that clear?

15 A. That is a fact. Later on, this was changed, but you said that I

16 overlooked the Article 135, and I think that in these terms, I would like

17 this to be clearly put. And to my mind, a great shortcoming of the

18 Serbian constitution lies precisely there, in this area. And in relation

19 to the former constitution of the Republic of Serbia, which now in this

20 situation left out the Territorial Defence, that we find in all other

21 constitutions. And an interesting element to me is to question why this

22 was so. And since you compel me to interpret or to comment, rather,

23 Article 135, I must say that I see a problem there.

24 Q. That is the whole point. Since the federal legislation uses the

25 term "armed forces," and that means the Territorial Defence included, the

Page 25784

1 constitution of Serbia mentions the armed forces, but by article 135, as

2 that is part of the competence of the Federation, it leaves it within the

3 competence of the Federation, because it says clearly that everything

4 envisaged in the constitution of the Federation should be exercised in

5 accordance with the federal constitution. Haven't we cleared that up?

6 A. Article 135, however, does not mention the armed forces, whereas

7 you are saying that this is an exception, this article. And to me as a

8 lawyer, I think that this calls for an explanation so as to be able to

9 arrive at such a conclusion that you are putting forward, namely that this

10 is something that cannot be gathered on the basis of this article, and

11 therefore, we can say that the segment of Territorial Defence is not

12 included.

13 Q. Are the armed forces within the competence of the Federation in

14 any constitution of the FRY and the SFRY? Just give me an answer as a

15 constitutional lawyer. It is -- are they within the competence of the

16 Federation?

17 A. Yes. As a constitutional lawyer, I wish to add that the

18 constitution of the republic must respect and abide to the constitution of

19 the Federation which the constitution of the Republic of Serbia did not

20 do, and only later on the level of legislation, not on the level of

21 constitution it organised Territorial Defence. And I question what is the

22 reason for it. What is the purpose of a constitution if the first

23 paragraph of Article 135 is the application and the execution of the

24 constitution of the Socialist Federal Republic of Yugoslavia? It is

25 superior, and its execution is in fact stronger.

Page 25785

1 Q. The emphasis here is on the fact that the Republic of Serbia

2 respects the constitution of Yugoslavia, because it says that the rights

3 of duties that are invested in Yugoslavia according to the constitution

4 are exercised in accordance with the federal constitution, which is quite

5 in contradiction with what you are saying and with the fact that you

6 omitted to mention this Article 135.

7 Now, let me move on. Is it true that when we were discussing the

8 regulations on Territorial Defence that the Presidency of the SFRY

9 appointed the commander of each of the Territorial Defences of each of the

10 republics? Isn't that right?

11 A. Yes. That's based on the law on All People's Defence of

12 Yugoslavia. And in this law, the competencies and responsibilities of the

13 commanders of TOs of the republics were defined in this law on All

14 People's Defence.

15 Q. Yes. And they were accountable to the Presidency of Yugoslavia.

16 Isn't that right, Mr. Kristan?

17 A. Yes. Yes. The Presidency of Yugoslavia. And later when changes

18 occurred, this accountability shifted to the staff of the armed forces.

19 Q. Very well. I assume you will agree with me that this chart,

20 number one, is not correct insofar as it talks about the presidents of the

21 republics and autonomous provinces, whereas according to the constitution

22 of 1974, they were not presidents but, rather, presidencies of the

23 republics and autonomous provinces. Isn't that right, according to the

24 1974 constitution? These bodies were the presidencies, republican and of

25 the autonomous provinces; isn't that right?

Page 25786

1 A. Precisely so. That was my comment, but obviously there was no

2 time to correct this error or lapses.

3 Q. Very well. Also, when you say SFRY Presidency in this large box,

4 it says Supreme Command and then in brackets president of the Presidency

5 equals Supreme Commander. That also is not correct, because the Supreme

6 Commander, according to the 1974 constitution, was the Presidency and not

7 the president. Isn't that right, Mr. Kristan?

8 A. The Presidency of Yugoslavia was the Supreme Commander and the

9 command and control of the armed forces, and it was exercised by the

10 presidents of the Presidency on behalf of the -- he did it on behalf of

11 the Presidency.

12 Q. All right. So we finally agreed on that. Now, please, in spite

13 of the secession of Slovenia and Croatia and then Bosnia-Herzegovina and

14 Macedonia, the Republic of Serbia continued to respect the order of the

15 constitution of the Socialist Federal Republic of Yugoslavia. Two

16 republics remained within the common state. And then when in April 1992

17 the constitution of Yugoslavia was adopted, they also proclaimed their

18 continuity with the SFRY constitution. This is what you refer to in

19 Articles 154, 155 and 410 of your expert opinion. Isn't that right?

20 A. Yes. It refers to the matter of continuity. However, concerning

21 the proclamation of this continuity on -- by the Federal Republic of

22 Yugoslavia, what was contradictory was already the proclamation, a

23 proclamation by an organ which didn't have an authority to proclaim it.

24 The question is what was the intention to be achieved vis-a-vis

25 the international community. Mr. Milosevic speaks of secession of

Page 25787

1 Slovenia and Croatia. No such secession took place. I think one has to

2 be correct and take into account the true state of affairs.

3 Q. All right. The true state of affairs will certainly be taken into

4 account but we don't have time now so I just want to discuss some details.

5 You say that the constitution of the Federal Republic of Yugoslavia was

6 promulgated at the meeting of the Federal Chamber. Do you remember that

7 the parliaments of the Republics of Serbia and Montenegro were there too?

8 Is that right? So the members of the Federal Chamber from these two

9 republics and also the full Republican Assemblies of both Serbia and

10 Montenegro. Isn't that right, Mr. Kristan? Just say yes or no and we can

11 go on. We haven't got more time.

12 A. I don't have a list of those attending. In the media the

13 reporting was that the Federal Chamber proclaimed the constitution, but

14 the Federal Chamber didn't exist in composition with all the republics but

15 only MPs from Serbia and Montenegro participated. That was the numbers

16 which I know. And the media reported the number of -- in attendance.

17 Q. That is the part that pursued the continuity of Yugoslavia, Serbia

18 and Montenegro. You're not going to claim that the MPs from Slovenia,

19 Croatia, Bosnia-Herzegovina and Macedonia were supposed to be invited too,

20 those that had left Yugoslavia? Were they supposed to vote on whether

21 Serbia and Montenegro would continue to exist as the Federal Republic of

22 Yugoslavia? Is that perhaps what you're saying?

23 A. What I wish to say is that this procedure wasn't legally correct

24 and that it's not correct that this proclamation of continuity wasn't

25 legally relevant, because these two republics, in line with international

Page 25788

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13 English transcripts.

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Page 25789

1 law and on the basis of evaluation of the Badinter Commission, didn't have

2 a right to the continuity of SFRY but all republics had it, and this is

3 then resolved in the process of succession, and it would be fit and proper

4 for the two republics if they proclaimed this constitution

5 independently. They would -- could call -- call a constituent Assembly

6 and involving the Assembly of SFRY was not correct.

7 Q. All right, Mr. Kristan. All right, Mr. Kristan. As for

8 Badinter's commission, we're going to ask Mr. Badinter about that himself.

9 Let's go on.

10 Are you claiming that the law on how republican authorities should

11 act under special circumstances is contrary to the SFRY constitution? You

12 in paragraph 24 of your expert opinion, you say that in accordance with

13 Article 230 of the SFRY constitution - I'm quoting your sentence - the

14 rights and responsibilities guaranteed by the SFRY constitution cannot be

15 taken away or restricted. That is a quotation. And then you say it is

16 only possible to do this in a state of war according to Article 317 of the

17 constitution of the SFRY. Rather, amendment 91, paragraph 3 gives to the

18 Presidency of the SFRY. Is that right? Just say yes or no.

19 A. Yes.

20 Q. All right. All right. Let's go on.

21 A. Yes. It's not possible because here we -- I have to explain where

22 -- why I state this.

23 It was the state of the Republic of Serbia who intervened with

24 special extraordinary measures. I've given the -- anti-constitutional

25 elements were discussed by the Constitutional Court of Yugoslavia, and

Page 25790

1 that is why I said that it's impossible on the basis of Constitutional

2 Court of Yugoslavia to withdraw and suppress the rights and the

3 self-management rights. And the Republic of Serbia couldn't intervene in

4 this way with a simple law.

5 Q. All right. When you say that the session of the Constitutional

6 Court was not actually completed, I would like to draw your attention to

7 the Official Gazette, 87/90. This is a decision on assessing the validity

8 of the constitutional declaration on Kosovo as an independent --

9 JUDGE MAY: Mr. Nice, perhaps you can assist with this. It sounds

10 as though we're heading into the area which we ruled against.

11 MR. NICE: Well, I was going to --

12 THE INTERPRETER: Microphone for Mr. Nice, please.

13 MR. NICE: I agree.

14 JUDGE MAY: Yes, Mr. Milosevic. We've ruled against this. Let's

15 go on.

16 THE ACCUSED: [Interpretation] Well, the witness deals with it, so

17 I wanted him to respond.

18 JUDGE MAY: It doesn't matter. Let's go on.

19 THE ACCUSED: [Interpretation] All right.

20 MR. MILOSEVIC: [Interpretation]

21 Q. You invoked Article 203 of the constitution, which says the rights

22 and liberties guaranteed in this constitution cannot be taken away or

23 restricted. That is a quotation. However, you kept silent about

24 something else, just like about one Article 135, that is that there is

25 paragraph 2 of this same article as well. So of the SFRY constitution, we

Page 25791

1 are dealing with both paragraphs.

2 JUDGE MAY: Let us deal with one matter, because you continually

3 repeat it, which is a bad forensic practice. You make a bad point and

4 then go on repeating it continually. The witness should have the chance

5 to deal with it so it's plain on the record.

6 The accused alleges that you did not deal with Article 135, you

7 overlooked it, and it appears that what he's saying is that you

8 deliberately ignored it.

9 Now, you should have the chance to deal with that. Did you do

10 that or not?

11 THE WITNESS: [Interpretation] Your Honours, I didn't keep silent

12 about it. I didn't want to keep silent about it. It didn't seem relevant

13 to me. But I did look for literature and explanation for this procedure,

14 but I found no trace of this Article 135, its meaning, its function as

15 Mr. Milosevic spoke of it today. I was interested in getting as much

16 material as possible about it.

17 However, if Mr. Milosevic refutes my view on the inalienability

18 and liberties which are guaranteed, I would like to ask him what articles

19 he quotes and refutes my stand.

20 MR. MILOSEVIC: [Interpretation]

21 Q. Mr. Kristan, that's why I'm going beyond that. You also invoke

22 204, and you say -- I'm sorry. In paragraph 24 of your expert opinion,

23 you say that according to Article 203 of the SFRY constitution, the rights

24 and liberties guaranteed by the SFRY constitution could neither be

25 suspended or limited. So I've just quoted you now.

Page 25792

1 So in the mentioned sentence, you correctly invoked Article 203 of

2 the SFRY constitution which says the rights and liberties guaranteed by

3 this constitution cannot be suspended or limited. You quoted that

4 correctly. However, there is also paragraph 2 of that same constitutional

5 article, Mr. Kristan, and it reads as follows: The rights and liberties

6 envisaged by this constitution shall not be used by anyone in order to

7 undermine the basics of the self-management constitutional order of this

8 constitution and also the violation of the constitutionally guaranteed

9 rights of man and citizen and international cooperation fanning

10 interracial hatred or instigating the commission of crimes. And these

11 rights and liberties cannot be used in a way which would offend public

12 morality. Full stop. And then the law provides under which conditions

13 and under which situation using rights or, rather, abusing rights

14 guaranteed by this constitution means that they should be withdrawn

15 altogether. So this is what it says in this same article and you quoted

16 paragraph 1 of that article only.

17 Is it being disputed, Mr. Kristan, that this expression "the law

18 determines," so that is to say either republican or federal law, and when

19 it is -- that is what is meant. It's either or. But when the federal law

20 is meant only, then that is stated specifically. Isn't that right?

21 A. I believe that this stand on the inviolability of rights and

22 liberties I think must be respected within the framework of the federal

23 constitution and only -- the only departures can be outlined by the

24 federal legislator. And I quoted the -- and emphasised the inviolability

25 of the self-management right. And I'd say it is specially protected, and

Page 25793

1 with the special measures, the Republic of Serbia intervened in this area

2 by suppressing the self-management rights of the great majority of this

3 population. It refers to 250 enterprises. And that is why I emphasised

4 the inviolability of these rights.

5 Q. All right. But you quoted only paragraph 1 and you kept silent

6 about paragraph 2, and I quoted it to you only a short while ago so I

7 don't want to quote it again. Because it does say that this right is

8 restricted if racial, religious, or other types of hatred are being fanned

9 and that this is prescribed by law. Isn't that right, Mr. Kristan?

10 A. Yes, yes.

11 Q. So you did not mention a part of this article which is much longer

12 than paragraph 1 of that article. Because it does not fit into what you

13 are trying to persuade people of here by way of your expert opinion. I

14 think that you did this intentionally.

15 A. Well, this -- these recriminations that I intentionally omitted

16 this, and I believe Mr. Milosevic knows I do not do, and I know what my

17 responsibility is. And what in our constitutional administrative law

18 showed that the laws adopted by the Republic of Serbia vis-a-vis the

19 autonomous province of Kosovo where it intervened in all relationships

20 prevailing on that territory of Kosovo that it impinged upon the entire

21 territory. This was stated by Professor Medjedovic.

22 Q. Please. I'm not interested in that. Tell me as a former

23 constitutional judge of the Constitutional Court of Yugoslavia, isn't the

24 court the only one that is competent to judge whether something is in

25 accordance with the constitution or not. Is that right or is that is not

Page 25794

1 right, Mr. Kristan?

2 A. Yes.

3 Q. Did the Constitutional Court perhaps judge that what the Republic

4 of Serbia did was unconstitutional or not?

5 A. No, it didn't state that because it didn't in the process.

6 Q. So the Constitutional Court did not do that. I'm not interested

7 in private personal opinions. Let's move on. In paragraph 131 of your

8 expert opinion you say that, "The right to self-determination, including

9 the right to secession, was stipulated in the Basic Principles I of the

10 SFRY constitution." And then you quote that: "The nations of Yugoslavia,

11 proceeding from the right of every nation to self-determination," and so

12 on and so forth joined in a free republic of working people the Socialist

13 Federal Republic of Yugoslavia --

14 JUDGE MAY: No need to answer this. We've ruled this bit out.

15 Yes. Move on.

16 MR. MILOSEVIC: [Interpretation]

17 Q. Already in the next paragraph you say that some authors,

18 especially from Serbia, like Professor Djordjevic and --

19 JUDGE MAY: No. Mr. Milosevic, you know that that has been ruled

20 out. The relevant parts are 148 onwards. Page 40. And you've got by my

21 calculation another ten minutes.

22 MR. MILOSEVIC: [Interpretation]

23 Q. Mr. Kristan, in the normative part of the constitution of the

24 SFRY, doesn't Article 5 say that the territory of the Socialist Federal

25 Republic of Yugoslavia is one and it consists of the territories of the

Page 25795

1 socialist republics? And also the border of the SFRY cannot be changed

2 without agreement of all republics and autonomous provinces? Is that

3 right, Mr. Kristan? Is that what the constitution says?

4 A. Yes.

5 Q. You say, actually, that it is the people that decide about

6 self-determination, but people are actually organised within a state

7 constituted as people within their republics joined within the Federation.

8 That is your assertion. Is it correct, Mr. Kristan, that at the moment

9 when the Yugoslav peoples established the Yugoslav state after the First

10 World War and during the Second World War, there were no

11 republics in existence?

12 A. I regret and I apologise. I would be interested in debating the

13 issue of self-determination, but I see that there is no time for that, and

14 Your Honours did not give me -- didn't allow me to go into that. But in

15 fact, if we wish to highlight this issue, we would have to go back to 1918

16 when the first Yugoslavia was formed and then focus on second Yugoslavia,

17 which was founded in 1943 -- it has its foundations in 1943. The first

18 Yugoslavia collapsed because there wasn't equality among nations.

19 Now, the third -- and if Your Honours allow me, we had a number of

20 elements joining this country. And -- however, the process of

21 proclamation of that state and constitution wasn't in the spirit of this

22 unification.

23 Now, at the time it was the Kingdom of Serbia. Then the other

24 country, the Kingdom of Serbs, Croats, and Slovenes. There the problem of

25 nations was wasn't resolved. Then there was Vojvodina, then the Kingdom

Page 25796

1 of Montenegro, and here some issues weren't resolved. Now, in view of the

2 policy of Serbia led by President Pasic, they merged with Vojvodina and

3 then Montenegro and the King Nikola was toppled. And with that, the new

4 Yugoslavia, the second Yugoslavia, tried to resolve these issues through

5 the concept of Federation in order to ensure the equality of all nations

6 and nationalities irrespective of their numerical strengths. And that is

7 why we have the parity principle in the main federal organs. And when the

8 two provinces joined, they were also represented. And those were the

9 goals of this Federation.

10 Now, the constitution in 1974 brought this level -- this

11 Federation to a level which became critical because Serbia wasn't

12 satisfied with this concept. Here we should then continue the debate.

13 But for me, the main issue is this discussion about the reorganisation of

14 Federation was not carried on with peaceful means but what ensued was an

15 armed conflict which was at the time initiated by Serbia. And Mr.

16 Milosevic, I would say, was an important figure --

17 JUDGE MAY: That's not a matter that your evidence goes into.

18 Yes, Mr. Milosevic.

19 THE ACCUSED: [Interpretation] All right. But you allowed the

20 witness to explain at length what is not the subject of this hearing and

21 you deny me any such right.

22 MR. MILOSEVIC: [Interpretation]

23 Q. I just wanted to state, Mr. Kristan, that this quotation of yours

24 that I mentioned, that is to say the peoples of Yugoslavia constituted as

25 peoples within their republics joined together, and you say that this is a

Page 25797

1 falsehood and therefore a forgery.

2 A. I don't understand your assertion.

3 Q. There were no republics when Yugoslavia was formed after the First

4 World War and during the Second World War.

5 A. You mean in 1918. In 1918, they were not. But in 1943, the Serb

6 process was initiated.

7 Q. Initiated but republics were not formed then. Let's go on. In

8 many --

9 A. The statehood of individual republics within the nations was being

10 developed gradually in different intensities among different nations. If

11 you take the case of Slovenia in point, Slovenia in 1941 already formed

12 its highest organ of authority, the National Liberation Committee, which

13 was supposed to represent the Slovene nation. And at the meeting at

14 Kocevje prior to the second session of Avnoj --

15 Q. Mr. Kristan, we are not talking about the Slovenian national

16 committee now, please.

17 A. I only wanted to answer your question, namely I'd like to point

18 out that individual nations developed their statehood already prior to the

19 second session of Avnoj. The second session of Avnoj, 29th of November,

20 1943, the delegations of the individual nations' peoples came with their

21 authorisations concerning decisions to be taken there. Namely that a new

22 Yugoslavia would be formed as a Federation and not a unitarian state.

23 JUDGE MAY: I'm afraid time is short.

24 MR. MILOSEVIC: [Interpretation]

25 Q. Mr. Kristan, I'm afraid there's not much time left.

Page 25798

1 In your expert opinion, you say that the amendments to the

2 constitution of Serbia in 1989 and the constitution of 1990, and you also

3 say today during your live testimony that this is against the SFRY

4 constitution and that this changed the positions, and you invoke the

5 constitution of the SFRY, Article 4, referring to autonomous provinces.

6 And you do not quote Article 4 of the SFRY constitution anywhere. You

7 just invoke it. You say that in 1989, autonomous provinces were deprived

8 of their constitutional position which was based on Article 4 and that the

9 position of the autonomous provinces was not observed, and so on and so

10 forth.

11 I would like to quote to you article 4 of the SFRY constitution,

12 and it reads as follows: The socialist autonomous province is an

13 autonomous self-management, democratic, social political community based

14 on the power and self-management of the working class and all working

15 people within which the working people and citizens, the nations and

16 nationalities have exercised their sovereign rights. And when this is in

17 common interest, then the republics as a whole by the SFRY constitution

18 established this within the republics as well.

19 So this is what the constitution of Yugoslavia says. Had you

20 quoted this article, it would have been clear that precisely in this last

21 part of the sentence prescribes that it is precisely the constitution of

22 Serbia that allocates responsibilities or, rather, that divides

23 responsibilities between the Republic of Serbia and the autonomous

24 provinces within the republic depending on whether this involves common

25 interests or not. I quoted the constitution of Yugoslavia to you which

Page 25799

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Page 25800

1 says when it is in the interest of the republic as a whole, then the

2 constitution of the republic will determine this within the republic. Is

3 that right?

4 THE WITNESS: [Interpretation] Do you allow that, Mr. President?

5 May I answer?

6 JUDGE MAY: Yes.

7 THE WITNESS: [Interpretation] Well, I quoted the entire concept of

8 the constitution of Yugoslavia as far as the status of autonomous

9 provinces is concerned. This logic is there, and from the very beginning

10 it was clear that the autonomous provinces share their destiny within the

11 Republic of Serbia. This was clear. And the constitution of Yugoslavia,

12 however, provided for certain guarantees to the autonomous provinces that

13 the Republic of Serbia with its legislation and with its constitution

14 could not strip them of this status. And this is where the problem

15 appears. The rights started to be diminished, the rights enjoyed by the

16 autonomous provinces by 1990, on the basis of the constitution of the

17 Socialist Republic of Serbia, which was based on this concept of

18 Federation and where Article 4 of the constitution of Yugoslavia was also

19 taken into consideration. I did quote some of the amendments passed by

20 Serbia in 1989 by way of which the previous position of autonomous

21 provinces is weakened. But this process continued and reached its climax

22 with the constitution of 1990. Then all the essential elements of the

23 autonomous provinces were abolished with the constitution of the Republic

24 of Serbia. The elements that had existed before in the Yugoslav

25 constitution.

Page 25801

1 Q. Is it at issue that it was in accordance with the constitution of

2 Yugoslavia, Article 4, the Republic of Serbia is competent to divide

3 competencies between the republic and the autonomous provinces within it

4 guided by the fact whether they were of common interest or not. This is

5 the last sentence of Article 4 which states this very clearly, that this

6 is established in the republic with respect to the autonomous provinces.

7 You didn't quote the key paragraph.

8 A. I apologise. I do not have here the text of the federal

9 constitution, and I can't find it right now. Maybe somebody could help me

10 to find the relevant text. But I believe that as far as this article is

11 concerned, we should take into consideration of the word "also" because I

12 believe it is the order which is important. Who is older? Who is the

13 first? Here the constitution of Yugoslavia defined the ground and the

14 basis of these rules and status. For the autonomous provinces in Serbia,

15 it is also the constitution of the Republic of Serbia which applies. But

16 this does not necessarily apply that the constitution of the Republic of

17 Serbia could strip off the provinces of the status that had been

18 guaranteed by the Yugoslav constitution. This is the logic.

19 Q. Constitution of Serbia of 1990 September, that you quoted from,

20 are there autonomous provinces, that is Vojvodina and Kosovo and Metohija?

21 Do they exist, that is Vojvodina and Kosovo and Metohija in the 1990

22 constitution of Serbia, because you say they were abolished?

23 A. The autonomous provinces such as they had been created with the

24 constitution of Yugoslavia are abolished. The constitution of the

25 Republic of Serbia has an Article 6 to which you are most probably

Page 25802

1 referring, and it says that autonomous provinces Vojvodina, Kosovo and

2 Metohija exist as forms of territorial autonomy. This is where the

3 importance lies. I do not know whether you underestimate the terminology,

4 the constitution of 1974.

5 JUDGE MAY: This is of marginal significance, it seems, but you've

6 got two more questions, Mr. Milosevic, by which time you will have had

7 well over two hours to cross-examine. Now, two more questions.

8 MR. MILOSEVIC: [Interpretation]

9 Q. After the adoption of the constitution of Serbia, did the

10 autonomous provinces remain constituent parts of the Federation? Is that

11 right or not?

12 A. Well, the autonomous provinces, yes. They continued as part of

13 Yugoslavia. However, they were no longer units of political territorial

14 autonomy, as for the concept of SFRY, because Serbia rescinded territorial

15 autonomy in this constitution which is contrary to the federal

16 constitution.

17 Q. [Previous interpretation continues]... bodies after the

18 constitutional amendments in Serbia in 1990 that you are talking about,

19 were the provinces represented in the same way that they were before, as

20 regulated by the constitution of Yugoslavia, and those same people by name

21 and surname kept the positions they held prior to those constitutional

22 changes in Serbia. Just take as an example your own Constitutional Court

23 of which you were a member.

24 A. Well, indeed more or less the same people were and kept their

25 positions. However, Serbia abolished the institutions that previously had

Page 25803

1 existed in autonomous provinces, and that is the Assembly of the

2 autonomous province. And this Assembly had a right and duty to elect a

3 member to the Yugoslav Presidency, and you interfered in that, rescinding

4 the autonomous status.

5 JUDGE MAY: This is your last question.

6 MR. MILOSEVIC: [Interpretation]

7 Q. Mr. Kristan, that is not true that the Assemblies of the

8 autonomous provinces were abolished. The Assembly of Kosovo and Metohija

9 was suspended because of unconstitutional acts and the proclamation of a

10 republic which means flagrant violation of the constitution of both

11 Yugoslavia and Serbia. Did anyone abolish the Assembly of Vojvodina or

12 the Presidency of Vojvodina before the changes were made to the

13 constitution of Yugoslavia? Why are you talking about constitutional

14 matters and mixing them up with political circumstances and the

15 irredentist movement in Kosovo?

16 JUDGE MAY: Answer that question because of the suggestion which

17 is made and then we will hear from Mr. Tapuskovic.

18 THE WITNESS: [Interpretation] Well, the fact is that Serbia

19 interfered into the functioning of Yugoslavia. Well, first of all, at

20 constitutional level, interfering thus with the functioning of the

21 institutions of autonomous provinces. Furthermore, also it -- it

22 abolished the Assembly after they ceased their activities, as it was put.

23 And this is an unacceptable argument or reasoning, because the Assembly is

24 a legal body in accordance with the federal law and constitution of Serbia

25 has no right to interfere with this status.

Page 25804

1 Second, the existence of the Presidency of Yugoslavia, the

2 Assembly of Serbia first of all dismissed Sapundziu contrary to the

3 constitution, because this did not lie within the competence of the

4 Serbia, and appointing its own member of the Presidency, and this was not

5 part its responsibilities or competencies either. And this decision about

6 putting an end to the functioning of the Assembly as well as dismissing

7 the member at the federal level.

8 Well, all of these acts were in fact against the constitution or

9 were unconstitutional and the Constitutional Court as well in fact was

10 just about to -- was no longer really operational.

11 JUDGE MAY: Mr. Tapuskovic.

12 THE ACCUSED: [Interpretation] Mr. May, can't I be allowed to ask a

13 few more questions, please?

14 JUDGE MAY: No. No, Mr. Milosevic. You've had much more than

15 your time already. We must bring this witness's evidence to a close.

16 Yes, Mr. Tapuskovic.

17 MR. TAPUSKOVIC: [Interpretation] Thank you, Your Honours.

18 Questioned by Mr. Tapuskovic:

19 Q. [Interpretation] Professor, I would like to ask you to focus on a

20 few points only so that we try to explain to Their Honours a few more

21 points from your report.

22 In the examination-in-chief and throughout your testimony, you

23 spoke about the competencies of the Presidency of SFRY according to the

24 1974 constitution, and also in paragraphs 202, 203, 204, 205, and 206 you

25 spoke about the competencies of the president of Presidency of Serbia.

Page 25805

1 This is to be found in your conclusions but I would like to draw your

2 attention to what is stated in paragraph 202. I quote: "The President of

3 the Presidency of the Republic of Serbia had no formal relationship with

4 the SFRY Presidency member from Serbia." Isn't that so?

5 A. Emphasis here is on a formal relationship in the sense of either a

6 subordinated or inferior position.

7 Q. Could you please, if possible, answer clearly. This is what you

8 explicitly stated. Do you abide by what you said?

9 A. Well, it's got to be also read together with what follows and what

10 went on then, and it is clarified that the president of the Presidency

11 then in fact acts as a substitute, and I've already explained this earlier

12 on today.

13 Q. I'm asking you literally to comment on what you said. I'm moving

14 on to paragraph 203: "... a formal relationship did exist between the

15 SFRY Presidency member from Serbia and the Assembly of Serbia..." That is

16 what you wrote in your report. Isn't that right?

17 A. But this is not questionable in any way.

18 Q. I agree, and that's why I'm drawing your attention to it. And

19 finally in paragraph 204, according to the 1974 constitution of Serbia and

20 amendment so-and-so, the SFRY Presidency member from Serbia is answerable

21 to the Assembly of Serbia and is obliged to report on the functioning of

22 the SFRY Presidency to the Assembly. Is that right?

23 A. Yes. But you also have to read on Article 205 or item 205 where

24 it is -- we can see that a Serbian Republic left out this and the question

25 is why.

Page 25806

1 Q. I'm really asking you only with respect to what you wrote in your

2 report, because according to the 1974 constitution, did the same apply

3 with respect to the representative of any republic in the Presidency?

4 That is, that that president was answerable to the Assembly of his

5 republic?

6 A. Well, the member from any republic is answerable to the Assembly

7 from his or her republic or autonomous province, to their own Assembly --

8 Q. Thank you.

9 A. -- Serbia in the case of autonomous provinces.

10 Q. And now, Mr. Nice showed you these four charts, one, two, three,

11 four, which you prepared together with the Prosecution, and between these

12 two boxes, that is the Presidency of the SFRY and their representatives,

13 in between there we have the presidents of the republics and of the

14 autonomous provinces. Isn't that wrong? Shouldn't we have there instead

15 that the link between the SFRY Presidency and the republics was the

16 Assembly and not the president of the republic?

17 A. Well, it is not inaccurate, but I think it would be better to say

18 that it is insufficient and it was a slip of the tongue. And then what is

19 missing here is probably a first table illustrating a more comprehensive

20 information with all the bodies mentioned. And this is in fact what is

21 missing here. And this is not -- it is insufficient and not inaccurate or

22 incorrect.

23 Q. In any event, it is wrong, because where it says president, it

24 should say the Assembly of each of the republics and autonomous provinces.

25 Isn't that right?

Page 25807

1 A. It is not incorrect because I must say that this slide or this

2 table is not the only document. You did referred to point 204 where this

3 relation actually is described in these documents and illustrating the

4 relationship between the Assembly, and this as I have said, is

5 insufficient but not incorrect.

6 Q. Now, please let us look at paragraph 197 of your opinion. I

7 quoted it today a little earlier on, and I quote: "That means that four

8 members of the SFRY Presidency could not act on behalf of the SFRY

9 Presidency." And I agree with you on that point. They didn't have a

10 quorum, but they did function nevertheless. And as they functioned, does

11 that mean that they were answerable to their assemblies again, that is,

12 the assemblies of the republics from which they came?

13 A. That's got nothing to do with the responsibility of individual

14 assemblies, and in view of the fact that individual members have not acted

15 correctly as members of the Presidency wanting, for instance, to put

16 forward some stands and also without having the necessary quorum.

17 Q. But they did operate, and they issued orders to the General Staff.

18 And for those activities, they should have been answerable to the

19 assemblies from which they had come, to which they should have given

20 explanations for their work. Isn't that right?

21 A. They have functioned illegally because they did not have any

22 competence to be able to give any such instructions. And within

23 individual assemblies, actually, this should entail some consequences and

24 they should be answerable to their assemblies for such behaviour or acts.

25 Q. I agree with you. However, maybe I wouldn't be asking you all

Page 25808

1 these things if you didn't have a footnote here, footnote number 8. And I

2 think you mentioned it today in answer to Mr. Nice's question, and that is

3 that Mr. Slobodan Milosevic refused to take over the powers held by Jovic.

4 But you didn't indicate why he didn't want to do that. He didn't wish to

5 take part in the work of the Presidency because it had decided in favour

6 of the disintegration of Yugoslavia, isn't that so? And then Jovic,

7 several days later, took up his post again.

8 A. Well, I believe that this whole question is much more complex than

9 that and calls for taking into consideration a number of elements because

10 of the resignation of President Jovic in itself is something that would

11 call for further explanation and also the interests, for instance, of the

12 defence and the whole defence structure. Then there was also the

13 declarational statement by Milosevic referring to the resignation of Jovic

14 and also reproaching the Presidency from not acting in the interest of

15 Yugoslavia and also demanding from the Serbian Assembly that he be in fact

16 recalled from this function and that another be appointed to this

17 position. And in my view, these acts were not correct, and these elements

18 were also unconstitutional.

19 Q. I only asked you about something to do with the regulations and

20 how they regulate matters. I don't know if I could be given a few more

21 minutes to deal with the topic related to Territorial Defence.

22 JUDGE MAY: Yes, a few more minutes, Mr. Tapuskovic.

23 MR. TAPUSKOVIC: [Interpretation]

24 Q. In paragraph 227 it says in your report: "Under the SFRY

25 constitution, the Territorial Defence was an integral part of the armed

Page 25809

1 forces of SFRY. Unlike the JNA, which was a common armed force of the

2 SFRY, the TO was organised at the level of republics and autonomous

3 provinces." This means that there was no single TO in the SFRY but,

4 rather, eight TOs. Therefore, the armed forces of the SFRY were composed

5 of what you say were nine segments, the JNA and eight Territorial

6 Defences; is that right?

7 Professor, isn't that in contradiction with what you said in

8 paragraph 263? The constitution of Yugoslavia followed the concept of

9 common armed forces. Then 264: According to the SFRY constitution, the

10 republics did not have their own armed forces but only the Territorial

11 Defence. The Territorial Defence of the republics and the autonomous

12 provinces together with the JNA constituted the armed forces of the SFRY.

13 So these two are in drastic contradiction, these two positions. Could you

14 explain this to Their Honours?

15 A. This doesn't differ drastically, but the same statement is

16 repeated at another place. There is a concept of armed forces of

17 Yugoslavia consisting of two parts of the army and of Territorial Defences

18 which were located at the level of individual republics and provinces

19 because of the interests of the general people's defence. This was the

20 general concept that existed and we have already explained the

21 responsibilities and the relationships of the armies and of the

22 Territorial Defence respectively.

23 Q. But the concept of all people's defence at the time the

24 constitution was promulgated and you were already a mature and experienced

25 man, I assume you were involved in the drafting of the 1974 constitution.

Page 25810

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Page 25811

1 A. Yes, of course. I don't quite understand your question. The

2 constitution of 1974, as far as the defence is concerned, it was based on

3 the past experience. If you've already asked -- if I dealt with the 1974

4 constitution, yes. Yes, indeed. I wanted to say how I was involved in

5 the sense of the concept of defence.

6 Q. I just wanted to hear whether you were involved in the work on the

7 constitution, but my real question is the following: The principle of all

8 people's defence, did it mean in effect that a situation was created in

9 which each citizen of the SFRY would be armed in the event of the country

10 being in territorial jeopardy should its constitutional order and the

11 boarders of the country be at threat? Wasn't that the idea behind it?

12 A. Yes, of course. The sense and the concept was to cover the entire

13 territory of the state with the various elements of defence. However,

14 Territorial Defence had to be quickly organised in line with the law --

15 the law on all people's resistance and other secondary legislation. And

16 outside of this -- these regulations could act on behalf of defence. But

17 they have to be organised within the framework of armed forces. This was

18 already mentioned when we spoke of volunteers and the paramilitaries.

19 Q. Thank you. I have to be brief. I don't know whether I'll make

20 myself quite clear. I'll do my best. But in paragraph 240, you say that

21 the purpose of Territorial Defence was to organise all people's defence

22 within the framework of the republic and not to activate it in other

23 republics. Should units of the TO from one republic operate in the

24 territory of another republic, they might clash with the TO units of that

25 republic.

Page 25812

1 So could you please explain, if you could, at that point in time,

2 was there any possibility of a collision among the republics in 1974? Was

3 there any real indication that in those years there could be a clash

4 between the republics which would prompt the people to get armed?

5 A. Here I think we should understand the context, how the question

6 has been placed. This is a reduction of the -- abbreviation of the text.

7 The question was whether the TO units of Serbia, whether they may

8 operate in another republic in Croatia, Bosnia-Herzegovina, and so on.

9 And this was my answer, namely I emphasised the concept of TO, its

10 organisation within the republic, for the defence of the republic and not

11 for operations outside the territory of a given republic. And this was

12 really the point.

13 The TO units are not mobile forces like the JNA. They are

14 territorially organised with elements of responsibility to the bodies of

15 republics, the Presidency of the republic, as well as Presidency of the

16 Federation and the general chiefs of staff.

17 Q. But a moment ago, you spoke about Article 135 of the SFRY

18 constitution, to the effect that the Republic of Serbia took upon itself

19 all the rights and duties stipulated in the constitution. However, you

20 also added when there was mention in response to Mr. Nice's question that

21 radical changes had taken place only in Serbia, but you might have perhaps

22 told the Judges a little about this declaration on the sovereignty of the

23 Republic of Slovenia, which says in Article 2, the political, economic,

24 and legal system of the Republic of Slovenia is based on the constitution

25 of Slovenia. And then it goes on to say the SFRY constitution, federal

Page 25813

1 laws and other federal enactments are valid in the territory of Slovenia

2 if they are not in contravention of the laws of the Republic of Slovenia.

3 So that is quite opposite to what was stated in the constitution of Serbia

4 of 1990. This declaration says quite the opposite, that the SFRY

5 constitution needed to be in conformity with the constitution of the

6 Republic of Slovenia. Now, how do you explain that?

7 A. Well, in order to answer this question, we'd need more time than

8 we have at our disposal now. I think you should take into account the

9 endeavours of the Republic of Slovenia to ensure a dialogue for the

10 reorganisation of the Federation. Slovenia wasn't satisfied with the

11 request of the position of Serbia. This was reflected in the

12 constitutional debate. And Slovenia issued certain acts and adopted

13 certain acts and discussed this also with other republics. There was also

14 the discussion on confederation. I think that Mr. Milosevic mentioned

15 this. This was on the 28th of September, 1990, and confederation was one

16 of the options of the status.

17 Q. Thank you. This is my last question. And I should like to draw

18 attention to what is stated in paragraph 245 of your report. The

19 experience of the Republic of Slovenia compared with other republics of

20 the former SFRY where the TO was the most consistently organised

21 demonstrated the advantage of such a concept of organisation. It also

22 proved to be beneficial when the conflict broke out with the JNA after

23 Slovenia declared independence on the 25th of June, 1991.

24 Was the TO of Slovenia at that time already a completely

25 independent armed force or not?

Page 25814

1 A. The Territorial Defence of Slovenia was equally independent as

2 earlier, but as you know, at the time the relations were acute, and the

3 JNA started with an armed intervention. Units were coming from Croatia,

4 and the Territorial Defence was defending the independence of the Republic

5 of Slovenia. This conflict was resolved rather quickly after the ten year

6 -- ten-day war was ended with the Brioni declaration under the auspices

7 of the European Community. This was recognised, and we accepted a

8 three-month moratorium on the sovereignty and rights of the sovereign

9 republic.

10 Q. But that armed force that Slovenia had at its disposal at the time

11 was the Territorial Defence, was it is not? That is my last question.

12 A. Yes. Yes. Slovenia had at its disposal only the Territorial

13 Defence, because the JNA was acting as a hostile force under quite

14 opposite influences.

15 MR. TAPUSKOVIC: [Interpretation] Thank you, Professor.

16 Re-examined by Mr. Nice:

17 Q. A few questions, Professor, which will I hope be susceptible to

18 yes/no answers in light of the time at our disposal. I remind you that

19 the accused asserted to you that there were no armed forces formed by

20 Serbia and that you explained in your evidence-in-chief in relation to

21 volunteers that in exceptional circumstances the President of Serbia might

22 recruit police. It will of course be for the Judges, the Chamber, to

23 decide in due course what type of force constituted armed forces, but help

24 us with this: You said that the president might in certain circumstances

25 recruit police in exceptional circumstances, by which you were describing

Page 25815

1 one of the three particular states, declaration of war and so on. By

2 October 1991, had Serbia ever declared such a state?

3 A. I have no information, no data about that. I tried to explain

4 what the possibilities were for the president of the republic.

5 Q. Very well. I'm --

6 A. As the police --

7 Q. I see. So you have no knowledge of the declaration of such a

8 state. In the absence of such a state, would it have been lawful for the

9 President of Serbia to create police forces?

10 A. My answer would be it would be illegal. So first, this state has

11 to be proclaimed and only then they can be activated.

12 Q. If, contrary to your state of knowledge, a declaration had been

13 made of such a state and if such police forces had been generated, whether

14 police forces in the formal sense or paramilitaries, would the President

15 of Serbia then bear responsibility for their actions?

16 A. Yes, as far as subordination of such police forces to the army,

17 Yugoslav army, of course then that responsibility, accountability, is also

18 at the top.

19 Q. You answered a question to the effect that Territorial Defence

20 units were essentially restricted to operations within their own republic.

21 Does the same apply for MUP forces, that they are restricted to operation

22 within their own republic?

23 A. All -- there's only the JNA, the volunteers who -- the TO and the

24 volunteers which could be used for the replenishment of the TO ranks.

25 Q. So the creation of police forces, whether paramilitary or

Page 25816

1 otherwise, and their operating in other states, would that be lawful or

2 unlawful?

3 A. I think that would be outside of the concept of defence.

4 Q. Two questions arising from Articles 83 and 135 of the 1990 Serbian

5 constitution. You've dealt already with how Article 83, subparagraph 5, I

6 think, accords to the president command of the armed forces in peacetime

7 and war. You state that that subarticle or article and its subparagraph

8 does not define armed forces. You allow as your chart shows for the fact

9 that it incorporates the Territorial Defence. Do I understand that

10 correctly?

11 A. I believe so, yes, because later the Republic of Serbia in its

12 defence law overcame this drawback, and the Article 5 of the defence law

13 defined precisely what the functions of the president of the republic was

14 and how he commands the armed forces concerning organisational matters,

15 personnel matters, also in the Territorial Defence.

16 Q. Very well. I see we are very nearly at the end of the reasonably

17 allotted time and I have two more questions. Assuming that Article 83,

18 subparagraph 5 by incorporation however imprecisely and unsatisfactorily

19 covers Territorial Defence, does it or not have anything to do with the

20 police or are they to be dealt with separately?

21 A. The police is then dealt with in the defence law in extraordinary

22 special situations. Otherwise, the police units are not used for this

23 purpose.

24 Q. Thus the president's powers in times of peace or war in respect of

25 Territorial Defence is not extended to the police in peacetime, only in

Page 25817

1 wartime or one of the other two states?

2 A. In peacetime, of course police cannot be used for these purposes

3 in peacetime. It is a part of the government and under the competence of

4 the government. So only in these special states of emergency and then

5 they can be activated.

6 Q. Last question relates to the second part of Article 135, and I

7 think we have provided to you and indeed to the Chamber the officially

8 published English version which of course we'll have to have retranslated.

9 But if you'd look, please, in the original at the second part of Article

10 135 and reflect on how the accused suggested to you that the right for

11 Serbia to act in its own interests under this part of the Article is

12 premised on the disintegration of federal Yugoslavia. Is there anything

13 in that second part that supports that suggestion or is the suggestion

14 that Serbia may act in its own interests when it so judges it more general

15 than that?

16 A. I understood this in the background recrimination of Mr. Milosevic

17 concerning that this has come up in this way, namely that the

18 disintegration was already taking place with Slovenia and Croatia, and as

19 a response to these events --

20 Q. I understand your narration of what the accused was putting to

21 you, and he said it was a controversial article when drafted and you may

22 know or we may find out by whom it was drafted, but as it reads and

23 interpreting it as a lawyer - we will have a better translation for

24 ourselves later - does it in any way restrict itself --

25 JUDGE MAY: Mr. Milosevic, we really must finish. We take no

Page 25818

1 notice of anything that's said before, but allow counsel to ask his

2 question.

3 MR. NICE: I'm obliged.

4 Q. Does it, as it reads, in any way restrict the liberty of Serbia to

5 act in its own interests to circumstances of the disintegration of the

6 former Yugoslavia or is it more general in its expression?

7 A. It would be difficult for me to assess how -- in general terms,

8 but the second paragraph of Article 135 is considered to be a

9 constitutional basis for the operation of Serbian institutions in

10 Yugoslavia and that -- so that the republic could ensure the compensation

11 for the possible -- the possible losses it would have due to the acts of

12 other republics.

13 I would say that this is setting a constitutional basis for the

14 republican bodies so that nobody would ask them to account for their

15 actions. But the problem here concerning the further process of the

16 crisis of Yugoslavia.

17 MR. NICE: Very well. We will have a better translation. The

18 article has been referred to by several other witnesses already. I'm

19 grateful for the indulgence of time. I have no further questions of this

20 witness. The Chamber will recall --

21 JUDGE MAY: Let us deal with the witness first of all and finish

22 his evidence. There are -- there are one or two administrative matters I

23 want to deal with.

24 Dr. Kristan, that concludes your evidence. Thank you for coming

25 to the International Tribunal to give it. You are now free to go.

Page 25819

1 THE WITNESS: [Interpretation] Thank you for allowing me to take

2 the witness stand.

3 [The witness withdrew]

4 JUDGE MAY: Mr. Nice, are there any matters you want to deal with?

5 MR. NICE: Two matters. First of all, to remind the Chamber that

6 in discussing constitutional evidence, the Chamber expressed the view that

7 it would be assisted by a constitutional expert. I think it may have been

8 His Honour Judge Robinson. Therefore, the possibility of our calling a

9 second expert to cover the excluded material relating to Kosovo is before

10 us. You will remember the difficulties we had, as I explained them to

11 you, in identifying suitably qualified witnesses who were able and willing

12 to come. We will renew our efforts to find one of the suitably qualified

13 witnesses, and we will try a get a report on Kosovo which we will serve on

14 you and on the accused and thus on the Court. At the moment I cannot, of

15 course, guarantee that we will either find a witness or if we do there

16 will be time to fit him in, but we will do our best in that regard.

17 There's a matter to be raised in private session with your leave

18 in relation to a witness.

19 JUDGE MAY: Let me deal with matter in public session first before

20 we go into private session, and that is to deal with two hearings and the

21 timing of them. Tomorrow's Status Conference on the Defence case I think

22 has been scheduled for 3.00. We will in fact take it at 3.30. If that

23 would be noted.

24 Secondly, concerns Friday the 19th of September and the times of

25 hearing that day. This is due to arrangements which I've made. We will

Page 25820

1 have to finish the sitting that day on the 19th of September at 12.00. So

2 we will sit that day from 9.00 to 12.00. The Prosecution, it means, will

3 be entitled to a further session in their calculation of their times which

4 will be added to the session which was lost, an hour and a half, before

5 the recess. That could be a matter to be dealt with in due course.

6 We will go into private session.

7 [Private session]

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6 --- Whereupon the hearing adjourned at 2.12 p.m.,

7 to be reconvened on Tuesday, the 2nd day of

8 September, 2003, at 9.00 a.m.

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