Ivan Jankovic - Serbia

Lawyer

ABSTRACT: The penal law of the new Federal Republic of Yugoslavia regulates, aside of most "ordinary" crimes, some other ones such as: crimes against the sovereignty and territorial integrity of the federation; crimes against humanity and the international law; the defamation of Yugoslavia, of foreign countries or of international organizations; crimes against the Yugoslav economy; the abuse of power on the part of the federal officials; crimes against military forces, etc. In spite of the fact that capital punishment is not envisioned in the penal law of the infant Federal Yugoslav Republic of Serbia and Montenegro, the Member States of the Federation, Serbia and Montenegro, do maintain the death penalty in their penal codes. The war in the former Yugoslavia facilitates large-scale extrajudicial and summary executions. Even if the international tribunal for war crimes committed in the former Yugoslavia will change little, its statute creates a precedent, apart from being an important contribution to the int

ernational penal law.

("HANDS OFF CAIN", 1 February 1994)

After the disbanding of the socialist federal republic of Yugoslavia, two of its six states - Serbia and Montenegro - on 27 April 1992 created the federal republic of Yugoslavia and provided themselves with a new Constitution. The federal penal law regulates: the penal trial; the general institutes of fundamental penal law; a specific number of crimes, such as crimes against the sovereignty and territorial integrity of the federation; crimes against humanity and the international law; the defamation of Yugoslavia, of foreign countries or of international organizations; crimes against the Yugoslav economy; the abuse of power on the part of the federal officials; crimes against military forces and others.

The penal law of the Member States of federation regulates most of the "ordinary" crimes (from simple theft to homicide).

With article 21, the new Constitution abolished capital punishment for federal crimes. The text reads: "Capital punishment cannot be applied for crimes provided by the federal law". Heed should be taken of the fact that the federal penal code presently contains some 43 capital crimes.

It must be conformed to the new Constitution by 31 December 1994.

The compliance has been achieved with an amendment to the federal penal code of 16 July 1993. The amendments relative to capital punishment have become effective after 31 December 1993. From that date on, the tribunals can no longer apply the death penalty to persons who have been found guilty of certain federal crimes.

The Member States of the federation, Serbia and Montenegro, maintain instead the death penalty in their penal codes. In Montenegro this penalty can be applied for three crimes: homicide, instigation of a minor to commit suicide, theft aggravated by homicide.

In Serbia the death penalty can be applied for four crimes: the three that are described above, and another type, introduced in 1986, to control inter-ethnic violence in Kosovo. This crime called for the application of the death penalty for acts of violence committed against members of a different ethnic group with the intentions of terrorizing them, and in cases where such acts of violence have resulted in the death of one or more persons.

Even after the Constitution of 1992 abolished the death penalty for federal crimes, three or four death penalty sentences have been issued for crimes of this type. The judges that adopted them said that as long as the federal penal code envisioned capital punishment (i.e. up to 31 December 1993), the death penalty could be applied regardless of the constitutional dictate. An appeal has been proposed against all these sentences, and none has become final. After 31 December 1993 they will be replaced ex lege with a sentence of imprisonment.

When applying the state penal law, the Courts may pronounce a death sentence. This has occurred six times in the previous two years, and always for cases of homicide. None of these sentences has become final, and no execution has been carried out in the past two years.

The abolition of the death penalty envisioned bu the Constitution of 1992 for federal crimes has not been preceded by any debate or parliamentary campaign.

As early as in 1960, there has been an academic opposition against the death penalty in the former Yugoslavia: the academicians advocated its abolition or limitation. In 1980, small groups of citizens campaigned against the death penalty. A considerable effort that aimed to the creation of a League for the abolition of the death penalty was hindered by the authorities, which repeatedly denied the association a legal status.

At the moment there are no proposals or debates on the abolition of the death penalty in any Yugoslav parliament, both Serb and Montenegrin or federal.

No political party in Yugoslavia includes among its programs or objectives the abolition of the death penalty.

Considering the situation of warfare on the territory of ex-Yugoslavia, there is a serious risk of large-scale extrajudicial and summary executions. This problem concerns the current Yugoslavia but also those parts of ex-Yugoslavia where most of the military operations take place (Bosnia-Herzegovina and Croatia).

Even if the international tribunal for crimes committed in the former Yugoslavia yields no result, its statute is an important contribution to the international law because it excludes the application of the death penalty. This indication will surely become a precedent in the international penal law.