The Law on the Organization and Competence of Government Authorities in War Crimes Proceedings and Legal Nullity
Law on the Organization and Competence of Government Authorities in War Crimes Proceedings
(Official Gazette of the RS nos. 67/2003, 135/2004, 61/2005, 101/2007, 105/2009, 101/2011, 6/2015, 87/2018 - another law)
The actual jurisdiction (legal basis for action) of the Office of the War Crimes Prosecutor of the Republic of Serbia is based on two grounds.
The first is in the provision of Article 3 of the Law on the Organization and Competence of Government Authorities in War Crimes Proceedings, which states, among other things, that the state bodies of the Republic of Serbia are designated by this Law as being competent to conduct proceedings for the criminal acts provided for in Article 2 of the same Law, acts which have been committed on the territory of the former SFRY, regardless of the nationality of the perpetrator or victim.
The second basis is found in the provision of Article 107 (1) of the Criminal Code of the FRY, which mentions the validity of the Yugoslav criminal legislation for a foreigner who commits a criminal offense against him or her citizen outside the territory of the FRY (the so-called principle of passive personality), which is the case here, given that the victims’ families are citizens of the Republic of Serbia. Such a provision existed earlier and still exists in the criminal legislation of the states in the region.
It should be noted that the international conventions related to the protection of civilians in armed conflicts, which were signed, ratified and applied by both the Republic of Serbia and the countries in the region, provide the possibility that criminal proceedings for such serious crimes can also be conducted in the country in which the accused are not citizens, i.e. on whose territory the war crime did not take place.
“The Law on the Nullity of Certain Legal Acts of the Judicial Bodies of the Former JNA, the Former SFRY and the Republic of Serbia” NN 124/11
which explicitly states that all legal acts of the former JNA, its judicial bodies, judicial bodies of the former SFRY and judicial bodies of the Republic of Serbia related to the Homeland War in the Republic of Croatia and which are the legal basis of all criminal proceedings against suspects and accused citizens of the Republic of Croatia are null and void and without legal effect for criminal acts against values protected by international law, and among other things, it also talks about war crimes against the civilian population (Article 158 of the CC of the Republic of Croatia).
Article 2 of the same Law emphasizes that only the judicial state bodies of the Republic of Croatia can prosecute Croatian citizens for criminal offenses under this Law before the Croatian judicial bodies.
Article 3 of the same Law states that the judicial bodies of the Republic of Croatia “shall not act on requests from judicial bodies of the Republic of Serbia for legal assistance in criminal proceedings, if acting on such requests is contrary to the legal order of the Republic of Croatia and harms its sovereignty and security.”