The Belgrade Centre for Human Rights considers the “Law on the Rights of the Accused in Custody of the International Criminal Tribunal in The Hague and Members of their Families”, which was adopted by the National Assembly of Serbia on 30 March 2004, as discriminatory and therefore unconstitutional and harmful. This Law obviously violates Art. 3 of the Charter on Human Rights of Serbia and Montenegro, Arts. 13 and 22 of the Constitution of the Republic of Serbia and provisions prohibiting discrimination in international treaties ratified by our country (Art. 14 of the European Convention on Human Rights and Art. 26 on the International Covenant on Civil and Political Rights). Namely, this new law grants to the persons accused before ICTY rights which are not guaranteed to citizens indicted before national courts, irrespective of the alleged criminal offence.Thus, e.g. members of families of the ICTY indictees acquire the right for compensation of the wages or pensions which the accused had received before he was put in custody; however, persons in custody in Serbia and Montenegro do not enjoy this right. Neither do our citizens enjoy this right when they are brought before foreign courts or before the permanent International Criminal Court. Furthermore, the state will only reimburse travel expenses for visits abroad and expenses for communication with the indictee only to members of families of the ICTY indictees. This law establishes special rights for the indictees themselves, such as the right to partial reimbursement of expenses for collection of evidence and for services of counsel, if these expenses are not covered by the ICTY. Given that the ICTY fails to cover this expenses only if the indictee has sufficient funds, or if he refuses to retain counsel, these provisions will in reality only apply to indictees who refuse to recognise the ICTY – who are apparently regarded as most precious by the drafters of the Law. From the fact that the defendant refuses to recognise the legitimacy of a court no privileges can derive before any court anywhere.
A state must not adopt discriminatory laws. It is legally and morally impermissible to differentiate among human beings in general, and among citizens of Serbia in particular. This law differentiates among persons accused for criminal offences in an unusual and unconstitutional manner – some possess rights, some do not. Since the constitutional basis for this legislative act has not been clearly stated, the conclusion remains that the inequality of defendants has been introduced for political and ideological reasons, which is, it should be repeated, prohibited by national and international law.
