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          • Year: 2002
          • Future Legal Regulation of the Army of Yugoslavia Status and Internal Relations

          • 18. november 2002. Dr Jovan Lj. Buturović, barrister

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          Effective laws of the Army of Yugoslavia and its institutions are conservative, incomplete and not harmonised with general tendencies of democratisation in the society nor with necessary reorganisation in the AY and rational reducing the number of soldiers and officers. Constitutional norms which refer to the Army of Yugoslavia are incomplete and unclear, specially those which regulate commanding and the use of the AY. The most disputed, certainly, is the part of the clause under Article 133. part 1. of the Yugoslav Constitution, according to which the AY "defends... constitutional order" and I believe that this clause must not be included in the future constitutional order of the state union since the Army should not be involved in internal political conflicts. The same applies to commanding and the use of the AY in peace and war, where the jurisdiction should be precisely regulated in order to disable possible abuse and obstruction during decision making process.

          The Army of Yugoslavia Act, passed in 1993, presents a code of its kind, regulating: the Army organisation, military service, social insurance of soldiers, officers and civilians who work in the AY, military service duty and disposing and administration of the material assets and financial functioning. It means that one law, including only 364 articles, regulates too many different issues, which opens numerous possibilities for sub-legal regulating many topics which must have been regulated by the law. Not being so, the executive branch of the government, the President, Yugoslav Defence Ministry and the AY General Staff have the opportunity to take over the part of the legislature power in practise. As a consequence of such situation, the number of sub-legal acts has been enormously increased, with frequent changes and amendments, which makes it difficult even for the best lawyers to cope with this, especially because some of them are not published in the Official Gazette of the FRY, so they are not available for all interested persons. It has negative consequences on soldiers’ and officers’ rights, specially in refer to their legal status which is already not secure enough even according to the law, permitting abuse and arbitrarily dismissing officers and civilians on service in the AY. In this respect, the Army of Yugoslavia Act is far below the standard of the Armed Forces of the SFRY Act, which had been in effect until this law was passed.

          The issue of social insurance in the Army (health, pension, invalid insurance, social support, etc.) should be, according to my opinion, treated apart from the Army of Yugoslavia Act and regulated by a special law as it was the case in the SFRY. These are special, often specific rights, and they should be precisely regulated by the law as well as the procedure for their protection.

          Whether military duty should be treated apart from this Act and regulated by a special law, as it was the case in the SFRY, is still a matter of discussion because a number of issues have to be precisely regulated. One of them is the right to conscientious objection, i.e. the right to serve military service without arms and so-called civil service, whereas these rights must also be regulated for the service in Army reserve. So far they have been regulated only for the regular service in the Army of Yugoslavia and therefore persons to military duty in Army reserve, who refused to serve with arms and in the AY units during the 1999 war, were criminally prosecuted. No matter whether these issues will be regulated by a special law or not, they certainly must be regulated more precisely. The FRY citizens, who are at the same time citizens of other countries, should be released from the military duty if they do not live permanently in the FRY.

          Problems of the flats for professional soldiers and civilians on service in the AY are very difficult. Many of these persons get retired not having solved this problem and not such a small number of them never have it solved. So far these issues were not regulated by the law, but by different, frequently changed regulations. These regulations are, at the moment, under Yugoslav Defence Minister’s jurisdiction. Lack of the law provisions, frequent changes of the regulations and a huge pressure on the military housing fund enable numerous abuse cases. I believe this issue should be regulated by a special law, tending to solve these problems by favorable credits, providing from the military housing fund only official residences which can be used by military and civilian persons while on service in the AY. This way, the practice of providing huge flats and extremely valuable villas to high rank officers would be stopped and significant money could be saved and used for other purposes, first of all for the fund for favorable crediting.

          Speaking about the Army of Yugoslavia Act, it is certain that a new law should be passed, regulating the Army organisation, military service and, perhaps, military duty. It is very important that this law regulates the status of professional soldiers and that it protects their rights from possible abuse. Promotion to higher ranks should be stipulated by strict conditions, whereas expert skills and professional results should be basic criteria. A professional exam should be a checking point for promotion to certain ranks, for example - majors, lieutenants and generals, and certain academic titles (MA, PhD) should be necessary for higher officers with expert positions in the AY. Therefore, promotion should be conditioned according to objective criteria, eliminating careerism, poltroonery and arbitrary evaluation done by persons in charge of promotion. Extraordinary promotion during peace should be abolished because this opportunity, provided by the law in effect, has been widely used for the officers who did not fulfill legal conditions for regular promotions. Still, they were promoted to higher ranks, those of lieutenant and general included. The balance of ranks was disturbed by the "extra" officers of high ranks, not corresponding real needs and structure of the Army.

          Official evaluation is one of the important elements for promotion to the higher ranks. Provisions of the Army of Yugoslavia Act say only that a professional soldiers’s results are evaluated officially, mentioning the purpose of evaluation but all details are regulated by Yugoslav government decree. The Armed Forces of the SFRY Act used to regulate the procedure and criteria for evaluation, in details. I believe that official evaluation should be regulated by the law and that objective criteria for official evaluation should be prescribed since the possibility for promotion, and even keeping the job - for not so few professional soldiers, depends on this official evaluation. Namely, according to the Army of Yugoslavia Act, a professional soldier will lose a job after two consecutive negative evaluations and, having in mind that this evaluation depends on arbitrary evaluation of a superior officer, numerous personal conflicts and abuse are possible. Practically, the law enables no legal protection (possibility of protection in court is excluded).

          Legal status of professional soldiers is insecure and far weaker than it was according to the Armed Forces of the SFRY Act. There are numerous reasons for losing job in the AY and for some of them there is no legal protection, particularly no protection in court. Thus, according to the Army of Yugoslavia Act, professional military service of a professional or non-commissioned officer will be ceased if: he is proved to be permanently incapable for service in the AY, then if he absent from the office with no justified reason in the course of five days (without interruption) or for seven days - with interruptions, in the course of one year, then if he has been sentenced to lose the job or rank, then due to the service need and if he has been sentenced by criminal court to more than two-year prison term, when he also loses his rank and the job, consequently.

          The less legally protected is the status of professional soldiers whose positions in the AY are contracted for a certain period of time. They are significantly less protected then professional and non-commissioned officers and I think their status should be equal, except for the promotion to higher ranks. It means that the period of time they apply for should not be limited, they should have same rights concerning housing and the cessation of their professional service must be justified by the same reasons as for professional and non-commissioned officers.

          Legal provisions regulating the cessation of the service of professional officers and non-commissioned officers due to the service need are particularly disputed, especially because these decisions have no explanations and because there is no judicial protection in proving the "service needs". In refer to the status of professional and non-commissioned officers, a serious problem is existence of parallel criminal and discipline responsibility before the criminal court for criminal charges and before military discipline court for the same charge. Namely, the Act prescribes a possibility for professional and non-commissioned officer to be punished twice for the same charge - by criminal court and by military discipline court, while the latter can sentence the guilty person to lose the rank or the job, and for a professional soldier it means to lose a career, which is often more severe punishment then the verdict brought by the criminal court. In modern law, double punishment for the same charge is either impossible or reduced to minimal possibility. Serious attention should be given to the possibility to eliminate double punishment for the same charge or, perhaps, to prescribe cessation of the service or losing the rank - as a marginal punishment sentenced by criminal court in cases according to the law.

          In refer to civil control of the Army of Yugoslavia, I think it should be regulated by a special law, whereas a special body should be formed as Yugoslav Parliament commission, with broad jurisdiction, similar to the Commission for control of security services, according to the FRY Security Services Act. In that way, the Yugoslav Parliament would have full control over the AY.

          Legal acts on military judiciary are old fashioned and out of date. Therefore it is necessary to pass new laws on military courts and military prosecution. New laws should restrict the authority of military courts and introduce the system of elections for the judges (now they are appointed by the Yugoslav President), same as for the judges of the Federal Court and the Federal Constitutional Court. The candidates should be named by the representatives of the military judicial and the Yugoslav Defence Minister, where the majority would be the representatives of the military judicial in order to prove professionalism and moral credibility of judges and prosecutors. I think that the law should also prescribe the possibility for the civilians to be elected judges in military courts. Now it is possible only for professional officers. Finally, judges in military courts and military prosecutors should be paid well enough, according to their position and responsibility. It means they should have the same income as their colleagues in civil courts in order to establish a high quality in this profession. I think it is too early to consider the possibility of abolishing military courts. This option could be discussed later, when state and circumstances are stable and the number of the AY officers and soldiers reduced to an adequate level. 

        • Tags: legislation, Law, Army of Yugoslavia, military, army, status, international relations, Army of Yugoslavia Act
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