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An Outline of the Recent Development of the Yugoslav Law of International Judicial Assistance and Cooperation in Criminal Matters*

Published online by Cambridge University Press:  21 May 2009

D. Krapać
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Extract

Modern communications and transportation have brought about not only interdependency between all regions of the world but also an increase in offences committed by or against foreigners or their States. Different States handle this problem in different ways. Among other means, one might mention in this context the enactment of rules of municipal and international law which regulate substantive as well as procedural relationships between authorities of a given State and the perpetrator of an offence with a foreign element'. Such an element exists, for example, if an offence has been committed by a foreigner; if an offence has been committed against a foreigner; if a particular State is to pass judgment on an offence committed abroad; if an offence has been committed in a place where no legal system claims jurisdiction; if a judgment is to be rendered on an offence which has already been the subject of a foreign judgment; if a person is sought for extradition; or if judicial authorities have to take measures in the course of criminal proceedings in the territory of a foreign State, and so on.

Type
Articles
Information
Netherlands International Law Review , Volume 34 , Issue 3 , December 1987 , pp. 324 - 342
Copyright
Copyright © T.M.C. Asser Press 1987

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References

1. For more on the notion of the ‘foreign element’, see Feller, S.Z., ‘Jurisdiction Over Offences with a Foreign Element’, in Bassiouni, M.C. and Nanda, V.P., eds., A Treatise on International Criminal Law(1973), vol. IIGoogle Scholar, ‘Jurisdiction and Co-operation’, p. 5 et seq.

2. For the notion of international criminal law, see P.K. Ryu and H. Silving, ‘International Criminal Law — A Search for Meaning’, in Bassiouni and Nanda, , op.cit. n.l, vol. IGoogle Scholar, ‘Crimes and Punishment’, p. 22 et seq.

3. Particularly in legal systems where the rules of international criminal law have been embodied in an organic entity. Cf., contemporary statutes on international judicial assistance in criminal matters of the Federal Republic of Germany (Gesetz über Internationale Rechtshilfe in Strafsachen vom 31.12.1982), Switzerland (Loi federate du 20 mars 1981 sur I'entraide internationale en matière pénale)and Austria (Bundesgesetz vom 4. Dezember 1979 über die Auslieferung und die Rechtshilfe in Strafsachen).

4. Cf., B. Zlatarić, Medjunarodno krivično pravo [International Criminal Law], Šeparović, Z., ed. (1979) p. 23Google Scholar.

5. H. Grützner, ‘International Judicial Assistance and Co-operation in Criminal Matters’, in Bassiouni, and Nanda, , op.cit. n.l, p. 189Google Scholar.

6. See generally, Bassiouni, M.C., International Extradition, vol. I (1983)Google Scholar ch. I, s. 1.

7. Cf., H. Schultz, ‘The Classic Law of Extradition and Contemporary Needs’, in Bassiouni, and Nanda, , op.cit. n. 1, p. 309Google Scholar.

8. See generally, Vogler, T., Auslieferungsrecht und Grundgesetz (1970)Google Scholar.

9. Grützner, , loc.cit. n. 5, p. 202Google Scholar.

10. Ibid., p. 194.

11. D. Oehler, ‘Recognition of Foreign Penal Judgments and Their Enforcement’, in Bassiouni, and Nanda, , op.cit. n. 1, p. 261Google Scholar et seq.

12. The rules regulating the extent to which the foreign judgment can be examined, follow the principle that a substantive examination of the foreign judgment (revision au fond)should not be allowed. They allow only a summary determination whether the foreign judgment complies with the fundamental legal principles of the States concerned. The rules for transformation of the punishment imposed by a foreign judgment should follow the basic principle according to which the convicted person must not suffer any greater disadvantages than under the sentence imposed by the foreign State. See Oehler, , loccit. n. 11, p. 286Google Scholar, and also the 1970 European Convention on the International Validity of Criminal Judgments, Arts. 40, 42 and 44 para. 2.

13. Cited by Zlatarić, , op.cit. n. 4, p. 73Google Scholar.

14. Lombois, C., Droit pénal international (1971) p. 8Google Scholar et seq.

15. Grützner, , loc.cit. n. 5, p. 190Google Scholar.

16. Ibid.

17. See the UN's Guiding Principles for Crime Prevention and Criminal Justice in the Context of Development and a New International Economic Order, and a commentary by Bassiouni, M.C. in New Horizons in International Criminal Law, an international conference, 7–1205 1984Google Scholar (published by the Association internationale de droit pénal and ÉRÈS, 1985) p. 150.

18. On definitions of these principles, see Zlatarić, , op.cit. n. 4, p. 34Google Scholar.

19. Bayer, V., Jugoslavensko krivičnog procesno pravo, knjiga prva: Uvod u teoriju krivičnog procesnog prava [The Yugoslav Law on Criminal Procedure, the First Book: Introduction to the Theory of Criminal Procedural Law], 7th edn. (1982) p. 63Google Scholar et seq.

20. See generally, Vasilijević, V.A., ‘The Suppositions for Studying the International Mutual Assistance in Criminal Matters’, 22 Jugoslavenska revija za kriminologiju i krivično pravo [Yugoslav Review of Criminology and Criminal Law] (1984) No. 1–2, p. 17Google Scholar et seq.

21. Ibid., p. 19.

22. The Extradition Convention between Serbia and Belgium of 1895 was replaced by the 1971 Convention between SFR of Yugoslavia and the Kingdom of Belgium on extradition and mutual assistance in criminal matters.

23. See generally, C. Markees, ‘The Difference in Concept Between Civil and Common Law Countries as to Judicial Assistance and Co-operation in Criminal Matters’, in Bassiouni, and Nanda, , op.cit. n. 1, p. 171Google Scholar et seq.

24. From 1918 to 1929 (when the first Code of Judicial Criminal Procedure was promulgated) in the Kingdom of Yugoslavia there existed six different legislative territories, due to historical facts (the State had been formed out of various pieces of territory, each of them having its own legal system). Those which had been part of the former Austro-Hungarian monarchy (Croatia, Slovenia, Dalmatia, Banat, BaEka, Baranja and Medjimourye) had in force rules of Austrian, Croatian and Hungarian codes of criminal procedures which also included extradition provisions. In addition, by the end of the 19th century, the Austro-Hungarian monarchy had 17 bilateral treaties on extradition in force, which also applied to the above mentioned territories.

25. See Vasilijević, , loc.cit. n. 20, p. 22Google Scholar.

26. See generally, Müller-Rappard, E., ‘Le réseau des Conventions en matière pénale’, Le juriste international (1982) No. 4Google Scholar.

27. See: Cotič, D., ‘Ceding the Dossiers of Foreigners and Receiving the Cases of Yugoslav Citizens for Prosecution and Serving a Sentence’, 22 Jugoslavenska revija za kriminologiju i krivično pravo [Yugoslav Review of Criminology and Criminal Law] (1984) No. 1–2, p. 63Google Scholar et seq.

28. Cf., Oehler, , loc.cit. n. 11, p. 273Google Scholar.

29. Yugoslav law does not prescribe comprehensive rules regulating transformation of foreign sanctions such as, for example, Arts. 37–52 of the European Convention on the International Validity of Criminal Judgments do. Undoubtedly, in practice various difficulties may arise as a result of this lacuna.