NEPOSREDNA PRIMENA MEĐUNARODNOG KRIVIČNOG PRAVA U SRBIJI
(NON) POSSIBILITY FOR THE DIRECT IMPLEMENTATION OF THE INTERNATIONAL CRIMINAL LAW IN SERBIA

Summary/Abstract: The author writes about the possibility for the direct implementation of the international criminal law in Serbia and about actual and potential influences of the decisions and the views of some international bodies, e.g. some committees of the United Nations and the European Court for Human Rights on the Serbian criminal procedure system and the Serbian law system in general. According to the Serbian Criminal Procedure still in effect, the decision is one of the legal reasons for the repetition of the procedure and also for the request for the protection of the legality, which is a complete and good procedural solution. The formulation in the new Criminal Procedure Code of Serbia in this matter, i.e. the reason for the request for the protection of legality founded of the decision of the ECHR is not correct, because this formulation defined that reason as a absolute procedural mistakes, i.e. substantive violation of criminal procedure provisions. That is wrong because the decision of the ECHR does not have automatically effect of cassation and not imply that a finial decision of the domestic court must be changed. The matter of direct implementation of the rules of international criminal law in domestic national legal system is extremely sensitive. In one very significant case one person who was a former military officer, was finally convicted in Hungary for the crimes against humanity, although that crime was not prescribed in the time, when the criminal offence was committed and although the period of limitation on criminal prosecution has expired. The decision of the criminal court in that case was connected with one previously decision of the Constitutional Court of Hungary, in it, with respect to the relationship between domestic and international law, the Court held that the provision of the Constitution in accordance with the legal system of that Republic shall accept the generally recognized rules of international law, implies that these rules form part of Hungarian (domestic) law, without special transformation. In accordance with that decision of the Constitutional court, the Constitution and domestic law in Hungary should be interpreted in such a way as to ensure actual application of the generally accepted rules of international law. Finally, the European Court for Human rights decided (Korbely v. Hungary), that in the decision of the Hungarian Criminal court in that case, the right of defendant (Art. 7 of European Convention on Human Rights – principle of legality in criminal law), was injured.

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