Above the law and under it

Serbian citizens Mila Djindjic and Gordana Djindjic filed a criminal charge. They are asking the competent bodies to investigate and determine whether the criminal act of armed insurrection had taken place in Serbia, and if it had, who was responsible. The legal interest of these two citizens lies in the suspicion that the possible criminal act of armed insurrection is connected with the assassination of their son and brother, Zoran Djindjic, who was the Prime Minister of Serbia at the time of his death. The criminal charge was filed against several individuals, including citizen Vojislav Kostunica, who was the President of the Federal Republic of Yugoslavia at the time this criminal act was allegedly perpetrated. This criminal charge does not include any legal entities, nor would this be possible. However, no individual has commented on this criminal charge, rather a reaction has come from a single legal entity – the Democratic Party of Serbia (DSS).

On jurisdiction. DSS begins its statement the following way: “We reject this accusation against our leader with the deepest revulsion, and we believe that the constant primitive campaign against DSS has gone too far.” The Special Prosecutor’s Office on Organized Crime has jurisdiction in this case. Only this office can dismiss criminal charges or initiate further proceedings. However, one thoroughly legalized legal entity, led by the Leading Serbian Legalist, assumes jurisdiction and authorization to reject it – by urgent procedure. The future defense position of citizen Kostunica is already anticipated: let us imagine that this criminal charge will lead to a court case. A defense that begins with the words: “I do not recognize this court, I recognize only the court of my Party” is highly probable. It would come from a person who, advocating strict legalism and rule of law and rejecting even the hints of “revolutionary justice,” allowed himself to describe the extradition of citizen Slobodan Milosevic to the Hague Tribunal as a coup, although, at the time, Milosevic held no public office. In contrast, the appearance of the heavily armed Unit for Special Operations on the streets of Belgrade was characterized as a legitimate strike of individuals wearing uniforms. (According to this matrix, the “strike” which includes hooligans rampaging through the streets before and after football games, wearing their work uniforms – tattoos + balaclavas, is equally legitimate.)

On rationality and passion in a legal state. DSS, proclaiming itself to be a competent state body, does not only reject the abovementioned criminal charge: it does so “with revulsion.” The implementation of law is (or at least should be) a rational activity. Whether the competent prosecutor chooses to reject (or maybe even accept) this case with revulsion or with jubilation, has no relevance in law – the important thing is whether he chooses to accept or reject it. However, introducing passion (revulsion) should, I assume, indicate that the mere act of filing such a criminal charge is not a legal, but a non-legal – maybe political act. Whereas citizen Kostunica’s letter to citizen Aco Tomic, sent while Tomic was in police custody, calling on him, with the deepest understanding, to remain silent, was a typical legal action. If criminal charges against citizen Kostunica are filed, it is an act of going too far in a primitive campaign constantly led against DSS. The state (DSS), it is I! It would not be the first time in history that this has occurred, and we know how such events can end. The king who said this famous sentence was, in a formal legal way, above the law. Highly legally educated citizen Kostunica should not be above the law. A criminal charge can be filed against anyone. The act of filing a criminal charge in itself does not change the legal position of the person named in the charge. However, to be above or outside the law in the Republic of Serbia is a symbol of belonging to the elite. DSS welcomes this charge with the same astonishment (which has reached revulsion) that the President of the Supreme Court experienced when she was called in for questioning because of a criminal charge filed against her in a different matter (the fate of this charge remains unknown). This modus operandi has already been tested when a criminal charge was filed against Dobrica Cosic. The possible defendant chooses to remain silent in his defense, letting others defend him by attacking those who filed the charges. They do not speak about the criminal acts this individual is accused of – but there is defamation of others.

On parties and other subjects. The criminal charge was filed by Mila and Gordana Djindjic. They have the right to an answer from the competent prosecution, and the prosecution has the obligation to give this answer. In a reasonable timeframe. As their attorney, Srdja Popovic takes on the responsibility of acting in their name. The legalistically founded party (political), however, has an opinion on this: “Only a morally faltered and perverted individual such as lawyer Srdja Popovic, who defended the Ustasha Minister of the Interior Artukovic, can dare undertake such a diabolical and irrational task, in order to project his own person and accuse others of crimes only he could commit. Only the worst kind of agitator calling for the murder of Serbs, such as lawyer Popovic, who signed a petition for the bombing of Belgrade, his hometown, and Serbia, can try to wash his dirty conscience by accusing innocent people. With the deepest contempt, DSS exposes the moral outrage of lawyer Popovic and most strongly condemns the instigator of this abominable hysteria.”

If a lawyer acts in the name of his client (which is a usual and natural occurrence), the “legalist” translation of this DSS statement would be: citizens Mila and Gordana Djindjic are morally faltered and perverted individuals, defenders of Ustashi Minister of the Interior Artukovic, agitators calling for the murder of Serbs, ready to commit criminal acts ascribed to the innocent Leading Serbian Legalist, ready to diabolically and irrationally falsely accuse innocent people, moral freaks and instigators of abominable hysteria. What makes them so? Do they have the right to know why their son and brother lost his life? No, DSS claims they do not have this right, because they are attacking the innocent Leading Serbian Legalist. The question is what the future defense strategy will be, if by any chance the competent prosecutor concludes that citizen Kostunica should stand trial. DSS “consistency” can lead to the conclusion that the public prosecutor, if he decides to prosecute the case, will also be classified by DSS-State-It-Is-I as a morally faltered, diabolical and insane person, ready to falsely accuse innocent people, a defender of the Ustashi, calling for the bombing of Serbia and an overall instigator of abominable hysteria.

Confusion or law? Who, in this defense–attack, is the prosecutor, and who is the suspect, who is the victim, and who or what is considered to be the state, what is the law, and, particularly, what is the rule of law? The prosecutor is, of course, DSS, the suspect is the lawyer representing individuals who filed criminal charges, thus, they are suspects themselves, the state is DSS, law is what DSS says is the law, and the rule of law – well, that is placing them (DSS and its leader) above the law. Who is the victim here? Not Zoran Djindjic, or his mother and sister. They do not have the right to know, or the right to ask or accuse, not even the right to simple piety. The victim is DSS and its innocent, yet accused leader. Uniting the subject’s different roles in one legal proceeding is called confusion. Legally, confusion leads to a dismissal of a case. Other kinds of confusion are tolerated. This one is not – especially if Serbia still aspires to be a country with the rule of law. Not of confusion.

Peščanik.net, 19.11.2010.