Ruling may affect BiH war crimes cases

30/07/2013

Dozens of cases tried since the passage of a 2003 law may be reviewed after the European Court for Human Rights ruled that BiH cannot retroactively apply war crimes statutes for crimes committed in the 1990s.

By Drazen Remikovic for Southeast European Times in Sarajevo -- 30/07/13

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The European Court for Human Rights ruled that BiH officials cannot apply a 2003 war crimes law for an offense from the 1990s. [Drazen Remikovic/SETimes]

A recent ruling of the European Court for Human Rights that overturned a Bosnia and Herzegovina (BiH) state court in a war crimes case may affect more than 50 cases that have been decided since 2003, officials said.

The court said that BiH violated the rights of Abduladhim Maktouf, an Iraqi national, and Goran Damjanovic, a BiH citizen, who were sentenced for war crimes committed from 1991 to 1995.

In its ruling on July 18th, the court said that the two convicts could have been given shorter sentences if the 1976 former Yugoslav criminal code was applied in their trials instead of the 2003 BiH criminal code that was adopted after the crimes were committed in the 1990s.

"Since there was a real possibility that the retroactive application of the 2003 criminal code adversely affected the applicants in special circumstances of this case, the court concluded that they had not been afforded effective safeguards against a heavier penalty," the Strasbourg court ruling stated.

Milan Romanic, a Banja Luka lawyer, said he represented three such cases before the BiH court and noted the issue on a number of occasions during the trials.

"Unfortunately, the court didn't sustain these appeals. According to my data, there are 54 such cases in BiH. This is a hard punch for the BiH judiciary. The state court, already shaken with other scandals, should not allow itself such disgrace. If I were the court president, I'd immediately resign. If nothing else, then on the moral basis," Romanic told SETimes.

Meddzida Kreso, the president of the BiH court, declined to comment to SETimes.

Maktouf helped in the 1993 abduction of two civilians in Travnik for an exchange of the members of the Army of the Republic of Bosnia-Herzegovina forces, composed of mostly Bosniaks, who were captured by the Croatian Defense Council.

Damjanovic was accused of taking part in the beating of captured Bosniaks in Sarajevo in 1992 to punish them for resisting a Serb attack. The BiH court sentenced Maktouf in 2006 to five years in prison and Damjanovic in 2007 to 11 years in prison.

The court ordered the BiH state to compensate the two with 10,000 euros each.

Borislav Petrovic, the dean of the Sarajevo law faculty, said that the domestic courts should now use the EU Human Rights Court verdict as a precedent.

"I assume the courts applied the new criminal law which came into effect in 2003 because every court works on the basis of the principle to apply the law that is easier on the accused. Judges probably thought the 2003 law is less strict than the old one from the (former) Yugoslavia, because the death penalty was also prescribed under the old Yugoslav law. For trials still ongoing, the courts need to apply the old law so that the verdicts would not go again to Strasbourg," Petrovic told SETimes.

The 2003 criminal code was imposed by the then-BiH High Representative Paddy Ashdown, marking the beginning of the judiciary reform in the country, but the reform yielded poor results, which Catherine Ashton, EU foreign policy chief, confirmed.

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During her 2011 visit to BiH, Ashton started a dialogue with the BiH politicians on judicial reform, but said the process would be long.

Petar Kunic, a member of the legal-constitutional committee of BiH parliament, said he thinks that the BiH criminal code will likely be changed after the recently overturned verdict.

"Every person convicted this way [under the 2003 code] now has the right to appeal for a verdict review. The consequences will be bad for the BiH judiciary. You can only imagine how much time it'll take to re-try all those people, not to mention the cost and eventual compensation. I must say that BiH legal experts have been warning the judiciary about this issue for years, but without any success," Kunic told SETimes.

How do you think the law should be applied in war crimes cases from the 1990s? Let us know what you think by making a comment below.

This content was commissioned for SETimes.com.
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