The BiH Constitutional Court released 10 men convicted of war crimes due to a ruling by the European Court of Human Rights.
By Drazen Remikovic for Southeast European Times in Sarajevo -- 02/12/13
Bosnian Muslims search for the names of their relatives killed during the 1995 Srebrenica massacre on a monument at a memorial cemetery in the village of Potocari on July 11th. Six of 10 war crime convicts who were released due to an EU ruling had been convicted for their roles in the massacre. (AFP)
The release of 10 war crime convicts due to an EU legal ruling overturning the basis of their original convictions rekindled a debate on the reform of the judicial sector in Bosnia and Herzegovina (BiH).
On November 18th, the state court announced that the 10 are no longer convicted persons but have newly indicted status after the Constitutional Court adopted their appeals. They will be retried in mid-December in a shortened procedure that will apply the previous criminal code, which will be more favourable to them.
"The Constitutional Court has brought a decision which is in accordance with European practice and that represents a significant shift. This is a clear signal to all courts in BiH that they must stop applying the wrong laws," BiH's Deputy Minister of Justice Srdjan Radulj told SETimes.
The 10 men, six of whom were convicted in the Srebrenica massacre, were previously sentenced to between 14 and 33 years in prison. Their release outraged survivors and families of the victims.
"This is a disgrace of justice. We have been victims of those war criminals who were released and now we are victims of the system. I don't know what to say anymore," Munira Subasic, president of an association of Srebrenica survivors, told SETimes.
The ruling followed an appeal by two other war crimes convicts, Abduladhim Maktouf, an Iraqi national, and Goran Damjanovic, a BiH citizen, who were sentenced for war crimes committed from 1991 to 1995, whose retrial began in November.
The European Court of Human Rights ruled on July 18th that the men's rights were violated.
In its ruling, the court said that the two 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, which was adopted after the crimes were committed in the 1990s.
Adil Lozo, Maktouf's attorney, said that the BiH court erroneously applied the law, and that in these cases judges should apply the law that is more favourable to the defendant.
"Maktouf already served a sentence of five years, after which he was expelled from BiH and his passport was seized. The whole process needs to be repeated now. All cases like this will require a revision, and it requires time and taxpayers' money," Lozo told SETimes.
BiH Court President Meddzida Kreso declined SETimes's request for comment.
Experts said that the court had to bear the consequences of the erroneous application of law that caused misunderstandings in BiH's judicial system.
"In the old law there is a section on the death penalty, therefore the court applied the new law where there is no death penalty. However, the death penalty from the old criminal law, even in Yugoslavia, was never performed. Therefore, the court should review all the judgments made in this way, and not wait for the appeals. People will complain and seek compensation. We are talking about millions here," Ljiljana Mijovic, former judge of the European Court of Human Rights in Strasbourg, told SETimes.
According to the BiH Ministry of Justice, there are more than 100 such judgments in the country.
"We will try to resolve the issue within the country in order to avoid the situation that Strasbourg finds hundreds of BiH's appeals. The domestic judiciary must work by European practice," Radulj told SETimes.
In the past eight years, BiH courts have closed 206 war crimes cases and sentenced 229 people to a total of 2,224 years in prison, but 1,300 cases are still pending.
What steps can BiH take to make war crimes trials more efficient? Tell us in the comments.