5 March 2015
In July of 2013 the European Court of Human Rights (ECtHR) issued a ruling in the case Maktouf and Damjanovic vs. Bosnia and Herzegovina, concerning the non-retroactive application of criminal law to war crimes cases, which had tremendous negative consequences on post conflict justice efforts in Bosnia and Herzegovina (B-H).

The case concerned two applicants (Maktouf and Damjanovic), convicted for war crimes against civilians committed during the 1992-1995 war in B-H, who successfully claimed that their sentencing violated Article 7 ECHR because the 2003 Bosnian Criminal Code was retroactively applied to them (the case is discussed in more detail in a previous Lancaster Law blog by Prof. James A. Sweeney, and in his recent journal article on ‘Non-retroactivity, candour and transitional relativism’). This blog post will deal with the legal consequences of this ECHR judgment for B-H. A second post will deal with the political impact.

From an internal perspective in B-H there had been high expectations of the Strasbourg Court in this case. These expectations were met by an unusually narrow and vague ECtHR judgment which, by failing to elaborate on the core and central issue at hand, lacked clarity and guidance for an array of other pending war crimes cases. Moreover, what followed within the legal system of B-H was a complete misinterpretation of the European Court judgment, resulting not only in the temporary release from prison of a dozen convicted war criminals, including those serving sentences for the genocide committed in Srebrenica in 1995, but also the subsequent significant reduction of their sentences. This took the reconciliation process in B-H backwards to a point of no return, and had irreversibly adverse effects on the confidence building in the judicial bodies to ensure accountability for war atrocities. Despite the Government’s arguments presented to the Strasbourg Court during six years of proceedings, inviting the Court to consider and address the issue from a broader perspective, the Court showed an absence of caution and sensitivity for the shaky Bosnian post war reality.

Since the ECtHR judgment was rendered on 18 July 2013, to date, the Constitutional Court of B-H accepted applications of 19 persons convicted of war crimes (many are still pending) who, like Maktouf and Damjanovic, complained about the retroactive application of the 2003 Code used in their cases. A violation of the principle of legality was found in all cases without exception, even though many of them concerned crimes far more atrocious than those committed by the two applicants before the ECtHR (the rationale of judgment depended on the fact that for ‘lesser’ war crimes, the 2003 Code was more stringent: thus the case did not actually address more serious war crimes, crimes against humanity, or genocide). Eight of these persons had previously been sentenced by a final court decision to long term prison sentences for the crime of Genocide committed in Srebrenica, their sentences ranging from 24 to 33 years in prison.

Furthermore, unlike the ECtHR, which only determined that there was a violation of the principle of legality in relation to the sentence, the Constitutional court quashed the final verdicts of the State Court of B-H in all these cases, without touching at the issue of guilt. The quashing of final judgments led to a situation in which the State Court found no legal grounds for imprisonment, and the convicts were soon released from prison to await their retrial. In a matter of days persons previously found guilty of genocide, and other grave forms of war crimes, were set free to await resentencing. The Constitutional Court gave no basis for a retrial on the merits of the case despite ordering this to take place.

The confusion caused by the misinterpretation of the latest, 2013 ECtHR judgment is even greater when seen in light of the fact that in its 2012 judgment (the Case of Boban Simsic vs B-H), the Strasbourg Court found no violation of Article 7 when the new 2003 Code was applied to crimes against humanity committed by the applicant. In practice, this led to a paradox in the development of the case law: the ex-Yugoslav Code must be applied to crimes of genocide, or war crimes, i.e. punishable by no longer than 20 years, while for crimes against humanity, the new Code must be applied with the maximum penalty of 45 years. However, the issue of potential inequality of accused persons before the law, raised by such developments in case law, will ultimately result in bringing all sentences (even those under the new 2003 Code) in line with those under the ex-Yugoslav Code, so as not to put those accused for crimes against humanity in a less favorable position than those accused of genocide or other war crimes. This has already been noticed in the two recent judgments of the Court of BiH rendered in 2014 for Crimes against Humanity, in which the accused Zeljko Jukic and Milun Kornjaca were sentenced to 13 and 5 years respectively. In the reasoning part of both judgments the Trial Chamber motivated their decision on the punishment by referring to the sanctioning framework provided by the ex-Yugoslav Code.

By now, cases concerning 17 of the 19 convicted persons whose sentences were quashed by the Constitutional Court have been reviewed, although no cases were reversed on the merits. All sentences were reduced to between 6 and 20 years (the maximum allowed). These sentences are far below the range of sentences for ordinary crimes of a similar kind applied in B-H presently. The majority of persons were put back into prison to serve the reduced sentences, while some fled. A retired Serb General Novak Djukic, who had been found guilty of the direct commission of the bombing of the city of Tuzla (a war crime against civilians), fled to Serbia and is now out of reach to Bosnian authorities (no extradition rules apply). Another important case is that of Milorad Trbic, sentenced initially in 2010 by the State Court to 30 years for the crime of genocide, which he committed by participating in arresting, detaining, executing and burying and covering up the bodies of more than 7000 Bosniaks from the Srebrenica territory in 1995. This case was transferred by the ICTY under Rule 11bis to the Bosnian authorities for prosecution. In this case, after very strong international reactions condemning the release of convicted persons, and due to the high profile of this case (see UN experts joint press statement) the Constitutional Court slightly modified its practice in that, unlike in other cases, it only partially quashed the verdict of the B-H State Court, enabling thereby the State Court to keep Trbic in custody until retrial is over. On 16 February 2015 it was announced that the sentence for Trbic, same as for others, was reduced to 20 years.

This post has given a sense of the ramifications of the Strasbourg’s Court’s judgment in Maktouf and Damjanovic. My next post will explore some of the political impacts.