On July 18, the European Court of Human Rights issued a decision in the case of Maktouf and Damjanovic v Bosnia and Herzegovina. Maktouf and Damjanovic were convicted of war crimes by the Court of BiH in 2006 and 2007 respectively; their suit argued that they should not have been sentenced under the 2003 BiH criminal code because it was not in force at the time their crimes were committed. In its decision the Court of Human Rights agreed and awarded them compensation for costs incurred for litigation.
In its verdict, the Strasbourg court said that the Bosnian state court had sentenced Maktouf to five years’ imprisonment, the lowest possible sentence under the 2003 code, while under the 1976 criminal code, he could have been sentenced to one year’s imprisonment.
Similarly, Damjanovic had been sentenced to 11 years’ imprisonment, slightly above the minimum of ten years, while under the 1976 criminal code, it would have been possible to impose a sentence of only five years. -BalkanInsight
The ECHR’s Judgment in Maktouf opens the door to appeals for any BiH Court decisions in which either the criminal conduct at issue or the sentence imposed was not set out in the 1976 SFRY Criminal Code. Not surprisingly, the BiH Court is keen to prevent any such wave of appeals. Upon the publication of the ECHR’s decision, the BiH Court issued a defiant statement asserting that no change was necessary to its decisions in the Maktouf and Damjanovic cases. Additionally the Court asserted that its approach to war crimes prosecutions was consistent with the European Court’s Judgment. Neither of these assertions is factually or legally correct. Moreover, the BiH court should not have issued what amounts to a legal opinion in a public statement to the press.
Judgments of the European Court are binding upon BiH and entity institutions. To be in compliance with the judgment, the responsible BiH institutions, including the BiH Court, must correct actions previously taken, including sentences previously issued and enforced. It is highly unlikely, though, that the BiH Court will do so without considerable external pressure. The EU-sponsored Structured Dialogue on Justice is one venue in which the RS—which was the first to raise the issue of improper retroactive sentencing—can bring such pressure to bear.
But the RS should not be the only watchdog in this instance. Responsibility for ensuring that the BiH Court abides by the ECHR’s ruling should rest with those elements of the international community that have supported the BiH – level Courts for so long. (The BiH Constitutional Court upheld the BiH Court’s verdict against an appeal by Maktouf thus forcing him to resort to the ECHR.) A previous ruling of the ECHR, the so-called Sejdic-Finci decision, has become an integral part of the European Union’s “road map,” the set of reform milestones BiH must meet in order to be eligible for EU accession. The Maktouf ruling is no less important in terms of European and international standards. BiH cannot truly be a democratic nation under the rule of law so long as its state level courts flout those standards.
