Radio Slobodna Evropa (Radio Free Europe‘s Balkan service) has published an article based on interviews with a diverse group of legal experts from BiH. As a service to our readers, we have translated the original piece into English:
“Whether there will be a large-scale revision of war crime verdicts”
Author: Aida Djugum
September 1, 2013
It is clear to everyone that the decision of the Court of Human rights in the case “Maktouf and Damjanovic“ that established that the Court of BiH erroneously applied the 2003 Criminal Code of BiH instead of the Criminal Code of the former state, will affect the jurisprudence in BiH. Legal experts in BiH have different opinion on whether there will be a large-scale revision of verdicts in which the Criminal Code of the SFRY, as a code more lenient for the perpetrator, can be used. However, the quesiton is being raised which code is more lenient and in which case, and how to use a code that used to prescribe a death penalty for most severe war crimes.
Seven years ago inmates in Kule, accused and convicted of war crimes, went on a hunger strike claiming that their human rights were jeopardized because the 2003 Criminal Code was applied in the course of trial, not the Criminal Code of the SFRY, which provided for more lenient sentences for crimes they committed.
After seven years, the European Court of Human rights established in the case “Maktouf and Damjanovic“ that the Court of BiH erroneously applied the Criminal Code of 2003, instread of [the SFRY Criminal Code] of 1976.
Attorney Duško Tomić represented Gojko Kličković i Zdravko Mihajlović seven years ago:
“Me and a group of detainees and inmates in the Court of BiH raised a voice and said that what the Court of BiH is doing will prove to be very bad one day, and it will be detrimental for the judiciary of BiH. Unfortunately, that came to be true now. The Court in Strasbourg said what I used to claim – the code that did not exist at the time crimes were committed cannot be applied. I do not have any dilemma – whoever addresses the Strasbourg [the ECHR] with respect to this issue will receive the judgment as the one we have today, and that is that the Court of BiH made a mistake.”
The Grand Chamber of the European Court of Human Rights concluded: the Retroactive application of the Criminal Code violates the European Convention for Protection of Human Rights and Fundamental Freedoms, because there was violation of the part of the Convention that provides that no sentence that stricter that the one that was prescribed at the time the crime was committed can be imposed against anyone. Attorney Vasvija Vidović:
“I always advocated the only thing that was possible, and that is that there is no room for a retroactive application of the code if that code is not more favorable to the defendant.”
Experts agree on one thing, and that is that this decision will influence the court practice in BiH. However, attorney Vasvija Vidović believes that there will be no large-scale revision of judgments after this decision of the European Court:
“This will not happen because revision is only possible only in those cases over which the Criminal Code of the SFRY is applicable. These are the crimes with more lenient consequences. It seems to me that about 50% of verdicts of the Court of BiH which applied the Criminal Code of 2003, were reached for crimes against humanity. In other situations the Criminal Code of the SFRY is applicable in those cases where it is possible to mitigate the sentence and it is applicable only to those cases in which the parties, the defendant, or his attorney, emphasized that there was violation of the Criminal Code in the course of the appellate proceedings, or if they filed an appeal to the Constitutional Court, that is the Court in Strasbourg. In all other cases that is not possible to apply due to the lapse of statutes of limitations.”
Incompleteness
Attorney Duško Tomić is of the completely opposite opinion:
“There is no dilemma that all attorneys who lost cases before the Court of BiH, and in which cases the Criminal Code of 2003 was applied, will have grounds for retrial. I will, in particular, request retrail for General Đukić who was convicted under that code to 25 years of imprisonment because of the Tuzla gate (Tuzla Massacre).”
In the last four years the Criminal Code of the SFRY was used more often, in eight enforceable verdicts, says Judge of the BiH Court Azra Miletić:
“When trials for war crimes had begun before 2003, and before the establishment of the War Crime Department of the Court of BiH, the Entity courts were dealing with that [war crimes] and they immideately, in the beginning, accepted the practice that it is possible to apply the Criminal Code of the SFRY as the law of the time when the crime was committed. There is an exception provided by the Criminal Code, as well as the European Convention, that it is possible to avoid this rule if the later code is more favorable to the defendant. The problem is what is more favorable to the defendant, and it is very difficult to say in totalty which code is more lenient and which is stricter with respect to sentencing for less severe crimes.”
The Code of the SFRY does not recognize crime against humanity, and it prescribed death penalty once. However, since BiH signed the Dayton Agreement in 1995, which incorporated the European Convention on Human Rights and Fundamental Freedoms, which prohibits the death penalty, the possibility of enforcement of death penalty was automatically abolished.
The Constitutional Court of BiH pointed in its decision from March 30, 2007 that the Court of BiH does not violate the constitutional right of the defendants, nor their rights guaranteed by international law, by the means of application of the Criminal Code of 2003. Judge Azra Miletić explains:
“The Constitutional Court remained incomplete in the core issue, as the European Court of Human Rights is now – it did not touch those issues that everyone expeccts. What the majority of applicants wishes and what caused the hunger strike is the position that only the Criminal Code of the SFRY without the death penalty can be applied. And that means that this is not the SFRY Criminal Code that was taken over, but some interim law. That would be Criminal Code of the SFRY withouth the death penalty, and a sentence of 15, that is 20 years of imprisonment for war crime could be imposed. Now, the question of all questions is: whether such settings that emphasized by the advocates of such a position are correct – or not, and what will the Court of Human Rights say now with respect to sentencing for the most severe crimes, therefore for those for which the death penalty was provided at the time they were committed?”
Original link: http://www.slobodnaevropa.org/content/plp-da-li-ce-doci-do-masovne-revizije-presuda-za-ratne-zlocine/25092453.html
