Two convicted war criminals have asked the European Court of Human Rights to confirm that the retroactive use of the Bosnian Criminal Code in their trials violated their human rights.
|European Court of Human Rights/Photo by BIRN|
Abduladhim Maktouf and Goran Damjanovic have taken their case to the European Court of Human Rights in Strasbourg in a hope of obtaining a retrial.
Their lawyer, Aldin Lejlic, argued before the European Court Chamber, that their human rights have been violated because the Trial Chamber that sentenced them consisted of international judges who were not appointed through the usual practice, but by an “undemocratic decree of the High Representative.”
“The Office of the High Representative is not democratically elected body and it seems unacceptable that the Office’s decision cannot be appealed before any court,” said Lejlic.
He added that the rights of Maktouf and Damjanovic were also violated by retroactive implementation of the Criminal Code of Bosnia and Herzegovina adopted in 2003 in war crime trials before the Bosnian State Court.
Lejlic emphasised that in war crime cases courts in the Federation of Bosnia and Herzegovina, Republika Srpska and Brcko District are using the Criminal Code of the Socialist Federal Republic of Yugoslavia – adopted in 1976 and in effect during the Bosnian war – while the State Court is using the Criminal Code of Bosnia and Herzegovina adopted in 2003.
He said that the practice of the State Court in Sarajevo is “unacceptable” due to the fact that the Criminal Code of former Yugoslavia has lighter minimum prison sentences for crimes against civilians and prisoners of war than the new Bosnian Criminal Code.
“The actions that Maktouf and Damjanovic were charged with are contained within the Criminal Code of Yugoslavia, thus the use of law with a higher minimal sentence is illogical,” said Lejlic.
He added that the use of the old Yugoslav law would speed up the processing of war crimes cases, and therefore their cost, and defendants would have an interest to admit their guilt.
Bosnia’s legal representative, Zikreta Ibrahimovic, said that the international judges at the State Court have proven their “independence and impartiality” through their work.
“Their purpose was to strengthen the judicial institutions in dealing with most complex war crime cases. The same practice of strengthening national courts was used in Sierra Leone or Cambodia,” said Ibrahimovic.
She added that the retroactive use of the Criminal Code of Bosnia and Herzegovina is legal since the Criminal Code of former Yugoslavia is “outdated”.
“The Court of Bosnia and Herzegovina also rightly deduced that the 2003 Criminal Code is the only possible law to be used in these cases by comparing the minimum and maximum sentences."
"The applicants base their claim only on the minimum sentence, which indeed is lighter in the Criminal Code of Yugoslavia, but the maximum sentence under that law is the death sentence, which is certainly more severe than 45 years imprisonment, according to the Criminal Code of Bosnia and Herzegovina,” explained Ibrahimovic.
Ibrahimovic added that the Bosnian Court has passed 175 verdicts in war crime cases so far, and used the Criminal Code of former Yugoslavia in only six of them, while Lejlic said that this varying practice of the State Court leads to “inequality of citizens before the law.”
Abduladhim Maktouf was sentenced to five years’ imprisonment in 2006 for crimes against five Croats civilians committed in October 1993 in Travnik.
Goran Damjanovic was sentenced in December 2007 to 11 years in prison for taking part in the beating of a group of captured Bosniaks in the Sarajevo suburb of Bojnik.