Bosnian Criminal Code fulfils international standards

Currently in Bosnia and Herzegovina (BiH) five Criminal Codes are applied in local court system. How did this complicated legal situation arise?

During the period 1991-1995, when most of the acts for which individuals are tried today occurred, the SFRY Criminal Code was in force in BiH.

That Code contained provisions criminalising war crimes, but not crimes against humanity. It also did not include provisions regulating command responsibility.

For the past several years BiH has been going through a comprehensive reform process of its justice system and in 2003 four new Codes were introduced – the BiH State Criminal Code (BiH CC), the Federation BiH Criminal Code (FBiH CC), the Republika Srpska Criminal Code (RS CC) and the Criminal Code of Brcko District (BD CC).

Importantly, the BiH CC includes provisions criminalising both war crimes and crimes against humanity, while the entities’ CCs and BD CC do not include such provisions.

Accordingly, the entities’ justice systems continue to use the SFRY Criminal Code when charging and trying individuals for war crimes.

Recently, a number of individuals charged with or convicted of war crimes and crimes against humanity by the BiH State Court have attempted to challenge the applicability of the 2003 BiH CC crimes committed between 1991-1995 in BiH by evoking the principle of nullum crimen, nulla poena sine lege (no crime and no punishment without a law).

According to this principle, for a certain conduct to be considered criminal, it must have been defined as such in law before its commission, and with sufficient precision and foreseeability, so as to prevent arbitrary enforcement and ex post facto laws.

The international law also forbids that a heavier penalty is imposed than the one that was applicable at the time the criminal offence was committed.

However, the international human rights instruments, such as the European Convention for Human Rights (Art. 7 (2)) and the International Covenant for Civil and Political Rights (Art. 15) explicitly state that the principle does not prejudice the trial and punishment of any person for any actor omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

It is indisputable that crimes against humanity were crimes according to international customary law and principles of international law during the critical period, and therefore despite the fact that such crimes were not foreseen in the SFRY laws,their prosecution is perfectly legal.

The BiH CC merely codified the internationally recognised rules by introducing Articles 171—184, (Chapter 17 Crimes against Humanity and Values Protected by International Law) which criminalizes the described offences.

In this manner, the provisions of the BiH CC were also brought in line with the provisions of the International Criminal Court (ICC) Statute.

Furthermore, the application of the current BiH Criminal Code is in compliance with the European Court for Human Rights jurisprudence.

Pursuant to this institution’s provision, crimes can be punished,even when not specifically provided for by the domestic law in effect at the time of the offences, if criminal liability is sufficiently foreseeable and accessible to the accused at the time of the offence.

In other words, an accused can be punished for conduct, provided that one were aware at the time of the commission of the offence that it was indeed a criminal act.

This requirement is met in the instance of war crimes trials at the Court of BiH, given that the doctrine of crimes against humanity had been developing for years and that similar offences had been codified in the SFRY Code and appropriate criminal sanctions were prescribed.

Specifically, during the period of the conflict it was possible to foresee that acts and omissions constituting crimes against humanity were criminal in nature, by virtue of provisions within the SFRY Code on crimes against civilian population committed at the time of war, and the criminal offence of racial and other discrimination, which contain elements of crimes against humanity now included in Articles 172 and 173 of the BiH CC.

These provisions are contained within Articles 142 and 154 of the SFRY CC.

It should also be noted that defendants in the Nuremberg and Tokyo trials systematically argued the “no trial no punishment” principle without any success.

No successful challenges have been made to the statute of the ICTY either, which was neither drafted nor adopted until late into the conflict in BiH.

Given the subsequent body of law left by the Post-World War II tribunals, as well as the ICTY, the ex post facto application of laws criminalising crimes against humanity and codifying command responsibility is considered to be in accordance with the international fair trial standards.

As regards the retroactive application of penalties and principle of leniency, the issue is more complex.

From 1991 to 1995 the SFRY Criminal Code prescribed 20 years as the maximum term of imprisonment. Capital punishment was the only penalty more severe.

Thereafter upon its signature Annex IV of the Dayton Peace Agreement abolished the death penalty and,at the same time, made the European Convention for Human Rights directly applicable in Bosnia as of 14 December 1995.

The 2003 BiH CC prescribes penalties up to 40 years of imprisonment for war crimes and crimes against humanity.

Two different approaches have been adopted in the BiH courts so far.On one hand the State Court has applied retroactively the sanctions prescribed by the current BiH CC, while most of the other courts, including entities’ Supreme Courts, have argued for application of the penalties prescribed by the SFRY Criminal Code provisions, as they were in force at the time of the conflict.

Similar arguments have been raised by the defence in several trials before the State Court.

The State Court objected this argument by stating that in the cases of war crimes and crimes against humanity the application of the more lenient law principle is not obligatory, according to Art.4 (a) of the current BiH Criminal Code.

The State Court further ruled that it anyhow applied the more lenient law, since the law in force in BiH during the relevant period prescribed the death penalty.

The OSCE Mission to BiH points out that many trials, in which penalties were applied retroactively, are still pending, including in front of the Constitutional Court and encourages the individuals prosecuted or convicted to use the available legal remedies to urge the competent courts to settle the issue.

The Mission would like to note that the introduction of a single criminal code for BiH, or at least the complete harmonization of all current CCs,would greatly contribute to minimising the confusion surrounding the issue.

Until a BiH Supreme Court is instituted, a unified code is the only way to achieve uniform sentencing policies throughout the country.

Further, such an approach would help to mobilise the fragmented human and material resources, as well as to ensure the continuous development of the justice system in BiH that would be fully compatible with the European standards.

Most importantly, it would create a higher degree of legal certainty and increase the public trust in the system.