Euro Court Rules Bosnia War Crimes Sentences Unjust

The European Court for Human Rights ruled on Thursday that the Bosnian state court violated the rights of war criminals Maktouf and Damjanovic because they could have been given shorter jail sentences if the 1976 former Yugoslav criminal code was used in their trials instead of the 2003 criminal code of Bosnia and Herzegovina, which was adopted after they committed their crimes.

 “Since there was a real possibility that the retroactive application of the 2003 code operated to the applicants’ disadvantage in the special circumstances of this case, [the court] held that they had not been afforded effective safeguards against the imposition of a heavier penalty,” the ruling said.

The European rights court ordered the Bosnian state to pay the men 10,000 euro each in compensation.

The verdict could mean that all cases in which the Bosnian state court used the 2003 criminal code, more than 50 of them, could be overturned.

Maktouf was sentenced to five years’ imprisonment in 2006 for crimes against five Croats civilians in Travnik.

Damjanovic was sentenced to 11 years in prison in 2007 for taking part in the beating of a group of captured Bosniaks in the Sarajevo suburb of Bojnik.

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.

“The court emphasised that that conclusion did not indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 criminal code should have been applied,” the European verdict said.

The Strasbourg court also said that its verdict does not necessarily mean that all uses of the 2003 criminal code of Bosnia and Herzegovina are automatically a violation of the human rights of defendants, but that this should be determined on a case-by-case basis – raising the possibility of dozens of appeals.

It also said that courts in Bosnia and Herzegovina are obliged to use the criminal code from 2003 in trials for crimes against humanity since this criminal act is not defined by the Yugoslav code.

The verdict, however, rejected Maktouf’s appeal that his human rights had been violated because the trial chamber that sentenced him consisted of international judges who were not appointed through the usual practice, but by an “undemocratic decree from the High Representative”, Bosnia’s top international official.

“The court found in particular that there were no reasons to doubt that the international judges of the state court were independent of the political organs of Bosnia and Herzegovina, of the parties to the case and of the institution of the High Representative,” it said.

In war crimes cases, courts in the Federation of Bosnia and Herzegovina, Republika Srpska and the Brcko District still use the 1976 code, while the state-level court mostly uses the 2003 code.