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At the same time, however, we should bear in mind the Article 327, paragraph 1, item f, of the Criminal Code of Bosnia and Herzegovina, which provides that criminal proceedings which is completed by the second instance verdict may be repeated in favour of the indictee if the Constitutional Court of Bosnia and Herzegovina or the European Court of Human Rights “have found out that human rights and fundamental freedoms were violated during the proceedings, and if the verdict was based on such violations.” This means that the defense attorneys of the convicts can apply for a retrial, on which the further decision would be made by a three-member council of the Court of Bosnia and Herzegovina.
However, it should bear in mind that it is not guaranteed, and that it is very possible that in the repeated procedure, and by application of the Criminal Code of the former Yugoslavia from 1976, the imposed verdict would not be more favourable than the one which was previously imposed. However, although the Court has confirmed the violation of applicants’ rights because there was a possibility that their sentences would be lower by using the earlier law, the Court concluded that it is not possible to claim with certainty that any of the applicants would receive a smaller sentence if the earlier law was applied. For example, from a total of 5 procedures under which the Appellate Chamber of the Court of Bosnia and Herzegovina in recent years has cancelled the first instance decision by application of the new law, and while they were bringing the decision, they applied the earlier law from 1976, and in two cases they have pronounced the identical sentences as the Trial Council, and in one case they proclaimed even more severe penalty than the one which is imposed the new law.
When it is a matter of other convicts, from the wording of the cited provision of the Criminal Code, it arises that that the retrial is possible only in cases where the violation of human rights are confirmed. However, as the European Court of Human Rights has pointed out, the question of whether the retroactive application of the application of the Criminal Code of Bosnia and Herzegovina from the 2003 was in line with the European Convention on Human Rights cannot be looked at as an abstract question, but it is subject of review in each particular case, in accordance with the its specific circumstances. Therefore, this possibility would exist only for other convicts, for which the European Court found out that they rights were violated.
In order to reach such a decision, the convicts must, however, timely exhaust all domestic remedies, address the Constitutional Court of Bosnia and Herzegovina within 60 days from bringing the second instance verdict, and/or contact the European Court within six months from the date of bringing the second instance verdict. In most cases, this deadline has already passed by, so such applications would not pass the test of acceptability of the Court in Strasbourg and the Constitutional Court of Bosnia and Herzegovina.
In any case, what is important is that the European Court found out that the application of the Criminal Code of Bosnia and Herzegovina from 2003 is not contrary, as such, to international human rights standards. The Court has decided that the implementation of this law is the only possible option when a person is indicted with crimes against humanity. For example, the verdict for Veselin Vlahovic, where there is such situation, would not be able to be labelled as opposite to the European Convention. In the case of Simsic against the Bosnia and Herzegovina, the European Court had already declared that it is going in this direction.
On the other hand, regarding the war crimes that have been prescribed by both laws, it cannot be said generally that in any particular case it would be necessary to apply the earlier law, but that it would have to be rated in accordance with the specific circumstances of the case. This is especially valid for the most severe forms of war crimes. The Court noted that neither Maktouf nor Damjanovic were found liable for the loss of life, and the crimes they committed – kidnappings and beatings – do not fall into the category of the most serious war crimes for which the previous law has provided the possibility of the death penalty. Accordingly, in cases where the hardest forms of war crimes are in question, including criminal liability for the loss of life, the Court has left the possibility of determining whether the law from 1976 is more favourable than the one from 2003.
The Author is a Legal Adviser at the Track Impunity Always (TRIAL)