Genocide Trial Raises Criminal Code Issues

The Israeli government first requested that Bosnia promise that they will apply a more lenient law – which was in force in July 1995, when the genocide in Srebrenica happened – however, despite being assured so by the Bosnian Ministry of Justice, Israel later retracted this request.

Cvetkovic was indicted a month upon his extradition to Bosnia last month, with taking part in the Srebrenica genocide, according to a different criminal code, adopted in 2003.

The Bosnian Court and Prosecution claim that they have not given any guarantees regarding the use of criminal codes at Cvetkovic’s trial, while the Ministry of Justice says otherwise.

The Israeli Supreme Court has said it received assurances from Bosnia, but concluded they were unwarranted, since they believe that Bosnian courts will be obligated to act in accordance with the European Convention on Human Rights and the Constitution, without an order by an Israeli court.

Cvetkovic was arrested in August 2010 in Israel based on an international warrant issued by Bosnia. After three years, Israel decided to extradite Cvetkovic to Bosnia, but with a set of obligations.

One of the preconditions for extradition was that Bosnia use the criminal code of the former Yugoslavia from 1976 at his trial.

“If Cvetkovic is found guilty, the Bosnian Court will be obliged, in a case of conviction, to respect the position of the European Court of Human Rights in a verdict which speaks about whether Bosnia is sentencing defendants to harsher penalties than those which were proposed by the law which was in force at the time the crime was committed,” reads a decision by the Municipal Court in Jerusalem.

The European Court in Strasbourg reached a decision claiming the human rights of two Bosnian war crimes convicts – Abduladhim Maktouf and Goran Damjanovic – were violated after they were sentenced according to the 2003 criminal code.

The Court found, that the criminal code from 1976 would have been more lenient towards the defendants, and should have been used. Acting on this decision, the Bosnian State Court overturned Damjanovic’s verdict last Friday and ordered a retrial.

Meanwhile, in Cvetkovic’s case, the Bosnian Justice Ministry says that the State Court obligated itself to implement the verdict of the European Court, but the State Court denies ever having done so.

“The Bosnian State Court in February this year, wrote to the Justice ministry that upon his extradition from Israel, Cvetkovic will be based in the State-level detention unit and separated from other detainees. Other guarantees were not given,” said the Court of Bosnia and Herzegovina.

Likewise, the Bosnian Prosecutor’s office claim they were never asked for guarantees regarding criminal code use, which is why they raised an indictment according to the 2003 criminal code.

“The Israeli government only asked Bosnia for guarantees that the European standards will be used in Cvetkovic’s case – when considering his detention and criminal proceedings. However guarantees about use of criminal codes were not requested,” said Boris Grubesic, spokesperson of the Bosnian Prosecution.

Spokesperson of the Bosnian Justice Ministry Marina Bakic said that the State Court “clearly said that in Cvetkovic’s case, the European Convention will be respected,” since it has primacy over domestic laws.

“The guarantees were given by the State Court, and we gave our assurances based on those guarantees”, said Bakic.

Meanwhile, Eden Klein from the Israeli Justice Ministry also says that Bosnia delivered guarantees regarding application of the European Convention on Human Rights after the first-instance verdict of the Jerusalem court.

“Later, the Israeli Supreme Court decided that despite the fact that the Bosnian Ministry of Justice promised that the verdict of the European Court would be used, this is unwarranted”, said Klein, explaining that the Supreme Court believes that Bosnia would act in accordance with the European Court’s decision without an order of an Israeli court to do so.

Despite the fact that the European Court’s verdict is only directed against two cases – Maktouf’s and Damjanovic’s – many experts believe that the Bosnian Court should change its practice in all similar cases.

“I have carefully followed the behaviour of the Bosnian Prosecution in the case of Cvetkovic and I see they used the criminal code of 2003 again. It’s like there is no Court in Strasbourg for our Prosecution. This is a disgrace for our state,” said lawyer Miodrag Stojanovic.

He asks who will benefit from the fact that Bosnia will be repeatedly sued in front of the European Court.

Stojanovic reveals he has already filed a request for a genocide verdict to be overturned because of the use of criminal codes. The Bosnian Court has said that more than ten similar requests have been filed.