Decisions that Will Consume Time and Money

The renewal of war-crimes trials due to the wrong application of laws will require huge financial resources and cause a backlog in the State Court’s work on new cases.

Legal experts consider that, when solving a dilemma on whether the Criminal Code of Bosnia and Herzegovina from 2003 was more favourable for indictees than the Criminal Code taken over from the Socialist Federative Republic of Yugoslavia, SFRJ, the situation has been further complicated by the latest decisions by the Constitutional Court of Bosnia and Herzegovina to quash verdicts following several appeals filed by war-crimes convicts.  
 
“The renewal of trials will affect the cost-effectiveness. They will cost a lot and cause a big backlog in the State Court’s work on new cases. Judges and prosecutors will be involved in old cases,” said attorney Krstan Simic, former judge with the Constitutional Court of Bosnia and Herzegovina.
 
As he says, the decision to quash the entire verdicts means that the determined facts have also been revoked. He says that this causes an additional problem, because the retrials will not only deal with the application of criminal codes, but also facts.
 
Mervan Mirascija of the “Open Society Fund” says that, for a certain period of time the Constitutional Court implemented a legal practice which has now been denied in Strasbourg, so a completely new situation is created.
 
“Do the Court and Prosecution have sufficient capacities to practically renew proceedings in completed cases and, in parallel, work on new cases? Unfortunately, I do not think so,” Mirascija says.
 
Legal expert Miroslav Mikes reminds that, while solving the appeals filed by Abduladhim Maktouf and Goran Damjanovic, the European Court for Human Rights determined that the law from 2003 was wrongly applied at their trials.
 
“According to the decision, the second instance verdicts, pronouncing them guilty, should remain valid, but the sentences should be determined differently… However, the Constitutional Court then went out of the framework of the European Court’s decision. In addition to determining that Article 7 was violated, it also determined that the right to a fair trial was violated. When such violation of rights is determined, the case is renewed by default and taken back to the phase after the confirmation of the indictment,” Mikes explained.
 
Krstan Simic considers that the Constitutional Court of Bosnia and Herzegovina should have determined the violation of rights and let the Court of Bosnia and Herzegovina renew the proceedings only in the part related to the application of criminal codes, so the problem would be resolved.
 
Miroslav Mikes says that only the Court of Bosnia and Herzegovina and Constitutional Court considered that the Criminal Code of Bosnia and Herzegovina from 2003 was more favourable to indictees.
 
This Code foresees imprisonment lasting up to 45 years as the maximum sentence, while the Code of the former Yugoslavia foresaw imprisonment sentences up to 15 years or death punishment, which has since been abolished.
 
“Those, who found it suitable, considered that the code, which did not foresee death punishment, was more favourable to indictees. This logic was not accepted in Slovenia, Croatia, Serbia, Montenegro, or even the entity courts in Bosnia and Herzegovina,” Mikes said.
 
After the Constitutional Court of Bosnia and Herzegovina recently accepted appeals on the grounds of wrong application of law, the Court of Bosnia and Herzegovina released ten convicts, who were previously sentenced to between 14 and 33 years in prison.
 
Simic considers that the recent decisions by the Constitutional Court of Bosnia and Herzegovina have caused drastic consequences and opened the question of legal security and rule of law.
 
“The consequences of those decisions are enormous. We have people, who were held in prison without a valid court decision. In case they are sentenced again, it is questionable whether the time they spent in prison will be calculated towards their sentences, considering the fact that there was no lawful decision in their case,” Simic explained.
 
Mirascija points out that the release of convicts to liberty demonstrates yet another type of inconsistency. 
 
“I do not think that a systematic approach was applied. I think that not all capacities of experts, lawyers and professionals in Bosnia and Herzegovina have been used in order to review the decision by the European Court for Human Rights in ‘Maktouf and Damjanovic’ case,” Mirascija thinks.
 
Simic considers that, by quashing the verdicts, the Constitutional Court has taken over the competencies of the Supreme Court.
 
“The Constitutional Court is not a court with regular competencies. When rendering this decision, it followed its own rights. However, by doing that, it took over the role of a fourth instance court, i.e. the supreme court, which does not exist in our country,” Simic said.
 
Kasim Trnka, Professor of constitutional law, disagrees with the statement that the Constitutional Court has taken over the role of a supreme court.
 
“This would be the same as saying that the European Court has taken over the role of a supreme court, which is not the case. The Constitutional Court does not deal with meritum or content, but the violation of the criminal proceedings,” Trnka said.
 
Lawyer Vehid Sehic, President of “Tuzla Citizens Forum” Association, considers that the absence of a supreme court in Bosnia and Herzegovina, which could take stands that would be obligatory for all courts in Bosnia and Herzegovina, causes the inequality of citizens and legal insecurity.
 
“The judicial system of the Bosnian state is absolutely separate from judicial systems in the entities. In addition, there is the judiciary of Brcko District as well. The situation we have today is made possible by the fact that there is no supreme court instance, which would take certain obligatory stands at its general sessions,” Sehic says.