Mitigating Circumstances Not Reviewed At Maktouf Retrial, Says Defense Lawyer

Abduladhim Maktouf’s defense attorney requested that the appellate chamber of the Court of Bosnia and Herzegovina reduce Maktouf’s sentence from five years to one year in prison.

Maktouf was found guilty of the unlawful arrest, detention, and kidnapping of five Croat civilians in Travnik in 1993.

Adil Lozo, Maktouf’s defense attorney, said that he was very disappointed that his client was sentenced to five years in prison at his retrial – the same sentence he had been given at his first trial in 2006.

The Maktouf case went to a retrial as a result of a European Court for Human Rights decision which determined that the criminal code of the former Yugoslavia should have been applied during the first trial (held from 2004-2006), and not the criminal code of Bosnia and Herzegovina. The criminal code of the former Yugoslavia is the more favorable legislation to the defendant in this case.

Following this decision, the portion of the trial referring to the application of law was renewed. Maktouf was sentenced to five years in prison according to the criminal code of the former Yugoslavia. He was found guilty of having assisted soldiers of the Al-Mujahideen Unit in conducting unlawful arrests, detention, and kidnapping five Croat civilians in Travnik in 1993.

“Under the first verdict from 2006, Mr. Maktouf was sentenced to five years in prison according to the criminal code of Bosnia and Herzegovina, because the chamber determined that the mitigating circumstances allowed for the pronouncement of a minimal sentence. Since it has now been determined which law should have been applied in his case, the same mitigating circumstances should have been considered and a minimal sentence given as per the criminal code of the former Yugoslavia,” Lozo said.

Lozo said he found it hard to comprehend how the Court of Bosnia and Herzegovina had renewed about twenty cases due to the wrong application of law, but Maktouf’s was the only case in which the sentence was not reduced. Maktouf was “the first one to arrive before the European court,” he said.

“Our renewed trial was just a formality. I expected that we would be able to present evidence on mitigating circumstances. We wanted to examine an injured party, who would have spoken about having been saved by Maktouf a few days later, and also to demonstrate how Maktouf behaved during the trial and after having served his sentence,” Lozo said.

According to Lozo, Maktouf had “bad luck,” in that he spoke Arabic and could communicate with foreign fighters who came to Bosnia and Herzegovina during the war.

After Maktouf had served his prison sentence, his Bosnian citizenship was revoked and he left the country. He currently lives in Malaysia. He is allowed to stay in Bosnia and Herzegovina in order to attend his retrial.

Lozo said that Maktouf did not want his sentence to be reduced in order to sue the state for the time he spent in detention, but in order for his name to eventually be removed from the criminal registry. Should this occur, Lozo said, Maktouf could file a new request to enter Bosnia and Herzegovina and return to his family.

Prosecutor Slavica Terzic asked the court to reject the appeal filed by Lozo.

“A five-year sentence corresponds to the level of responsibility held by the defendant,” she said.

The appellate chamber will render a decision at a later stage.