Court Watch
where they allegedly yelled “Mother Mary, please drive Putin away.” The band members have de- nounced Russia’s amnesty law as a public rela- tions stunt staged by the Russian government.
As the Sochi Olympics draws closer, Russia’s hu- man rights record will likely remain a subject of intense international scrutiny. Close observance during the Olympic games can provide the inter- national community with a clearer look into human rights conditions in Russia.
* Submitted by Rachel Catlett
Bosnian Court Releases Convicted War Criminals Early
6
As the international community readies to mark the 20th anniversary since the close of the Bos- nian War in 1995 and the International Criminal Tribunal for the former Yugoslavia (ICTY) prepares to close its doors, criminal justice for the conflict in Bosnia continues to face significant obstacles. Following a July 2013 ruling by the European Court of Human Rights, the Bosnia and Herzegovina State Court’s war crimes chamber released ten criminals convicted of war crimes. Six of these released prisoners had been convicted of crimes related to the Srebrenica massacre, the first geno- cide on European soil since the Holocaust, which resulted in the death of 8,000 Bosniak men and boys between July 11 and July 13, 1995.
In its July ruling in Maktouf and Damjanovic v. Bos- nia and Herzegovina, the European Court of Hu- man Rights (ECtHR) addressed the Bosnian State Court’s application of a 2003 Code in war crimes cases, ultimately finding that the Bosnian State Court had violated the applicants’ rights under Article 7 of the European Convention of Human Rights, which prohibits retroactive criminalization of acts and omissions. Bosnia and Herzegovina has two criminal codes, one drafted in 2003, and the criminal code in place when the country ex- isted as part of the Socialist Federal Republic of
Yugoslavia (the so-called “SFRY Code”). Substan- tively, the codes differ very little, except with re- gards to sentencing framework. First, the SFRY code allows for the possibility of the death penalty in certain circumstances. Second, the 2003 Code carries with it higher minimum sentencing for cer- tain offenses.
Both of the applicants, Abduladhim Maktouf and Goran Damjanovic, had been sentenced under the 2003 Code for war crimes committed during the Bosnian war. Maktouf and Damjanovic both received sentences at or near the minimum sen- tences prescribed under the 2003 Code, and could have possibly received more lenient sentences had the court applied the SFRY Code. Having ana- lyzed the particular circumstances of each case, the ECtHR reasoned that both applicants had not been afforded effective safeguards against the potential imposition of heavier sentencing, violat- ing their Article 7 rights to a fair trial. According to the ECtHR, the retroactive application of the 2003 Code to the applicants’ crimes meant that they faced minimum sentencing higher than allowed for under the SFRY Code.
The ECtHR carefully noted that it had not found the application of the 2003 Code per se in violation of Article 7. Instead, the ECtHR indicated that the law most favorable to the defendant must be ap- plied. Practically speaking, the Maktouf judgment further only calls into question the sentences of defendants convicted of less serious war crimes; that is, defendants that received sentences under the 2003 Code near or at the minimum sentence.
Since the July Maktouf judgment, numerous de- fendants convicted under the 2003 Code of war crimes appealed to the Bosnian Constitutional Court, claiming that their Article 7 rights had also been violated. The Bosnian Constitutional Court found violations in ten of these cases, and ordered the Bosnian State Court “reach a new decision in accordance with Article 7(1) of the European Con- vention for the Protection of Human Rights and
ILSA Quarterly » volume 22 » issue 3 » February 2014
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