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2013 | EUROPEAN COURT OF HUMAN RIGHTS | Maktouf and Damjanović v Bosnia and Herzegovina (Applications nos. 2312/08 and 34179/08) STRASBOURG, 18 July 2013

In this decision the European Court of Human Rights disputed the Bosnian State Court's interpretation of Article 7(2) of the ECHR (see Maktouf Appeal Decision immediately above). In particular the Bosnian War Crimes Chamber had held that the Article 7(1) obligation not to impose a heavier penalty than applied at the time of commission was negated in the case of crimes under international law by Article 7(2) which provides that ‘[t]his article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations’.

Relying on the drafting history of Art 7 the European Court asserted that it had not been the intention of the drafters that Article 7(2) shouldhave the effect of providing a general exception to the two prohibitions spelled out in 7(1). Instead the judges found that ECHR Art 7(2) ‘has its own field of application, since it refers to crimes which have not yet been crystalized into customary international law at the material time, nor been enshrined into treaty law applicable to the facts, but already represent an intolerable affront to the principles of justice, as reflected in the practice of a relevant number of nations.’ In the present case, there was no doubt as to the customary international law status of the crimes committed. Therefore Art 7(2) was not applicable at all and certainly could not be relied upon to create a partial escape from the general legal principle that the lesser penalty should always apply.

This decision has resulted in the overturning of ten WCC judgments. Notwithstanding the clarity of the ECHR’s position in itself, it has been suggested that the ruling may create as many inconsistencies as it will remove. See the commentary on the broader impact of this decision o our Articles page.