In this decision the War Crimes Chamber of the State Court of BiH gave its reasons for applying the 2003 Criminal Code of Bosnia and Herzegovina to the crimes of the two accused committed in 1993 during the war in Bosnia. It argued that although this was strictly speaking a retroactive application of the law, Bosnia’s 2004 Law on Amendments to the Criminal Code of BiH (Art 4(a)) provided for “exceptional departure” from the principles of non-retroactivity and mandatory application of the most lenient sentence (following upon amendments) when the crimes in question were committed within the context of war. It emphasized that this interpretation reflected the law of the European Convention on Human Rights (Art 7(2)) and that Bosnia’s own constitution provided for the primacy of ECHR law over Bosnian law. The Judge opined that ‘the period of war or conflict or hostilities is particularly sensitive and particularly protected by generally accepted principles of international law’ and that as a consequence crimes committed in the context of war attracted graver consequences.
In keeping with the above, the Court passed the minimal sentence of 10 years imprisonment as permissible under the 2003 Bosnian Code instead of the minimal sentence of 5 years permissible under the 1976 Yugoslavian Code. Further considering that mitigating circumstances pertained in the case of this Accused, the Court reduced his sentence to 5 years, in accordance with Art.50 of the 2003 Code. The discussion outlined above can be read on p16-18 (PDF)).
The case was welcomed among commentators on the progress of war crimes prosecutions in BiH. It was considered to clarify the relevant law in a context where competing criminal codes were posing a threat to legal certainty and to the fairness of the post-war criminal trials. The decision was also in harmony with the explicit intention of the Office of the High Commissioner that the 2003 code should be exclusively applied to war crimes cases brought to the Court after 2003.
However, the Defense rejected the Court’s position on the exclusion of non-retroactivity and mandatory minimum sentencing and considered that the same mitigating circumstances would have reduced Maktouf’s prison term to 1 year under the 1976 Criminal Code in force in 1993. Maktouf appealed to the Constitutional Court of BiH on 30 March 2007. That Court examined the case in the light of Articles 5, 6, 7 and 14 of the ECHR but found no violation of the Convention. The case was then taken to the European Court of Human Rights. See below.