The Impact of the ECtHR’s Judgment in Maktouf-Damjanović on Accountability and Punishment for War Crimes in Bosnia-Herzegovina

Francesco De SantisFrancesco de Sanctis is assistant professor at the Sarajevo School of Science and Technology and works as consultant on justice sector monitoring and reform.


The BiH War Crimes Chamber and the laws applicable to war crimes trials in BiH

The War Crimes Chamber of Bosnia-Herzegovina (WCC) has been generally considered as a successful effort to prosecute crimes committed during the conflict in the former Yugoslavia at the domestic level (see, in this regard, reports from OSCE and ICTJ). The WCC closely cooperates with the ICTY and received most of the cases transferred by the Hague Tribunal to domestic jurisdiction as part of its completion strategy; it is established within the Court of BiH and is a wholly domestic institution. As such, its work falls under the review of the European Court of Human Rights (ECtHR), which in  a Judgment by the Grand Chamber in Maktouf-Damjanović vs. Bosnia-Herzegovina issued in July 2013 found that the WCC had violated Art. 7 of the ECHR in connection with the convictions of the applicants due to the retroactive application of criminal legislation in their war crimes cases. This post will underline some serious problems related to the interpretation of this Judgment and to its implementation by the WCC with regard to the processing of future cases and the re-opening of adjudicated cases which may be deemed to fall under the Judgment’s scope.

In order to understand the content and relevance of Maktouf-Damjanović it is necessary to briefly outline the substantial criminal laws applied in atrocity crimes proceedings held in BiH. The 1976 Criminal Code of the former Socialist Federal Republic of Yugoslavia (SFRY CC) was in force throughout the 1992-1995 conflict. Under this Code, war crimes and genocide could be punished with imprisonment from a minimum of 5 years (1 year in case of extraordinary mitigating circumstances) to a maximum of 15 years or, in the most serious cases, with the death penalty, which could be commuted to 20 years imprisonment. This Code has been and is still generally applied by courts at the entity level in war crimes cases; since the death penalty is not anymore applicable in BiH after the 1995 Dayton Agreement, these courts have been imposing sentences up to 15 years for war crimes. In 2003 this legal framework changed as the Office of the High Representative (OHR) imposed a Criminal Code at the State level (BiH CC) which punishes war crimes, genocide and crimes against humanity with imprisonment from a minimum of 10 years (5 years in case of extraordinary mitigating circumstances) to a maximum of 45 years. This Code has been applied in the overwhelming majority of cases processed by the WCC. Since the beginning, however, the lawfulness of its application by the WCC has been a matter of intense legal discussion and controversy at the political level, to the extent of becoming one of the issues at the center of the EU-BiH Structured  Dialogue on Justice. (more…)

No Detente on Prisoner Voting and the ECHR in the UK

In the wake of the European Court’s judgment last May in Scoppola v. Italy, in which it more or less gutted its prior cases on prisoner voting rights (see my previous post on prisoner voting and strategic judging for more background), the UK governmental structures have been debating how to respond in their long-drawn out altercation with Strasbourg. Scoppola essentially gave the UK an opening to end the dispute – all it needed to do to comply with the Court re-interpreted judgment in Hirst was to pass some essentially cosmetic changes to its existing legislation that would ‘strike the proper balance’.

The opportunity is not yet completely lost, if cooler heads prevail. The UK government is of course not monolithic, and some parts thereof would rather put the whole thing to rest. But that process is political more than it is legal, and after today’s performance by David Cameron at the PM questions in the House of Commons, a detente between the UK and Strasbourg seems increasingly unlikely.

“No one should be under any doubt – prisoners are not getting the vote under this government,” he told MPs, in answer to a leading question by a Labour MP strongly urging him to continue defying the Court. The whole exchange is available at BBC News, and the short video bears watching, if nothing else then for witnessing the extent of the cheers among the assembled parliamentarians in support of the Prime Minister’s position.


Content-based Speech Restrictions in the European Court

Last week the Grand Chamber of the European Court of Human Rights delivered a major judgment in the case of Mouvement raëlien suisse v. Switzerland, no. 16354/06. This will certainly prove to be a leading European case with regard to content and viewpoint based restrictions on the freedom of expression in a public space. It is also notable because the Court was very severely split – 9 to 8 – which is not only a rarity, but highlights the controversial nature of the case and its uncertain precedential value for the future.

Very briefly, these were the facts: the Raelian movement is an organization that claims that aliens have visited the Earth, leaving us a message or two; that science (well, their science) should replace religion; and that the best form of government is a ‘geniocracy’, i.e. rule by the highly intelligent over the masses of the mediocre. The organization has been labeled a cult by many due to the demands it makes of its members; it has also been the subject of several child abuse scandals, since the organization’s founder apparently thought that children should be sexualized, and some of the organization’s leaders practiced what he preached. Today, however, the organization disavows that earlier part of their doctrine.

Here’s the Court’s own description of the particular facts of the case:

14.  On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97 cm by 69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth.

15.  On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral.

16.  In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”.

The decision was later upheld by the Swiss courts, essentially on the same grounds.

The question that the European Court was to answer was thus whether this ban was in accordance with the freedom of expression under Article 10 ECHR. Notably, the restriction on expression was based on both the content and the viewpoint of the message, seen not only as the pretty anodyne poster, but as the poster taken together with the content of the website to which it refers. However, the restriction on expression was not total, but was confined to the organization’s use of a dedicated public space, to which individuals do not have unconditional or unlimited access.


Prisoner Voting and Strategic Judging

Today the European Court of Human Rights delivered its Grand Chamber judgment in Scoppola v. Italy (no. 3), App. No. 126/05). This is the Court’s latest foray into the prisoner voting saga, starting from its GC judgment in Hirst that the blanket ban on prisoner voting in the UK was disproportionate and a violation of Art. 3 of Protocol No. 1 to the Convention. A press release summarizing the judgment is available here; the judgment itself here. The GC ruling in Hirst was followed by several other cases, which I’ll not look in detail here – readers may wish to consult this post by Adam Wagner, as well as his excellent take on today’s judgment

What makes the whole prisoner voting issue before Strasbourg so interesting is how it reflects on the relationship between law and politics, and on the nature of judging. It is in the nature of human rights cases that resolving them almost invariablity requires value judgments, rather than some blind application of the law. Art. 3 of Protocol No. 1 does not give a clear answer one way or another as to whether a blanket ban on prisoner voting would be disproportionate; that is inevitably a moral and policy decision that the (international) judge needs to take. That decision may well lead to conflit with legislators. In order to avoid such conflicts as much as possible, the Court has normally paid much deference to domestic processes in the absence of a European consensus on the issue. When such consensus existed it would force the few recalcitrant states to conform; in the absence of consensus it would normally allow each state to go its own way. In Hirst, however, the Court may have overreached. While much of the criticism of that decision in the UK was of the cartoonish Daily Mail-type, it nonetheless raised serious concerns about the Court overriding national legislators on morally contested matters on which it was not necessarily any more competent than the democratically elected legislators themselves.