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

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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.

The legal arguments against the application of the BiH CC in place of the SFRY CC rely on the observance of the nullum crimem, nulla poena sine lege and lex mitior principles. Under these rules, the  substantial law in force at the time of the commission of the crime has to be applied unless it is possible to enforce a subsequent law which is more lenient to the defendant. Accordingly, the SFRY CC should be applied with the exclusion of the death penalty which, as already mentioned, was abolished in 1995. On the other hand the WCC has alternatively relied on two arguments to reason its compliance with national and international law: (a) the BiH CC is retroactively applicable as being more lenient then the SFRY CC since it does not foresee the death penalty, which at the time of the commission of the crime was still applicable; (b) the application of the BiH CC can be justified as an exception to the principle of legality under Art. 7(2) of the ECHR.

The Maktouf-Damjanović Judgment: what is its scope?

Maktouf-Damjanović addresses this legal dispute, although, as I will explain, only in part. The first applicant was convicted in 2006 to 5 years of imprisonment for taking of hostages as a war crime. The second applicant was convicted in 2007 to 11 years for torture as a war crime. In both cases, the WCC applied the BiH CC. The Grand Chamber underlined that the applicants had received sentences fitting within the lower range of punishment foreseen under the BiH CC. It held, therefore, that in these specific cases, “there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage” (para. 70) since the applicants could have received lower sentences had the sentencing provisions of the SFRY CC been applied.  Accordingly it found that the applicants’ rights under Art. 7 had been violated since “it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty” (ibidem).

The Judgment dismissed BiH’s argument mentioned above under (a) as not relevant in the instant case since the death penalty was applicable under the SFRY CC only in relation to the most serious instances of war crimes, whereas the two applicants did not belong to this category of perpetrators (see para. 69). As to argument (b), the Grand Chamber held that from a reading of the travaux préparatoires on Art. 7(2) it is “clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity” (see para. 72).

The application of this Judgment in relation to other war crimes cases with sentences fitting in the lower range of punishment is not controversial. As recognized by the Grand Chamber (see para. 29), the WCC in 2009 changed its initial jurisprudence and started applying the SFRY CC in the, indeed limited, number of cases belonging to that category. The rest of this post deals instead with the significance of Maktouf-Damjanović in relation to the very high number of sentences above 15 years of imprisonment imposed by the WCC under the BiH CC. Since this category of sentences belongs to the higher range of punishment, the Judgment does not explicitly address their legality. This issue, on the other hand, presents complex legal problems and is a challenge to the effectiveness and credibility of war crimes trials in BiH.

Problems affecting the implementation of Maktouf-Damjanović

Uncertainty in the definition of the Judgment’s scope is manifest in the opposite stances taken by the WCC and the Constitutional Court of BiH on this matter. The former declared in a press release that the ECtHR Judgment implies that “when it comes to more serious forms of war crimes, the application of the 2003 Criminal Code is not in contravention of the Convention”. The latter, on 24 October 2013, interpreting the same Judgment, overturned ten WCC’s judgments, including at least one carrying genocide convictions with sentences above 30 years and ordered the WCC to apply the SFRY CC in all these cases. While the Constitutional Court’s sweeping interpretation of Maktouf-Damjanović can be praised as being cautious and an expression of favor rei, it is nevertheless questionable from the point of view of compliance with generally recognized rationales and principles in sentencing. Punishing perpetrators of multiple and serious violations of human rights with sentences not exceeding 15 years, as foreseen under the SFRY CC, may be considered as inconsistent with the principles of proportionality, parity and the purpose of deterrence. Admittedly, the precise content of these principles is ill-defined and needs to be flexibly understood. On the other hand, it is difficult to deny that manifest disparity between sentences up to 45 years for the murder of a human being in time of peace and much more lenient ones for the same conduct as war crime or genocide sends a clear message to the society; namely that crimes committed during a conflict are less serious and more forgivable then those committed in ordinary times.

An extensive interpretation of Maktouf-Damjanović clashes with basic concepts of justice and fairness also for another reason: while the Judgment may apply to serious war crimes and genocide cases, it expressly does not affect sentences for crimes against humanity. In Maktouf-Damjanović the Grand Chamber referred to and upheld a previous Decision on Admissibility (Simsić vs. BiH) stating that the conviction of the applicant to 14 years of imprisonment for crimes against humanity under the BiH CC was not in violation of Art. 7. While this category of crimes was clearly prescribed under international law at the time of the conflict in BiH, it was not foreseen under the SFRY CC. Distinguishing Simsić from Maktouf-Damjanović, the Grand Chamber agreed that in crimes against humanity cases the WCC has “no other option but to apply the 2003 Criminal Code” (see para 55). This is a sound conclusion; it however has the disturbing consequence of subjecting those convicted for crimes against humanity to sentences up to 45 years under the BiH CC, while leaving those convicted for war crimes and genocide under the more favorable SFRY CC sentencing regime. The prevailing view in international law is that, for the purpose of sentencing, there is no hierarchy among atrocity crimes. The combined effect of Simsić and Maktouf-Damjanović therefore results in an unequal and illogical sentencing policy which discriminates those convicted for crimes against humanity.

Lastly, it is worth pointing out that the Grand Chamber’s Judgment deals with the complex and multifaceted notions of nullum crimem, nulla poena sine lege and lex mitior, the status and application of which are still unsettled issues in international law, particularly in connection with  international crimes. In this regard, it may suffice to mention that the ECtHR case-law until 2010 constantly held Art. 7(2) to be an exception to its first paragraph in connection with the trial and punishment of individuals for acts which , at the time of their commission, were criminal according to general principles of law (see Naletilić vs. Croatia of 2000 and Kolk and Kislyiy vs. Estonia of 2006). With the 2010 Grand Chamber’s Judgment in Kononov vs Latvia, the Court changed its understanding of Art. 7(2) in the opposite direction reflected in Maktouf-Damjanović. Furthermore, it is only in 2009 that the ECtHR held, in Scoppola vs. Italy, that the right of an offender to application of a more favorable criminal law (lex mitior principle) was protected under Art. 7(1). Before that Judgment, the Court had constantly excluded that Art. 7 could afford that right.

Against this background of unsettled rules, rapidly evolving case-law and clashes between basic   principles of law such as nulla poena sine lege and lex mitior on the one hand and fairness of sentencing on the other, BiH judicial institutions will surely have a difficult task in implementing Maktouf-Damjanović. In such context one would have hoped for more guidance by the ECtHR with regard to the compatibility of sentences fitting in the higher range of punishment with Art. 7. This is perhaps one of those cases in which obiter dicta would have been precious if not necessary.

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Maya says

November 17, 2013

Excellent post, thanks so much! I have one question relating to this fragment:

"On the other hand, it is difficult to deny that manifest disparity between sentences up to 45 years for the murder of a human being in time of peace and much more lenient ones for the same conduct as war crime or genocide sends a clear message to the society;"

What are these sentences of up to 45 years in peacetime? Is that in BiH's current criminal code? If so, then one has to also ask whether the proportionality principle cuts both ways -- maybe the ECHR should also take a look at these peacetime offences, and what kind of punishment is prescribed for them.

On a more general level: while I agree with your points about proportionality and consistency, I think the Constitutional Court's judgment is a welcome development because international courts have, for far too long, gotten away with blatant violations of the lex retro non agit principle. The critical difference in this case is that the War Crimes Chamber is a domestic institution, and thus you have external oversight. With the ICTY, and now the ICC and STL, these courts have proven, time and again, unaccountable to anyone, sitting as judges in their own cases when it comes to jurisdictional and 'general principles of law' challenges brought by defendants (which the courts then always wish away with thinly veiled prudential arguments). So, again, while I sympathize with your concerns about the coherence and consistency of the ECHR judgment, especially in terms of its implementation in light of the Constitutional Court's ruling, I think this is a welcome development in terms of State practice -- hopefully sooner or later international criminal tribunals will have to take cognizance of such developments and stop ignoring these principles in their cases.

Said says

November 18, 2013

A very insightful analysis, Francesco. I know your intention was to give an overview of relevant issues, which you did eloquently, and that for this reason you did not want to go into too much detail. So, without any intention to supplement your post in any way, allow me to respectfully add some context in relation to the most recent decisions of the BiH Constitutional Court, especially with respect to that part of your post where you talk about "clear message to the society".

In its Appeal Judgment of 9 September 2009, in the most complex trial ever to be conducted before the the War Crimes Chamber of Bosnia-Herzegovina, the WCC found a number of defendants, including Milenko Trifunovic, guilty of having: "... escorted a column of the captured Bosniak men to the warehouse of the Farming Cooperative Kravica... more than one thousand of them... and killed them in early evening hours in a way that Milenko Trifunovic and Aleksandar Radovanovic fired their automatic rifles at the captives, Brano Dzinic threw hand grenades at them, and Slobodan Jakovljevic and Branislav Medan took positions at the rear of the warehouse standing guard and preventing any escape of the captives through the windows." Under this Judgment defendant Milenko Trifunovic was convicted of aiding and abetting the crime of Genocide and sentenced to 33 years in prison.

About four years later, following the ECtHR's Decision in the Maktouf-Damjanovic case, deciding on Milenko Trifunovic's appeal from the WCC's Judgment, the BiH Constitutional Court in its recent decision of 22 October 2013 found a violation of Article 7(1) of the ECHR. (Paragraph 48: "... Given that under the CC SFRY it was possible to impose on the applicant the maximum sentence of 20 years and that in the concrete case, by the application of the CC BiH, he received a sentence of long-term imprisonment for the term of 33 years, the Constitutional Court notes that retroactive application of the CC BiH was to the applicant's detriment in relation to sanctioning, which is contrary to Article 7 of the European Convention."(my translation)

Now, the obvious question is whether the ECtHR indeed intended for its instruction from Maktouf-Damjanovic to apply even in the cases of most serious crimes, including genocide, which is what the BiH Constitutional Court is reading from the ECtHR's decision, or has the Constitutional Court gone too far in blindly applying the logic from Maktouf-Damjanovic across the board to all applications before it, especially in the absence of any "guidance by the ECtHR with regard to the compatibility of sentences fitting in the higher range of punishment with Art. 7".

Francesco de Sanctis says

November 18, 2013

Dear Maya,

thanks for comment, I am glad you found the post interesting. Regarding your question: yes 45 years is the maximum sentence under the current BiH Criminal Code. I doubt that the ECtHR would question the lawfulness of long term imprisonment as such. After all, albeit harsh, this punishment in line with the sentencing policies of many European Countries. On the other hand, the ECtHR recently set some restrictions to the manner in which life imprisonment is imposed (see Vinter and others vs UK); this is a sign that the Court is actually starting to enter into the merits of national sentencing policies, although only in terms of their compatibility with art. 3.

Regarding your general comment, I agree that international courts enjoy larger leeway then national courts in applying the principle of legality, although I would not come to the point of qualifying their practice as a "blatant violation" of that principle.
In my view, the diverging stances of the ECtHR and BiH Constitutional Court on the one hand, and the ICTY and WCC on the other can be better understood as a vivid example of the clash between two differing interpretations of the principle of legality; namely, borrowing Cassese's terminology, the "strict legality" stance, vs. the "substantive justice" one. As Cassese wrote, International Criminal Law is gradually moving from the latter to the former doctrine. In this sense, the Maktouf-Damjanovic dispute shows how this transition is far from smooth and requires a lot of thinking in order to reconcile the demands of justice and those of legality.

Francesco de Sanctis says

November 18, 2013

Dear Said,

thanks for recognizing the inherent limitations of a blog format when it comes to entering into details. The problems I briefly outlined indeed require a much broader and more thoughtful discussion, which we can only attempt to initiate through your and other readers' comments. Your comment shows how sensitive is this issue, especially when it comes to the punishment of massive crimes. With regard to the key question you posed in the last paragraph, my view is that the BiH Constitutional Court, when deciding on Trifunovic appeal, went beyond the expressed scope of the ECtHR's Judgment. However, it may have very sound reasons for doing that. In 2007 the Constitutional Court held that Maktouf's conviction under the BiH CC was not in violation of art. 7. It reasoned its stance mainly on grounds that art. 7(2) applies as an exception to the first paragraph. After all that was the prevailing view within the ECtHR at that time. Now, in view of the new stance on art. 7(2) taken by the Grand Chamber, there is a concrete possibility that the ECtHR would consider also sentences above 20 years to be in violation of Art. 7 on grounds that the SFRY CC, deprived of the death penalty, is a more favorable law for the defendants under the lex mitior principle. In this view, it is very likely that the Constitutional Court by adopting an extensive interpretation of Maktouf-Damjanovic wanted to prevent further damage. Of course the wisdom of this choice is debatable, but at least we should recognize that there is a logic behind that.

Said says

November 21, 2013

Again not disagreeing with anything you say in your response to my comment, I would like to add some context in relation to actions of the Constitutional Court of BiH over the last three months following the ECtHR's judgment in Maktouf-Damjanovic.

On 27 september 2013, in the first decision following the ECtHR's judgment in Maktouf-Damjanovic in the case of application of Zoran Damjanovic, the Constitutional Court noted in paragraph 52 of its decision: "The Constitutional Court concludes that the challenged verdicts of the Court of BiH have violated Article 7(1) of the European Convention, due to the erroneous application of law in relation to the guilt and punishment, thus the challenged verdicts must be quashed in full." Having read the decision I should add that I did not find anywhere an explanation as to the guilt part. Besides, the Constitutional Court's conclusion on "erroneous application of law in relation to the guilt" based on Maktouf-Damjanovic seems to be in collision with paragraph 67 of the ECtHR Judgment in that case wherein it is stated that "[t]he lawfulness of the applicants' convictions is therefore not an issue in the instant case."

In its next decision of 22 October 2013, the one that I commented on above, the application of Milenko Trifunovic convicted of genocide, the Constitutional Court established violation of Article 7 of the European Convention quashing, now only the second instance judgment of the Court of B-H (dropping the issue of guilt altogether) and instructing the Court to "render a new decision in accordance with Article 7(1) of the European Convention". Now, as you know, in the meantime, Milenko Trifunovic has been released from prison together with four other persons convicted of genocide in the Kravice case on account of the fact that the basis for keeping him in prison (second instance judgment) is no longer in effect and that custody imposed on him following the pronouncement of the final judgment has expired and under the procedural code cannot be extended any longer.

And finally, on 20 November 2013, the Constitutional Court of B-H published a press release in which the President Valerija Galic, referring to the latest decisions, said among other things: "In these decisions, the Constitutional Court overturned the Appeals Court of BiH judgments which violated the stated constitutional right of the appellants and returned the cases to the Court of BiH to adopt a new decision in accordance with the standards of Article 7 of the European Convention. In doing so, the Constitutional Court did not decide whether the proceedings as a whole need to be repeated, did not decide on the termination of the imprisonment and release of the appellants nor did it decide on the procedure by which the Court of BiH is to issue a new decision in each case, as those are the matters within the jurisdiction of the Court of BiH and are regulated by the substantive and procedural laws at the state level."

Now, the reason why I outlined these above is to point to a couple of issues that I find problematic. First, how did the issue of "erroneous application of law in relation to the guilt" find its place in the Damjanovic decision when it is quite clear that all the Constitutional Court did in the case of this application was focus on the violation of Article 7(1) found in Maktouf-Damjanovic? Then, why was the issue of guilt dropped from the subseqsuent decision in the case of Trifunovic's application? Why did the Constitutional Court of B-H in the case of Trifunovic's application go beyond the scope of the ECtHR's Judgment in the case, to use ECtHR's terminology, of "the most serious instances of war crimes" without any guidance from the European Court and even more importantly without providing any reasoning other than the logic from Maktouf-Damjanovic and then Damjanovic, which are substantially different from Trifunovic case as Maktouf and Damjanovic were not "held criminally liable for any loss of life"? And finally, why is there no explanation in the decisions for this inconsistency or a glaring lack of reasoning for that matter, apart from the statement by the Registrar of the Constitutional Court of B-H, Zvonko Mijan that "decisions of the Constitutional Court have to be implemented"?

I know that some of this is repetitition from previuous discussion, but it was done in order to track the actions of the Constitutional Court that, in my view, have been instrumental in leading to a course of events that question not only the basic principles of "proportionality, parity and the purpose of deterrence" as you indicate, but also the very purpose of conducting war crimes trials.

Moving on to the press release of the Constitutional Court of B-H, especially the part where it is stated: "In doing so, the Constitutional Court... did not decide on the termination of the imprisonment and release of the appellants...", the Constitutional Court seems to be saying that its decisions are entirely inconsequential in terms of what happens further down the line to these applicants in an attempt to wash its hands off the responsibility for the fact that 5 persons convicted of genocide have been released from prison awaiting the reopening of the proceedings. It was not us, it was the Court of BiH that released them, which to say the least is not something we should be hearing from the President of the Constitutional Court of B-H.

To conclude this already too long reply, I think that "no loss of life" factor was key for the ECtHR's decision on violation of Article 7(1) in Damjanovic and Maktouf and that hypothetically speaking it is highly unlikely that deciding on the Trifunovic case, with "loss of life" exceeding one thousand people, the ECtHR would establish the violation of Art. 7(1). This way, an overzealous and judging by President Galic's remark concerning the ban on "... the retroactive application of the law without exception, and... the obligation to apply the more lenient criminal law in any case, regardless of the nature and gravity of the offense" highly dubious application of the instruction from Maktouf-Damjanovic led to an outcome, which surely does not serve the interests of justice. Quite the contrary, it serves the interests of those more interested in impunity of war criminals and preventing justice from running its course.