Publications: OSCE – Harmonised Application of Criminal Code
29 October 2008 The OSCE mission in Bosnia and Herzegovina has issued a publication in which it deals with the non-existence uniform application of the Criminal Code in war crimes proceedings and gives recommendations for future cases.
Prosecution and courts in the two entities and District of Brcko ought to
apply the Criminal Code of Bosnia and Herzegovina in war crime cases, instead of
the current practice of applying several different codes. This is one of the
conclusions of a report published by the OSCE Mission entitled "On the road to
harmonised application of the existing law in war crime cases before the courts
in Bosnia and Herzegovina", which was presented in Sarajevo on October 29 this
year.
At war crime trials, conducted in Bosnia and Herzegovina,
two criminal codes are applied. One of them is the Criminal Code of Bosnia and
Herzegovina, which entered into force in March 2003, and the second one is the
criminal code of the former Yugoslavia, which was in force when the crimes were
committed, i.e. between 1992 and 1995.
The former code is applied at trials conducted before the State Court,
while the latter one, which was taken over from the former Yugoslavia, is
applied at most trials conducted before courts in the Republika Srpska, RS,
District of Brcko and Federation of Bosnia and Herzegovina (FBiH).
Some courts in the FBiH apply the Criminal Code of the Federation passed
in 1998.
"These three criminal codes are substantially different. The Criminal
Code of Bosnia and Herzegovina provides a more complete definition of war crimes
in comparison to the two other codes. Besides this, this Code is the only one
containing provisions on crimes against humanity, defining command
responsibility and excluding a possibility of using "an order by a superior
officer" in order to defend someone,"" says the OSCE report.
As an example it mentions a case when a cantonal court
acquitted a person of the charges for having failed to punish the guards, who
physically mistreated prisoners of war. The person was acquitted of the charges
because the Code, which was applied in that case, did not define command
responsibility at all.
According to the OSCE, the Criminal Code of Bosnia and
Herzegovina should be applied because it would contribute to "the efficiency of
the judicial system" and harmonisation of the punitive policy in the entire
country.
Various laws, being applied at war crime trials,
prescribe different sentences for perpetrators. The report indicates that the
State Court pronounces more severe sentences than the entity level courts.
As per the codes applied in the Federation and Republika Srpska, courts
sentence perpetrators of war crimes against civilians to seven years'
imprisonment. In many cases the sentence is even less severe, and corresponds to
a sentence for severe theft.
As indicated in the report, these sentences "give an impression that
crimes committed during the course of the armed conflict are not so big as the
ones committed in the period of peace".
"Not only that pronouncing non-uniform punishments affect
the impression on the fairness of the judicial system as a whole, but they also
create space for speculations concerning the possibility that such different
practices are caused by a political or national bias," the report indicates.
According to the OSCE report, the varying practices in processes
conducting before the entity courts are "probably caused by non-existence of
state-level courts", which might harmonise the court practices of all courts in
Bosnia and Herzegovina".
"Without such a court, the different interpretations of
laws, applied in war crime cases, may continue endangering the principle of
legal security and equality before courts," the report states.
Besides this, the OSCE Mission in Bosnia and Herzegovina gives a
recommendation for organising the comprehensive education of staff employed in
the entity courts and prosecutions, dealing with war crimes cases, in the field
of international law and court practices applied at the International Criminal
Tribunal for the former Yugoslavia, the Bosnian State Court and other state
courts.
The full report is available at http://www.oscebih.org/documents/12615-eng.pdf.
Justice Report is a
specialist reporting agency focusing on war crimes trials taking place before
local courts; development of the local legal system; and efforts to come to
terms with the past.
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The opinions expressed in Balkan Insight are those of the authors and do not necessarily represent those of the Balkan Investigative Reporting Network
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