MAKTOUF v. BOSNIA AND HERZEGOVINA

7 September 2010

FOURTH SECTION

Application no. 2312/08
by Abduladhim MAKTOUF
against Bosnia and Herzegovina
lodged on 17 December 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Abduladhim Maktouf, is an Iraqi citizen who was born in 1959. He is represented before the Court by Mr A. Lozo, a lawyer practising in Travnik, and Mr I. Mehić, a lawyer practising in Sarajevo.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 19 October 1993 the applicant intentionally helped a third party to abduct two civilians in Travnik in order to exchange them for members of the ARBH forces captured by the HVO forces.

On 1 July 2005 a Trial Chamber of the Court of Bosnia and Herzegovina (“the State Court”) found the applicant guilty of aiding and abetting war crimes against civilians (Article 173 § 1 (e) in conjunction with Article 31 of the 2003 Criminal Code of Bosnia and Herzegovina) and sentenced him to five years' imprisonment. On 24 November 2005 an Appeals Chamber of the State Court quashed the first-instance judgment and scheduled a fresh hearing. On 4 April 2006 the Appeals Chamber, which included two international judges, found the applicant guilty of the same offence and sentenced him to five years' imprisonment. As regards the sentence, it held as follows (the translation has been provided by the State Court):

“Considering the degree of criminal responsibility of the Accused and consequences of the criminal offence, as well as the fact that the Accused was an accessory to the commission of the criminal offence, and considering the mitigating circumstances in favour of the Accused, the [Appeals Chamber] applied the provisions on reduction of punishment and reduced the sentence to the maximum extent possible, applying the provision of Article 50 § 1 (a) of the [2003] Criminal Code of Bosnia and Herzegovina, sentencing him to imprisonment for a term of five years, being of the opinion that the pronounced sentence can fully achieve the purpose of punishment and that the pronounced sentence will influence the Accused not to commit other criminal offences in future.”

On 19 June 2006 the applicant lodged an appeal with the Constitutional Court of Bosnia and Herzegovina. He relied, among other Articles, on Articles 6, 7 and 14 of the Convention. On 30 March 2007 the Constitutional Court found no violation of any of the Articles invoked. The decision was served on the applicant on 23 June 2007.

As regards the independence of the State Court under Article 6 of the Convention, the Constitutional Court held as follows (the translation has been provided by the Constitutional Court):

“39. In determining whether a tribunal can be considered to be independent, the Court has had regard to the manner of appointment of judges and the duration of their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence (see ECHR, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, paragraph 78). It follows from the aforesaid that first of all, the court must be independent from the Executive and its decision must be based on its free view, facts and adequate legal basis. Secondly, the judges do not have to be appointed for lifetime, but it is necessary to secure that the authorities cannot remove judges from their office in an arbitrary manner and on an inadequate basis (see ECHR, Zand, D&R 15 (1979) Report of 12 October 1978, page 70). Thirdly, any appearance of partiality must be avoided.

40. The jurisprudence of the European Court of Human Rights resulted in the following views: The presence of persons with judicial and legal qualifications in the court constitutes a strong indication of impartiality (see ECHR, Le Compte v. Belgium judgment of 23 June 1981, paragraph 57). The mere fact that the Executive appoints the judges does not necessarily mean that the court is not independent (see ECHR, the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, paragraph 79). In establishing the violation of Article 6 of the European Convention, it would have to be shown that that the practice of the authorities is as a whole unsatisfactory, or that at least the establishment of the particular court deciding a case was influenced by improper motives (see ECHR, Zand, D&R 15 (1979) Report of 12 October 1978, page 70).

41. As to the risk of partiality in the instant case, the appellant points to 'the entities that made the appointment of the judges through imposed non-democratic actions'. The appellant also alleges that 'two members were appointed by the [High Representative] so that it can be concluded that they have been partial in terms of taking a fair decision.' The appellant alleged that 'the court was not independent as two members were international judges and the third one had not sufficient professional experience (...) so that they could not take a fair decision'. As to the status of the judges, the appellant alleges that the process for their 'replacement has not been defined although it is necessary in order to establish their independence.'

42. The Constitutional Court recalls that the Law on the Court of Bosnia and Herzegovina (Official Gazette of BiH Nos. 29/00, 16/02, 24/04, 3703, 37/03, 42/03, 4/04, 9/04, 35/04 and 61/04) whose initial text was imposed in a Decision taken by the High Representative and subsequently adopted by the Parliamentary Assembly of BiH, provides, in Article 65, that during the transitional period that cannot be longer than five years, the Panels of Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption shall be composed of national and international judges. The Criminal and Appellate Divisions can be composed of several international judges. The international judges must not be the citizens of BiH or any other neighbouring state. International judges will act in the capacity as panel judges in accordance with the relevant provisions of the Criminal Procedure Code of Bosnia and Herzegovina and in accordance with the provisions of the Law Protection of Witnesses and Vulnerable Witnesses of BiH.

43. The High Representative '(...) in the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, (...) according to the terms of which the High Representative shall facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation (...), noting that the communiqué of the Steering Board of the Peace Implementation Council issued at Sarajevo on 26 September 2003 stated that the Board took note of the UN Security Council Resolution 1503, which, inter alia, called on the International Community to support the work of the High Representative in setting up the war crimes chamber (...), noting the Joint Recommendation for the Appointment of International Judges signed by the Registrar of the Registry (...) and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (...), bearing in mind the relevant provisions of the Law on the Court of BiH,' on 24 February and 28 April 2005, took Decisions on Appointment of International Judges Finn Lynghjem and Pietro Spera to Section I for War Crimes of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina.

44. According to the aforementioned Decisions on Appointment, international judges shall serve for a term of two years and they shall be eligible for reappointment as prescribed by law. International judges shall not discharge duties which are incompatible with their judicial service. All other requirements concerning judicial duty referred to in the Law on the Court of Bosnia and Herzegovina shall apply to these appointments to the greatest extent possible. The international Registrar of the Registry shall inform the High Representative of any event which may prevent the judge from discharging his duties. During the mandate, the judge shall comply with all standards relating to the professional conduct as prescribed by the Court of BiH. The appointed international judge shall discharge his duties in accordance with the laws of Bosnia and Herzegovina and shall take decisions according to his/her knowledge, skills and in a conscientious, responsible and impartial manner, strengthening the rule of law and protecting individual human rights and freedoms guaranteed by the Constitution of Bosnia and Herzegovina and European Convention.

45. The Constitutional Court is informed of the 2005 Opinion of the Venice Commission relating to the constitutional situation in Bosnia and Herzegovina. A part of that Opinion relating to the decisions taken by the High Representative and the possibility of lodging appeals against them, i.e. their judicial review is set forth in the appeal. The Constitutional Court emphasises that the obligations of Bosnia and Herzegovina in public international law to cooperate with the High Representative and to comply with the decisions of the UN Security Council cannot determine the constitutional human rights within the scope of competence of BiH. Article II of the Constitution of Bosnia and Herzegovina guarantees the highest level of internationally recognized human rights and fundamental freedoms which shall apply directly and shall have propriety over all other law. However, the appellant points out that the appointed international judges 'exclusively depend of the entity which appointed them'. The appellant explains his allegations by pointing out that 'they wanted to satisfy expectations of the international prosecutors who participated in the procedure by presenting the indictment'.

46. The competences of the Divisions of the Court of BiH to which international judges are appointed include beyond any doubt certain matters derived from international law. The acknowledgment of the supranational nature of international criminal law, established through the case-law of Nuremberg and Tokyo Military Tribunals, Tribunal in The Hague and Tribunal for Rwanda, includes international criminal tribunals as well. This certainly includes the situation in which certain number of international judges is appointed to national courts. The High Representative appointed international judges to the Court of BiH in accordance with the powers vested in him according to the UN Security Council's resolutions adopted in accordance with Chapter VII of the UN Charter and the Recommendation of the Registry pursuant to the Agreement of 1 December 2004, which was also signed by the President of the High Judicial and Prosecutorial Council as an independent body competent to appoint national judges, which is particularly important as it implies involvement of that body in the procedure preceding the appointment.

47. The Constitutional Court holds that the international judges, who were the members of the Panel which rendered the appealed verdict, were appointed in the manner and in accordance with the procedure complying with the standards relating to the fair trial provided for in Article 6 of the European Convention. In addition, the Law on Court of BiH, the Agreement of 1 December 2004 and decisions on appointment have created the prerequisites and mechanisms which secure the independence of judges from interference or influence by the executive authority or international authorities. The judges appointed in this manner are obliged to respect and apply all the rules which generally apply in national criminal proceedings and which are in conformity with the international standards. The term of office of these judges is defined, during which their activities are controlled. The motive behind their nomination was the need to establish and to strengthen national courts in the transitional period and to support the efforts of these courts to establish responsibility for serious violations of human rights and ethnically motivated crimes. It is therefore aimed at providing independence and impartiality of the judiciary and at administering justice. Even the fact that the manner of appointment was changed by the subsequent Agreement of 26 September 2006 so that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina has become responsible for the appointment of international judges, does not itself automatically imply that their original appointments in the manner provided for at the time of the challenged verdicts was contrary to the principles of independence of the court in terms of Article 6(1) of the European Convention. The Constitutional Court holds that the appellant failed to submit convincing arguments and evidence in support of the allegations relating to the lack of independence of international judges. As to the appellant's allegations relating to the lack of independence of the national judge because of the fact that he is a person with 'insufficient experience', the Constitutional Court holds that these allegations are prima facie ill-founded and do not require any extensive examination. Taking into account all the aforesaid, the Constitutional Court concludes that the appellant's allegations relating to the lack of independence and related violation of the standards relating to the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention are unfounded.”

As regards Article 7 of the Convention, the Constitutional Court held (the translation has been provided by the Constitutional Court):

“62. A guarantee contained in Article 7 of the European Convention is one of the fundamental factors of the rule of law and it has a prominent place in the system of protection of the rights safeguarded by the European Convention. Article 7 of the European Convention ought to be interpreted and applied in a way providing for a successful protection against arbitrary prosecution, conviction and punishment.

63. In the case of Kokkinakis v. Greece (Series A, no. 260-A, page 22, paragraph 52), the European Court interpreted Article 7 of the European Convention in a way that that Article is not limited to prohibition of a retroactive application of the Criminal Code to the detriment of the applicant. Rather that article, more generally, contains a principle that only law can establish the existence of a criminal offense and that only law can prescribe a punishment (nullum crimen, nulla poena sine lege) as well as the principle that the Criminal Code should not be interpreted extensively to the detriment of the accused. In the mentioned case, the European Court specifically emphasized that this requirement of Article 7 of the European Convention is met when an individual referred to in the relevant provision, if necessary, by means of the Court interpretation, can understand which criminal activities and mistakes can make him/her subject to criminal prosecution.

64. The Constitutional Court accepts the interpretation of Article 7 of the European Convention as interpreted by the European Court and it points to the necessity of a requirement for quality, accessibility and foreseeability of the laws in force and a compelling element of the court interpretation for the sake of clarifying possibly disputable provisions and giving certain terms sense and purpose in the real life, which essentially is the essence of regulating human behaviour by laws. Thereby, Article 7 of the European Convention, in the opinion of the Constitutional Court, cannot be interpreted by preventing gradual development of the rules of criminal responsibility through court interpretations on a case by case basis, provided that the result of development is in accordance with the essence of a criminal offense and can be reasonably anticipated.

65. In this particular case, the appellant expressly alleges that according to the then applicable regulations the offence he was convicted of constituted a criminal offence at the time it was committed, but he expressly points to the application of the Substantive Law in his case and examines primarily the concept of a 'more lenient punishment', i.e. 'more lenient law'. He deems that the Criminal Code of SFRY, which was in force at the time of the commission of the criminal offense that the appellant was convicted of, and concerning which, inter alia, a death penalty was prescribed for the severest forms, is more lenient law than the Criminal Code of Bosnia and Herzegovina, which prescribes a punishment of a long term imprisonment for the severest forms of the criminal offense that the appellant was convicted of.

66. Vis-à-vis these allegations of the appellant, the Constitutional Court reckons that it is not necessary to explain in detail the concept of 'more lenient law', albeit it is true that the Statute of the International Criminal Tribunal for the former Yugoslavia, adopted by the UN in 1993, in Article 24 provides:

'1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia.

2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.'

67. Although adopted in 1993, the Statute in Article 1 provides:

'Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute.'

Thus, the validity of the provisions of the 1991 Statute is retroactive.

68. In practice, legislation in all countries of former Yugoslavia did not provide a possibility of pronouncing either a sentence of life imprisonment or long-term imprisonment, as often done by the International Criminal Tribunal for the former Yugoslavia (the cases of Krstic, Galic, etc.). At the same time, the concept of the SFRY Criminal Code was such that it did not stipulate either long-term imprisonment or life sentence but death penalty in case of a serious crime or a 15 year maximum sentence in case of a less serious crime. Hence, it is clear that a sanction cannot be separated from the totality of goals sought to be achieved by the criminal policy at the time of application of the law.

69. In this context, the Constitutional Court holds that it is simply not possible to 'eliminate' the more severe sanction under both earlier and later laws, and apply only other, more lenient, sanctions, so that the most serious crimes would in practice be left inadequately sanctioned. However, the Constitutional Court will not provide detailed reasons or analysis of these regulations but it will focus on the exemptions from obligations under Article 7 paragraph 1 of the European Convention, which are regulated, according to generally accepted opinion, by paragraph 2 of Article 7.

70. In such situation, the Constitutional Court holds that paragraph 2 of Article 7 of the European Convention refers to 'the general principles of law recognized by civilized nations', and the provision of Article III(3)(b) of the Constitution of Bosnia and Herzegovina establishes that 'the general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.' It follows from this provision that these principles constitute an integral part of the legal system in Bosnia and Herzegovina even without special ratification of conventions and other documents regulating their application and thus including the 1993 Statute of International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY, too (UN Document No. S25704).

71. Further, the Constitutional Court recalls the fact that the Constitution of Bosnia and Herzegovina is part of an international agreement and, although this fact does not diminish its importance, it clearly points to the position of international law within the BiH legal system so that a number of international conventions, such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Geneva Conventions I-IV Relative to the Protection of Civilian Persons in Time of War (1949), and its Additional Protocols I-II (1977), have a status equal to that of constitutional principles and are directly applied in Bosnia and Herzegovina. It is necessary to mention that the former SFRY was signatory to the said conventions and that Bosnia and Herzegovina, as an internationally recognized subject that declared its independence on 6 March 1992, accepted all conventions ratified by the former SFRY and, thereby, the aforementioned conventions which were subsequently taken over by Annex 4, i.e. the Constitution of Bosnia and Herzegovina.

72. The wording of Article 7 paragraph 1 of the European Convention is limited to the cases in which an accused person is found guilty and convicted of a criminal offence. However, Article 7 paragraph 1 of the European Convention prohibits neither the retrospective application of laws nor does it exclude the non bis in idem principle. Also, Article 7 paragraph 1 of the European Convention could not be applied to the cases such as those referred to in the War Damages Act of 1965 of the United Kingdom, according to which the common law rule, that stipulated compensation for private property in certain circumstances at time of war, was amended with retrospective effect.

73. The Constitutional Court notes that Article 7 paragraph 1 of the European Convention concerns criminal offences 'under national or international law'. Identically, the Constitutional Court particularly points to the interpretation of Article 7 provided in a number of texts dealing with this issue, and which are based on the European Court's position that a conviction, resulting from a retrospective application of national law, shall not constitute a violation of Article 7 of the European Convention if the conviction is derived from the crime under 'international law' at the time when it was committed. This position is particularly relevant for the present case as well as similar cases given that the essential point of the appeal refers to the application of primarily international law, i.e. the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Geneva Conventions I-IV Relative to the Protection of Civilian Persons in Time of War (1949), and its Additional Protocols I-II (1977), and not to the application of one or another criminal law, irrespective of their contents or stipulated sanctions.

74. In addition to the aforementioned and as to the retrospective application of criminal legislation, the Constitutional Court highlights that Article 7 of the European Convention, immediately after World War II, was formulated with particular intention to encompass the general principles of law recognized by civilized nations where the notion of 'civilized nations' was taken over from Article 38 of the Statute of the International Court of Justice, which is generally recognized as the third formal source of international law. In other words, the Statute of the International Court of Justice relates to the member states of this court and, the rules established by it, are regarded as source of law, which even concern the municipal authorities. Within the context of the Statute of the International Court of Justice, likewise Article 7 of the European Convention, it exceeds the framework of its national law and refers to the 'nations' in general. Accordingly, the Constitutional Court holds that the standards for their application should be looked for in this context and not just within a national framework.

75. The Constitutional Court further recalls that the travaux préparatoires refer to the formulation in paragraph 2 of Article 7 of the European Convention, which is calculated to 'make it clear that Article 7 does not have any effect on the laws which were adopted in certain circumstances after World War II and intended for punishment of war crimes, treason and collaboration with enemy, and it is not aimed at either moral or legal disapproval of such laws.' (see X v. Belgium, No. 268/57, 1 Yearbook 239 (1957); the translation in the third digest 34 Cf. De Becker v. Belgium No. 214/56), 2 Yearbook 214 (1958)). In fact, the wording of Article 7 of the European Convention is not restrictive and it has to be construed dynamically so to encompass other acts which imply immoral behaviour generally recognized as criminal according to national laws. In view of the above, the War Crimes Act of 1991 of the United Kingdom confers retrospective jurisdiction on United Kingdom courts in respect of certain grave violations of the laws such as murder, manslaughter or culpable homicide committed in German-held territory during the Second World War.

76. In the Constitutional Court's opinion, the aforementioned would not be inconsistent with Article 7 paragraph 1 of the European Convention as it clearly determines that war crimes are 'crimes according to international law' in terms of the universal context of jurisdiction to conduct proceedings so that the convictions for such offences, under the law which subsequently defined and determined certain acts as criminal and stipulated criminal sanctions, but which did not constitute criminal offences under the law that was applicable at the time the criminal offence was committed. In the case No. 51891/99, Naletilić v. the Republic of Croatia, the European Court of Human Rights took a decision on 4 May 2000. It follows from the said decision that the applicant was charged by the Prosecutor's Office of the International Criminal Tribunal for the former Yugoslavia with war crimes committed in the territory of Bosnia and Herzegovina and that he submitted identical complaints as those of the appellant in the present case, i.e. he pointed to the application of 'more lenient law', i.e. he highlighted that the criminal Code of the Republic of Croatia stipulates a more lenient criminal sanction than the Statute of the International Criminal Tribunal for the former Yugoslavia and he specified the application of Article 7 of the European Convention. In its Judgment, the European Court of Human Rights considered the application of Article 7 of the European Convention and underlined the following: 'As to the applicant's contention that he might receive a heavier punishment by the ICTY than he might have received by domestic courts if the latter exercised their jurisdiction to finalize the proceedings against him, the Court notes that, even assuming Article 7 of the Convention to apply to the present case, the specific provision that could be applicable to it would be paragraph 2 rather than paragraph 1 of Article 7 of the Convention. This means that the second sentence of Article 7 paragraph 1 of the Convention invoked by the applicant could not apply. It follows that the application is manifestly ill-founded ... and, therefore, must be rejected...'

77. Finally, the Constitutional Court recalls that Nuremberg and Tokyo War Crimes Trials were conducted in 1945 and 1946, after World War II, for the crimes that were only subsequently, i.e. by the Geneva Convention, defined as acts amounting to war crimes, crimes against humanity, crimes of genocide, etc. and which defined aggressive war as an 'international crime', as confirmed by the International Law Commission in its Yearbook of 1957, Vol. II. Related discussions on the principle 'nullum crimen nulla poena sine lege' were held at that time, too. The same applies to the 1993 Statute of International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY (UN Document No. S25704).

78. It is completely clear that the concept of individual criminal responsibility for acts committed contrary to the Geneva Convention or appropriate national laws is very closely related to the concept of human rights protection since the human rights and the related conventions concern the right to life, the right to physical and emotional integrity, prohibition of slavery and torture, prohibition of discrimination, etc. In the Constitutional Court's opinion, it seems that a lack of the protection of victims, i.e. inadequate sanctions for perpetrators of crime does not comply with the principle of fairness and the rule of law, embodied in Article 7 of the European Convention, and which, in paragraph 2 allow this exemption from the rule set forth in paragraph 1 of the same Article.

79. In view of the above, and having regard to application of Article 4(a) of the Criminal Code of BiH in conjunction with Article 7 paragraph 1 of the European Convention, the Constitutional Court concludes that, in the present case, the application of the Criminal Code of BiH in the proceedings conducted before the Court of BiH does not constitute a violation of Article 7 paragraph 1 of the European Convention.”

As regards Article 14 of the Convention, taken in conjunction with Articles 6 and 7, the Constitutional Court held as follows (the translation has been provided by the Constitutional Court):

“82. Under the case-law of the European Court of Human Rights, discrimination occurs when a person or a group in an analogous situation are subject to differential treatment based on sex, race, colour, language, religion, (...), in the enjoyment of the rights and freedoms safeguarded by the European Convention if it has no objective and reasonable justification, or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized (see European Court of Human Rights, Case 'Relating to certain aspects of the laws on the use of languages in education in Belgium' v. Belgium, Judgment of 9 February 1967, Series A, No. 6, paragraph 10). In addition, it is irrelevant whether discrimination results from a difference of treatment permitted by legislation or arose from the mere application of laws (see European Court of Human Rights, Ireland v. the United Kingdom, Judgment of 18 January 1978, Series A, No. 25, paragraph 226).

83. A difference of treatment in view of the identical laws applied differently in identical situations should be taken into account in those cases where courts do not enjoy right to a margin of appreciation, such as in the case of meting out of a criminal sanction in similar criminal cases. In such cases, it is necessary to respect the judicial independence of a judge in deciding cases (see the application filed to the former European Commission of Human Rights, E 15252, K. v. FR Germany, dated 21 November 1990). Nevertheless, if there is no margin of appreciation, identical cases should be decided alike. This obligation arises from the principle of legal certainty which operates as an integral part of the rule of law, which is one of the fundamental principles of a democratic society concerning all constitutional rights (see mutatis mutandis Judgment of the European Court of Human Rights, Iatridis v. Greece, dated 25 March 1999, Reports and Decisions 1999-II, paragraph 58).

84. However, courts are allowed to apply the law to similar cases differently if they have objective and reasonable justification for doing so. This is the case, for example, when the challenged decision is lawful and constitutional (see Constitutional Court, Decision No. U-149/03 of 28 November 2003). In the said decision, the Constitutional Court found no discrimination in the situation where the appellants referred to differential treatment, i.e. different court judgments taken on the same or similar issues and by which the appellants' claims were dismissed while in other cases (other proceedings) the plaintiffs' claims were granted. It was established that the court verdicts relating to the appellants were delivered in accordance with the law and the Constitution of Bosnia and Herzegovina, and that the other decisions referred to by the appellants to establish differential treatment, although not directly the subject matter of the Constitutional Court's examination, indicated unlawful and unconstitutional conduct by the ordinary courts.

85. It follows from the aforementioned that an appeal manifestly lacks a legal foundation in the situations when the competent court established a decision challenged by the appeal as constitutional while the appellant refers to differential treatment in terms of other cases in which constitutionality was not challenged. Such an interpretation restricts the principle of the prohibition of differential treatment in terms of the principle of legal certainty but it is in compliance with the principle of the rule of law under Article I(2) of the Constitution of Bosnia and Herzegovina. Actually, the principle of the rule of law prevails in such cases.

86. In order for the Constitutional Court to establish discrimination, in terms of the Belgium Linguistic Case, it must examine the present case to come to the conclusion as to whether it concerns: (a) differential treatment; (b) an analogous situation; (c) any reasons as enumerated in the provisions on the prohibition of discrimination; (d) objective and reasonable justification for such treatment. However, for the reasonableness of the proceedings, the Constitutional Court shall first determine as to whether the challenged verdict is in compliance with the Constitution of Bosnia and Herzegovina and, if so, it can result in dismissing the appeal as ill-founded due to a lack of legal arguments whereby the appellant would be able to prove discrimination.

87. As to the related allegations of the appellant, the Constitutional Court underlines that the subject matter under consideration in the present case is the application of the constitutional rights and the rights safeguarded by the European Convention to the instant case in the light of the Criminal Code of BiH, and not the legal arrangements or the case-law applied at the level of the Entities. In any case, in the context of the appellant's allegations, the Constitutional Court holds that the laws applied by the Entities must be in harmony with the laws at the state level because other legal arrangements would possibly result in discrimination of the persons who are subject to the criminal proceedings for the same criminal acts at the level of the Entities. Accordingly, the present case cannot be a reason for the Constitutional Court to determine whether or not the proceedings conducted in similar cases before the courts of the Entities are in accordance with the Constitution of Bosnia and Herzegovina. In addition, the Constitutional Court particularly points to the fact that the criminal laws at the level of the Entities do not comprise any provisions relating to 'criminal offences against humanity and values protected by international law' (those are contained in the Criminal Code of BiH) nor do they incorporate a provision that is equivalent to Article 4(a) of the Criminal Code of BiH, i.e. they do not incorporate Article 7 of the European Convention into their provisions.

88. The Constitutional Court notes that criminal legislation at the level of the Entities does not contain provisions on criminal offences against humanity and war crimes. This is justified by the fact that it involves criminal offences relating to a breach of the rules of international law and those are uniformly regulated by the state, i.e. by the state law. On the other hand, the fact is that these criminal offences, provided for by the state law, shall also be subject to the proceedings before the courts of the Entities. This means that the mentioned courts have to apply the principles and safeguards provided for by international criminal law which is incorporated into the Criminal Procedure Code of BiH (and thus also Article 7 of the European Convention, i.e. Article 4(a)), and particularly in view of the constitutional obligation to directly apply the European Convention.

89. For the reasons stated above, the Constitutional Court considers that 'a lack of' the entity laws stipulating these offences and safeguards at the level of the Entities imposes an additional obligation to the courts of the Entities to apply, when deciding on the criminal offences of war crimes, the Criminal Code of BiH and other relevant laws and international documents applicable in Bosnia and Herzegovina. It follows from the aforementioned that the courts of the Entities are also obligated to pursue the case law of the Court of BiH. Otherwise, by acting differently, the courts of the Entities would breach the principle of legal certainty and the rule of law.

90. In the proceedings conducted before the Court of BiH based on the Criminal Code of BiH and Criminal Procedure Code of BiH, i.e. the laws which have not been determined as being in violation of the constitutional rights or the rights safeguarded by the European Convention, it is unfounded to refer to discrimination based on the courts' proceedings and legislation at the level of the Entities. Such practice of the courts in the proceedings at various levels is probably the result of lack of a court at the level of Bosnia and Herzegovina, which would harmonise the case-law of all courts in Bosnia and Herzegovina and contribute to the growth of the rule of law in Bosnia and Herzegovina. Moreover, in the Constitutional Court's opinion, incompatibility of the laws and the case-law at different levels may raise an issue as to the compatibility of the laws of the Entities with the laws of Bosnia and Herzegovina but by no means may it raise an issue as to the compatibility of the laws of Bosnia and Herzegovina with the laws of the Entities. However, differential treatment by the courts of the Entities does not necessarily constitute discrimination against the persons subject to the proceedings at the level of Bosnia and Herzegovina unless it is possibly established that the laws applied at the level of Bosnia and Herzegovina are in violation of the Constitution of Bosnia and Herzegovina or the European Convention. The Constitutional Court has observed such practice and differential legal arrangements at the level of the Entities but it cannot exercise its jurisdiction under Article VI(3)(a) of the Constitution of Bosnia and Herzegovina since no request for a review of constitutionality has been filed by authorised persons in the present case.

91. Accordingly, taking into account the conclusion relating to the previous consideration of Article 7 of the European Convention and the conclusion relating to the alleged 'partiality' of the Court of BiH as well as other aspects of Article 6 of the European Convention, for which the Constitutional Court has not established a violation of the constitutional rights and the rights safeguarded by the European Convention, it follows that the verdict of the Court of BiH is based on the legal provisions which are in the view of the Constitutional Court undisputedly constitutional. In accordance with the aforementioned, the Constitutional Court concludes that the appellant lacks legal arguments to prove that he was discriminated against in the proceedings before the Court of BiH, and the Constitutional Court has already established that those proceedings were conducted in accordance with Articles II(3)(d) and II(3)(e) of the Constitution of Bosnia and Herzegovina and Articles 5, 6 and 7 of the European Convention. Therefore, it is not necessary to examine whether there has been a differential treatment or an analogous situation or any grounds of discrimination with regard to other citizens who have exercised their rights in the proceedings before other courts in Bosnia and Herzegovina and, particularly, considering the fact that the appellant has not referred to the application of other relevant provisions on the prohibition of discrimination, which are applicable in Bosnia and Herzegovina.

92. The Constitutional Court concludes that the challenged verdict of the Court of BiH has not violated the appellant's right to a fair trial under Article II(3)(e) in conjunction with Article II(4) of the Constitution of Bosnia and Herzegovina and Article 6(1) in conjunction with Article 14 of the European Convention as well as Article 14 in conjunction with Article 7 of the European Convention.”

On 12 June 2009 the applicant completed his sentence and left Bosnia and Herzegovina shortly thereafter.

B. Relevant law and practice

1. International judges of the State Court

On 12 November 2000 the High Representative[1] established the Court of Bosnia and Herzegovina (“the State Court”) (see Official Gazette of Bosnia and Herzegovina no. 29/00 of 30 November 2000). The Parliamentary Assembly of Bosnia and Herzegovina later passed the Court of Bosnia and Herzegovina Act 2002 (published in Official Gazette of Bosnia and Herzegovina no. 16/02 of 11 July 2002, amendments published in Official Gazette nos. 24/02 of 29 August 2002, 3/03 of 10 February 2003, 37/03 of 22 November 2003, 42/03 of 27 December 2003, 4/04 of 3 March 2004, 9/04 of 29 March 2004, 35/04 of 29 July 2004, 61/04 of 29 December 2004 and 32/07 of 30 April 2007, a consolidated version published in Official Gazette no. 49/09 of 22 June 2009, further amendments published in Official Gazette nos. 74/09 of 21 September 2009 and 97/09 15 December 2009). It envisages the appointment of international judges to the State Court.

On 2 December 2004 the “Agreement between the High Representative and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor's Office of Bosnia and Herzegovina” entered into force (see Official Gazette, International Treaty Series, nos. 12/04 of 8 December 2004 and 7/05 of 1 September 2005, amendments published in Official Gazette no. 8/06 of 11 August 2006). It was in force until 25 September 2006. By Article 2 of the Agreement, the High Representative was to appoint international judges to the State Court.

Between 2004 and 2006 the High Representative indeed appointed more than twenty international judges to the State Court, including those sitting in the applicant's case, for a renewable period of two years. A typical decision appointing an international judge read, in the relevant part, as follows:

“1. As provided by Article 65 paragraph 4, as amended, of the Law on Court of Bosnia and Herzegovina (“Official Gazette of Bosnia and Herzegovina”, 29/00, 24/02, 3/03, 42/03, 37/03, 9/04, 4/04, 35/04, and 61/04 hereinafter: the Law) the following person is hereby appointed as international judge of Section I for War Crimes of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina:

Pietro Spera

2. The initial term of appointment of the appointed International Judge shall be for two years, subject to reappointment pursuant to the Law. The International Judge is required to reside in Bosnia in Herzegovina during the term of his appointment and cannot perform any other function that is incompatible with the judicial service or that can impede his performance of the judicial function on a full time basis. To the extent applicable, all other requirements for judicial service as set forth in the Law shall apply to this appointment.

3. The International Registrar of the Registry for Section I for War Crimes and Section II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organized Crime, Economic Crime and Corruption of the Prosecutor's Office of Bosnia and Herzegovina shall notify the High Representative of any occurrence, including the ones as referred to in Paragraph 2 of this Decision, that may cause the inability of the appointed International Judge to perform his mandate. In the event of resignation by or inability of the International Judge to complete his mandate, the High Representative will appoint a successor to complete the above-mentioned term of office.

4. During the term of appointment, the appointee shall complete all training programs as directed by the President of the Court of Bosnia and Herzegovina, and adhere to all professional conduct standards as established by the Court of Bosnia and Herzegovina.

5. The appointed International Judge shall perform the duty of judge in accordance with the Constitution of Bosnia and Herzegovina and laws of Bosnia and Herzegovina, take decisions upon his best knowledge, conscientiously, responsibly and impartially to uphold the rule of law, and shall protect the freedoms and rights of individuals granted by the Constitution of Bosnia and Herzegovina and the European Convention on Human Rights and Fundamental Freedoms. Before taking up his official function, which occurs not later then 6 May 2005, the International Judge shall take a solemn declaration before the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina to that effect.

6. This Decision shall enter into force forthwith and shall be published without delay in the Official Gazette of Bosnia and Herzegovina.”

On 25 September 2006 a new agreement replaced the 2004 Agreement mentioned above (see Official Gazette, International Treaty Series, nos. 93/06 of 23 November 2006 and 3/07 of 4 July 2007). Article 8 of the 2006 Agreement provides that a specialised professional body, namely the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, appoints international judges to the State Court for a renewable period of two years.

2. Jurisdiction over war crimes cases

The domestic war crimes cases can be divided into two categories.

The cases that were already pending before the Entity/District courts on 1 March 2003 (when the 2003 Code of Criminal Procedure of Bosnia and Herzegovina entered into force) remain with the Entity/District courts unless the State Court decides to take over any such case because of its sensitivity or complexity (Article 449 of the 2003 Code of Criminal Procedure of Bosnia and Herzegovina, published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 36/03 of 21 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 26/04 of 7 June 2004, 63/04 of 31 December 2004, 13/05 of 9 March 2005, 48/05 of 19 July 2005, 46/06 of 19 June 2006, 76/06 of 25 September 2006, 29/07 of 17 April 2007, 32/07 of 30 April 2007, 53/07 of 16 July 2007, 76/07 of 15 October 2007, 15/08 of 25 February 2008, 58/08 of 21 July 2008, 12/09 of 10 February 2009, 16/09 of 24 February 2009 and 93/09 of 1 December 2009).

The new cases (that is, those reported after 1 March 2003) fall under the exclusive jurisdiction of the State Court which can, however, transfer less sensitive and complex cases to the competent Entity/District court (Article 27 of the 2003 Code of Criminal Procedure of Bosnia and Herzegovina).

As a rule, in war crimes cases, the Entity/District courts apply the 1976 Criminal Code (see, however, the judgment in the Vlahovljak case of 18 September 2008 in which the Supreme Court of the Federation of Bosnia and Herzegovina applied the 2003 Criminal Code), whereas the State Court applies the 2003 Criminal Code (see, however, the judgment in the Kurtović case of 25 March 2009 in which the State Court applied the 1976 Criminal Code). Furthermore, the Entity/District courts on average impose lighter sentences than the State Court (see “Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”, published by OSCE in August 2008), but this may be due to the fact that the State Court deals with more sensitive and complex cases (see the National War Crimes Strategy of December 2008).

3. Applicable substantive law in war crimes cases

(a) 1976 Criminal Code

The 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia (published in Official Gazette no. 44/76, amendments published in Official Gazette nos. 36/77, 56/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90 and 45/90), was in force throughout Bosnia and Herzegovina during the 1992-95 war. The relevant part of Article 142 § 1 of the Code read as follows:

“Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates ... taking of hostages ... shall be punished by imprisonment for a minimum term of five years or the death penalty.”

Under Article 38 of the Code, imprisonment could have been imposed for a maximum term of fifteen years and, instead of the death penalty, imprisonment for a term of twenty years. By Articles 24 and 43 § 1 (1) of the Code, whoever intentionally helped another to perpetrate war crimes against civilians was to be punished as if he himself had perpetrated such offence, but the punishment could have been reduced to one year's imprisonment. Lastly, the death penalty could no longer be imposed after the entry into force of the General Framework Agreement for Peace in Bosnia and Herzegovina on 14 December 1995 (see the list of human rights agreements applicable in Bosnia and Herzegovina annexed to the Constitution of Bosnia and Herzegovina, and the Human Rights Chamber's decision CH/97/69 of 12 June 1998 in the Herak case) and the entry into force of Protocols Nos. 6 and 13 to the Convention in respect of Bosnia and Herzegovina on 1 August 2002 and 1 November 2003 respectively.

(b) 1998 Criminal Code

The 1998 Criminal Code of the Federation of Bosnia and Herzegovina (published in Official Gazette of the Federation of Bosnia and Herzegovina no. 43/98 of 20 November 1998, amendments published in Official Gazette nos. 2/99 of 18 January 1999, 15/99 of 30 April 1999, 29/00 of 4 August 2000, 59/02 of 28 November 2002 and 19/03 of 13 May 2003), entered into force on 28 November 1998. The relevant part of Article 154 § 1 of the Code read as follows:

“Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates ... taking of hostages ... shall be punished by imprisonment for a minimum term of five years or long-term imprisonment.”

Under Articles 37 and 38 of the Code, imprisonment could have been imposed for a maximum term of fifteen years and long-term imprisonment for a maximum term of forty years. By Articles 25 and 42 § 1 (1) of the Code, whoever intentionally helped another to perpetrate war crimes against civilians was to be punished as if he himself had perpetrated such offence, but the punishment could have been reduced to one year's imprisonment.

(c) 2003 Criminal Code

The 2003 Criminal Code of Bosnia and Herzegovina (published in Official Gazette of Bosnia and Herzegovina nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments published in Official Gazette nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006, 32/07 of 30 April 2007 and 8/10 of 2 February 2010), entered into force on 1 March 2003. The relevant part of Article 173 § 1 of the Code reads as follows:

“Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts:

...

e) ... taking of hostages ...;

...

shall be punished by imprisonment for a minimum term of ten years or long-term imprisonment.”

Under Article 42 of the Code, imprisonment can be imposed for a maximum term of twenty years and long-term imprisonment for a maximum term of forty-five years. By Articles 31 and 50 § 1 (a) of the Code, whoever intentionally helps another to perpetrate war crimes against civilians will be punished as if he himself has perpetrated such offence, but the punishment can be reduced to five years' imprisonment.

COMPLAINTS

The applicant alleges a breach of Article 6 § 1 of the Convention, notably because the international members of the adjudicating tribunal were appointed by the High Representative for a renewable period of two years.

The applicant also complains under Article 7 of the Convention, taken alone and in conjunction with Article 14, that he was not granted the benefit of the more lenient criminal law with regard to his sentence. In that regard, he maintains that he was treated differently from those who were tried before the Entity/District courts, which, as a rule, apply the 1976 Criminal Code in war crimes cases and impose on average lighter sentences.

QUESTIONS TO THE PARTIES

1. Was the tribunal which dealt with the applicant's case independent, as required by Article 6 § 1 of the Convention, given notably the fact that its international members were appointed by the High Representative, the international administrator for Bosnia and Herzegovina, for a renewable period of two years?

2. Was the applicant given a heavier sentence than the one prescribed by the law which, of all the laws in force during the period between the commission of the offence and delivery of the final judgment, was most favourable to him, in breach of Article 7 of the Convention, Article 14 of the Convention taken in conjunction with Article 7, and/or Article 1 of Protocol No. 12 to the Convention (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, ECHR 2009‑...)?

[1] The international administrator for Bosnia and Herzegovina established with the authorisation of the UN Security Council by an informal group of States actively involved in the peace process (called the Peace Implementation Council) as an enforcement measure under Chapter VII of the UN Charter (see UNSC Resolution 1031 of 15 December 1995). See, for more information, Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al., ECHR 2007‑XII.

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