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Amicus Curiae Brief on Case AP-4606/13 concerning an Appeal Filed by Mr Željko Ivanović

by TRIAL (Track Impunity Always), the Movement of Mothers from the Enclaves of Srebrenica and Žepa and the Women's International League for Peace and Freedom (WILPF)

17 March 2014

Introduction

1. During one of its next plenary sessions, the Constitutional Court of Bosnia and Herzegovina (hereinafter “BiH Constitutional Court”) will deliberate on case AP-4606/13 concerning an appeal filed by Mr. Željko Ivanović against the second instance verdict of the Court of Bosnia and Herzegovina (hereinafter “Court of BiH”) issued on 17 June 2013 whereby the Appeals Panel of the Court of BiH found Mr. Željko Ivanović guilty of the crime of genocide in violation of Art. 171(a) in conjunction with Art. 31 of the 2003 Criminal Code of Bosnia and Herzegovina (hereinafter “2003 BiH Criminal Code”). The appellant was sentenced to a 24-year long-term imprisonment. In his appeal, the appellant holds that the above-mentioned verdict violated his constitutional rights under Art. II(3)(e) of the Constitution of Bosnia and Herzegovina and Art. 6, para. 1, (right to a fair trial) of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “ECHR”) and under Art. 7, para. 1, of ECHR (no punishment without law).

2. Pursuant to Art. 15, paras. 2 and 3, of the Rules of the Constitutional Court of BiH, the Movement of Mothers from the Enclaves of Srebrenica and Žepa, the Women's International League for Peace and Freedom, and TRIAL (Track Impunity Always) are submitting observations as amici curiae on issues raised in the application concerned, in particular providing arguments on the relevant international standards related to the issue of the retroactive application of the 2003 BiH Criminal Code in cases of crimes under international law.1

3. In part I of the present brief, the amici will provide the context of their legal analysis by summarizing the judgment of 18 July 2013 of the European Court of Human Rights (ECtHR) in the case Maktouf and Damjanović v. Bosnia and Herzegovina and the legal reasoning followed by the BiH Constitutional Court in its recent decisions on the appeals submitted by several individuals found guilty of war crimes and genocide against their conviction on the basis of, inter alia, Art. 7 of the ECHR.

4. Part II of the brief will offer an in-depth legal analysis and critique of the arguments used in the recent decisions of the BiH Constitutional Court in the framework of international law standards concerning the retroactivity of criminal law and the obligation of States to adequately prosecute and punish international crimes.

1 In the present brief the amici will focus only on the appeal made under Art. 7 of the ECHR, but this shall not be interpreted

by any means in the sense that the amici consider that the appeal under Art. 6, para. 1, is admissible.

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5. In part III of the brief, the amici will recommend the application of the relevant international standards discussed in part II to the specific facts of the appeal filed by Mr. Željko Ivanović against the second instance verdict of the Court of BiH issued on 17 June 2013 whereby the appellant was found guilty of the crime of genocide.

Part I

6. On 18 July 2013, the Grand Chamber of the ECtHR issued its judgment on the case Maktouf and Damjanović v. Bosnia and Herzegovina (applications No. 2312/98 and 34179/08). The two applicants had been convicted by the Court of BiH of war crimes committed against civilians during the 1992-1995 war and were sentenced pursuant to the 2003 BiH Criminal Code. In their applications to the ECtHR, both men claimed a violation of Art. 7 of the ECHR, in connection with their convictions and complained that the Court of BiH had retroactively applied to them a more stringent criminal law than that which had been applicable at the time of the commission of the offences, namely the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia (hereinafter “SFRY Code Criminal”) and that they had received heavier sentences as a result.2

7. The Grand Chamber underlined that it was not its task to review in abstracto whether the retroactive application of the 2003 BiH Criminal Code to war crimes cases was, per se, incompatible with Art. 7. That matter has to be assessed “on a case-by-case basis, taking into consideration the specific circumstances of each case and, notably, whether domestic courts had applied the law whose provisions were most favourable to the defendant concerned.”3

8. The Grand Chamber clearly pointed out that the “lawfulness of the applicants’ convictions is [...] not an issue in the instant case”4 since it was not disputed by the applicants “that their acts constituted criminal offences defined with sufficient accessibility and foreseeability at the time when they were committed” and the definition of war crimes in the two laws is the same.5

9. It then considered that the applicants had received sentences fitting within the lower range of punishment foreseen under the 2003 BiH Criminal Code6 and that “only the most serious

2 The SFRY Criminal Code 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. Notably, the SFRY Criminal Code did not codify crimes against humanity. 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 General Framework Agreement for Peace in Bosnia and Herzegovina (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 imposed a Criminal Code at the State level 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 Court of BiH.

3 European Court of Human Rights (ECtHR), Case Maktouf and Damjanović v. Bosnia and Herzegovina, Grand Chamber judgment, 18 July 2013, paras. 66-67.

4 Ibid., para. 67. 5 Ibid. 6 Mr. Maktouf received the lowest sentence provided for (5 years) and Mr. Damjanović a sentence which was only slightly

above the lowest level set by the 2003 BiH Criminal Code for war crimes (11 years).

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instances of war crimes were punishable by the death penalty pursuant to the 1976 Code. As neither of the applicants was held criminally liable for any loss of life, the crimes of which they were convicted clearly did not belong to that category”(emphasis added).7 The Grand Chamber therefore concluded that in these specific cases, “there exists a real possibility that the retroactive application of the 2003 BiH Criminal Code operated to the applicants’ disadvantage”8 since the applicants could have received lower sentences had the sentencing provisions of the SFRY Criminal Code been applied,9 although it admitted that it is not certain this would indeed have happened. 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”.10

10. On 27 September 2013, the BiH Constitutional Court decided on an appeal filed by Mr. Zoran Damjanović, the brother of one of the applicants before Strasbourg (AP 325/08). The Court applied mutatis mutandis the reasoning of the ECtHR and, given the fact that the crimes for which Mr. Zoran Damjanović was convicted “do not belong to the category of the most serious war crimes cases (loss of life) for which it was possible, under the SFRY Criminal Code, to impose a death penalty”11, the BiH Constitutional Court found a violation of Art. 7, para. 1, of the ECHR with respect to Mr. Zoran Damjanović, quashed the decision against him and ordered the Court of BiH to issue under an urgent procedure a new decision in line with Art. 7, para. 1, of the ECHR. On 11 October 2013, after ordering the retrial of the brothers Zoran and Goran Damjanović, the Court of BiH ordered their release since the legal validity of their previous conviction had been annulled by the BiH Constitutional Court’s decision and there was no legal ground to keep them in detention.12

11. On 22 October 2013 the BiH Constitutional Court adopted six decisions on the appeals filed by ten persons convicted by the Court of BiH for war crimes and genocide who had claimed a violation of Art. 7, para. 1, of the ECHR.13 Most of the cases were pending from the appeals submitted in 2009. These decisions concerned Mr. Slobodan Jakovljević (sentenced to the long-term imprisonment of 28 years for the crime of genocide) – Mr. Aleksandar Radovanović (sentenced to the long-term imprisonment of 32 years for the crime of genocide) – Mr. Branislav Medan (sentenced to the long-term imprisonment of 28 years for the crime of

7 ECtHR, Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para. 69.

8 Ibid., para. 70.

9 The SFRY Criminal Code being more lenient in respect of the minimum sentence.

10 ECtHR, Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para 70. The Court emphasised that its conclusion did not indicate that lower sentences ought to have been imposed, but simply that in those concrete cases the sentencing provisions of the SFRY Criminal Code should have been applied.

11 BiH Constitutional Court, Damjanović decision - AP 325/08, 27 September 2013, para. 49. 12 On 13 December 2013 the Panel of the Section I for War Crimes of the Court of BiH found both accused guilty of the

criminal offense of war crimes against civilians in violation of Art. 142, para. 1, of the SFRY Criminal Code (torture) read in conjunction with Art. 22 (co-perpetration). Mr. Goran Damjanović was sentenced to 6 years and 6 months imprisonment and Mr. Zoran Damjanović to 6 years imprisonment.

13 Decisions no. AP-116-09, AP-503-09, AP-2498-09, AP-4065-09, AP-4100-09, AP-4126-09, 22 October 2013.

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genocide) – Mr. Brano Džinić (sentenced to the long-term imprisonment of 32 years for the crime of genocide) – Mr. Milenko Trifunović (sentenced to the long-term imprisonment of 33 years for the crime of genocide) –Mr. Petar Mitrović (sentenced to the long-term imprisonment of 28 years for the crime of genocide) – Mr. Nikola Andrun (sentenced to the prison term of 18 years for the crime of war crimes against civilians) – Mr. Milorad Savić (sentenced to the prison term of 21 years for the crime of war crimes against civilians) – Mr. Mirko (son of Špiro) Pekez (sentenced to the prison term of 14 years for the crime of war crimes against civilians) – Mr. Mirko (son of Mile) Pekez (sentenced to the prison term of 29 years for the crime of war crimes against civilians).

12. Summarising the reasoning adopted by the BiH Constitutional Court in the six above-mentioned cases concerning genocide, the prison sentences meted out (28, 32 or 33 years) were within the higher range of punishment foreseen in the 2003 BiH Criminal Code and therefore it was the Court’s task to determine which law was more lenient for the applicants with regards to maximum sentences. The BiH Constitutional Court acknowledged that according to the SFRY Criminal Code a sentence between 15 years, 20 years or the death penalty, could have been pronounced. Nevertheless, it emphasised the fact that at the time of the delivery of the relevant criminal verdict, “there was no theoretical or practical possibility to pronounce a death penalty on the applicant”.14 The BiH Constitutional Court then noted that, in line with Art. 38, para. 2, of the SFRY Criminal Code, “it can be clearly concluded that the maximum sentence for the stated crime, in the situation when it is no longer possible to award a death penalty, is a sentence of 20 years of imprisonment. By comparing the sentence of 20 years of imprisonment (as a maximum sentence for the criminal offence according to the SFRY Criminal Code) with the sentence of a long-term imprisonment of 45 years (as a maximum sentence for the criminal offence prescribed by the 2003 BiH Criminal Code), the BiH Constitutional Court finds that in this concrete case, it is without any doubt the SFRY Criminal Code that is the more favourable code for the applicant”.15 Accordingly, the BiH Constitutional Court found a violation of Art. 7, para. 1, of the ECHR with respect to the applicants, quashed the decisions and ordered the BiH Court to issue under an urgent procedure new decisions in line with Art. 7, para. 1, of the ECHR.

13. The BiH Constitutional Court followed a similar reasoning in its decisions concerning the four applicants convicted of war crimes. Comparing the potential sentences prescribed according to the SFRY Criminal Code and applicable at the time of the delivery of the relevant criminal verdict with the sentences meted out pursuant to the 2003 BiH Criminal Code, the BiH Constitutional Court held that the former was to be considered the more lenient in the four concrete cases and therefore it found a violation of Art. 7 of the ECHR with respect to the applicants, quashed the decisions and ordered the Court of BiH to issue under

14 BiH Constitutional Court, Trifunović decision - AP 4100/09, 22 October 2013, para. 47.

15 Ibid., para. 48.

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an urgent procedure a new decision in line with Art. 7, para. 1, of the ECHR.

14. On 18 November 2013, the Court of BiH ordered the release pending a new trial against the ten convicted individuals being the legal validity of their previous conviction annulled by the decision of the BiH Constitutional Court.16 On the same day, survivors of genocide from Srebrenica raised their voice through the media stating that they are in fear for their lives and safety of their families and that their right to free movement has been impaired.17 Special concern was raised with regard to the safety of witnesses at trials on genocide and the psychological effects that the release of criminals had. There were also statements about the unwillingness of witnesses to testify at future trials.18

15. There have been two further appeals considered by the BiH Constitutional Court concerning Art. 7 of the ECHR. On 5 November 2013, the BiH Constitutional Court upheld the appeal of Mr. Zrinko Pinčić, convicted before the Court of BiH in 2009 for war crimes against civilians (sexual violence and rape) and sentenced to 9 years in prison. The BiH Constitutional Court considered that Mr. Pinčić was given a sentence below the minimum sentence of 10 years prescribed by the 2003 BiH Criminal Code; therefore the Court concluded that the SFRY Criminal Code with its minimum sentence of 5 years was the more favourable to the applicant, thus finding a violation of Art. 7, para. 1, of the ECHR. The BiH Constitutional Court therefore quashed the verdict and ordered the Court of BiH to issue under an urgent procedure a new decision in line with Art. 7, para. 1, of the ECHR.19

16. On 23 January 2014, the BiH Constitutional Court upheld the appeal filed by Mr. Novak Đukić who in 2010 was sentenced to 25 years in prison for having committed war crimes against civilians in Tuzla on 25 May 1995. The BiH Constitutional Court determined that the 2003 BiH Criminal Code was wrongfully applied in his case instead of the former SFRY Criminal Code, thus finding a violation of Art. 7, para. 1, of the ECHR with respect to the applicant. The BiH Constitutional Court quashed the verdict and ordered the Court of BiH to

16 On 16 December 2013, in the reopened proceedings against Mr. Mirko (son of Mile) Pekez, the Appeals Chamber of the

Court of BiH found the accused guilty of the criminal offense of war crimes against civilians in violation of Art. 142, para. 1, of the SFRY Criminal Codet and reduced his sentence to 20 years in prison. On 18 December 2013, in the reopened proceedings against Mr. Mirko (son of Špiro) Pekez and Mr. Milorad Savić, the Appeals Chamber of the Court of BiH found the accused guilty of the criminal offence of crimes against civilians in violation of Art. 142, para. 1, of the SFRY Criminal Code (murder, causing grave suffering and looting) read in conjunction with Art. 22 (co-perpetration) and reduced their sentences to 10 years for Mr. Mirko Pekez and to 15 years for Mr. Milorad Savić. On 30 January 2014, in the reopened proceedings against Mr. Nikola Andrun, the State Court of BiH reduced his sentence to 14 years in prison finding him guilty of the criminal offense of war crimes against civilians in violation of Art. 142, para. 1, of the SFRY Criminal Code (torture, participation in torture, inhumane treatment) read in conjunction with Art. 22 (co-perpetration).

17 These rights are protected, inter alia, by Art. II.3 of the BiH Constitution, Art. 3 and 9 of the ECHR and Art. 2 of the Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto.

18 See, for instance, http://www.justice-report.com/en/articles/resignation-of-state-constitutional-court-judges-requested; http://www.oslobodjenje.ba/vijesti/bih/subasic-majke-srebrenice-traze-zastitu-i-ostavku-sudija-ustavnog-suda-bih.

19 On 27 December 2013, in the reopened proceedings against Mr. Zrinko Pinčić, the Court of BiH handed down the verdict finding the defendant guilty of the criminal offense of war crimes against civilians in violation of Art. 142, para. 1, of the SFRY Criminal Code and reducing his sentence to six years in prison.

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issue under an urgent procedure a new decision in line with Art. 7, para. 1, of the ECHR.20

Part II

17. The recent line of jurisprudence of the BiH Constitutional Court concerning the violation of Art. 7 of the ECHR, as reflected in particular in the reasoning and conclusions adopted by the majority of the BiH Constitutional Court in the two decisions of 22 October 2013 and 23 January 2014, highlights several controversial legal issues that have a particularly troubling impact on the ability of BiH to ensure fair prosecution and adequate and proportional punishment in serious cases of crimes under international law committed during the war.

18. First of all, it is important to stress the conceptual and practical difference between the principle of legality enshrined in Art. 7 of the ECHR and the lex mitior principle.

19. Whereas there are many different formulations of the principle of legality, the two rules of nullum crimen nulla poena sine lege and of non-retroactivity of a heavier penalty capture the core of its meaning. These two rules are encapsulated in the two sentences of Art. 7, para. 1, of the ECHR: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”.21

20. The main objectives of the rules underlying the principle of legality are the need to guarantee the preventive function of criminal law and to avoid State arbitrariness by ensuring that the crimes and related penalties are precisely foreseeable and accessible by every person subject to State jurisdiction. Criminal behaviour can only be deterred if citizens are aware of the criminalising law prior to commission of the censured conduct, therefore retroactive punishment cannot hinder an action or omission that has already occurred.22

21. The principles of nullum crimen nulla poena sine lege and that of non-retroactivity of a heavier penalty have been considered by the ECtHR as an “essential element of the rule of law”, occupying “a prominent place in the Convention system of protection”23 and have reached the status of customary international law.24 Yet, the principle of legality is not an absolute rule as its scope is limited by the exception embodied in Art. 7, para. 2, of the ECHR as far as “the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by

20 Judge Seada Palavrić issued a separate dissenting opinion expressing her disagreement with the reasoning of the majority of

the BiH Constitutional Court concerning the violation of Art. 7 of the ECHR. 21 The principle of legality is embodied in Art. 3, para. 2, of the 2003 BiH Criminal Code: “No punishment or other criminal

sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law.”

22 G. Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law, Springer, 2010, p. 3. 23 ECtHR, Case Kononov v. Latvia, no. 36376/04, Grand Chamber, judgment of 17 May 2010, para. 185. 24 J.M. Henckaerts and L. Doswald-Beck, 1 Customary International Humanitarian Law (Rules) Rule 101, p. 371, Cambridge

U.P., 2005 (study issued by the International Committee of the Red Cross).

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civilised nations” is concerned.25

22. The lex mitior principle postulates that a lighter penalty is to be imposed if, in the period since the criminal offence was committed, a new law has provided for a penalty lighter than that which was applicable at the time the offence was committed.26 In fact this principle represents an exception to the principle of non retroactivity of the criminal law and is justifiable on the basis of the doctrine of mercy or the principle of equality before the law.27 The travaux préparatoires of Art. 15 of the International Covenant on Civil and Political Rights (ICCPR),28 which embodies the lex mitior principle, clarify that "the tendency in modern criminal law was to allow a person to enjoy the benefits of such lighter penalties as might be imposed after the commission of the offence with which he was charged; the laws imposing new and lighter penalties were often the concrete expression of some change in the attitude of the community towards the offence in question".29

23. Despite the fact that, in its judgment on the case Scoppola v. Italy, the Grand Chamber of the ECtHR affirmed that the principle of retroactivity of the more lenient criminal law had become a “fundamental principle of criminal law” that falls within the scope of protection of Art. 7, para. 1, of the ECHR, the lex mitior principle is not unanimously recognised among countries and has not reached the status of a rule of customary international law.30 Several exceptions to this principle are present in national legislations.31 Some countries have issued reservations to the lex mitior rule as embodied in Art. 15 of the ICCPR32 and national and

25 The jurisprudence of the ECtHR regularly applied Art. 7, para. 2, as an exception to the nullum crimen nulla poena sine lege

principle and to the rule of non-retroactivity of a heavier penalty in relation to crimes under international law (war crimes, crimes against humanity, genocide) not only committed during or immediately after the Second World War but also to those committed in the context of the conflict in Former Yugoslavia. See, for instance, ECtHR, Case Kolk and Kislyiy v. Estonia, Nos. 23053/04 and 24018/04, decision on admissibility, 17 January 2006; ECtHR, ECtHR, Case Naletilić v. Croatia, No. 51891/99, decision on admissibility, 4 May 2000, para. 2.

26 The lex mitior principle is recognized in Art. 4, para. 2, of the 2003 BiH Criminal Code: “If the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied.”

27 K.S. Gallant, The Principle of Legality in International and Comparative Criminal Law, Cambridge University Press, 2009, p. 233.

28 International Covenant on Civil and Political Rights (to which BiH succeeded, on 1 September 1993, to the Former Yugoslavia, which ratified it on 2 June 1971). According to Article I of Annex 6 of the Dayton Agreement, the ICCPR, as well as the ECHR, are directly applicable in BiH.

29 UN General Assembly, Annotations on the text of the draft International Covenants on Human Rights, UN Doc. A/2929, para. 95, http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/A-2929.pdf. It is evident that the rationale behind such principle is the necessity of the change in sentencing policy due to the change in the attitude of the community with respect to certain crimes. The amici submit that this change of attitude in favor of lighter penalties cannot be applied to the most serious crimes under international law. Quite on the contrary, the rapid development of international criminal law starting from the early nineties led to a different change of attitude in BiH and in the international community at large towards the opposite direction, that is less and less tolerance towards such grave crimes and an increased effort to punish these crimes with adequate sanctions.

30 Ibid. p. 272. 31 For instance see Art. 2, para. 5, of the Italian Criminal Code (according to which the lex mitior principle does not apply when

the law in force at the time of the conduct was of exceptional nature) or Section 3.2 of the Norwegian Criminal Code (according to which only a more lenient law which is in force at the time of the verdict has to be retroactively applied, while more lenient interim laws passed between the time of the conduct and that of the verdict are of no relevance), in F. De Sanctis, “Reconciling Justice and Legality: A Quest for Fair Punishment in Bosnian Atrocity Crime Cases”, unpublished article, 2014, p. 6.

32 See the updated list of reservations to the ICCPR at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en.

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international adjudicatory bodies have spelt out restrictions to its validity.33

24. In the words of the six partially dissenting judges of the ECtHR in the case Scoppola v. Italy, “Although there is, seemingly, a thematic link between the legality principle of Article 7 § 1 and the more favourable law principle [...] there is a vital difference between them. The former principle works at a higher level than the latter. It represents an integral part of the rule of law. Nullum crimen nulla poena sine praevia lege poenali: no one is to be convicted or punished without a pre-existing criminal law in force. Nothing is more fundamental than that. [...] The lex mitior principle does not form part of nor can it be considered an extension or a corollary of this rule of law requirement. It is a different kind of norm. It expresses a choice that reflects the development of a social process in the context of criminal law. It circumscribes the scope of criminal law by preserving benefits accruing to defendants as a result of substantive laws subsequent to the commission of the offence and applicable while the case was pending. It remains, in the absence of some specific provision, a matter of policy or choice in the discretionary area enjoyed by the State in criminal matters”.34

25. In light of the distinction between the two principles, the amici will now analyze why the sweeping application by the BiH Constitutional Court of the conclusions reached by the ECtHR in the case Maktouf and Damjanović to the gravest instances of war crimes and genocide is highly questionable.

26. In its judgment on the case Maktouf and Damjanović, the evaluation of the ECtHR hinged upon the nature of the crimes committed and, consequently, the fact that the applicants had received sentences fitting within the lower range of punishment foreseen under the 2003 BiH Criminal Code. Given that under the SFRY Criminal Code “only the most serious instances of war crimes were punishable by the death penalty”,35 the two applicants clearly did not belong to that category.36 Since they could have received lower sentences had the SFRY Criminal Code been applied to them, for this very reason, in such cases, the ECtHR concluded that “it cannot be said that the applicants were afforded effective safeguards against the imposition of a heavier penalty”.37 Without delving into the merits of the ECtHR reasoning,38 it is nonetheless clear that in this case the ECtHR applied the principle of legality, in particular the

33 According to the Italian Constitutional Court, the lex mitior principle can be restricted in the presence of “objectively

reasonable justifications and, in particular, of the need to preserve interests of comparable relevance opposed to it”, Italian Constitutional Court, Decision No. 236, 19 July 2011, para. 10, in F. De Sanctis, “Reconciling Justice and Legality: A Quest for Fair Punishment in Bosnian Atrocity Crime Cases”, unpublished article, 2014, p. 7. See also Inter-American Court of Human Rights, Case Rochela Massacre v. Colombia, Judgment of 11 May 2007, Series C No. 163, para. 196: “With regard to the principle of lenity [...], this principle should be harmonized with the principle of proportionality of punishment, such that criminal justice does not become illusory.”

34 ECtHR, Case Scoppola v. Italy (No. 2), No. 10249/03, Grand Chamber, Partly Dissenting Opinion of Judge Nicolaou, joined by Judges Bratza, Lorenzen, Jociené, Villiger and Sajò.

35 ECtHR, Case Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para. 69. 36 The ECtHR therefore pointed out that the decisive factor for the appreciation of a violation of Art. 7 was whether or not,

having due regard to the nature of the crimes at stake, the latter “were punishable” by the death penalty at the time of commission of the crimes. The Court did not anywhere state that the argument related to the provision of death penalty under SFRY Criminal Code was irrelevant because of the fact that the death penalty was not applicable anymore at the moment at the time of conviction.

37 ECtHR, Case Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para. 70. 38 For a thorough critique of the reasoning adopted in this regard by the ECtHR, see F. De Sanctis, “Reconciling Justice and

Legality: A Quest for Fair Punishment in Bosnian Atrocity Crime Cases”, unpublished article, 2014, p. 11-12.

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principle of non-retroactivity of a heavier penalty embodied in the second sentence of Art. 7, para. 1, of the ECHR.

27. On the contrary, in the case of the criminal convicts on whose appeals the BiH Constitutional Court pronounced itself respectively on 22 October 2013 and 23 January 2014, the circumstances were different as these cases concerned “the most serious instances of war crimes” or “genocide” with sentences belonging to the higher range of punishment.39 The BiH Constitutional Court acknowledged that the death penalty was prescribed for these crimes under the SFRY Criminal Code and that it was still applicable at the time of the commission of the crimes. But then it considered all the relevant sets of applicable criminal provisions (the 1976 SFRY Criminal Code applicable at the time of the crimes, the interim SFRY Criminal Code deprived of the death penalty,40 and the 2003 BiH Criminal Code) and concluded that the interim SFRY Criminal Code was the most favourable law - since a maximum sentence of 20 years was allowed - thus finding a violation of Art. 7, para. 1, of the ECHR.

28. It is necessary to underline that, contrary to the ECtHR, the BiH Constitutional Court did not apply the principle of legality explicitly embodied in Art. 7, para. 1, of the ECHR. In fact the relevant part of Art. 7, para. 1, of the ECHR prescribes that “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed” (principle of non-retroactivity of a heavier penalty). In this light, when evaluating the applicable penalties in order to assess whether or not there has been a violation of the principle of legality, the relevant yardstick must be the penalty that was applicable when the person committed the criminal offence, in this case death penalty under the SFRY Criminal Code. Being the definition of war crimes and genocide in the SFRY Criminal Code, which was applicable at the time the offences were committed, the same as the one foreseen in the 2003 BiH Criminal Code that was retroactively applied, the application of the latter cannot be considered as a violation of the principles embodied in Art. 7, para. 1, of the ECHR, as meting out a sentence up to the 45 years under the 2003 BiH Criminal Code can clearly not be considered less favourable to the defendant than the one that was applicable at the time the criminal offence was committed, i.e. the death penalty. In the case at hand, a person who was participating in the commission of “the most serious instances of war crimes” or acts of “genocide” during the conflict in Former Yugoslavia knew that he could receive a death-penalty. The 2003 BiH Criminal Code shall therefore be considered more lenient as far as the punishment for the gravest instances of war crimes and genocide is concerned.

29. What the BiH Constitutional Court applied is an absolute version of the lex mitior principle 39 The legality of these sentences (above 20 years of imprisonment imposed under the 2003 BiH Criminal Code) was not

addressed directly in the Maktouf and Damjanović judgment but the reasoning of the ECtHR seems to point to the different treatment to be given to these cases with particular regard to the gravity of the crimes at stake and to the law applicable at the time of commission of the crimes.

40 What is here referred to as “the interim SFRY Criminal Code deprived of the death penalty” is, in reality, a de facto legal situation whereby, after the signing the Dayton Peace Agreement, the Bosnian domestic judicial system could not resort to the death penalty whereas still applying the SFRY Code due to the lack of legislative amendments to it. This situation came to an end, respectively, in 1998 (in the Federation of BiH) and in 2000 (in Republika Srpska) when the new Entity Criminal Codes came into force and replaced the SFRY Code..

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by assessing the weight of each set of applicable criminal provisions starting from the moment of the commission of the crime and then choosing the most lenient (mitior) among them. Concretely the BiH Constitutional Court chose the penalty provided in the interim SFRY Criminal Code deprived of the death penalty – 20 years – as the lex mitior.

30. In this respect it is necessary to cast light on the inadequacy of the choice of the interim SFRY Criminal Code deprived of the death penalty as a relevant legal yardstick. On 14 December 1995, at the moment of signing the Dayton Peace Agreement, the European Convention and its Protocols were incorporated into the national legislation and Protocol 6 required Bosnia-Herzegovina to amend its laws so as to abolish the death penalty in time of peace and, in the meantime, not to pronounce and execute the death penalty. Yet, in reality, there is nothing in the European Convention or in its Protocols that amended the SFRY Criminal Code until, respectively, November 1998 (in the Federation of BiH) and July 2000 (in Republika Srpska) when the two new Entity Criminal Codes were enacted. The interim SFRY Criminal Code deprived of the death penalty is not a specific amended piece of legislation enacted through a standard parliamentary procedure but is simply the transitory result of the legal and factual impediment on the domestic justice system to pronounce the maximum punishment under the applicable provisions of the SFRY Criminal Code. At no time whatsoever was there any law without the death penalty provision and prescribing the term of imprisonment for 15 or 20 years as the maximum criminal sanction. On the contrary, the laws adopted in 1998 and 200041 clearly indicate what the legislator intended as an adequate sanction replacing the death penalty for the most severe war crimes.42

31. Evaluating the reasoning adopted by the BiH Constitutional Court in its decisions of 22 October 2013 and 23 January 2014, it is evident that not only is the blanket application of the lex mitior principle not warranted by the respect of the principle of legality, but such an application fails to properly understand the nature of crimes under international law, runs counter to basic principles of justice and accountability rendering the obligation of the State to adequately prosecute and punish these crimes meaningless, and is at variance with universally recognized general principles of justice, parity and fairness in sentencing.

32. First of all, as already mentioned, in the case at hand a person who was participating in the commission of a grave form of war crimes or an act of genocide knew that he could receive a

41 The prescribed sanctions were long-term imprisonment in both Entities (40 years in the Federation of BiH and lifetime in

prison in Repulika Srpska). Moreover, the transitional provision of Article 393 of the 1998 Criminal Code of the Federation of BiH reads: “On the day of effectiveness of this Code - a final but not yet executed capital punishment becomes the punishment of long term imprisonment of 40 years”. Article 451 of the 2000 Criminal Code of Republika Srpska includes an analogous provision whereby a final but not yet executed capital punishment becomes a life imprisonment sentence.

42 The International Criminal Tribunal for the Former Yugoslavia adopted a similar reasoning; see, inter alia, International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Darko Mr�a, case No, IT-02-59-S, Trial Chamber Judgment, 31 March 2004, para. 121: “The abolition of the death penalty is not the result of a change in the perception of the seriousness of the crimes for which it could be imposed and there exists no logical or legal reason to accept that the maximum term of imprisonment substituting the death penalty would be affected by it. [...]The maximum penalty available to the Tribunal is life imprisonment and the Trial Chamber retains discretion to impose a term of imprisonment of more than 20 years.”

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death-penalty sentence that was still applicable during the years of the war in Former Yugoslavia. The definition of war crimes and genocide is the same in the 1976 SFRY Criminal Code, which was applicable at the time the offences were committed, and the 2003 BiH Criminal Code being retroactively applied. Therefore the application of the 2003 BiH Criminal Code cannot be considered to violate the legality principle.43

33. Secondly, the application of the lex mitior principle by the BiH Constitutional Court completely misinterprets the nature of crimes under international law. These crimes are for the most part State crimes, that is crimes committed at the behest of or, at the least, with the acquiescence of State authorities. This concretely means that, if such an interpretation of Art. 7 of the ECHR was to be adopted, State organs would be likely incentivized to limit the criminal consequences for representatives of its apparatus, therefore adopting laws (even after the events) that would condone or tend to limit the penalties for those crimes. In such a scenario, the subsequent adoption of a very lenient criminal framework for such crimes by the legislature of the very same regime that was responsible for those crimes would imply, pursuant to the lex mitior principle, the impossibility to rely on the national justice system to properly provide for justice and accountability for those crimes for the foreseeable future.44 It is therefore clear that, when international crimes are at stake, the application of the lex mitior principle needs to be weighed against competing international norms and obligations and the interests of society at large.

34. Third, a strict interpretation of the lex mitior principle runs counter to basic principles of justice and accountability insofar as it undermines the duty of States to effectively investigate, try and punish the persons responsible for gross human rights violations and serious violations of international humanitarian law.45 This duty includes an obligation to ensure that the punishment of the perpetrators is proportional to the nature and the gravity of the crimes.46 When the gravest crimes under international law are at stake, this duty overlaps with the jus cogens obligation of States to ensure an adequate and proportional punishment to their perpetrators.47 This conclusion is in line with the recent development of emerging

43 See in this sense ECtHR, Case Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para. 67.

44 To exemplify the argument with an example taken from a situation of ongoing conflict, if the Syrian parliament were to adopt a law in March 2014 according to which war crimes and crimes against humanity are to be punished by penalties ranging from 2 to 6 months of imprisonment, the blanket application of the lex mitior principle would imply the impossibility to obtain justice for the crimes committed during the Syrian civil war in front of Syrian tribunals since they would always be obliged to apply the lex mitior, in this case the inappropriate criminal law adopted in March 2014.

45 International Covenant on Civil and Political Rights, Art. 2, para. 3; United Nations General Assembly Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN doc. A/RES/ 60/147, 21 March 2006 principle II; Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher, Addendum, Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, UN doc. E/CN.4/2005/102/Add.1, 8 February 2005, principle 19.

46 Inter-American Court of Human Rights, Case Rochela Massacre v. Colombia, supra note 33 verify if the cross reference is correct., para. 196.

47 ICTY, Prosecutor v. Anto Furundzija, case No. IT-95-17/1-T10, Trial Chamber Judgment, 10 December 1998, paras. 155-157; International Court of Justice, Case concerning the Barcelona Traction, Light and Power Company Ltd. (Belgium v. Spain), 5 February 1970, I.C.J. Rep. 1970, paras. 33-34; ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Yugoslavia), Order of 8 April 1993, I.C.J. Rep. 1993, para 49; ICTY, Prosecutor v. Zoran Kupreškić et al., case No. IT-95-16, Trial Chamber Judgment, 14 January 2000, para.

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international standards on sentencing applicable to crimes under international law.48 If it is true that there is no definitive and uncontroversial yardstick to measure the adequateness and proportionality of a certain sentence, the analysis conducted by the International Committee of the Red Cross on the punishments applicable to crimes under international law in domestic legislation shows that “almost systematically, national legislation provides the most severe punishments [death penalty or life imprisonment] for genocide and crimes against humanity” and the same sentencing ratio is applicable to “war crimes that have caused death”.49 In this light, the application of the SFRY Criminal Code, by punishing perpetrators of multiple and serious human rights violations with sentences not exceeding 20 years, does not allow the Court of BiH to deliver sanctions that are proportional to the gravity of these crimes.50 The retroactive application of the 2003 BiH Criminal Code therefore fulfils the jus cogens obligation of the State to adequately punish the perpetrators of the most serious instances of international crimes.

35. Fourth, an absolute application of the lex mitior principle clashes with universally recognized general principles of justice, parity and fairness in punishment. Whereas uneven and arbitrary practices in punishment for the crimes committed during the conflict in Former Yugoslavia is nothing new,51 the application of the SFRY Criminal Code for the gravest cases of war crimes and genocide would make matters worse. On the one hand, it would create a situation of manifest disparity between the sentences applicable to crimes against humanity (up to 45 years under the 2003 BiH Criminal Code)52 and those applicable for war crimes and genocide under the SFRY Criminal Code. This would result in an unequal and illogical sentencing regime which discriminates against those convicted for crimes against humanity53 and that could have extremely serious consequences in terms of prosecution strategies and the outcome of future trials. On the other hand, “while a serious crime, for instance, aggravated

520. See also E.H. Guisse, L. Joinet, Progress Report on the Question of Impunity of Perpetrators of Human Rights Violations, UN Commission on Human Rights, Sub- Commission on the Prevention and Protection of All Minorities, 45th Sess., Item 10(a), UN doc. E/CN.4/Sub.2/1993/6, 1993; D. F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime, 100 Yale Law Journal 2537, 2542 (1991); Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 California Law Review 449, 1990.

48 See, for instance, the Committee on Enforced Disappearances, Concluding Observations on Uruguay, UN doc. CED/C/URY/CO/1, 8 May 2013, paras. 11-12; See also J.H. Burgers, H. Danelius, “The United Nations Conventions against Torture – A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, Martinus Nijhoff Publishers, 1988, p. 129.

49 ICRC Legal Division, Advisory Service, “Analysis of the punishments applicable to international crimes (war crimes, crimes against humanity and genocide) in domestic law and practice”, in 870 International Review of the Red Cross (2008), p. 464.

50 This was confirmed by OSCE, Mission in BiH, Delivering Justice in BiH – An overview of War Crimes Processing from 2005 to 2010, May 2011, http://www.oscebih.org/documents/osce_bih_doc_2011051909500706eng.pdf, p. 72 and by the United Nations Human Rights Committee in its Concluding Observations on Bosnia-Herzegovina, UN doc. CCPR/C/BIH/CO/2, 13 November 2012, para. 7.

51 OSCE, Mission in BiH, Moving towards a Harmonized Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina, August 2008, http://www.oscebih.org/documents/osce_bih_doc_2010122311504393eng.pdf, p. 8.

52 In this respect see the ECtHR, Case Šimšić v. Bosnia-Herzegovina, Chamber judgment, 10 April 2012, confirmed by the ECtHR, Case Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para. 55.

53 EJIL:Talk!, F. De Sanctis, The Impact of the ECtHR’s Judgment in Maktouf-Damjanović on Accountability and Punishment for War Crimes in Bosnia-Herzegovina, 12 November 2013, http://www.ejiltalk.org/the-impact-of-the-ecthrs-judgment-in-maktouf-damjanovic-on-accountability-and-punishment-for-war-crimes-crimes-in-bosnia-herzegovina/.

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murder can be punished under the laws currently in force in BiH with sentences up to 45 years, the same conduct, committed as part of a genocide or as a war crime during the last conflict, would be subjected to a much more lenient treatment”.54 This would undermine the function of deterrence of domestic criminal sentences and the requirements of justice for the gravest crimes.55

36. A further controversial issue related to the recent decisions of the BiH Constitutional Court is the order to quash the criminal verdicts of the convicted perpetrators therefore rendering their sentence legally void and paving the way to their release pending retrial by the Court of BiH.

37. Whereas the ECtHR clearly pointed out in its judgment that the “lawfulness of the applicants’ convictions is [...] not an issue in the instant case”,56 meaning that the only matter to be reconsidered was the sentencing of the perpetrators and not that of guilt, in its decisions of 27 September 2013, 22 October 2013, 5 November 2013 and 23 January 2014, the BiH Constitutional Court quashed entirely the criminal verdicts issued against the perpetrators. These findings rendered the relevant criminal judgments legally void. The BiH Constitutional Court then ordered the Court of BiH to take a new decision on these cases in accordance with Art. 7 of the ECHR without specifying whether the new decision should deal only with the sentencing part or should also examine the guilt of the defendants.57

38. The BiH Constitutional Court issued its decisions in line with Art. 64, para. 1, of its Rules of Procedure. Yet, keeping in mind that the Rules of Procedure represent an internal toolbox that has no legislative or higher status but is, on the contrary, meant to adapt to the needs and circumstances of the cases in front of the BiH Constitutional Court, the latter could have been flexible enough to apply the procedural possibility to partially annul the relevant criminal judgments only insofar as the sentencing part was concerned58 without any infringement of national legislation or violation of the rights of the defendants. Alternatively, the BiH Constitutional Court could at least have provided adequate and explicit guidance on this matter in the reasoning part of its decisions.

54 F. De Sanctis, “Reconciling Justice and Legality: A Quest for Fair Punishment in Bosnian Atrocity Crime Cases”,

unpublished article, 2014, p. 15. 55 R. Aldana-Pindell, “In Vindication of Justiciable Victims’ Right to Truth and Justice for State-Sponsored Crimes”, 35

Vanderbilt Journal of Transnational Law (2002), p. 1444: “justice, at a minimum, requires punishment for gross human rights violations similar to that prescribed by national law for the commission of grave felonies”.

56 ECtHR, Case Maktouf and Damjanović v. Bosnia and Herzegovina, supra note 2, para. 67.

57 On the contrary, in decision AP 325/08 of 27 September 2013, the BiH Constitutional Court affirmed that there had been a violation “due to the erroneous application of law in relation to the guilt and the punishment” (para. 52). In this respect, when considering these cases in the new reopened criminal proceedings, the Court of BiH consistently followed the indications contained in the ECtHR judgment and did not question the guilt of the released perpetrators but only dealt with the calculation of the new sentence under the SFRY Criminal Code.

58 The current Rules of Procedure of the BiH Constitutional Court prescribe for such a possibility in Art. 63, para. 2, insofar as the abstract and concrete control of constitutionality of a piece of legislation is concerned: ”In a decision establishing incompatibility under Article VI.3 (a) and VI.3 (c) of the Constitution, the Constitutional Court may quash the general act or some of its provisions, partially or entirely”. The Constitutional Court could have analogously applied the possibility to partially quash a certain legal act also to its appellate jurisdiction.

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39. This is all the more worrisome because the subsequent release of the perpetrators pending retrial59 had the actual consequence of re-victimizing and intimidating survivors and other victims of crimes under international law perpetrated during the war. Those who had returned to live in Srebrenica and in the surrounding areas, who have been continuously living in fear for their physical and psychological safety due to the attacks they suffered when commemorating the events, were re-traumatized by the release of the perpetrators. The mere thought that they were going to face the persons who killed their loved ones in their villages is unbearable. The mothers of the victims, in particular, had physical consequences due to the re-traumatization caused by the knowledge that the perpetrators were released. It is also very significant that the genocide convicts were welcomed and greeted with celebrations by public authorities. For instance, the president of the Municipality Assembly of Srebrenica, Mr. Radomir Pavlović, organized a welcome ceremony in Skelani using his official car.60

40. In deciding on the appropriate remedies to be granted, the BiH Constitutional Court has to take into account Principle VI of the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which affirms that “The State should ensure that its domestic laws, to the extent possible, provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.”61 The disregard shown with respect to the protection of victims of crimes under international law from violence, re-victimization and intimidation is not only troubling from the victims’ perspective, but it also represents a considerable shortcoming in the fulfilment of the positive obligation of the State to investigate and punish the authors of gross human rights violations and serious breaches of international humanitarian law.62

Part III

41. On 17 June 2013 the Appeals Panel of the Court of BiH found the accused Mr. Željko Ivanović guilty of the criminal offence of genocide in violation of Art. 171(a) of the 2003 BiH Criminal Code in conjunction with Art. 31 (accessory) and sentenced him to a 24-year long-term imprisonment. In his appeal, Mr. Željko Ivanović holds that the above-mentioned verdict retroactively imposed on him the sentences foreseen in the 2003 BiH Criminal Code to his disadvantage thus violating his right not to be punished with a heavier retrospective criminal

59 The decision by the Court of BiH to release the perpetrators pending retrial derived from the fact that the legal ground of

their detention, that is the previous criminal verdict against them, had been entirely quashed by the BiH Constitutional Court decision.

60 See, for instance, http://www.vijesti.ba/vijesti/bih/179791-Slavlje-zlocinaca-Srebrenici.html. 61 In the same vein, on 5 December 2013 the Committee of Ministers of the Council of Europe stressed the importance for BiH

domestic authorities to “take all necessary measures to secure, wherever required, the continued detention of those convicted awaiting a new examination to be conducted by the Court of Bosnia and Herzegovina” and to ensure “adequate protection against collusion or risk of absconding or committing further crimes or disturbance of public order etc […]”, in Committee of Ministers of the Council of Europe, Decision on the Action Plan submitted by BiH in order to implement the judgment of the ECtHR on the case Maktouf and Damjanović, 5 December 2013.

62 See above, paras. 31-35.

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punishment.

42. First of all, it is necessary to point out that the circumstances of the Ivanović case are very different from those in the Maktouf and Damjanović case. In the Ivanović case, the appellant was found guilty of participating in the imprisonment and murder of around 1000 Bosniak men who had fled from Srebrenica. This certainly represents one of the gravest acts of genocide and one the most serious instances of crimes under international law committed during the conflict. There is no doubt that these crimes warrant sentences belonging to the higher range of punishment, that is the death penalty under the SFRY Criminal Code.

43. As far as the legality principle as considered in the ECtHR Maktouf and Damjanović case is concerned, in the specific circumstances of the Ivanović case the relevant yardstick to assess whether or not there has been a violation of the principle of non-retroactivity of a heavier penalty is the penalty that was applicable when Mr. Ivanović committed the crimes, in this case the death penalty under the SFRY Criminal Code. The fact that at the time of the trial the death penalty could no longer be imposed is not relevant for the sake of the present analysis. Being the definition of genocide in the SFRY Criminal Code the same as the one foreseen in the 2003 BiH Criminal Code that was retroactively applied, the application of the latter cannot be considered as a heavier penalty since a penalty of 24 years under the 2003 BiH Criminal Code can clearly not be considered less favourable to the applicant than the death penalty. At the time of the commission of the crimes in Srebrenica Mr. Ivanović knew that he could be sentenced to death for such criminal offences. Therefore the application of the 2003 BiH Criminal Code cannot be considered to violate the legality principle as embodied in Art. 7, para. 1, of the ECHR, requiring that no heavier penalty be imposed “than the one that was applicable at the time the criminal offence was committed”.

44. Even if the BiH Constitutional Court were to consider the lex mitior principle, the amici submit that the circumstances of the Ivanović case, in particular the nature and gravity of the crimes, warrant the restriction of the lex mitior principle in order to meet the State’s international obligations concerning the adequate and proportional punishment of the perpetrators of crimes under international law.63

45. If the interim SFRY Criminal Code deprived of the death penalty was to be considered as the applicable law, the result would be that one of the perpetrators of the most heinous crimes under international law who was found guilty for the loss of hundreds of lives would receive a milder punishment than that for an “ordinary” murder and a disproportionately more lenient sentence than another person who was responsible for the same acts as crimes against humanity.

46. It is therefore evident that a reasonable restriction of the lex mitior principle in the case at 63 In this sense, see the reasoning adduced by the Court of BiH in the appealed verdict against Mr. Željko Ivanović according to

which the crime of genocide represents the most serious crime from the group of crimes against humanity values protected by international law and that no other sanction apart from the long-term imprisonment sentence would fulfill the purpose of the punishment, especially in terms of general and specific deterrence, ,paras. 393-395.

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hand would not only be permissible under the State practice but it would be the sole way for BiH to comply with its duty to adequately punish the gravest crimes, ensure the function of deterrence of the existent criminal justice system and guarantee the principles of parity and fairness in sentencing.64

Conclusions

47. In light of the arguments developed in the present brief, the amici submit that the BiH Constitutional Court should reject the appeal made by Mr, Željko Ivanović against the second instance verdict of the Court of BiH issued on 17 June 2013 against him, as the verdict does not violate the appellant’s rights under Art. 7, para. 1, of ECHR.

On behalf of

TRIAL (Track Impunity Always)

Movement of Mothers from the Enclaves of Srebrenica and Žepa

Women's International League for Peace and Freedom

64 For a thorough analysis of what is a “reasonable restriction” to the lex mitior principle in case of crimes under international

law, see F. De Sanctis, “Reconciling Justice and Legality: A Quest for Fair Punishment in Bosnian Atrocity Crime Cases”, unpublished article, 2014, p. 13-16.

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The Associations submitting the General Allegation

1) TRIAL (Track Impunity Always)

Founded in 2002, TRIAL is an association under Swiss law based in Geneva. The main objective of the association is to put the law at the service of victims of international crimes (genocide, crimes against humanity, war crimes, torture and forced disappearances). TRIAL fights against the impunity of perpetrators and instigators of the most serious crimes under international law and their accomplices. The organization defends the interests of the victims before the Swiss courts and various international human rights bodies. TRIAL also raises awareness among the authorities and the general public regarding the necessity of an efficient national and international justice system for the prosecution of crimes under international law. To date TRIAL has defended more than 350 victims in the course of 132 international proceedings, submitted 40 reports to the United Nations and filed 15 criminal complaints in Switzerland.

Contact person: Dr. iur. Philip Grant (Director)

E-mail: philip.grant@trial-ch.org

Address: TRIAL, P.O. Box 5116, 1211, Geneva 11, Switzerland

Tel./Fax No.: + 41 22 321 61 10

Websites: www.trial-ch.org/ and www.trial-ch.org/BiH

2) The Association Movement of Mothers of Srebrenica and Žepa Enclaves

The Association Movement of Mothers of Srebrenica and Žepa Enclaves is one of the BiH non-governmental organizations that gathers survivors and family-members of persons killed and disappeared in 1995, after the fall of the protected zone of Srebrenica. The Association has been founded in 1996 with headquarters in Sarajevo and it gathers members from most cities in BiH who have changed their place of residence after the Srebrenica genocide. It’s activities are: take part in exhumations; help its members realize their socio-economic rights; cooperate with other organizations which work with families of fallen soldiers and demobilized soldiers; protect women and children and help them obtain their rights.

Among others, the Association is a winner of the Victor Gollanz price awarded by the Society for Threatened Peoples, the Golden Pledge of Peace of the Linus Pauling International League of Humanists etc.

Contact persons: Munira Subašić and Kada Hotić

Address: Nedima Filipovića 17 Street

Tel: +387 33 522 266

Fax: +387 33 214 794

Email: srebrenica.zepa@bih.net.ba

3) Women’s International League for Peace and Freedom

The Women’s International League for Peace and Freedom (WILPF) is an international non-governmental

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organisation founded in 1915 to bring together women from around the world who are united in working for peace by non-violent means and promoting political, economic and social justice for all. WILPF has national sections covering every continent, an International Secretariat based in Geneva, and a New York office focused on the work of the United Nations.

WILPF’s mission is to end and prevent war, ensure that women are represented at all levels in the peace-building process, defend the human rights of women, and promote social, economic and political justice.

To achieve this mission, WILPF conducts programs in three areas: Disarmament, Human Rights, and Women, Peace and Security. The WILPF International Secretariat works alongside our global network of sections, conducting peace-building activities at every level, from the grassroots to the highest decision-making bodies at the United Nations.

WILPF envisions a world free from violence and armed conflict in which human rights are protected and women and men are equally empowered and involved in positions of leadership at the local, national and international levels.

Contact person: Madeleine Rees (Secretary General)

E-mail: mrees@wilpf.ch

Address: 1, rue de Varembé P.O. Box 28, 1211, Geneva 20, Switzerland

Tel./Fax No.: +41 (0) 22 919 70 80