Tribunal established by law
II. RELEVANT DOMESTIC LAW AND PRACTICE AND RELEVANT INTERNATIONAL MATERIALS A. Applicable substantive law in war crimes cases 1. General principles 24. In accordance with its emergency powers [8], on 24 January 2003 the Office of the High Representative imposed the 2003 Criminal Code. The Code entered into force on 1 March 2003. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina [9]. Article 3 thereof provides that no punishment or other criminal sanction may be imposed on any person for an act which, at the time when it was committed, did not constitute a criminal offence under national or international law and for which a punishment was not prescribed by law. Furthermore, in accordance with Article 4 of that Code, the law that was in effect at the time when a criminal offence was committed applies to the offender; however, if the law has been amended after the commission of the offence, the law that is more lenient to the offender must be applied. In January 2005, Article 4a was added to the 2003 Criminal Code. Like Article 7 § 2 of the Convention, it stipulates that the provisions of Articles 3 and 4 of the Criminal Code must not prejudice 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 international law. 25. In line with those principles, the domestic courts have, in cases concerning war crimes, been applying either the 1976 Criminal Code [10] or, if it was considered to be more lenient to an offender, the 2003 Criminal Code. Since the intermediate Entities’ Codes (the 1998 Criminal Code of the Federation of Bosnia and Herzegovina [11] and the 2000 Criminal Code of the Republika Srpska [12] ) have rarely, if ever, been applied in such cases, they are irrelevant to the present applicants. 2. The 1976 Criminal Code 26. During the war in Bosnia and Herzegovina, the 1976 Criminal Code was in force throughout the country. It remained in force in the Federation of Bosnia and Herzegovina until 1998 and in the Republika Srpska until 2000 (when it was repealed and replaced by the Entities’ Codes mentioned in paragraph 25 above). Under that Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty; a 20-year prison term could also be imposed instead of the death penalty (see Articles 37, 38 and 142 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) were to be punished as if they themselves had committed war crimes, but their punishment could also be reduced to one year’s imprisonment (Articles 24, 42 and 43 of that Code). The relevant Articles read as follows: Article 24 § 1 “Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.” Article 37 § 2 “The death penalty may be imposed only for the most serious criminal acts when so provided by statute.” Article 38 §§ 1 and 2 “The sentence of imprisonment may not be shorter than 15 days or longer than 15 years. The court may impose a sentence of imprisonment for a term of 20 years in respect of criminal acts eligible for the death penalty.” Article 42 “The court may impose a sentence below the limit prescribed by statute, or impose a milder type of sentence: (a) when it is provided by statute that the sentence may be reduced [as in Article 24 § 1 of this Code]; (b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.” Article 43 § 1 “Where conditions exist for the reduction of sentence referred to in Article 42 of this Code, the court shall reduce the sentence within the following limits: (a) if a period of three or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, this may be reduced to one year’s imprisonment; ...” Article 142 § 1 “Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of five years or by the death penalty.” 27. The death penalty could no longer be imposed after the entry into force of the Dayton Agreement on 14 December 1995. In particular, pursuant to Annexes 4 and 6 thereto, Bosnia and Herzegovina and its Entities must secure to all persons within their jurisdiction the rights and freedoms provided in the Convention and its Protocols (including Protocol No. 6 on the Abolition of the Death Penalty) and in the other human rights agreements listed therein (including the Second Optional Protocol to the International Covenant on Civil and Political Rights on the death penalty). The domestic authorities have always taken those provisions to mean that no one may be condemned to the death penalty or executed in peacetime, even in respect of criminal offences committed during the 1992 ‑ 95 war [13]. 3. The 2003 Criminal Code 28. Under the 2003 Criminal Code, war crimes attract imprisonment for a term of 10-20 years or, in most serious cases, long-term imprisonment for a term of 20-45 years (Articles 42 and 173 thereof). Aiders and abettors of war crimes (such as Mr Maktouf) are to be punished as if they themselves committed war crimes, but their punishment could also be reduced to five years’ imprisonment (see Articles 31, 49 and 50 of that Code). The relevant Articles read as follows: Article 31 § 1 “Anybody who intentionally aids another in the commission of a criminal act shall be punished as if he himself had committed it, but the sentence may also be reduced.” Article 42 §§ 1 and 2 “The sentence of imprisonment may not be shorter than 30 days or longer than 20 years. For the most serious criminal acts perpetrated with intent, imprisonment for a term of 20 to 45 years may exceptionally be prescribed (long-term imprisonment).” Article 49 “The court may set the sentence below the limit prescribed by statute, or impose a milder type of sentence: (a) when it is provided by statute that the sentence may be reduced [as in Article 31 § 1 of this Code]; (b) when it finds that such extenuating circumstances exist which indicate that the aims of punishment can be attained by a lesser sentence.” Article 50 § 1 “Where conditions exist for the reduction of sentence referred to in Article 49 of this Code, the court shall reduce the sentence within the following limits: (a) if a period of ten or more years’ imprisonment is prescribed as the minimum sentence for a criminal act, it may be reduced to five years’ imprisonment; ...” Article 173 § 1 “Whoever in violation of the rules of international law effective at the time of war, armed conflict or occupation, orders or perpetrates ... torture, ... taking of hostages, ... shall be punished by imprisonment for a minimum term of ten years’ or long-term imprisonment.” 4. Sentencing practices 29. The Entity courts and the State Court have interpreted the principles outlined in paragraph 24 above differently in war crimes cases. With a few exceptions [14], the Entity courts generally apply the 1976 Code. In contrast, the State Court initially held that the 2003 Code was always more lenient and applied it in all cases. In March 2009, however, the State Court began applying a new approach, which was to establish on a case-by-case basis which of the Codes was more lenient to the offender [15]. It has since applied the 1976 Code to less serious instances of war crimes [16]. At the same time, it has continued to apply the 2003 Code to more serious instances of war crimes, which were punishable by the death penalty under the 1976 Code [17], and whenever it held that the 2003 Code was more lenient to the offender for any reason [18]. It should be noted that the new approach concerns only the appeals chambers of the State Court; the trial chambers have continued to apply the 2003 Code in all war crimes cases. According to figures provided by the Government (see paragraph 63 below), appeals chambers rendered 21 decisions in war crimes cases between March 2009, when the new approach was first applied, and November 2012. They applied the 1976 Code in five of them and the 2003 Code in 16 of them. However, the application of the 1976 Code by an appeals chamber did not always lead to a reduction of penalty (in two cases [19], the appeals chamber imposed the same penalty under the 1976 Code as the trial chamber had done under the 2003 Code; in one case [20], the penalty imposed by the appeals chamber under the 1976 Code was even heavier than that imposed by the trial chamber under the 2003 Code). 5. Observations by other international human rights agencies 30. It would appear that the application of different Criminal Codes in war crimes cases, as described in the previous paragraph, has led to diverse sentencing practices. According to a report published by the Organisation for Security and Cooperation in Europe (OSCE) in 2008 (“Moving towards a Harmonised Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina”), the Entity courts generally imposed lighter sentences than the State Court. The relevant part of that report reads as follows: “Usage of different criminal codes also leads to marked discrepancies between the sentences delivered in state and entity courts for war crimes. This stems from the wide variances in the sentences enforceable under these codes. For instance, an entity court has sentenced a defendant convicted of cruel treatment of prisoners to a term of one year and eight months’ imprisonment even as the State Court has sentenced another defendant charged with a comparable act to imprisonment for a period of ten-and-a-half years. On average, sentences delivered by the [State Court] in war crimes cases have been almost double the length of those delivered by entity courts.” 31. In a 2011 report (“Delivering Justice in Bosnia and Herzegovina”), the OSCE held that the application of different Criminal Codes at the State- and Entity-levels could be problematic in certain types of war crimes cases. The relevant part of that report reads as follows: “Certainly, it is acceptable that the issue of which criminal code should be applied to war crime cases is assessed on a case-by-case basis. In many cases before entity courts, the application of the [1976] Code does not represent a serious problem in practice. In general, the cases in which the application of different codes undermines the principle of equality before the law are those in which the court, by applying the [2003] Code, could sentence the accused to a sentence higher than the 15 or 20 years maximum sentence prescribed under the [1976] Code. In these cases, the application of the [1976] Code arguably does not allow the court to deliver a sentence which is proportional to the gravity of the crimes. Nor are the sentences in those cases harmonized with practice at the state level. Another category of cases in which the application of the [1976] Code is problematic are those in which the accused’s conduct is arguably best captured under the concept of crimes against humanity or under the theory of command responsibility, which are expressly prescribed only under the [2003] Code.” 32. The UN Human Rights Committee, in its “concluding observations” on Bosnia and Herzegovina in 2012 (CCPR/C/BIH/CO/1), expressed similar concerns (at § 7): “While appreciating efforts to deal with war crime cases such as the implementation of the National War Crimes Processing Strategy, the Committee remains concerned at the slow pace of prosecutions, particularly those relating to sexual violence, as well as lack of support to victims of such crimes. The Committee is also concerned at the lack of efforts to harmonise jurisprudence on war crimes among entities, and that entity-level courts use the archaic criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY) that does not, inter alia, define crimes against humanity, command responsibility, sexual slavery and forced pregnancy. The Committee is concerned that this might affect consistency in sentencing among entities (arts. 2 and 14). The State party should expedite the prosecution of war crime cases. The State party should also continue to provide adequate psychological support to victims of sexual violence, particularly during the conduct of trials. Furthermore, the State party should ensure that the judiciary in all entities strongly pursues efforts aimed at harmonising jurisprudence on war crimes and that charges for war crimes are not brought under the archaic criminal code of the former SFRY, which does not recognise certain offences as crimes against humanity.” 33. In its Opinion on Legal Certainty and the Independence of Judiciary in Bosnia and Herzegovina (no. 648/2011), issued on 18 June 2012, the Venice Commission noted that the existence of several legal orders and the fragmentation of the judiciary made it difficult for Bosnia and Herzegovina to fulfil the requirements of, inter alia, consistency in its legislation and case-law. B. State Court 34. In accordance with its emergency powers, on 12 November 2000 the Office of the High Representative imposed the State Court Act 2000 [21] establishing the State Court. The Act entered into force on 8 December 2000. It was subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina. 35. As part of the ICTY’s completion strategy mentioned in paragraph 9 above, war crimes chambers were established within the State Court in early 2005. During a transitional phase which ended on 31 December 2012, some international judges were included in the composition of those chambers. Initially, they were appointed by the Office of the High Representative in accordance with its 2004 agreement with the authorities of Bosnia and Herzegovina [22]. The mandate of those judges was two years and was renewable. A typical decision appointing an international judge read, in the relevant part, as follows: “... Noting the joint recommendation for the appointment of an International Judge of 22 April 2005 signed by the 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 [State Court] and [Special Departments of the Prosecutor’s Office of Bosnia and Herzegovina], President of the [State Court] and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina; The High Representative hereby issues the following decision on appointment of an International Judge to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court] 1. As provided by section 65 § 4, as amended, of the [State Court Act 2000] the following person is hereby appointed as International Judge of Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]: Pietro Spera 2. The initial term of appointment ... shall be for two years, subject to reappointment pursuant to the [State Court Act 2000]. The [appointee] 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 [State Court Act 2000] shall apply... 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 [State Court] and [Special Departments of the Prosecutor’s Office] shall notify the High Representative of any occurrence, including the ones as referred to in paragraph 2 [above], that may cause the inability of the [appointee] to perform his mandate. In the event of resignation by or inability of the [appointee] 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 [State Court] and adhere to all professional conduct standards as established by the [State Court]. 5. The [appointee] shall perform the duty of judge in accordance with the Constitution 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 and the European Convention on Human Rights. 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.” 36. In September 2006 the Office of the High Representative and Bosnia and Herzegovina revised the procedure for the appointment of international judges to the State Court [23] : international judges were thereafter appointed by a specialised professional body, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, also for a renewable period of two years. C. Jurisdiction over war crimes cases 37. Domestic war crimes cases can be divided into two categories. 38. Old cases (reported before 1 March 2003) remain with Entity courts if an indictment entered into force before 1 March 2003. If an indictment did not enter into force before 1 March 2003, they remain with Entity courts unless the State Court decides to take over any such case in accordance with the criteria set out in paragraph 40 below (see Article 449 of the 2003 Code of Criminal Procedure [24] ). 39. New cases (reported after 1 March 2003) fall under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 40 below (see Article 27 of the 2003 Code of Criminal Procedure). 40. In accordance with the Book of Rules on the Review of War Crimes Cases of 28 December 2004 [25] the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts. In December 2008 the authorities adopted the National War Crimes Strategy, providing, among other things, a new set of criteria. They are, however, almost identical to those outlined above. D. Reopening of a criminal trial 41. Article 327 of the 2003 Code of Criminal Procedure provides that a criminal trial may be reopened in favour of the offender where the European Court of Human Rights has found that human rights were violated during the trial and that the verdict was based on these violations. An application for the reopening of a criminal trial is not subject to deadlines. It may even be lodged after the sentence has been served (Article 329 § 2 of this Code). Pursuant to Article 333 § 4 of this Code, in any new trial the verdict may not be modified to the detriment of the accused (prohibition of reformatio in peius ). E. International humanitarian law 42. Pursuant to the 1949 Geneva Conventions (see, for example, Article 146 of the Convention relative to the Protection of Civilian Persons in Time of War), the High Contracting Parties must enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of those Conventions. At the same time, the accused persons must in all circumstances benefit from safeguards of proper trial and defence that are not less favourable than those provided by the Convention relative to the Treatment of Prisoners of War. 43. Pursuant to Article 99 of the Convention relative to the Treatment of Prisoners of War no prisoner of war may be tried or sentenced for an act which is not forbidden, at the time the said act was committed, by the law of the Detaining Power or by international law. The rule of non-retroactivity of crimes and punishments also appears in the Additional Protocols I and II of 1977 in almost identical terms. Article 75 § 4 (c) of the Additional Protocol I reads as follows: “No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 44. The first applicant, Mr Maktouf, complained that he had not been afforded a fair hearing by an independent tribunal, in violation of Article 6 § 1 of the Convention. He submitted that the adjudicating tribunal had not been independent within the meaning of that provision, notably because two of its members had been appointed by the Office of the High Representative for a renewable period of two years. Article 6 § 1, in the relevant part, reads: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A. The parties’ submissions 1. The Government 45. The Government maintained that Bosnia and Herzegovina could not be held responsible for the conduct of the High Representative (they relied on Berić and Others v. Bosnia and Herzegovina (dec.), nos. 36357/04 et al ., ECHR 2007 ‑ XII). They therefore invited the Court to declare this complaint inadmissible as being incompatible ratione personae. Even if the Court had jurisdiction ratione personae to deal with this complaint, the Government submitted that it was manifestly ill-founded. The Convention did not require that judges be appointed for their lifetime, as illustrated by Sramek v. Austria, 22 October 1984, Series A no. 84, in which the Court regarded appointment for a renewable period of three years as sufficient. Moreover, the international members of the State Court had been appointed as judges in their countries of origin by independent bodies and had been seconded to the State Court as a means of international assistance to war-torn Bosnia and Herzegovina. 2. The applicant 46. The applicant responded that Bosnia and Herzegovina had a duty to organise its legal system in such a way as to ensure the independence of the judiciary. He submitted that the short duration of the international judges’ mandate (two years) with the possibility of reappointment cast serious doubt on their ability to make decisions independently. He added, without relying on any particular authority, that according to accepted criteria, mandates of less than six years were not satisfactory as a guarantee of judges’ independence. Further, the international judges of the State Court were appointed, at the relevant time, by the Office of the High Representative, which could be compared to a national government. In view of all of the above, the applicant concluded that the adjudicating tribunal had not been independent within the meaning of Article 6 § 1 of the Convention. 3. The third party 47. The Office of the High Representative, in its third-party submissions of November 2012, asserted that the presence of international judges in the State Court had been aimed at promoting independence and impartiality, as well as the transfer of required legal knowledge. It also submitted that its decisions on appointments of international judges had been a formality, due to the fact that no domestic authority had had powers to appoint non-nationals prior to late 2006 (see paragraph 36 above). As to the duration of their mandate, the Office of the High Representative contended that this had been due to funding restrictions in the redeployment of foreign judicial officials: namely, budgetary projections and restrictions had disallowed a funding guarantee for a longer period. Lastly, the third party maintained that the international judges’ terms had been duly regulated and that they could not have been dismissed arbitrarily. B. The Court’s assessment 48. The Court notes from the outset that the establishment of war crimes chambers within the State Court consisting of international and national judges was an initiative of international institutions (see paragraph 9 above). However, it is not required in the instant case to decide whether the respondent Government could nevertheless be held liable for the alleged breach of Article 6 § 1 of the Convention, since it finds that this complaint is in any event manifestly ill-founded for the reasons set out below. 49. By way of general observation, the Court reiterates that in determining in previous cases whether a body could be considered as “independent” – notably of the executive and of the parties to the case – it has had regard to such factors as the manner of appointment of its members, 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, for example, Campbell and Fell v. the United Kingdom, 28 June 1984, § 78, Series A no. 80, and Brudnicka and Others v. Poland, no. 54723/00, § 38, ECHR 2005 ‑ II). The irremovability of judges by the executive during their term of office is in general considered as a corollary of their independence and thus included in the guarantees of Article 6 § 1 (see Campbell and Fell, cited above, § 80). Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court’s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV), appointment of judges by the executive or the legislature is permissible, provided that appointees are free from influence or pressure when carrying out their adjudicatory role (see Flux v. Moldova (no. 2), no. 31001/03, § 27, 3 July 2007). 50. Turning to the present case, the Court notes that the independence of the national member of the adjudicating tribunal was not challenged. As to its international members, there is no reason to doubt their independence of the political organs of Bosnia and Herzegovina and the parties to the case. Their appointment was indeed motivated by a desire, inter alia, to reinforce the appearance of independence of the State Court’s war crimes chambers (in view of remaining ethnic bias and animosity in the population at large in the post-war period) and to restore public confidence in the domestic judicial system. 51. Although they were appointed by the High Representative, the Court finds no reason to question that the international members of the State Court were independent of that institution. Their appointments were made on the basis of a recommendation from the highest judicial figures in Bosnia and Herzegovina (see the decision cited in paragraph 35 above). Like the national members whose independence was undisputed, once appointed, the judges in question had to make a solemn declaration before the High Judicial and Prosecutorial Council of Bosnia and Herzegovina and were required to perform their judicial duties in accordance with national law and to respect the rules of professional conduct established by the State Court. All of the requirements for judicial service as set forth in the State Court Act 2000 applied to them by analogy (see paragraph 35 above). The fact that the judges in question had been seconded from amongst professional judges in their respective countries represented an additional guarantee against outside pressure. Admittedly, their term of office was relatively short, but this is understandable given the provisional nature of the international presence at the State Court and the mechanics of international secondments. 52. Against this background, the Court sees no reason for calling into question the finding of the Constitutional Court of Bosnia and Herzegovina in this case that the State Court was independent within the meaning of Article 6 § 1 of the Convention (see paragraph 15 above; contrast Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 45-53, 30 November 2010). 53. Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION 54. Both applicants complained under Article 7 of the Convention that a more stringent criminal law had been applied to them than that which had been applicable at the time of their commission of the criminal offences. Article 7 provides: “1. 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. 2. This article shall not prejudice 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 civilised nations.” A. Introductory remark 55. Serious violations of international humanitarian law falling under the State Court’s jurisdiction can be divided into two categories. Some crimes, notably crimes against humanity, were introduced into national law in 2003. The State Court and the Entity courts therefore have no other option but to apply the 2003 Criminal Code in such cases (see the international materials cited in paragraphs 31 and 32 above). In this regard, the Court reiterates that in Šimšić v. Bosnia and Herzegovina (dec.), no. 51552/10, 10 April 2012, the applicant complained about his 2007 conviction for crimes against humanity with regard to acts which had taken place in 1992. The Court examined that case, inter alia, under Article 7 of the Convention and declared it manifestly ill-founded. It considered the fact that crimes against humanity had not been criminal offences under national law during the 1992-95 war to be irrelevant, since they had clearly constituted criminal offences under international law at that time. In contrast, the war crimes committed by the present applicants constituted criminal offences under national law at the time when they were committed. The present case thus raises entirely different questions to those in the Šimšić case. B. Admissibility 56. The Government argued that Mr Damjanović’s complaint should be dismissed in view of his failure to lodge a constitutional appeal in a timely manner. They had no objections with regard to the admissibility of Mr Maktouf’s complaint. 57. Mr Damjanović alleged that a constitutional appeal was not an effective remedy in respect of this complaint, as it did not offer reasonable prospects of success (he relied on the Constitutional Court’s decision in the Maktouf case, finding no breach of Article 7, and many subsequent cases in which the same reasoning had been applied). 58. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires applicants first to use the domestic remedies, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time; that is to say, that the remedy was accessible and capable of providing effective and sufficient redress in respect of the applicant’s complaints. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, §§ 65-69, Reports of Judgments and Decisions 1996 ‑ IV; Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 6 May 2006; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 68-71, 17 September 2009). 59. The Court notes that on 30 March 2007 the Constitutional Court of Bosnia and Herzegovina found no breach of Article 7 of the Convention in nearly identical circumstances in the Maktouf case, and has since applied the same reasoning in numerous cases. Indeed, the Government did not produce before the Court any decision by the Constitutional Court finding a violation of Article 7 in a similar case. Furthermore, the State Court referred in the Damjanović case to the Constitutional Court’s decision in the Maktouf case. 60. The Court concludes that a constitutional appeal did not offer reasonable prospects of success for Mr Damjanović’s complaint under Article 7 of the Convention and dismisses the Government’s objection. As this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and it is not inadmissible on any other grounds, it must be declared admissible. C. Merits 1. The parties’ submissions (a) The applicants 61. The prohibition of the retroactive application of the criminal law to the disadvantage of an accused was, according to the applicants, a well-established rule of both international and domestic law. The 2003 Criminal Code, being more severe than the 1976 Code with regard to the minimum sentences for war crimes, should not therefore have been applied in their case. In this regard, they referred to a small number of cases in which the State Court had considered the 1976 Code to be more lenient (see paragraph 29 above), criticising at the same time the State Court for not applying that Code consistently. Given that their convictions had been based exclusively on national law, they submitted that the Government’s reliance on the “general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 was misleading. They further submitted that their case should be distinguished from the cases to which the Government and the third party had referred (namely S.W. v. the United Kingdom, 22 November 1995, Series A no. 335 ‑ B, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II). In particular, the S.W. case concerned the gradual development of the criminal law through a line of case-law, over the course of several years, in order to take account of society’s changing attitudes. This was clearly different from the enactment of new legislation prescribing heavier penalties for some criminal offences, as in the present case. The applicants added that the States should not change their laws after an event so as to punish perpetrators, no matter how controversial the offence in question. (b) The Government 62. The Government maintained that the 2003 Criminal Code was more lenient to the applicants than the 1976 Criminal Code, given the absence of the death penalty (they referred to Karmo v. Bulgaria (dec.), no. 76965/01, 9 February 2006). That was indeed the opinion of the Constitutional Court of Bosnia and Herzegovina in the present case (see paragraph 15 above). They further argued that even if the 2003 Code was not more lenient to the applicants, it was still justified to apply it in this case, for the following reasons. First, the Government claimed that Article 7 § 2 of the Convention provided an exception to the rule of non-retroactivity of crimes and punishments set out in Article 7 § 1 (they referred to Naletilić v. Croatia (dec.), no. 51891/99, ECHR 2000 ‑ V). In other words, if an act was criminal at the time when it was committed both under “the general principles of law recognised by civilised nations” and under national law, then a penalty even heavier than that which was applicable under national law might be imposed. It was clear that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations”. As a result, the rule of non-retroactivity of punishments did not apply and, in the Government’s opinion, any penalty could have been imposed on the applicants. Secondly, the Government submitted that the interests of justice required that the principle of non-retroactivity be set aside in this case (they referred in this connection to S.W., cited above; Streletz, Kessler and Krenz, cited above; and a duty under international humanitarian law to punish war crimes adequately). The rigidity of the principle of non-retroactivity, it was argued, had to be softened in certain historical situations so that this principle would not be to the detriment of the principle of equity. 63. As to the question whether the State Court had changed its practice with regard to sentencing in war crimes cases, the Government accepted that the 1976 Code had been applied on several occasions since March 2009 (see paragraph 29 above). However, they contended that the 2003 Code was still applied in most cases. Specifically, the State Court issued 102 decisions between March 2009 and November 2012 (59 by trial chambers and 43 by appeals chambers). The trial chambers had always applied the 2003 Code. The appeals chambers had applied that Code in all the cases concerning crimes against humanity and genocide. As to war crimes, the appeals chambers had applied the 1976 Code in five cases and the 2003 Code in 16 cases. The Government criticised the approach adopted in those first five cases and argued that the State Court should always have applied the 2003 Code in war crimes cases. (c) The third party 64. The third-party submissions of the Office of the High Representative of November 2012 were along the same lines as the Government’s submissions. Notably, the third party claimed, like the Government, that the acts committed by the present applicants were criminal under “the general principles of law recognised by civilised nations” and that therefore the rule of non-retroactivity of punishments did not apply in this case. The Office of the High Representative also emphasised that although the 2003 Code had been applied in this case, the applicants’ sentences were nevertheless within the latitude of both the 1976 Code and the 2003 Code. Lastly, the third party referred to the UN Human Rights Committee’s “concluding observations” on Bosnia and Herzegovina (CCPR/C/BIH/CO/1), cited in paragraph 32 above. 2. The Court’s assessment 65. At the outset, the Court reiterates that it is not its task to review in abstracto whether the retroactive application of the 2003 Code in war crimes cases is, per se, incompatible with Article 7 of the Convention. This matter must be assessed on a case-by-case basis, taking into consideration the specific circumstances of each case and, notably, whether the domestic courts have applied the law whose provisions are most favourable to the defendant (see Scoppola, cited above, § 109). 66. The general principles concerning Article 7 were recently restated in Kononov v. Latvia [GC], no. 36376/04, § 185, ECHR 2010: “The guarantee enshrined in Article 7, an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, so as to provide effective safeguards against arbitrary prosecution, conviction and punishment. Accordingly, Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable. When speaking of ‘law’, Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability. As regards foreseeability in particular, the Court recalls that however clearly drafted a legal provision may be in any system of law including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in certain Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen ( Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II; K. ‑ H.W. v. Germany [GC], no. 37201/97, § 85, ECHR 2001 ‑ II (extracts); Jorgic v. Germany, no. 74613/01, §§ 101-109, 12 July 2007; and Korbely v. Hungary [GC], no. 9174/02, §§ 69-71, 19 September 2008).” 67. Turning to the present case, the Court notes that the definition of war crimes is the same in Article 142 § 1 of the 1976 Criminal Code, which was applicable at the time the offences were committed, and Article 173 § 1 of the 2003 Criminal Code, which was applied retroactively in this case (see paragraphs 26 and 28 above). Moreover, the applicants did not dispute that their acts constituted criminal offences defined with sufficient accessibility and foreseeability at the time when they were committed. The lawfulness of the applicants’ convictions is therefore not an issue in the instant case. 68. It is further noted, however, that the two Criminal Codes provide for different sentencing frameworks regarding war crimes. Pursuant to the 1976 Code, war crimes were punishable by imprisonment for a term of 5-15 years or, for the most serious cases, the death penalty (see Article 142 § 1 in conjunction with Articles 37 § 2 and 38 § 1 of the 1976 Code). A 20-year prison term could have also been imposed instead of the death penalty (see Article 38 § 2 thereof). Aiders and abettors of war crimes, like Mr Maktouf, were to be punished as if they themselves had committed the crimes, but their punishment could be reduced to one year’s imprisonment (see Article 42 of the same Code in conjunction with Articles 24 § 1 and 43 § 1 thereof). Pursuant to the 2003 Code, war crimes attract imprisonment for a term of 10-20 years or, for the most serious cases, long-term imprisonment for a term of 20-45 years (see Article 173 § 1 of the 2003 Code in conjunction with Article 42 §§ 1 and 2 of that Code). Aiders and abettors of war crimes, such as Mr Maktouf, are to be punished as if they themselves had committed the crimes, but their punishment could be reduced to five years’ imprisonment (Article 49 in conjunction with Articles 31 § 1 and 50 § 1 of that Code). While pointing out that his sentence should be reduced as far as possible (see paragraph 14 above), the State Court sentenced Mr Maktouf to five years’ imprisonment, the lowest possible sentence under the 2003 Code. In contrast, under the 1976 Code he could have been sentenced to one year’s imprisonment. As regards Mr Damjanović, he was sentenced to 11 years’ imprisonment, slightly above the minimum of ten years. Under the 1976 Code, it would have been possible to impose a sentence of only five years. 69. As regards the Government’s argument that the 2003 Code was more lenient to the applicants than the 1976 Code, given the absence of the death penalty, the Court notes that only the most serious instances of war crimes were punishable by the death penalty pursuant to the 1976 Code (see paragraph 26 above). 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. Indeed, as observed above, Mr Maktouf received the lowest sentence provided for and Mr Damjanović a sentence which was only slightly above the lowest level set by the 2003 Code for war crimes. In these circumstances, it is of particular relevance in the present case which Code was more lenient in respect of the minimum sentence, and this was without doubt the 1976 Code. Such an approach has been taken by at least some of the appeals chambers in the State Court in recent cases (see paragraph 29 above). 70. Admittedly, the applicants’ sentences in the instant case were within the latitude of both the 1976 Criminal Code and the 2003 Criminal Code. It thus cannot be said with any certainty that either applicant would have received lower sentences had the former Code been applied (contrast Jamil v. France, 8 June 1995, Series A no. 317 ‑ B; Gabarri Moreno v. Spain, no. 68066/01, 22 July 2003; Scoppola, cited above). What is crucial, however, is that the applicants could have received lower sentences had that Code been applied in their cases. As already observed in paragraph 68 above, the State Court held, when imposing Mr Maktouf’s sentence, that it should be reduced to the lowest possible level permitted by the 2003 Code. Similarly, Mr Damjanović received a sentence that was close to the minimum level. It should further be noted that, according to the approach followed in some more recent war crimes cases referred to in paragraph 29 above, the appeals chambers of the State Court had opted for the 1976 Code rather than the 2003 Code, specifically with a view to applying the most lenient sentencing rules. Accordingly, since there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage as concerns the sentencing, it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty, in breach of Article 7 of the Convention. 71. The Court is unable to accept the Government’s suggestion that its decision in Karmo, cited above, offers guidance for its assessment of the case now under consideration. The circumstances are significantly different. Whilst the present applicants were sentenced to relatively short terms of imprisonment, the applicant in Karmo had been sentenced to death and the issue was whether it was contrary to Article 7 to commute the death penalty to life imprisonment following the abolition of the death penalty in 1998. The Court considered that it was not and rejected the complaint under Article 7 as manifestly ill-founded. 72. Furthermore, the Court is unable to agree with the Government’s argument that if an act was criminal under “the general principles of law recognised by civilised nations” within the meaning of Article 7 § 2 of the Convention at the time when it was committed then the rule of non-retroactivity of crimes and punishments did not apply. This argument is inconsistent with the travaux préparatoires which imply that Article 7 § 1 can be considered to contain the general rule of non-retroactivity and that Article 7 § 2 is only a contextual clarification of the liability limb of that rule, included so as to ensure that there was no doubt about the validity of prosecutions after the Second World War in respect of the crimes committed during that war (see Kononov, cited above, § 186). It is thus clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity. Indeed, the Court has held in a number of cases that the two paragraphs of Article 7 are interlinked and are to be interpreted in a concordant manner (see, for example, Tess v. Latvia (dec.), no. 34854/02, 12 December 2002, and Kononov, cited above, § 186). 73. The Government’s reliance in this regard on S.W. and Streletz, Kessler and Krenz (cited above) likewise cannot be accepted. The present case does not concern an issue of progressive development of the criminal law through judicial interpretation, as in the case of S.W. Nor does the case at hand concern a State practice that is inconsistent with the State’s written or unwritten law. In Streletz, Kessler and Krenz, the applicants’ acts had constituted offences defined with sufficient accessibility and foreseeability in the criminal law of the German Democratic Republic at the material time, but those provisions had not been enforced for a long time prior to the regime change in 1990. 74. The Court sees no need to examine in any detail the Government’s further argument that a duty under international humanitarian law to punish war crimes adequately required that the rule of non-retroactivity be set aside in this case. It suffices to note that the rule of non-retroactivity of crimes and punishments also appears in the Geneva Conventions and their Additional Protocols (see paragraph 43 above). Moreover, as the applicants’ sentences were within the compass of both the 1976 and 2003 Criminal Codes, the Government’s argument that the applicants could not have been adequately punished under the former Code is clearly unfounded. 75. Lastly, while the Court in principle agrees with the Government that States are free to decide their own penal policy (see Achour v. France [GC], no. 67335/01, § 44, ECHR 2006 ‑ IV, and Ould Dah v. France (dec.), no. 13113/03, ECHR 2009), they must comply with the requirements of Article 7 in doing so. D. Conclusion 76. Accordingly, the Court considers that there has been a violation of Article 7 of the Convention in the particular circumstances of the present case. This conclusion should not be taken to indicate that lower sentences ought to have been imposed, but simply that the sentencing provisions of the 1976 Code should have been applied in the applicants’ cases. III. THE APPLICANTS’ DISCRIMINATION COMPLAINT 77. Lastly, the applicants argued, without going into any detail, that the fact that their cases had been heard before the State Court, while many other war crimes cases had been heard before Entity courts, amounted to a breach of Article 14 of the Convention and/or Article 1 of Protocol No. 12 to the Convention. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 1 of Protocol No. 12 provides: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 78. The Government invited the Court to follow its Šimšić case-law, cited above. They added that the distribution of war crimes cases between the State Court and Entity courts was not arbitrary: it was done by the State Court on the basis of objective and reasonable criteria. As regards Mr Maktouf’s case, the Government argued that it was sensitive and complex, as it had been one of the first cases dealing with crimes committed by foreign mujahedin (the ICTY had dealt with that issue for the first time in 2006 in Hadžihasanović and Kubura ). In addition, ritual beheadings, carried out at their camps, had caused alarm among the local population. The Government asserted that Mr Damjanović’s case was also sensitive given, inter alia, that it concerned the torture of a large number of victims. Another reason for the transfer of Mr Damjanović’s case to the State Court was that better facilities were available for the protection of witnesses at the State Court; there was thus a higher risk of witness intimidation at the Entity level. 79. The applicants disagreed with the Government. They maintained that their cases were neither sensitive nor complex. Mr Maktouf also argued that his Iraqi nationality and his religion had been the key reason for the State Court’s decision to retain jurisdiction. 80. The Office of the High Representative, in its third-party submissions of November 2012, agreed with the Government. 81. The notion of discrimination has been interpreted consistently in the Court’s case-law with regard to Article 14 of the Convention. This case-law has made it clear that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations. The same term, discrimination, is also used in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions, the meaning of this term in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009). 82. In the present case, the Court first notes that given the large number of war crimes cases in post-war Bosnia and Herzegovina, it is inevitable that the burden must be shared between the State Court and Entity courts. If not, the respondent State would not be able to honour its Convention obligation to bring to justice those responsible for serious violations of international humanitarian law in a timely manner (see Palić v. Bosnia and Herzegovina, no. 4704/04, 15 February 2011). 83. The Court is aware that the Entity courts imposed in general lighter sentences than the State Court at the relevant time (see paragraph 30 above), but that difference in treatment is not to be explained in terms of personal characteristics and, therefore, does not amount to discriminatory treatment. Whether a case was to be heard before the State Court or before an Entity court was a matter decided on a case-by-case basis by the State Court itself with reference to objective and reasonable criteria outlined in paragraph 40 above (contrast Camilleri v. Malta, no. 42931/10, 22 January 2013, in which such a decision was dependent only on the prosecutor’s discretion). Accordingly, in the particular circumstances of this case, there is no appearance of a violation of either Article 14 taken in conjunction with Article 7 of the Convention or of Article 1 of Protocol No. 12 (see Magee v. the United Kingdom, no. 28135/95, § 50, ECHR 2000 VI, and Šimšić, cited above). 84. The applicants’ discrimination complaint is therefore manifestly ill ‑ founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 85. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 86. Mr Maktouf claimed that he had been unable to run his company as a result of his trial and punishment and that he had suffered damage in the amount of 500,000 euros (EUR). 87. The Government considered the claim to be unsubstantiated. 88. The Court agrees with the Government and rejects this claim for lack of substantiation. B. Non-pecuniary damage 89. Mr Maktouf claimed EUR 100,000 under this head. Mr Damjanović also claimed compensation for non-pecuniary damage, but failed to specify an amount which in his view would be equitable. 90. The Government considered Mr Maktouf’s claim to be excessive. 91. Since it is not certain that the applicants would indeed have received lower sentences had the 1976 Code been applied (contrast Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, ECHR 2001 ‑ II, and Scoppola, cited above), the Court holds in the particular circumstances of this case that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants. C. Costs and expenses 92. Mr Maktouf further claimed EUR 36,409 for the costs and expenses incurred before the domestic courts. Mr Damjanović was granted legal aid under the Court’s legal-aid scheme in the total amount of EUR 1,545 for his counsel’s appearance at the hearing before the Grand Chamber. He sought reimbursement of additional costs and expenses incurred before the Court in the amount of EUR 13,120. 93. The Government considered the claims to be unsubstantiated. 94. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. That is, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent the above requirements have been met. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants EUR 10,000 each, plus any tax that may be chargeable to them, under this head. D. Default interest 95. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court declared the first applicant’s complaint under Article 6 § 1 of the Convention inadmissible as being manifestly ill-founded, seeing no reason for calling into question the finding of the Constitutional Court of Bosnia and Herzegovina in this case that the State Court had been independent. It found in particular that there were no reasons to doubt that the international judges of the State Court were independent of the political organs of Bosnia and Herzegovina, of the parties to the case and of the institution of the High Representative. The international judges’ appointment had precisely been motivated by a desire to reinforce the independence of the State Court’s war crime chambers and to restore public confidence in the judicial system. Moreover, the fact that the judges in question had been seconded from amongst professional judges in their respective countries represented an additional guarantee against outside pressure. Admittedly, their term of office was relatively short, but this was understandable given the provisional nature of the international presence at the State Court and the mechanics of international secondments.