Jezik / Language:
27 December 2013

Misapplication of the Law - The Madness of Justice

Mirna Buljugic BIRN BiH Sarajevo
Lawyer Miodrag Stojanovic says that the decision of the European Court of Human Rights regarding the application of the law led to a mess in the judiciary, explaining that indictees charged with crimes against humanity were left in a disadvantaged position, while those who are indicted for genocide “sneaked out”.
In the interview to BIRN - Justice Report, Stojanovic explained how the application of the Criminal Procedure Code of Bosnia and Herzegovina (KZ B&H) and the Criminal Procedure Code of the Socialist Federal Republic of Yugoslavia (KZ SFRJ) became the problem, adding that the “new practice” is representative now.

“We have come to an absurd situation in which we wonder whether someone who is charged for a minor criminal offence before the Court of Bosnia and Herzegovina will get the higher prison sentence than the one who is indicted for a bigger offence, such as genocide”, said Stojanovic. According to him, under the KZ BiH, an indictee for crimes against humanity can get up to 45 years in prison, while for genocide an indictee cannot get more than 20 years.

Stojanovic is long-time attorney in Bosnia and Herzegovina, and also works on war crimes cases. Also, Stojanovic is part of the Defence team of Ratko Mladic, former commander of the Republika Srpska Army (VRS), who is on trial before the International Criminal Tribunal for the former Yugoslavia (ICTY) for genocide and crimes in Bosnia and Herzegovina.

The European Court of Human Rights found that the Court of Bosnia and Herzegovina had not applied the law that is more lenient to the perpetrators in the case of Abduladhim Maktouf and Goran Damjanovic. In this case, the Court of Bosnia and Herzegovina applied the KZ BiH from 2003, and not the KZ SFRJ, which was in force at the time when the offence was committed.

Subsequently, the Constitutional Court of Bosnia and Herzegovina adopted a dozen other appeals by abolishing the verdicts because it believes that the wrong law was applied.

KZ SFRJ does not have the provision for crimes against humanity which is represented in the KZ BiH. Stojanovic explains that in KZ SFRJ exists the crime of genocide but that the prescribed punishment is the same as for crimes against prisoners of war or civilians. According to him, this is “insane”, given that genocide is the worst possible crime.

Stojanovic explained the difference between genocide and crime against humanity. “We colloquially call crimes against humanity a ‘small genocide’ because a crime against humanity can be murder, persecution, ethnic cleansing, abuse, torture and other inhumane acts. The crime of genocide can contain all of this, but it has the key difference - specific intent to destroy the entire population of an ethnic, religious or national group by committing these acts”, says Stojanovic.

Genocide is hard to prove

Stojanovic says that it is very difficult to prove that someone has committed genocide, adding that in all judicial systems before the war there was not even one single case of genocide.

“It is very difficult to prove that someone had the consciousness to destroy everything. Looking at the consequences, genocide may be smaller than a crime against humanity, but there must be a willingness and desire to destroy everything”, says Stojanovic.

According to Stojanovic, the ICTY pronounced its first sentence for genocide against Radoslav Krstic who is, in the history of the judicial system, the first European citizen to have been convicted of genocide by an international court. Krstic, former commander of the Drina Corps of the VRS was sentenced to 35 years in prison on August 15, 2001.

When it comes to the application of law before the Court of Bosnia and Herzegovina, Stojanovic cites the example of Franc Kos, Stanko Kojic, Vlastimir Golijan and Zoran Goronja, former members of the Tenth Reconnaissance Squad with the VRS. They were sentenced to a total of 112 years for crimes against humanity committed against citizens of Srebrenica in 1995.

“Lawyers have tried to prove that it was not genocide as it was written in the indictment and they succeeded. In its explanation, the Court said that ‘they did not have the will to kill all the people, the will was different. They did not do it to take money, because that was also offered to them’. Thus, they were sentenced for crimes against humanity, and so they do not enter this category of trials under the KZ SFRJ”, says Stojanovic.

Considering the situation in which indictees of war crimes and genocide were brought, Stojanovic believes that they will now be sentenced under the KZ SFRJ and their sentences will be reduced. The maximum penalty under this law is not 45 years or the minimum ten years, as it is the KZ BiH. It is in fact 20-and-a-half years of imprisonment.

“It will be an interesting situation facing indictees for crimes committed in Kravica. In light of the decisions which were made by the European Court of Human Rights and the Constitutional Court , they will be convicted of genocide by the KZ SFRY and their sentence will be reduced to 20 years instead of 28, 31, 32 years, and they will be returned to prison”, said Stojanovic.

Slobodan Jakovljevic, Branislav Medan and Petar Mitrovic were sentenced of genocide to 28 years, Aleksandar Radovanovic and Brane Dzinic to 32, and Milenko Trifunovic to 33 in prison for their roles in the killing of more than 1,000 Bosniaks in Kravica (Municipality of Bratunac), on July 13, 1995 after the fall of the UN protected zone in Srebrenica.

Stojanovic says indictees of crimes against humanity are in disadvantaged position compared to others, and that they are not the same, according to the law. According to him, those who are indicted of genocide “sneaked out perfectly” in this new situation.

Praying to God for Genocide

“Now, the indictees only pray to God that they will not be convicted for crimes against humanity. But if I would be the ‘bad’ prosecutor, I would not indict them of genocide, but of crimes against humanity”, says Stojanovic.

He added that he was shocked when he heard the explanation of the European Court of Human that “the court worked under the instructions of The Office of the High Representative (OHR)”. “The system has led to this absurd situation and the system should admit: ‘We were wrong’, as well as the OHR itself”, says Stojanovic.

However, he says that we should not ignore the role of the Constitutional Court of Bosnia and Herzegovina since they made two different versions of the decision and because of it, “the whole story is terrible”.

“I agree with Azra Miletic, judge of the Appellate Chamber of the Court of Bosnia and Herzegovina who publicly said that ‘'as you are calling upon us at the expense of criminal responsibility, we have to respect the decision of the Constitutional Court regarding the abolition of the verdicts. But, we also should be held responsible if we did not do it when they brought the decision to reject the appeal of Maktouf and Damjanovic”, says Stojanovic.

According to Stojanovic, the indicator of the OHR’s flawed strategy is an upcoming visit to Brussels by Meddzida Kreso, President of the Court of Bosnia and Herzegovina and Goran Salihović, Chief Prosecutor of the Prosecution of Bosnia and Herzegovina.

Attorney Stojanovic also commented on the current state of affairs that now, indictees, and especially the citizens of Serbia can go to Serbia, where the Criminal Procedure Code does not recognise crimes against humanity, and genocide is not prosecuted because of political reasons.

“Who can prevent me to go to Serbia and stand trial there? Especially if I have their citizenship so they will not extradite me, but they will put me on trial there. For example, I will stand trial for crimes against civilians and crimes against war prisoners of war and I will get a maximum of 20 years. Formally speaking, in Bosnia and Herzegovina I can get 45 years in prison for crimes against humanity”, says Stojanovic.

However, he concludes that the possibility of prosecuting of indictees in Serbia is not something spectacular, because he, as an attorney, will advocate for the legality of the law in relation to the new situation in Bosnia and Herzegovina.

“I have a client who is on trial for crimes against humanity before the Court of Bosnia and Herzegovina, and I will always repeat the argument to the court such as: “Your Honour, how can you convict this man of crimes against humanity to more than 20 years, while those who are indicted for genocide, you cannot sentence to more than 20 years in prison. Well, do not give him more than 20 years. Equalise the court practice”, he concludes.
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