TrustHLT/LaCour huggingface dataset:
GR1 (Government): The respondent party notes that the courts comprising international and national judges are not specific for Bosnia-Herzegovina only, but also for Sierra Leone, Cambodia, and Kosovo.
GR1 (Government): And their ratio for their establishment was the strengthening of the judicial decision-making capacity in complex war crime cases, as well as the strengthening of the trust in courts in the post-conflict ethnically divided society.
GR1 (Government): The respondent particularly finds inaccurate and unfounded the applicant's allegation that the international judges were arbitrarily shifted from the first instance to second instance panels and vice versa.
GR1 (Government): The truth is that the proceedings before the court of BIAJ are managed upon the schedules periodically adopted in accordance with the two-instance system, whereby one judge can never sit on both the first instance and the second instance panel.
GR1 (Government): With regard to allegations of violation of Article VII due to the fact that both applicants were tried and convicted under the new B&H criminal code of 2003, the respondent reiterates the following.
GR1 (Government): When examining applicability of substantive law and sentencing for war crimes against civilians, the court of BIAJ took into consideration both the criminal code of SFRY of 1976, which was in effect at the time of the perpetration, and the B&H criminal code of 2003, in effect in time of the pronouncement of the sentence.
GR1 (Government): The court decided to apply the B&H criminal code as more lenient law, given that it does not carry the death penalty for the given offense.
GR1 (Government): The respondent recalls that under the standards of the convention, the principle of legality of criminal prosecution requires that the relevant offense must constitute a criminal offense under national or international law at the time of perpetration.
GR1 (Government): No heavier penalty can be imposed other than the one that was applicable at the time the offense was committed.
GR1 (Government): The norms must be codified in a clear manner in order to meet the requirements of foreseeability and availability.
GR1 (Government): Accordingly, from the aspect of foreseeability and availability, there is no difference between the two laws in question, as they both prescribe war crime against civilians, as well as maximum penalties for that offense within the given law.
GR1 (Government): When it comes to determination of the application of the relevant criminal code to the applicant's specific actions as members of armed forces, the court of B&H took into account the fact that the offenses that the applicants were indicted were also prescribed in the Geneva Conventions.
GR1 (Government): The trial panel also took into account the fact that the 1976 criminal code was in effect in time when the applicant committed a war crime against civilians.
GR1 (Government): The maximum penalty prescribed by that code for this offense was the death penalty, while the minimum was five years of imprisonment.
GR1 (Government): The same criminal offense, but a different social and legislative context, is codified by the B&H criminal code of 2003, but it envisaged as a maximum a long time imprisonment from 20 to 45 years, and as the minimum, 10 years of imprisonment.
GR1 (Government): The court of B&H, therefore, properly concludes that the B&H criminal code of 2003 is the only law applicable to the applicant's cases on the grounds of comparison between the maximum and minimum punishment foreseen for a specific criminal offense.
GR1 (Government): The Constitutional Court of Bosnia-Herzegovina supported the position of the court of B&H that severity of a legislation is assessed in terms of both minimum and maximum punishment foreseen, and it is, therefore, not possible to apply a minimum form from one and a maximum from another law, but only one or the other legislation, it is entirety.
GR1 (Government): B&H entities abolished that penalty not earlier than 1998 Federation B&H and 2000 Republic Srpska, when the criminal code of SFRY was replaced by the new entity legislation.
GR1 (Government): But then, was the death penalty removed from the domestic criminal legislation, thereby satisfying the state's obligation arising from the protocol number six?
GR1 (Government): In other words, prior to these dates, the law was never changed to remove the death penalty, nor to prescribe another prison sentence as a maximum penalty, in which case such law could be considered as more lenient as the applicants claim.
GR1 (Government): Besides, the transitional provisions of 2000 Criminal Code of the Republic Srpska clearly set out that the death sentence pronounced in a final court proceeding shall become a sentence of life imprisonment.
GR1 (Government): This position of the respondent is strongly supported by the case law in Carmo, Vesuz, Bulgaria from January 2006, concerning the law more lenient to the perpetrator in the context of the abolishment of the death penalty and the introduction of a new law replacing this sentence by a long-term imprisonment.
GR1 (Government): The respondent believes that the BNH Constitutional Court was resolved this issue by stating that, constitutional court holds that it's simply not possible to eliminate the more severe sanction and apply only other more lenient sanctions, so that the most serious crime would, in practice, be left inadequately sanctioned.
GR1 (Government): It is not only that the sentence of 15-year imprisonment is evidently more lenient, but it's also a different type of punishment and, as such, by its nature, it cannot be a substitute for the death penalty.
GR1 (Government): The respondent would particularly like to note that the essence and the character of the criminal offense of which the applicants were accused and punished by the law should be kept in mind.
GR1 (Government): The punishment of this type of criminal offenses after all short of armed conflict and changes of the ruling regime through the world Nuremberg and Tokyo trials, the fall of the Berlin Wall, the conflict in Rwanda and former Yugoslavia, was adjusted to obligation to adequately punish those responsible at the time when they were tried for such offenses.
GR1 (Government): In such cases, the strict principles of legality as referred to the Article 7.2 were departed from as necessary
GR1 (Government): in order to satisfy the interest of justice.
GR1 (Government): The second paragraph is not interpreted separately from paragraph 1.
GR1 (Government): The respondent first wishes to recall that immediately after the country gained independence, a war broke out in its territory, which delayed the adoption of its own laws in accordance with the obligations set forth in the 1949 Geneva Conventions.
GR1 (Government): Thus, the Criminal Code of 1976 was formally in effect during the 1992-1995 state of war in territorially internationally recognized Republic of Bosnia-Herzegovina.
GR1 (Government): The 2003 Criminal Code of Bion Age is thus the law by which Bosnia-Herzegovina responded to its international obligation it already assumed after becoming a sovereign country, but had been prevented from acting accordingly due to objective circumstances.
GR1 (Government): As a result of 2003 reform, provisions of offenses pertaining to international criminal law were removed from the entity legislation.
GR1 (Government): The Bion Age Criminal Code of 2003 incorporated criminal offenses under international law as provided for the Criminal Code of SFRY, but with some additional forms of criminal offenses, but also punishable at the time.
GR1 (Government): For example, the crimes against humanity and different and more comprehensive legal qualifications based on the experience of the ICTY and ICC cases.
GR1 (Government): The law of the former state, that is Criminal Code of 1976, was enacted as a response by the former Yugoslavia, as a UN member state, to requirements of Geneva Conventions, as served as a legal framework for the prosecution of war crimes committed during the Second World War.
GR1 (Government): It foresees that death penalty as the maximum punishment for this type of criminal offenses.
GR1 (Government): Furthermore, it should not be disregarded that it was enacted as part of legislation of a totalitarian regime where its norms had to be harmonized with it.
GR1 (Government): The respondent is of the view that the crimes committed in its territory from 1992 to 1995 must not to be underestimated by inadequate punishment of entire impunity.
GR1 (Government): The Radanovic case, to which the OSCE mission to be an age, refers an example in its document of such possibility resulting from the application of outdated legislation of former Yugoslavia.
GR1 (Government): The trials conducted in Germany after the fall of the Berlin Wall and the social system transition gave the preference to the requirements of general justice over the principle of strict legality in order not to restrict facing with the past and grave human rights violations.
GR1 (Government): The European Court found such interpretation to be in accordance with Article 7.1 or 7.2 of the Convention.
GR1 (Government): Such interpretation of the rule of law is applicable on this case.
GR1 (Government): The respondent finds the jurisprudence established in Strelitz-Kessler and Krenz versus Germany applicable to the present case.
GR1 (Government): Then the reasoning by the trial panel in Kurtovic, which did not pass the test by the Constitutional Court of BIAGE, is disputable from the aspect of the mandatory combat against impunity.
GR1 (Government): Namely, judging upon the court's reasoning in this case, the new law would be applicable only in the cases tried for crimes against humanity or certain forms of command responsibility, given that the criminal code of SFRY did not codify these offenses.
GR1 (Government): Since the criminal code of BIAGE is the only national law which adequately reflect international law, which law should indisputably be applied to such cases, while for other war crimes, such as genocide or war crimes against civilians, prescribed by both of the criminal code of SFRY and BIAGE, the SFRY code would be applied.
GR1 (Government): Crimes against humanity by these assumptions would carry a punishment of 45 years in prison, while genocide, as the gravest form of a crime against humanity, would carry a maximum sentence of 15 years or 20, instead of that penalty.
GR1 (Government): This kind of interpretation of the law and the panel policy resulting therefrom are hardly justifiable.
GR1 (Government): By any construction of the principle of legality, the trial panel seems to have neglected the provision set forth in Article 7.2 of the European Convention.
GR1 (Government): With regard to the third issue the court raised concerning six cases in which the trial panels of the court of BIAGE changed their approach, the respondent provides the following explanations.
GR1 (Government): It cannot be said that six cases reflect the prevailing case law.
GR1 (Government): On the contrary, in the great majority of judgments of the court BIAGE, the criminal code of 2003 is applied.
GR1 (Government): Keeping these judgments in force is the consequence of non-existent the Supreme Court of BIAGE, which would regulate these issues on grounds of prevailing case law and appropriate application of the substantive law.
GR1 (Government): Since the beginning of its work until 27 November 2012, the court of BIAGE rendered a total of 175 judgments in war crimes cases, both first and second instance judgments.
GR1 (Government): Of this number of criminal code of SFRY was applied on six judgments only.
GR1 (Government): Furthermore, from the date of the pronunciation of the second instance judgment in Kurtovic case, that is from 25 March 2009 until end of November 2012, 102 judgments were rendered in total, out of which criminal code of SFRY was applied in five judgments only.
GR1 (Government): Therefore, it would not be correct to assume that the approach of the court on BIAGE regarding the application of substantive law has changed since the adoption of the first judgment in which the criminal code of SFRY was applied, Kurtovic.
GR1 (Government): On contrary, regarding the determination as to the more lenient law, the court has continued to apply the previous practice in a vast majority of cases.
GR1 (Government): With regard to foregoing the answer to the second part of the court's questions, the sentencing practice of the state court has not changed.
GR1 (Government): However, regarding the applicant's claim that the application of the criminal code of SFRY would result in a more lenient sentencing, the respondent observes that these six judgments, including that in Kurtovic case, did not affect the sentencing practice of the court of BIAGE.
GR1 (Government): In Kurtovic, having modified the earlier judgment concerning the legal qualification and found that the criminal code of SFRY was more lenient to the perpetrator, the second instance panel of the court of BIAGE imposed on accused the sentence identical to the one rendered by the first instance panel.
GR1 (Government): That is, he sentences him to 11-year imprisonment.
GR1 (Government): This indicates that the fact that the court determination of the applicable law had no actual effect on the accused, that is, that the criminal code of SFRY was not applied in his favor, which is absurd.
GR1 (Government): This is so because the court was imposing sanctions independently from the theoretical discussions as to the applicable law, which will be explained below.
GR1 (Government): In the six aforementioned cases, the trial panel departed from the common conclusions of the trial panels of the court of BIAGE, that if one law prescribes the sentencing scope from five years in prison to the death penalty and the other from 10 to 45 years in prison, the latter is more lenient due to existence of the death penalty in the former.
GR1 (Government): In these six cases, the trial panel first evaluated what sentence should be imposed on the accused, guided by the panel's intimate belief, which has not yet been based of any legal framework.
GR1 (Government): Thereupon, having found that such a conceived sentence should be in a lower range, closer to the legal minimum, the panel decided to determine a more lenient law by comparing the minimum sentences prescribed by each law while disregarding the maximum sentences prescribed by these laws.
GR1 (Government): At the end of its oral submissions, the respondent wishes to refer to the applicant's complaints concerning Article 14 to the Convention and Article 1 of Protocol 12 of the Convention.
GR1 (Government): In the course of the trials against the applicants, the court of BIAGE had exclusive jurisdiction over all cases initiated after the entrant of force, the new BIAGE Criminal Court 2003.
GR1 (Government): Only at the later point in time, under the burden of cases and the time required of their processing, as well as adoption of national war crimes prosecution strategy, a part of the case from jurisdiction of the court of BIAGE is transferred to the relevant entity courts.
GR1 (Government): In its decision in Simšić versus of BIAGE, European Court for Human Rights found that there is nothing disputable in the fact that the applicant's case was allocated in the same way as Damjanović to be tried before the court of BIAGE because that was done primarily on grounds of objective and reasonable criteria, such as case sensitivity and complexity, and not on grounds the applicant's personal characteristic.
GR1 (Government): With regard to all of the foregoing, the respondent, Bosnia-Herzegovina, invites the court to dismiss the applicant's complaints pertaining to Article 6, 7, 14, and Article 1 of Protocol Number 12 to the Convention as ill-founded.
Dean Spielmann (JudgeP): Thank you, Miss Ibrahimovic.
Dean Spielmann (JudgeP): I call Mr. Lejlić, please. You have the floor.
AP1 (Applicant): Your Honors, it is a great pleasure to address this esteemed court.
AP1 (Applicant): And applicants hope that these remarks have the potential to help the court in clarifying the legal situation that stemmed from the application they have launched before it.
AP1 (Applicant): First of all, applicants would like to stress that they stand by all the arguments, submissions, and requests as they are submitted in applicants' written submissions.
AP1 (Applicant): These arguments will not be repeated here.
AP1 (Applicant): But it should be clear that arguments we present today are merely an addition to the written arguments made in response to the submission of Bosnia-Herzegovina of October 15, 2012, and the Office of the High Representative of November 7, 2012.
AP1 (Applicant): Article 6, independence of the judges.
AP1 (Applicant): This is OHR submissions.
AP1 (Applicant): The first part of the applicant's response to the OHR submission will deal with paragraphs 8 to 18.
AP1 (Applicant): In this part of the submission, several references were made to the ICTY.
AP1 (Applicant): Although applicants consider work of the ICTY to be extremely important with limited expectations, this institution has no actual official legally recognized influence on war crimes trials in Bosnia-Herzegovina, especially when it comes to the application of the law.
AP1 (Applicant): If the situation would be any different, it would indeed be a unique situation in the world, where an internationally ad hoc institution would direct, in some way, a permanent domestic court.
AP1 (Applicant): The General Framework Agreement for Peace in Bosnia-Herzegovina of December 14, 1995, effectively ended several years of war on the territory of Bosnia-Herzegovina.
AP1 (Applicant): The signatories to this historic peace treaty included the Republic of Bosnia-Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia.
AP1 (Applicant): The date on peace agreement consists of 11 articles and just as many annexes, covering a range of topics from boundary demarcation, treatment of refugees, and elections to civilian implementation of the peace agreement.
AP1 (Applicant): Most important of all- Mr.
Dean Spielmann (JudgeP): Dr. Lejlić, I'm sorry to interrupt you,
Dean Spielmann (JudgeP): could you please speak slow?
Dean Spielmann (JudgeP): Yes, please slow down for the sake of interpretation.
AP1 (Applicant): and found the accused guilty of the criminal offense of war crimes against civilians The court granted the defendants more lenient sentences than the code provides for 9, 7, and 5 years imprisonment It is very important to note that in these cases where the old code was applied, it was all done so by the appeals chamber To this date, there has not been one judgment applying the old code before trial chambers even when sentences are below the prescribed minimum in the new code For example, in the Terzi-Chalbina case, the accused was found guilty of the criminal offense of war crimes against civilians under the new code and was sentenced to 5 years imprisonment In the Selmanovic-Mehura et al. case, two of the accused were found guilty of the criminal offense of war crimes against civilians
AP1 (Applicant): and three of the accused were found guilty of war crimes against prisoners of war under the new code Two of the defendants were sentenced to 8 years imprisonment and one to 9 years imprisonment In the Mucinov-Zurahid et al. case, one of the accused was found guilty of the criminal offense of war crimes against civilians
AP1 (Applicant): under the new code and was sentenced to 8 years imprisonment The other defendant was acquitted The prohibition of retrospective application of law is a well-established principle in the realms of both domestic and international law Article 7 of the Convention embodies precisely this principle Before we go into more detail and deal with OHR submission, we would like to stress out that applicant's cases are not the cases where conduct in question was not prescribed by the code that was enforced at the time when the alleged offense occurred This seems to be the gist of both OHR submission and BHI submissions of October 15, 2012 Actions for which both of the applicants were found guilty were prescribed in the code that was enforced at the time when this alleged offense occurred These are not cases dealing with exceptions as provided in Article 7, paragraph 2 These are the cases that exclusively deal with Article 7, paragraph 1 Applying the harsher penalty retrospectively in this case is a violation of Article 7, paragraph 1 and further there is no logical reason to do so The Office of the High Representative argues that the 2003 criminal code should be applied retroactively to the accused in this case and that the retrospective changes to the law are permissible so long as they could be reasonably predicted The OHR cites SW v. United Kingdom and the German reunification cases in support of its argument
AP1 (Applicant): However, these cases are both inapplicable to the present case SW v. United Kingdom is clearly distinguishable from this case
AP1 (Applicant): The Court held that removal of the marital immunity exception to rape by common law development was foreseeable and therefore did not violate Article 7 The Court held that the domestic courts continued a perceptible line of case law development, dismantling the immunity It was foreseeable because of the nature of common law development The law evolved through a line of case law over the course of several years to reflect society's changing attitudes This is clearly different from the enactment of new legislation that prescribes a heavier penalty in relation to the accused than did the old legislation It was not a change that happened gradually due to a more progressive thinking society It was a measure that was put into place to give a harsher punishment to the perpetrators of crimes The German reunification cases are also distinguishable from the present case The retrospective application of laws in those cases were done in order to ensure impunity for perpetrators of war crimes would not arise That is clearly not an issue in the present case, as the applicants have been convicted of a criminal offense that was prescribed in the criminal code that was enforced at the time when the offenses were committed In addition, both applicants have dealt extensively with arguments and reasons why the exception to Article 7, Paragraph 1 as prescribed in Article 7, Paragraph 2 does not apply in their cases This exception applies in cases where the criminal offense was not prescribed in the law at all, which is not the issue in the present cases Also, the argument that the application of the 1976 Criminal Code or 1998 FBH Criminal Code does not require any more direct application of international law insofar as the Criminal Code of BH contains the same shortcomings, which is true for most codes dealing with war crimes An example would be the ICTY Statute Article 3 Article 142 of the FRI CC provides similar lines and Article 173 of the new Criminal Code of BH the same However, in violation of rules of international law in the time of war, armed conflict or occupation Clearly, this argument from OHR's submission is completely wrong Paragraph 43 of the OHR's submission is clearly legally wrong as it stated that a sentence of imprisonment for several months as punishment for a crime of genocide could be possible According to the Criminal Code that was enforced when the applicants committed offenses of which they were found guilty, the prescribed minimum sentence is 5 years in prison That can be, under special circumstances, mitigated to 1 year Of course, this argument is completely hypothetical as it is impossible to envisage all of the possible cases It is important to stress that OHR did not deal with this Court's jurisprudence in Scoppola at all States cannot change their laws after an event in order to punish perpetrators This would not only be contrary to modern legal norms, it would be fundamentally unjust No matter how controversial the crime, a state must follow the laws that are in place at the time In Norway v. Breivik, the defendant received a punishment that has been widely criticized as being too lenient