Naslov
Penalization of International Crimes in Bosnia and Herzegovina: Diversity of Applicable Law and Implications of the Principle of Legality

Autori
Smailagić, Nedžad

Vrsta, podvrsta i kategorija rada
Poglavlja u knjigama, znanstveni

Knjiga
International Crimes in National Regulations of Selected States

Urednik/ci
Grzebyk, Patrycja

Izdavač
Instytut Wymiaru Sprawiedliwości

Grad
Varšava

Godina
2022

Raspon stranica
69-98

ISBN
978-83-67149-25-9

Ključne riječi
Bosnia and Herzegovina ; International Crimes ; National Law ; Principle of Legality ; Lex mitior

Sažetak
Multiple criminal codes are applicable in national prosecutions of international crimes in Bosnia and Herzegovina (BiH) in cases involving allegations of international crimes committed during the 1992- 95 war. Most applied are the 2003 Criminal Code of BiH (2003 CC BiH) and the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia (1976 CC SFRY) as the code tempore criminis. The purpose of this paper is two folded. In the first place, it aims at the analysis of the scope of penalization of international crimes in the two codes with specific reference to the catalogue of crimes, sentencing, and modes of liability. In the second place, it examines implications stemming from the principle of legality, as one of key principles of modern criminal law, in the context of differences between the two codes and their interchangeable application by the domestic judiciary, including the retroactive application of the 2003 CC BiH. The 1976 CC SFRY provides neither for provision on crimes against humanity as a crime under customary international (criminal) law nor the specific reference to command responsibility. In relation to sentencing, the two codes also significantly differ both regarding the catalogue of criminal sanctions and sentencing frameworks. Whilst the ECtHR shed some light on the applicability of the aforementioned codes in context of the lex mitior principle under Art. 7 ECHR in its judgment in the case of Maktouf and Damjanović v. BiH of 18 July 2013, major issues remain. The paper consists of three parts: while the first part provides for an overview of national prosecutions of international crimes in BiH, the second part outlines the scope of penalization of international crimes in the applicable domestic legislation. Implications of the principle of legality, as provided in the third part, shows that interchangeable application of the said two codes puts into question legal certainty and equality before the law. Further, it shows that prospects for harmonization of case law in this matter is limited due to constraints stemming from the country’s complex constitutional and judicial system. The paper concluded that the potential of wider application of 2003 CC BiH – which reflects customary law and treaty law – is unrealistic due to requirements of Art. 7 ECHR and is limited to cases involving allegations of crimes against humanity.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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