Punishment according to the general principles of law recognised by civilised nations

The objective of the provisions of paragraph 2 is to fill the gaps within the domestic criminal legislation, which could be subject to the prohibition of retrospective laws. As a result, the sentencing and punishment of a certain person cannot be ruled out in cases where the person is charged with an offence on account of any act or omission, which, at the time it was committed, was criminal according to general principles of law, recognised by civilised nations.

During the war in Bosnia and Herzegovina, war crimes were legally punishable as crimes under international law. The Former SFRY signed and ratified, inter alia, the four Geneva Conventions and the 1977 Additional Protocols. At the time of the declaration of independence, i.e., on 6 March 1992, the Republic of Bosnia and Herzegovina obliged itself to comply with international law, which had been ratified by SFRY. Accordingly, the prohibition of retrospective laws under Article 7 paragraph 1 of the ECHR does not prevent the punishment of war crimes committed between 1991 and 1995.¹⁴⁵⁴

As to the prohibition to impose a heavier penalty, a very interesting issue arose before the Constitutional Court of BiH and the Human Rights Chamber for BiH. Actually, pursuant to the Criminal Code of SFRY applicable during the war, a maximum penalty that could be imposed was 20 years imprisonment or the death penalty. In the Criminal Code of FBiH, which was applicable after the war, the legislature increased the penalty to a maximum term of imprisonment of 40 years. Upon the entry into force of the Constitution of BiH and, accordingly, of the Second Optional Protocol to the International Covenant on Civil and Political Rights,¹⁴⁵⁵ the possibility of imposing the death sentence as an alternative to imprisonment in Bosnia and Herzegovina was abolished. Given such legal developments, inter alia, the arguments were presented before the Constitutional Court of BiH and the Human Rights Chamber for BiH according to which the severity of penalties had to be determined consistent with a maximum penalty stipulated by the Criminal Code of SFRY (20 years imprisonment), and not in accordance with the new Criminal Code of FBiH (40 years imprisonment). In proceedings conducted before the Human Rights Chamber for BiH, it was possible to circumvent a direct answer to this question by presenting the fact that the penalties imposed in the relevant case had been 9 years imprisonment and 12 years imprisonment, respectively, so that the consideration of the issue related to the maximum penalty within the meaning of Article 7 paragraph 1 of the ECHR was unnecessary.¹⁴⁵⁶

In its Case No. AP 1785/06, the Constitutional Court of BiH presented its view in respect of the said relationship between the prison sentence and the death penalty, although the prison sentence imposed in that case was substantially below the legal maximum – the appellant was sentenced to 5 years imprisonment. According to the view of the Constitutional Court of BiH, the retrospective imposition of a heavier penalty does not constitute a violation of Article 7 paragraph 1 of the ECHR, if it is justified under paragraph 2 of the same Article. Article 7 paragraph 1 of the ECHR prohibits neither the retrospective application of the law nor does it exclude reconviction for the same offence (the principle of ne bis in idem). Article 7 paragraph 1 of the ECHR is limited to cases in which an accused person is found guilty and convicted of a criminal offence.¹⁴⁵⁷ Article 7 paragraph 2 of the ECHR refers to “the general principles of law recognised by civilised nations”, and Article III.3(b) of the Constitution of BiH incorporates “the general principles of international law” into the domestic legal system. Thus, the Statute of the ICTY is also part of the legal system of Bosnia and Herzegovina.¹⁴⁵⁸ There is no violation of Article 7 paragraph 1 of the ECHR if the domestic law does not stipulate criminal sanctions for certain offences at the time of their commission. However, these offences are war crimes under international law.

By using these arguments in Case No. AP 1785/06, the Constitutional Court of BiH does not rely on the punishability and penalty prescribed by the domestic legal system, but the one prescribed in accordance with international law, i.e., the four Geneva Conventions and the 1977 Additional Protocols, the Convention on the Prevention and Punishment of the Crime of Genocide, and the general principles of law recognised by civilised nations.¹⁴⁵⁹ The wording of Article 7 paragraph 2 of the ECHR is not restrictive and it has to be construed dynamically. Furthermore, this Article encompasses also other acts which imply immoral behaviour generally recognised as criminal according to national laws.¹⁴⁶⁰

In its Case No. AP 1785/06, the Constitutional Court could also rely on the judgment of the ECtHR in the case of Naletilić.¹⁴⁶¹ In the said judgment, the European Court presented its arguments according to which the issue of the application of a “more lenient law” ought to be assessed under paragraph 2 rather than paragraph 1 of Article 7 of the Convention. The Constitutional Court of BiH provides the reasoning for such a position also based on the case-law related to the Nuremberg and Tokyo Military Trials conducted in 1945 and 1946. At that time, the accused were sentenced for crimes that were only subsequently, i.e., by the Geneva Conventions, legally defined.¹⁴⁶² At any rate, the concept of individual criminal responsibility for acts committed contrary to the Geneva Conventions or appropriate national laws is very closely related to the concept of human rights protection. Namely, human rights and related conventions concern, inter alia, the right to life, the right to physical and emotional integrity and the prohibition of slavery and torture. As a rule, violations of these rights lead to criminal responsibility under law. Therefore, inadequate sanctions for perpetrators of crime or a lack of protection of victims would contravene the principle of fairness and the rule of law.¹⁴⁶³

Similar issues arose in Case No. AP 656/04. The appellant was charged with the offence of the murder of two or more persons. At the time the offence had been committed, a sentence of 10 years imprisonment or the death penalty was prescribed in the Criminal Code of the Republika Srpska – Special Part.¹⁴⁶⁴ At that time, the maximum term of imprisonment under the Criminal Code of the Republika Srpska – General Part,¹⁴⁶⁵ was 15 years. Exceptionally, the maximum term of imprisonment under the Criminal Code of the Republika Srpska – Special Part, for the offences for which the death penalty could be imposed, was 20 years. As the possibility to impose the death penalty had been ruled out after the entry into force of Protocol No. 6 to the ECHR, the appellant before the Constitutional Court of BiH presented his arguments asserting that the prison sentence had to be assessed under the general provisions governing the maximum term of imprisonment (that is, 15 years), and not under the exceptions prescribed for offences for which the death penalty might be imposed (20 years imprisonment). The Constitutional Court of BiH disagreed with the appellant’s view and underlined that the maximum term of 20 years imprisonment had not been prescribed as a replacement for the death sentence but as an alternative punishment. We are inclined to support this view given that the decisive issue is related to the severity of the penalty for an offence, which a perpetrator can “count on” at the time of the offence. In cases where the law foresees alternative punishments and, subsequently, one of those is ruled out (in the relevant case, the death penalty), the perpetrator cannot claim that another alternative is ruled out, too, and that the general rules on the imposition of a prison sentence must be applied. The perpetrator was aware that he could be subject to the death penalty or the sentence of 20 years imprisonment at the time the offence was committed.