Judicial Body: Constitutional Court of Bosnia and Herzegovina

Bosnia has recently released more than a dozen convicted war criminals following a ruling by the European Court of Human Rights in July 2013. Among these criminals, six took part in the 1995 Srebrenica massacre. In response, three NGOs -TRIAL, the Association Movement of Mothers of Srebrenica and Žepa Enclaves and the Women’s International League for Peace and Freedom- use the only opportunity for the victims’ voice to be heard and taken into account, by submitting today a legal brief (amicus curiae) to the Constitutional Court. The text analyzes the case of one of the perpetrator of Srebrenica genocide in 1995, considering that his conviction to 24 years in prison did not violate his rights. The NGO calls on the Constitutional Court to reject his appeal.

“It is the duty of Bosnia and Herzegovina to ensure adequate and proportional punishment for the gravest crimes in international law and effective protection of victims from further violence and intimidation. The Constitutional Court should reject Ivanović’s appeal” said Adrijana Hanušić, TRIAL legal advisor in BiH.

Following a ruling by the European Court of Human Rights from July 2013, the Constitutional Court of Bosnia and Herzegovina annulled the conviction of more than a dozen war criminals and persons responsible for genocide finding that they had been tried under a more stringent criminal code (from 2003) than the one (from 1976) in force when the crimes were committed.

For example, Željko Ivanović was convicted last year to 24 years in jail for his participation in the crimes committed in Srebrenica. But in his appeal, Ivanović asks the Constitutional Court to quash his conviction and to order a new decision to be taken by the BiH Court in application of the 1976 code. The Court will rule on his appeal in the coming weeks.

The survivors of Srebrenica and their loved ones were outraged and dismayed at the release of the convicted criminals. Some of the perpetrators went back home and were celebrated as heroes by local authorities.The wounds of the victims have been reopened and the disillusion toward the justice system has reached its peak.

Munira Subašic, president of the Association of Mothers of Srebrenica who lost 22 family members in the massacre, said: “I feel like a victim again. I live in constant fear as I know that I can cross paths with my tormentors at every moment again”.

In response, TRIAL, the Mothers of Srebrenica and Žepa Enclaves and theWomen’s International League for Peace and Freedom are submitting an amicus curiae (legal brief) to the Constitutional Court as this represents the only opportunity for the victims’ voice to be heard and taken into account in the pending proceedings.

The legal brief rejects the arguments put forward by Ivanović: “It is the duty of Bosnia and Herzegovina to ensure adequate and proportional punishment for the gravest crimes in international law and effective protection of victims from further violence and intimidation. The Constitutional Court should reject Ivanović’s appeal” said Adrijana Hanušić, TRIAL legal advisor in BiH.

  • Read the amicus curiae submitted by TRIAL, the Mothers of Srebrenica and Žepa Enclaves and WILPF

Sarajevo/Geneva, 14 October 2011

TRIAL (Swiss Association against Impunity), seven associations of relatives of missing persons, seven associations dealing with women victims of sexual violence during the war and four associations dealing with former concentration-camp detainees submit a follow-up report to the United Nations Committee against Torture (CAT).

In October 2011 TRIAL, seven associations of relatives of missing persons(1), seven associations working on the subject of women victims of rape or other forms of sexual violence during the war(2) and four associations or federations of associations of former concentration camp-detainees(3) have submitted a follow-up report to the CAT to highlight the absence of any significant progress with regard to the fulfilment of the international obligations of Bosnia and Herzegovina (BiH). In fact, in November 2010, after having examined BiH’s periodic report, the CAT issued a number of conclusions and recommendations related to the obligations of BiH pursuant to the Convention against Torture. On that occasion the CAT requested BiH to submit follow-up information within one year with regard to the implementation of some of the recommendations contained in its concluding observations.

In particular, BiH failed to modify its criminal legislation with regard to crimes of sexual violence committed during the war and to bring it into accordance with international law; to solve the systemic problem of non-implementation of decisions and rulings issued by the Constitutional Court of BiH; to establish the Fund for Support for the Families of Missing Persons; and to guarantee adequate compensation and integral reparation for the harm suffered to relatives of missing persons, former camp-detainees and women victims of rape or other forms of sexual violence during the war.

“Relatives of missing people, victims of war-time rape and former camp detainees feel discouraged by the lack of implementation of the recommendations formulated by the CAT one year ago” said Ms. Lejla Mamut, the Human Rights Coordinator of TRIAL in Sarajevo. “All the more so, because authorities have not fulfilled their rights over the past 20 years: some of these people are dying and they have not seen justice done, nor have they obtained adequate compensation for the harm suffered or learned the truth about the fate or whereabouts of their loved ones”.

Although some actions have been undertaken on the recommendations formulated by the CAT with regard, for instance, to the investigation, judgment and sanction of crimes committed during the war, the pace of this process is far from satisfactory and the National Strategy for War Crimes is not being implemented in an effective manner.

Ms. Selma Korjenić, TRIAL’s Human Rights Officer in charge of sexual violence for BiH stressed that women victims of sexual violence during the war continue to experience serious troubles in realizing their rights. She highlights that “in some cases, associations dealing with this category of victims have been subjected to instances of harassment, threats or attacks that have been reported to competent authorities. However, to date those responsible for the crimes concerned have not been duly judged and sanctioned”.

In its concluding observations of November 2010, the CAT also recommended that BiH takes a number of measures with regard to the adoption of the law on the rights of victims of torture and civil victims of war; to the functioning of the Missing Persons Institute (MPI); to the completion of the Central Record of the Missing Persons (CEN); to the establishment of a mechanism to keep families of missing persons informed on the progress made in the process of exhumation and identification of mortal remains and to provide them psycho-social assistance during the process; and to the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance.

With minor exceptions, none of the measures recommended in 2010 by the CAT has been fully implemented to date, leaving relatives of missing persons, former camp-detainees and women victims of rape during the war to bear the brunt of violations that have been ongoing over the past 19 years. “This situation is causing a climate of deep distrust among victims of gross human rights violations from the war and their relatives towards Bosnian institutions and, given that not even the recommendations of international mechanisms are proving to be effective, there is a general feeling of powerlessness and frustration. BiH remains in breach of its international obligations” concluded Ms. Aleksandra Nedzi, TRIAL’s legal consultant in Sarajevo. “However”, she added, “TRIAL will continue monitoring this process and reporting to international mechanisms until this impasse is eventually overcome and the rights to truth, to justice and to reparation are fully guaranteed”.

Overall Context

It is estimated that around 100,000 persons died as a consequence of the conflict in BiH during the period 1992-1995 and that between 25,000 and 30,000 were victims of enforced disappearance. As of today, between 10,000 and 13,000 people are still missing. During the war the use of rape or other forms of sexual violence was widespread (rates of victims of sexual violence vary from 20,000 to 50,000). It is also known that during the war clandestine detention facilities were set up. At present, 652 places of detention have been registered. The total number of people who were held in the mentioned concentration camps has not been determined with certainty.

In October 2010 TRIAL, together with 11 local associations of relatives of missing persons and organizations dealing with women victims of rape or other forms of sexual violence submitted an alternative report to the CAT. Many of the recommendations contained in that 80-page report were reproduced in the concluding observations issued in November 2010 by the CAT. TRIAL has also filed 40 individual complaints before the European Court of Human Rights or the UN Human Rights Committee on behalf of relatives of missing persons. In May 2011, TRIAL and 12 associations dealing with the subject of victims of rape or other forms of sexual violence during the war submitted a general allegation to the United Nations Special Rapporteur on Violence against Women, its Causes and Consequences to highlight the ongoing violations suffered by this category of people. TRIAL will continue to resort to international mechanisms for the protection of human rights in order to turn the attention to the situation of families of missing persons, victims of sexual violence, as well as former camp-detainees in BiH and to put pressure on the government to work harder for the improvement of the current position of these groups of victims.

For further information
  • On the individual complaints filed by TRIAL before the European Court of Human Rights or the UN Human Rights Committee, see here.
  • See also TRIAL’s website in the local language: trialinternational.org/BiH

[1] Association of Families of Killed and Missing Defenders of the Homeland War from Bugojno Municipality; Association of Relatives of Missing Persons from Hadžići Municipality; Association of Relatives of Missing Persons from Ilijaš Municipality; Association of Relatives of Missing Persons from Kalinovik (Istina-Kalinovik 92), Association of Relatives of Missing Persons of the Sarajevo-Romanija Region; Association of Relatives of Missing Persons of the Vogošća Municipality; and Association of Women from Prijedor – Izvor.

[2] Association of Women-Victims of War; the Centre for Legal Assistance to Women Zenica; Infoteka Women’s Information and Documentation Centre; Sumejja Gerc; Viktorija 99; Vive Žene Tuzla; and the Women’s Section of the Concentration Camp Torture Survivors Canton Sarajevo.

[3] Association of the Concentration Camp-Detainees – Bosnia and Herzegovina; Association of the Concentration Camp-Detainees of the Republika Srpska; Croatian Association of War Prisoners of the Homeland War in Canton of Central Bosnia; and Prijedor 92.

Geneva / Sarajevo, 28 May 2013 – The Constitutional Court of Bosnia and Herzegovina (CCBH) recently adopted two landmark decisions[1] concerning the applications submitted by families of 71 persons went missing during the war in Bosnia and Herzegovina. The majority of them were supported by TRIAL and its partner organization Izvor.

As in other similar cases, the Constitutional Court of Bosnia and Herzegovina (CCBH) found a breach of the relatives’ right not to be subjected to inhuman treatment as well as to their right to private and family life, guaranteed by the Constitution of Bosnia and Herzegovina and by the European Convention on Human Rights.

Interestingly, the court also urged the state and entity-level governments to conduct thorough investigations about these disappearances, and to notify the relatives about the results of such investigations. They have also been directed to forward without delay all relevant information about the circumstances of these disappearances to the relatives through the Missing Persons Institute.

And for the very first time, the CCBH also made very clear the obligations of the Missing Persons Institute, the Prosecutor’s Office of Bosnia and Herzegovina, and other government entities towards the missing persons’ families and their associations. The Court insisted on the utmost need for their full cooperation and constant exchange of information in determining the facts about each disappearance, as well as their full transparency with the missing persons’ relatives.

“We believe the decisions taken by the Constitutional Court will offer better guidelines to all institutions involved in the process of tracing missing persons. They should also encourage all local associations dealing with the issue of missing persons to continue their courageous struggle alongside families”, said Adrijana Hanušic, TRIAL legal adviser for Bosnia and Herzegovina about the CCBH decisions.

The CCBH particularly emphasized:

  • The importance of adequate criminal investigations in line with international standards as the most important step in finding the location of the missing persons’ mortal remains.
  • The obligation for the prosecutor’s offices to undertake measures needed for the investigation, identification and criminal prosecution of the suspects of such crimes on the simple basis that records of missing persons exist.
  • The fact that such obligation exist in all disappearance cases, including when the missing person could be considered a soldier when he was seen for the last time.
  • The importance of informing missing persons’ relatives about the initiation of official investigations, the outcome of such investigations and the fate and the circumstances of their loved ones’ disappearance.

TRIAL, the Swiss association against impunity based in Geneva and Sarajevo, has – together with its partner organisation Izvor from Prijedor – prepared most of the applications submitted to the CCBH (2).

 

Adrijana Hanušic, TRIAL legal adviser for Bosnia and Herzegovina, welcomed the CCBH milestone decisions: “We believe the decisions taken by the Constitutional Court will offer better guidelines to all institutions involved in the process of tracing missing persons. They should also encourage all local associations dealing with the issue of missing persons to continue their courageous struggle alongside families”.

TRIAL now calls for all prosecuting authorities across the country to duly implement the obligations laid out by the highest court of Bosnia and Herzegovina by conducting adequate investigations into crimes related to these and other disappearances and to involve the families accordingly.

 

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1 AP – 3783/09 and AP 2101/11 2 48 of the 61 applications, for 71 victims in total.