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KATEŘINA UHLÍŘOVÁ
CYIL 5 ȍ2014Ȏ
which the crimes were committed; (b) the accused was arrested; (c) or which has
jurisdiction and is willing and adequately prepared to accept the case. In addition to
cases referred by the ICTY under Rule 11
bis
, the WCC can also initiate prosecution
of its own cases. Under the strategy of the WCC regarding the selection of cases,
‘highly sensitive’ cases will fall under the jurisdiction of the WCC and ‘sensitive’ cases
will be dealt with by the cantonal and district courts.
84
The first case transferred from the ICTY to the WCC was
Stankovic
.
85
Opposing
the transfer to BiH,
86
the defence in
Stankovic
submitted to the ICTY that the WCC
should not be considered as a ‘national court’ in the light of Article 9(1)
87
of the
ICTY Statute, because it would as such have to be composed of judges who are
nationals of the state. The ICTY nevertheless confirmed the domestic legal basis of
the WCC.
88
The WCC applies the new Criminal Code of BiH, adopted in 2003.
89
Due
to the international involvement in its preparation, some important changes and
departures from the former legal system were made in the CC BiH as well as in the
Criminal Procedure Code of BiH (CPC BiH), both in terms of international law and
international origins of law.
90
As for the international origins of some laws, it could
be noted that BiH historically belonged to a civil legal tradition. With the influence
84
B. Ivanišević, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court
(International Center for Transitional Justice, 2008).
85
ICTY 17 May 2005,
Prosecutor v. Stankovic
, Decision on Referral of Case under Rule 11
bis
, Partly
Confidential and Ex Parte, IT-96-23/2-PT.
86
Many accussed (including Stankovic) oppose referrals of their cases to domestic courts in the former
Yugoslavia because sentencing practices of the ICTY are believed to be more lenient. One of the reasons
may be, as one of the ICTY’s officials noted, that the ICTY focuses on providing
restorative
rather than
retributive
justice. See also M.A. Drumbl,
Atrocity, Punishment, and International Law
(Cambridge
University Press, 2007), p. 158.
87
Art. 9(1) of the ICTY Statute reads as follows: ‘The International Tribunal and national courts shall
have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1 January 1991.’
88
The ICTY held that there is no justification for giving to the phrase ‘national court’ any other meaning
than the normal connotation, which is ‘a court of or pertaining to a nation’. The ICTY stated that the
Court of BiH, of which the WCC is a component, is a court which has been established pursuant to the
statutory law of BiH and it is therefore a ‘national court’.
Prosecutor v. Stankovic
,
supra
note 85, para. 26.
89
A question of legality immediately arises with regard to the application of the new CC BiH to past
crimes. The issue of the retroactive application of the CC BiH, mainly in the context of the length of
punishment, appears in almost all cases before the WCC. For the deeper discussion of the principle of
legality before the WCC, see K. Uhlirova,
supra
note 1. Compare with the practice before the WCC in
Serbia. See Weill and Jovanovic,
supra
note 64, n 38 and accompanying text. For recent details relating
to the application of the CC BiH by the WCC, see the case of
Maktouf and Damjanović v. Bosnia a
Herzegovina
, decided in 2013 by the European Court on Human Rights. See also V. Bílková, Princip
nulla poena sine lege z pohledu evropského systému ochrany lidských práv,
Jurisprudence
2014/2.
90
See Ivanisevic’s argument that ‘through this CPC key aspects of an adversarial procedure were imported
into a country that had used a form of accusatorial procedure for many decades. This major change
in the legal system includes a new and unique set of rules, hybrid in nature and similar to those of the
ICTY.’ Ivanišević,
supra
note 63, p. 13.