CYIL 2014

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.

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