Norma relacionada
Bosnia and Herzegovina
Practice Relating to Rule 101. The Principle of Legality
Bosnia and Herzegovina’s Criminal Code (2003) states in its Article 3: “No punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law.” 
Bosnia and Herzegovina, Criminal Code, 2003, Article 3(2).
The Criminal Code, as amended in 2004, states: “Article 3 … of this Code shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law.” 
Bosnia and Herzegovina, Criminal Code, 2003, as amended in 2004, Article 4a.
In 2006, in the Maktouf case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[T]he principle of mandatory application of more lenient law is excluded in processing of those criminal offenses for which at the time of their perpetration it was predictable and generally known that they were contrary to general rules of international law. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Maktouf case, Judgment, 4 April 2006, p. 18.
The Court also stated:
This exception from application of more lenient law is fully justified if one takes into consideration the general purpose of criminal sanctions referred to in Article 6 of the Criminal Code of Bosnia and Herzegovina, since it is obvious that the maximum punishment of 20 years of imprisonment stipulated by the adopted CC [Criminal Code] (after abolition of capital punishment) could not achieve the general purpose of punishment given the gravity of these criminal offenses and their consequences, in particular if we consider the cases referred by the ICTY to the Court of Bosnia and Herzegovina. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Maktouf case, Judgment, 4 April 2006, p. 17.
In 2006, in the Paunović case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
Crimes Against Humanity thus constitute an imperative principle of international law or rather jus cogens, and it is beyond dispute that in 1992 crimes against humanity were an integral part of international customary law.
… [A]pplication of the 2003 BiH CC [Criminal Code of Bosnia and Herzegovina] [for this offence] is based on the provisions of Article 4(a) [of that Code] which refers to “general principles of international law” in which it was stipulated that Articles 3 and 4 shall not prejudice the trial and punishment of any person for any act or omission which, at the time it was committed, was a criminal offence according to general principles of international law. … [T]hese articles do not challenge trial and punishment of some persons for every act or omission to act which includes the criminal offence of Crimes Against Humanity and which, as such, was not stipulated by the criminal code applicable at the time of commission of the criminal offence. … [the offence of] Crimes Against Humanity represents the criminal offence according to general principles of international law. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Paunović case, Judgment, 27 October 2006, p. 8.
In 2006, in the Samardžija case, the Panel of the Court of Bosnia and Herzegovina stated:
As regards the applicable substantive law, the Accused objected to the application of the CC BiH [Criminal Code of Bosnia and Herzegovina] (in force as of 1 March 2003 ), pointing out that the Criminal Code of the SFRY [Socialist Federal Republic of Yugoslavia], which was applicable at the time of the events concerned, should be applied. The Accused submitted a letter stating he considered the application of the CC BiH to be a violation of Article 7 of the [European Convention on Human Rights], since, among others, the Criminal Code of the SFRY was more lenient.
In Article 7(1) of the [European Convention on Human Rights] the principle of legality is laid down. This provision of the [European Convention on Human Rights] furthermore contains the general principle prohibiting imposing a heavier penalty than the one that was applicable at the time when the criminal offence was committed. Under Article II(2) of the Constitution of Bosnia and Herzegovina, the [European Convention on Human Rights] has priority over all other laws in [Bosnia and Herzegovina]. These principles have also been laid down in the CC BiH.
First, Article 3 of the CC BiH stipulates the principle of legality; that is, that criminal offences and criminal sanctions shall be prescribed only by law and that no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law. Furthermore, Article 4 of the CC BiH stipulates that the law that was in effect at the time when the criminal offence was perpetrated shall apply to the perpetrator of the criminal offence; if the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied.
While considering the objection raised by the Accused, it has to be noted that in the Criminal Code of the SFRY, which was applicable in the period relevant to this case, no provision explicitly dealt with crime against humanity as provided for in the Criminal Code of [Bosnia and Herzegovina]. However, taking into consideration other provisions of the valid substantive law, as well as the general principles of international law, this objection of the Defence could not be accepted as well-founded.
Article 4(a) of the CC BiH reads that Articles 3 and 4 of the CC BiH shall not prejudice the trial and punishment of any person for any act or omission, which at the time when it was committed, “was criminal according to the general principles of international law.” Also Article 7(2) of the [European Convention on Human Rights] gives the same exemption, providing that “the same Article shall not prejudice the trial and punishment of any person of any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations”.
This provides the possibility to depart, under the described circumstances, from the principles laid down in Articles 3 and 4 of the CC of BiH (and Article 7(1) of the [European Convention on Human Rights]) and thus to depart from a mandatory application of the criminal code applicable at the time of commission and of a more lenient law in proceedings for offences constituting criminal offences under international law. This applies to the proceedings against the Accused, for it concerns an incrimination that involves violation of the rules of international law.
The Court points out that the crimes for which the Accused has been found guilty constituted crimes under international criminal law and thus fall under “the general principles of international law” as stipulated in Article 4(a) of the Law on Amendments to the CC of BiH and thus the CC BiH can be applied in this case on the basis of this provision.
The status that Crimes against Humanity and the attribution of individual criminal responsibility in the period relevant to the Indictment have in international customary law is, among others, in the Report of the Secretary General of the United Nations pursuant to Paragraph 2 of the Security Council Resolution 108, dated 3 May 1993, International Law Commission, Comments on the Draft Code of Crimes against the Peace and Security of Mankind (1996) and jurisprudence of the ICTY and the ICTR.
Finally, the application of the CC BiH is additionally justified by the fact that the imposed sentence is in any event more lenient than the death penalty that was applicable at the time of perpetration of the offence, thereby satisfying the principle of time constraints regarding applicability of the criminal code, i.e. application of a law that is more lenient to the perpetrator. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžija case, Judgment, 3 November 2006, pp. 37–38.
In 2006, in the Samardžić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
With regard to the application of the substantive law in this criminal case, the Court finds relevant two legal principles: the Principle of Legality, according to which no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law (Article 3 of the CC of BiH) [Criminal Code of Bosnia and Herzegovina] and the principle of Time Constraints Regarding Applicability, according to which the law that was in effect at the time when the criminal offence was perpetrated shall apply to the perpetrator of the criminal offence and if the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied (Article 4 of the CC of BiH). 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžić case, Judgment, 13 December 2006, pp. 20–21.
The Court also stated:
Accordingly, the criminal offence of crimes against humanity can in any case be subsumed under “general principles of international law” referred to in Article 4(a) of the CC of BiH. Therefore, regardless of whether viewed from the viewpoint of international customary law or the viewpoint of “principles of international law”, it is indisputable that crimes against humanity constituted a criminal offence in the incriminated period, and that the principle of legality has been met. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžić case, Judgment, 13 December 2006, p. 23.
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
It is also indisputable that, pursuant to the principle of legality, no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which no punishment was prescribed by the law (Article 3 of the BiH CC) [Criminal Code of Bosnia and Herzegovina], while, pursuant to the principle of time constraints regarding applicability, the law that was in effect at the time when the criminal offence was perpetrated shall apply to the perpetrator of the criminal offence and if the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied (Article 4 of the BiH CC). The principle of legality is also stipulated under Article 7 (2) of the ECHR [European Convention on Human Rights] and Article 15 (1) of the International Covenant on Civil and Political Rights (hereinafter: the ICCPR).
However, Articles (4a) of the BiH CC, which the first instance Verdict correctly refers to, regulates that Articles 3 and 4 of the Code shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law. Thus, the provisions of Article 7 (2) of the ECHR and Article 15 (2) of the ICCPR have practically been adopted, therefore providing for departure from the mandatory application of a more lenient law in proceedings conducted for acts which are criminal according to international law. It is stated that this is the case in the proceedings against the accused because this is exactly an incrimination which includes a violation of international law. In other words, as correctly reasoned in the contested Verdict, in the period relevant to the Indictment, Crimes Against Humanity indisputably constituted a criminal offense both from the aspect of international customary law and from the aspect of the general principles of international law. The detailed and comprehensive arguments corroborating such conclusion presented by the first instance panel are absolutely valid and correct, and therefore also accepted by this Panel as a whole.
Further, international customary law and international treaties signed by the Socialist Federative Republic of Yugoslavia automatically became binding on Bosnia and Herzegovina, either during the time when it was part of the Socialist Federative Republic of Yugoslavia or after it became a successor to the former Socialist Federative Republic of Yugoslavia. The 1978 Vienna Convention on Succession of States in respect to Treaties, ratified by the Socialist Federative Republic of Yugoslavia on 18 April 1980, in Article 34 stipulates that a treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues to be in force in respect of each successor State so formed unless the States concerned agree otherwise. In addition to the above mentioned, on 10 June 1994, Bosnia and Herzegovina declared that it recognized all the international treaties which were binding on the former Yugoslavia. Article 210 of the Constitution of the Socialist Federative Republic of Yugoslavia, indeed, stipulates that international treaties are automatically implemented and applied from the day of entry into force without the adoption of implementing regulations.
The foregoing results in the correct position of the first instance panel that Bosnia and Herzegovina, as a successor to the former Yugoslavia, ratified the ECHR and the ICCPR, therefore, these treaties are binding on it. Given that they regulate the obligation to try and punish any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law, which is definitely the case with Crimes Against Humanity pursuant to the above mentioned, it is indisputable that the arguments of the appeal claiming the opposite are entirely ungrounded and as such refused. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, pp. 13–14.
In 2007, in the Damjanović case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
Crimes Against Humanity thus constitute an imperative principle of international law and it is indisputable that in 1992 crimes against humanity was an integral part of international customary law.
To wit, the application of the 2003 CC of BiH [Criminal Code of Bosnia and Herzegovina] to the specific criminal offence is grounded on the provision of Article 4 (a) of the [Criminal Code], which again refers to the “general principles of international law” … and it prescribes that Articles 3 and 4 of the said Code do not prevent trial or sanctioning of any person for an act or omission to act, which at the time of the act constituted a criminal offence per general principles of international law. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Damjanović case, Judgment, 13 June 2007, p. 13.
In 2007, in the Kovačević case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[I]t is beyond dispute that according to the principle of legality, no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, had not been defined as a criminal offense by law or international law, and for which a punishment had not been prescribed by law … , whereas the principle of time constraints regarding applicability provides that the law that was in effect at the time when the criminal offense was perpetrated shall apply to the perpetrator of the criminal offense; if the law has been amended on one or more occasions after the criminal offense was perpetrated, the law that is more lenient to the perpetrator shall be applied. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Kovačević case, Judgment, 22 June 2007, p. 7.
The Court also stated that the provisions of the Criminal Code enshrining the principle of legality “shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of International law”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Kovačević case, Judgment, 22 June 2007, p. 7.
In 2007, in the Šimšić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[T]he Court finds relevant two legal principles: the principle of legality, according to which no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by [domestic] law or international law, and for which a punishment has not been prescribed by law (Article 3 of the CC of BiH [Criminal Code of Bosnia and Herzegovina]) and the principle of time constraints regarding applicability, according to which the law that was in effect at the time when the criminal offence was perpetrated shall apply to the perpetrator of the criminal offence and if the law has been amended on one or more occasions after the criminal offence was perpetrated, the law that is more lenient to the perpetrator shall be applied (Article 4 of the CC of BiH).
[Article 7(1) of the European Convention on Human Rights and Article 15(1) of the International Covenant on Civil and Political Rights] prescribe the prohibition of imposing a heavier penalty, but they do not stipulate the mandatory application of the most/more lenient law (if the law was amended on several occasions) to the perpetrator in relation to the punishment applicable at the time of the commission of the criminal offence.
Article 4(a) of the CC of BiH prescribes that Articles 3 and 4 of the CC of BiH [which stipulate the principle of legality and the principle of time constraints regarding applicability] shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law … , thus providing for exceptional departure from the … mandatory application of a more lenient law in the proceedings concerning criminal offences …
[Although at] the time of the commission of the offences, crimes against humanity were not explicitly prescribed under criminal codes in Bosnia and Herzegovina … irrespective of whether viewed from the viewpoint of customary international law or of “principles of international law”, it is indisputable that crimes against humanity constituted a criminal offence in the period relevant to the indictment, and that the principle of legality has been met. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Šimšić case, Judgment, 7 August 2007, pp. 42–45.
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
The Court finds the principles of legality and of time constraints regarding applicability relevant to determine the substantive law applicable at the time the criminal offences of crimes against humanity were committed, while taking into account the then existent international law provisions.
[I]t is forbidden to impose a heavier penalty than the one applicable at the time when the criminal offence was perpetrated. Hence, these provisions [Articles 3 and 4 of the Criminal Code of Bosnia and Herzegovina (CC BiH), Article 7(1) of the European Convention on Human Rights (ECHR) and Article 15(1) of the International Covenant on Civil and Political Rights (ICCPR)] prescribe a ban on imposing a heavier penalty, failing to determine obligatory application of a more lenient law to the perpetrator, in comparison to the penalty applied at the time of the commission of the criminal offence. This is the rule of the principle of legality, but there is an exception to the principle of legality.
Article 4a) of the CC BiH prescribes that Articles 3 and 4 of the CC BiH shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of international law.
In sum, Article 4a) of the CC BiH adopted, in fact, the provisions of Article 7(2) of the ECHR and Article 15(2) of the ICCPR thus explicitly enabling exceptional departure from the principle referred to in Article 4 of the CC BiH, as well as departure from the obligatory application of a more lenient law in the proceedings concerning criminal offences according to international law, concerning the charges including the violation of the rules of international law. Such a position was taken in the hitherto jurisprudence of the Court of BiH [Bosnia and Herzegovina], following international jurisprudence.
In practice, the [European Court of Human Rights] finds the violation of Article 7 [of the ECHR] when, by retroactively applying the new law which has direct or indirect effect (e.g. the provisions of recidivism) on sentencing, the convicted person is punished with a heavier penalty than the one the person would face at the time of the perpetration of the criminal offence.
… The [European Court of Human Rights] took the rule and the exception to the principle of legality as equally well recognized and making part of the same principle …
According to the jurisprudence of the [European Court of Human Rights], one cannot refer to a violation of Article 7 of the Convention [ECHR] in the event when the applicant has been imposed a life imprisonment or the penalty of long-term imprisonment for a criminal offence for which the death penalty was prescribed at the time of the commission, although a life imprisonment or a long-tern imprisonment were not prescribed under the law that was in force at the time, because life imprisonment is obviously more lenient than the death penalty.
[R]egardless of whether viewed from the aspect of customary international law, international treaty law or “the principles of international law”, it is indisputable that war crimes, including crimes against humanity, constituted a criminal offence at the critical time. In other words the principle of legality is complied with, in the sense of both nullum crimen sine lege and nulla poena sine lege. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 56–61.
[footnotes in original omitted]
In 2005, in its initial report to the Human Rights Committee, Bosnia and Herzegovina stated:
… [T]he Stability Pact [Stability Pact for South Eastern Europe, to which Bosnia and Herzegovina is a party] bans the retroactive implementation of a Criminal Code … [It requires] that the principle of non retroactivity be performed in the regular Criminal Code, both in peace and during war. No one can be found guilty for any actions or faults which were not considered to be criminal actions according to the local and international laws at the time when they were committed. 
Bosnia and Herzegovina, Initial report to the Human Rights Committee, 24 November 2005, UN Doc. CCPR/C/BIH/1, § 194.