Concerned about the consequences that the failure to bring charges for denying war crimes and glorifying criminals will have on society, civil society organizations in Bosnia and Herzegovina (BiH) want to provide their contribution by showing the practice of punishment in other countries. But will prosecutors listen?
The State Prosecutor’s Office has a number of explanations why since July 2021, when the denial of genocide and other war crimes, as well as the glorification of convicted war criminals is expressly prohibited by law, it has not filed a single indictment – from the fact that they are entering an unknown territory because there is no similar legal practice, because they do not want to jeopardize freedom of speech, and to the point that state prosecutors do not have enough knowledge or analysis of European practice to work on such cases.
Despite this, they have so far decided not to conduct an investigation at all in almost 40 cases because they did not recognize the elements of the criminal offense in the new article of the Criminal Code of BiH, which punishes the denial and glorification of war crimes. Such decisions caused a series of reactions from victims’ associations and the question – how do prosecutors know for sure what is not a criminal offense, but they do not know how to prove a violation of the law in dozens of cases that are still being treated as active?
The author of the analysis and lawyer Dejan Lucka, in cooperation with the organizations Forum Civil Peace Service (forumZFD), TRIAL International and the Peace Building Network Association, made a presentation of the selected practice of the European Court of Human Rights, the European Commission for Human Rights and the United Nations (UN) Human Rights Committee nation regarding cases from four European countries.
International judicial practice as an example for domestic practice
When it comes to the prosecution of denial of crimes, former judge of the Court of BiH and legal expert Dzemila Begovicdoes not see a problem in using the practices of other countries and courts that have already set certain standards of proof and which are very accessible to local personnel.
The BiH Prosecutor’s Office told that they will use the analysis of forumZFD and TRIAL International, as well as all other available domestic and international legal practices, but they also claim that they are already doing that.
The report particularly emphasizes that the European Convention on Human Rights, according to the Constitution of BiH, has priority over other domestic laws, which must be harmonized with it. Judgments of the European Court of Human Rights are required to be applied by domestic courts in their practice, the report explains.
According to the practice analyzed by Lucka, courts in European countries and the European Court of Human Rights do not allow the denial of crimes such as the Holocaust to be justified by the freedom of speech of an individual, Detektor reports.
E.Dz.
