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2015, vol. 5, iss. 9, pp. 133-167
Disturbed precedenting of the law in practice of the court of Bosnia and Herzegovina
University for Business Engineering and Management - PIM, Banja Luka, Republic of Srpska, B&H
Keywords: crimes against humanity; unconstitutional retroactive implementation of incrimination; precedenting of the law; widespread attack; systematic attack; civilian population
Abstract
The subject of this paper is one model developed in practice of the Court of Bosnia and Herzegovina, and it is related to unconstitutional retroactive implementation of incrimination crimes against humanity. Foundations of this problem are laid in the decisions of Hague Tribunal, and then in the decisions of the European Court for Human Rights. These decisions are afterwards accepted without any critique in practice of the Court of Bosnia and Herzegovina in criminal proceedings led regarding this incrimination. This is the model of disturbed precedenting of the law. In the paper this problem has been clarified by the author on one case from the Court practice, which unfortunately is not the only example in reality. The essence of this problem is in the Court sentencing verdicts reached against individuals. Namely, assertions that widespread and systematic attack against civilian population is carried out by the Army and Police of the Republic of Srpska are expounded in these verdicts, but not confirmed by valid proofs and arguments. This is the way for criminal sentencing of not only individuals (natural persons) but the Republic of Srpska as well, without enabling it to defend itself from such unfounded accusations. When the Court of Bosnia and Herzegovina is trying to find arguments for such verdicts in the decisions of the Hague Tribunal and in the decisions of the European Court of Human Rights, it is defective since decisions of these international institutions are defective as well. All this in final can cause serious consequences against the Republic of Srpska, which (these consequences) can be not only of criminal nature but of constitutional nature as well.
References
Glendon, M.A., Gordon, M.W., Carozza, P.G. (1999) Comparative legal traditions. St. Paul, MN
International Law Commission (1996) Draft Code of Crimes against the peace and security of mankind with commentaries. Yearbook of the International Law Commission, 1996, vol. II, Part Two
Kuzmanović, R. (2006) Constitutional law. Banja Luka
Mikerević, M. (2004) Sarajevo's cauldrons of death GR Doboj
Savić, S. (2000) Constitutionality of peoples in Bosnia and Herzegovina. Banja Luka
Trnka, K. (2000) Constitutionality of Peoples. Sarajevo
Vanjek, D. (2015) Representatives and members of the constituent peoples: Issue of constitutionality and legitimacy. http://www.idpi.ba/konstitutivnost-legitimitet, 14th January
 

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article language: English
document type: Original Scientific Paper
DOI: 10.7251/POL1509133B
published in SCIndeks: 04/03/2017

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