Amnesty Laws in Bosnia and Herzegovina

I.    Introduction

The granting of amnesty is an important component of the safe and dignified repatriation and return of refugees and displaced persons to their places of pre-conflict residence. This paper provides an update on the current state of legislation and practice in this area. The different existing amnesty laws are analysed below in order to provide information to all actors involved in the return process, including countries of asylum.

II.  International Legal Basis

Article VI of Annex 7 of the General Framework Agreement for Peace (GFAP) provides:

"Any returning refugee or displaced person charged with a crime, other than serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the former Yugoslavia since 1 January 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty. In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty."

III. The Domestic Legal Framework

In accordance with the Constitution of Bosnia and Herzegovina (BH), the Entities are competent to legislate on the matter. On the basis of these provisions several laws have been passed by various legislators since 1995.

1/     The Applicable Amnesty Laws

The Amnesty Law of the Federation of Bosnia and Herzegovina (the Federation) was published on 30 June 1996 and entered into force on 1 July 1996[1]. Article 1 of the Law provides that "amnesty is applied to all persons who have by December 14, 1995, committed criminal acts against the foundations of social system and security of Bosnia and Herzegovina". The Law was amended on 24 December 1996 to cover offenses up to 22 December 1995 (which is the date of the official termination of the state of armed conflict)[2].

The Amnesty Law of the Republika Srpska (the RS) was published on 26 June 1996 and entered into force on 4 July 1996[3]. Article 1 provides that "a release from criminal prosecution [...] shall be granted to all persons who, in the period from 1 January 1991 to 14 December 1995, committed any of the criminal acts against the basis of the social organisation of Republika Srpska".

2/     Other Amnesty Laws

The Decree with Power of Law on Amnesty was passed by the authorities of the'Croatian Republic of Herzeg-Bosna' on 13 September 1996[4]However, according to Article I (3) of the BH Constitution, the 'Croatian Republic of Herzeg-Bosna' is not a recognised institution in BH and therefore the laws adopted by its organs are null and void.

The Republic of Bosnia and Herzegovina (R BH) Law on Amnesty was passed by the Assembly of the R BH on 12 February 1996 and published on 23 February 1996[5]. It covers acts committed on the territory of the Republic of BH up to 14 December 1995. Its legal validity will be discussed in the next paragraph.

3/     Comments

Even though the Federation and the RS laws are considered as the only legally valid laws, the existence of two other laws on the same subject raises a number of legal issues as to their scope of applicationratione temporis and ratione loci.

The R BH Law on Amnesty was adopted in early 1996 under great pressure from the international community, which considered the granting of amnesty as a prerequisite for returns to take place. It was supposed to be applicable throughout the whole territory of Bosnia and Herzegovina. However, this text was adopted after the signing of the GFAP in December 1995, which provided for the legal disappearance of the R BH. Therefore, the law adopted in February 1996 by the Parliament of the R BH is unconstitutional since it was adopted by a legislative body not competent to pass such legislation. The R BH law must, arguably, be declared unconstitutional by the Constitutional Court in order to be removed from the Bosnian legal system[6]. Amnesty granted on the basis of this law is however recognised by the Federation authorities. Since June 1996 amnesty is granted on the basis of the Federation Amnesty Law.

The RS Amnesty Law has a narrower scope of application ratione materiae since draft evasion and desertion of army by RS citizens are not offenses covered by the amnesty[7]. In addition, as noted above, the RS Amnesty Law does not cover offenses committed between 14 December and 22 December 1995.

Concerning the'Croatian Republic of Herzeg-Bosna' legislation, its application could pose several problems, a) to individuals living in Croat administered areas but amnestied under the Federation law and, b) to individuals amnestied under the 'Croatian Republic of Herzeg-Bosna' Law but staying in other parts of the Federation. Amnesty granted on the basis of the 'Croatian Republic of Herzeg-Bosna' Law does not carry legal validity.

Under the current legal framework, the application of the existing amnesty laws has the following consequences:

-A refugee or a displaced person returning to the Federation will be granted amnesty on the basis of the Federation Law.

-A refugee or a displaced person returning to the Federation, but to a Croat administered area may eventually be granted amnesty under the'CroatianRepublic of Herzeg-Bosna'legislation.

-A refugee or a displaced person returning to the Republika Srpska will come under the purview of the RS Law.

IV. Application of the laws ratione materiae and ratione personae

1/     Offenses covered by the Entities' laws

Article 1 of the Federation and the RS Amnesty Laws cover the following offenses:

-acts committed against the foundations of the social system and security

-acts committed against the (respective) military forces

-propagation of false information

-illegal possession of weapons and explosive devices

Article 1 of the Federation Amnesty Law also includes:

-draft evasion

-desertion

-refusal to respond to a military call-up

Article 2 of the RS Amnesty Law expressly excludes amnesty for:

-premeditated murder

-desertion of RS citizens

-draft evasion of RS citizens

-refusal of RS citizens to respond to a military call-up

The relevant RS authorities, in a meeting with UNHCR on 22August 1996, explained that the offense of premeditated murder covers murders unrelated to the conflict.

2/     Persons Covered by the Entities' Laws

The Federation Amnesty Law applies to all persons who committed or are suspected of having committed the above-mentioned offenses[8].

According to Article 2 of the RS Amnesty Law, RS citizens do not benefit from amnesty for the offenses described therein.

3/     Modalities of Implementation of Both Amnesty Laws

The modalities of implementation of the respective amnesty laws are as follows:

-If proceedings have not been initiated, they shall not be initiated;

-If proceedings are under way, they shall be dismissed by the competent judge;

-If the offender was sentenced, he shall be released from the remainder of his sentence. The sentencing court shall issue the grant of amnesty[9]

Grants of amnesty are issue dex-officio by the courts and displayed on the court's Bulletin Board , I) at the request of the charged or sentenced person, ii  the request of a lawyer on behalf of the individual concerned, or iii) at the request of the persons referred to in Article 360[10]of the Federation and RS Laws on Criminal Procedure[11].

Under each of the aforementioned laws, the Public Prosecutor, the individual concerned or his/her attorney, can contest the grantor denial of amnesty and file an appeal. The appeal does not have suspensive effect[12].

4/     Implementation to date

The only problems encountered in the Federation in this area concern the actual implementation of unconstitutional legislation, that is, the R BH and the 'Croatian Republic of Herzeg-Bosna' Amnesty Laws. As explained before, the legality and recognition of an amnesty granted under these Laws are questionable. It should be noted also that the grant of amnesty under the Amnesty Law of the Federation does not exempt persons between the age of 17 and 27 from one-year military service[13].

As for the implementation of the RS Amnesty Law, UNHCR has scarce, at times contradictory information, which would indicate that the implementation of the Amnesty Law in the Republika Srpska is not consistent. according to the Public Prosecutor of the Banja Luka Primary Court, files for offenses not covered by the law are being filed but not prosecuted[14]. The Public Prosecutor of Visegrad took the same position on the basis of the fact that the Republika Srpska Law was in contradiction with the GFAP. The President of the Military Court of Bijeljina stated that thousands of cases of deserters were in the investigative stage but few were being put to active prosecution[15].  In Foca/Srbinje, the Municipal Court started summoning individuals who had been sentenced during the conflict, but not yet served the sentence because of the hostilities, to now serve their prison terms. This situation is not satisfactory, since it creates most undesirable legal uncertainties. As in the Federation, the granting of amnesty under the Amnesty Law of the RS does not exclude someone from performing nine months of compulsory military service[16].

V.   Conclusion

UNHCR hopes that the above-mentioned information will be taken into account when considering the continued need of international protection and the repatriation of citizens of Bosnia and Herzegovina[17].

UNHCR Sarajevo

19 March 1998

[1]Official Gazette of the Federation of Bosnia and Herzegovina, No. 9/96.

[2]Official Gazette of the Federation of Bosnia and Herzegovina, No. 19/96.

[3]Official Gazette of the Republika Srpska, No. 13/96.

[4]Official Gazette of the'Croatian Republic of Herzeg-Bosna', No. 35/96.

[5]Official Gazette of the Republic of Bosnia and Herzegovina,No. 6/96.

[6]Meeting between UNHCR and the President of the Sarajevo Municipal Court I, on 28 January 1998.

[7]Article 2 of the RS Amnesty Law.

[8]This, by definition, would also extend to HVO soldiers (Croat armed forces) and Serb members of the VRS (Serb armed forces).

[9]Article 8 of the RS Amnesty Law provides that if an individual was sentenced by a court which is not located on the territory of the RS any more, the decision on release must be taken by the prison director where he is serving the sentence.

[10]A spouse, adoptive parent, adopted child , brother, sister, breadwinner or other immediate relatives.

[11]According to Article 21 of the Law on Travel Documents of Bosnia and Herzegovina (Official Messenger of Bosnia and Herzegovina, No. 4/97), the issuance of a passport is conditioned upon the absence of certain categories of criminal charges or offenses. Returning displaced persons or refugees applying for a passport and coming under the purview of the Amnesty Laws will be informed at that stage of any action brought against them for draft evasion, desertion or any of the offenses defined in the Amnesty Laws. They will have to ask for a grant of amnesty in order to be able to receive a passport. Some companies also require applicants to provide a certificate showing a clear criminal record before recruitment.

[12]Please refer to Article 4 (2) of the Federation Amnesty Law and Article 6 (2) of the RS Amnesty Law.

[13]Article II(2) of Annex 7 of the GFAP provides that "the Parties [...] shall give positive consideration to requests for exemption from military [...] service based on individual circumstances, so as to enable returnees to rebuild their lives" .Moreover, the Sarajevo Declaration, adopted by the Sarajevo Return Conference on 3 February 1998, calls for the exemption of returnees from military service and the establishment of an alternative service.

[14][14]Meeting between UNHCR and the Public Prosecutor in March 1997.

[15]Memorandum from the Office of the High Representative in Brcko, 16 December 1997.

[16]Article 215 of the RS Law on Army, Official Gazette31/96.

[17]UNHCR and other interested international organisations will initiate discussions with the competent RS authorities, with a view to amending the RS Amnesty Law, to bring it in full conformity with Annex 7 of the GFAP.