Refugees and Amnesty

Return to - Prison

AIM Banja Luka, 5 April, 1998

In the middle of last month in Banja Luka, a Bosniac refugee was arrested who had come from Germany to pick up his identity card in the local police station as the citizen of this city. This piece of news was stated to the journalists by Allun Roberts, spokesman of IPTF, who explained that the returnee was arrested and spent a few days in prison because criminal proceedings had been instigated against him in 1992 for avoiding military service.

Although the police of Republica Srpska has been avoiding excesses of this kind especially since inauguration of the new government, this case deserves attention due to the fact that there is still a large number of persons in this entity who have avoided military service and who are registered in court dossiers under the code "indicted", so similar "misunderstandings" are possible.

The beginning of the war in B&H started to get into full swing by the call-up of members of minority ethnic groups. In political strategies of national leaders this was one of the efficient ways of ethnic cleansing, because it was rightfully assumed that most of the conscripts from among minority ethnic groups would leave places of their residence in order to avoid to wage war against "their nation". In order to prevent these persons from return, at least for a long time, the authorities immediately instigated criminal proceedings against all those who refused to respond to the call-up for the crime of avoiding military service pursuant Article 214 of the Criminal Law. For this criminal act, which belongs in the group of crimes against the armed forces, if the perpetrator leaves the country, it is possible to pronounce a sentence of up to ten years in prison.

Military prosecutors and courts during the war were overwhelmed with this type of criminal indictments. The exact number of the indicted persons is kept as classified information and it is not stated to the public. According to unofficial sources, only in the court of Banja Luka there are about 12 thousand indictments on these grounds. According to the court proceedings, against the indicted who fail to respond to subpoena or against those whose place of residence is unknown, the court issues a warrent for their arrest which is then registered in the files of the indicted kept by the police. That is how it could happen that the returnee from Germany against whom criminal charges were raised, was arrested and put into custody.

By signing the Dayton accords, signatories have assumed the obligation to grant amnesty to all refugees and displaced persons against whom criminal proceedings had been instigated in connection with the war conflict. According to Article VI of the Agreement on Refugees and Displaced Persons (Annex VII), amnesty enjoyed by refugees and displaced persons includes all criminal acts except violations of international humanitarian law and criminal acts which are not in connection with the war conflict. The obligation of granting amnesty implied adoption of domestic laws on amnesty which would explicitly regulate and prescribe the procedure of granting it.

Six months after signing of the Dayton accords, both Republica Srpska and the Federation of B&H adopted the laws on amnesty in which amnesty was interpreted and regulated in two different ways. The law on amnesty of RS prescribes that amnesty refers to crimes committed between 1 January 1991 and 14 December 1995, while the same law in B&H Federation does not indicate the beginning. In the Federation of B&H, amnesty includes the criminal act of calling to resistance from Article 201 of the criminal law, and in Republica Srpska it does not. The greatest discrepancy of the two legal texts which should have been the same, refers to the persons who have avoided call-up and persons who have escaped from military units. The law on amnesty of RS does not prescribe amnesty for these persons, and the law in the Federation does. The law on amnesty of RS exempted from amnesty persons who have committed some of the criminal acts for which amnesty is prescribed if the result of the committed act is premeditated murder.

By exempting from amnesty citizens who failed to respond to call-up, the law-maker in RS was obviously in the service of the ruling policy and had the task to leave most of the refugees and displaced persons as "court cases" and in this way prevent them to return, at least for some time. Experts in law believe that amnesty was prescribed by the Dayton accords as an international contract which has become a constituent part of domestic positive legislature and that the courts are obliged to directly apply the international contract. Goran Bubic, master of law and Banja Luka lawyer who is the president of the Centre for Human Rights, claims that the law on amnesty is unconstitutional and directly contrary to the Dayton accords due to which his organization a year ago sumbitted to the Constitutional Court of RS an initiative for its annulment.

"It could be said that amnesty practically exists in all cases to which it refers pursuant the Dayton accords because courts do not work on cases of the indicted who are exempt from amensty. Since signing of the Dayton accords to this day, nobody has been sentenced for avoiding mobilization. However, the very fact that criminal proceedings have been instigated against such a large number of persons, and have not been completed, creates legal uncertainty and insecurity, says Bubic and warns that persons against whom criminal proceedings have been instigated can suffer other kinds of consequences, such as impossibility to be issued all sorts of certificates necessary for resolving important status issues.

A few ten thousand criminal charges are still awaiting resolution in offices of public prosecutors and courts. Because of that, returnees are risking to experience different inconveniences in dealing with the administration.

AIM learns that in the next few days, the government of prime minister Dodik is preparing amendments of the law on amnesty. The new solution will broaden amnesty to include persons who have failed to respond to call-up and in this way the law will be in compliance with the Dyaton accords. This should close court registers and guarantee refugees legal security when they return.

Branko Peric