Bosnia and Herzegovina

This report, published by Amnesty International, documents how the Bosnian authorities have violated a wide range of rights of the survivors of rape and other forms of sexual violence. The report discusses the prevalence of rape and other forms of sexual violence against women during the 1992-1995 war in Bosnia and Herzegovina. It then considers how successive governments have consistently failed to bring those responsible to justice, ensure survivors’ access to an effective remedy, and provide survivors of sexual violence with reparations. Also available in Bosnian and French through External URL.

Ratified by BiH in November 2013, this Convention opens the path for creating a legal framework at the pan-European level to protect women against all forms of violence and to prevent, prosecute, and eliminate violence and domestic violence against women. The Convention also establishes the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), which is responsible for monitoring the implementation of the Convention. Its members are elected by the state parties. The structure of the treaty is based on the “four Ps”: (1) prevention, (2) protection and support of victims, (3) prosecution of offenders, and (4) integrated policies. The Convention also establishes obligations in relation to the collection of data and supporting research in the field of violence against women. Article 2 of the Convention indicates that the provisions shall apply in time of peace and also in situations of armed conflicts. The treaty came into effect in Bosnia on the 1 August 2014.

This law sets the procedure for granting refugee status; the status of subsidiary protection; cessation and revocation of a refugee status and the status of subsidiary protection; temporary protection, identification documents; the rights and obligations of asylum-seekers, refugees, and aliens under subsidiary protection; and other issues related to asylum in BiH. Article 9 of the Law on Asylum enhances the protection of women as it prohibits the discrimination of aliens on all grounds stipulated in the Law on the Prohibition of Discrimination, including sex, sexual orientation, gender identity, and sexual characteristics. English translation available through RefWorld External URL.

The purpose of this law is to prevent and suppress domestic violence and to remove circumstances that encourage and stimulate repeated violence in the family. The law contains provisions regarding protective measures against family violence (e.g., by the use of protection orders), and sanctions for perpetrators of violent actions. Protective measures may be issued at the request of a victim or their attorney, police, prosecutors, the centre for social work, government, non-governmental organizations, or ex officio. Protective measures are issued by the court, depending on the residence or domicile of the victims of domestic violence. They are: (1) removal from the apartment, house or other dwelling and prohibition from returning to that apartment, house or dwelling; (2) a restraining order; (3) the protection of the victim of domestic violence; (4) prohibition from harassment and stalking; (5) mandatory psycho-social treatment; or (6) mandatory rehabilitation. Non-compliance with a protective measure is sanctioned by a fine of KM 2,000 to KM 10,000. There is also a penalty for an official person who fails to report to the police an act of domestic violence, which is a pecuniary fine in the amount of KM 1,000 to 5,000 or a prison term of no less than 50 days. English translation available in addition to original Bosnian through RefWorld External URL.

In 2007, Tereza Usar petitioned the Municipal Court in Mostar to recognize a common law marriage so that she could exercise her right to a family pension. Usar had lived in a common-law marriage with Ivan Usar from July 1992 until September 1993 when he, a member of the Croatian Defence Council, was killed during the Bosnian War. In the suit, Usar named as defendants the minor child she had with Ivan Usar and his legal heirs, his children from a previous marriage. The Municipal Court dismissed Usar’s claim, finding her petition constituted a request to establish facts and not to enforce a right or legal relation because common-law marriage is not regulated by law, but is a factual situation of a union of a man and a woman. The Cantonal Court in Mostar and the Supreme Court of the Federation of Bosnia and Herzegovina (“FBiH”) upheld the lower court’s dismissal. In 2012, the Constitutional Court of BiH quashed the judgment of the Cantonal Court in Mostar, finding the Cantonal Court violated Usar’s right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention on Human Rights. The appellate court found the lower court had arbitrarily applied the law in determining that common-law marriage is a factual and not a legal relation. The Cantonal Court’s decision directly conflicted with Articles 213, 230-234, 263, and 380 of the Family Law of the FBiH, which prescribe the manner for the maintenance of common-law partners and children from common-law marriages, their property relations, and the procedure for obtaining protection against domestic violence. That is, according to the Constitutional Court of BiH, the legislature of the FBiH did not make any distinction between marriage and common-law marriage with respect to legal relations. Thus, “a life in common-law marriage implies certain rights and obligations, and hence, the existence of a legal relation between the persons who live or who had lived in a common-law marriage.”

Decision available in English here.

In 2002, Nermin Ćupina (“Ćupina”) recruited two underage girls and one woman and forced them, through threats of violence to them and their family members, to provide sexual services for money. Each day, the victims were forced to earn KM 400 through prostitution, all of which Ćupina kept. The Court of BiH sentenced Ćupina to 12 years’ imprisonment, which it added to Ćupina’s four-year prison sentence from the Cantonal Court in Mostar, resulting in a single sentence of 14 years’ imprisonment after credit for time served. In addition, in accordance with Article 110 of the Criminal Code of BiH, the Court of BiH confiscated the material gain Ćupina acquired through his criminal enterprise. The court, relying on the findings of an expert, established that Ćupina made at least BAM 100,000 in 2002 by prostituting the victims. The court also concluded that because neither Ćupina nor his wife had regular income during 2002, the construction of an apartment valued at BAM 61,481.55 was financed entirely from Ćupina’s criminal enterprise. The Court of BiH confiscated the apartment and ordered Ćupina to pay the remainder of the estimated material gain, BAM 38,518.45.

Decision available in English here.

Between 2006 and 2007, Čedo Markelić recruited two minors for the purpose of sexual exploitation. Markelić promised the girls he would give them money and help them with school-related problems if they provided sexual services to him and his acquaintances. In May 2010, the Court of BiH found Markelić guilty of Trafficking in Persons (minors) in violation of Article 186(2) of the CC BiH and sentenced him to six years’ imprisonment. The trial court, in determining whether Markelić had exploited the victims, took into consideration not only the girls’ age at the time of the crimes (15 and 16 years old), but also that, due to the victims’ “insufficient emotional development,” they did not have the capacity to consent to sexual acts. Furthermore, the court held that under Article 186(4) of the CC BiH, whether a victim of human trafficking “consents” to the exploitation is irrelevant, particularly if the victim is a minor. On appeal, Markelić argued that one of the three elements of human trafficking – the act of perpetration – was lacking in his case. Specifically, he argued Article 186(1) of the CC of BiH requires that a human trafficking recruiter must have effective contact with a third person who controls the victim, and that third person must give his or her consent to the exploitation of the victim. The Constitutional Court of BiH dismissed Markelić’s appeal, holding the Court of BiH correctly found all constituent elements of human trafficking under Article 186(2) were present. The Constitutional Court of BiH found Markelić had committed the offense of human trafficking by recruiting the minors for the purpose of sexual exploitation; contact with a third party who controlled the victims was not required under the CC BiH.

Decision available in English here.

In the summer of 1992, during an assault on the non-Serb civilian population of Foča in the early months of the Bosnian War, Radovan Stanković, a member of the Republika Srpska Army, established a small detention center for women at an apartment known as “The Brothel.” He and others brought at least nine non-Serb females, most of whom were minors, to the apartment and detained them there. Between August and November 1992, Stanković repeatedly raped one woman and her underage sister and incited other soldiers who visited the apartment to rape the detainees. In addition, Stanković forced the victims to perform physical labor, including cooking for the soldiers, washing the soldiers’ uniforms, and bathing the soldiers. In 2002, Stanković was arrested by the NATO peacekeeping force, KFOR, and transferred to the ICTY. The ICTY referred Stanković’s case to the Court of BiH in 2005. One year later, the Court of BiH convicted Stanković of Crimes against Humanity (enslavement, imprisonment, torture, and rape) under Article 172(1) of the Criminal Code of BiH and sentenced him to sixteen years imprisonment. In 2007, a panel of the Appeals Division increased the prison term to twenty years. Stanković appealed his sentence, which the ICTY and The Hague Court of Appeal upheld. This case is notable because it was the first time the ICTY referred a case to a court of national jurisdiction.

Second instance verdict available in English here.

In 2007, the Court of BiH found Radmilo Vuković, a member of the Republika Srpska Army, guilty of War Crimes against Civilians under Article 173(1) of the Criminal Code of BiH for raping a Bosnian woman at least six times between June and August 1992, the early months of the Bosnian War. In 2008, a panel of the Appellate Division acquitted Vuković of these charges, finding the testimonies of the claimant and her sister to be inconsistent and thus not credible. First, the Court noted factual inconsistencies between the testimony of the claimant and her sister (e.g., the date of the first assault, whether the claimant told her mother of the assault). Second, the Court found the testimonies of the claimant and her sister were inconsistent with prior statements they had given in 1994 and 2001. Third, the Court noted that two defense witnesses testified that Vuković and the claimant were cohabiting partners engaged in an extramarital affair before the Bosnian War (however, the claimant denied any relationship). Lastly, the Court questioned why the claimant did not obtain an abortion to terminate the pregnancy resulting from the alleged rape once she was in safe territory. This case is notable because of the demanding standard set by the court regarding the testimony of rape victims: “The testimony of the injured party must not raise any suspicion as to its exactness and truthfulness, credibility and integrity of the witness exactly because the act of rape, as a rule, is never attended by a witness who might decisively support the testimony of the injured party.” This case is also notable because the Court considered the claimant’s decision to not have an abortion to be evidence that a rape had not occurred.

Second instance verdict available in English here.

In September 1992, during the Bosnian War, the Army of BiH attacked Serb houses in the village of Džepi. During this assault, Ćerim Novalić and an unidentified soldier entered a home to see if the couple was hiding Serbs. While the unidentified soldiers interrogated the husband about his neighbors of Serb ethnicity, Novalić forced the wife into an upstairs room and raped her. In 2010, the Court of BiH found Novalić guilty of a War Crime against a Civilian under Article 173(1) of the CC BiH and sentenced him to seven years imprisonment. The following year, a panel of the Appellate Division of the Court of BiH revised Novalić’s conviction, finding him guilty under Article 142(1) of the Criminal Code of the Socialist Federal Republic of Yugoslavia, the law in effect at the time of Novalić’s crime. The Appellate Panel considered the “extremely humiliating manner” in which Novalić raped the victim – her underage children and mother-in-law were in an adjacent room and her husband was downstairs – and increased his sentence to eight years and six months imprisonment. This is the upper-end of the typical prison sentence mandated by the Court of BiH for one count of rape during the Bosnian War.

Second revised verdict available in English here.

Between 1992 and 1995 during the Bosnian War, Veselin Vlahović a member of the Serbian paramilitary forces, committed various crimes against humanity against the civilian non-Serb population of Sarajevo, including murder, rape, physical and mental abuse, robbery, and enforced disappearance. His crimes were so horrific that he was known by victims as the “Monster of Grbavica.” In 2010, Vlahović was arrested in Spain and extradited to BiH. In 2013, the Court of BiH found Vlahović guilty of sixty different crimes against humanity, including 35 murders and 11 rapes, as well as torture, imprisonment, and looting. He was sentenced to forty-five years imprisonment. In 2014, the Court of BiH acquitted Vlahović of one of the 60 counts of the indictment and reduced his prison sentence to 42 years. Notably, Vlahović’s original prison sentence of 45 years was the maximum possible penalty and is the longest sentence handed down by the Bosnian war crimes court.

Second instance verdict available in English here.