Experts on the justice system: The Special Court is not respecting the "lex mitior" principle

Experts in the justice system have recently raised concerns that the Specialist Chambers in The Hague are not respecting the "lex mitior" principle as an international standard of criminal law.

Thus, Amer Alija from the Humanitarian Law Center says that based on the 'lex mitior' principle, in this specific case the Criminal Law of the SFRY of 1976 should be applied, as the most favorable law for the accused, as long as it was in force at the time of the commission of the crime and provided for lower and more limited sentences, compared to the later Criminal Codes and the Law on Specialized Chambers.

He emphasizes that any deviation from this principle, as in the case of Salih Mustafa, is inconsistent with Article 7 of the European Convention on Human Rights and Article 12 of the Law on Specialist Chambers.

"In the case of Salih Mustafa, the Specialist Chambers are applying the current criminal code, which in my opinion is harsher than the law of the SFRY, and therefore the principle (Lex Mitior) is being violated, a principle that states that the most favorable law in the application of the sentence should be applied by the court. So, this is a violation of the seventh convention, which requires that the most favorable law from the time the criminal offense was committed to the present day be applied in the application of the sentence," he said.

Meanwhile, lawyer Taulant Hodaj estimates that the sentencing policy in the Specialized Chambers in The Hague with the minimum and maximum sentence will be clarified when the Specialized Chamber of the Constitutional Court has a final decision on the case of Salih Mustafa.

"Now the Constitutional Court will resolve this dilemma because it is the final body that provides interpretation regarding legislation, whether the Constitution, practice or law applicable to the Special Court. It will be the final authority that decides which law or maximum penalty for war crimes and crimes against humanity to apply in cases where they are sentenced by the Special Court. This case that will be decided by the Constitutional Court will be applied in eventual cases," said Hodaj.

RTK has also received a response from the Special Rapporteur in The Hague.

"According to the law, the Specialist Chambers may impose imprisonment of up to a maximum term of life imprisonment on persons convicted of war crimes. In considering the sentence to be imposed, the Specialist Chambers shall take into account the level of punishment for that crime, as determined under Kosovo law at the time of its commission, as well as any further escalation of punishment for the crime provided for in Kosovo law," the Specialist Chamber's response states.