Editorial abstract: The case of R.H., sentenced to increased supervision by social welfare institutions for the murder of Ljubica Spasojević, is only one tragic example of the government’s inefficiency when faced with the growing problem of juvenile delinquency in Bosnia and Herzegovina.
However, this case also reveals a problematic understanding of the position and role of persecution bodies, especially a lack of awareness concerning the possibility of the judiciary to offer adequate solutions for important social problems by consistently applying the law as part of their jurisdiction and independently of the executive branch.
Sevima Sali-Terzić analyses legal solutions for the sanctioning of juvenile delinquency and possible actions by prosecution bodies in this context. She also indicates some of the important steps that must be taken in order to efficiently solve numerous problems in this area, as well as to improve the general situation in the judiciary.
The cruel murder of Ljubica Spasojević, drenched in petrol and set on fire by three juveniles, had its epilogue in the courtroom: on the basis of the recommendation by the Cantonal prosecutor, the judge for juvenile cases at the Municipal Court in Sarajevo sentenced the three juveniles to increased surveillance by social welfare institutions. The prosecution explained that it requested this sanction in the absence of a juvenile detention centre.
This case vividly illustrates all the problems and oversights by the government of the Federation of BiH in their fight against juvenile delinquency and also reveals a very problematic understanding of the place and role of prosecution organs, especially the courts, continually exhibited in such cases by these institutions.
Legal instruments for sanctioning juveniles
The reactions to the court decision in the above case come as no surprise: the public is outraged by the fact that the juveniles who committed this heinous murder are back on the street, this time, unfortunately clearly aware that "there's nothing they can do to them".
But is that really so?
The Criminal Code of FBiH stipulates that educational recommendations (for acts incurring a monetary fine or prison sentence of up to three years) may be imposed on juvenile perpetrators of criminal acts, but also cites criminal sanctions, or educational measures and juvenile prison sentences as possible recourses.
Although they are strongly rooted in international standards as well as scientific papers on the purpose of punitive measures against juvenile delinquents, the application of educational recommendations in BiH is negligible (for more, see text by Boris Topić published in the 4th issue of The Pulse of Democracy).
However, since the motive for the writing of this text is the serious crime of murder, this analysis will deal only with the criminal sanctions that can be applied against juvenile offenders.
Educational measures are the main criminal sanctions for juveniles, while the sanction of juvenile detention is exceptional and its application is conditioned by age, severity of crime and the judge's decision that due to the severe consequences of the crime and high degree of criminal responsibility of the offender, an educational measure would not be justified.
These criminal-legal sanctions are united under a common purpose to ensure the education, re-education and correct development of juvenile offenders. They are primarily educational in nature and geared at removing the cause of juvenile delinquency in each specific case.
Accordingly, since these are measures with a special preventive function, they must be strongly individualised. On the other hand, it is important to note that the choice of criminal sanction in each concrete case must be based not only on the individual characteristics and needs of the juvenile, but also on the need of society to protect itself against crime.
This dual requirement places a difficult task before criminal prosecution bodies: to make sure that the imposed criminal sanction applicable to a specific case will balance public interest and the rights of the juvenile offender.
As for the choice of criminal sanction, the law stipulates that against a younger minor, i.e. a person between 14 and 16 years of age, only educational measures may be applied: a disciplinary measure with referral to a juvenile disciplinary centre, a measure of increased surveillance by the parent, adopted parent or guardian, either in a foster family or by an authorised body of social protection, as well as an institutional measure of referral to an educational institution, an educational correction centre or another enablement institution.
A disciplinary measure is applied to juveniles that do not require more permanent measures of education and re-education, especially if the crime was committed out of recklessness or carelessness.
Education measures, however, entail an assessment that the juvenile in the concrete case requires more permanent education, re-education or medical treatment measures with the appropriate supervision. One of the preconditions for applying an educational measure is the court's assessment that the juvenile need not be completely removed from his environment hitherto, which do not include only the juvenile's family environment, but also the wider social surroundings and contacts made by the juvenile in those surroundings.
Another important condition is the realistic assessment of the possibilities for such an environment and surroundings to ensure success in attaining the purpose of the educational measure, i.e. the rehabilitation of the juvenile.
Ultimately, institutional measures, as the most radical form of state recourse against delinquent behaviour, are applied to juveniles in cases where it is assessed as necessary to completely remove the juvenile from his/her environment hitherto in order to realise the purpose of the educational measures, and they are carried out in special institutions or centres. Institutional measures, both according to international standards and domestic legislation, are applied as a final means when the punitive purpose cannot be achieved by way of a milder educational measure, and its duration is limited to the shortest possible time period.
Consistent application of the law or support to executive authorities
Let us go back to the concrete case from the beginning of this article. Three fifteen-year-old boys cruelly took the life of an elderly woman in the street. In line with the law, only an educational measure and by no means a prison sentence was applicable to these offenders.
However, both the prosecution and the court opted for the measure of increased surveillance without a clear basis for assessing that the education and/or re-education of these three juveniles does not require their complete removal from the environment and surroundings they inhabited prior to committing the crime. The explanation of the prosecution for requesting this measure as the lack of an appropriate institution to execute such institutional measures shows that the proposed sanction was not in line with their best assessment.
Namely, it is evident that the assessment was in favour of applying an institutional measure as fully justified, but this was not requested because such an institution does not exist. However, there is nothing in the law that says institutional measures are to be applied only if appropriate institutions exist. Also, the state can by no means defend itself by the absurd argumentation that certain measures stipulated in its legislation cannot be applied because that same state has not provided the institutions for implementing these measures.
That would mean that the prescribed measures and the positive obligation of the state to protect public interest – in this case through effective sanctioning of criminal offenders and through ensuring the security of its citizens – are nothing but a dead letter.
This example leads to the identification of at least two key problems. The first is a failure on the part of prosecution bodies, the prosecutor and court, to do their job in line with the law. Instead, their decisions provide an alibi for irresponsible relevant authorities which to this day—despite alarming increases in juvenile crime, and especially the high rate of return to crime—have not undertaken the necessary measures to establish the appropriate institutions.
It would be difficult to maintain that this action of the prosecution and the court is in line with the law, because the explanation reveals an instance of opportunism impermissible in the work of judicial institutions.
The court and the prosecution have, once again, missed the opportunity to do their job in a way that would leave the executive branch of government with no other option but to start dealing with juvenile delinquency in the only appropriate way – by concrete action. For, if the appropriate institutional measures as foreseen by law were passed whenever they were justified, this would have exerted additional pressure on executive government to fulfil its obligations by implementing court decisions.
The other problem is an inefficient and irresponsible executive government that, despite persistent problems with juvenile crime and the cruel nature of juvenile crimes committed only from the beginning of this year in Sarajevo and elsewhere, has not undertaken any measures to effectively deal with at least the consequences of juvenile delinquency, if it cannot (or will not) deal with its causes.
To be more precise, the Federal Ministry of Justice competent in matters of ensuring the uninhibited execution of institutional educational measures has done nothing to create a minimum of preconditions for the functioning of an appropriate institutional facility, not to mention actively starting to implement the strategy against juvenile delinquency passed several years ago, which includes extensive preventive activities on various levels of government.
These omissions are all the more grave when we take into account that even in the situation, dire as it is, it was possible to create the minimum preconditions for executing institutional measures at the Hum Centre in Sarajevo, for example, and later go on with resolving a series of complex problems in the functioning of this institution, including the elementary question of under whose jurisdiction it belongs.
This brief analysis lends the conclusion that the belief of juvenile offenders about the government (both executive and judicial) being unable to do anything against them is entirely wrong. The legal preconditions are already in place, and the basic infrastructure for implementing juvenile sanctions can be enabled relatively quickly. The only question that remains is whether government structures on all levels want to and know how to deal with the problem.
In order for the judicial government to correctly fulfil its task, it must act independently of executive government. This is one of the fundamental principles of judicial autonomy requiring guarantees both in law and in practice. This principle is also one of the key elements of the right to a fair trial.
The principles of judicial autonomy pertain not only to the process of appointing judges or the prohibition of interference of executive government into the outcome of a trial, but also to the consistent implementation of court decisions and to barring the executive government from changing or adapting court decisions to the current circumstances.
The application of this principle enables the judicial government to, among other things, consistently apply the law and in so doing directly affect concrete policies of the executive government and lend considerable support to the resolution of burning social problems.
However, the question of whether today's judicial authorities at any level in BiH are prepared to fulfil this vital task requires a more thorough and serious analysis. An objective, professional and independent assessment of the performance of judicial authorities and prosecutors, as well as the causes of their inadequate response to problems undermining both the state and its society (and these causes must undoubtedly be sought in the convoluted triangle of legislative, executive and judicial government) is certainly necessary in order to create the elementary preconditions for improvement in the BiH judiciary.
Such an analysis would have to devote special attention to finding mechanisms for the elimination of the already established habit in the judiciary to justify executive government (in)action when faced with explicit or implicit pressures. However, at the same time, the evaluators themselves would have to withstand the prevalent need to justify the vast donated resources invested in numerous legislative and judiciary and prosecutorial reforms, whose actual results have long been in dire need of objective assessment.
Translation by: U. Tanovic
