Non-retroactivity, candour and ‘transitional relativism’:a response to the ECtHR judgment in Maktouf and Damjanović v. Bosnia and Herzegovina

Abstract

This contribution makes a close analysis of the recent ECHR judgment in Maktouf and Damjanovic v. Bosnia and Herzegovina, which resulted in the release from prison of perpetrators of genocide at Srebrenica. The article examines ECHR cases on non-retroactivity, and traces their development in transitional cases back to the ‘Berlin Wall cases’. Two main arguments are made: first it was not necessary to release the applicants in the Maktouf case, even though they won in Strasbourg, be- cause they only challenged their sentence rather than their guilt; and second, that the case can be situated in a complex transitional milieu where states, like Bosnia & Herzegovina, may ask for – but only occasionally receive – a form of ‘transitional relativism’.