iii. Court sentence

Deprivation of life shall be allowed only if effected in order to execute a court sentence, imposing a legally binding death penalty. In accordance with the jurisprudence of the European Court in Strasbourg, the Human Rights Chamber linked to the notion of “court” substantive and procedural requirements for admissibility of the adoption of a decision on deprivation of life. According to the said jurisprudence, only such a body possessing a series of fundamental features shall be considered “a court”, as a governmental body, within the meaning of the ECHR, that is, primarily, a body that does not depend on the executive branch or the parties to the proceeding, yet which offers certain procedural guarantees adapted to the circumstances of each individual case.⁶²⁸ In the event of adoption of a sentence of the death penalty, the procedure must meet the highest procedural requirements; in accordance with Article 15 of the ECHR, no exceptions are permitted even in time of war, so that – in the event that it is not possible to ensure the appropriate procedural guarantees – imposing and executing a death sentence are not admissible.⁶²⁹

The independence of a body is assessed on the basis of the manner of appointment of its members, the length of their mandate, the mechanisms of protection against external influence, and on the basis of the impression of independence the respective body leaves. The inability of the executive branch to dismiss judges during their mandate, generally speaking, is a natural consequence of their independence. The fact that formal legal regulations on the respective issue are lacking, does not imply per se a shortage of independence as long as the independence of judges is factually recognised and as long as other necessary guarantees are in place.⁶³⁰ When it comes to the jury and lay judges, as well as professional judges, the requirement of independence and impartiality is applied.⁶³¹

Taking this standard as the basis, the Human Rights Chamber considered that a military court, whose members, at the proposal of the minister of defence, were usually appointed and dismissed by the President of the Republic of BiH, was not sufficiently independent in order to be considered a court within the meaning of Article 2 of the ECHR; the Human Rights Chamber thought so especially because the law did not provide a minimum length of the mandate in practice, or substantive and procedural requirements on the basis of which the procedure of dismissal of judges was stipulated, nor could anything like that be anticipated soon. In the given conflicting situation, inadmissible influence from outside might have been expected. All in all, the military court did not appear sufficiently independent.⁶³²

A judgment adopted by a body which does not meet the requirements set before the court within the meaning of Article 2 of the ECHR cannot be redressed so as to examine and review at the appellate instance whether the judgment was in accordance with the ECHR; an error once made may only be corrected by quashing the first instance judgment.⁶³³