Optional Protocol No. 2 to the International Covenant on Civil and Political Rights, whose aim is the abolishment of the death penalty

According to Article 1, in conjunction with Article 2(2) of the Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty, deprivation of life is absolutely prohibited in each State Party.⁶⁵⁵ This prohibition has constitutional rank.⁶⁵⁶ Carrying out the death penalty in times of peace does not have a valid legal basis if the penalty was imposed in accordance with the law in times of armed conflict.⁶⁵⁷ Therefore, given the absolute prohibition against State deprivation of life according to Article 2(2) of the Optional Protocol, the death penalty cannot be used validly by Bosnia and Herzegovina under the supremacy of the law as laid down in Article 2 of Additional Protocol No. 6 to the ECHR although this provision exceptionally allows deprivation of life in times of armed conflict. Such case- law of the Human Rights Chamber and probably the persuasion of the OSCE on the spot was applied only in the case of applicant Dragan Matović, in which the Supreme Court commuted the death sentence to a prison sentence in 1999 with the instructions that Bosnia and Herzegovina has obligations under Article II of the BiH.⁶⁵⁸

The bypass to which the Human Rights Chamber has resorted through Article II.4 of the BiH Constitution in conjunction with Articles 1 and 2(2) of the Optional Protocol to the International Covenant on Civil and Political Rights in order give reasons for a violation of Article 2 of Additional Protocol 6 to the ECHR is certainly not convenient. It results from a systemic gap in the Human Rights Chamber’s competencies under Article II.2 of Annex 6 of the GFAP. In particular, unlike Article I of Annex 6 which provides that the Parties have the obligation to guarantee the rights provided for by internationally recognized human rights agreements listed in the Appendix to Annex 6 of the GFAP, the Human Rights Chamber, as stipulated by Article II.2 of Annex 6, only has to establish whether the individual is discriminated against in the enjoyment of the rights guaranteed by it. Judges Möller and Nowak stressed this ambivalence in their concurrent opinion.

However, there is a dilemma about whether the Parties to Annex 6 of the GFAP should be subject to the instruments listed in the Appendix without conferring the competence to the Human Rights Commission provided for in Annex 6 of the GFAP to find possible failures to meet these obligations. A comparison with a parallel regulation under Article II.4 of the BiH Constitution can be mentioned in support of this conclusion: the Human Rights Chamber interprets this provision as making it possible for the instruments listed in Annex I to the BiH Constitution, which correspond to the instruments listed in Appendix to Annex 6, to be used, not only without discrimination but also generally (as isolated).

The BiH Constitutional Court does not have to have resort to the bypass through Article 2 of Additional Protocol No. 6 to the ECHR. The prohibition of deprivation of life in times of peace follows directly from Article 2.2 of the Optional Protocol to the International Covenant on Civil and Political Rights, which, in Bosnia and Herzegovina, has the rank of substantive constitutional law based on the appropriate jurisdiction of the Human Rights Chamber. In this respect, the regulation providing for wide jurisdiction under Article VI.3 of the BiH Constitution is proving to be an advantage. The BiH Constitutional Court upholds the Constitution and it is competent to decide appeals lodged against lower-instance courts. However, all substantive rights provided for by the BiH Constitution, including the agreements listed in Annex I to the BiH Constitution are included in the standards of the BiH Constitution.

As to the extradition procedure or informal handover of individuals to a foreign State, the obligation of the State which carries out the extradition is not conditional upon informing the person of the risk of him/her being sentenced to death in the receiving country but that the State which carries out the extradition is competent to exclude such possibility before extradition or handover.⁶⁵⁹