Survey

The true scope of the right to life, under Article 2 of the ECHR, in Bosnia and Herzegovina, arises only in connection with Additional Protocol No. 6 to the ECHR and Articles 1 and 2 of the Optional Protocol No. 2 to the International Covenant on Civil and Political Rights. In member states, these protocols strengthen the protection of life and significantly reduce the admissibility of the imposition of the death penalty. Article 2 of the ECHR restricts the imposition of the death penalty solely to the extent that the death penalty must be provided for by law for certain criminal acts and the death penalty must be pronounced by a court. Additional Protocol No. 6 to the ECHR in principle abolishes the death penalty (Article 1), although, even under Additional Protocol No. 6 to the ECHR, imposing the death penalty and the execution thereof is also possible in the peacetime. Naturally the death penalty must be provided for by law and it may be applied – which arises from the principle of obligation to comply with the law – only in the instances laid down in the law and in accordance with the provisions thereof. The death penalty shall be limited to acts committed in the time of war or during the imminent threat of war (Article 2). Thus, the starting point is the time of the commission of a criminal act. Nevertheless, this abolishes the death penalty for all acts committed in times of peace. Articles 1 and 2 of Optional Protocol No. 2 to the International Covenant on Civil and Political Rights go one step further, and according to them, in principle, imposition of the death penalty during peacetime are completely prohibited. Even during armed conflict, the death penalty is allowed only if carried out on the basis of a sentence for some particularly grave act of a military nature, committed during the time of the armed conflict, and only if such an exception was made by voicing reservation at the time of the ratification of or joining the Covenant. Taking into account these two agreements (the Covenant and the ECHR), which regulate the same issue, one should be mindful of the fact that Optional Protocol No. 2 to the International Covenant on Civil and Political Rights shall be applied instead of Article 2 of the ECHR only if it contains stricter requirements as to the admissibility of the death penalty. Otherwise, one should be mindful at all times of all the requirements to be met and arising from Article 2 of the ECHR and protocols thereto. Thus, for instance, a requirement that the goal of the imposition of the death penalty be the enforcement of a court judgment arises exclusively from Article 2 of the ECHR.⁶⁰⁴