The Death Penalty in the OSCE Area Abolitionist States BOSNIA AND HERZEGOVINA The Constitution of Bosnia and Herzegovina and the Constitution of the Federation of Bosnia and Herzegovina incorporate, among other international treaties, the 1989 Optional Protocol to the ICCPR (aiming at the abolition of the death penalty) and Protocols 6 (concerning the abolition of the death penalty) and 13 (concerning the abolition of the death penalty in all circumstances) to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), thereby prohibiting the death penalty.13 Although not operational in practice, Article 11 of the Constitution of Republika Srpska allows the death penalty to be pronounced for capital crimes. The Criminal Code of Republika Srpska does not provide for capital punishment. The European Commission noted this issue in its 2012 Progress Report for Bosnia and Herzegovina and stated that the relevant provision in the Constitution of Republika Srpska “has to be repealed in line with key principles of the EU human rights policy”.14 POLAND The case of Abd al-Rahim al-Nashiri against Poland is pending before the European Court of Human Rights.15 The applicant, a Saudi Arabian national, is currently detained at the United States detention camp at Guantanamo Bay. He faces capital charges before a military commission relating to his alleged involvement in terrorist activities, among other acts. The applicant claims that he was kept and tortured in a secret CIA detention facility in Poland before he was transferred to the United States Naval Base at Guantanamo Bay, despite substantial risk of him being subjected to the death penalty. In the application submitted to the court, Poland is alleged to having violated Articles 2 and 3 of the ECHR and Protocol 6 to the Convention concerning the abolition of the death penalty. The applicant also alleges a violation of Article 13 of the Convention, with regard to Poland’s failure to conduct an 13  Bosnia and Herzegovina is composed of two semi-autonomous entities – the Federation of Bosnia and Herzegovina and the Republika Srpska. Bosnia and Herzegovina and each of the entities have their own constitutions. The legislation of Bosnia and Herzegovina and the entities is not fully harmonized. 14  “Bosnia and Herzegovina 2012 Progress Report” European Commission, 10 October 2012, p. 16, <http://ec.europa.eu/enlargement/pdf/key_documents/2012/package/ba_rapport_2012_en.pdf >. 15  “The Death Penalty in the OSCE Area: Background Paper 2012”, OSCE/ODIHR 2012, <http://www.osce.org/ odihr/94219>. 11