The prosecutor’s function does not satisfy the criterion set forth in Article 5 paragraph 3 of the European Convention. The European Court of Human Rights stated that the main reasons were that the prosecutor, who first carried out the investigation and subsequently participated in the trial as a prosecutor, became the party to the proceedings. Therefore, it may not be expected that the person who had such a role may be deemed to be a “person authorized by law to exercise judicial power” within the meaning of this Article.
• Decision on the Merits No. AP 976/05 of 9 February 2006, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 43/06; the prosecutor cannot be a person authorized by law to exercise judicial power; a violation of Article 5 of the European Convention and Article II(3)(d) of the Constitution of BiH established
The Constitutional Court holds that it follows from the case-file that the appellant was not brought before the judge in charge of the preliminary proceedings either at the moment of deprivation of liberty […] or subsequently […] as he was at large at the time of the adoption of the decision imposing detention […]. Furthermore, the Constitutional Court notes that even if the prosecution’s allegations were admitted as trustworthy […], namely that the appellant was informed of the reasons for suspicion that he had committed the offence he was charged with, the position of the prosecutor did not meet the criteria under Article 5(3) of the European Convention as the prosecutor, as a person performing prosecutorial and investigatory duties, is a party to the proceedings and cannot be considered “officer authorised by law to exercise judicial power“ for the purposes of this Article […]. Also, according to the Constitutional Court, the judge in charge of the preliminary hearing in the present case does not have the status of person exercising judicial power as it follows from the case-file that the Prosecutor’s Office brought the appellant to the mentioned judge with the sole aim of placing the appellant in detention, and not with the aim of hearing the reasons based on which detention is determined. Thus, in the opinion of the Constitutional Court, unlike the Cantonal Prosecutor’s Office’s views that the appellant’s rights laid down in the international conventions and national legislation have been respected in the present case, the appellant’s right under Article 5(3) of the European Convention has been violated as he was not brought before a tribunal/judge or other “officer authorised by law to exercise judicial power” after deprivation of liberty […] until the adoption of the ruling [wherein the appellant’s detention was extended], and who had the obligation to consider the imposition of the detention on the appellant and had the necessary powers to potentially order a release.
• Decision on the Merits No. AP 898/19 of 11 June 2019, paragraphs 28 and 29, published in the Official Gazette of Bosnia and Herzegovina, 898/19; a violation of Article 5 of the European Convention and Article II(3)(d) of the Constitution of Bosnia and Herzegovina
