There is a violation of the right to liberty and security of person under Article II(3)(d) of the Constitution of Bosnia and Herzegovina and Article 5 paragraph 1 of the European Convention, in case where a detention is based on the legal provision stipulating mandatory detention and, therefore, the detention was not lawful within the meaning of the principles of Article 5 paragraph 1 of the European Convention.
• Decision on Admissibility and Merits No. AP 573/07 of 29 April 2009, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 75/09; a violation of Article 5 of the European Convention established
The Constitutional Court concludes that there is a violation of the rights referred to in Article II(3)(d) of the Constitution of Bosnia and Herzegovina and Article 5(1) of the European Convention where the ruling ordering the detention is based on the legal provision which stipulates “mandatory detention”, that is where the court was unable to individualize the imposed measure, nor could it involve itself in examining any special circumstances which could justify the ordering of the detention for the appellant within the meaning of the guarantees under Article 5 of the European Convention. Furthermore, the Constitutional Court concludes that the law provision in question does not meet the necessary quality of law to such an extent that the standards under Article II(3)(d) of the Constitution of Bosnia and Herzegovina and Article 5(1) of the European Convention are respected.
• Decision on Admissibility and Merits No. AP 498/11 of 15 July 2011, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 104/11
The Constitutional Court holds that the procedure prescribed by the law was not complied with as the police authorities failed to establish and to inform the appellant, at the moment of deprivation of liberty and at the moment when he was giving a statement, in capacity of a witness, that there were, in addition to a reasonable doubt, some of the reasons under Article 146(a) through (d) of the Criminal Procedure Code of the Federation of Bosnia and Herzegovina. These were the requirements to be met cumulatively in accordance with Article 153(1) of the Criminal Procedure Code of the Federation of Bosnia and Herzegovina, based on which the appellant was deprived of liberty. Given the aforementioned and the views expressed by the European Court, “the substantive and procedural rules of the national law were not respected” more precisely the Criminal Procedure Code of the Federation of Bosnia and Herzegovina, the appellant was deprived of liberty in an unlawful manner.
• Decision on Admissibility and Merits No. AP 3080/13 of 16 March 2016, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 29/16; Decision on Admissibility and Merits No. AP 2641/16 of 1 February 2017, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 14/17; deprivation of liberty by the police authority; a violation of Article 5 of the European Convention and Article II(3)(d) of the Constitution of Bosnia and Herzegovina established
The Constitutional Court holds that the procedure prescribed by the law was not complied with as the police authorities failed to establish and to inform the appellant, at the moment of deprivation of liberty that, in addition to a reasonable doubt that he committed a misdemeanour, there are special requirements under Article 17 of the Law on Misdemeanours, which must be met cumulatively and that the deprivation of liberty of the appellant was a necessary measure in order to achieve the purpose of deprivation of liberty prescribed by the law provisions, i.e. appearance before the tribunal. The Constitutional Court concludes that there is a violation of the right under Article II(3) of the Constitution of Bosnia and Herzegovina and Article 5(1) of the European Convention if the deprivation of liberty is not “lawful“, since it has not been carried out in compliance with substantive and procedural rules of the national law.
• Decision on Admissibility and Merits No. AP 1634/16 of 1 December 2016, paragraphs 44 and 47, deprivation of liberty by the police authorities; a violation of Article 5 of the European Convention and Article II(3)(d) of the Constitution of Bosnia and Herzegovina
The Constitutional Court holds that the judge in charge of the preliminary hearing decided on the proposal for extending detention, which amounted to a violation of the mentioned procedural provisions related to the responsibility for deciding on the extension of detention, i.e. it represents a “serious and manifest” irregularity while taking a decision, notably so as the legislator prescribed the violation of those provisions as a serious violation of the provisions of the criminal procedure. Next, the Panel that decided on the appeal did not remedy the irregularity, i.e. it did not remedy the omissions in the decision extending the appellant’s detention. Thus, the Constitutional Court holds that the conduct of the ordinary courts was “arbitrary” as they failed to apply the relevant regulations in a correct manner, despite the appellant’s claims disclosing the violation of the mentioned provisions and despite the clear provisions of the national law and clear case-law on the responsibility for the extension of detention upon confirmation of the indictment.
• Decision on Admissibility and Merits No. AP 2551/18 of 19 June 2018, paragraph 29, published in the Official Gazette of Bosniaand Herzegovina, 49/18; responsibility for deciding on the extension of detention; the responsibilities of the judge in charge of preliminary hearing exceeded, a violation of Article 5 of the European Convention and Article II(3)(d) of the Constitution of Bosnia and Herzegovina found;
