The Constitutional Court indicates the positions of the European Court that justify the use of these grounds for pre-trial custody where there is a real danger of repeating the serious criminal action. The relevant matters are criminal past, the personality of the suspect or accused. Also relevant are the number and nature of criminal offences, possibly an ongoing investigation into other offences. According to the positions of the European Court, a condition of the prescribed sentence must be met, as well as the objective assessment of seriousness and lastingness of the threat, a prosecutor and a judge must have access to the records on previous criminal offences.
Given the aforementioned, the Constitutional Court does not see in the appellant’s case any special circumstances justifying the fear that he would perpetrate the criminal offence he threatened. Namely, the court only rephrased and stated that the appellant might perpetrate the offence he threatened with 23 years ago, if at large, without stating the circumstances manifestly and specifically indicating so, but it only alleged and presumed so abstractly. The Constitutional Court points again to the obligation of the ordinary courts, when issuing a decision ordering custody, to consider beforehand, in detail and conscientiously the possibility and effects of imposing more lenient measures that may achieve the same purpose. In the present case, the ordinary courts alleged only that prohibiting measures would not achieve their objective with certainty, thereby referring to the gravity of the offence that the appellant threatened. The Constitutional Court holds that these allegations are arbitrary and that appropriate reasons were not given with respect to the conclusions of the ordinary courts that more lenient prohibition measures would not achieve their objective.
On the basis of the aforementioned, the Constitutional Court concludes that the appellant’s allegations are well-founded in so far as they read that his right Article II(3)(d) of the Constitution of Bosnia and Herzegovina and Article 5(1)(c) of the European Convention has been violated, since the ordinary courts failed to consider in detail the existence of special grounds for pre-trial custody under Article146(1)(c) of the CPC of FBiH and also failed to provide sufficient, clear and satisfactory grounds.
• Decision on Admissibility and Merits No. AP 2441/15 of 26 May 2016, paragraphs 51 to 54
