Habeas corpus (Article 5, paragraph 4 of the ECHR)

Article 5, paragraph 4 of the ECHR guarantees the right of habeas corpus. Accordingly, everyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of detention shall be decided speedily by a court and have release ordered if the detention is not lawful. This right includes all forms of measures relating to a deprivation of liberty under Article 5.⁸⁷⁴ This right does not apply only to unlawful detention and is not dependent on possible application for release on bail. If there is no right of habeas corpus or if it is restricted, it means that Article 5, paragraph 4 of the ECHR has been violated.⁸⁷⁵

The term “lawfulness” from paragraph 4 corresponds to the same term under Article 5, paragraph 1 of the ECHR and it does not concern the domestic law only but also the ECHR, its principles and goals relating to the limitation of deprivation of liberty under paragraph 1.⁸⁷⁶ Lawfulness means fulfilling the requirements of law quality: the law should, in a sufficiently precise manner, regulate the issues relating to the institutional frame, including the proceedings and other important aspects of the right of habeas corpus.⁸⁷⁷

A person who is deprived of liberty is entitled to a judicial authority that will promptly examine whether the procedural requirements have been met for his deprivation of liberty, whether there are justified reasons for the suspicion and whether the deprivation of liberty and subsequent issuance of a detention measure have pursued a legitimate aim.⁸⁷⁸ In order to meet the time related requirement, it is sufficient if the law stipulates that the detention measure shall be reviewed ex officio at bi-monthly intervals.⁸⁷⁹ Article 5, paragraph 4 of the ECHR becomes more significant if a measure of detention was originally lawful and, at some later point, circumstances have occurred creating doubt about the lawfulness of continued detention.⁸⁸⁰ The court must check whether the continued detention meets the requirement of lawfulness and this is particularly important when considering an extension of detention measure.⁸⁸¹ It does not mean only that the decision on that issue must exist, but it also means that the decision must be submitted to both the lawyer and detainee.⁸⁸² When it comes to judicial practice, a judicial decision adopted within a period of eight days was considered a decision adopted “within a short period of time”.⁸⁸³

The necessity for having a judicial decision issued on the lawfulness of detention (concerning the deprivation of liberty and continued detention) gives rise to the definition of “court” which has been developed in Articles 5 and 6 of the ECHR. The traditional court decision is not required.⁸⁸⁴ However, the authority in charge of issuing a decision must have the characteristics of a court and be independent from executive authority and must have the authorisation to issue legally binding decisions.⁸⁸⁵ In several cases the Constitutional Court had to deal with the issue whether the provisions of Article 5, paragraph 4 of the ECHR had been violated due to the lack of the judge’s impartiality because the judge who was deciding the matter in the previous proceedings was also deciding on the extension of detention and was participating at the main trial.⁸⁸⁶ According to the opinion of the BiH Constitutional Court, this circumstance gives no per se basis for considering that the judge lacks impartiality since judges decide on different issues (constancy of the deprivation of liberty and constancy of the indictment); special reasons which would, anyway, substantiate allegations on the lack of impartiality must be proved by the appellant.⁸⁸⁷

“Judicial” decisions on the lawfulness of deprivation of liberty also require compliance with procedural guarantees such as “equality of arms”, the right of access to a court and the right to a fair and adversarial proceedings.⁸⁸⁸ Therefore, if the person concerned, who is accompanied by his attorney, is not permitted to attend court trials or sessions, in particular when the state prosecutor is the only one who is attending, the guarantees for the protection from arbitrariness are violated and such a situation is not in accordance with the provisions of Article 5, paragraph 4 of the ECHR. Furthermore, neither is it in accordance with the provisions of Article 5, paragraph 4 of the ECHR if the arrested person is not provided access to documents that may be deemed relevant or if the proceedings provide no possibility for directly informing the arrested person or his attorney about the reasons for ordering detention, or if the arrested person is not given an opportunity to challenge the allegations of the State Prosecutor’s Office, or if he is not given an opportunity to prepare the request for release from detention.⁸⁸⁹

As to the application of Article 5, paragraph 4 of the ECHR concerning compliance with the mentioned principles, less severe criteria are applied in cases of extradition proceedings. By the very nature of things, the international obligations of the State that is conducting the extradition are also relevant during such proceedings. At the same time, the essence of the right of habeas corpus must be complied with. That will not be the case if the person who is deprived of liberty is denied the right of access to court where he can challenge the lawfulness of his detention and if he is denied the access to the documents he needs in order to be able to submit a request for release from detention.⁸⁹⁰