i Bringing a suspect before a judge “promptly”

An official person who is considered a judge or some other official person who, pursuant to Article 5, paragraph 3 of the ECHR, is authorised under law to execute judicial power, is obliged to examine the circumstances supporting the deprivation of liberty and those against the deprivation of liberty and, taking into account the legal criteria, to decide whether there are reasons justifying the deprivation of liberty or, if those reasons do not exist, to issue an order to release the person concerned from detention.⁸⁴⁰

Bringing a suspect before a judge or some other officer executing judicial power is compulsory. It is not a discretionary right of the authorities in charge of criminal proceedings. From the very beginning, the Court of BiH limited the practice of bringing a suspect before a judge to only those cases where the reasons for the deprivation of liberty created doubts; such a practice is unacceptable because in that way the right to protection from arbitrary deprivation of liberty is undermined since this right is guaranteed under Article 5, paragraph 3 of the ECHR.⁸⁴¹ The Court of BiH offered the reasons for this practice stating that the applicable procedural law contains no provision requiring that a person must be brought before a judge promptly. That is the reason why some of the detainees spent more than six months in the pre-trial detention only on the basis of the “status of acts” and they had never been brought before a judge.⁸⁴² In order to confront this judicial practice, which is obviously contrary to the ECHR, the BiH Constitutional Court issued an interim measure ordering that the person concerned must be brought before a judge within 24 hours. If a suspect is in pre-trial detention which is confirmed to be consistent with the Constitution based on a decision of the BiH Constitutional Court⁸⁴³ and if, in the meantime, the State Prosecutor’s Office extends or modifies the investigation, which may have effect on the extension of pre-trial detention, the suspect must be brought before a judge because of both the new accusations and the extension of detention measure.⁸⁴⁴ The judge is not obliged to schedule a hearing at a special date or for that purpose only. The hearing may be held during the main trial. In that case the person shall not suffer damage if a ruling on detention is adopted outside the hearing.⁸⁴⁵

The provision which, by the force of law, withdraws the discretionary right from the judge to decide on the justification of detention is in contravention of the ECHR. So, the deprivation on liberty which is based on that provision is unlawful. To be more precise, if a judge or a body authorised to examine the reasons for the deprivation of liberty, while taking a decision on an extension of pre-trial-detention, lacks room for making the assessment which means that he can under no circumstances terminate the pre-trial detention in a lawful manner and issue an order on releasing the person concerned from detention because, for instance, the extension of detention in the event of warranted suspicion is compulsory under law;⁸⁴⁶ this judge or the body in charge of examining the lawfulness of detention cannot be considered a judge or other officer authorised to execute judicial power within the meaning of Article 5, paragraph 3 of the ECHR. Therefore, such deprivations of liberty shall be considered unlawful.⁸⁴⁷

The requirements of Article 5, paragraph 3 of the ECHR shall not be met if a competent judge, due to an unquestionable legal presumption, cannot examine whether there is a reasonable suspicion on which the Prosecutor’s Office has based its order on the determination of a pre-trial detention measure.⁸⁴⁸ Based on the principle of “equality of arms”, the state prosecutor is a party to the proceedings and therefore he cannot be considered a judge or other officer authorised by law to execute judicial power as referred to under Article 5, paragraph 3 of the ECHR.⁸⁴⁹

As to the issue of whether a person was brought before a judge “promptly” within the meaning of Article 5, paragraph 3 of the ECHR, the assessment is not to be made based on the circumstances of each individual case but on the basis of, inter alia, domestic procedural regulations. Therefore, the criminal prosecution authorities have a certain margin of appreciation.⁸⁵⁰ However, the maximum time-limit for bringing a person before a judge shall not exceed four days.⁸⁵¹ Accordingly, bringing a person before a judge on the day when he is deprived of liberty could be considered as usual practice.⁸⁵² Even if domestic law permits a detention of three days until the day of bringing a person before a judge, which, as a rule, is still in compliance with the maximum deadline of four days, there must be special reasons justifying the fact that a person was not brought before a judge.⁸⁵³ Insignificant exceeding of the time limit prescribed by law (for instance, 24 hours time-limit in which the State prosecutor, after taking over a person who was arrested by police, must submit a request to the judge who should issue a detention measure – Article 139, paragraph 4 of the Criminal Procedure Code of F BiH (OG of FBiH, Nos. 36/03, 26/04 and 63/04)) does not automatically mean that Article 5, paragraph 3 of the ECHR has been violated.⁸⁵⁴ The domestic procedural regulations must not be given such significance so as to violate the essence of the rights under Article 5, paragraph 3 of the ECHR. That is the case when, for instance, the obligation of the State has been denied in respect of securing the release of a detainee or bringing him before a competent judge “promptly”. Therefore, if there is doubt that terrorist acts have been committed, the period of four days and six hours cannot be any more viewed as being in accordance with these standards.⁸⁵⁵ That is even less applicable to the period of seven days of not bringing a person before a judge.⁸⁵⁶