Article 5, paragraph 1(a)

The deprivation of liberty is justified if a person is “lawfully held in the prison in accordance with a legally binding judgment rendered by a competent court”. This would be a legally formal reason for the deprivation of liberty, since in principle it relates to the matter that there must be a judgment, not to the matter of whether the judgment is lawful, i.e., whether the judgment has been rendered in accordance with the standards provided for by Article 6 of the ECHR.⁷⁵³ Regardless of this, the facts alleged in the judgment must constitute a criminal offence punishable according to the law in the moment of commission of the offence.⁷⁵⁴ The judgment as a condition of deprivation of liberty also means that there must be an order to enforce the criminal judgment. Therefore, whether an adequate order was served on the convicted person while depriving him/ her of liberty is not insignificant, all the more so if the competent authorities attempted several times and with no success to deliver the order to enforce the criminal judgment.⁷⁵⁵ However, after a legally binding judgment has been pronounced, the detained person must be released immediately,⁷⁵⁶ or the order to enforce the criminal judgment must be served on him/her immediately. Otherwise, the extension of detention will be unlawful.⁷⁵⁷

In this respect, the term “judgment” has an autonomous meaning so that it does not have to necessarily relate to the conviction in criminal legal terms. It is important for the deprivation of liberty to be provided by a decision, such as for placement in a psychiatric hospital.⁷⁵⁸ According to the case-law of the European Court, the judgment must be legally binding.⁷⁵⁹ According to regulations in Bosnia and Herzegovina, a person can – if the judgment has not yet become legally binding – be committed to serve his/her sentence only at his/her own request.⁷⁶⁰ Otherwise, deprivation of liberty would be unlawful for enforcement of a criminal judgment. However, if the legally binding judgment is quashed in extraordinary court proceedings, and the convicted person has already started serving his/her sentence, then he/she must file a motion for release from prison. Otherwise, there is no violation of Article 5, paragraph 1(a) of the ECHR.⁷⁶¹ Article 5, paragraph 1(a) of the ECHR does not “cover” deprivation of liberty before the moment when the judgment is pronounced or before the moment when precautionary measures are taken.⁷⁶²

The competent court must adopt a decision establishing a violation of Article 5, paragraph 1(a) of the ECHR, in which case the mere existence of a violation of territorial jurisdiction is not sufficient. It is true that in that case the judgment is unlawful, but it is not unconstitutional.⁷⁶³ Some other principle applies if a decision is adopted by an authority having no ratione personae jurisdiction.⁷⁶⁴ There is another case in which the BiH Constitutional Court ruled in the opposite manner. To be more precise, in Case No. AP 662/04,⁷⁶⁵ the BiH Constitutional Court concluded that there is no violation of the BiH Constitution when a competent body adopts a decision without the required quorum (13 members) because the present members (10) and the members who voted for the decision (7) made the quorum anyway. Given the fact that a lack of quorum may fall within the scope of the term “ratione personae jurisdiction”, the BiH Constitutional Court was not explicit enough in that decision as to stating whether it deviated from the previous position presented in Case No.

AP 216/03. If the recent practice would constitute an official standpoint, then the violations of regulations on territorial and ratione personae jurisdiction would be admissible from a constitutional point of view. However, given the idea of the right to “a lawful judge”, which constitutes one of the basic elements of the right to a fair trial in the constitutional system of the Federal Republic of Germany, this approach creates doubts.⁷⁶⁶

With reference to the procedural requirement for the protection of rights under Article 5, paragraph 1(a) of the ECHR, the BiH Constitutional Court established that there is no effective legal remedy in the RS (similar regulations are applied in the Federation of BiH as well), which means that the appellant would have to file an appeal with the BiH Constitutional Court immediately, i.e., within 60 days as from the day following the expiry of the first day of serving the prison sentence for the execution of a criminal sanction.⁷⁶⁷