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iii. Article 5, paragraph 1(c)

Further, the deprivation of liberty is justified in the event of “lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”. This provision regulates so-called preventive detention and pre-trial confinement. Pursuant to Article 5, paragraph 1(c) of the ECHR, the deprivation of liberty should give an opportunity to the competent authorities to confirm or deny a suspicion relating to the commission of a criminal offence which is the basis for a deprivation of liberty and thus speed up the investigation.770 As long as the defendant is not convicted by a non-legally binding judgment, his detention shall be considered as being in compliance with Article 5, paragraph 1(c) of the ECHR and not with Article 5, paragraph 1(a) of the ECHR.771

The first requirement of this provision is the lawfulness of the deprivation of liberty. The condition for this lawfulness is the issuance of an arrest order by a competent court based on which a person may be deprived of liberty. Any other deprivation of liberty, such as, for instance, when a suspect is caught on the spot,772 is lawful provided that the requirements under Article 5, paragraph 3 of the ECHR have been met. Thus, for instance, in cases of arrests for the purpose of punishing war criminals, a previously issued court order, warrant, or ICTY indictment are required.773 If the deprivation of liberty is not aimed at conducting criminal proceedings, such a deprivation of liberty is unlawful. Also, if a person is deprived of liberty for the purpose of “his/her own protection” because that person moves in “insecure territory” and if there is no previous announcement to the police or to the relevant international organisation, then such a deprivation is unlawful since that deprivation of liberty is not aimed at conducting a criminal proceeding.774

“Punitive action”, within the meaning of Article 5, paragraph 1(c) of the ECHR is also a special term. It is identical to the definition of the term “criminal charge” under Article 6 of the ECHR. Therefore, it is not of crucial importance whether the domestic law defines a certain action as punitive but whether, according to the substantive criteria of the ECHR, it should be considered as a punitive action.

Accordingly, both customs felonies775 and economic felonies776 may be viewed as “criminal acts” within the meaning of Article 5, paragraph 1(c) of the ECHR.777

The question on the existence of a basis for reasonable suspicion is a significant characteristic of the principle on protection from arbitrary arrest. Reasonable suspicion presumes that there are facts or information which may convince an objective observer that a certain person might have committed a criminal offence. However, identifying the situations that contain the basis for reasonable suspicion depends on the circumstances of each individual case.778 Thus, for the beginning, the deprivation of liberty is sufficiently justified in a situation where the suspect was in the possession of a landmine and wire779 or a weapon with ammunition.780 A suspicion must exist at the moment of the deprivation of liberty about which a decision is to be adopted on prima facie grounds. If the evidence substantiating the suspicion are presented only after the person concerned is arrested, in a way that he is charged only during the interrogation in the form of a written statement, such kind of deprivation of liberty is considered to be arbitrary.781

The extension of detention for a suspect who was originally deprived of liberty due to the reasonable suspicion of having committed a criminal offence is to be determined according to Article 5, paragraph 3 of the ECHR, which is considered together with Article 5, paragraph 1(c) of the ECHR.782 If the original detention is extended or if it lasts for a long period of time, the lawfulness of such a detention is not determined according to Article 5, paragraph 1(c) of the ECHR but according to Article 5, paragraph 3 of the ECHR.783

Deprivation of liberty constitutes a very sensitive restriction of individual human rights and fundamental freedoms. Therefore, a deprivation of liberty is admissible only in cases where a huge probability exists that guilt will be established or that a sanction will be pronounced, in other words if there is a reasonable suspicion that the person concerned committed an offence he was charged with. Of course, a strong requirement is that a deprivation of liberty is admissible only if criminal proceedings could be initiated and conducted.784 Other reasons for deprivations of liberty may be regulated by ordinary laws. The successful conduct of criminal proceedings is always possible if there is no fear that a suspect, i.e., the defendant will jeopardise the criminal proceedings.

Article 5, paragraph 1(c) of the ECHR stipulates that deprivations of liberty should prevent the commission of a criminal offence or the flight of a suspect after having committed an offence. However, these two requirements from Article 5, paragraph 1(c) of the ECHR are not final. Other reasons for a deprivation of liberty may be regulated by the ordinary law.785 Thus, Article 146 of the Criminal Code of the Federation of BiH786 provides that a deprivation of liberty is admissible if there is a risk that flight, concealment, collaboration, collusion or commencement of commission of a criminal offence or the completion of a commenced criminal offence will occur or if there is a threat to public security if the person concerned remains at liberty. Unless these reasons for deprivation of liberty exist, a suspect or defendant must remain at liberty.787 The gravity of the offence the person concerned is charged with is not a sufficient reason for ordering a deprivation of liberty.788 The competent authority must present that, in addition to reasonable suspicion, there is also a justified reason for a deprivation of liberty, which means not only giving unsustainable statements or referring to the law in general terms.789 It is true that in some countries similar provisions exist. For instance, in the Republic of Austria, according to Article 180, paragraph 7 of the Criminal Procedure Code,790 detention must be imposed in the event of a criminal offence for which the law provides a minimum of ten years in prison unless it could be presumed, based on the facts of the specific case, that there are no reasons for the deprivation of liberty referred to in paragraph 2 of this provision, such as threat of escape, threat of hiding, etc. It is acceptable for the European Court that the national law provides for obligatory deprivation of liberty with respect to certain cases or if, for special reasons, there is a lawful presumption that the person concerned may flee due to the gravity of punishment he may expect. It is true that the Committee of Ministers of the Council of Europe, in its Resolution which was adopted on 9 April 1965, recommended that the governments of the member states limit pre-trial detention, to apply it only when necessary and to consider it as an exception. This resolution is not a legally binding regulation.791 Thus, it could be concluded that in such cases the domestic authorities must have mechanisms that make it possible for giving up deprivations of liberty, i.e., a mechanism for the prevention of misuse and arbitrariness by competent authorities.

The cases in which the BiH Constitutional Court, the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court confirmed that, except for a reasonable suspicion, there is one or several legal reasons for arrest:

■ The appellant is a citizen of Serbia, his family is also in that country and his place of residence is in that country;792

■ two suspects are also on the run and it is presumed that other suspects, given the imposed sanction, would make an attempt to flee;793

■ there is a risk that the defendants may flee because they have no personal documents issued for a stay in BiH (although they are citizens of BiH ) and they are also citizens of the Republic of Serbia, which has not yet signed the readmission agreement with BiH, and they have no considerable property in BiH and are charged with a grave criminal offence;794

■ there is a risk that the suspect may flee since it is obvious from his dossier that the state prosecutor’s office is conducting second proceedings against him for the forgery of documents; the suspect may, owing to his business engagement in prominent international companies, obtain huge amounts of money; it is not known where the suspect hides his Canadian visa;795

■ there is a risk that the suspect may flee since he has dual citizenship and he had already been on the run and was arrested owing to an international warrant and an order was issued for him to be deprived of liberty;796

■ there is a risk that the suspect may flee since, in addition to his BiH citizenship, the suspect also has Croatian citizenship and Croatia has not yet signed an agreement with Bosnia and Herzegovina on readmission of its citizens; the defendant has already been on the run for a long time using a false identity after the international warrant was issued for him to be deprived of liberty;797

■ there is a risk that the suspect may flee since he stated that he had no BiH personal documents and that he was only in transit.798

The cases in which the BiH Constitutional Court, the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court confirmed that there is a threat to the public order and security established by the competent courts:

■ a risk that the close relatives of the victim and other citizens may take revenge against the person deprived of liberty due to the type of criminal offence and the manner in which that criminal offence was committed;799

■ the type of criminal offence and the manner in which the criminal offence was committed: throwing an explosive device among a group of gathered people;800 detonation of an explosive device during daylight in a public place;801

■ the type of criminal offence and the manner in which the criminal offence was committed: selling drugs at places visited by a large number of young people and children. In addition, the suspect has already been convicted on several occasions due to the commission of the same offence;802

■ the type of criminal offence and the manner in which the criminal offence was committed: genocide;803

■ a threat to public order and security since the suspect was charged with the criminal act of genocide and if he would be released, the population of a small village where he used to reside would become very disturbed and frightened.804

The cases in which the BiH Constitutional Court, the Human Rights Chamber and the Human Rights Commission within the BiH Constitutional Court confirmed

that there is a threat that the evidence may be concealed or that there might be collaboration and collusion among offenders:

■ all suspects acted in an organised manner and with previous collaboration, so if they are not deprived of liberty there is a risk that they may interrupt the continuation of the investigation proceedings;805

■ prospective witnesses live in the immediate vicinity of the defendant, who is charged with a grave criminal offence and therefore there is a risk of evidence concealment, collaboration or collusion;806

■ the defendant has very strong private and professional connections with the witnesses that should be interrogated, and given the fact that other investigative actions should be taken by the state prosecutor’s office against the persons known to the defendant, there is a risk of evidence concealment, collaboration or collusion;807

For the purpose of protecting the legal properties being threatened by acts of terrorism, the police must urgently investigate all available information, including secret sources of information, and sometimes detain an alleged terrorist on the basis of reliable information which cannot be disclosed without putting the source of the information in jeopardy. Therefore, when it comes to the criminal offences of terrorism, the issue whether there is a “basis” for a reasonable suspicion should be assessed less strictly and only to the extent that the safeguard secured by Article 5, paragraph 1(c) of the ECHR is not impaired.808 As to this issue, it should be examined whether the obligations of UN members referred to in paragraph 2(e) of UN Resolution No. 1373 on the fight against terror (2001),809 play any role in this regard. Vice versa, that is to say that none of the institutions in charge of criminal prosecution will be absolved from considering whether a reasonable suspicion existed at the time of making the arrest merely due to the fact that the committed offence was one of terrorism. Additionally, the domestic authorities will not be absolved from assessing the reasonableness merely because the offence under domestic law stipulates obligatory pre-trial detention.810

If an order is issued by the court to release a certain person from detention, a postponement of several hours of the suspect’s release cannot be covered any

more by Article 5, paragraph 1(c) in some cases, in particular if the continued detention is aimed at bridging the time until extradition, deportation, etc.811

Footnotes

  1. CH/00/3800-A&M, paragraph 117 with further reference to the ECtHR, Murray v. the United Kingdom of 28 October 1994, Series A no. 300-A, paragraph 55.

  2. See CH/00/3880-A&M, paragraph 123 et seq.

  3. See, for instance, Article 147 of the FBiH Criminal Procedure Code (OG of FBiH, No.35/03).

  4. For more about this topic, see: “(a) Lawful arrest”, p. 208.

  5. CH/98/896-A&M, paragraph 65 et seq.

  6. U 19/00, paragraph 23.

  7. AP 223/02, paragraph 19 et seq.

  8. See more about this topic in: iv. “A criminal charge”, p. 264.

  9. CH/00/3880-A&M, paragraph 117 in conjunction with the ECtHR, Fox et al. v. the United Kingdom of 30 August 1990, Series A no. 182, paragraph 32.

  10. CH/97/34-A&M, paragraph 90.

  11. CH/98/1373, paragraph 96.

  12. CH/98/1027 et al. -A&M, paragraph 138 et seq.

  13. AP 805/04, paragraph 33 with further references to the ECtHR, Schiesser v. Switzerland of 4 December 1979, Series A no. 34, paragraph 29.

  14. CH/02/12427-A&M, paragraph 103 with further references to the ECtHR, De Jong et al. v. Holland of 22 May 1984, Series A no. 77, paragraph 44, and Letellier v. France of 26 June1991, Series A no. 207, paragraph 35.

  15. AP 247/05, paragraph 23.

  16. CH/03/13854, paragraph 20.

  17. OG of FBiH, No. 35/03.

  18. AP 805/04, paragraph 33.

  19. CH/00/3880-A&M, paragraphs 146, 151, 153 with further references to Wemhoff v.Germany of 27 June 1968, Series A no. 7, paragraphs 10, 12; Tomasi v. France of 27 August 1992, Series A no. 241, paragraph 84; see, also, CH/01/7912 et al.-A&M, paragraph 156 et seq.; CH/01/7488-A&M, paragraph 104 with further references to the ECtHR, Letellier v. France of 26 June 1991, Series A no. 207.

  20. CH/03/14486, paragraph 96 et seq.; CH/02/11108 et al.-A&M, paragraph 152 with further references to the ECtHR, Letellier v. France of 26 June 1991, Series A no. 207, Series A no. 207; these requirements were not met in: AP 1824/05, see paragraph 10 et seq. in the mentioned decision; AP 2398/06 also raises doubts, in which case a non-legally binding judgment on imposing 5 years in prison, which was adopted by the court of first instance, is obviously considered as a sufficient reason for deprivation of liberty.

  21. BGBl, 1975/631 titled as 1998/153.

  22. Res. [65] 11, published in the FR of Germany as an attachment to BAnz issue 102 of 3 June 1965, p. 152; quotation and note in Frowein/Peukert, 1996, p. 107, footnote 151.

  23. AP 247/05, paragraphs 8, 28.

  24. AP 997/07, paragraphs 2, 13.

  25. AP 2499/06, paragraph 18 et seq.

  26. AP 252/05, paragraphs 7, 41.

  27. AP 542/05, paragraphs 8, 35 et seq.

  28. AP 3117/06, paragraph 6 et seq., paragraph 22 et seq.

  29. AP 2319/06, paragraph 14.

  30. AP 1066/07, paragraphs 7, 14.

  31. AP 805/04, paragraphs 8, 35.

  32. CH/02/11108-A&M, paragraph 169 et seq.

  33. AP 911/07, paragraphs 3, 9.

  34. AP 542/05, paragraphs 7, 33 et seq.

  35. AP 3117/06, paragraph 6 et seq., paragraph 22 et seq.

  36. AP 997/07, paragraphs 2, 13.

  37. CH/02/11108-A&M, paragraph 169 et seq.

  38. AP 1943/07, paragraphs 2, 10.

  39. CH/02/8679 et al.-A&M, paragraph 212 with a quotation from the ECtHR, Fox et al.v. the United Kingdom of 30 August.1990, Series A no. 182, paragraph 32.

  40. CH/02/8679 et al.-A&M, paragraph 213.

  41. CH/02/11108 et al.-A&M, paragraph 137.

  42. See, CH/02/8679 et al.-A&M, paragraph 219 et seq. with further references to the ECtHR, Quinn v. France of 22 March 1995, Series A no. 311, paragraph 42; in this regard, see also p. 221, the part about Article 5 paragraph 1(f) of the ECHR.

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