vi. Article 5, paragraph 1(f)

Finally, the deprivation of liberty is justified if a person has been “lawfully arrested” or deprived of liberty for the purpose of preventing his illegal entry into a country or if a procedure of deportation or extradition is under way against that person.

Accordingly, the authorities must prove that the arrest has been originally justified. Except for compliance with domestic procedural regulations,⁸²³ this

requires that the deprivation is in accordance with the aims of Article 5 under the ECHR protecting an individual from arbitrariness.⁸²⁴ A legal basis is required for deprivation of liberty. An injured party must be informed of the reason for his deprivation of liberty and that person must have a possibility to file a complaint against the decision ordering detention.⁸²⁵ The injured party must fall within one of the categories listed in Article 5, paragraph 1(f) of the ECHR. However, the “necessity” for issuing an order on deprivation of liberty is wider according to item (f) than according to the provisions under item (c), since under this item the order is only required in the event of undertaking the measures of deportation or extradition. Therefore, it is of no relevance whether the decision on deportation or extradition, which makes the basis for the issuance of an order on the deprivation of liberty, could be justified by the national law or ECHR, except for cases involving arbitrariness. As long as a competent proceeding on deportation or extradition is under way it is of no relevance whether that person will be really extradited, because a distinction must be made between the lawfulness of the arrest and the lawfulness of the extradition.⁸²⁶ The fact that the arrested person initiated the procedure of getting citizenship is irrelevant within the meaning of Article 5, paragraph 1(f) of the ECHR.⁸²⁷

According to Article 5, paragraph 1(f) of the ECHR, the repeated deprivation of liberty which has been carried out by the different State institutions (in this case the Federation of BiH and the Republika Srpska) due to the same criminal offence which was allegedly committed in the area of Slovenia will be in accordance with Article 5, paragraph 1(f) of the ECHR if each of the competent institutions complies with the ECHR standards. After Interpol issues an international warrant to the competent BIH institutions along with an arrest order, the suspect is not entitled to confront the arrest in the RS with an explanation that, based on the same arrest order, he has already been already arrested and then released in the territory of the Federation of BiH because Slovenia failed to submit a request for his extradition.⁸²⁸

Furthermore, according to Article 5, paragraph 1(f) of the ECHR, the deprivation of liberty is justified only if, from a legal point of view, a certain person has

been eventually deported or extradited. An informal act of “handing over” a suspect to the authorities of a foreign country is not in compliance with this regulation. Such an act constitutes arbitrariness, in particular if a legal requirement or an explicit court ban is avoided in that way and an individual is denied a special measure of protection from deportation or extradition.⁸²⁹

In Case CH/02/8679 et al, the United States only “offered” to the Government of Bosnia and Herzegovina to put the arrested Algerians in “detention”. According to the opinion of the Human Rights Chamber, this informal offer failed to satisfy the requirement of the Criminal Procedure Code of BiH when it comes to submitting a request for extradition.⁸³⁰ The authorities acted in a similar manner in CH/02/9842: upon the expiry of pre-trial detention – which was probably lawful – the appellant was legally but not physically released, he stayed in the detention of the Federation authorities because they did not inform him that he was released from detention or about the changed reasons for his remaining in detention (deportation or extradition). This unlawful measure was aimed at handing over that person to the Egyptian authorities at some later point and the Federation of BiH had failed, even formally, to comply with regulations on extradition procedure. In addition to handing the person to the Egyptian authorities and violations of the relevant procedural law, the appellant was also stripped off his citizenship.⁸³¹