Права лица лишених слободе: међународни стандарди и новија пракса Уставног суда Босне и Херцеговине
Rights of Persons Deprived of Liberty:International Standards and More Recent Case-Law of the Constitutional Court of Bosnia and Herzegovina

Author(s): Miodrag N. Simović, Milena Simović, Vladimir M. Simović
Subject(s): Law, Constitution, Jurisprudence, Criminal Law, Human Rights and Humanitarian Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Arrest;Detention;The Constitution of Bosnia and Herzegovina;The European Convention Of Human Rights and Fundamental Freedoms;The Constitutional Court of Bosnia and Herzegovina;The European Court of Human Rights
Summary/Abstract: Rights guaranteed to all persons deprived of liberty are established,primarily, in Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Constitutional Court of Bosnia and Herzegovina emphasized in several of its decisions that the right to liberty of person is one the most important human rights and that Article 5 of the European Convention grants protection that no person can be deprived of liberty arbitrarily. Arbitrariness of deprivation of liberty is evaluated,primarily, in relation to compliance with procedural requirements of the laws which are applied in the given case but with compliance, at the same time,of standards under Article 5 of the European Convention. The fundamental principle is that detention which is arbitrary cannot be associated with Article 5 paragraph 1 of the European Convention and that the term „arbitrariness“under Article 5 paragraph 1 of the European Convention extends further than the very non-compliance of national law so that the deprivation of liberty can be legal within the meaning of national law but still arbitrary and in contravention with the Convention.European Convention imposes on a contracting state a positive obligation to thoroughly investigates allegations on intentional deprivation of liberty even in cases in which it cannot be established that the deprivation of liberty may be assigned to the authorities. In addition, person seeking compensation under Article 5 paragraph 5 of the European Convention must be a victim of a violation of some of the paragraphs 1-4 of Article 5 of the European Convention. Otherwise such person would not be entitled to compensation under Article 5 paragraph 5 of the European Convention. Under the case-law of the European Court of Human Rights, the very fact that a person that was detained is subsequently acquitted by court decision, does not make arrest illegal with retroactive effect.

• Details
• Contents