Posebni pritvorski razlog „uznemirenje javnosti“ kroz praksu Ustavnog suda BiH
Ground for Detention: „disturbance to public order” in the jurisprudence of the Constitutional Court of B&H

Author(s): Ena Gotovuša
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Criminal Law, Public Law, Evaluation research
Published by: Fondacija Centar za javno pravo
Keywords: BiH; law; constitution; Constitutional court; jurisprudence; ground for detention; disturbance to public order;
Summary/Abstract: In her paper, the author analyzes the jurisprudence of the Constitutional Court of B&H concerning the ground for detention “disturbance to public order”. In numerous decisions, which where analyzed, the Constitutional Court has found violation of Article II/3.d) of the Constitution of B&H and Article 5 of the Convention. The main problem with the ground for detention „disturbance to public order” is its application by domestic courts. Due to a lack of clarity and concrete criterias, domestic courts often justify its application by general and subjective explanations. In fact, the practice of domestic courts shows a pattern in how the “disturbance to public order” should be explained. In particular, the explanation of this Ground for Detention by domestic courts is just a list of arguments such as: the public order has already been violated by committed criminal offense, the public is disturbed which is proved by frequent media reports in criminal trials, the faith of the public in the judicial system is shaken, characteristics of victim or suspect/accused and the most common argument is: bad economic situation in the country and low standard of living of its citizens, when it is actually a matter of a criminal offence done by abuse of official duties. None of these arguments can justify a long period of detention. Beside decisions of the Constitutional court of B&H, the need for revision of the valid provisions in criminal procedure codes in B&H is confirmed by the decisions of Constitutional courts in region which were the subject of analysis. The author proposes a revision of provisions in a way that ground for detention can be used only for exhaustively numbered criminal offences.

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