APPLICATION OF CONVENTION LAW WHEN EXPLAINING GROUNDS FOR CUSTODY: EUROPEAN STANDARDS AND BH ATTAINMENT
APPLICATION OF CONVENTION LAW WHEN EXPLAINING GROUNDS FOR CUSTODY: EUROPEAN STANDARDS AND BH ATTAINMENT

Summary/Abstract: Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides protection in sense that no one may be arbitrarily deprived of their liberty. The first paragraph of Article 5 sets out the general principle, followed by the exhaustive list of exceptions, which represent the permissible methods of deprivation of liberty. This is an exhaustive list that must be interpreted narrowly. Only in this way there is a consistency with the objective of Article 5, to ensure that no one will be arbitrarily deprived of their liberty. Paragraphs 2, 3 and 4 are generally procedural in nature, because they specify the conditions of arrest and detention, and the modalities of pronouncement and denial of their legality. Paragraph 5 provides the right to compensation in case Article 5 is violated. The rights defined by Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, by their content, are included in the fundamental rights protected by this Convention, immediately after the right to life. The Constitutional Court of Bosnia and Herzegovina has emphasized in several of its decisions that the right to personal freedom and security is one of the most important human rights, and that Article 5 of this Convention provides protection that no one should be arbitrarily deprived of their liberty.The paper gives an overview of the reasons for the ordering and extending detention in the practice of the Constitutional Court of Bosnia and Herzegovina and the European Court of Human Rights. Relevant examples from the practice of special reasons for determining detention, the grounds on which they were challenged before the Constitutional Court of Bosnia and Herzegovina, were selected. It has been shown that the “lawfulness” of the detention does not require a legal judgment, but only that the detention must be in accordance with the domestic law, the Constitution of Bosnia and Herzegovina and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

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