After the appellate panels of the Court of BiH at the time issued decisions to terminate the execution of the mentioned persons' sentences of imprisonment or long-term imprisonment, the Prosecutor's Office of Bosnia and Herzegovina has filed motions to order those persons into custody. After the Prosecution's motions have been considered for each individual person, and after the parties to the proceedings and their defense counsel have been heard, the motions to order custody were denied.
Custody, as one of the measures to secure the presence of a suspect/accused in a proceeding and a successful conduct of a criminal proceeding, represents the most stringent measure that carries the highest degree and intensity of coercion in relation to the person ordered into custody.
Resorting to custody may only be considered in compliance with one of the fundamental principles of criminal procedure – the principle of legality, which clearly defines that a suspect, or an accused, may be restricted in terms of his liberty and other rights only under the conditions stipulated by law.
Article 5 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) defines the right to liberty and security, so in terms of this article any restriction of this right, or deprivation of liberty, is possible only in compliance with the procedure stipulated by law.
BiH Prosecutor's motions to order custody were considered in the context of the stage of the proceedings these cases are currently at. The Decision of the BiH Constitutional Court effectively rescinded the second-instance judgments delivered by the Court of BiH whereby these persons were sentenced through final and binding verdicts to imprisonment or long-term imprisonment, and the cases were remanded to the appellate stage, which resulted in the termination of the execution of sentences imposed on those persons, for by the revocation of the second-instance judgments of the Court of BiH the legal basis for their further serving their sentences effectively ceased to exist.
The BiH Criminal Procedure Code does not have explicit provisions to regulate the matter of the possibility to order custody in a situation when an accused person's serving his prison sentence or long-term prison sentence has been terminated, nor does it have any provisions that would serve as grounds for the deprivation of liberty at this stage of the proceedings.
In accordance with the interpretation of the mentioned Article 5 of the ECHR as provided in the judgments of the European Court of Human Rights, in case of a deprivation of liberty it is first necessary to check whether the requirements of national laws have been satisfied in terms of compliance with the basic procedures or the existence of a legal provision covering the action taken. This is, therefore, a legal void that cannot be resolved by an extensive interpretation of the ECHR provisions and direct application of Article 5, to the detriment of the accused. The ECHR provides for minimum guarantees, so if something is not regulated by national law, as is the case in this specific situation, ECHR provisions must be interpreted exclusively in favor of the accused persons. Consequently, bearing in mind that there is no „legally prescribed procedure“ for the specific situation, ordering the accused into custody solely on the grounds of Article 5(1)a) of the ECHR is not in conformity with the principle of legality. Taking into account the procedural situation the accused are currently in, any restriction of liberty in relation to the accused persons would amount to a violation of basic human rights and fundamental freedoms.