Communicated on 11 January 2016
FIFTH SECTION
Application no. 61287/12
Fadil ČOVIĆ
against Bosnia and Herzegovina
lodged on 17 September 2012
STATEMENT OF FACTS
The applicant, Mr Fadil Čović, is a citizen of Bosnia and Herzegovina, who was born in 1953 and lives in Sarajevo. He is represented before the Court by Mr K. Kolić, a lawyer practising in Sarajevo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 November 2011 the applicant was arrested and detained on suspicion of having committed war crimes against the civilian population and against prisoners of war.
On 23 November 2011 the State Court of Bosnia and Herzegovina (“the State Court”) reviewed and extended his detention based on the risk of his obstructing the course of justice by exerting pressure on witnesses and co-accused or by destroying evidence. The detention had thereafter been extended several times and the applicant’s appeals had been rejected by the State Court.
On 29 December 2011 the State Prosecutor issued an indictment against the applicant and seven other persons, which was confirmed by the State Court on 10 January 2012.
On 23 February 2012 the applicant lodged a constitutional appeal in which he complained under Article 5 of the Convention that the competent courts had acted arbitrarily when extending his pre-trial detention and in particular that his continued detention had been excessive and had not been based on relevant and sufficient reasons.
On 13 July 2012 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”), in a formation of eight judges, rejected the applicant’s appeal since it could not reach a majority on any of the proposals. The court’s reasoning included all the views expressed at the session on the issues raised in the case. That decision was final by virtue of Article VI § 4 of the Constitution.
On 1 November 2012 the applicant was released. The criminal proceedings against him are still pending.
B. Relevant domestic law
The relevant domestic law was set out in Avdić and Others v. Bosnia and Herzegovina (nos. 28357/11, 31549/11 and 39295/11, §§ 17 and 18, 19 November 2013). Notably, Rule 40(3) of the Rules of the Constitutional Court, which was in force at the material time, provided that when fewer than nine judges participated in a plenary session it was considered that an appeal was rejected unless a minimum of five judges voted identically on a proposal under discussion. Such a decision contained all the views expressed at the plenary session on the issues raised in a case and was final.
Following Avdić and Others, cited above, on 1 April 2014 new Rules of the Constitutional Court entered into force. Rule 42(5) thereof provides that when fewer than nine judges participate in a plenary session, unless a minimum of five judges voted identically on a proposal under discussion, the case shall be adjourned for a maximum period of six months; if after that period the same situation occurs, the President’s vote shall count for two votes.
COMPLAINTS
The applicant complains that the rejection of his constitutional appeal because the Constitutional Court could not reach a majority denied him an effective procedure by which to challenge the lawfulness of his detention as required by Article 5 § 4 of the Convention. He further complains under Article 5 §§ 1 (c) and 3 that his detention was arbitrary and its length unjustified.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
2. Was the length of the applicant’s pre-trial detention from 22 November 2011 to 1 November 2012 in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Were the grounds advanced by the domestic courts for the applicant’s continued detention “relevant and sufficient”?
3. In view of the nature of the Constitutional Court’s decision in the present case did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
Full & Egal Universal Law Academy