Published on 3 June 2024
FIRST SECTION
Application no. 37409/23
Nebojša DAŠIĆ
against Montenegro
lodged on 3 October 2023
communicated on 14 May 2024
SUBJECT MATTER OF THE CASE
The application concerns the lawfulness of the applicant’s deprivation of liberty and detention.
The applicant was apprehended by the police on 6 July 2023 at 15:30 and effectively under their control as of that time, as confirmed by several medical reports, whereas his detention order indicated that he was apprehended at 20:15. The applicant complained to the Constitutional Court about the inaccurate recording of the time of his apprehension, which he submitted had breached several provisions of the Criminal Procedure Code, thus making his detention unlawful and in breach of Article 5 of the Convention. On 31 July 2023 the Constitutional Court dismissed his constitutional appeal stating that pursuant to Article 223 of the Criminal Procedure Code if there were any doubts about the calculation of the sentence or the final judgment did not accurately include the time which the applicant had spent in pre-trial detention, it could be rectified in the proceedings before the regular courts.
The applicant complains that the time of his apprehension was not accurately registered, which amounts to unlawful deprivation of his liberty, making his subsequent detention also unlawful in breach of Article 5 of the Convention.
QUESTIONS TO THE PARTIES
Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular:
(i) Did the deprivation of liberty on 6 July 2023 between 15:30 and 20:15 fall within the meaning of Article 5 § 1 (c) (see I.I. v. Bulgaria, no. 44082/98, §§ 86-87, 9 June 2005; Osypenko v. Ukraine, no. 4634/04, § 49, 9 November 2010; Rozhkov v. Russia (no. 2), no. 38898/04, § 79, 31 January 2017; Aftanache v. Romania, no. 999/19, § 81-83, 26 May 2020; and Duğan v. Türkiye, no. 84543/17, §§ 35-37, 7 February 2023)?
(ii) If so, was it lawful (see Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 84, 20 May 2010)?
(iii) Did the applicant’s deprivation of liberty exceed the 72-hours period permitted by domestic law (see Mooren v. Germany [GC], no. 11364/03, § 73, 9 July 2009; Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 135, 4 December 2018; and Komissarov v. the Czech Republic, no. 20611/17, § 50 in fine, 3 February 2022)?
(iv) Was the applicant’s detention ordered and/or extended “in accordance with a procedure prescribed by law” (see Medvedyev and Others v. France [GC], no. 3394/03, § 79, ECHR 2010)?