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The Court explained that liberty of a suspect or indictee could be restricted only under conditions prescribed by the law.
“The Criminal Proceedings Code of Bosnia and Herzegovina does not contain explicit provisions, regulating the possibility of ordering an indictee into custody in case the execution of sentence is discontinued or provisions that would be the grounds for depriving a person of liberty in this stage of the proceedings,” the announcement says.
The Court rejected custody order motions for Petar Mitrovic, Slobodan Jakovljevic, Aleksandar Radovanovic, Branislav Medan, Brano Dzinic and Milenko Trifunovic, who were sentenced to between 28 and 33 years in prison for having assisted in the commission of genocide in Srebrenica.
The custody measure was not ordered against Mirko (son of Spiro) and Mirko (son of Mile) Pekez and Milorad Savic either. They were released from prison, where they were serving their sentences after having been sentenced to between 14 and 29 years for crimes in Jajce.
In the custody order motions the Prosecution of Bosnia and Herzegovina said that, although the Law on Criminal Proceedings did not regulate the procedure for ordering custody in case a verdict was quashed, custody measures were enabled by provisions of the European Convention for Protection of Human Rights.
However, the Appellate Chamber determined that Article 5 of the European Convention prescribes the right to liberty and security and that it was possible to restrict this right, i.e. deprive a person of liberty, only within a process prescribed under the law.
“Therefore, this is a legal gap, which cannot be solved to the detriment of indictee by an extensive interpretation of provisions of the European Convention and the direct application of Article 5,” the Court said.
After the Constitutional Court of Bosnia and Herzegovina determined that the Criminal Code of Bosnia and Herzegovina was wrongly applied in a certain number of war crimes cases and quashed the second instance verdicts, the Court of Bosnia and Herzegovina discontinued the execution of sentences in the case of ten convicts on November 18.
The Prosecution then filed custody order motions against them.
A custody order motion against Nikola Andrun is yet to be considered. The hearing in that case was postponed until the power of attorney issue for the Defence attorney has been resolved.
The solving of the issue of wrong application of laws at war crimes trials was initiated following the pronouncement of a ruling by the European Court for Human Rights in Strasbourg in the Abduladhim Maktouf and Goran Damjanovic cases.