Asanović v. Montenegro (Application no. 52415/18)

A selection of key paragraphs can be found below the judgment.

66. Turning to the present case, the Court notes that Article 259 of the CPC provides,inter alia, that a person who did not comply with the summons can be brought in by force only if he or she was warned in that regard in the summons (see paragraph 36 above). While the summons in the applicant’s case contained the said warning it also indicated that the applicant had to come “at once”. The Court considers that such wording did not give the applicant a prior opportunity to comply with the summons on his own. While the parties disagree as to whether the applicant complied with the summons voluntarily or was taken by the police, the domestic court found that the police officers had taken him by his arms into their vehicle and then to the police station (see paragraph 27 in fine above). The Court thus finds it established that the applicant was brought to the police by force contrary to Article 259 § 1 of the CPC, which constituted his de facto deprivation of liberty. 

67. It is further noted that the applicant was officially deprived of liberty at 10h40 by the official report issued by the police following the state prosecutor’s request to that effect. Pursuant to Article 264 § 1 of CPC police officers can deprive a person of liberty if there are reasons for detention set out in Article 175 of CPC (see paragraph 35 above). However, the said report referred only to the criminal offence the applicant was suspected of, without indicating any of the legal grounds specified in Article 175 of the CPC for deprivation of liberty. The Court also notes that the applicant is apractising attorney and that the Bar Act explicitly provides that a practicing attorney can be deprived of liberty for criminal offences related to his or her practice only pursuant to a relevant court’s decision (see paragraph 32 above). It is undisputed by the Government that such a decision did not exist in the applicant’s case. Therefore, even if the police had indicated one of the grounds listed in Article 175 of the CPC, the applicant’s deprivation of liberty would still have been unlawful. 

68. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1, failure to comply with domestic law entails a breach of the Convention, and the Court can and should therefore review whether this law has been complied with (Moorenv. Germany [GC], no. 11364/03, § 73, 9 July 2009). In view of the above, the Court finds that the applicant’s deprivation of liberty was not in compliance with Articles 259 and 264 of the CPC and section 23 of the Bar Act, and thus was unlawful. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 5 § 1 (c) of the Convention.