Pretrial detention is a measure used to ensure the presence of the accused during criminal proceedings. Since detention essentially involves the deprivation of liberty of the person against whom criminal proceedings are conducted, and because this measure interferes with the accused’s right to freedom, it can only be imposed if the purpose of detention cannot be achieved through a less severe measure. Pretrial detention may last only as long as there are reasons justifying it and will be revoked once the reasons for its imposition cease to exist.
Grounds for Pretrial Detention
Pretrial detention may be ordered against a person if there is reasonable suspicion that they have committed a criminal offense, and if:
- They are hiding or their identity cannot be determined, or as the accused, they are clearly evading appearing at the main trial, or if there are other circumstances indicating a risk of flight;
- There are circumstances indicating that they will destroy, conceal, alter, or forge evidence or traces of the crime, or if specific circumstances indicate they will obstruct the process by influencing witnesses, accomplices, or concealers;
- Specific circumstances indicate they will, in a short period, commit the same criminal offense again, complete an attempted criminal offense, or commit a crime they are threatening to commit;
- The criminal offense they are charged with carries a prison sentence of over ten years, or over five years for a violent crime, or if a first-instance judgment has imposed a sentence of five years or more, or a more severe sentence, and the manner of commission or the severity of the consequences of the crime has caused public unrest that could jeopardize the smooth and fair conduct of the criminal proceedings.
If detention is ordered because the person’s identity cannot be determined, it may last until their identity is confirmed. Detention that is imposed solely because the accused is clearly avoiding appearing at the main trial may last until the verdict is announced. If detention is ordered because there are circumstances suggesting the accused will destroy, conceal, alter, or forge evidence, or influence witnesses, it will be revoked once the evidence for which detention was ordered is secured.
Decision on Pretrial Detention
The court decides on the imposition of pretrial detention at the request of the public prosecutor, and after the indictment is confirmed, ex officio. Before making a decision on pretrial detention, the court will hear the accused regarding the reasons for the detention, with the public prosecutor and defense attorney allowed to attend this hearing. Pretrial detention is determined by a decision of the competent court. The decision on pretrial detention is handed to the accused at the time of arrest, or at the latest, within 12 hours from the moment of detention or deprivation of liberty.
Pretrial detention during the investigation may be ordered, extended, or revoked by the investigating judge or the panel as stated in Article 21, paragraph 4 of the Criminal Procedure Code. The decision on the extension or revocation of pretrial detention is made ex officio or upon the request of the parties or the defense attorney.
The parties and defense attorney may file an appeal against the decision on pretrial detention with the panel as stipulated in Article 21, paragraph 4 of the Criminal Procedure Code. The appeal, decision, and other case documents are immediately forwarded to the panel, which must decide on the appeal within 48 hours. The appeal does not stay the execution of the decision.
Based on the decision of the investigating judge, the accused can be held in pretrial detention for a maximum of three months from the time of deprivation of liberty. The investigating judge is required, even without a request from the parties or defense attorney, to review every 30 days whether the reasons for detention still exist and make a decision on the extension or revocation of detention. The panel of a higher court may, upon a reasoned proposal from the public prosecutor, extend the detention for up to three additional months for important reasons. An appeal may be filed against this decision, which does not stay the execution of the decision.
From the submission of the indictment to the court until the accused is sent to serve the criminal sanction involving deprivation of liberty, pretrial detention may be ordered, extended, or revoked by the panel’s decision. The decision to order, extend, or revoke pretrial detention is made ex officio or at the request of the parties or the defense attorney. The panel must, even without a request from the parties or defense attorney, assess whether the reasons for detention still exist and make a decision on the extension or revocation of detention every 30 days until the indictment is confirmed, and every 60 days after the indictment is confirmed until the first-instance judgment is rendered.
Pretrial detention that has been ordered or extended after the indictment has been raised can last until the accused is sent to serve the criminal sanction involving deprivation of liberty, but no longer than the duration of the criminal sanction imposed in the first-instance judgment. If the accused is sentenced to prison, the time spent in pretrial detention will be credited toward their prison sentence.
If the accused is not convicted of the criminal offense they were charged with, they may seek compensation from the Republic of Serbia for the time spent in pretrial detention due to wrongful deprivation of liberty.