Persons who have been unlawfully deprived of liberty or who have been unlawfully convicted have the right to initiate the appropriate procedure to achieve compensation due to unlawful deprivation of liberty. Compensation for unlawful deprivation of liberty represents a form of redress for both immaterial and material damage.
The amount of compensation is influenced by several factors, primarily the type of criminal offense charged against the injured party, or whether it is an offense that is subject to particular moral condemnation and public disdain, as well as the reputation the injured person had prior to the unlawful deprivation of liberty or conviction. Factors such as the age of the person unlawfully deprived of liberty, their family situation, occupation, social activity, previous life, criminal record, career limitations, interrupted education, social degradation or rejection in their community and workplace, as well as other circumstances, may also be taken into account. Undoubtedly, the most relevant factor for this type of damage is the time spent in detention, the conditions of confinement, and the humanity or inhumanity of prison conditions, behavior of prison staff, verbal and physical abuse, torture, lack of employment during imprisonment, and other circumstances related to the imprisonment itself.
Persons Unlawfully Deprived of Liberty
The Criminal Procedure Law explicitly lists which persons, in terms of the provisions of this law, can be considered as unlawfully deprived of liberty. The legislator has classified these persons into four distinct categories, so a person unlawfully deprived of liberty can be considered one who:
- Was deprived of liberty, but no procedure was initiated, or the procedure was discontinued by a final decision, or the charges were dismissed, or the procedure was definitively concluded with a dismissal or acquittal;
- Served a prison sentence, and upon a request for reopening the criminal procedure or a request for legal protection, was sentenced to a shorter term than the served sentence, or a sanction was imposed that did not involve deprivation of liberty, or the person was found guilty but was exempted from punishment;
- Was deprived of liberty for a longer period than the duration of the criminal sanction involving imprisonment imposed on them;
- Was deprived of liberty due to a mistake or unlawful action by the authorities, or was detained longer than the imposed sentence, or was held for a longer period in an institution for the execution of the sentence involving deprivation of liberty.
It should be noted that compensation for damage does not apply to persons who caused their own deprivation of liberty through illegal actions. For example, if the accused did not respond to court summonses, and due to this, detention was imposed as a measure to secure the presence of the accused, they will not have the right to claim compensation for unlawful deprivation of liberty, as their actions caused their own detention. Additionally, there will be no right to compensation if the procedure was discontinued due to the death of the accused.
Unlawfully Convicted Persons
An unlawfully convicted person is considered to be one against whom a criminal sanction was definitively imposed or who was found guilty but was exempted from punishment, and where a new procedure was definitively discontinued due to extraordinary legal remedies or the charges were definitively rejected, or the procedure was concluded with a final acquittal.
An unlawfully convicted person will not be entitled to compensation if they caused their conviction through a false confession or in any other way intentionally caused their conviction, unless they were coerced into doing so. This applies even if the procedure was discontinued or the charges rejected due to the victim, as the prosecutor or private prosecutor, withdrawing from the prosecution or because the victim withdrew the proposal based on an agreement with the accused.
Procedure for Obtaining the Right to Compensation
Claim for Compensation
Before filing a lawsuit for compensation, the injured party must submit a claim to the Ministry responsible for justice in order to reach an agreement regarding the existence of damage and the type and amount of compensation. A commission for compensation, whose composition and operation are regulated by an act of the Minister responsible for justice, decides on the claim for compensation. The provisions of the Criminal Procedure Code explicitly require the injured party to first approach the relevant Ministry – the Compensation Commission and request compensation before initiating the judicial process. Submitting a lawsuit without prior consultation with the Compensation Commission would result in the lawsuit being premature and rejected.
Lawsuit for Compensation
If the claim for compensation is not approved or if the Commission does not make a decision within three months from the submission of the request, the injured party may file a lawsuit for compensation with the competent court. Additionally, if an agreement is reached on part of the claim, a lawsuit for compensation may be filed for the remaining part of the claim. The lawsuit for compensation is filed against the Republic of Serbia. After filing the lawsuit, the injured party will exercise their rights in accordance with the provisions of the Civil Procedure Code. Given the complexity of the civil procedure, it is advisable for the injured party to consult a lawyer for professional legal assistance before filing the lawsuit.
Rights of the Heirs of the Injured Party and Statute of Limitations for the Right to Compensation
The heirs inherit only the injured party’s right to compensation for property damage. If the injured party has already made a claim, the heirs may continue the procedure only within the scope of the already filed claim for property (material) damage. The heirs of the injured party may continue the procedure for compensation after their death or initiate the procedure if the injured party died before the expiration of the statute of limitations and did not renounce the claim, in accordance with the rules on compensation provided by the Law on Obligations. The right to compensation expires three years from the date of finalization of the first-instance dismissing or acquitting judgment, or the final first-instance decision which discontinued the procedure or dismissed the charges, and if the appellate court ruled on the appeal – from the date the appellate court decision was received.