What is detention and how long can it last?

Table of contents

• What is detention?
• When can detention be ordered and who orderes it?
• How long can detention last?
• Detention of a minor
• Detention has been ordered – what now?

What is detention?

Detention is a measure consisting of deprivation of liberty. It belongs to the group of measures applied with the aim of ensuring the presence of the accused, unhindered conducting of criminal proceedings and preventing certain consequences. Within this group of measures, detention is the most severe measure because it restricts the rights and freedoms of the accused to the greatest extent. Therefore, detention must be applied only exceptionally, and only when the conditions for the application of other, more lenient measures are not met.

Is detention the same as police custody? These two institutions are not synonymous, although they are often equated in the media and the general public. They differ in the purpose of their determination, the state authorities that decide on these measures, their duration and deadlines. I wrote about police custody сам писао у посебној објави, па вас упућујем на њу да се детаљније упознате и са тим институтом ако сте заинтересовани.

When can detention be ordered and who orderes it?

Detention may be ordered against a person who is reasonably suspected of having committed a criminal offense if the following conditions are met:

1. Ensuring presense

• if he is hiding;
• if his identity can’t be determined;
• if, in the capacity of the accused, he avoids being present at court hearings;
• if there are other circumstances that indicate a risk of flight.

2. Unhindered conduct of criminal proceedings

• if there are circumstances that indicate that he might destroy, hide or falsify evidence or traces of the criminal offense;
• if special circumstances indicate that he will interfere with the proceedings by influencing witnesses, accomplices or concealers.

3. Prevention

• if special circumstances indicate that he will repeat the criminal offense in a short period of time;
• if special circumstances indicate that he will complete the attempted criminal offense in a short period of time;
• if special circumstances indicate that he will, in a short period of time, commit the criminal offense he is threatening to commit.

4. Special situations

• if he is accused of a criminal offence punishable by imprisonment for longer than 10 years or imprisonment for longer than 5 years for a criminal offense with elements of violence, or if he was sentenced to imprisonment for 5 years or longer with a first-instance court verdict, and the method of execution or the seriousness of the consequences of the criminal offense have led to public anxiety that may jeopardize the unhindered and fair conduct of criminal proceedings (in regular proceedings);
• if he was sentenced imprisonment for 5 years or longer and if it is justified due to the particularly serious circumstances of the criminal offense (in abbreviated proceedings);
• if there is a justified danger that he could commit a criminal offense due to mental disorders (in the procedure for imposing a security measure of mandatory psychiatric treatment).

The reasons listed are not mutually exclusive and it is possible for detention to be ordered simultaneously for multiple reasons.

The court orders detention at the proposal of the public prosecutor. After the confirmation of the indictment, the court may order detention ex officio as well.

Before ordering on detention, the court is obliged to hear the defendant about the reasons for detention. The court may order detention even without hearing him if there are certain justified reasons.

How long can detention last?

The duration of detention depends on the nature of the proceedings and the stage in which the proceedings are currently in. Criminal proceedings can be conducted as abbreviated and regular proceedings. In this text, we will not go into the details of the abbreviated and regular procedure, but for the context of the text it’s important to know the following: in the abbreviated procedure there is no investigation phase, while in the regular procedure there is.

1. Abbreviated proceedings

In the abbreviated proceedings, before the indictment is filed, detention may last up to a maximum of 30 days. If detention is ordered in the proceedings for a criminal offense punishable by imprisonment for 5 years or longer, detention may be extended for another 30 days in order to collect evidence that was not collected for justified reasons. After the indictment is filed, detention may last up until the defendant is sent to serve a prison sentence. At the end of every 30 days, the court is obliged to verify if the grounds for detention still stand.

2. Regular proceedings

In the regular proceedings, the maximum duration of custody differs depending on the stage the regular proceedings are in. During the investigation phase, detention can last up to a maximum of 3 months, with the exceptional possibility for extension for another 3 months for important reasons. After the indictment is filed, detention may last until the defendant is sent to serve a prison sentence. The court is obliged to verify if the grounds for detention still stand after every 30 days until the confirmation of the indictment, and after every 60 days when the indictment was confirmed.

Detention has been ordered – what now?

An appeal may be filed against a court decision ordering detention. The deadlines for filing an appeal and deciding on the appeal are short because it is an urgent (detention) case. The deadline for filing an appeal is 3 days from the receipt of the court decision. The panel of the competent court is obliged to decide on the appeal within 48 hours.

After the decision on the appeal is made, it is possible to file extraordinary legal remedies under domestic law – a request for protection of legality to the Supreme Court and a constitutional complaint to the Constitutional Court. The last legal tool is filing a petition with the European Court of Human Rights in Strasbourg.