Part I
GENERAL PROVISIONS
Chapter IX
MEASURES FOR SECURING THE PRESENCE OF A DEFENDANT AND UNDISTURBED CONDUCT OF CRIMINAL PROCEEDING
6. Detention
General rules on detention order
Article 173
(1) Detention may be ordered only under the conditions set forth in the present Code and only if the purpose for ordering detention cannot be successfully accomplished by any other measure.
(2) Duration of detention shall have to be reduced at all times to the shortest period.
(3) Obligation of all authorities involved in the criminal proceeding and those that provide legal aid, is to act immediately and without any unnecessary delay if the defendant is in detention.
(4) In the course of the proceeding, detention shall be vacated ex officio as soon as reasons for detention cease to exist.
Reasons for ordering detention
Article 174
(1) Detention can be ordered if there is reasonable suspicion that a certain individual has committed a criminal offence, if detention is necessary in order to provide unobstructed conduct of criminal proceeding and if any of the following reasons exist:
1) if defendant is in hiding or it is impossible to determine his identity, or the circumstances imply to danger of escape;
2) if there are circumstances indicating that defendant is to destroy, hide, alter or forge evidence of criminal proceeding or other evidence; or if specific circumstances indicate to disruption of criminal proceeding by defendant through the influence on witnesses, accomplices or aiders and abettors;
3) if specific circumstances indicate that defendant shall repeat a criminal offence or complete the attempted one, or perpetrate criminal offence he threatens to commit;
4) if sentence prescribed by the Code for the criminal offense is 10 years of imprisonment and order of detention is unavoidable because of the way of execution, consequences or other especially severe circumstances of criminal offense;
5) if duly summoned defendant avoids appearing at trial, or the Court tried on several occasions to serve the defendant with summons, and all circumstances indicate that defendant is avoiding receiving the summons;
6) if defendant has been sentenced by the first instance court to five years in prison or more, and ordering detention is obviously justified because of the manner of execution, consequences or other particularly severe circumstances of the criminal offense.
(2) In cases referred to in paragraph 1 of this Article, detention order solely for the reason of not being able to establish the identity of the person, shall last only until his identity has been established. In cases referred to in paragraph 2 of this Article, detention shall be vacated as soon as evidence because of which detention was ordered, have been obtained. Detention ordered for reasons set forth in paragraph 1, item 5 of this Article, may last until the judgment is rendered, but not longer than one month.
Order of detention, contents of the detention ruling and right to appeal detention
ruling
Article 175
(1) Detention shall be ordered, at the proposal of the Public Prosecutor by a ruling of the Court having jurisdiction.
(2) A ruling ordering detention shall contain: the first name and the surname of a person against whom a detention is ordered, the criminal offence he is charged with, the legal ground for detention, the duration of detention, the time the person was deprived of liberty, instructions on the right to appeal, the statement of reasons with a separate statement on the grounds for ordering detention, the official seal and the signature of the judge who ordered detention.
(3) Defendant and his defense counsel are entitled to file an appeal against the ruling to a Chamber (Article 24, paragraph 6) within 24 hours from the moment of the receipt of the ruling. Appeal does not stay the execution of ruling.
Duration of detention in investigation
Article 176
(1) Based on decision given by Investigative Judge, defendant can remain in detention up to one month from the day of arrest. After this deadline, defendant can be held in detention based only on ruling on extending the detention.
(2) Detention can be extended by a decision of the Chamber (Article 24, paragraph 6) for up to two months. Filing of appeal against this ruling is allowed but it does not stay the execution of the ruling.
(3) The decision on the appeal from paragraph 2 of this Article, shall be brought by the Chamber of a court with directly higher jurisdiction.
(4) If the proceeding is conducted for the criminal offense punishable with up to five years in prison or more, the Chamber of the Supreme Court of Serbia may, upon a explained motion of the Investigative Judge or Prosecutor, for very important reasons, extend the detention no longer than for three months. Appeal is allowed against this ruling but it does not stay the execution of the ruling, and this appeal shall be decided by the Supreme Court of Serbia in a Chamber composed of three judges.
(5) Defendant shall be released from detention if, by the end of terms stipulated in paragraphs 2 and 4 of this Article, the indictment has not been raised.
Vacating of detention during investigation
Article 177
(1) In the course of investigation, Investigative Judge can vacate detention with consent of the competent Prosecutor. If there is no consent between Investigative Judge and the Prosecutor, Investigative Judge shall request the Trial Chamber to decide thereof (Article 24, paragraph 6 of the Code), which is obliged to render a decision within 48 hours.
(2) If detention has been vacated due to expiration of the term it was set fort, the decision thereof shall be rendered by the Investigative Judge.
Duration of detention after investigation has been concluded
Article 178
(1) After the indictment has been submitted to the Court, until the termination of trial, the detention may be ordered or vacated by the ruling of the Trial Chamber upon the proposal of the Prosecutor
(2) Even without a motion submitted by parties, the chamber is bound to review whether the grounds for detention still exist and to extend or vacate it by a ruling every month from the moment the last ruling on detention becomes final, and every two months from the moment the indictment becomes final.
(3) Appeal against the ruling from the paragraphs 1 and 2 of this Article does not stay the execution of the ruling..
(4) In the case of joint proceeding against several detained persons, their appeals against the ruling from paragraphs 1 and 2, shall be decided at the same time, without interruption of the trial
(5) The chamber of the directly higher court shall decide on the appeals against rulings from paragraphs 1 and 2 of this Article.
Information on arrest
Article 179
(1) Public Prosecutor, Police, i.e. Court, is obliged to immediately, and no later than within 24 hours, inform the family or the spouse of the person under arrest, about the arrest, unless arrested person explicitly objects it.
(2) If the arrested person explicitly objects that some of the persons from paragraph 1 of this Article are to be informed on his arrest, such person shall confirm this decision by signing statement given on record or its own personal statement.
(3) Authorized social services shall be informed about the arrest, if it is necessary to undertake measures for securing children and other family members that arrested person is taking care of.
7. Rights of detainee
Article 180
Protection of dignity of detainee, possibility of application of certain restrictions
and rules of accommodation of detainees
(1) In the course of detention personal integrity, honor and dignity of detainee shall not be violated.
(2) Restrictions that can be applied towards the detainee are only those that prevent escape, instigation of third persons to destroy, hide, alter or forge evidence or other traces of criminal proceeding and direct or indirect contacts of detainees initiated to influence witnesses, accomplices and aiders and abettors.
(3) Detainees of opposite sex shall not be detained in the same room. According to the rules, same room cannot hold persons under reasonable suspicion to have
participated in committing the same criminal offence, nor persons serving their sentence with persons in detention. Persons for whom reasonable suspicion exists that they are repeated offenders shall not be, if possible, placed in the same room with other detainees, for the reason of possible harmful influence. In the course of placement of detainees into certain premises and collective accommodation, attention shall be paid, to the extent possible to the level and type of educational background, language they use and understand, personal preferences and type of criminal offense they are charged with.
Right to vacation, movement, personal clothes and other personal belongings and
rights and obligations in performance of certain duties
Article 181
(1) Detainee shall have the right to eight hours of uninterrupted night rest everyday.
(2) Detainee shall be provided with movement on fresh air in duration of at least two hours per day.
(3) Detainees have a right to wear personal clothes, to use their sheets and obtain and use at their own expense food books, expert publications, press, tools for drawing and writing and other things suited for their daily needs, except for objects that can injure, violate health and safety, or can be used for escape.
(4) In the course of the investigation, the Investigative Judge may ex officio or at the motion of the Public Prosecutor rule to temporarily forbid or restrict a detainee’s right to read newspapers, if this may be prejudicial for the course of the proceedings. Appeal can be taken from the ruling of the Investigative Judge to the Chamber from Article 24, paragraph 6 of the present Code.
(5) Detainee may be obliged to work on maintenance of the room he resides in. If detainee requests so, the Investigative Judge, i.e. President of the Chamber, in agreement with the Prison Administration, may allow him to work in prison premises corresponding to his mental and physical capacity or to be involved in his regular duties, providing that this is not prejudicial for the course of the proceedings. Detainee is entitled to a fee for this work, determined by the Prison Warden.
Visitation right and right to communicate with other persons
Article 182
(1) Upon the approval of the Investigative Judge and under his supervision or
supervision of assigned persons, within the boundaries of the rules of behavior of
the institution, detainee can be visited by a spouse or common-law partner, as well
as his close relatives, and based on his demand – by a physician and other persons. Certain visitations can be prohibited if it is prejudicial for the course of the proceeding.
(2) Diplomatic and consular representatives of foreign states that are signatory parties to international conventions have the visitation right, with the knowledge of the Investigative Judge, and speak without supervision with detainees who are citizens of their states. Investigative Judge shall inform the Head of the facility where detainee is being detained on the visitation of diplomatic and consular representatives.
(3) Detainee may maintain correspondence with persons outside the prison, with the knowledge of and under the supervision of the Investigative Judge. Investigative Judge may prohibit mailing and receiving of letters and other parcels that are prejudicial for the course of the proceeding. This restriction does not apply to letters exchanged by detainee with international courts and national parliamentary, judicial and executive authorities, as well as letters exchanged with defense counsel, except if an insight into the correspondence with the defense counsel did not prove to be justified. (Article 75, paragraph 4). Mailing of pleads, appeals or motions may never be prohibited.
(4) After raising the indictment and until the judgment becomes final, authorization pursuant to paragraph 1 to 3 of this Article shall be carried out by the President of the Chamber.
Disciplinary offences of detainees
Article 183
(1) Investigative Judge or President of the Chamber may, for disciplinary offences, impose disciplinary penalty of restricted visitation right. This restriction does not apply to communication with defense counsel. Detainee shall not be punished before he is informed of the disciplinary proceeding against him, nor before he was enabled to state his defense and before the Court has examined the case.
(2) Appeal may be taken from the ruling referred to paragraph 1 of this Article to the Chamber (Article 24, paragraph 6) of the court having jurisdiction within 24 hours from the hour when ruling was served on the detainee. Appeal does not stay the execution of the ruling. Trial Chamber shall decide on the appeal within eight days from the day when the appeal was filed.
Detailed regulation on detention
Article 184
Pursuant to the provisions of this Code a more detailed regulation of executing detention order shall be issued by the Minister in charge of the judiciary.
EDIT.