Franz Kafka, “The Trial”
Pre-trial detention is the most restrictive legal measure of limiting human freedom. Detention is a procedural measure and not punishment for a committed crime. For this reason, international law and conventions on human rights, the Constitution and laws of Serbia envisage the ordering of detention only in cases where this measure is necessary for the smooth conduct of criminal proceedings. The duty of all bodies involved in criminal proceedings is to reduce the duration of detention to the shortest possible time. In practice, however, Serbian courts tend to order excessive and often unjustified pre-trial detention.
In particular, charges of abuse of office (article 359 of the Criminal Code) are often accompanied by prolonged pre-trial detention as an effective pressure tool, especially considering the detention conditions which fall well below standards set out in human rights conventions. Until recently, article 142.1.5 of the Criminal Procedure Code – “especially severe circumstances of the criminal offence” (2009) was the main tool for ordering prolonged unjustified detention.
According to the new Criminal Procedure Code from 2011, detention under “especially severe circumstances” will cease to apply completely from 15th January 2013. However, the practice of ordering prolonged pre-trial detention with no proper justification continues to be a serious problem in Serbia. According to the European Commission’s Analytical Report on Serbia in 2011, the number of detainees was estimated to be around 3,500. Considering that the total prison population amounted to 11,500 persons in 2010, while prison capacities are between 4,500 and 6,000 places, the practice of excessive pre-trial detention contributes immensely to the massive overcrowding in Serbian prisons.
Pre-trial detention in the case of Tomislav Đorđević
At the request of the prosecutor, on 13 August 2010 the Chamber of the Belgrade High Court ordered detention of Tomislav Đorđević and 3 board members under article 142.1.5 of the Criminal Procedure Code (2009) – “especially severe circumstances of criminal offence”, a provision which was commonly misused for prolonged unjustified detention in conjuction with charges of abuse of office.
The cited special aggravating circumstances were the “special persistence, wantonness and perseverance” that the detainees demonstrated in conducting the alleged criminal offences. These “characteristics” of the defendants’ actions were supposedly apparent from the reasonable doubt that they committed the alleged offences, i.e. they were based on the presumption of guilt.
Tomislav Đorđević and the board members were detained for 6 months due to their collective “special persistence, wantonness and perseverance”, no description of how this was demonstrated by each individual detainee was given. The court did not consider that the prosecutor had presented no credible evidence that the detainees had committed any crime at all, let alone that they committed it in a particularly severe way which warranted detention.
The court did not consider the bail proposal of the defendants nor any other alternatives to detention. None of the legal defenders of the detainees were invited to nor informed of the sessions during which their detention was decided. Contrary to article 142a of the Criminal Procedure Code, minutes from these court sessions were not submitted to the case file. This kind of disregard for the basic procedural rights of detainees is in Serbia the norm, rather than exception.
Tomislav Đorđević was finally released by the Appellate Court after 9 months in detention, on the grounds that there were no especially severe circumstances, as the defence had argued for months.
(1) Custody may be ordered against a person who is reasonably suspected of committing a crime if:
1) he is hiding or if you cannot establish his identity, or if there are other circumstances indicating a danger of escape;
2) there are circumstances indicating that he shall destroy, conceal, alter or falsify evidence or traces of criminal offence or if some special circumstances indicate that the person will obstruct the proceeding by influencing witnesses, expert witnesses, accomplices or abettors;
3) the circumstances indicate that the person will repeat the offense, or attempt to complete a criminal offense, repeat it or perpetrate the criminal offense he threatened to commit;
4) as a defendant who is once duly summoned, apparently avoiding coming to the main trial;
5) if sentence prescribed by the Code for the criminal offense he is charged with, is over 10 years of imprisonment or 5 years for criminal offense with elements of violence, and if it is grounded due to especially severe circumstances of criminal offense;
6) if defendant has been sentenced by the first instance court to five years in prison or more, or there are other particularly severe circumstances of the criminal offense.
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