Unfounded Detention and Compensation for Damages in Case of Unfounded Detention in Serbian Legal System

 

The Code of Criminal Procedure (CCP) defines a number of rights that the legislator recognizes to the defendant, the most important of which are those contained in Article 14, which foresees the obligation of the court to conduct the procedure without delay.

Detention is not a punishment. Detention is a measure to ensure the presence of the defendant and the court should apply this measure only if the purpose (presence of the defendant) cannot be achieved by another measure.

The Constitution of the Republic of Serbia provides that "Generally accepted rules of international law and confirmed international treaties are an integral part of the legal order of the Republic of Serbia and are directly applicable." Among other things, Serbia has signed and ratified the European Convention on the Protection of Human Rights and Fundamental Freedoms as well as the protocols that belong to it. This convention provides for the establishment of the European Court of Human Rights, whose judgments are an integral part of the legal order of the Republic of Serbia.

In addition to the regular rights of the defendants, primarily the right to file an appeal against the decision on the determination or extension of detention, they also have the right to use the institute of Constitutional Appeal if they believe that the decision in question violated their right to a limited duration of detention.

However, the question arises, what if the person has spent a certain amount of time in custody for no reason?

 

Compensation for a day in prison up to 120 euros

When determining the amount of compensation for acquitted persons for the time spent behind bars, numerous factors are taken into account - from conditions in custody to the type of criminal offense that the victim was charged with.

In order to exercise the right to compensation, applicants should first contact the Ministry of Justice. In the request, the applicant should state the amount that he considers to be adequate for the damage caused.

Ministry, that is, its commission that decides on submitted requests, is obliged to respond to the applicant within three months from the submission of the request. If the members of the commission consider that the determined amount is inadequate, they propose others. If the applicant and the ministry do not reach an agreement, the court decides on the amount of compensation.

For example, during 2019, 23 final court decisions were made. The lowest awarded amount per day was 2,190.48 dinars, while the highest was 10,000 dinars. On average, 5,612.22 dinars were paid that year. The following year, in 2020, the lowest amount awarded for unjustified deprivation of liberty per day was 1,937.32 dinars, and the highest was 14,500 dinars.

Compensation for non-material damage represents satisfaction that alleviates disturbances in the psychophysical sphere of the injured party.

For this type of damage, the most relevant factors are the time spent in custody, conditions of stay and humanity, i.e. inhumanity of prison conditions, behavior of prison staff, infliction of verbal and real insults and torture, lack of work engagement and other circumstances related to stay in prison conditions.

The amount of compensation is also affected by the type of crime that the injured party was charged with, i.e. whether it is a crime that is met with special moral condemnation and contempt from the environment, the reputation that the injured party enjoyed before the unjustified deprivation of liberty. The assessment of the amount of compensation is influenced by the use of means of rehabilitation and the fact whether the injured party requested the publication of the judgment on the basis of a statement after unjustified detention or unjustified conviction, the age of the person who was unjustifiably deprived of liberty and his family situation, occupation, social activity, previous life, lack of conviction , i.e. criminal record, limitation in advancement in the service, interrupted education, disparagement or non-acceptance in the place of residence and working environment, as well as other circumstances.

It is indisputable that the previous conviction of the injured party has the greatest influence, which is completely justified, because his earlier life was indecent, socially unacceptable and met with moral condemnation, so the possible re-detention of such a person does not meet with additional moral condemnation of the environment or additional damage to reputation in the measure greater than the one that had already occurred before.

The amount of compensation for non-material damages should also depend on the economic condition of the society in which it is awarded, and the fact that the initial procedure of the state authorities, conducting the investigation and detention was not illegal, is also a factor that affects the assessment of the amount of compensation. This, of course, does not mean that the undisputed legality of detention can affect the basis of the right to compensation for damages.

Due to the importance of the protected good, such as personal rights guaranteed by the Constitution, the right to compensation for damages due to unjustified deprivation of liberty and unjustified conviction, the legislator himself established as the objective responsibility of the state, regardless of guilt.

To sum up.

 
Who is considered an unjustified detained person?

A person who was deprived of his liberty and criminal proceedings were not initiated, or the proceedings were legally suspended by a decision or the accusation was dismissed, or the proceedings lasted a long time, and in the end an acquittal or rejection verdict was passed.

A person who has served a prison sentence, and later, in the procedure for extraordinary drugs, a sentence that is shorter than the previous one was imposed, or a criminal sanction was imposed that does not constitute deprivation of liberty at all.

A person who was deprived of liberty due to a mistake or illegal work of the procedural authorities or whose deprivation of liberty lasted longer. In all these cases you have the right to compensation!

 

What does the procedure for exercising this right look like?

Bearing in mind what you went through in the process of unjustified deprivation of liberty, you will need a little more patience to go through the process for exercising the right to compensation for damages.

You must first submit a request to the Ministry of Justice in order to reach an agreement on the existence of damages and the type and amount of damages. The Commission within the Ministry of Justice decides on this request. The procedure is described on the website of the Ministry of Justice. No fees or charges are payable in this procedure.

The only limitation is the deadline for applying for compensation for damages - it is a deadline of three years from the date of finality of the decision stating that the deprivation of liberty was unjustified.

 

In what period does the Commission decide?

The commission will make a decision on approving or rejecting the request within three months.

If he does not decide within this period, you can file a claim for damages against the Republic of Serbia.

 

 

Zoran J. Minic, Attorney at Law

lawofficeminic@gmail.com