Detention during state of emergency
The decision of the President of the Republic, President of the Assembly and Prime Minister of the Republic of Serbia 15.03.2020 year 200 St. The five Constitution of the Republic of Serbia has been introduced a state of emergency.
The state of emergency is imposed to prevent the spread of the virus of COVID 19 and to protect the lives of people and property.
Upon the introduction of state of emergency the Government of the Republic of Serbia and the competent ministries have brought in more regulations, orders and recommendations regarding treatment at the time of emergency.
At this point, we only point to general acts which directly and indirectly affect the work of the courts, prosecutors and lawyers, and the status of persons under which the measure of detention is determined, not to reflect on the hierarchy and importance of these acts.
- The Ministry of Justice has issued a recommendation for the work of courts and public prosecutors during the state of emergency
Within its authority and recommendations, all court instances have provided instructions on the work of judges and employees of the court. Without a special explanation of individual instructions as with mutual differences and inadequalities, we only point to facts relevant to detention items.
Higher and basic courts have taken a stand to continue handling all cases where the defendants are in custody.
This position and the decision of the courts is in the conditions of emergency, contrary to its essence as well as measures specified by the Government of the Republic of Serbia, as well as the purpose and purpose of introducing an emergency state. Here’s the reason:
The main goal and purpose of introducing emergency conditions is preventing the spread of infection. According to the general instructions and the health profession, the most efficient measure in preventing the spread of the infection is that there is a reduction of contacts between citizens (social distancing measures), particularly the most endangered population.
In this purpose, the Ministry of Health issued the ORDER to prohibit Assembly in the Republic of Serbia in public places in the indoor area (“Official Gazette of RS”, number 39 of 21. March 2020.). No more than 5 persons in a closed room are allowed to stay within the command. The exception is foreseen only in order to take measures to prevent the spread of infection.
Furthermore, the RS government issued a DECREE on deadlines in court proceedings during the state of emergency, 15 December. March 2020. (“Official Gazette of RS”, number 38 of 20. March 2020.) Which among others ceased to run all the laws determined by the deadlines for taking actions on remedies in criminal proceedings.
The trial in any of the detention cases cannot be carried out with the presence of less than 5 persons. Namely, in each of the cases there is at least 1 of the defendants that are provided by at least two police officers, or prison guard, even when a judge is on trial. This number of 5 participants must be added to the indictment of the accused act as well as the advocate for the minimum number of attendees to be limited to 7 persons and above the number specified by the Ministry of Health.
All of this can be added to an additional series of questions that may appear in certain cases. What if the defendant is in a risky group (a chronic patient or an elderly person)? What if one of the witnesses is in a risky group or maybe in a risky group A lawyer or a judge Jurer?
If the primary objective of the emergency State is to implement measures to reduce the number of contacts, it means that by holding the trial in detention cases, the general role is acting against that goal. In connection with this, the question arises when acting contrary to this purpose is justified in the interest of the legal order of any interest in the detained person. When the goal justifies the means, and when the asset is required, adjust the goal?
Before giving the answer and taking further positions on this issue, we must point to certain key matters regarding the relationship between the basics and the purpose of detention in the regular state and the justification of individual detention in an emergency state.
The provisions of the 210 St. 1 The CPC is foreseen that the detention can be determined only under the conditions stipulated in this law and only if the same purpose cannot be achieved by another measure. It is the duty of all bodies involved in criminal proceedings and bodies that provide them with legal assistance to take the duration of detention at the shortest necessary time and to act with a special urgency if the defendant is in custody. During the whole procedure, the detention will be abolished as soon as the reasons for which it was determined.
Section 211 are regulated by the basic rules on determining detention, so that:
Detention can be determined against persons for which there is a reasonable doubt that it has committed a criminal offence if:
1) Hides or cannot be determined by his/her/her ability or the defendant appears to avoid the main trial, or if there are other circumstances indicating the risk of escape;
2) There are circumstances indicating that they will destroy, conceal, alter or forge evidence or traces of a criminal offence, or if individual circumstances indicate that they will obstructure the proceedings by influing witnesses, accomplices or covers;
3) Individual circumstances indicate that in a short period of time the criminal offence or complete attempted criminal offence or to make a criminal offence that threatens;
4) is for a criminal offence that is placed on the prescribed penalty of imprisonment for over ten years, i.e. imprisonment of over five years for a criminal offence with elements of violence or a verdict of the first instance court sentenced to imprisonment of five years or heavier punishment, and the manner of execution or weight of the criminal offence has led to the disturbance of the public which may endanger the uninterrupted and
We believe it is not essential to point to suspicion in the existence of justified reasons for determining detention on each possible basis, however, certain grounds in a concrete emergency situation do not play such an important role as they normally play in regular circumstances.
It is very debatable to determine detention under article 211 paragraph 1, item 1 (The risk of escape) in a situation where the border crossings are closed, when the border and border crossings are specially provided with the larger formation of the army and the police, when the curfew has been introduced for 12 hours and the ban on the work of almost all catering facilities and other shops that are not engaged in production and delivery of food is imposed.
There is a similar situation with article 211 paragraph 1 Item 3 (risk of repetition) just because of increased police control of movement of citizens.
Above, however, it does not mean that it is necessary to go to another extreshness and to automatically suspend them by some basis.
It’s necessary to take the middle road. This intermediate path is not necessary to find or invent or disclose it. He exists and practically cries that we go.
And the CPC, and the enumerated government regulations in its nature are general legal acts. The task is every lawyer, including judges and prosecutors and defenders to undergo the general legal norm under concrete faci situation.
This text has just been addressed in the first place by judges and prosecutors, that the proclamation of extraordinary status as well as the proclamation of the outbreak is seen as new circumstances that could affect the decision on whether the defendants ‘ detention is needed in a certain number of cases, either by the detention of detention, either by being replaced by a mild measure.
It cannot be expected from the general instruction or regulation to be eligible for automatic application in the assessment of the justification for conducting the trial during emergency conditions. On the other hand, the interests of the detained person do not allow to be disposed with the trial of persons detained during the trial.
It is of utmost importance that all courts and prosecutors through carefully reviewing the necessity of keeping the defendant in custody in these extraordinary circumstances in each concrete case are again putting the interest of the defendant to be allowed to defend himself from freedom, the interests of the legal system to prevent uninterrupted procedures and the interest of the entire society to restrict all possible forms of social contact.
By reconsidering the basis of detention, this time bearing in mind and new circumstances regarding the disease, emergency condition and the manner in which it is being implemented, there would be no suspicious conclusion that a certain number of detention is no longer justified. The team before taking into account that the measure of detention is possible (and by law mandatory) replaces the other mild measure by which the same purpose is achieved. It is easy to imagine that many detainees could replace a measure of the ban on leaving the premises, especially now that the MUP members are already organized in a way that they can effectively control whether individuals are in their homes (we witness the success of the police in controlling the measures of prohibiting the abandonation of the apartment that these days have been pronounced by sanitary inspectors).
This would reduce the number of detention cases, i.e. the number of possible main hearings, and thus reduce the possibility of contacting lawyers, court staff, prosecutor’s office, defence, defendants, prison guards, as well as possible witnesses which are all in order and the purpose of measures taken by the top of the state.
It is evident also violation of the law due to non-compliance with the conditions of self-isolation, and the opening of new cases with possible detention cases, which certainly makes sense and the importance of special and general prevention in the circumstances, and thus enabling the implementation of these measures, because the detention units are almost overfilled.
In the end we again indicate that an emergency review of all cases of detention is necessary before the state of emergency, because of the measures undertaken to prevent contacts among citizens. Which will greatly contribute to achieving the goal and the purpose of protection against the disease we are facing.
In Kikinda day, 23.03.2020 lawyer Dragan Todorović