Glasnik Advokatske komore Vojvodine (Jan 2018)
Appeal against the custody order under article 294 of Serbian criminal procedure code as ineffective remedy
Abstract
According to article 294 of the Serbian Criminal Procedure Code, the public prosecutor may exceptionally keep in custody, for the purpose of questioning, a person suspected of a criminal offence. Custody for the purpose of questioning is a deprivation of liberty that can last no more than 48 hours, after which the detained person must be released from custody or brought before a judge if public prosecution is seeking pretrial detention. The suspect (i.e. the person in custody) and its defense counsel are entitled to appeal against the public prosecutor's decision on custody within six hours of the service of the public prosecutor's custody ruling. A decision on the appeal must be rendered within four hours of receiving the appeal by a judge in charge of preliminary criminal proceedings. The research reported in this paper relates to the issue of the effectiveness of the appeal against the custody order under Article 294 of Serbian Criminal Procedure Code. The aim of the paper is to examine whether the appeal against the custody order under Article 294 can be considered an effective legal remedy, both in theory and in practice. The author will present data collected from four Basic and three Higher courts in the Republic of Serbia which demonstrate the tendency of courts in Serbia to routinely reject the appeal against the custody order under Article 294, rendering that remedy practically ineffective. Following up on preliminary conclusion concerning the practical ineffectiveness of such appeal, the paper also examines the issue of the effectiveness of legal remedies that may possibly be used to challenge the decision of the judge ruling on in preliminary criminal procedure in cases when the judge rejects the appeal against the custody order issued under Article 294.
