HOME DETENTION, SENTENCING AND MONITORING IN ACCORD

WITH LEGISLATION OF REPUBLIC OF SERBIA

Petar Cvetkovi MA, Attorney at Law in Novi Sad, Serbia
PhD student at Faculty of Law, University Business Academy in Novi Sad
copas1983@yahoo.com

SUMMARY: Home detention is a measure that is an alternative to detention. In the criminal

procedure legislation of the Republic of Serbia it represents a novelty since 2009. Initially it has
been a part of the complex measure that included house arrest, and since 2011 after the entry into
force of the Code of Criminal Procedure (hereinafter: the Code or CPC) 1, it is prescribed as an
independent measure. This measure greatly facilitates the position of defendants and enables
them to be far more comfortable while following the procedure, when it is necessary to apply
measures towards them in order to ensure their presence and unhindered proceedings. Such
convenience is reflected in the fact that sometimes, by staying in their homes, defendants
practically finish serving their prison time, because the duration of measure counts as a prison
time, since it anyway represents deprivation of liberty, but only in home conditions. It would be
necessary that courts increasingly use alternative measures instead of detention. It is, after all,an
obligation under the Code. The role of the defence attorneys is important because only they can
challenge the legality of the proposal of the prosecution and the court's decision by submitting
legal remedies and opposition to the proposals. Despite the fact that the courts are obliged to ex
officio pay attention to the fact whether the purpose may be achieved by a less severe measure, as
well as the prosecution which proposes detention, the last bastion are the defence lawyers. In this
context, we believe it is essential to point out all the problems that arise during the
implementation of the measures, and before that, to look back at the legal nature of the Home
detention measure and its position in the criminal procedure legislation of the Republic of Serbia,
as well as the mechanisms of its control. For this reason, in this paper, we pay special attention to
the very legal nature of the measure as well as to positive regulations which regulatethe manner
of control of the measure, the position of the person against whom the measure is determined,
1

Code of Criminal Procedure. Official Gazette of RS No. 72/11, 101/11, 121/12 , 32/13, 45/13 and 55/14.

then the very procedure of determining the measure, i.e. the reasons for its determination. We
also provide comparisons of legislative solutions related to the measure, with the legal systems
of EU member states, such as Romania and Republic of Italy.
Key words:Procedural compulsion, detention, home detention, place of residence, deprivation of
liberty, measure control
INTRODUCTION
Home detention is a measure to ensure the presence of the defendant for the purpose of
unhindered conduct of criminal proceedings. This measure has been introduced into the Serbian
criminal procedural legislation by the Law on Amending the CPC in August 2009 as a special
form of deprivation of personal freedom.2 Starting from the fact that the criminal proceedings are
conducted against an individually identified person in modern-accusatorial-adversary criminal
proceedings, it is accepted as a general rule that the defendant is obligated to attend the criminal
proceedings. Exceptions to this rule are expressly provided for by the Code. For the purposeof
the realization of such an adopted general rule and the unhindered conduct of the criminal
procedure the Code has also foreseen certain measures to ensure the attendance of the defendant
and the unhinderedconduct of criminal proceedings.3 The Code also prescribes three general
rules that apply to all these measures. First, when deciding which of the seven possible measures
to apply, the competent authority is not only required to abide by certain conditions for the
implementation of certain measures, but must also ensure not to apply a more severe measure if
the same effect can be achieved by a less severe measure (Article 189, Paragraph 3). 4 kuli
identifies this principle as cascade purposefulness. The following principle is the principle of
mandatory substitution by a less severe measure and abolition when the reasons become nonexistant. A third principle is the rule on accumulation of measures. The authority may appoint
several measures together which do not exclude each other and do not coincide.5
This institution and any novelty in the positive legislation open various issues which the actors in
the justice system are facing. The main problem which the Court encountered in the first days of
2

Bejatovi, S., (2016). Criminal procedural law, Beograd, Official Gazette, p. 218.
Ibid, p. 212.
4
Ibid
5
For more details see: Skuli, M., (2014). Criminal procedural law, Beograd, University of Belgrade Faculty of
Law.
3

application of the CPC, at all levels of courts in the Republic of Serbia, is certainly a poorly
developed jurisprudence. It was developed only before the special department of the Higher
Court in Belgrade, because it is where the application of the Code actually started some time
earlier. Normal questions and dilemmas were related primarily to the manner of measure control
and coordination between commissioner services and the court. Also the specificity of this
measure is also reflected in the fact that the court has a possibility to determine this measure with
the use of an electronic monitoring or, however, without electronic monitoring, and hence the
dilemma of how to exert the control of implementation of the measure without electronic
monitoring, and yet, on the other hand, how to initially start with the mass replacement of
detention by a less severe measure and determining of a less severe measure from the very
beginning when there were not enough transmitters in the beginning. Unfortunately there are
also cases that the courts i.e. some judges did not want to be overly concerned with this issue and
considered the content of this provision as an option and not an obligation. This measures
certainly is an alternative to detention, however the court is required to consider the possibility of
its application, and in many cases this constituted the grounds for cancellation of the decision of
lower courts6 because the Code is clear and provisions related to the conditions under which the
detention is determined are unambiguous. Detention shall be determined only when the purpose
cannot be achieved by a less severe measure, but also in the case when the detention procedure is
in effect, the authority must determine whether there are still reasons for its application. The
measure that is determined has to be a necessary and sufficient response for the realization of a
specific process need.7 Detention must be reduced to the shortest time required. Home detention
provides an opportunity for the defendant to practically serve a prison term which for more than
one year, which is the maximum term provided for by the Criminal Code 8 (hereinafter: CC).
According to the provision under Article 63 Paragraph 1 of the CC,a passed sentence of
imprisonment, fine and sentence of community service are included in time period of detention,
duration of the measure prohibiting leaving the place of residence, as well as any other
deprivation of liberty in connection with acriminal offence. 9 Thus, for example, a proceeding that
6

See: Decision of the Appellate Court in Novi Sad, Republic of Serbia, No. 2 K 161/14, 784/14 2 K, 2 K
1038/14, Decision of the Higher Court in Novi Sad, Republic of Serbia Admin. Br. Kz 105/15 2, and so on. These
are decisions that have resulted in the active role of defence counsel in criminal proceedings.
7
Ili, G. et al., ( 2015). Commentary of Code of criminal procedure, Beograd, Official Gazette. p.480.
8
Criminal code. Official Gazette of RS No. 85/05, 107/05, 72/09, 111/09, 104/13 i 108/14.
9
Stojanovi, Z., (2015). Crime law, Part one, Beograd. University of Belgrade Faculty of Law, p.321.

takes several years against the defendant, over which period he/she was imposed the measure of
home detention, provides a possibility that, in case of their being convicted to several years, they
practically shall not even go to prison in the physical sense, because the time spent under the
measure must be counted as the imprisonment sentence since home detention is a form of
deprivation of liberty in accordance with the Code of Criminal Procedure. Conditions for
determination of home detention are prescribed in Articles 208 and 209 of the Code of Criminal
Procedure. Law on enforcement of non-institutional measures and sanctions regulatesthe manner
of control of observance of the measure and describes in more detailthe coordination and
competence of departments exercising the measure control and which are responsible for
implementing the measure in a technical sense, primarily.
LEGAL NATURE OF HOME DETENTION
According to its content, the home detention measure closest to detention, in the scope and
restrictions it imposes, as well as in regards to the grounds for its determination. Therefore, it is
colloquially referred to as the 'home confinement' or 'house arrest'. However, the question is
being raised to what extent it can be equated with detention in terms of the nature of its
restrictiveness.10 Regarding the legal nature of detention as a measure which restricts the freedom
of movement, there are different views in the theories of criminal procedural law, which
primarily start from the fact that it undeniablyrepresents a deprivation of liberty, and that as such
it should not take the form of a sanction by being too long, because its very essence is to
represent a preventive deprivation of liberty including confinement.Bearing in mind the fact that
the Home detentionis a form of deprivation of liberty, one might say that the difference between
the legal natures of these measures issubstantially almost non-existent. On the other hand, a
detentionwhich is strengthened by a condemnatory judgement and subsequently included in the
sentence becomes an essential part of that sentence. According to this approach, as well as
according to some of the XVIII century authors, at the time when there were no punishments
which deprived a person of liberty, then called the remand prison, in a certain way detention
represented an imprisonment. An Italian, CesareBeccaria (1738-1794) is considered the founder
of the Classical school, as well as of criminal sciences in general. In the Italian town of Livorno,
in 1764, an anonymous treatise On Crimes and Punishments (Dei delitti e dellepene) was
10

Matijaevi-Obradovi, J.,( 2016). Criminal procedural law, Part one, Novi Sad. University Business Academy
Faculty of Law, p. 212.

published whose author, the 26-year-old Marquis of Milan, was clearly influenced by the French
encyclopaedists and English utilitarianism. In the book: - he criticizes the medieval system of
criminal justice - advocates the principle of legality of the norms of criminal law and - criticizes
the system of sanctions particularly the death penalty, infamous (discreditable) penalties and
confiscation.11Taking all into account when it comes to Home detention we can say with
certainty that, because of the way it is determined, i.e. not by the force of law, but optionally, it
cannot represent anything other than truly a preventive deprivation of liberty. Home detention
can be determined when there arealternative statutory reasons, due to which detention may be
determined otherwise. In addition to the risk of escape of the defendant, these include all other
reasons for which it is possible to determine detention, except for reasons relating to the
probative obstruction.12 There is no option under the law for this measure to cover the basis for
detention under the Article 211 paragraph 1 point 2 which affects the prevention of probative
obstruction by determining detention in order not to influence the witnesses, accomplices,
helpers, while ratio legis not to offer the option of home detention for these grounds is that from
homeit would be possible to influence the witnesses. We believe that this is a completely
incorrect conclusion of the legislator and that it is pointless to talk about any possibility of
influencing witnesses from the home in which the defendant resides with all the restrictive
conditions, such as the ban on visits to persons, then the banon the use of computers, etc. At
home, the defendant can be visited by the defence lawyer, just as in the detention unit of a prison,
the defendant resides at home with his parents, who also belong to the circle of persons who
would be allowed visits in the detention unit. It is also very interesting how to fully equalize the
persons to whom the measure is determined and who reside in an apartment in the building, and
the persons who reside in a house with a yard. The coordinates that are entered for the movement
are set so that the person is allowed to walk to the gate, and for the person who lives in the
apartment to the front door. Here we have a dilemma how to enable the person who lives in an
apartment to go out into the fresh air, because the persons in the detention unit are allowed twohour walks a day because of the fresh air, while such a possibility is not provided by any law for
persons under the measure. Since this issue is not precisely regulated, we believethat the
provisions related to rights of detained persons from CPC should be applied to the persons to
whom the measure of house arrest was determined as well. In the Italian criminal procedure
11
12

Ignjatovi, ., ( 2015). Criminology, Beograd, University of Belgrade Faculty of Law, p.64.

kuli, M. Op.cit p. 140.

legislation, the persons who are under house arrest are allowed to go to work in the event that
there is no one to support them and the money is needed for basic needs. This is quite a logical
and humane solution, because if someone were in the detention unit of a prison they would be
provided with, food, drinks, care and everything else as a minimum. In regards to this, at the
former Municipal Court in Novi Sad, the accused pleaded the investigating judge to order his
detentionand explained that he had broken into a kiosk only in order to be detained and to be able
to spend the winter in the detention unit. The Criminal Procedural Law of Romania, in
accordance with the new Code on Criminal Procedure13 provides for the possibility in section 5
art. 221, paragraph 6 that a person under the measure of home detention may submit a special
request to the court to allow him to go to work, to educate or to attend trainings concerning
business development, but all of this for a limited period of time. This is to create a situation that
resembles the one that is characteristic of normal life activities. Based on these solutions from
the Italian and Romanian Codes we can see that the intention of the legislator is by this measure
to deprive the accused of liberty, but not of the freedom of movement, while in the law of the
Republic of Serbia, however, the freedom of movement is much more restricted, even up to
almost emergencies such as natural disasters, and so it can be said that the deprivation of liberty
under detention and under home detentionare synonymous, while in the mentioned legal systems
they do not represent synonyms and home detention is far more liberal when it comes to freedom
of movement.

CERTAINITY OF THE MEASURE IN THE CODE OF CRIMINAL PROCEDURE

The normal course of criminal proceedings requires the presence of certain persons, especially of
the defendant, and the disposal of certain objects, especially those that are to serve as evidence in
the proceedings. Normally, the presence of required persons is provided by imposition of a duty
to citizens to respond to subpoenas, while the disposal of objects is enabled by imposing a
general duty to citizens to issue them voluntarily based on the request of the court. However,
because of its nature, criminal proceedings cannot rely solely on the good will of citizens, and
13

Noul Cod de Procedur Penal, Monitorul Oficial al Romniei, nr. 486 din 15 iulie 2010.

therefore the objects and the person concerned must be also made available by coercive measures
that are applied when the duty is not fulfilled voluntarily.

14

The Criminal Procedure Code

consists of three parts: 1. General part 2. Course of proceedings and 3) Special proceedings,
questions concerning measures of procedural coercion covered by the General part. As a member
of the Council of Europe and the country that was expecting candidacy for membership in the
European Union, the Republic of Serbia needed a modern criminal procedural code, which
would ensure effective participation of the defendant, adversarial structure of the proceedings,
equality of arms in the main hearing, and if possible, in the earlier stages of the proceedings also
the special position of the defendant.15 According to the Criminal Procedure Code measures
which are exhaustively listed may be taken towards defendants in order to ensure their presence
and unhindered conduct of criminal proceedings. Among other things, in Article 188 Paragraph 1
point 6 Home detention is also stipulated. For any of the measures prescribed by the Law to be
determined, there are certain conditions that need to be fulfilled. The first condition is that the
authority in charge of the proceedings ensures determining of an appropriate measure, i.e. not to
apply a more severe measure if the purpose may be served with a less severe one. This means
that if, for example, the defendant fails to appear at the main hearing, or to the premises of the
prosecution, the public prosecutor should not immediately request determination of detention,
but at first he should issue, or propose to the court to issue an apprehension order, and then if the
effect is not achieved, to propose, for example, a measure prohibiting the defendant to leave the
residence, and so on until the most restrictive measure is reached, which is the measure of
detention.
The following condition is the possibility of accumulation of measures, in which case the
authority in charge may determine two measures simultaneously, and these two measures do not
exclude each other. Let's say it is possible to determine the measure of house arrest and alongside
that the measure of banning meeting or communicating with a particular person and visiting
certain places. The last but not least important conditions aims to discipline the court in order to
prevent the measures of detention, to avoid that detention assumes the form of a sanction and
that other measures affect the limitation of freedoms and rights guaranteed by the Constitution of
the Republic of Serbia16, in Article 31 and the Code in Article 189. This is about the obligation of
14

Gruba, M. et al., ( 2014). Commentary of Code of Criminal Procedure, Beograd, Projuris. p.341.
Beljanski, S. et al., ( 2015). Code of Criminal Procedure, Beograd, Official Gazette, p. 8.
16
Constitution of the Republic of Serbia. Official Gazette RS, No. 98/06.
15

the court to ex officio takes into account whether at any time when reviewing a decision on the
measure in force, there are indeed reasons for its survival. The authority in charge of proceedings
is required to monitor and to lift the measure if the reasons have ceased to exist.
As the reasons for the determination of the Home detention measure are based on the grounds for
detention, we believe that it is important to point out the provisions concerning the reasons for
determination of detention. First of all it is necessary to point out that the legislation of the
Republic of Serbia envisages detention as an optional measure, it does not ensue under the law.
Detention is a measure to ensure the presence of the defendant and the unhindered conduct of the
criminal proceedings. Detention is a form of deprivation of liberty including confinement. In
order to enable determination of detention to a person, it is necessary that there is a level of
suspicion, which represents a ''reasonable suspicion'', and that in view of the fact that it relates to
the commission of an offense. Article 211 of the Code of Criminal Procedure provides for the
following reasons:
1) if he is in hiding or if his identity cannot be established, or he obviously avoids appearing at
the main trial as a defendant, or if there are other circumstances indicating a risk of escape.
2) if there are circumstances indicating that he will destroy, conceal, alter or falsify evidence or
traces of a criminal offense or if particular circumstances indicate that he will hinder the
proceedings by influencing witnesses, accessories or accomplices.

3) if particular circumstances indicating that in a short time period he will repeat the criminal
offense or complete the criminal offense or commit a criminal act he threatens to commit.
4) if for the criminal offense he is charged with prescribed is the punishment of imprisonment
exceeding ten years, or imprisonment for a term exceeding five years for a crime involving
violence, or he was imposed a sentence of five years or a more severe one by the judgment of the
first instance court, and the manner of enforcement or the severity of effects of the criminal
offence led to public nuisancethat may jeopardize the unhindered and fair conduct of the criminal
proceedings. The citation of the provision of Article 211 of the CPC is necessary for the purpose
of better understanding the mechanism of determining the Home detention measure.

DETERMINATION, CONTROL AND MONITORING OF HOME DETENTION

MEASURE
The Code dedicates three articles to the Home detention. Article 190 of the CPC stipulates the
way to control this measure, while the articles 208 and 209 stipulate the conditions and manner
of decision-making on the measure.
Article 190 of the Code of Criminal Procedure stipulates that the court may apply electronic
monitoring towards the defendant against whom the measure has been determined with the
purpose of observing the limitations defined. The decision on whether to order the measure with
electronic monitoring or not is left to the disposition of the court. In the former jurisprudence,
particularly after the start ofapplication of the CPC to all levels of courts in the Republic of
Serbia since 1 October 2013, it has been observed that the measure was determined without
electronic monitoring. The reason can be found in the fact that at the time everybodywas getting
organized and that the courts were unfamiliar with everything, so they believed that it was easier
to determine the measure without monitoring and thus to simplify the procedures for starting the
implementation of the measure. The electronic monitoring is performed via a transmitter, which
is a device for locating attached to the wrist or ankle of the defendant. It is attached by a
qualified person who, on this occasion sets the coordinates of movement in the room where the
defendant will reside during the term of the measure. Professionals follow the movements of the
defendant remotely, by using a receiver. Coordinates are drawn literally to the front door, and if
the defendant went out into the hallway of the building, the transmitter located in the premises
where his movements are monitored would signal an illegal movement.
Specifically, Article 208 of the Criminal Procedure Code stipulates the requirements for
determining the measure of home detention. That article provides for the possibility of
determining the measure in the event that there is a risk that the defendant will escape, as well as
if there are circumstances prescribed by Article 211, cited above, in points 1), 3) and 4), in detail
so we shall not elaborate on them individually. It may be observed that the point 2 of Article 211
of the CPC is omitted. We believe that there is no actual ratio legis for disabling that this reason
is also covered by the measure of home detention. It is the matter of preventing the probative
obstruction. The attitude of the legislator was obviously that a person residing at home could
obstruct the evidence procedure from that home, by one of the methods described above, in the

part in which we cited detention grounds under point 2. Such an attitude, in our opinion, is not
realistically based, since the court by this article may prohibit to the defendant the use of
computers, phones, receiving visits of all persons except the ones from inside the inner circle of
the family who otherwise may pay visits to a person in detention, when it is, for example,
detained because of exactly the reasons stipulated in Article 211 paragraph 1 point 2 of CPC. If
the legislator is concerned that measures can be violated at home, then this very concern is
directly aimed at evaluating the capacity of the Administration for the Enforcement of Penal
Sanctions, which is a part of the Ministry of Justice, whose jurisdiction includes the monitoring
of alternative sanctions and controls over the implementation of measures alternativemeasures to
detention, through commissioner services.
The possibility of leaving the home
Exceptionally, the defendant can leave the home without courts approval. The defendant is
allowed to leave the home in an emergency without the approval of the court. Such situations
have the character of natural disasters, then situations which are closely related to urgent medical
interventions, both related to the defendant and the person with whom he lives in the home
where the measure is implemented. The defendant is obliged to immediately notifythe
commissioner of his current whereabouts. Practically, he is not allowed to send an application for
a job, or for education, etc. This option is available to persons who are serving a prison sentence
at home. We believe that these persons should become equalin terms of rights.
The Italian Code of Criminal Procedure 17, as well as the Romanian, goes a step further and in
Article 284 (Art.284) stipulates that if the defendant lives alone and has no one to provide care to
him, and does not have sufficient funds to support himself, he can occasionally go to work. Such
a solution would contribute significantly to the full meaning of the existence of the measure,
because it is absurd that such a measure is only the privilege of the rich who can stay in their
home and be supported by someone else. Namely, a person not having the funds and without
work, when in a detention unit, will receive all the necessary care, accommodation, electricity,
food, etc., while the person who can only reside at home will be deprived of everything if there is
no one else to take care of that. In this sense, de legefe renda would be that our legislation is to
accept this concept fully, in the same manner as the Italian and Romanian Codes stipulate it, and
17

Codice di procedura penale. Gazzetta Ufficiale 19 Oct. 1930, 1975, 1981, and 1988.

to specify this possibility in Article 208 paragraph 3, while exactly listed reasons in terms of
when and under which conditions to enable the defendant to work, to improvehimself
professionally and to be educated privately, etc., to be specified in the Law on the enforcement of
non-institutional measures and sanctions.
Deciding on the measure
Provision of the Article 209 of CPC stipulates who makes decisions on home detention and in
what manner. In order to enable determination of the measure in the stage of the proceedings,
until the indictment is not confirmed, there has to be a proposal of the Public prosecutor, after the
confirmation of the indictment the measure can be also determined based on the line of duty. By
provisions the CPC (2011) the Public prosecutor has become dominus et dues of the pre-trial and
trial process, with the consequence of abolishing the judicial investigation as a special pre-trial
phase, with the transformation of the role of an investigating judge into the role of a pre-trial
judge and with authorities ofpotential control of certain decisions of PP.18 Deciding on detention
and other measures which deprive a person of liberty falls within the scope of jurisdiction of the
court, while for example the appeal and order for bringing to trialalso fall within the authority of
the prosecution because it is the body in charge of the investigation and pre-trial proceedings.
Although the investigation is classified within the jurisdiction of the public prosecutor, one of the
subjects of the investigation is the judge for preliminary proceedings whose task is reduced to a
precisely limited number of actions, such as deciding on some measures of procedural coercion,
where stands out detention as a form of deprivation of liberty, i.e.the decisions that are within the
exclusive jurisdiction of the court (e.g.Search warrant for the apartment, other premises and
persons).19When deciding about the measure, the Court asks for the opinion of the public
prosecutor. This opinion is not binding upon the court, it is not bound by it, however it is
certainly important when in doubt whether the detention is to be repealed and replaced by a less
severe measure. Decisions about measures of procedural coercion are made by the judge for
preliminary procedure as noted above, and after the indictment is confirmed the decision is made
by the Council, extra-procedural council or deciding council. There is an exception in the
preliminary hearing where a decision can be also madeby chief justice alone, but only with the
consent of the parties. This means that in case of disagreement of the public prosecutor, it is not
18
19

Pavlovi, Z.,(2015). Criminal procedural law II , Novi Sad, University Business Academy Faculty of Law, p.23.
Ibid 46.

possible to use this solution. The measure of home detention lasts until there is a need for it, but
no longer than until final judgement, i.e. commitmentof the defendant to serving of criminal
sanctions consisting in deprivation of liberty. The court's obligation is to control the measure
every three months. The right to appeal against the ruling on an appointment of extending or
repealing the measure belongs to the public prosecutor, the defendant and his defence lawyer. If
the court rejects the request of the prosecutor to determine the measure, he is entitled to appeal
against such a decision.
Measure monitoring
The manner of monitoring the person under the measure of Home detention, as well as the
procedure, then its location and the manner it is being monitored, in addition to the Code of
Criminal Procedure, is also regulated by the Law on enforcement of non-institutional measures
and sanctions.20 Article 3 of the said law determines the scope and the legal status of the service
that conducts activities of measure enforcement. The activities ofenforcement are performed by
the organizational unit responsible for alternative sanctions called Commissioner service and it is
located within the Administration for the Enforcement of Penal Sanctions of the Ministry of
Justice of the Republic of Serbia. The Commissioner service comprises commissioners offices
for areas of the territorial jurisdiction of one or more of the higher courts. Territorial jurisdiction
of a commissioners office is determined by the place of residence or domicile of the person
involved in the enforcement. In performing tasks from its jurisdiction commissioners offices
cooperates and exchanges information with government bodies, academic institutions, local
communities, associations and other institutions that are important for the performance of their
duties. Article 17 stipulates all matters related to Home detection in terms of measure
monitoring. When the court orders the application of measure of home detention towards the
defendant, the control of restrictions that have been determined to the defendant by the decision
of the court is performed by the Commissioner Service through the Commissioner. The
Commissioner is a public official from the commissioners office and he is authorized to collect
information about persons against whom the enforcement is conducted, to establish contact with
the family, to consult the official documentation of competent authorities and legal entities and to
ask them to provide the necessary data. The Commissioner is a public official and all rights and
20

Law on enforcement of non-institutional measures and sanctions. Official Gazette RS No. 55/14.

obligations arising from such position. In its decision the court shall indicate whether the
measure of home detention shall be enforced with or without the use of electronic monitoring.
The court immediately delivers the decision on implementation of the measure of home
detention tothe Commissioner services. If the court decides that the measure of home detention
shall be enforced with the use of electronic monitoring, the electronic monitoring equipment is
activated immediately after the delivery of the decision of the court. Location device of the
defendant (transmitter with accessories), which is harmless to health, is attached by an expert,
who provides the necessary instructions to the defendant on the method of operation.
Commissioner Service regulates both the device that remotely monitors the movements of the
defendant and its position. During the inspection of the enforcement of the measure, the
Commissioner cooperates with the police or other relevant state authorities.
CONCLUSION
By adoption of the current Code of Criminal Procedure, in regards to the measures of procedural
coercion, the Republic of Serbia has made a big step forward by envisaging the possibility of
preventive detention in home conditions. Since it aspires to become a full member EU, it thus
needs to transpose the entire acquis in order to enable that the measure of home detention, in the
full scope, is implemented in the tradition of statutory provisions of the Member States. Then it
is necessary to ensure that the intention of the legislator is also implemented and in practice, so
the mere legal wording does not mean that the job is done and it is however necessary that the
norm is implemented in practice. Detention should not become a punishment and therefore it is
necessary to replace it with home detention, when the situation is such that it does not allow for
the person to be released. The duration of detention as a measure of procedural coercion shall be
reduced to the shortest possible time. There is not a single reason that the detention is not
replaced by a less severe measure when the conditions are favourable, and the harmonization of
court practice, both horizontally and vertically, will be significant primarily because of equality
of access to justice. There is a justified need for positive regulations to envisage that persons
under the measure can go to work, training, education and so on.

REFERENCES

1. Bejatovi, S., (2016). Criminal procedural law, Beograd, Official Gazette.

2. Beljanski, S. et al. ( 2015). Code of Criminal Procedure, Beograd, Official Gazette.
3. Gruba, M. et al.(2014). Commentary of Code of criminal procedure, Beograd, Projuris.
4. Ili, G., et al. (2013). Commentary of Code of Criminal Procedure, Beograd, Official Gazette.
5. Ignjatovi, ., (2015). Criminology, Beograd, University of Belgrade Faculty of Law.
6. Matijaevi-Obradovi, J., (2016). Criminal procedural law, Part one, Novi Sad, University
Business Academy Faculty of Law.
7. kuli, M., ( 2014). Criminal procedural law, Beograd, University of Belgrade Faculty of Law.
8. Pavlovi, Z., (2015). Criminal procedural law II, University Business Academy Faculty of
Law.
9. Stojanovi, Z., (2015). Criminal law. Part one. Beograd. University of Belgrade Faculty of
Law.

LEGAL ACTS
10. Constitution of the Republic of Serbia. Official Gazette of RS, No. 98/06.
11. Code of Criminal Procedure. Official Gazette of RS No. 72/11, 101/11, 121/12 , 32/13, 45/13
and 55/14.
12. Criminal code. Official Gazette of RS No. 85/05, 107/05, 72/09, 111/09, 104/13 i 108/14.
13. Codice di procedura penale, Gazzetta Ufficiale No. 1930,1975, 1981 and 1988.
14. Law on enforcement of non-institutional measures and sanctions. Official Gazette of RS No.
55/14.
15. Noul Cod de Procedur Penal, Monitorul Oficial al Romniei, nr. 486 din 15 iulie 2010
.