A measure of last resort to ensure the presence of the accused in criminal proceedings

The provisions of the Criminal Procedure Act prescribe pre-trial detention as a measure of last resort to secure the presence of the accused during criminal proceedings.

Pre-trial detention is imposed only exceptionally, in situations where the same objective cannot be achieved through less restrictive measures, namely precautionary measures provided for by the Criminal Procedure Act.

The imposition of pre-trial detention as a measure involving the deprivation of a fundamental human right—personal liberty—is limited and subject to judicial scrutiny, as personal liberty is a value protected by the Constitution of the Republic of Croatia and by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The imposition of pre-trial detention as the most severe measure involving deprivation of liberty must not be transformed into a punishment, as it is a temporary measure that must neither be equated with nor constitute a criminal sanction.

Pre-trial detention may be ordered where there is reasonable suspicion, that is, a high degree of probability that a particular person committed a criminal offence. As a rule, pre-trial detention is imposed for the purpose of securing and facilitating criminal proceedings.

In addition to the existence of reasonable suspicion that a person has committed a criminal offence, the other conditions prescribed by Article 123(1) of the Criminal Procedure Act must also be cumulatively satisfied:

• if the accused is in hiding or particular circumstances indicate a risk of flight (for example, the person is concealing themselves, their identity cannot be established, or similar circumstances exist);
• if particular circumstances indicate a risk that the person will destroy, conceal, alter, or falsify evidence or traces relevant to the criminal proceedings, or obstruct the proceedings by influencing witnesses, expert witnesses, participants, or persons assisting in concealment;
• if particular circumstances indicate a risk that the person will reoffend, complete an attempted criminal offence, or commit a more serious criminal offence punishable by imprisonment of five years or more;
• if pre-trial detention is necessary to ensure the unobstructed conduct of proceedings for a criminal offence punishable by long-term imprisonment and where the circumstances of the offence are particularly grave;
• if an accused who has been duly summoned deliberately avoids appearing at trial.

In every individual case, when deciding whether to impose pre-trial detention, the court must consider all relevant circumstances, including both the circumstances surrounding the commission of the offence and the personal circumstances of the accused.

The parties have the right to appeal against a decision ordering pre-trial detention, and such appeals are decided by a higher court. Accordingly, every such decision is subject to judicial review by a superior judicial authority. In some cases, parties also seek constitutional protection before the Constitutional Court of the Republic of Croatia and, subsequently, protection before the European Court of Human Rights.

Through the decisions of the Constitutional Court of the Republic of Croatia and the European Court of Human Rights, judicial practice and legal principles have developed that guide courts in determining whether the conditions for imposing or extending pre-trial detention exist.

Pre-trial detention, as the most severe measure for securing the accused’s presence, must remain an exception rather than the rule, since it involves depriving an individual of liberty before the conclusion of judicial proceedings. Therefore, every decision imposing such a measure must be thoroughly reasoned, carefully analysed, and supported by particularly compelling circumstances specific to the individual case. The court must also explain why the intended objective cannot be achieved through less restrictive precautionary measures.

In every case, before ordering pre-trial detention, the court is obliged to carry out a proportionality assessment in the manner extensively elaborated in the case law of the European Court of Human Rights. However, this requirement is frequently overlooked in the practice of first-instance courts.

It is also noticeable in practice that courts, when extending pre-trial detention—decisions which must be reviewed periodically within the time limits prescribed by the Criminal Procedure Act—often merely state in a formulaic manner that the conditions justifying detention continue to exist as they did when detention was originally ordered. Such reasoning is erroneous and unfounded.

According to the case law of the Supreme Court of the Republic of Croatia, an extension of pre-trial detention requires a stronger, more serious, and better substantiated level of reasonable suspicion than existed when detention was initially imposed. Consequently, additional evidence must be obtained during the proceedings that further supports the conclusion that the accused committed the offence with which they are charged. In other words, the prosecutor must continue to gather and present further evidence supporting the prosecution’s case. Continued prosecutorial activity is required to justify the continuation of such a severe measure, which represents the strictest coercive measure that may be applied to an accused person before a judgment has been rendered.

It should also be noted that pre-trial detention may be imposed only where the imposition of an unconditional custodial sentence is reasonably expected. In any other situation, detention would impose a disproportionate burden on the accused and would be unjustified, since the deprivation of liberty could result in consequences more severe than the criminal sanction ultimately imposed.

Pre-trial detention, as the ultimate measure for securing the presence of the accused and ensuring the initiation and conduct of criminal proceedings, may therefore be imposed only exceptionally where the intended purpose cannot be achieved through less restrictive precautionary measures provided for by the Criminal Procedure Act. In every case, the court must carefully consider the rights of the accused and the specific circumstances of the case, while respecting the constitutional and Convention-based right to personal liberty. Only in exceptional circumstances prescribed by law, and in accordance with judicial practice, constitutional principles, and Convention standards, may pre-trial detention be ordered where the same objective cannot be achieved through less restrictive measures.