DETENTION - ANALYSIS OF THE DOMESTIC AND INTERNATIONAL LEGISLATION (THEORY AND PRACTICE)

Abstract

This paper elaborates the key role of detention in criminal proceedings and provides guidance for its successful application in accordance with the domestic and international legal standards and human rights. Furthermore, it emphasizes the importance of the implementation of other measures to ensure defendant’s presence and successful criminal case (hereinafter referred as alternative measures). The way in which analysis of detention is applied in North Macedonian judiciary, indicates significant deficiencies in decisions ordering and continuation of this measure expressed by inadequate explanations of the legal grounds. Namely, the conclusion is that the explanations are stereotyped, non-individualized and include a retelling of the legal text of the Law on Criminal Procedure. Inescapable impression is that the approach of judges when assessing which measure to be enforced, often begins and ends with detention, instead first evaluating the possibilities afforded by other provisions of the criminal procedural legislation and which do not lead to strictly limiting the freedom of the defendant, but they mean imposing injunctions, restrictions or obligations. The practice applied in the field of detention in North Macedonia is very common in the context of public arrests of subjects. Entities taken into custody are considered guilty since the beginning, and it is forgotten they are innocent until proven otherwise. In terms of the new law on criminal procedure, the presence of three key UNITS in deciding detention is highlighted, and those are: primary suspicion for committing a crime, explaining the grounds for granting custody and explaining why any alternative measures are not implemented. Combining alternative measures can bring results, but unfortunately in North Macedonia it is not used. Finally, this paper underlines that there must be relevant and specific 142 reasons before adoption of detention, and not making exceptions and emphasizing exaggerated and misused role of the media in the act of arresting.