Request for arrest and surrender

Republic of Montenegro

Criminal Procedure Code of the Republic of Montenegro

Part One

Chapter VIII


Warrant for apprehension

Article 165
(1) The Court or State Prosecutor may order the accused person to be apprehended if the duly summoned accused person has failed to appear without justification, or if the summons could not have been orderly serviced and the circumstances obviously indicate that the accused person is evading the service of summons or if an ruling of detention has been issued.

(2) The police authorities shall execute a warrant for apprehension.

(3) A warrant for apprehension shall be issued in written form. A warrant should contain : name and surname of the accused that is to be apprehended, place and year of birth, statutory title of the criminal offence s/he is charged with, the provision of the Criminal Code prescribing that offence stated, grounds for ordering the apprehension, an official stamp and a signature of the judge or State Prosecutor ordering the apprehension.

(4) The person entrusted with the execution of the warrant shall serve the warrant to the accused person and shall ask the accused person to accompany him/her. If the accused persons refuse to comply they shall be apprehended by force.

(5) The warrant for apprehension issued against military personnel, members of the police authorities and penitentiary staff shall be executed by their headquarters or institution .

Part One

Chapter VIII


Exceptional reasons for ordering detention and Urgency of Proceedings in Cases of Detention

Article 174
(1) Detention may be ordered only under the conditions set forth in this Code and only if the same purpose cannot be achieved by another measure and it is necessary for a peaceful conduct of procedure.

(2) All authorities taking part in the criminal procedure and authorities providing them with legal assistance shall proceed with exceptional urgency if the accused person is in detention.

(3) Throughout the proceedings, detention shall be terminated as soon as the grounds for which it was ordered cease to exist.

Reasons for ordering detention

Article 175
(1) When reasonable suspicion exists that a certain person had committed a criminal offence, detention may be ordered against that person, if :

1) the persons hide or their identity cannot be established, or if other circumstances exist indicating a risk of flight ;
2) circumstances exist that indicate that they would destroy, hide, modify or fabricate evidence or traces of a criminal offence or indicate that they would hinder the procedure by influencing witnesses, accomplices or accessories by virtue of concealment ;
3) circumstances exist that indicate that the criminal offense would be repeated or attempted criminal offence completed or that they would commit the criminal offence they threaten to commit ;
4) in the case of the criminal offence punishable by imprisonment of ten years or a more severe punishment and especially grave due to the manner of commission and consequences and exceptional circumstances exist indicating that liberation would lead to a serious threat to the preservation of public order and peace ;
5) duly summoned defendants obviously evade appearing at the main hearing.

(2) In the case referred to in Paragraph 1, Item 1 of this Article, detention ordered only because it was not possible to establish the identity of the person shall last until this identity is established. In the case referred to in Paragraph 1, item 2 of this Article, detention shall be terminated as soon as evidence because of which detention was ordered are secured. Detention ordered pursuant to Paragraph 1, Item 5 of this Article may last until the publication of the judgment.

Ordering Detention, Contents of the Ruling on Detention and Right of Appeal against the Ruling

Article 176
(1) Detention shall be ordered upon the motion of the authorized prosecutor by a ruling issued by the competent Court, after a previous hearing of the accused person.

(2) The ruling ordering detention shall contain: first name and the surname, year and place of birth of the persons against whom detention is ordered, criminal offence they are charged with, the legal grounds for detention, the duration of detention, the time the person was deprived of liberty, instructions on the right to appeal, the statement of reasons as well as a statement of the grounds for ordering detention, the official seal and the signature of the judge ordering detention.

(3) The ruling ordering detentionshall be served on persons to whom it relates immediately after it is rendered. The day and the time the ruling was received shall be indicated in the files. Detained persons shall acknowledge the receipt of the ruling with their signature.

(4) Detainees and their defense attorneys may file an appeal against the ruling ordering detention to the panel referred to in Article 24, Paragraph 7 of the present Code within a term of 24 hours from the moment of the delivery of the ruling. The appeal, the ruling on detention and other files shall be submitted to the Panel immediately. An appeal shall not stay the enforcement of the the ruling.

(5) The State Prosecutor may lodge an appeal to the Panel referred to in Article 24, Paragraph 7 of the present Code Against the ruling rejecting the motion of the State Prosecutor to order detention to the accused person, within 24 hours as of the moment of serving the ruling. an appeal shall not stay the enforcement of the ruling.

(6) In cases referred to in paras. 4 and 5 of this Article, the Panel deciding on the appeal shall render a decision within 48 hours .

Ordering detention and duration of detention During Investigation

Article 177
(1) On basis of the ruling of the investigating judge, the accused person may be kept in detention at the longest one month from the day of deprivation of liberty. After this term has expired, the accused person may be detained only on the basis of a ruling extending detention.

(2) Detention may be extended on basis of the ruling of the Panel referred to in Article 24, Paragraph 7 of the present Code for no longer than two months and at the motion of the State Prosecutor containing a statement of reasons. An appeal against the ruling of the Panel shall be allowed but it shall not stay the enforcement of the ruling.

(3) If the procedure is conducted for a criminal offence punishable by imprisonment for a term of more than five years, the Panel of the Supreme Court may, upon a substantiated motion of the State Prosecutor, if important reasons exist, extend the detention for no longer than another three months.

(4) The accused person shall be released if the indictment has not been brought until the expiry of the terms referred to in Paragraphs 2 and 3 of the present Code.

Termination of detention

Article 178

(1) In the course of investigation, the investigating judge may terminate the detention at the motion of the State Prosecutor or of the accused persons, i.e. their defense attorney. An appeal to the ruling on the release from detention shall not stay the enforcement of the ruling.

(2) Before the adoption of the decision on the proposal of the accused person or defense attorney for the termination of detention, the investigative judge shall ask the opinion of the State Prosecutor.

Ordering and Supervising detention after the indictment Was brought

Article 179
(1) After the indictment has been submitted to the Court and up until the completion of the main hearing, detention may be ordered or terminated only by the ruling rendered by the Panel, provided that the opinion of the State Prosecutor is obtained if the proceedings are conducted upon his/her charges. Detention may last at the longest for three years from the issuing of indictment until the rendering of a first instance decision.

(2) Upon a motion of the parties or by virtue of office, the panel shall review whether the grounds for detention still exist and it shall issue a ruling extending or terminating detention, upon expiration every 30 days before the indictment has become final, and every two months from the moment the indictment becomes final.

(4) An appeal on the ruling referred to in Paragraphs 1 and 2 of this Article shall not stay the execution of the ruling and the court shall render a decision thereon within three days.

(5) An Appeal shall not be allowed against the ruling of the Panel referred to in paragraph 1 of this Article by which the motion to order or terminate detention is rejected.

Obligation to inform on deprivation of liberty

Article 180
(1) immediately after a person has been deprived of liberty and within a term of 24 hours at the latest, police authority, the State Prosecutor or the court shall inform the family of the detained persons or their extra-marital partner thereon, unless the detained persons expressly object thereto.

(2) A competent authority for social care shall be informed about the deprivation of liberty if necessary to take measures for the care of children and other family members to whom the person deprived of liberty is a guardian.

Rome Statute

Article 59 Arrest proceedings in the custodial State

1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.

2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:

(a) The warrant applies to that person;

(b) The person has been arrested in accordance with the proper process; and

(c) The person's rights have been respected.

3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).

5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.

6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.

7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.

Article 89 Surrender of persons to the Court

1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.