A Brief Analysis On Preventive Measures Involving Deprivation Of Liberty

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Abstract

Preventive measures are divided by the legislator in 2 categories: imprisonment (detention, house arrest, preventive arrest) and restrictive of rights (judicial review and judicial control on surety). An absolute novelty is the introduction of house arrest. There is some controversy concerning the conditions which must be fulfilled in order to be disposed by the judge of rights and freedoms, the judge of preliminary Chamber or Panel of judges either the house arrest or the measure of preventive arrest.

Whereas the establishment of preventive measures involves undermining the individual freedom, the national and the European laws have created a series of legal guarantees to prevent arbitrariness or abuse in making or extend/maintain them. There are also a number of provisions of a general nature, applicable to all preventive measures, namely, termination, revocation or replacement thereof. For all measures involving deprivation of liberty, general conditions must be fulfilled, stipulated by article 202, of the Code of Criminal Procedure, but for house arrest and detention in addition to the General conditions, special conditions should be fulfilled foreseen by article 223 of the Code of Criminal Procedure, conditions which must be cumulatively met.

Not fulfilling the cumulative criteria laid down in national and European norms cannot be replaced by other considerations of the judge.

[1] Article 9 of the Criminal Procedure Code; article 202 paragraph 1 of the Criminal Procedure Code.

[2] Nicolae Volonciu, Andreea Simona Uzlău şi alţii, Noul Cod de procedurăpenalăcomentat,Ed. Hamangiu, p.421, 2014; See also the article 11paragraph 2, article 147 paragraph 1 letter b, article 148 paragraph 1 let. b, article 150 paragraph 1 let. bof the Criminal Procedure Code.

[3] I.Neagu, M. Damaschin, Tratat de procedurăpenală. Parteagenerală.Înluminanoului Cod de procedurăpenală, Ed. UniversulJuridic, București, pp.628-629,2014.

[4] According to article. 202paragraphs 1-3 and article 223 of the Criminal Procedure Code „the measure of preventive arrest is necessary in order to ensure the proper course of the criminal process, in order to prevent the accused from avoiding prosecution or judgment, in order to prevent committing another offence ... the deprivation of liberty is necessary for the elimination of a threat to public order...”

[5] ECHR, judgment Fox, Campbell and Hartley vs. the United Kingdom, the decision of 30 august 1990.

[6] According to the article 324 paragraph 4 of the Criminal Procedure Code, the criminal investigation could not have withholding even by delegation of the Prosecutor: “Putting in motion the criminal action, taking or proposing restrictive measures of rights and freedoms, permitting evidence enforceability or layout of other procedural measures or acts may not form the delegation subject ...”

[7] There are exceptions, when the Prosecutor has the obligation and the right to establish closing of the preventive measures by Ordinance which has, in the course of criminal, classingtowards a defendant under such actions, regardless the provisions of the judicial body, pursuant to article 315 paragraph 4 of the Criminal procedure Code.

[8] See the provisions of article 399of the Criminal Procedure Code (the sentence which settled the criminal action).

[9] In accordance with the article 352 paragraph 1 of the Criminal Procedure Code “the meeting is public judgment, except as required by law. The meeting held in the Council Chamber is not public”…

[10] See article 352 paragraph 1 of the Criminal Procedure Code, and by way of exception to article 352 paragraphs 3 and 4 of the Criminal Procedure Code, or when the provisions of special laws expressly provide for this.

[11] In the calculation of the terms relating to the preventive measures or any other measures restrictive of rights, the time or the day which begins and ends go into its duration.

[12] Stelian Scăunaş, Răspunderea internaţională pentru violarea dreptului internaţional, Ed. All Beck, Bucureşti, p.83, 2002.

[13] Emilian Ciongaru, Custodial Sanctions Versus Community Sanctions, Monduzzi Editore, International Proceedings Division, Bologna, Italy, p.341, 2012.

[14] Costică Voicu, Florian Coman, Ştefania-Georgeta Ungureanu, Drept internaţional penal, Editura Pro Universitaria, 2007, p. 144.

[15] George T. Abed, Sanjeev Gupta, Governance, Corruption and Economic Performance, International Monetary Fund, WashingtonD.C., p.58-59,2003.

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