Academic journal article Contemporary Readings in Law and Social Justice

A Critical Analysis of the Enforcement and Execution of the House Arrest Measure

Academic journal article Contemporary Readings in Law and Social Justice

A Critical Analysis of the Enforcement and Execution of the House Arrest Measure

Article excerpt

1. Introduction

The house arrest is something new, as it appeared in the Romanian legal system at the same time with the New Code for Criminal Procedure adopted by Law 135/2010. This house arrest preventive measure is a freedom restrictive one (Law n 254/2014 on execution of punishments and custodial sentences ruled by judicial authorities during the criminal trial), its importance being somewhere between the judicial review (simple and on bail) and the preventive arrest. The Romanian law took its inspiration from the Italian Criminal Procedure Code (Neagu and Damaschin, 2014: 621). A similar regulation is also present in the French Criminal Procedure Code, but here, the home confinement or the arrest at an address established by the Instruction Magistrate is imperatively provided by the defendant electronic monitoring. According to the article 142-5 paragraph (2), this measure forces the defendant to stay at home or at the residence set by the Instruction Magistrate or the Judge for rights and freedoms and in detention, not leaving them unless in the circumstances and for reasons established by the ruling magistrate.

According to article 221 paragraph 1 of the Criminal Procedure Code, a house arrest measure consist of an obligation imposed on a defendant, for a determined time period, not to leave the building where they live, without permission from the judicial bodies having ordered such measure or with which the case is pending, and to observe certain restrictions imposed by those.

Though it is considered by the law maker as one of the freedom restriction measures (one of the judicial consequences being the deduction of its length from the arrest punishment imposed to the defendant), we can say that the house arrest is also similar to nonrestrictive freedom measures, being in fact a special judicial review form, where the defendant has his moving freedom limited not to his country, region or city limits but to his house walls, which is far more difficult. Compared to the French system where the home confined person can be subjected to any of the judicial control obligations, the Romanian new criminal procedure law provides that the home arrest defendant can be subjected to a small part of obligations of art 215New Criminal Procedure Code on judicial control.

Thus, according to article 126 of Law 254/2014, the house for the house arrest, as it appears in article 221 paragraph (1) of the New Criminal Procedure Code, is the defendant's house, room or the surrounded place belonging to it. According to the building sizes, the house arrest shall allow some different restrictions of the freedom to move, from the surface of a studio or a room in a hostel, for certain persons, to a house with generous yard, for others.

Even so, the defendant shall not have a daily routine established, according to a regulation (as it happens with the preventively arrested person), shall not have limits to access to money, phone and other means of information and communication (such as internet for instance), shall not be guarded 24h a day, shall not require a permission for receiving visits, and these visits shall not be made according to a certain schedule etc.

Surely, the restriction to leave the house, itself, is an important freedom restriction compared, in some measure, to the arrest based on a preventive arrest warrant, and this is the reason for which, from the procedure point of view, the house arrest is regulated by the procedure of preventive arrest.

According to the procedure provisions, the house arrest represents the obligation imposed to the defendant, for a certain period, not to leave the building where he leaves, without permission from the judicial body having ordered such measure or with which the case is pending, and to observe certain restrictions imposed by this

The main restriction results from the measure itself - the obligation of the defendant not to leave his house without the permission of the judicial authority. …

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