The Institution of Preventive Measures in the New Code of Criminal Procedure

By Dutu, Tiberiu | Contemporary Readings in Law and Social Justice, January 1, 2012 | Go to article overview

The Institution of Preventive Measures in the New Code of Criminal Procedure


Dutu, Tiberiu, Contemporary Readings in Law and Social Justice


ABSTRACT:

The institution of preventive measures, presents, in the new Code of Criminal Procedure (CCP), a series of innovations to current regulations. Starting with the first article, 202, Chapter I of Title V, better outlined general conditions are provided, that allow taking preventive measures: retention, judicial review, judicial review on bail, house arrest (as an absolute novelty) and preventive detention. We insist on the new term suspect instead of the "archaisms" offender and accused, and also on new institutions such as judge of preliminary chamber and judge of rights and freedoms. The importance of this institution resides in the fact that it concerns a person's freedom, a principle enshrined in the Constitution of Romania itself in art. 23 par. 1, text stating expressly that: "individual freedom and security of person are inviolable."

Keywords: judicial review on bail, judge of preliminary chamber

1 . The institution of preventive measures presents, in the new Code of Criminal Procedure (CCP), a series of innovations to current regulations. Thus, starting with the text of the Art. 202 of the CCP, the general conditions that allow taking preventive measures are better outlined. They provide the following: if there is evidence or clues which show reasonable suspicion that a person has committed a crime and, very important and new in comparison to the current regulations, also to prevent commission of another crime.

This last provision would give the magistrate the possibility to order the preventive measure chosen only after his conviction has been formed, in the light of the existing rules of evidence on file, that the person in question has a high degree of social danger. Turning to the present preventive measures, it should be noticed that the number has increased in current legislation and that only two of them are found in both laws. As a result, in the new regulations under Art. 202, par. 4 letters a-e CCP, the preventive measures are the following: retention, judicial review, judicial review on bail, house arrest (as an absolute novelty) and preventive detention. Regarding the judicial body competent to order the taking of preventive measures, there is a series of novelties, especially concerning the name of the person against whom the measure is to be taken, but also the magistrate who is called to rule, situations that will be examined in turn.

2. Thus, in the new regulatory, the concept of offender and accused disappears, the specific term being that of suspect. Actually, if we consider the stipulations that relate to the main procedural subjects [Art. 77 and 78 of the new Code of Criminal Procedure], we will find that, the person on whom, out of the relevant existing data and evidence, reasonable suspicion of having committed an offense under the criminal law appears, is called a suspect. It is an advanced procedural institution, taking into account the provisions of Art. 78 of the new CCP, in comparison to how the accused is considered in the current code. We support this fact, because the suspect, by that text, is given the same rights as the defendant. The suspect or the accused may be detained, only during criminal investigation, by the criminal investigation body or by the prosecutor, as appropriate, in conditions similar to current regulation. So, as today, the court has no right to hold a suspect or a defendant in any of the stages of a trial. The duration of detention is 24 hours, for major suspects or defendants, as it is at present. In fact, the current regulatory provisions are found in the new code as well, meaning that to retain that person may be ordered only after hearing them, in the presence of an elected or appointed counselor, with compliance of all the other legal dispositions. [Art. 209, par. 1-9 new CCP ]

Detention is ordered by the criminal investigation body or by the prosecutor through a reasoned order, a copy of which is given to the detained (Art. …

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