Certain issues on the detention of an individual

• Author: Andrei Muraru
• Position: Lecturer, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: av_andreimuraru@yahoo.com).
• Pages: 88-96

LESIJ NO. XXIV, VOL. 1/2017

CERTAIN ISSUES ON THE DETENTION OF AN INDIVIDUAL

Andrei MURARU*

Abstract

The dynamics of the law is natural in the existence and evolution of the state legal system. The law has

to be actual, always actual, if not in a perfect harmony, at least in an efficient harmony with the social

status of a country. The constitution, by being itself a law, more precisely a fundamental law, has to

comply with the existences of the system dynamics. But not in any way. In order to fulfill its regulating

and especially, civilizing role, constitutional revisions have to meet certain substantiations of content

and legislative technique, but also certain demands of constitutionalism. One of these demands is that

the revision (amendment, supplementation, etc.) of a constitutional text is not a step backwards as

regards democracy and rule of law. The efficiency of constitutional revisions is questionable if they

restrict or remove classic rules and principles such as: freedom respect, property respect, free access

to justice, earned rights, presumption of innocence.

Keywords: constitution, constitutionalism, constitution primacy, revision, fundamental rights

and freedoms, guarantees

1. Introduction

1. The re-discussion of theoretical and

practical issues on the detention of an

individual, as a p reventive measure, is

relevant because we find ourselves in a

period where one of the important

matters which are in the attention of

public authorities and public opinion is

the revision of the Constitution.

There is no doubt that proposals for

improvement of Title II of the Constitution,

called Fundamental rights, freedoms and

duties are also targeted b y the efforts on the

Constitution revision.

In what concerns the place of the

regulations on the detention of an individual,

* Lecturer, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail:

av_andreimuraru@yahoo.com).

1

See Andrei Muraru Protecția libertății individuale a persoanei prin mijloace de drept penal (The protection of individual

freedom of a person by criminal law means) PhD thesis, 2009, Manuscript. The paperwork shall be hereinafter referred to

as the Thesis; Ioan Muraru, Elena Simina Tănăsescu (coordinators), Constitution of Romania, Comment on articles, CH

Beck Publishing House, Bucharest 2008, pag.217; Ioan Muraru, Elena Simina Tănăsescu, Drept constituțional și instituții

politice, Edition 15, Vol. I, CH Beck Publishing House, Bucharest, 2016, pg. 165.

in T itle II, we recall some of the literature

findings

1

, namely:

a) Art. 23 of the Constitution

regulates individual freedo m and

security. There are two categories

in close connection expressing

distinct legal realities. Individual

freedom is human freedom to move

freely, to think and speak freely. If

the individual violates the laws of

the state, the state repression is

entitled to act. Notwithstanding, the

action of the state against the

individual is conditioned by certain

rules which protect the individual

and stop arbitrary actions of public

authorities. T hese rules are

provided by art. 23 and concern the

detention o f a n individual, the