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).
Andrei MURARU*
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:
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
, 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

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