Considerations regarding the maintenace of the preventive arrest during trial

AuthorAndrei Zarafiu

Andrei Zarafiu. Assistant professor, PhD., Faculty of Law, University of Bucharest (e-mail:

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In the Romanian judicial system, after the revision of the Consitution in 2003, the judicial bodies receive different trial remedies for the criminal prosecution phase and for the trial phase in order to maintain the deprivation of freedom.

As a juridical institution, the extension of the duration of the preventive arrest of the defendant may only occur in the criminal pursuit phase. In the trial phase, the measure of preventive arrest, whether it was taken during the criminal pursuit or during trial, can only be maintained.

Although regulated differently, both institutions are governed by the case-law of the Court in Strasbourg in the application of art.5 para. 3 of the European Convention of Human Rights in the sense that they require a control made by a judge in order to assess the circumstances that advocate for and against the maintenace of the preventive arrest, with the obligation to rule according to the juridical criteria on the existence of some solid reasons that justify the mainteance of the preventive arreest, and in the absence thereof, to order the release of the arrested person.

1.1. Preliminary considerations

It has to be noted that the extension of the arrest during the criminal trial has different forms depending on the phase of the main judicial activity. Thus, in the criminal pursuit phase the institution used in order to ensure the maintenance of the deprivation of freedom is the extensionPage 53 of the preventive arrest, whereas in the trial phase, this is achieved by the maintenance of the preventive arrest. This dual regulation is determined by the way in which the institution of extending the arrest in time is regulated by the fundamental law.1 Besides this constitutional reason, the dual type of regulation is also justified by the significant differences involved by the evolution of the relationship between the main judicial activity, that of solving the substance of the case and the adjacent judicial activity, i.e. taking the measure of preventive arrest.

In the same time, the detailed regulation2 contained in the fundamental law is meant to eliminate the inconsistencies regarding the application of the institution in diferent phases of the criminal trial (as it was the case in the old regulation)3 and to create in this matter the premises of a coherent and unitary legislative framework.

As regards the evolution of the juridical relationship between the main judicial activity and the adjacent activity, this is in itself the cause of different juridical and institutional contents for the extension of the preventive arrest and for the maintenace of the preventive arrest.

Thus, in the criminal pursuit phase, the juridical relationship between the main activity and the adjacent activity of making the preventive arrest has a special character. This is expressed by the coexistence of two different categories of judicial bodies that act as competent authorities, which perform the two types of activities. The main activity which has the function of conducting the criminal pursuit is performed or supervised by the prosecutor, whereas the adjacent activity through which the provisional deprivation of freedom is ordered is performed by the judge.

Also, the special character is expressed through two different categories of juridical norms of the two types of activities. Thus, the main judicial activity in the criminal pursuit phase is conducted according to the common procedure, regulated through general norms, contained both in the General Part of the Code of Procedure (compentecy, evidence, actions, etc.) and in the Special Part (art. 200-278), whereas the adjacent activity is carried out according to a special procedure, regulated through special norms (art. 146-160).

Unlike this, in the trial phase, the juridical relationship between the main activity and the adjacent activity has a character of subsidiarity, in the sense that both types of activities are carried out by the same body (the court) and according to the same common procedure (general provisons regarding the trial – art.287-312 Criminal Procedure Code), pointed out exceptionally through several special norms.

As regards the juridical nature of the institution of maintenace of the preventive arrest, as a subdivision of the type of adjacent judicial activity, regarding the preventive arrest, it must be noted, for the begininng, that this is an exception to the rule of notification (petitum) that is used in this matter.

If in the criminal pursuit phase whether we refer to the initial moment of ordering the preventive arrest or to a subsequent moment in the evolution of this measure (when the initialPage 54 grounds that generated the measure change or cease),4 and even if the law allows the possibility for this decision to be taken automatically, the competent judicial body, i.e. the judge, must be notified beforehand by the prosecutor through a proposal or a request.

For instance, even if in the case of the canceling the preventive arrest, the law (art.139 para.2) allows this measure to be taken automatically, considering the fact that the judge is the only authority that can decide on this matter, paradoxically, the same lawmaker establishes that it is the prosecutor’s duty to notifiy the court (art.139, para 31 of the Criminal Procedure Code) on this matter.

In the trial phase, maintaining the preventive arrest if the reasons that determined this measure still exist or cancelling the measure in case the reasons for it ceased, require a judicial procedure that is carried out automatically, without any prior notification in this respect.

We can appreciate that the notification on the exercise of the adjacent activity regarding the accused’s freedom is lawful and pre-existent, being both the consequence of a trial-related obligation and the derivate of the main notification regarding the procedure of solving the case.

The power of the court is enforceable even automatically, i.e. there is no legal obstacle (as compared to the general provisions on taking, replacing, canceling or terminating the prevention measures) to prevent the adjacent judicial activity, in case of the preventive arrest, from being carried out also as a result of a prior notification by the prosecutor or the by accused through a proposal or a request.

In all cases, the lawfulness of maintaining the arrest during the trial phase is not verified automatically, but following a notification through an appeal that is filed either by the prosecutor or by the arrested person.

Although the maintenace of the preventive arrest is an activity that can be enforced automatically, this does not imply an arbitrary decision or an unlimited discretion, but it must be subjectted to an objective parameter obtained through the evaluation of the offence and to a subjective parameter obtained through the evaluation of the degree of danger implied by the accused.5 The maintenance of the preventive arrest during the trial is a measure that does not materialise directly in a duration that is explicitly established and announced as in the case of the extension of the preventive arrest, where both the starting point (dies a quo) and the ending point (dies ad quem) are established explicitly through the judge’s decision.

For the institution of maintaining the preventive arrest, the duration of this measure, apparently sine die, is induced, being regulated indirectly both through the obligation of the periodical verification, but no later that 60 days, established by the provisions of art. 160b, and through the juridical consequences that result in case of failure to comply with this obligation.6

Thus, according to art. 140 para. 1 point b, if by the time the 60 days term expires, the court did not proceed to the verification of the lawfulness and validity of the preventive arrest, the measure ceases automatically, i.e. in this case the measure lasts for a maximum of 60 days.

This maximum duration, indirectly regulated, does not imply any obligation for the court to order the maintenance of the arrest for a certain time, shorter or equal to the one of 60 days, such a procedure being unlawful.7

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In the Romanian trial system, the maintenance of the preventive arrest remains an adjacent activity, irrespective of the phase of the main trial procedure8 (in first court, appeal or last appeal), and irrespective if a non-permanent decision of conviction was ordered on the matter.

Unlike this, in the case-law9 of the European Court of Justice, the final point of the period considered as provisional arrest is the pronounciation of a decision for conviction in the first court.

After this decison, whether or not it is enforceable in the domestic law of a member state, from the point of view of the Court, the detention falls under the scope of art.5 para.1 point a, beign a detention after conviction.

Although the national law of a member state stipulates that the sentence becomes enforceable once all the remedies were used, in the sense of the Convention, the preventive arrest terminates once the conviction and the decision is pronounced in the first court.10 In case the decision of conviction pronounced by the first court is quashed or cancelled by the superior courts and the file is referrred for re-trial to the first court, the duration of the provisional detention restrats to run until a new decision is issued by the first court and thus it is added to the first period.11

Irrespective of how we appreciate the duration of the maintenance of the arrest in the trial phase, this...

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