The Recognition of Legal Surveillance Measures as an Alternative to Detention on Remand in European Union

• Author: Ion Rusu
• Position: Senior Lecturer PhD., Faculty of Law, 'Danubius' University of Galati, 3 Galati Boulevard, 800654 Galati, Romania
• Pages: 34-55

ACTA UNIVERSITAT

34

Abstract:

The objectives of

act in terms of their implem

act, a comparative examinat

continuation of others made

Union, especially in the

activ

another Member S

tate. The

the provisions of European l

flaws in the Romanian and

practitioners and all those w

and sensitive at the same t

examination of the depositi

on

Keywords:

European legisla

1. Introduction

The most important form

in our

opinion the reco

documents emanating f

is now being achieved

conventions of di

fferent

At EU level this form o

adopting several norm

legislation in the field.

1

Senior Lecturer Ph

D., Facu

Galati, Romania. Tel.: +40.3

danubius.ro.

ATIS DANUBIUS

Vol. 8, n

The Recognition of Legal Su

rvei

Measures as an Alternative to Dete

Remand in European Union

Ion RUSU

1

of the research aim at examining the deposition of the Europe

ementation by the Romanian judicial authorities, of the nation

nation, critical comments and proposal

s de lege ferenda

. Thi

de in the field of judicial cooperation in criminal matters in

ctivity of recognition and enforcement of judicial decisions em

e Results of the study focuses in particular on the possibility

n legislative act by the Romanian judicial authorities, the ide

d Eu ropean legislation. The paper is useful

for teachers, ma

who wish to improve their knowledge in this area particula

e time. The scientific contribution of the work results from

ons of both normative acts and the formulated proposals

de le

slative act; offence; Romanian judicial authorities

orm of international judicial cooperation in crimina

ecognition and enforcement of court judgments a

g from another state. The activity itself is very com

ed based on mutual trust, reciprocity, treaties or

ent states or the national law.

of judicial cooperation in criminal matters was re

rmative acts designed to ensure the harmonizat

culty of Law, “Danubius” University of Galati, 3 Galati Boule

.372.361.102, fax: +40.372.361.290. Corresponding author:

io

AUDJ, Vol. 8, no.

8, no

. 1/2012

veillance

etention on

ion

pean legislative

tional legislative

his paper is the

in the European

emanating from

lity of execut ing

identification of

master students,

ularly important

rom the critical

e lege ferenda

.

inal matters is

s and judicial

omplex and it

r the ratified

s regulated by

zation of the

ulevard, 800654

ionrusu@univ

-

no. 1

, pp. 34- 55

JURIDICA

35

Among the adopted normative acts we mention two that seem to be of paramount

importance for perfecting the cooperation activities of Member States and even the

European Union evolution, namely the Council Framework Decision

2008/909/JHA of 27 November 2008 on the principle of mutual recognition in the

case of court judgments in criminal matters imposing custodial sentences or

measures involving deprivation of liberty for the purpose of their enforcement in

the European Union

1

and Council Framework Decision 2008/947/JHA of 27

November 2008 on the principle of mutual recognition in the case of court

judgments and probation decisions for the supervision of probation measures and

alternative sanctions.

2

Amid the formulation of critical comments, especially by the

European Court of Human Rights, the two European regulations were subsequently

amended and supplemented by the adoption of Council Framework Decision

2009/299/JAI of 26 February 2009.

3

This new modifying normative act makes a

number of additions regarding the possibility of case retrial in which the person

was not present at the trial where the person was condemned.

Given the stages of criminal proceedings and based on the conclusions of the

Tampere European Council of 15 and 16 October 1999, it was established that the

principle of mutual recognition should apply in the prosecution phase as well, i.e.

pre-trial phase.

In applying this principle, a person who is resident in a Member State, but subject

to criminal proceedings in another Member State, must be supervised by competent

judicial authorities of the State in which he resides, until the starting of the trial.

The application of the mentioned principle must include strengthening the right to

liberty and the presumption of innocence in the European Union as a whole and

ensuring cooperation between Member States where a person is submitted to some

obligations or is subject to supervision until the trial and the adoption of a decision

by the competent court. In this way, it promotes the use of non-custodial measures

as an alternative to detention on remand, even if, in accordance with the laws of the

Member State concerned, it could not be imposed the ab initio to a detention on

remand.

Also, according to the wording of the preamble to the European legislative act,

regarding detention of persons subject to criminal proceedings, there is the risk of a

1

Published in the European Union Official Journal no. L 327/27 of 12.05.2008

2

Published in the European Union Official Journal no. L 337/122 of 12. 16.2008.

3

Published in the European Union Official Journal no. L 81/24 of 03.27.2009.