The preventive arrest of a person in preventive detention status

• Author: Bogdan Micu
• Position: Associate Professor, PhD, Faculty of Law, ?Nicolae Titulescu' University of Bucharest (e-mail: bogdanmicu@mnpartners.ro).
• Pages: 150-158

LESIJ NO. XXIII, VOL. 1/2016

THE PREVENTIVE ARREST OF A PERSON IN PREVENTIVE

DETENTION STATUS

Bogdan MICU

Abstract

The paper a ddresses a pra ctical issue of great relevance, namely that of opportunity and uti lity

of preventive arrest of a person who is alrea dy in detention in another ca se. The issue is also extended

and other preventative measures and is rela ted to the fulfillment of the requirement of “threat to public

order” imposed to be met in this matter.

Keywords: preventive arrest, house arrest, danger to public order, preventive measures.

1. Introduction

In judicial proceedings in the field o f

criminal law, it is often found the need to

have and enforce preventive measures aimed

mainly to ensure the proper conduct of the

criminal trial. Under no circumstances,

however, such measure s, which have a

negative impact on the rights and freedoms

of the persons referred to may be taken if the

general and special conditions required by

the law are not met.

As indicated by art. 202 para. (4)

Criminal Procedure Code, the preventive

measures are: arrest, judicial review, judicial

review on bail, house arrest and preventive

arrest. The choice of either of these measures

with regard to a concrete situation will be

taken based on the fulfillment of the legal

conditions, but also in agreement with the

principle of proportionality also provided for

in art. 202 para. (3): “any preventive

measure shall b e proportionate to the

seriousness of the accusation of the person

to whom it is taken and it is needed for the

 Associate Professor, PhD, Faculty of Law, „Nicolae Titulescu” University of Bucharest (e-mail:

bogdanmicu@mnpartners.ro).

achievement of t he aim pursued through its

disposition.”

In recent jurisprudence, we could

notice the trend of ta king the measure of

preventive arrest, the most severe of the

preventive measures, with regard to persons

who were already in the custody of the State,

either they were in the situation of serving a

sentence, or they were the subject of another

preventive arrest warrant. With regard to this

practice, we appreciate that it is inconsistent

with the conditions under which it may order

the preventive arrest. To argue this opinion,

we will proceed, first of all, to analyze the

conditions that must be met for the

preventive measure of arrest to be ordered.

2. The co nditions under which the

preventive arrest of a person may be

ordered

Thus, firstly, to take the preventive

measure of arrest in the custody of the State,

it needs to be found that the measure is

necessary to ensure the general goal of