Understanding Pretrial Detention in Romania
- Avocat
- Mar 24
- 10 min read
Pretrial detention is a measure of deprivation of liberty applied within the criminal process, intended to ensure the proper conduct of the criminal investigation and/or the trial itself. The purpose of pretrial detention is to prevent the defendant from evading criminal investigations and to prevent the commission of other offenses.
Pretrial detention is the most restrictive preventive measure and can only be ordered under strict conditions established by law. This measure must comply with the principle of proportionality, which means that it must be justified by the severity of the offense and its necessity in relation to other less restrictive preventive measures.
Learn from this article:
1. Pretrial Detention in Romania: Context and Legal Framework
1.1. What are Preventive Measures in Criminal Proceedings?
In criminal proceedings, preventive measures in Romania are actions ordered by judicial bodies to ensure the proper conduct of the investigation and the trial itself. These measures aim to prevent certain actions by suspected or accused persons that could obstruct the normal course of proceedings or pose a danger to society.
Preventive measures have the primary objective of preventing certain actions by suspected or accused persons that could obstruct the normal course of proceedings or pose a danger to society. Thus, preventive measures are intended to ensure the presence of the suspected or accused person before the judicial bodies, to prevent their evasion of criminal prosecution, trial, or execution of the sentence, to prevent the commission of new offenses, and to protect public order.
1.2. What Preventive Measures Exist?
The main types of preventive measures include:
Detention: A short-term preventive measure (usually 24 hours) ordered by the police or prosecutor to ensure the suspect's presence at hearings and for urgent verifications.
Judicial Control: A preventive measure that imposes obligations on the person (periodic reporting, prohibitions, etc.) to ensure presence at the trial and prevent its obstruction, without deprivation of liberty.
Judicial Control on Bail: Judicial control with the deposit of a sum of money (bail) as a guarantee for compliance with obligations.
House Arrest: A more restrictive preventive measure that obliges the person to remain in their residence, with limited exceptions.
Pretrial Detention: The most severe preventive measure, consisting of the deprivation of liberty of the person, ordered in exceptional cases to ensure the proper conduct of the criminal trial in Romania, to prevent evasion of prosecution, or the commission of new offenses.
1.3. Regulation of Pretrial Detention
Pretrial detention in Romania is regulated by the Criminal Procedure Code, in articles 223-241. Pretrial detention is the most forceful preventive measure because it involves the deprivation of liberty of the defendant. The person under pretrial detention is detained and placed in a detention facility. This means that their freedom of movement is completely restricted.
Pretrial detention can be ordered during the criminal investigation or in the trial phase, but only by a judge, at the request of the prosecutor.
The competent courts to order the measure are the courts of first instance, tribunals, or courts of appeal, depending on the severity of the investigated offense (in legal terms, material jurisdiction).
According to the legislation, the pretrial detention measure must be justified by a reasoned court decision, which explains in detail the reasons why this measure is necessary and how it is justified in relation to the social danger of the act and the procedural risks involved. The requirement for reasoning is a guarantee against abuse and ensures respect for the fundamental rights of the person concerned.
2. Necessary Conditions for Pretrial Detention
For a suspect or defendant to be placed under pretrial detention, several conditions stipulated by law must be cumulatively fulfilled:
2.1. Existence of Evidence or Substantial Indications Regarding the Commission of an Offense.
The mere fact that a person is suspected of committing a criminal act is not sufficient to justify their deprivation of liberty. Judicial authorities must present concrete evidence, substantial indications, that support the suspicion and the necessity of pretrial detention.
This evidence may include witness statements, documents, recordings, or other means of proof that demonstrate the existence of reasonable grounds to believe that the person committed the offense and that there is a risk that they will evade prosecution or trial, influence witnesses, or continue criminal activity.
In the absence of such evidence, pretrial detention becomes an abusive measure that violates the person's right to liberty and the presumption of innocence, fundamental principles of the rule of law.
2.2. Necessity of the Measure for Ensuring the Proper Conduct of Criminal Proceedings
Pretrial detention may only be ordered exceptionally, if the defendant is in one of the following situations:
The defendant has absconded or fled to evade criminal prosecution or trial, or has undertaken preparatory actions for this purpose;
The defendant attempts to influence another participant in the offense, a witness, or an expert, or to destroy, alter, conceal, or remove evidence, or even to persuade someone else to adopt such behavior;
The defendant exerts pressure on the injured party or attempts to enter into a fraudulent agreement with them;
There are well-founded reasons to suspect that, after the commencement of criminal proceedings, the defendant intentionally committed a new offense or is preparing to commit a new offense.
The existing evidence reveals a reasonable suspicion that the defendant has committed certain types of offenses: intentional offenses against life, an offense that caused bodily harm or the death of a person, an offense against national security provided by the Criminal Code or other special laws, drug trafficking, violation of doping substance regulations, carrying out illegal operations with precursors or with products that may have psychoactive effects, violation of the regime of weapons, ammunition, nuclear materials or other explosive substances, trafficking and exploitation of vulnerable persons, acts of terrorism, money laundering, counterfeiting of coins, stamps or other valuables, blackmail, rape, unlawful deprivation of liberty, tax evasion, assault, judicial assault, corruption offenses, offenses committed through computer systems or electronic communication means, or any other offense for which the law provides a custodial sentence of at least 5 years.
Following the evaluation of the severity of the offense, the manner and circumstances in which it was committed, as well as the context in which the defendant finds themselves, including the influences of their entourage and social environment, their criminal record, and other relevant aspects concerning their person, it is concluded that the measure of deprivation of liberty is essential to eliminate a significant risk to public order. Thus, it is necessary for the defendant to be detained to prevent the continuation of criminal behavior and to protect the proper conduct of criminal proceedings and to respect social security.
2.3. Severity of the Offense and Impact on Public Order
The severity of the imputed offense and its impact on public order constitute relevant legal criteria in assessing the necessity of ordering pretrial detention. The court, in exercising its jurisdictional role, is called upon to perform a complex analysis, beyond the mere legal classification of the offense. This involves an in concreto assessment of the circumstances of the case, considering both the nature and manner of committing the offense, as well as the social consequences it has generated or could generate.
Thus, in situations where the offense presents a high degree of social danger, manifested by the infringement of fundamental social values and the creation of a sense of public insecurity, the risk that releasing the defendant would severely affect public order and undermine confidence in judicial authority becomes a determining factor in assessing the necessity of pretrial detention.
The assessment must be carried out with strict adherence to the principle of proportionality, ensuring a fair balance between the need to protect public order and the fundamental rights and freedoms of the person, including the presumption of innocence. If there are less restrictive alternatives, such as judicial control or house arrest, these must be considered before ordering pretrial detention.
3. Who Orders Pretrial Detention?
At each procedural stage, the control over pretrial detention is exercised by a judge with specific competences, thus ensuring that the measure remains proportional and justified in relation to the interests of justice and the fundamental rights of the defendant.
3.1. Judge of Rights and Liberties - Ordering Pretrial Detention During the Criminal Investigation
In the criminal investigation phase, the pretrial detention measure can only be ordered by the Judge of Rights and Liberties, at the prosecutor's request. They analyze whether there is evidence or substantial indications to justify the measure, as well as whether the legal conditions regarding procedural risks (evasion from prosecution, influencing witnesses, social danger, etc.) are met. Their decision must be reasoned and respect the principle of proportionality. If the judge grants the prosecutor's request, the defendant is placed in pretrial detention for a period of up to 30 days, with the possibility of extension. If the defendant contests the measure, it is verified by a superior court.
3.2. Preliminary Chamber Judge - Verifying the Maintenance of Pretrial Detention in the Preliminary Chamber Phase
After the completion of the criminal investigation, but before the actual trial begins, the case reaches the preliminary chamber procedure, where a Preliminary Chamber Judge analyzes the legality of the criminal investigation acts. If the defendant is under pretrial detention, the judge must verify whether the measure is still justified. They can decide to maintain the detention, revoke it, or replace it with another preventive measure, such as judicial control or house arrest. Unlike the Judge of Rights and Liberties, who initially decides on the measure, the Preliminary Chamber Judge verifies whether its maintenance is still necessary, considering the new elements of the case file.
3.3. Trial Court - Control and Extension of Pretrial Detention During the Criminal Trial
In the trial phase, the competence to decide on pretrial detention rests with the court hearing the case. They periodically analyze whether the measure is still justified and can order its extension, replacement, or revocation. Unlike the previous phases, in this stage, the court not only verifies the existence of substantial indications but also evaluates the evolution of the evidence and the trial. If it is found that the procedural risks have disappeared or that detention is no longer necessary, the defendant may be released under judicial control or under other conditions imposed by the court. Furthermore, any extension of the measure can be contested by the defendant, and the superior court will decide on the maintenance or revocation of pretrial detention.
4. Procedure for Ordering Pretrial Detention
The process by which pretrial detention is ordered involves several important steps:
4.1. Prosecutor's Proposal
The prosecutor submits a request for pretrial detention to the competent court, presenting the existing evidence and the reasons why the measure is considered necessary.
4.2. Hearing of the Defendant
The judge is obliged to ensure the defendant's right to defense. The defendant can be assisted by a lawyer of their choice or a court-appointed lawyer, and during the hearing, they can present arguments against the prosecutor's request.
4.3. Court's Decision
After analyzing the evidence and hearing the arguments of the parties, the judge decides either to grant the request and order pretrial detention or to reject it and apply another, less restrictive, preventive measure.
4.4. Appeals
The defendant can appeal the pretrial detention measure within 48 hours of the decision being communicated. The appeal is resolved by a superior court, which can uphold, modify, or revoke the ordered measure.
This procedure aims to guarantee a balance between the necessity of protecting the interests of justice and respecting the fundamental rights of the investigated person.
The prosecutor, as a representative of the Public Ministry, also has the right to appeal decisions regarding pretrial detention. The prosecutor can appeal the court's decision both in situations where their proposal for pretrial detention was rejected and in situations where they consider the ordered preventive measure to be insufficient.
5. Questions and Answers About Pretrial Detention
5.1. How long can pretrial detention last in Romania?
The initial duration is a maximum of 30 days, but it can be extended successively up to a total of 180 days in the criminal investigation phase. In the trial phase, the measure can be extended up to a maximum of 6 months for less serious offenses and up to a year or more for serious offenses.
5.2. What alternatives exist to pretrial detention?
Alternatively, the court can order judicial control, judicial control on bail, or house arrest, if these measures are sufficient to prevent procedural risks.
5.3. Who can request the revocation of the measure?
The defendant or their lawyer can request the revocation of pretrial detention, either before the same court or through an appeal to a superior court.
In certain situations, the prosecutor can request the revocation of the preventive measure if they find that it is no longer necessary or that new elements have emerged that justify the revocation.
The request for the revocation of the pretrial detention measure must be reasoned and based on concrete elements, such as changes in the initial circumstances or the emergence of new evidence. The court competent to rule on the request for the revocation of pretrial detention is the one that ordered the preventive measure or the superior court, depending on the stage of the criminal proceedings. The decision to revoke the pretrial detention measure is left to the discretion of the court, which will analyze each case individually, taking into account all relevant circumstances.
5.4. What happens if a person is placed in pretrial detention but is later acquitted?
If the person is definitively acquitted, they can claim damages from the state for unjustified deprivation of liberty.
5.5. Can pretrial detention be imposed without clear evidence?
No, the law stipulates that there must be evidence or substantial indications regarding the commission of the offense, and the court competent to apply the measure must detail the necessity of the measure.
5.6. Can an extension of pretrial detention be contested?
Yes, each extension can be contested, and the superior court will decide whether to maintain or revoke the pretrial detention measure.
5.7. If I am placed in pretrial detention, do I have the right to visits and communication?
Yes, but these rights may be restricted to avoid influencing the criminal investigation. Any restriction must be justified.
5.8. Can I be placed in pretrial detention for a minor offense?
In general, pretrial detention is applied for serious offenses. In the case of minor offenses, courts prefer other preventive measures.
5.9. Can a person without a criminal record be placed in pretrial detention?
Yes, if there is a risk that they will flee, influence the investigation, or commit other offenses.
5.10. What happens if the judge decides that pretrial detention is not justified?
The person is released immediately, and the court may impose another, less restrictive, preventive measure.
Comentários