Part II

Andrei ZARAFIU, Considerations on the procedure for prolonging pre-trial custody of the defendant during the criminal pursuit stage
Prolonging pre-trial custody of a person in a criminal proceeding is generally carefully taken into consideration by all legislations and, to a great extent, this position of law is reflected in the concern for the real and effective guarantee of an individual’s freedom. In the Romanian criminal system, the absolute character of the initial duration of pre-trial custody, witch is of 30 days, may be challenged by means of a procedure which is granted by the Constitution, in order to continue the detainment.

This paper presents the succession of judicial proceedings, which make up the two stages of custody, proceedings which, through their detailed and strict character, represent themselves a guarantee for the respect of the freedom of a person.

Currently, as a consequence of the revision of the Constitution in 2003, judicial authorities have at their disposal specific procedural remedies for the criminal pursuit stage and for the trial stage, in order to maintain a pre-trial custody. As a legal institution, the prolongation of the pre-trial custody of the defendant may be enforced only during the criminal pursuit stage. However, during the trial period, custody may be maintained if it was taken either during the criminal pursuit or during the trial.

Although they are subject to different regulations, both institutions must comply with the conditions imposed by the ECHR in Strasbourg, with regard to the enforcement of art. 5 paragraph 3 of the European Convention of Human Rights, meaning they require judicial control and balance over arguments and circumstances in favor and against maintaining pre-trial custody, followed by the obligation to a ruling in full accordance with specific legal criteria regarding the existence of grounded reasons that justify the maintenance of pre-trial custody or, in the absence of such grounds, followed by the obligation to dispose the release of the defendant. The paper also includes a short comparative analysis between the two types of prolongation of pre-trial custody, known by the Romanian legislation, namely custody during the criminal pursuit and custody during the trial.

Keywords: pre-trial custody, deprivation of freedom, criminal pursuit, prosecution, judicial control

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