The application of the principle of res judicata power in the case of preventive arrest

Abstract

In the present study, the author exposes an unprecedented situation extracted from Romanian criminal case-law, which generated controversies regarding the possibility of ordering the preventive arrest of a person.

In essence, the possibility of replacing judicial control with preventive arrest in a criminal case, for the commission of a new crime, in the conditions where the person has already been arrested in the second case, where the criminal action was initiated against him for its commission, is analysed.

The study takes into consideration the necessary replacement conditions according to art. 215 para. (7) of the Criminal Procedure Code, those of arrest provided in art. 223 para. (1) let. d) of the Criminal Procedure Code, if separate arrest can be ordered in the two cases, or if we are dealing with a problem of legality.

At the same time, the incidence of some principles that could make the arrest illegal in both cases is analysed, namely the principles of ne bis in idem, res judicata authority and res judicata power.