Inconsistencies in the disposition of the measure of pre-trial detention on the basis of Article 223 paragraph (1) letter d) of the Code of Criminal Procedure

Abstract

Although the law that allows the taking of the measure of preventive arrest as a result of committing a new crime, after the criminal action was previously initiated against the same person, is not new, being regulated by law since 2003, in the current judicial practice there is a lack of a unitary point of view on the incidence of this legal basis, and there are two opinions expressed in this regard.

According to the first opinion, the proposal for pre-trial detention based on the provisions of art. 223 paragraph (1) letter d) of the Code of Criminal Procedure, may be formulated in the case in which investigations are carried out under the aspect of the new alleged crime committed by the same person against whom the criminal action was previously initiated in another case. In the second opinion, a proposal for pre-trial detention can be made on the basis of this criminal procedural provision, only in the original case, in which the criminal action was previously initiated.

Each of the two positions expressed and illustrated by the solutions in the mentioned jurisprudence, is susceptible to criticism, the criminal procedural law requiring the observance of the principle of separation of judicial functions.

By regulating the possibility of taking the measure of pre-trial detention as a result of committing a new crime, after the criminal action was previously initiated against the same person, the criminal procedural law did not establish a legal extension of jurisdiction or an exception to the principle of separation of judicial functions in criminal proceedings. The Code of Criminal Procedure regulates in detail the procedure by which the taking of the measure of pre-trial detention may be ordered, by reference to the stage of the procedural activity.

The proposal for pre-trial detention formulated during the criminal investigation, regardless of the legal basis invoked, is within the competence of the judge of rights and freedoms from the court competent to judge the case, its competence being excluded when the case is in the preliminary chamber phase or during judicial investigation.

The second opinion remains without legal support insofar as the first case, namely the case in which the criminal action was previously initiated, is definitively resolved, as there is no procedural framework in which a proposal for arrest or extension can be made.