Part II

The deprivation of a person’s liberty for procedural purposes over an extended period of time is an issue that is treated with particular care in all legal systems, with the enacted provisions largely reflecting the legal stance on the genuine and effective guarantee of individual liberty. In the Romanian criminal justice system, the absolute nature of the initial 30-day period of pretrial detention can be overcome through the use of a procedure—recognized at the constitutional level—to extend the deprivation of liberty.

This article outlines the sequence of judicial proceedings that make up the two stages of the procedure for extending pretrial detention, a procedure which, through its detailed regulations and strict requirements, serves as a guarantee of respect for individual liberty.

Currently, as a result of the 2003 constitutional amendment, judicial bodies have different procedural remedies available during the criminal investigation phase and the trial phase for the purpose of continuing the deprivation of liberty. As a legal institution, the extension of a defendant’s pretrial detention may occur only during the pretrial investigation phase. During the trial phase, the measure of pretrial detention—whether imposed during the pretrial investigation or during the trial—may be maintained.

Although regulated differently, both institutions are subject to the conditions imposed by the case law of the Strasbourg Court in the application of Article 5(3) of the European Convention on Human Rights, in the sense that they entail judicial review, during which the circumstances for and against continuing pretrial detention are examined, with the obligation to rule, in accordance with legal criteria, on the existence of substantial grounds justifying continued detention and, in the absence thereof, to order the release of the detainee. Based on this observation, the article also includes a brief comparative analysis of the two forms of pretrial detention extension recognized by our legislation: the extension of pretrial detention during the criminal investigation phase and the continuation of pretrial detention during the trial phase.

Keywords: extension of pretrial detention, deprivation of liberty, criminal prosecution, judicial review