2018

Abstract: The preventive measures provided for in the Code of Criminal Procedure with respect to legal entities have been regulated in a “concise” manner, in a single article, and the few amendments made to these legal provisions have not resulted in significant improvements. The limitations of the current legislation in this area are becoming increasingly apparent as judicial practice diversifies, producing effects that are difficult to reconcile with the purpose of preventive measures.

This paper aims first to analyze the conditions under which preventive measures may be ordered against a legal entity, drawing the necessary parallels with the general provisions of the Code of Criminal Procedure. The preventive measures will be analyzed individually, with reference to relevant judicial practice and by identifying the shortcomings of the current legal provisions. The final section of this paper will analyze elements of comparative law and proposals for future legislation, while also making the necessary references to the provisions of the Criminal Code that the legislature must take into account when reforming this area.

To serve as an effective tool available to judicial authorities, preventive measures require coherent, uniform, and explicit regulations. Restrictions on the fundamental rights of persons under investigation require effective safeguards to ensure the necessary balance between public and private interests. Given the Constitutional Court’s inaction in addressing some of the shortcomings of the current regulations, it falls to the legislature to revisit the preventive measures applicable to legal entities in order to create a legal framework that complies with constitutional and treaty requirements.

 

Keywords: preventive measures, legal entity, merger, acquisition, asset transactions, bail.