romanian english

Ancuţa-Elena BALAN: Provisional release: a way to guarantee individual freedom in criminal proceedings

Abstract: The international legislation has recently been modified, in order to offer a better protection for human rights. Following the year 1989, Romanian legislation had to adapt to these changes. The Code of Criminal Procedure has also been modified. A main concern of the legislator was to find out the best way to guarantee human beings' freedom in the criminal trial. A solution is not easy to find, due to the fact that individuals' freedom must be in accord with state's interest to punish the infringers of the law. Thus, the 5 th article in the Code establishes the right of every defendant who has been imprisoned before trial, to ask for temporal release. The superior limit of penalty for which temporal release ean be agreed has increased, from 7 to 12 years, so, now, a larger number of persons can ask for temporal release. Also, the competent bodies to agree on the request for the release must do an analysis based on objective criterions. In the enforced legislation, the competent organ to agree on the release is only the court, unlike the former legislation, which had also given this competence to the Public Prosecutor. The reason for this change is that, in accord with the opinion of The European Court of Human Rights, it is considered that the Public Prosecutor can’t give enough guarantees for an objective analysis.

Key-words: provisional release, preventive detention, the right to individual freedom

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