Search

Referring to the provisions of the Romanian Constitution, individual freedom and security of person appear to be inviolable, unless criminal proceedings have been initiated against the person. Crime is that state of affairs which brings a high degree of danger to society. It consists in committing criminal acts with guilt, punishable by a criminal fine and/or deprivation of liberty. Preventive measures have the role of helping in the criminal process by meeting or removing situations of danger that could prevent the court from finding out the truth, as well as restricting the freedom of persons who have committed crimes or about whom there is reasonable suspicion that they are going to commit an act provided by criminal law. The deprivation of liberty of individuals who have committed crimes is a necessary measure for their re-education and aims to prevent the commission of other criminal acts. Among preventive measures, the most serious form is pre-trial detention. This is one of the most severe custodial measures by which the accused is interrupted from performing certain actions that could hinder the criminal process or its purpose. Pre-trial detention may be implemented only after the substantive conditions of the pre-trial detention warrant have been cumulatively met. Therefore, the arrest is a procedural measure without which pre-trial detention could not be ordered. It is a procedural act of particular importance because it presents, concretely, the act(s) of which the accused is accused and through this prism the necessary measures are taken to charge the defendant. The arrest warrant is the main document that makes the difference in order to establish a person's guilt. [ABSTRACT FROM AUTHOR]

Ireland has a comparatively low pre-trial detention rate by European standards, at around 14 pre-trial detainees per 100,000 population. This article seeks to explore one factor which may explain a lower use of pre-trial detention in Ireland: its legal culture. Drawing on semi-structured interviews with judges, prosecution lawyers, defence lawyers and probation staff, the article finds that the constitutional protection of the right to bail (the key alternative to pre-trial detention in Ireland), an enduring legal tradition which historically prohibited the use of a risk of offending ground, and shared views and assumptions about the objectives of pre-trial detention hearings amongst judges, prosecution and defence lawyers, have influenced how such actors engage in the decision-making process about the use of pre-trial detention. The article argues that more attention needs to be given to the role of legal culture to examine why detention rates differ across Europe. [ABSTRACT FROM AUTHOR]

Copyright of Annals of 'Constantin Brancusi' University of Targu-Jiu. Juridical Science Series is the property of Universitatea Constantin Brancusi din Targu-Jiu and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Namibia's population of unconvicted inmates in police custody has been on the rise, not only since the report by the Ombudsman to the National Assembly in 2006. Although the Namibian government made efforts thereafter to improve the conditions of detention, interim gains made by virtue of capital investments into the expansion and refurbishment of physical infrastructure have been cancelled out by the growing remand population. The reason could be a growing population and the commensurate increase of the number of younger people who theoretically contribute to a higher incidence of crime. Yet something is amiss, because notwithstanding demographic dynamics, over the last 20 to 30 years or so, the police's arrest statistics have not changed much. A plausible alternative explanation could be a continuous shift of the Namibian criminal justice system towards crime control. However, due to the pervasive dearth of justice data, especially criminal justice data, it is difficult to explain the situation. Equally, due to missing field data, there is no evidence from which to make recommendations for policy and practice. Receptiveness among Namibian criminal justice stakeholders to a broad and deep analysis into the reality of pre-trial detention in Namibia varies considerably. This article makes the case for a complex study of pre-trial detention in Namibia. [ABSTRACT FROM AUTHOR]

This study aims to examine the perceptions of professionals working in the judicial field regarding pre-trial detention of youths under 18 years of age. For that purpose, 17 professionals were interviewed. The data analysis showed that in the professionals' view the measure of pre-trial detention can be a positive factor when the security of society is taken into account; however, it can be a negative factor when only the young offender is taken into account. Moreover, the measure of pre-trial detention seems to entail log-term negative consequences both for the youth and for society. [ABSTRACT FROM AUTHOR]

In this article, we take issue with the ECHR standards on pre-trial detention. These standards are considered panacea for the reported overuse of pre-trial detention in Europe. They focus on the legitimate purposes of detention as safeguards to ensure the principle of ultima ratio. Yet these purposes are heterogeneous as pre-trial detention protects the pending proceedings but also averts risks pertinent to criminal policy. In our analysis we discuss the shortcomings of the ECHR standards to fully protect from abusive detention. Moreover, we reveal internal inconsistencies with the presumption of innocence. One major example is the use of pre-trial detention to prevent re-offending, which blurs the boundaries between custody on remand and preventive detention. Additionally, we delve deeper into the obligation to use milder measures as part of the ECHR standards, which remains superficial and vague. Conclusively, we encourage the reflection and re-examination of the ECHR standards for pre-trial detention, instead of focusing merely on their better enforcement. [ABSTRACT FROM AUTHOR]

The paper analyses the possibilities of detainees to effectively exercise their defence rights during the pre- trial detention. Deprivation of liberty presupposes limited abilities of detainees to move and to take actions and, consequently, it may affect their possibilities to exercise the rights guaranteed by the law. Hence, a correlation between material conditions of detention and defence rights can be perceived. Inadequate detention conditions, in addition to leading to inhuman and degrading treatment, can also pose an obstacle for the full enjoyment of procedural rights, primarily the right of access to a lawyer, the right to have adequate time and facilities for the preparation of defence. In this regard, detention conditions can lead to the violation of the right to a fair trial. On the other hand, effective exercise of the right to access to a lawyer is one of the most important guarantees of protection against torture, inhuman and degrading treatment during detention. Therefore it is necessary not only to legally prescribe the special procedural guarantees for suspects and accused deprived of their liberty but also to provide such material conditions, which are often limited and insufficient within the prison systems, for the enforcement of the pre-trial detention in a way which will enable the full and efficient exercise of the defence rights guaranteed by the law. In the paper, the author analyses the procedural guarantees for detainees which are enshrined within the EU directives on procedural rights of suspects and accused persons and the ECtHR case law in the light of detention conditions. Special attention in paper has been given to the Croatian law and an assessment of the procedural rights and detention conditions in pre-trial detention within the national legal framework and case law. [ABSTRACT FROM AUTHOR]

The rate with which pre-trial detention is used across most common law jurisdictions has been increasing. In Canada, the rate has tripled over the past 30 years and the proportion of prisoners in pre-trial detention is higher than in other jurisdictions. Contrary to the presumption of innocence, many accused will spend time in pre-trial detention and if released on bail will have a number of restrictive conditions routinely imposed. It is a criminal offence to fail to comply with any of these conditions. Using data collected from observations of 152 days of bail hearings in 11 courts in Ontario, Canada, this paper argues significant efforts to control and monitor behaviour are being used outside of a finding of guilt. [ABSTRACT FROM AUTHOR]

The Hungarian criminal procedural law practice is far from the norms at several points, unfortunately, the juristic acts of the European Union, the European Court of Human Rights practices and the Constitutional Court's decree make just as little influence on fixed schematic thinking and decision-making as the Explanation of the Criminal Procedure Act (Holé & Kadlót 2007) and the ad hoc decisions of the Mansion. It is more devastating in the cases of pre-trial detention related procedures, whether it relates to the enactment or the reservation, for the enforcement of the right to effective protection is strongly questionable nowadays. In this treatise - including but not limited to - I am trying to analyze a few parts of this issue, however, they definitely belong to the most frequently encountered problems in Hungary. Changes are not experienced across the equality of arms, or the enforcement of the effective defense in the entrenched practice of criminal procedures, despite the fact the need, reasonableness now can be seen brighter than the sun. [ABSTRACT FROM AUTHOR]

Prison overcrowding is a major problem in the Belgian criminal justice system, with 40% of the current population consisting of prisoners remanded in custody. Driven by a goal of prison overcrowding prevention, electronic monitoring has been implemented nationally since 2000, but only as an alternative to the execution of the entire, or a part of the prison sentence imposed. This article aims to report some final results of recent research on the possible application of electronic monitoring as an alternative to remand custody in Belgium, more particularly with regard to some important legal, practical and organisational questions. [ABSTRACT FROM AUTHOR]

The right to freedom and its exceptions have been reformed on several occasions, since its enactment in 2004. The following study analyzes two main norms on this matter, introduced by such reforms: the first one is the regulation on pre-trial detention regarding sexual violence against children; the second is the prohibition of substitution of pre-trial detention. This article intends to argue, supported with field research that these norms are against the principles on which pretrial detention is founded, as they privilege the use of this instrument, and restrain the discretionality given to the judge in an adversarial criminal system. [ABSTRACT FROM AUTHOR]

This article examines the issue of the exercise of judicial discretion in deciding motions for pre-trial release at the Extraordinary Chambers in the Courts of Cambodia (ECCC) through a comparative prism of other existing and past International Criminal Tribunals (ICTs). The issue of pre-trial detention has been one of the most contentious in international criminal justice, with many questioning the ICTs' insistence on abiding by the self-imposed principle of "detention is the rule, pretrial release is the exception". This article offers an answer to the question of the extent to which the relevant statutory pronouncements have led to the creation of the foregoing principle, and the extent to which such has been achieved by the statutorily prescribed or the extra-statutory exercise of judicial discretion. Further, this article examines the extent to which the relatively newly established ECCC have followed the patterns of judicial discretion in deciding motions for pre-trial release created by its predecessors. [ABSTRACT FROM AUTHOR]

Introduction: The most recent legal regulations in the Republic of Croatia govern the process of criminal procedure for persons in pre-trial detention who have a temporary mental disturbance for which psychiatric treatment is needed. The Prison Director is in this case obliged to seek psychiatric treatment for such persons who are then hospitalized in a psychiatric institution instead of a prison hospital or prison that meets the requirements prescribed by law for the accommodation of pre-trial detainees. Forensic departments of the five psychiatric hospitals in Croatia accept mentally incapable persons subject to court order, but not persons in custody, i.e. in pre-trial detention. Pre-trial detention is a measure imposed in the previous proceedings to ensure that the person to whom the measure is imposed is present during the pre-trial stage and the hearing stage, i.e. after the final judgment has been rendered until it becomes final. According to Croatian laws, a person who has been sentenced to pre-trial detention and who has mental disorders is entitled to a range of rights that must be respected, and at the same time, there are strict restrictions in exercising those same rights for the reason of sentencing to pre-trial detention. Objectives: The article points to several problems that have arisen in practice due to the under-regulation of pre-trial detention measures. Methods: Perspective, opinion, and commentary article. Results: Perspective, opinion, and commentary article. Conclusions: The authors discuss legal, medical, and ethical issues, but also the financial framework of such a process. [ABSTRACT FROM AUTHOR]