Conflicting Interests in the Area of Pre-Trial Detention. From the Presumption of Innocence to the Threat to Public Order (II) Cover Image

Interese contradictorii în materia arestării preventive. De la prezumţia de nevinovăţie la pericolul pentru ordinea publică (II)
Conflicting Interests in the Area of Pre-Trial Detention. From the Presumption of Innocence to the Threat to Public Order (II)

Author(s): Cristina Tomuleţ
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Universul Juridic
Keywords: pre-trial detention; right to liberty; legitimate/illegitimate interests; threat to public order; Article 5 of the Convention; formalism vs. effectiveness;

Summary/Abstract: In the present article - the second part of a three-part study – the author analyzes the interests of society protected by way of pre-trial detention. The aforementioned interests are classified into two categories: legitimate and illegitimate interests. Considering the administration of justice and the protection of society from further offences to be legitimate interests, which justify recourse to pre-trial detention, the author dedicates the rest of the study to the examination of the threat to public order, as a ground for pre-trial detention, which encompasses illegitimate interests protected by sacrificing the right to liberty. Referring to the communist origins of this notion, the author highlights that the threat to public order, as interpreted in Romanian legal theory and case-law, actually operates on the basis of a „presumption of guilt” and facilitates the anticipation of custodial sentences, while protecting the reputation of the judiciary and the interests of the prosecution. The author proposes a radical reshaping of the concept, by interpreting it restrictively and including it in the legitimate interest of protecting society from further offences, in order to avoid further violation judgments pronounced by the European Court against Romania regarding article 5 of the Convention.

  • Issue Year: XI/2015
  • Issue No: 04
  • Page Range: 76-109
  • Page Count: 34
  • Language: Romanian