PREVENTIVE MEASURES AND OTHER PROCEDURAL MEASURES
2. Arrest of the defendant
Conditions and cases in which the arrest of the defendant is disposed
Art. 148 - The arrest measure may be taken against the defendant if the conditions stipulated in art. 143 are met and only in one of the following cases :
a) the defendant's identity or domicile cannot be clarified without the necessary data ;
b) the offence is flagrant, and imprisonment punishment stipulated by the law is longer than one year ;
c) the defendant has run away or hidden himself with the purpose of escaping the investigation or the trial, or has made preparations to do so, as well as if during the trial, there are signs that the defendant wants to escape the execution of punishment ;
d) there are sufficient data that the defendant has tried to impede the revealing of the truth, by influencing a witness or an expert, by destroying or altering the material means of evidence or by other such acts ;
e) the defendant has committed a new offence or there are data that justify the fear that he might commit other offences ;
f) the defendant is recidivist ;
g) abrogated ;
h) the defendant has committed an offence for which the law stipulates imprisonment for life alternatively with a imprisonment punishment or imprisonment for more than 4 years and there is clear evidence that the release would be too great a danger for the public order ;
i) there are sufficient data or signs which motivate the fear that the defendant will exert pressure on the injured person or will attempt to make an illegal agreement with the latter.
In the cases stipulated at par. 1 letters c)-f) and i), the arrest measure may be taken against the defendant only if the punishment stipulated by the law is imprisonment for life or imprisonment for more than 2 years.
Duration of the defendant’s arrest
Art. 149 - The duration of the defendant's arrest during criminal investigation may not exceed 30 days, except for the case when it is extended under the law. The due time is calculated from the date when the warrant was issued, when the arrest was ordered after hearing the defendant, and in case the arrest was ordered in the defendant's absence, the due time is calculated from the date of execution of the arrest warrant.
When a case is moved in the course of criminal investigation from one investigation body to another, the arrest warrant previously issued remains valid. The duration of the arrest is calculated according to the provisions of the previous paragraph.
Arrest of the defendant during criminal investigation
Art. 149(1) - The prosecutor, ex officio or solicited by the criminal investigation body, when the conditions stipulated in art. 143 are met and there is evidence from which results one of the cases provided at art. 148, if he considers the defendant's arrest to be in the interest of the criminal investigation, and only after hearing the latter in the presence of his/her defender, presents the case file, with the motivated proposal to take the measure of preventive arrest of the defendant, to the president of the court or to the judge delegated by the latter.
The file is presented to the president of the court that would be competent to judge the case at first instance, or of the corresponding court in whose jurisdiction the detention place is, or to the judge delegated by the court president.
At the presentation of the file by the prosecutor, the court president or the delegated judge settle the day and hour for the solution of the proposal for preventive arrest, before the expiry of the preventive arrest warrant of the accused person which became defendant or, in case the defendant is held, until the expiry of the 24 hours of confinement. The day and the hour are communicated both to the chosen or appointed ex officio defender and to the prosecutor, the latter being obliged to ensure the presence in front of the judge of the confined or arrested defendant.
The proposal for preventive arrest is solved in the council room by only one judge, regardless of the nature of the offence.
The defendant is brought in front of the judge and will be assisted by a defender.
In case the defendant is in a state of confinement or arrest according to art. 146 and because of the state of his/her health or because of emergency reasons or necessity he/she cannot appear in court, the arrest proposal will be examined in the absence of the defendant, but in the presence of the defender who is allowed to pass conclusions.
The provisions of art. 150 are applied accordingly.
The prosecutor’s attendance is obligatory.
The judge admits or rejects the proposal of preventive arrest, through motivated closing.
If the conditions provided at par. 1 are met, the judge orders, by closing, the preventive arrest of the defendant, showing the reasons justifying the preventive arrest and settling its duration, which may not exceed 30 days.
The defendant’s arrest may be disposed only for the days left after subtracting from 30 days the period when he/she was previously held or arrested. The preventive arrest of the defendant is ordered before the expiry of the duration of the accused person’s arrest.
The provisions of art. 146 par. 10 and of art. 152 par. 1 are applied accordingly.
Recourse may be introduced against the closing, within 24 hours from the passing, for those present, and from the communication, for those absent.
The provisions of previous paragraphs are applied also for the case when the prosecutor initiates the criminal action before the expiry of the duration of the accused person’s arrest warrant. The accused person’s arrest warrant ceases at the date when the defendant’s arrest warrant is issued.
Hearing the defendant
Art. 150 - The arrest measure may be taken against the defendant only after the prosecutor or the court have heard him, except for the case when the defendant has disappeared, is abroad or escapes from investigation or trial, or is in one of the situations provided at art. 1491 par. 6.
In case the defendant has disappeared, is abroad or escapes from investigation or trial, when the warrant has been issued without hearing the defendant, the latter will be heard as soon as he/she is caught or appears.
Content of the arrest warrant
Art. 151 - Immediately after drawing up the decision ordering the defendant's arrest, the judge issues an arrest warrant.
If the same decision orders the arrest of several defendants, separate arrest warrants are issued for each of them.
The arrest warrant should mention :
a) the court that ordered the arrest measure against the defendant.
b) the date and place of issue ;
c) the name, surname and position of the person who issued the arrest warrant ;
d) the data regarding the defendant, stipulated in art. 70, and his/her identity number ;
e) the deed that makes the object of the accusation and the name of the offence ;
f) the legal framing of the deed and the punishment stipulated by the law ;
g) the concrete reasons leading to the arrest ;
h) the arrest order for the defendant ;
i) the place where the person to be arrested will be kept ;
j) the signature of the judge.
Execution of the warrant
Art. 152 - When the arrest warrant was issued after hearing the defendant, the judge who issued the warrant hands a copy of the warrant to the arrested person, and sends another copy to the police body, in order to be left at the detention place with the arrested person.
When the arrest measure was ordered in the absence of the defendant according to art. 150, the warrant issued is submitted in 2 copies to the police body for enforcement.
The police body arrests the person designated in the warrant, to whom it gives a copy of the warrant, and brings him/her before the judge who issued the warrant.
The judge hears the defendant, and if the latter has objections that need urgent clarifications, he/she immediately settles a trial date.
Objections regarding identity
Art.153 - If the arrested person has objections against the enforcement of the warrant only as far as the identity is concerned, he/she is brought before the court of the place where he/she was found.
When it is necessary, the court asks the judge who issued the warrant for information.
Until the objections are clarified, the court, if it considers there is no danger of disappearance, orders the release of the person against whom the warrant has been enforced.
If the court discovers that the person brought is not the one specified in the warrant, it releases him/her immediately, and if it discovers that the objections are not justified, orders the enforcement of the warrant, according to the provisions of art. 152 paragraph 3.
In the cases provided at par. 1 -3, the court orders through closing, that will also be sent to the judge who issued the warrant.
Not finding the person stipulated in the warrant
Art. 154 - When the person stipulated in the warrant has not been found, the enforcing body draws up an official report by which it acknowledges this and informs the judicial body that issued the warrant, as well as the competent bodies for searching.
Extension of the arrest duration during criminal investigation
Art. 155 - The duration of the defendant's arrest ordered by the court may be extended, during criminal prosecution, for justified reasons, if the reasons which determined initial arrest impose further deprivation of freedom or if there are new reasons to justify the deprivation of freedom.
In the case provided at par. 1, the extension of the defendant's arrest may be ordered by the court who would have the competence to try the case or by the corresponding court in whose territorial area the detention place is located.
Proposal for extension of arrest ordered during criminal investigation
Art. 156 - The extension of the arrest provided at art. 155 is ordered on the basis of the justified proposal of the body that performs the criminal investigation.
The proposal of the criminal investigation body is acknowledged by the supervising prosecutor and forwarded by the latter, with at least 5 days before the expiry of the arrest duration, to the court provided at art. 155 par. 2.
If the arrest was ordered by a court inferior to the one competent to grant the extension, the proposal is forwarded to the competent court.
The proposal is included as annex to the paper informing the court. The paper may also include other reasons justifying the extension of the arrest than those included in the proposal.
When in the same case there are several defendants arrested, whose preventive arrest duration expires at different dates, the prosecutor who informs the court for one of the defendants will inform it about the other defendants as well.
Art. 157 -Abrogated.
Art. 158- Abrogated.
Procedure for extension of arrest ordered during criminal investigation
Art. 159 – The record of the case will be brought by the prosecutor, together with the court notification, at least 5 days before the expiry of the preventive arrest and the defender will be able to consult it.
The proposal of extension of the arrest is solved in the council room, by only one judge, regardless of the nature of the offence.
The defendant is brought before the court and will be assisted by the defender.
In case the arrested defendant is hospitalized and, because of the state of his/her health, cannot be brought before the court, or in other cases when his/her displacement is not possible, the proposal will be examined in the absence of the defendant, but only in the presence of the defender, who is allowed to pass conclusions.
The prosecutor’s attendance is obligatory.
In case the court approves the extension, this cannot exceed 30 days.
The court solves the proposal and takes a decision with regard to the preventive arrest extension, within 24 hours from receiving the file, and communicates the closing to those absent from trial, within the same due time.
The closing by which the arrest extension was decided may be attacked by recourse by the prosecutor or by the defender, within 24 hours from decision passing, for those present and, from decision communication, for those absent. The recourse is solved before the expiry of the preventive arrest duration.
The enforcement of the recourse declared against the closing by which the preventive arrest extension was decided may not be suspended.
The defendant is brought at recourse trial.
The measure disposed by the court is communicated to the administration of the detention place, which must inform the defendant about it.
If the closing of the first instance deciding on the extension of preventive arrest is not attacked by recourse, the court must return the file to the prosecutor within 24 hours from the expiry of the recourse due time.
The judge may also approve other extensions, each of less than 30 days. The provisions of the previous paragraphs are enforced accordingly. The total duration of preventive arrest during criminal investigation may not exceed 180 days.
Maintaining the defendant’s arrest upon receiving the file
Art.160 - When the prosecutor disposes, by charge, the summoning to court of the defendant under arrest, the file is transmitted to the competent court at least 5 days before the expiry of the arrest warrant or, according to the case, of the duration for which extension of the arrest was disposed.
The court, in the council room, proceeds according to art. 300(1).
The defendant’s arrest during trial
Art. 160a – The preventive arrest of the defendant may be ordered during trial, through motivated closing, if the conditions provided at art. 143 are met and if there is one of the cases provided at art. 148.
The closing may be attacked by recourse. The due time for recourse is 24 hours and is calculated from passing the decision, for those present and, from communication, for those absent. The file will be communicated to the recourse court in 24 hours due time, and the recourse is judged in 3 days. The execution of the recourse pronounced against the closing by which arrest was ordered may not be suspended.
The provisions of art. 151 are applied also for the case of the defendant’s arrest during trial.
With regard to the defendant who has previously been arrested in the same case, during criminal prosecution or trial, the same measure may be disposed again, if new clemencies have intervened, which make necessary his/her deprivation of freedom.
Checking related to the defendant’s arrest during trial
Art. 160b – During trial, the court checks periodically, but no later than 60 days, the legality and justification of the preventive arrest.
If the court establishes that the reasons which determined preventive arrest have ceased or there are no new reasons to justify the deprivation of freedom, it orders, through closing, the revocation of preventive arrest and immediate release of the defendant.
When the court establishes that the reasons which determined preventive arrest impose further deprivation of freedom or that there are new reasons that justify the deprivation of freedom, it orders, through motivated closing, the maintaining of preventive arrest.
The closing may be attacked by recourse, the provisions of art. 160a par. 2 being applied accordingly.
Art. 160c – Abrogated.
Art. 160d – Abrogated.
1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.
2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person's rights have been respected.
3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).
5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.
7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.