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SUMMARY

As stated in the explanatory memorandum to the NCPC, home arrest is an absolute novelty
for the Romanian criminal procedural law, being inspired by the model of the Italian Criminal
Procedure Code. By introducing this institution, it was intended to broaden the possibilities of
individualization of preventive measures.
The preventive measure of home arrest was regulated as an interim measure, between the
preventive measure of pretrial conditional release, conditional release upon payment of a bail and
preventive detention.
In the absence of a definition of the concept of house in the NCPC or in the NCC, upon
applying the preventive measure of house arrest we must take into account the meaning of the
immovable property where the defendant resides, as provided in art. 221 par. (1) NCPC, that is,
the property where the defendant lives permanently, even if he/she does not have legal title for that
housing.
Art. 126 of the Law no. 254/2013 defines the property where house arrest is executed as:
"the defendant's house, the room, the outbuilding, or the enclosed place pertaining to the property."
The preventive measure of house arrest can only be taken against the defendant.
The stages of the criminal proceedings during which a this measure can be taken are as
follows: (i) during criminal investigation; (ii) during preliminary chamber proceedings; (iii) during
the trial.
The jurisdiction to order this measure differs, depending on the stage of the criminal
proceedings during which it is taken, and rests with: (i) justice of the peace, during the criminal
prosecution; (ii) preliminary chamber judge at the court of jurisdiction during preliminary
proceedings; (iii) the court during the trial.
This measure may be ordered if 3 positive requirements are met simultaneously:
there is at least one of the cases where the measure of preventive detention can be ordered
against the defendant (stipulated by article 223 of the NCPC);
it is required to ensure the proper performance of the criminal trial, to prevent the
defendant from eluding the criminal prosecution or the trial or to prevent the defendant
from committing another crime (the purpose of the measure provided by art. 202 par. (1)
NCPC];
this measure is sufficient to achieve the purpose of the measure - the criterion of necessity,
provided by art. 202 par. (3) NCPPs; and

the defendant pays a bail in the amount determined by the judicial authority (according to
art. 217 par. (1) and (2) of the NCPC) and two negative conditions:

there is no reasonable suspicion that the defendant had committed a crime against a family
member; and

defendant had not previously been convicted by final court decision for the crime of
escaping.

Regarding the criterion of the "degree of danger implied by the crime", provided by par. (2),
in order to assess the circumstances leading to applying such measure, together with the purpose
of the measure, health, age, family situation and other circumstances regarding the person against
whom this measure is applied, we consider that the wording is not clear enough and does not
remove the problems raised in the judicial practice before entry into force of the NCPC, in
understanding the notion of danger implied by the crime.

De lege ferenda it should have been formulated as "the severity of the crime", similarly to
the presentation of the circumstances based on which it is decided whether preventive detention
measure is required or not, which is much closer to the real danger of the crime, as seen in many
conviction decisions ruled by European Court of Human Rights, including of Romania.

Par. (4) of art. 218 of NCPC provides the obligation of the judicial authority to
communicate in writing with written confirmation of acknowledgement to the person against
whom the measure of house arrest is ordered the rights of the defendant according to the provisions
of art. 83 NCPC, right to notify persons or institutions, bodies, stipulated in art. 210 par. (11 and
2) of the NCPC, right to emergency healthcare, right to challenge the measure and the right to
request the revocation or replacement of this measure by another preventive measure, but does not
contain any reference to how this communication shall be made de facto.

In our opinion the defendant shall be informed upon issuing the order for applying the
measure, when the defendant is present at the time of issuance, a report being drawn up in this
respect, or by the transmission of an abstract of order to the defendant at his/her address, the
acknowledgment of receipt proving the defendant was duly informed of the rights referred to in
par. (4) of art. 218 NCPC.

Regarding the provisions of special laws referring only to the measure of preventive
detention, art. 22 of Law no. 255/2013 provides that whenever, in normative acts (except for Law
No. 286/2009, Law No. 135/2010, Law No. 254/2013 and Law No. 253/2013, Law No. 252/2013
) it is stipulated the measure of preventive detention, the respective article of the law is also deemed
to refer to the measure of home arrest.

Similarly to the previous regulation, in order to solve urgently of cases dealing with
preventive measures and to avoid declination of jurisdiction or conflicts of jurisdiction, the law
maker established the alternative territorial jurisdiction of the relevant judicial body to resolve the
proposal to take the house arrest measure, as follows:

justice of the peace at the court which should have the jurisdiction to rule on the case in the
first instance;
justice of the peace at a similar court in whose jurisdiction the place where the criminal
offense was identified; or
justice of the peace at a similar court in whose jurisdiction is located the prosecutor's office,
where the prosecutor who carries out or supervises the prosecution is employed;

Prosecutor who performs or supervises the criminal investigation grants to justice of the peace
the jurisdiction to order the measure and the appointment must be materialized in a document.

Motivation must include, at a minimum, the description of the crime, legal classification of the
crime, the grounds for the measure, the evidence on which the proposal is based, and any other
information useful to the settlement of the case.

Report on the proposal to apply the measure of house arrest, accompanied by the case file, is
forwarded to the justice of the peace.

The procedure for solving the proposal is carried out in a expedite manner, the settlement
deadline being set within 24 hours of the registration of proposal. Procedure is conducted in the
council chamber, with the defendant being summoned and heard, if present. It is mandatory that
the defendant is assisted by an attorney and the prosecutor is present.

Justice of the peace issues a grounded judgment, either accepting or rejecting the proposal.

When rejecting the proposal of house arrest, justice of the peace may order, by the same
judgment, to apply one of the preventive measures of pretrial conditional release or conditional
release upon payment of bail, if the requirements provided by law are met.

In order to ensure the continuation of criminal prosecution and the observance of a reasonable
time for issuance of a solution during the criminal prosecution, the new criminal procedural law
provides the obligation of justice of the peace to return the file to the prosecutor within 24 hours
of the expiration of deadline for filing the appeal.

Pursuant to the provisions of art. 204 par. (1) of NCPC, against the judgment issued by
justice of the peace, the defendant and the prosecutor may file an appeal, within 48 hours from the
issuance or, as the case may be, from the communication.

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Abbreviations:
NCPC New Criminal Procedure Code
NCP New Criminal Code

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