Precautionary Measures in Criminal Proceedings
ITEM XX. Precautionary Measures
1. Concept of Precautionary Measures
Decisions on freedom of movement or the estate of a person accused of a serious criminal offense are generally agreed upon by the court. Police detention is also a precautionary measure.
Its rationale lies in mitigating the possible consequences of the criminal offense and ensuring the future implementation of a possible conviction. In the case of police custody, the goal is to ensure the alleged perpetrator is brought to justice.
2. Requirements of Precautionary Measures
Prima Facie Case: Requires an indication that the crime in question has been committed by the person concerned. Mere suspicion is not enough; there must be a minimal rational basis.
Periculum in Mora: Represents the danger that delay can cause. The main risk pertains to the defendant or their estate. Many factors must be considered, including the seriousness of the offense, family status, and economic situation.
3. Characteristics of Precautionary Measures
Jurisdiction: Judicial intervention is required, typically within open proceedings, or exceptionally in private. In addition to the courts, the law authorizes police custody as a provisional detention, subject to later judicial confirmation.
Instrumental: Their purpose is to facilitate the court’s decision in a process. An injunction is not autonomous or independent; it is tied to the process. Consequently, the injunction is subject to the survival of the process; when the process is completed, the injunction also ends.
Provisional: By definition, precautionary measures are not definitive. They are agreed upon to secure the defendant or their estate. As soon as this need disappears, the measure loses its justification.
4. The Arrest
The arrest is the first precautionary measure that can be taken against a person, even before criminal proceedings have been opened. It usually occurs very close in time to the start of proceedings.
It is a short-duration measure that limits a person’s freedom of movement and requires serious justification within the criminal justice system.
5. Deprivation of Liberty
This consists of the restriction or limitation of a person’s freedom of movement (freedom of movement or ambulatory freedom), an inalienable fundamental right of every citizen.
6. Habeas Corpus Procedure
Except when initiated officially, the process begins with a written request or appearance, without mandatory legal representation.
The letter or appearance should contain:
- Name and personal circumstances of the applicant and the detainee.
- Location of the detainee, the detaining authority, and other relevant circumstances.
- Specific reason for the request.
Authorities are obliged to immediately inform the competent court of the request. The judge will review the conditions and, if necessary, deny the request. The judge will order the detaining authority to present the detainee. Before issuing a decision, the court will hear the detainee, their lawyer, the prosecutor, and the detaining authority. The judge must act and issue a resolution within 24 hours.
ISSUE XXI. Bond and Seizure
Bond and seizure aim to secure the defendant’s assets to ensure financial responsibilities declared in the criminal process, affecting real or personal property. These responsibilities can arise from both the prosecution of the crime and the civil action arising from it. They can also be against the assets of a third-party guarantor.
1. Bond
When there is evidence of criminality, the judge may order the payment of bail to secure potential financial responsibilities. If bail is not suitable, it may be denied.
2. Seizure
If sufficient security is not provided within a day of the order, the assets of the accused may be frozen.
3. Modification of the Injunction
If, during the process, there are sufficient grounds to believe that the financial responsibilities will exceed the set amount, the bond or attachment may be increased. Conversely, if the amount is higher than what will be imposed, it can be reduced.
4. Injunction on Motor Vehicles
In summary proceedings, immediate intervention of the vehicle is possible when necessary for investigation or to secure financial responsibilities if the defendant’s solvency is not accredited.
ISSUE XXII. Prison Supervision
1. Functions of the Prison Supervision Judge
The Prison Supervision Judge oversees the execution of custodial sentences and security measures, reviews disciplinary actions, protects inmate rights, and performs other duties as indicated by law. These include:
- Ensuring custodial sentences are carried out.
- Deciding on parole.
- Approving prison privileges.
- Approving solitary confinement exceeding 14 days.
- Resolving prisoner appeals on disciplinary actions.
- Resolving grade progression and regression appeals.
- Deciding on inmate requests and complaints regarding fundamental rights and prison privileges.
- Visiting prisons.
- Authorizing exit permits exceeding 2 days.
- Managing transfers of inmates.
2. Requirements for Suspension of Imprisonment
- The convicted person is a first-time offender (excluding reckless crimes or canceled records).
- The sentence does not exceed two years (excluding non-payment of fines).
- Civil liabilities have been met.
3. Requirements for Replacement of Custodial Sentences
- Imprisonment does not exceed one year (replaceable by fine or community work).
- Imprisonment does not exceed six months (replaceable by permanent location).
- The offender is not a habitual criminal.
- Each prison day is replaced by two fine installments, one work day, or one day of permanent location.
- Penalties cannot be replaced by other substitutes.
4. Probation
Probation grants freedom before the full sentence is served, based on the understanding that the primary purpose of imprisonment has been achieved and the prisoner’s social reintegration is progressing. The court may impose obligations similar to those in suspended sentences.
5. Forgiveness of the Offended
Forgiveness by the offended party can extinguish criminal liability when provided by law. It must be explicit, given before sentencing, and the judge must hear the victim. In crimes against minors or incapacitated persons, the court may reject the forgiveness after hearing the prosecutor and the minor’s representative. This applies to crimes like revealing secrets, defamation, negligence causing damages over eighty thousand euros, and offenses prosecuted at the request of the aggrieved party. In mixed persecution crimes (e.g., assault, harassment, sexual abuse), forgiveness is possible but requires the victim’s complaint and prosecutor intervention.
ISSUE XXIII. Sentence Execution and Other Matters
1. Execution of Custodial Sentences
Custodial sentences aim for reeducation and social rehabilitation and cannot involve forced labor. Sentenced individuals retain fundamental rights, except those limited by the conviction, and are entitled to paid work, social security, access to culture, and personal development.
2. Disqualifications
Disqualifications include prison, permanent location, and personal responsibility for unpaid fines. For sentences exceeding five years, classification to the third degree may be delayed until half the sentence is served, except for terrorism, armed gangs, and child sexual assault. Provisional detention time is deducted from the sentence. Permanent location lasts up to six months, requiring the convicted person to remain at home or a specified place, with weekends and holidays in prison. Electronic monitoring may be used.
3. Implementation of Security Measures
Security measures can be custodial (detention) or non-custodial (disqualification, probation, etc.). The judge can maintain, cease, replace, or suspend the measure. For custodial measures, the judge annually reviews the measure. For non-custodial measures, the court receives reports on the convicted person. Breach of internment can lead to reinstatement or replacement with internment.
4. Confiscation
Confiscation is an accessory penalty that deprives the convicted person of the instruments and proceeds of the crime. Confiscated property can be sold before sentencing if abandoned or if its conservation is dangerous.
5. Implementation of Civil Content of the Sentence
The LEC applies to the execution of sentences regarding damage repair and compensation. If marital assets are insufficient, payment can be split. Payments by the prisoner are applied to damage repair, state compensation, private prosecutor costs, other costs, and then fines. Payments for drug-related offenses follow a different order.