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Non-custodial preventive measures in Romania: judicial control and judicial control on bail – rights, duties, breaches

This article explains the legal conditions for non-custodial preventive measures, how restrictions are tailored and how long they can last. It also shows how to request changes, what risks arise from breaches and how a defence lawyer can keep your freedom while the case is pending.

1. Why judicial control and judicial control on bail matter

Judicial control (control judiciar) and judicial control on bail (control judiciar pe cauțiune) are preventive measures through which the state restricts your freedom of movement and certain rights, without actually placing you in custody. You are investigated or tried at liberty, but under very strict rules. Breaching these rules may quickly lead to house arrest or pre-trial detention.

The Romanian Code of Criminal Procedure lists preventive measures in Article 202: detention, judicial control, judicial control on bail, house arrest and pre-trial detention. Their common purpose is to ensure the proper conduct of the criminal proceedings, to prevent the suspect or defendant from absconding and to prevent the commission of new offences. The full consolidated text of the Code of Criminal Procedure can be consulted (in Romanian) on the official legislative portal: https://legislatie.just.ro/Public/DetaliiDocument/185907 .

Judicial control and judicial control on bail are, in theory, milder alternatives to pre-trial detention. In practice, for a defendant with a family, a job, a driving licence or a business, their impact on everyday life can be very serious.

For a broader overview of the more severe measures (pre-trial detention and house arrest), you can also read the Romanian article “Arestul preventiv – cum pot fi arestat preventiv?” on maglas.ro.

2. Legal framework: where these measures are regulated

The relevant provisions are found in the Romanian Code of Criminal Procedure, Title V – “Preventive measures and other procedural measures”, Chapter I – “Preventive measures”:

  • Article 202 – general provisions on preventive measures;
  • Articles 211–2151 – judicial control;
  • Articles 216–217 – judicial control on bail.

The consolidated text of the Code is available (in Romanian) on the official legislative portal of the Ministry of Justice: https://legislatie.just.ro/Public/DetaliiDocument/185907 , and the basic form of the Code of Criminal Procedure, as Law no. 135/2010, is here: https://legislatie.just.ro/Public/DetaliiDocumentAfis/120609 .

3. What is judicial control? A plain-language definition

Judicial control is a preventive measure by which the prosecutor, the judge of rights and liberties, the preliminary chamber judge or the trial court restrict your freedom, without depriving you of it entirely. You remain at liberty, but must comply with a list of obligations, under police supervision, for as long as the criminal proceedings last.

Under Article 211 of the Code of Criminal Procedure, during the criminal investigation the prosecutor may order judicial control against the defendant if the measure is necessary for achieving the purpose set out in Article 202 paragraph (1), and in the subsequent phases (preliminary chamber and trial), the measure may be ordered by the judge or the court.

In short, if you are under judicial control:

  • you are not completely free, but “free with conditions”;
  • you have to report regularly to the police;
  • you cannot go wherever and whenever you want if there are territorial or contact bans;
  • any bad-faith breach of obligations can lead to harsher measures (house arrest or pre-trial detention).

4. What is judicial control on bail and how is it different?

Judicial control on bail is a “stricter” version of judicial control: on top of the usual obligations, you must deposit a sum of money (bail) or provide a real guarantee (for example, a mortgage) in favour of the judicial authority.

Article 216 of the Code of Criminal Procedure provides that the prosecutor or the court may order judicial control on bail if:

  • the conditions of Article 223 paragraphs (1)–(2) (conditions for pre-trial detention) are met, including reasonable suspicion and the seriousness of the alleged offence;
  • judicial control on bail is sufficient to achieve the purpose set out in Article 202 paragraph (1);
  • the defendant deposits bail in the amount set by the judicial authority.

Article 217 states that bail is deposited in the name of the defendant by paying a sum of money or by creating a real guarantee over movable or immovable property, up to a certain amount. The minimum bail is 1,000 lei, and the court sets the amount having regard to the seriousness of the accusation and the defendant’s financial situation.

The main practical difference compared to “simple” judicial control is:

  • judicial control: only obligations (reporting, restrictions, supervision);
  • judicial control on bail: the same obligations + a sum of money frozen as a guarantee; in case of serious breaches, bail may be wholly or partially forfeited, in addition to replacing judicial control with a more severe measure (house arrest/pre-trial detention).

5. Conditions for ordering judicial control

5.1. General conditions (Articles 202 and 211 of the Code of Criminal Procedure)

Article 202 sets three main filters for any preventive measure:

  1. Reasonable suspicion that an offence has been committed – based on evidence or strong indications.
  2. Necessity of the measure for one of the following purposes:
    • proper conduct of the criminal proceedings; or
    • preventing the suspect/defendant from absconding; or
    • preventing the commission of another offence.
  3. Proportionality – the measure must be proportionate to the seriousness of the accusation and the purpose pursued, and the court should normally choose the least intrusive measure possible (for example, judicial control instead of pre-trial detention, if sufficient).

Article 211 builds on these principles and essentially states that the prosecutor or the court may order judicial control when the measure is necessary to achieve the purpose laid down in Article 202 paragraph (1).

5.2. Which authority can order the measure?

  • during the criminal investigation: the prosecutor (by ordinance);
  • during the preliminary chamber phase: the preliminary chamber judge (by interlocutory ruling);
  • during the trial: the court (by interlocutory ruling).

In all cases, the assistance of a lawyer is mandatory, and the defendant must be heard or at least given the opportunity to state his or her position on the measure, in line with Article 213 and the case-law of the Constitutional Court on the right of defence.

5.3. Duration of judicial control (Article 2151)

Article 2151 regulates the duration of judicial control:

  • during the criminal investigation:
    • the measure is initially ordered for up to 60 days and may be extended, each extension not exceeding 60 days;
    • the overall duration may not exceed:
      • 1 year, if the offence is punishable by a fine or imprisonment of up to 5 years;
      • 2 years, if the offence is punishable by more than 5 years of imprisonment or life imprisonment.
  • during the preliminary chamber and trial: the measure may also be ordered for up to 60 days at a time, with reasoned extensions, in line with the general rules on preventive measures.

In Decision no. 614/2016, the Romanian Constitutional Court held that Article 2151 paragraph (2) is constitutional insofar as the extension of judicial control respects the guarantees in Article 212 of the Code, including the right to defence and the possibility to challenge prolongation before a judge.

6. Obligations under judicial control (Article 215)

Article 215 of the Code of Criminal Procedure lists two categories of obligations:

  • mandatory obligations (which always apply);
  • optional/additional obligations (which may be imposed depending on the case).

6.1. Mandatory obligations

While under judicial control, the defendant must:

  • appear before the criminal investigation body, the preliminary chamber judge or the court whenever summoned;
  • immediately inform the judicial authority that ordered the measure or before which the case is pending about any change of residence;
  • report to the police authority designated for supervision, according to the schedule set by that authority or whenever summoned.

6.2. Additional obligations that may be imposed

In addition, the judicial authority may impose one or more obligations, such as:

  • not to leave a certain territorial area (locality, county, country) without permission;
  • not to go to certain places or to go only to certain places;
  • to permanently wear an electronic monitoring device (ankle bracelet);
  • not to return to the family home or not to approach the victim, members of the victim’s family, other participants, witnesses, experts or other specified persons, and not to communicate with them;
  • not to exercise the profession/occupation or activity in the exercise of which the offence is alleged to have been committed;
  • to provide periodic information on his or her means of subsistence;
  • to comply with certain treatment, care or medical supervision measures (for example, detoxification programmes);
  • not to attend sports events, cultural events or other public gatherings;
  • not to drive certain vehicles;
  • not to possess, use or carry weapons;
  • not to issue cheques.

All these obligations are listed in Article 215 paragraph (2) of the Code, and their interpretation has also been analysed in the case-law of the High Court of Cassation and Justice, including in decisions aimed at harmonising judicial practice on preventive measures.

6.3. Examples from practice

According to internal methodological rules of the Romanian Police on supervising persons under judicial control, the police must:

  • set the schedule for reporting, frequency and means of communication;
  • ensure that the person reports at least once a week, as a rule;
  • take into account, as far as possible, the professional activity of the person under supervision when setting the schedule.

In the public press releases of the National Anticorruption Directorate (DNA) one can often see examples of obligations such as:

  • a ban on leaving Romania without the prosecutor’s approval;
  • prohibitions on approaching or communicating with witnesses;
  • a ban on possessing weapons.

7. Judicial control and the driving licence – what the High Court decided

A very practical question is the following: if you are ordered not to drive certain vehicles, is this equivalent to having your driving licence suspended? And if you keep driving, do you commit the offence of driving with a suspended licence, under Article 335 paragraph (2) of the Criminal Code?

The High Court of Cassation and Justice clarified this issue in Decision no. 18/2019 , holding that:

  • the obligation imposed under Article 215 paragraph (2) letter i) (“not to drive certain vehicles”) does NOT constitute a suspension of the right to drive within the meaning of Article 335 paragraph (2) of the Criminal Code;
  • a breach of this obligation does not meet the legal elements of the offence of driving a vehicle with a suspended driving licence;
  • the sanction remains procedural in nature (replacement with a more severe preventive measure), not a separate criminal offence.

Nevertheless, this does not mean that breaching the obligation is “without consequences”: on the contrary, the risk of ending up under house arrest or in pre-trial detention is very high.

8. Judicial control and the criminal record certificate

Another frequent question is: “Will judicial control appear on my criminal record certificate?”

Law no. 290/2004 on the criminal record provides, in Articles 11 and following, that persons against whom criminal proceedings have been initiated or against whom a preventive measure has been ordered (including judicial control) are recorded temporarily in the criminal record system. However, these entries are temporary and are deleted once the case is finally disposed of.

Articles 17–18 of the same law state that the criminal record certificate issued on request lists the criminal sanctions resulting from final court decisions (convictions, certain decisions on waiver or postponement of the penalty, etc.), not the mere imposition of a preventive measure.

In practice, this means that:

  • judicial control may appear in the internal criminal record databases, as a temporary entry;
  • as a rule, it does not appear on the criminal record certificate issued at your request, which focuses on final convictions and other final sanctions.

9. What happens if you breach your obligations (Article 215 paragraphs 3 and 7)

Article 215 paragraphs (3) and (7) expressly require that, in the order or court ruling by which judicial control is ordered, the defendant must be warned that if he or she breaches the obligations in bad faith, judicial control may be replaced by house arrest or pre-trial detention.

The practical steps usually are:

  1. Notification of the judicial authority – the police or the prosecutor alerts the judge or prosecutor that you have not complied with your obligations (for example, you did not report to the police, you contacted witnesses, you left the country without authorisation).
  2. Hearing – you will normally be summoned and heard to explain what happened (justified absence, medical issues, urgent family problems, etc.).
  3. Decision – the judicial authority may:
    • issue a warning (for minor and isolated breaches, with good reasons);
    • maintain judicial control with the same obligations, possibly adding new ones;
    • replace judicial control with a more severe measure (house arrest or pre-trial detention) if it considers that you acted in bad faith and can no longer be trusted at liberty.

In addition, in the case of judicial control on bail, breaching obligations may also lead to:

  • partial or total forfeiture of the bail;
  • maintenance or replacement of the measure, depending on the seriousness of the breach.

10. Remedies against judicial control

10.1. Complaint against the prosecutor’s ordinance

If the measure was ordered by the prosecutor (during the criminal investigation), you have the right to file a complaint to the judge of rights and liberties of the court competent to try the case on the merits, under Article 213 of the Code of Criminal Procedure. This mechanism applies both to the initial ordering of the measure and to its extensions, by reference to Article 2151.

10.2. Challenge against court rulings

If the measure was ordered by the judge of rights and liberties, the preliminary chamber judge or the trial court, the remedy is, in principle, a challenge (contestație), within the time-limits and conditions laid down for preventive measures (Articles 204–206 of the Code).

In practice, it is essential to check:

  • the time-limit (typically 48 hours from notification or pronouncement, depending on the applicable text);
  • the competent court (usually the higher court or the relevant section, depending on the procedural phase);
  • whether or not the challenge has suspensive effect (as a rule, judicial control remains in force until the challenge is decided).

10.3. Other extraordinary mechanisms and constitutional review

In some situations, the following may be relevant:

  • remedy in the interest of the law (recurs în interesul legii) – lodged only by the Prosecutor General, to harmonise case-law; it is not an individual remedy, but may change the general interpretation of legal provisions (as happened with Decision no. 18/2019 of the High Court on Article 215 paragraph (8));
  • constitutional review – by raising an exception of unconstitutionality of certain provisions of the Code of Criminal Procedure before the Constitutional Court, which has already examined Articles 211–217 and clarified their compatibility with the Constitution.

11. The lawyer’s role in judicial control proceedings

In practice, the difference between a “bearable” judicial control and one that blocks your life (job, business, family) often depends on how the defence strategy is built.

11.1. At the time the measure is ordered

The defence lawyer can:

  • argue that the conditions laid down in Articles 202 and 211 are not met (for example, no reasonable suspicion or no real need for a preventive measure);
  • propose a milder measure (judicial control instead of house arrest or pre-trial detention), with concrete commitments about your future conduct;
  • negotiate, within the limits of the law, the list of obligations (for example, maintaining the right to go to work, the possibility to travel for specific purposes, adapting the reporting schedule to the police).

11.2. At the stage of extensions and amendments

When the prosecution or the court seeks to extend judicial control, the lawyer can:

  • show that the initial reasons have weakened (you have strictly complied with obligations, evidence has been collected, the risk of absconding is minimal);
  • request revocation of the measure or replacement with a milder one (for example, from judicial control on bail to simple judicial control, or even complete revocation);
  • ask for changes to the obligations (for example, lifting the travel ban for a short period, with the court’s approval).

11.3. In case of breaches and risk of detention

If you have already breached your obligations, the lawyer is essential in order to:

  • document and prove that there was no bad faith (medical situations, confusion about the schedule, urgent family issues, etc.);
  • persuade the court that a warning or an adjustment of obligations is sufficient and that house arrest or pre-trial detention is not necessary;
  • prepare, if needed, the defence strategy for a possible pre-trial detention hearing, with arguments to minimise its duration and to seek its revocation at the earliest opportunity.

For an overview of how a specialised criminal defence practice can assist in such situations, you can consult (in Romanian) the dedicated criminal law services page of Măglaș Alexandru – Attorney-at-law: servicii avocat drept penal .

12. Connection with house arrest and pre-trial detention

Judicial control and judicial control on bail are placed, in terms of intensity, below house arrest and pre-trial detention in the system of preventive measures. Article 242 of the Code of Criminal Procedure, on termination, revocation and replacement of preventive measures, allows:

  • replacement of a milder measure with a more severe one (for example, from judicial control to house arrest/pre-trial detention) if new reasons arise or if you breach your obligations in bad faith;
  • replacement of a more severe measure with a milder one (for example, from pre-trial detention to judicial control) if the reasons for detention have diminished.

This is why, in many criminal cases:

  • the defence seeks to have pre-trial detention replaced by judicial control;
  • the prosecution seeks to have judicial control replaced by pre-trial detention when it considers that the defendant has not respected obligations and poses a higher risk.

For more details on the criteria for pre-trial detention and how preventive measures may be combined or replaced, you can read the Romanian article “Arestul preventiv – cum pot fi arestat preventiv?” .

13. Frequently Asked Questions (FAQ)

1) Can I go to work if I am under judicial control?

In principle, yes, if the order or court ruling does not expressly prohibit you from exercising your profession or occupation and if the territorial limits set do not make it impossible to get to work. Article 215 paragraph (2) letter e) of the Code allows the judicial authority to prohibit the exercise of the profession in which the offence is alleged to have been committed. If such an obligation does not appear in the ordinance or ruling, you may work, while strictly complying with all other obligations (reporting to the police, schedule, etc.).

2) Can I travel abroad while under judicial control?

Only if the act imposing judicial control allows it and if you obtain prior authorisation from the judicial authority where there is an obligation not to leave a certain territorial area (for example, “not to leave Romania without the court’s permission”). Article 215 paragraph (2) letter a) expressly provides for this type of obligation.

3) Can I drive a car if I have the obligation “not to drive certain vehicles”?

If the order or ruling specifies the type of vehicle or category of vehicles you are prohibited from driving, a breach may lead to the replacement of judicial control with a more severe measure. However, according to Decision no. 18/2019 of the High Court of Cassation and Justice, this does not, in itself, constitute the criminal offence of driving with a suspended licence (Article 335 paragraph (2) of the Criminal Code).

4) What is the maximum duration of judicial control?

During the criminal investigation, the total duration may not exceed 1 year (for offences punishable by a fine or imprisonment of up to 5 years) or 2 years (for more serious offences), under Article 2151 paragraph (6). During the trial, specific rules apply, but each extension must be reasoned and periodically reviewed by the court.

5) Will judicial control appear on my criminal record certificate?

Law no. 290/2004 provides that preventive measures are recorded temporarily in the internal criminal record system until the final disposal of the case, but, as a rule, they are not mentioned as such in the criminal record certificate issued to the person, which focuses on final criminal sanctions.

6) Can I request revocation or replacement of judicial control?

Yes. You may request revocation or replacement of the measure at any stage of the proceedings if the reasons that justified it no longer exist or if new circumstances have arisen, under Article 242 of the Code.

7) If I breach an obligation, will I automatically be placed in pre-trial detention?

Not automatically, but the risk is real. The judicial authority will assess the seriousness of the breach and decide whether a warning or an adjustment of obligations is sufficient, or whether house arrest or pre-trial detention is necessary, in accordance with Article 215 paragraph (7). It is crucial to be assisted by a lawyer and to present evidence showing that you did not act in bad faith.

8) Does judicial control mean that I have already been convicted?

No. Judicial control is a preventive procedural measure, not a criminal penalty. It is applied before any final judgment, precisely in order to allow the criminal proceedings to take place properly. A conviction appears only if, at the end of the proceedings, a court issues a final decision finding you guilty.