1. Why pre‑trial detention matters in real life
Until you are actually brought in handcuffs before a judge of rights and liberties, pre‑trial detention sounds like something that happens only in “big cases” on the news. In practice, it can affect apparently ordinary people: in two or three days you can move from being a professional with a family and a job to a detainee preparing your defence from custody.
Legally, pre‑trial detention is a preventive measure that deprives a suspect or defendant of liberty, regulated in Articles 202 and 223 of the Romanian Code of Criminal Procedure and closely linked to Article 23 of the Constitution, which protects individual freedom and personal safety.
On a human level, detention means separation from family, social stigma, strong psychological pressure and, very often, a position of inferiority in relation to the authorities. It is no coincidence that the case‑law of the European Court of Human Rights (ECtHR) has repeatedly stressed that pre‑trial detention must be the exception, not the rule, and that maintaining it requires concrete reasons, not automatic formulas.
This article has a double aim: to explain, in accessible language, when pre‑trial detention can be ordered in Romania and, at the same time, to offer practical landmarks for defending your liberty when the prosecutor asks for your remand in custody.
2. What pre‑trial detention is and where it sits among preventive measures
2.1. Preventive measures in the Code of Criminal Procedure
Article 202 of the Code of Criminal Procedure lists the preventive measures that may be ordered against a suspect or defendant. Arranged from the least to the most intrusive, they are:
- detention for up to 24 hours;
- judicial supervision (control judiciar);
- judicial supervision on bail;
- house arrest;
- pre‑trial detention (remand in custody).
All these measures share the same broad purpose: to ensure the proper conduct of the criminal proceedings, to prevent flight from justice and to reduce the risk of new offences. What differs is their intensity – from restrictions on movement to full deprivation of liberty.
2.2. A short working definition of pre‑trial detention
Pre‑trial detention is the measure by which a person is deprived of liberty, for a limited period of time, on the basis of a court order, in the interests of the criminal case. It is not a punishment – there is no final conviction yet – but a provisional measure, applied while the investigation or trial is ongoing.
From a constitutional perspective, Article 23 paragraphs (4) and (5) of the Romanian Constitution provide that detention and pre‑trial arrest may be ordered only by a judge, for an initial period of up to 30 days, which can be extended under strict conditions, and that the total duration during the criminal investigation may not exceed 180 days.
It is also important to distinguish between pre‑trial detention and house arrest. Both are deprivations of liberty in the sense of the European Convention on Human Rights, but in one case the person is held in a detention centre or prison, while in the other they are confined to a specific dwelling under strict conditions and supervision.
3. The general conditions for any preventive measure (Article 202 CCP)
Article 202 sets the general framework common to all preventive measures. Three ideas are worth remembering:
- there must be evidence or sound indications leading to a reasonable suspicion that the person committed an offence;
- the measure must be necessary for the proper conduct of the proceedings, to prevent flight or the commission of new offences;
- the measure must be proportionate to the seriousness of the accusation and to the purpose pursued – in principle, the authorities must choose the least intrusive measure capable of achieving that purpose.
In plainer words: it is not enough for someone to be vaguely “suspected”. The prosecution and the judge must explain why judicial supervision or house arrest would not be sufficient and why it is strictly necessary to place the person behind bars pending trial.
4. When pre‑trial detention can be ordered: scenarios under Article 223 CCP
4.1. Who can order pre‑trial detention
Neither the police nor the prosecutor can, on their own, order your remand in custody. Pre‑trial detention is ordered exclusively by a judge of rights and liberties (during the investigation), by the judge of the preliminary chamber or by the trial court (once the case reaches trial).
In practice, the prosecutor prepares a detailed proposal setting out the evidence collected, the legal classification and the arguments for which pre‑trial detention is, in their view, necessary. That proposal is then examined by the judge at a public hearing.
4.2. The basic prerequisite: reasonable suspicion
The first condition for any remand in custody is the existence of a reasonable suspicion that the defendant has committed an offence. This is more than a hunch or intuition: it is a level of evidence that would convince an objective observer that there is a real link between the person and the alleged crime.
In practice, reasonable suspicion is constructed from witness statements, audio or video recordings, intercepted communications, documents, forensic reports and so on. Very often, a careful analysis of these items is the terrain on which the fate of a detention request is decided.
4.3. The specific grounds listed in Article 223
Beyond reasonable suspicion, the judge must find that at least one of the specific grounds listed in Article 223 is present. The provision is technical, but it essentially looks at three clusters of risk:
- risk of absconding (flight or hiding);
- risk of obstructing the investigation or influencing participants;
- risk of reoffending or posing an actual danger to public order.
4.3.1. Risk of absconding
Pre‑trial detention can be ordered if the defendant has fled, gone into hiding, changed address without notifying the authorities, or has made concrete preparations to leave the country or to evade justice – buying tickets, selling assets quickly, sending messages about plans to “disappear” and similar behaviour.
4.3.2. Risk of tampering with evidence or witnesses
Another typical scenario is where the defendant attempts to influence witnesses, destroy documents or conceal assets that could serve as evidence. Phone messages, recorded conversations, threats, promises of money or favours – all these may support the ground of interference with the course of justice.
4.3.3. Risk of reoffending or danger to public order
If there are indications that, if left at liberty, the defendant would commit other offences, pre‑trial detention may be used to protect society. This ground is often invoked in cases involving repeated violence, domestic abuse, drug trafficking, organised crime or defendants with a heavy criminal record.
Article 223 paragraph (2) also lists certain serious offences – such as corruption, drug trafficking, human trafficking or terrorism – for which pre‑trial detention is far more readily used in practice. Even then, the judge must still give specific reasons why a milder measure would not counter the risks.
5. From 24‑hour police custody to pre‑trial detention: what usually happens
In many cases, remand in custody does not come “out of the blue”. It is preceded by 24‑hour police detention. The path often looks like this:
- the person is brought in for questioning and informed that they are a suspect;
- the investigating authority orders 24‑hour detention;
- during these hours, additional evidence is collected – searches, witness hearings, confrontations;
- the prosecutor decides whether to submit a proposal for pre‑trial detention;
- if yes, the file is sent to the judge of rights and liberties, who schedules a hearing the same or next day.
The critical window for the defence is exactly these 24 hours. This is when a coherent strategy can be built against detention: documents proving strong ties to the country (employment contract, property deeds, family situation), medical certificates, proof of care duties towards children or vulnerable relatives, letters from employers, and a concrete plan for complying with an alternative measure such as judicial supervision or house arrest.
6. Inside the detention hearing: what actually happens in court
For someone entering a courtroom for the first time, the detention hearing can feel like a formal ritual. In reality, each step has practical consequences. Typically, the sequence is as follows:
- the judge verifies the lawfulness of the referral and of the acts in the file;
- the prosecutor summarises the evidence, supports the legal classification and explains the risks invoked;
- the defendant is heard in the presence of their lawyer – they may choose to speak or to remain silent;
- the defence lawyer presents arguments for release or for a less intrusive measure;
- the judge deliberates and issues a reasoned decision – granting, rejecting or replacing the requested measure.
A key point often overlooked is that the judge does not assess only the gravity of the offence. They also look at the defendant’s personal circumstances: family, employment, education, health, criminal record, behaviour during the investigation and willingness to comply with court orders.
In practice, an effective defence is rarely just “I am innocent”. It is also: “even assuming there are suspicions, there are milder measures that will still guarantee the proper conduct of the case.”
7. How long can pre‑trial detention last and how is it extended?
The duration of pre‑trial detention is one of the most sensitive aspects of the system, both domestically and in Strasbourg case‑law. Romanian law and the Constitution set several clear limits:
- the initial detention warrant during the investigation may not exceed 30 days;
- extensions are also ordered for periods of up to 30 days each;
- the total duration of pre‑trial detention during the criminal investigation may not exceed 180 days;
- during trial at first instance, pre‑trial detention cannot exceed half of the maximum sentence provided by law for the offence, and in any event no more than 5 years.
Each extension requires a new hearing, with the defendant and their lawyer present. The judge must examine not just whether there is still investigative work to be done, but whether the original reasons for detention remain valid and whether new reasons have arisen or disappeared.
In other words, the extension of detention is not automatic. The mere complexity of the case or the volume of evidence still to be gathered is not enough. Courts must identify specific, up‑to‑date risks – flight, pressure on witnesses, danger of reoffending – and explain why these risks cannot be managed with a less severe measure.
8. What the European Court of Human Rights says about pre‑trial detention
The ECtHR has produced extensive case‑law on pre‑trial detention under Article 5 of the European Convention on Human Rights. A landmark judgment is Buzadji v. the Republic of Moldova (Grand Chamber, 2016), which summarises the principles applicable across all member states.
In essence, the Court held that a reasonable suspicion that the person has committed an offence may justify detention only for a relatively short time. For continued detention, the authorities must provide “relevant and sufficient reasons” such as concrete risks of absconding, interfering with the investigation, committing new offences or causing serious public disorder.
The ECtHR has repeatedly criticised stereotyped formulas like “the seriousness of the offence justifies continued detention” or “public opinion would be outraged if the defendant were released”, when these are not backed up by specific facts related to the person and the progress of the case.
From a defence perspective, these principles can be turned into practical tools:
- asking the court to identify explicitly which specific risk is relied on;
- pointing out the lack of new elements since the previous detention decision;
- arguing that judicial supervision or house arrest would neutralise the same risk;
- invoking the overall length of detention already served and its disproportionate impact on the defendant’s private and family life.
9. Practical checklist: preparing for a detention hearing
The outcome of a detention request depends not only on what is in the prosecutor’s file but also on how you and your defence present your situation. A short checklist for defendants and their families:
- Contact a criminal defence lawyer as early as possible and share all relevant facts, even the uncomfortable ones.
- Gather documents showing stability: employment contracts, payslips, property deeds, rental contracts.
- Prepare evidence of family responsibilities: birth certificates of children, proof of maintenance obligations, medical records of dependants.
- If possible, obtain written references from employers or community members about your conduct and reliability.
- Work with your lawyer on a concrete plan for complying with alternative measures (for example, staying at a fixed address, reporting regularly to the police).
- Avoid discussing the case with witnesses or on social media – such behaviour can be interpreted as pressure or lack of remorse.
The goal is to help the judge picture you as a person anchored in a community, not as a name in a file.
10. Frequent myths about pre‑trial detention
“If the prosecutor asks for detention, the judge will automatically grant it”
While statistics show that many detention proposals are indeed admitted, there is no automatic rule. Courts do reject proposals where the evidence is weak, the risks are speculative or milder measures have not been seriously considered. Over time, ECtHR scrutiny and internal judicial review have increased pressure on judges to provide robust, individualised reasoning.
“If you have a criminal record, you have no chance of being released”
A prior criminal record is an important factor, but not a decisive one in isolation. Judges also look at the type and age of previous offences, the efforts at reintegration, current employment, family support and behaviour since the previous conviction. There are many cases where defendants with a record have been left at liberty under judicial supervision because the overall picture showed a low risk of reoffending.
“Being remanded means the judge already thinks you are guilty”
No. Pre‑trial detention is not a finding of guilt, and the presumption of innocence applies throughout the proceedings. That said, the psychological and practical impact of detention is undeniable: it may affect how the defendant feels, how they communicate with their lawyer and how the public perceives the case. Precisely for this reason, courts are required to reserve detention for situations where it is genuinely necessary.
11. How pre‑trial detention can be replaced by a milder measure
Under Article 242 of the Code of Criminal Procedure, preventive measures are not set in stone. If the grounds that justified detention have disappeared or no longer warrant the same intensity, the court can revoke detention or replace it with house arrest or judicial supervision.
In practice, requests for replacement rely on factors such as:
- significant changes in personal circumstances (serious illness, birth of a child, loss of income for the family);
- the fact that the main evidence has already been gathered and there is little risk of tampering;
- the defendant’s good behaviour while in detention, without attempts to escape or influence witnesses;
- the time already spent in custody, viewed in relation to the likely sentence in case of conviction.
The lawyer’s role is to weave these elements into a coherent, well‑documented narrative, rather than a simple plea of “please let me go home”. Supporting documents and a concrete proposal for an alternative measure often make the difference.
12. What family members and close friends can realistically do
Families are often caught between emotional shock and a flood of unfamiliar procedures. Some practical directions:
- Agree on a single contact person who will liaise with the lawyer and the detained person.
- Collect and organise all relevant documents in one place and provide copies to the lawyer.
- Avoid discussing the details of the case over monitored phone calls or in letters that may be seized.
- If there are medical issues, ensure recent medical records are available and notified to the detention facility.
- Support, but do not pressure, the defendant in decisions about whether to speak or remain silent during questioning.
13. Final thoughts and important disclaimer
Pre‑trial detention is one of the most intrusive powers the state can exercise over an individual. This is why the Constitution, the Code of Criminal Procedure and the European Convention on Human Rights surround it with safeguards: reasonable suspicion, necessity, proportionality, limited duration, periodic review and the possibility of replacement or revocation.
For someone targeted by a detention request, the difference between a night in a police cell and 30–60 days in custody can mean losing a job, the breakdown of a family and a long‑lasting stigma. Acting quickly, documenting your situation thoroughly and coordinating closely with a lawyer from the very first hours of the investigation are therefore crucial.
This article is for information only and does not constitute legal advice. Criminal procedure rules and case‑law can change, and each case has its own particularities. If you are directly or indirectly involved in a pre‑trial detention request, you should consult a criminal defence lawyer as soon as possible for an individual assessment and a tailored defence strategy.
14. Sources and further reading
Romanian Code of Criminal Procedure – Title V “Preventive measures and other procedural measures” – Lege5.ro (Romanian).
Article 202 CCP – purpose and general conditions of preventive measures – legeaz.net (Romanian).
Article 223 CCP – conditions and grounds for pre‑trial detention – legeaz.net (Romanian).
Articles 233–239 CCP – duration and extension of pre‑trial detention – Lege5.ro (Romanian).
Romanian Constitution – Article 23 (individual freedom and pre‑trial detention) – consolidated text (Romanian).
ECtHR, Buzadji v. the Republic of Moldova (Grand Chamber, 5 July 2016) – HUDOC database.
Academic articles on pre‑trial detention in Romanian law – Revista Pro Lege and Universul Juridic.