Izvorni znanstveni članak
https://doi.org/10.54070/hljk.28.2.3
Preceautionary Measures in Criminal Proceedings: Disputes Concerning Their Independent Nature and Duration and Other Open Issues
Marija Pleić
; Pravni fakultet Sveučilišta u Splitu, Split, Hrvatska
Tea Budimlić
; Općinski sud u Splitu, Split, Hrvatska
Sažetak
While pre-trial detention, as the most severe measure for ensuring the presence of the defendant, occupies the scientific thought of theoreticians of criminal procedural law for a reason, precautionary measures, whose application is conditioned by the existence of reasons for pre-trial detention under Art. 123 of the Criminal Procedure Act (CPA), have not been systematically addressed in Croatian scientific and professional literature so far. Certain cases from the case law in the past few years have raised the issue of the independent nature and duration of precautionary measures, and these issues were eventually materialised in the latest amendments to the CPA in 2019 by explicitly introducing independent precautionary measures which can be applied even after the longest pre-trial detention deadlines have passed with respect to the defendant. The legislator differentiated between the legal consequences in the case of non-compliance with the precautionary measures depending on whether they were determined as a substitute for pre-trial detention or as independent measures, and non-compliance with the latter is considered a separate criminal offence. Such a solution raises the issue of the appropriate and timely prevention of the risks that precautionary measures sought to eliminate. In addition, the legislator has not thoroughly addressed the issue of effectively ensuring the defendant’s presence or preventing their escape after a conviction of up to five years in prison, and some recent cases have further supported the need to find new legislative solutions.
In view of the above, in addition to the analysis of domestic case law, the authors deal with the institute of precautionary measures from a theoretical, normative and comparative aspect in order to identify the key problems in the application of precautionary measures and propose solutions to help eliminate at least some of the existing contentious issues.
Ključne riječi
criminal proceedings; pre-trial detention; precautionary measures; proportionality
Hrčak ID:
272794
URI
Datum izdavanja:
1.12.2021.
Posjeta: 3.318 *