House Arrest as a Custodial Preventive Measure. Conceptual Clarifications, Legal Framework and Relevant Jurisprudence

Abstract

House arrest constitutes one of the most significant custodial preventive measures, alongside pre-trial detention, being regulated under Romanian criminal procedure law as a less intrusive yet effective alternative, aligned with the needs of the criminal process. The present article aims to examine the legal framework governing this measure within the national legislation, with a focus on the applicable conditions, duration, jurisdiction, and procedural requirements, in light of the Code of Criminal Procedure (Law No. 135/2010) and Law No. 146/2021 on electronic monitoring.

Following an overview of the general conditions for ordering house arrest and the obligations that may be imposed on the defendant, the article highlights interpretative and practical challenges arising from the inconsistent application of the legal provisions—particularly regarding the notion of “domicile,” the required evidentiary standard, and the drafting of supplementary obligations. The issue of effective monitoring is also addressed, drawing attention to the lack of adequate technical equipment and human resources, as well as the absence of clear legal criteria for proportionate sanctions in cases of non-compliance. Law No. 146/2021 is examined as a complementary normative act, aimed at enabling electronic surveillance in cases of house arrest, as well as other measures (judicial supervision, protection orders, etc.), with an emphasis on its limitations in scope and the necessity for its gradual expansion.

The article is grounded in legal provisions, relevant case law of national courts, including the High Court of Cassation and Justice, as well as in the analysis of judicial practice conducted by the National Institute of Magistracy. The conclusions underline the need to improve the normative and institutional framework in order to ensure a coherent, effective, and rights-compliant application of the measure, with full respect for the fundamental rights of the individual.