Precautionary Measures and Arrest in Criminal Law

Precautionary Measures in Legal Proceedings

To adopt a precautionary measure, which is instrumental to a main process, it must be temporary and meet three proportional requirements:

• A prima facie case (a reasonable appearance of a case).
• A risk to the effectiveness of the process (periculum in mora, or danger of delay).
• A reasoned decision for its adoption.

It must be argued that there is sufficient evidence of criminal acts and that the person against whom the measure is enacted is responsible for them. The danger of delay specifically refers to the possible disappearance of the accused; if the accused is not available, the trial could not be held.

Personal Precautionary Measures

In the course of criminal proceedings, before a firm conviction for the commission of criminal acts has been reached, all individuals are protected by the presumption of innocence. However, measures may be taken to limit or deprive a person of their right to freedom, but only in observance of constitutional provisions.

Understanding the Process of Arrest

An arrest is a personal protective measure that can be taken following the commission of a crime, even before criminal proceedings have been initiated. It involves the deprivation of a person's freedom of movement for a short period. An arrest can be carried out by the police or even by any individual as a reaction to the commission of a crime, so an arrest warrant from a judicial authority is not always required. An arrest can only last for a maximum of seventy-two hours; beyond this time, the detention becomes illegal.

Three Classes of Detention

1. Detention ordered by a competent judicial authority.
2. Detention practiced by private individuals (citizen's arrest).
3. Detention carried out by a police officer.

Any person can make an arrest in cases provided by law in two situations: when catching a person in the act of committing a crime (caught red-handed) or when a person is a fugitive or in default. This is a right of citizens and should only be exercised with sufficiently reasonable grounds to believe that the legal assumptions for detention are met.

Police custody is the most common form and is predicated on the commission of a crime and the existence of circumstances that allow responsibility to be attributed to a person, at least circumstantially. For Security Forces, detention constitutes a legal duty in the exercise of their functions.

Fundamental Rights of a Detainee

The law provides sufficient guarantees to ensure that an arrest does not impair the rights of the detainee more than is indispensable for the purposes of the detention. The primary rights include:

• The right to be informed in a clear and understandable manner about their rights.
• The right to be informed of the reasons for the arrest.
• The right to have the detention carried out in the manner least harmful to their person, reputation, and property, as required by the Code of Criminal Procedure.
• The right to be examined by a doctor.
• The right to remain silent.
• The right not to testify against oneself or to confess guilt.
• The right to counsel during police inquiries.