Regarding the development of judicial practice on unifying decision no. 7/2011, the Joint Colleges have established the following rules of conduct:
- Concerning the first issue, related to the court’s obligation to examine alternative measures before imposing or continuing the measure of “detention in prison”, they determine that:
“[…] the court has the obligation to genuinely examine other less restrictive measures of personal liberty and to expressly reason why they are not sufficient in the specific case. This reasoning must be explicit, individualized, and supported by specific facts and circumstances of the case, clearly reflecting the concrete risk pursuant to Article 228, paragraph 3, of the Criminal Procedure Code, as well as the necessity, appropriateness, and proportionality of the restriction of liberty, in accordance with constitutional and convention standards.”
- Concerning the second issue, related to the assessment of the dangerousness of the offense and the offender in relation to the measure of “detention in prison”, they determine:
“The imposition of the measure of detention in prison is of an exceptional nature and may be ordered only when other measures are inappropriate. In imposing the measure of detention in prison, the prosecutor initially, and subsequently the courts, are obliged to provide individualized reasoning, supported by specific facts and circumstances of the case, linking the need for this measure to the dangerousness of the offense and the offender in the specific case. This assessment must be based on the specific circumstances of the facts […]”.
- Concerning the third issue, related to the burden of justifying the need for imposing or continuing the measure of “detention in prison”, they determine:
“[…] the burden of justifying the need for the imposition and continuation of the security measure of ‘detention in prison’ lies with the prosecution, while the court has the obligation to verify and reason such necessity at every stage of the proceedings.”
