It is often observed that the public confuses detention imposed as a security measure with the deprivation of liberty resulting from a final criminal sentence.

Pre-trial detention is a temporary measure ordered by the court at the request of the prosecutor (whether or not the person is caught in flagrante delicto) when the case is still under investigation. In such cases, the court examines certain legal criteria:

· If the collection of new evidence is at risk;

· If the person suspected of committing the criminal offense, for whom the security measure is requested, has fled or is at risk of fleeing justice;

· If the person against whom the measure is requested poses a risk of committing another crime of the same or greater gravity.

It should be noted that detention should not be ordered if another, less severe security measure provided by the Code of Criminal Procedure can be applied. Beyond these mandatory legal criteria, the court also considers additional elements such as: the nature of the offense, the circumstances under which it is believed to have been committed, the social danger of the act, the social danger of the defendant, prior convictions, and their nature, among others.

In these circumstances, the court orders the suspect to remain in pre-trial detention for a determined period or until a judgment of conviction, acquittal, or dismissal is delivered. During this time, the prosecutor continues the investigation, collecting evidence to confirm or exclude the existence of the offense and the guilt of the suspect. The individual remains deprived of liberty by virtue of the imposed measure, not as a result of a criminal sentence.

Once the investigation is complete and the prosecutor concludes that the suspect (already under the “pre-trial detention” measure) committed the offense, he files the indictment, closes the investigation, and submits the case to court for trial. The trial that follows examines the existence of the offense and the guilt of the accused, who now formally becomes the defendant. The court considers the evidence, the defendant’s defense, and any objections raised. At the conclusion, if the court finds the crime proven, it declares the defendant guilty and imposes a sentence.

The most common penalty provided in the Criminal Code is imprisonment. Thus, imprisonment is always a form of punishment ordered by the court only after the investigation by the prosecution and the judicial trial have concluded. At this stage, we refer to “imprisonment” because the person has been convicted, and once the judgment becomes final, the individual acquires the legal status of a convict, which entails different legal treatment compared to pre-trial detention.

The differences between these two legal institutions are several, particularly regarding how liberty is restricted, the facilities where the person is held, and the rights and benefits granted, all regulated by Law no. 79/2020 “On the Execution of Criminal Judgments.” Another significant difference lies in how time served in pre-trial detention is calculated towards the final sentence. According to the law, one day of pre-trial detention is equivalent to one and a half days of imprisonment.

Illustrative Example:

Person A is suspected of theft, having been caught by police officers immediately after committing the crime while still holding the stolen goods. He is arrested in flagrante delicto, and within 48 hours, the prosecutor requests the court to validate the arrest as lawful and to impose the security measure “pre-trial detention,” as the conditions provided by the Code of Criminal Procedure are met. The court deems the arrest lawful and grants the prosecutor’s request. For all subsequent calculations, the measure is considered effective from the moment of arrest.

From that moment until the conviction becomes final, three months pass. Up to this point, Person A has been under pre-trial detention. With the final judgment, the court finds Person A guilty of theft under Article 134/1 of the Criminal Code and sentences him to six months’ imprisonment.

The time spent in pre-trial detention counts towards the sentence, with the calculation as follows: 1 day of detention = 1.5 days of imprisonment.

Thus, three months of detention are credited as 4.5 months of imprisonment served. From the total six-month sentence, only 1.5 months remain to be served. After this period, the convict is released, and the sentence is deemed fully served. Finally, the Constitutional Court has established that this principle also applies in cases of house arrest.