PROHIBITION OF APPROACHING AND COMMUNICATING AS A MEASURE AND A SANCTION IN CRIMINAL PROCEEDINGS

Abstract

This paper is divided in two sections - the first one deals with a procedural measure (injunction) such as a restraining order which bans an offender from approaching, meeting or communicating with a person (victim) and visiting specific areas, and the second section is concerned with the protective order such as ban on approaching and communicating with the victim. Both sections first define the conditions for imposing such orders and in relation thereto the conclusion is that the bases for imposing the first type of order should be extended to include a risk of destroying, concealing, altering or fabrication of evidence or traces of crime. In this way, ordering detention could be avoided in some cases because the same purpose could be achieved with this order as a more lenient one. If this order is violated, it can be replaced by a more severe one. In addition to detention, which can be ordered during investigation only if there is reasonable doubt that the accused committed the crime, it can be also replaced by the ban on leaving the apartment (house arrest) if the original order was imposed due to the risk of repeated offence. Restraining order that bans approaching, meeting or communicating with a victim and visiting specific areas can be imposed with all other similar measures, excluding detention. Ban on visiting specific areas although it exists as a part of this separate order can be also imposed as additional order with a ban on leaving one’s place of residence, for which practical reasons would be difficult to be found. Since in the investigation phase this order can be imposed only if proposed by the public prosecutor, the court should be deemed competent to impose such an order as a lenient one even when the prosecutor requested detention, because all more lenient measures have been thus automatically proposed.

A protective order such as the ban on approaching and communicating with a victim is the only injunction which cannot be granted with the sanction of imprisonment. Since it is most frequently granted with a suspended sentence with additional limitations introduced by the latest amendments to the Criminal Code, it can be expected that the number of cases when such order is granted will decrease in time. Notwithstanding this legal limitation, in practice it is often granted with short prison sentences. This is most probably due to legislators’ inconsistency who stipulated that the time spent in prison shall not be counted into the period of duration of this order. For that reason it is necessary that this legislators’ omission be remedied, and due to the nature of crimes which require such order be granted, there is a solid argument in favour of allowing this order be granted together with a prison sentence. Furthermore, the manner of monitoring implementation of this order should be set forth which is not regulated by the Law on Non-Custodial Sanctions and Measures. In addition, the court should be obliged to provide the victim with a copy of the decision in which this protective order is granted, as it has been done with the decision in which restraining order was granted that bans approaching, meeting or communicating with a certain person.