We would like to respond to the statement made by several non-governmental organizations, alleging that, as a result of the adopted legislative changes, the police have been empowered to arrest a person without any justification, in particular, only on the basis of a general suspicion that he may commit an illegal act in the future.
With the implemented legislative change, it was determined that if an individual has already committed an offense and, at the same time, there is reliable information that he will commit another illegal act, the police have the authority to make an arrest in order to prevent the possible commission of an offense and to administer justice.
We would like to note that the mentioned changes are in line with standards of the European Court and the best practices of European countries. It should be noted that in the 2018 decision of the Grand Chamber of the European Court "S., V. AND A. v. DENMARK" (Applications nos. 35553/12, 36678/12 and 36711/12) it is indicated that preventive detention is in line with article 5 of the European Convention. In the mentioned decision, the court points out that Article 5 of the Convention cannot be interpreted in such a way that it becomes impossible for the police to fulfill their assigned duty - to protect public safety, law and order. The police must exercise some form of discretionary power to make operational decisions.
The court notes that in order to make the mentioned decision, the police will have access to information and operational material, not available to the public. Making a well-grounded decision protects a person from unjustified and arbitrary detention. Preventive policing measures, including preventive detention the re-occurrence of crime are recognized in a number of European countries, including the legal systems of Denmark, the Czech Republic and Germany.
It should be noted that none of the preventive measures empowers the police to take any measure with an agrument of a general, abstract threat, even more so on the grounds that some individual or group of individuals is prone to commit a crime or other violent act.
Prevention of repeated administrative offense refers to a case where an individual has committed an offense and at the same time there is a potential danger of committing the crime again. Avoiding the potential risk of committing an offense implies that there is a high probability that a specific offense will be committed repeatedly by specific individuals. The reality of the threat must be confirmed by specific facts or information that must be submitted to the court. It should be noted that any detained person has the right to appeal to the court to verify the legitimacy of his detention and to receive appropriate compensation in case if the detention is found to be illegal.
