Juridical Tribune (Jun 2017)
The enforcement of investigative measures based on the European investigation order in criminal matters. Comparative examination relating to the Romanian law. Critical opinions and de lege ferenda proposals
Abstract
In the present study we have examined the specific provisions for certain investigative measures that may be subject to a European investigation warrant in criminal matters provided for in Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014 on the European criminal investigation order. Thus, we have examined each investigative measures provided in the European legal instrument through the national legislation of Romania, as in the terms of transposition of this legislative act into the Romanian law. The examination of the European legislative act allowed us to identify some dysfunctions in the settlement of some provisions, malfunctions which in the judicial practice of Member States’ competent institutions will cause numerous problems, both of interpretation and application. Among these we only highlight the lack of concrete provisions that oblige the judicial authorities of the countries involved in the issuance and execution of a European investigation order in criminal matters, to provide legal assistance to the persons who are conducting such procedures. In this context, we have formulated a series of critical opinions, complemented by appropriate de lege ferenda proposals, which may be useful to the European legislator from the perspective of amending and supplementing this legislative act. We have also stressed on the need of transposing the European legislative act into the Romanian law by adopting a special law and not by amending some provisions of the Criminal Procedure Code. The innovations in the paper refer to the examination of the investigative measures that can be arranged by issuing a European investigation order in criminal matters, formulating some critical opinions and appropriate de lege ferenda proposals. The paper can be useful to the academics, practitioners in the field, especially to the European legislator from the perspective of amending and supplementing the European legal instrument and also to the Romanian legislator that will have to transpose this legislative act into the national law.
