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

• Author: Ion Rusu
• Position: Professor
• Pages: 179-197

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

Professor Ion RUSU1

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 l egislative 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 ma tters, to provide legal assistance

to the persons who are conductin g such procedures. In this context, we have formulated a

series of cr itical opinions, complemented b y appropriate de lege ferenda proposals, which

may be usefu l 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 in novations in the paper

refer to the examination of the investigative measures that can be arranged by issuing a

European in vestigation order in criminal matters, formulating some critical opinions and

appropriate de lege ferenda proposals. The p aper 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.

Keywords: investigative measures; crime; cooperation; European Union member

states.

JEL Classification: K14; K33

1 Ion Rusu, “Danubius” University of Galati, lawyer, Vrancea Bar, Romania, av.ionrusu@yahoo.com.

180 Volume 7, Issue 1, June 2017 Juridical Tribune

1. Introduction

Into the recent Romanian doctrine it was shown that the development of

human society as a whole and of the countries of the world was possible due to the

development and continuous improvement of cooperation relations in many fields

that were established and settled in over time.2

In the bilateral or multilateral international relations, the countries have

conducted cooperation activities in a variety of domains, focusing on the economic,

cultural, environmental, political, military and legal ones3.

Against this background it was found an unprecedented growth of the

cross-border crime of all kinds, wi th a specific focus on the most serious forms of

manifestations of crime.

Thus, “among the serious committed crimes, since the second half of the

last century by the organized crime groups, we can include terrorism, trafficking in

weapons, ammunition, explosives, radioactive substances, human trafficking,

trafficking drugs, forgery of currency, murders, kidnappings, etc. Also, in the

recent years it has gained new dimensions also cybercrime, sometimes with

negative consequences in terms of monetary or banking safety of some states. In

this context, extremely complex, the governments of world countries, es pecially

those with recognized democratic regimes, were put in the position to identify new

ways to prevent and combat t ransnational crime, which focused primarily on

improving their national laws and reorganizing the state structures with attributions

in the domain, and thirdly intensifying the specific activities of cooperation in

criminal matters”.4

In recent doctrine it has been emphasized the need to intensify specific

activities of international judicial cooperation in criminal matters, for the stated

purpose of reducing crime in certain acceptable limits, that would ensure greater

safety to its citizens.5

However, in the doctrine it was insisted on the fact that under the present

conditions concerning the unprecedented increase in crime of all kinds, the

improvement of judicial cooperation in criminal matters imposed itself as an

objective necessity, representing the only concrete way to prevent and combat

more effectively this kind of crime, also catching and prosecuting persons who

have committed various offenses and are hiding in other states.6

2 Alexandru Boroi (coord.), Ion Rusu, Minodora-Ioana Rusu, Tratat de cooperare judiciară

internaţională în materie penală/The Treaty of judicial cooperation in criminal matters, Ed. C.H.

Beck, Bucharest, 2016, p. 3.

3 Alexandru Boroi, Ion Rusu, Minodora-Ioana Balan-Rusu, The Judicial Cooperation in Criminal

Matters in the European Union, EU Judicial Cooperation, LAP LAMBERT Academic Publishing,

Saarbrücken, Deutschland/Germany, Danubius University, 2012.

4 Minodora-Ioana Rusu, Asistenţa judiciară în materie penală în Uniunea Europ eană/Judicial

Assistance in Criminal Matters in the European Union, Editura Universul Juridic, Bucharest,

2015, p. 22.

5 Alexandru Boroi, Ion Rusu, Cooperarea judiciară internaţională în materie penală, Curs

master/International judicial cooperation in criminal matters, Master Course, Ed. C.H. Beck,

Bucharest, 2008, p. 5.

6 Ion Rusu, Minodora-Ioana Balan-Rusu, Th e European Arrest Warrant, Romanian and European

Legislation, Doctrine and Jurisprudence, LAP LAMBERT Academic Publishing,

Deutschland/Germany, DANUBIUS University, 2013, p. 15.