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

AuthorIon Rusu
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
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
JEL Classification: K14; K33
1 Ion Rusu, “Danubius” University of Galati, lawyer, Vrancea Bar, Romania,
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.

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