Arestarea provizorie în cadrul procedurilor specifice cooperării judiciare internaționale în materie penală. Noi perspective în contextul intrării în vigoare a Legii nr. 306/2022 pentru modificarea și completarea Legii nr. 302/2004
Provisional detention within the specific procedures of international judicial cooperation in criminal matters. New perspectives in the context of the entry into force of the Law No 306/2022 amending and supplementing the Law No 302/2004

Summary/Abstract: The entry into force of Law No 306/20221 for amending and supplementing Law No 302/2004, on international judicial cooperation in criminal matters, brings more clarity to the legal regime of the most controversial preventive measure ordered in criminal proceedings with an element of foreignness. The Law on international judicial cooperation in criminal matters was successively amended in 2006, 2008, 2013, 2017 and 2021, in order to ensure the transposition into national law of the most important Framework Decisions adopted at European Union level. Although the last amendment to harmonise national legislation was made by Law No 51/20212, the European Commission drew the attention of the Romanian Government to some legal texts of Framework Decision 2002/584/JAI on the European arrest warrant and the surrender procedures between Member States of the European Union, which were not fully or correctly transposed. The changes concerned the unconstitutionality issues raised at the level of provisional arrest and surrender of the person deprived of liberty to the authorities of the requesting State. In addition, the amending law helps to alleviate the controversies encountered in the practice of judicial bodies concerning issues relating to the duration and changes that may occur during the execution of the custodial measure of provisional detention.In this article we aim to analyse the legal regime of provisional detention, in the context of the changes that have occurred in this area, seeking to clarify the most controversial issues raised in the practice of judicial bodies. This study also aims to establish the compatibility between the legal rules laid down in the special law on international judicial cooperation in criminal matters and those laid down in the provisions of the Code of Criminal Procedure, in relation to the institution of preventive measures. The research hypotheses will focus in particular on determining the duration of the deprivation of liberty of persons against whom extradition proceedings and the execution of a European arrest warrant are being carried out, as well as determining, in the light of the relationship established between the provisional arrest measure and the other preventive measures, the possibility of replacing, maintaining, revoking and terminating the measure by operation of law. In addition, the study aims to set out the hypotheses which might be encountered in the practice of judicial bodies, given the underlying legislative inconsistencies.

• Details
• Contents