Dubla incriminare – de la o condiţie obligatorie la o garanţie a instrucţiei penale

The European Union has built up an area of freedom, security, and justice based on respect for fundamental human rights and the legal systems of the Member States, for which purpose it has required the States to step up cooperation based on the principle of mutual recognition of judicial decisions enshrined in Article 82(1) of the Treaty on the Functioning of the European Union. Given that the lines of action in the field of judicial cooperation in criminal matters do not only include the above-mentioned principle, in this paper we propose an analysis of double criminality, a concept which is found in international and national provisions on international judicial cooperation in criminal matters. In our theoretical approach, we will analyse the rule of double incrimination with reference to the concept, basis, and headquarters of the matter, taking into account the European and national regulations, revealing also the elements of distinction between the two fundamental principles in the field of international judicial cooperation – double incrimination and –, as well as the case law of the European Court of Strasbourg and Luxembourg, including the national case law on this segment. Examination of the spectrum of regulations adopted by the European and national legislator allows us to highlight that double criminality is, as a rule, a mandatory condition, but also a guarantee of criminal proceedings conducted in the Member States, when dealing with criminal cases with elements of extraneousness. Overcoming the legal problems that may arise in the framework of judicial cooperation in criminal matters requires the inclusion of the necessary guarantees for respecting the fundamental rights of persons who are the subject of such judicial proceedings.