The procedure of judicial review of certain evidentiary measures interfering with fundamental rights in criminal proceedings

URL: https://dspace.academy.police.md/the-procedure-of-judicial-review-of-certain-evidentiary-measures-interfering-with-fundamental-rights-in-criminal-proceedings/

Data: 2026

The study examines the procedure for reviewing, during the criminal investigation phase, motions seeking authorization of procedural actions that interfere with fundamental rights and freedoms. The analysis focuses on the role of the investigating judge as a guarantor of the legality and proportionality of such interferences within the framework of criminal procedure law. The main investigative actions requiring judicial authorization are identified, including searches, bodily examinations, seizure of objects and documents, and compulsory placement in medical institutions for expert evaluation. The paper also addresses exceptions to prior judicial authorization, particularly in cases of flagrante delicto and urgent circumstances, emphasizing the necessity of an effective ex post judicial review. The research highlights deficiencies in the current legal framework, notably the lack of clear requirements regarding the content of the prosecutor’s motion and the reasoning standards of judicial rulings. In this context, the case law of the European Court of Human Rights is invoked, which requires the existence of genuine safeguards against arbitrariness and “relevant and sufficient” reasons for authorizing interferences. Particular attention is given to the principle of proportionality, analyzed as a fundamental standard for assessing the necessity and legitimacy of procedural measures. The study argues for the explicit recognition of this principle within criminal procedural law. In conclusion, the paper advances de lege ferenda proposals aimed at strengthening judicial control, ensuring consistency in practice, and maintaining a proper balance between the interests of criminal justice and the protection of fundamental rights.