Tra semplificazione e ibridismo: insidie e aporie dell’Ordine europeo di indagine penale [Between simplification and hybridism: The pitfalls and apologies of the European Criminal Investigation Order]

In the context of the European Union the structural differences between the various models of evidencegathering has often been hindering the transnational circulation of evidence. From this point of view the coming into force of the Lisbon Treaty has created the preconditions for a qualitative leap in European legal integration on the basis of the establishment of "minimum rules" on the mutual admissibility of evidence between Member States. Even though the 2014/41/EU Directive on the E.I.O. is the most advanced legislative act with reference to the ultra fines evidence-gathering in the European "regional" context, there has been no harmonizing effect of the procedures aimed at making mutually admissible and of evidential value the evidentiary outcome wherever it is collected. Following a process characterized by an instance of models' simplification and "hybridism" of the adopted solutions, the abovementioned legislative text has created a clog of "blank procedural rules" to be applied in compliance with fundamental human rights and fundamental principles of national systems, fully consistent with the principle of proportionality. The 2014/41/EU Directive, therefore, provides for really complex and very insidious provisions: entrusted to the wise evaluation of the judge in the specific case; inter alia, the abovementioned rules may create the danger to reduce the level of guarantees and to stop any future harmonization of national systems