by Gemma Pérez Souto, Collaborating Member of CEDU
The Directive 2014/41/EU regarding the European Investigation Order (EIO) in criminal matters was approved on 3rd April 2014[i] to avoid the current fragmented framework and set up a comprehensive system for the gathering of evidence[ii] with a cross-border dimension in the area of freedom, security and justice, based on the principle of mutual recognition but also taking into account the flexibility of the existing system of mutual legal assistance.[iii]
The European Investigation Order will replace, as from 22nd May 2017, the corresponding provisions of International Conventions, Framework Decisions or Directives applicable between the Member States bound by this Directive referred to in Article 34 EIO. One of the key aspects of the new Directive relies on this question, as this instrument will replace in the future the traditional system of mutual legal assistance[iv] concerning obtaining evidence.[v]
In accordance with Article 1 EIO, a European Investigation Order is a judicial decision which has been issued or validated by a judicial authority of a Member State[vi] to have one or several specific measure (s) carried out in another Member State to obtain evidence[vii] in accordance with this Directive.[viii] With the adoption of the EIO Directive, the European Union shows that is determined to achieve a sort of ‘European Evidence Law’[ix] flexible and effective at the same time, in order to not only obtain evidence previously in possession of the authorities of another Member State (s), but also to carry out investigative measure (s) with a view to gathering evidence.
In fact, we find that previous instruments as Council Framework Decisions (FD) 2003/577/JHA of 22nd July 2003, on the execution in the European Union of orders freezing property or evidence and FD 2008/978/JHA of 18 December 2008, on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, are not yet used systematically or seldom used in practice by the competent authorities. Partly and first of all, because the FD 2008 is only applicable to evidence which already exists and just covers a limited spectrum with respect to evidence in judicial cooperation in criminal matters; secondly, because the FD 2003 is restricted to the freezing phase and thus, “a freezing order needs to be accompanied by a separate request for the transfer of the evidence to the issuing State in accordance with the rules applicable to mutual assistance in criminal matters”.[x] Taking into account that Member States will have to take the necessary measures to comply with the present Directive by 22nd May 2017[xi] some considerations, particularly regarding practical aspects for a better implementation, should be made. Article 1 (3) EIO Directive indicates that “the issuing of an EIO may be requested by a suspected or accused person or by a lawyer on his behalf (…)”. This possibility was not initially included on the proposal of the EIO but after several working parties in April and May 2013[xii], this key aspect of the right of defence was finally considered. In accordance with Article 1 (4), the Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principle as enshrined in Article 6[xiii] of the TEU, including the rights of defence of persons subject to criminal proceedings.
However, the final text of the Directive does not give, in our opinion, a fully satisfactory response to that right of defence considering only a general approach and leaving the Member States to eventually implement a detailed framework of this aspect –as the issuing of an EIO by a suspected or accused person or his lawyer will be requested “within the framework of applicable defence rights in conformity with national criminal procedure”. Therefore, it is crucial in order to ensure an effective implementation of the EIO that such aspect is as clear and detailed as possible in each Member State taking part in this instrument[xiv]. Handbooks and practical tools on the European Investigation Order, for judges, prosecutors and most of all, for practicing lawyers dealing with EU Law, would be highly recommended to be adopted[xv] to avoid eventual breaches in the day-by-day right of defence.
The same applies to the legal remedies included in Article 14. The Directive only mentions that Member States “shall ensure that legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicates in the EIO”. Other aspects such as the principle of proportionality regarding issuing an EIO (that must fully conform to the requirements established in Article 52[xvi] of the Chapter of Fundamental Rights of the European Union), the Data protection, the time limits for recognition or execution of the EIO (Article 12) or the grounds for non-recognition or non-execution (Article 11)[xvii] must be also carefully analyzed in the current implementation period of the European Investigation Order.
Finally, in accordance with Article 7 of the Directive, the EIO “shall be transmitted from the issuing authority to the executing authority by any means capable of producing a written record under conditions allowing the executing State to establish authenticity”. The Issuing authority may also transmit EIOs via the European Judicial Network (EJN)[xviii] and in the case that the identity of the executing authority is unknown, the issuing authority shall make all necessary inquiries via the EJN contact points to obtain the information from the executing State[xix].
In order to avoid future delays in such scenario and with the possibility to fully exploit the existing instruments in the area of freedom, security and justice, in our opinion would be a good practice to recommend transmitting the EIOs via the National Member of Eurojust when the identity of the executing authority is, at the very first moment, unknown. Contacting Eurojust would avoid any other further inquiries and also ensure a qualified point of view on behalf of the National Member, considering previous Eurojust key role with another instrument as the European Arrest Warrant, in facilitating, i.e., its execution and the exchange of information, clarifying legal requirements, advising on drafting EAWs or reporting on breaches of time limits in its execution.
[i] Official Journal of the European Union L 130, 1.5.2014.
[ii] On Transnational Evidence in Criminal Matters in Europe and the European Investigation Order, See Lorena Bachmaier, “Prueba transnacional penal en Europea: la Directiva 2014/41 relativa a la Orden Europea de Investigación”, Revista General de Derecho Europeo, 36 (2015): 1-35.
[iii] Point 6 of the Directive EIO.
[iv] The European Investigation Order will replace, concerning obtaining evidence, some of the most used Conventions of mutual legal assistance so far, i.e. the European Convention on Mutual Legal Assistance in Criminal Matters of the Council of Europe of 20 April 1959, as well as its two additional protocols, and the bilateral agreements concluded pursuant to Article 26 and the Convention on Mutual Legal Assistance in Criminal Matters between the Member States and the European Union and its Protocol, See Article 34 (1) a, c, Directive EIO.
[v] The European Council in October 1999 (The Tampere Council) set out a very ambitious programme including policy guidelines and practical objectives considering the principle of mutual recognition as “the cornerstone of judicial cooperation”. Tampered also indicated that this principle of mutual legal recognition should apply the gathering of evidences in a Member State to eventually ensure the admissibility of such evidences in the national Courts of other Member States, Point 36, Tampere Council. Such Tampere conclusions regarding the area of freedom, security and justice would be later reflected on the Treaty on the Functioning of the European Union (TFEU). In accordance to its Article 82 (1) “Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions (…)”.
[vi] In accordance with Articles 1 and 2 and Article 4 a (1) of Protocol 21, and also in accordance with Articles 1 and 2 of Protocol 22 annexed to the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), Ireland and Denmark are not taking part in the adoption of the EIO Directive. The United Kingdom has notified its wish to opt-in (Article 3 of Protocol 21)
[vii] The European Investigation Order shall not apply the setting up of a Joint Investigation Team and the gathering of evidence within such a team. Joint Investigation Teams are usually based on a bilateral or multilateral agreement cooperation which can eventually include cooperation with other Member State or with Third States; therefore the principle of mutual recognition would not be applicable to JITs, See, Article 3 of the EIO Directive “Scope of the EIO”.
[viii] Article 2 of the Directive EIO “Definitions”.
[ix] See, Mª Paula Díaz Pita, “La Orden Europea de Investigación en materia penal (OEI) y la lucha contra la criminalidad transnacional en la Unión Europea”, Publicaciones del Observatorio de Criminalidad Organizada Transnacional, (2015), in http://crimtrans.usal.es/?q=node/138 (3.10.2015)
[x] See, Point 3 of the Directive EIO.
[xi] Article 35 (1) EIO Directive.
[xii] See, 8754/13, COPEN 67, EUROJUST 35, EJN 30, CODEC 874 (24.4.2013) and also, 9747/1/13, REV 1, COPEN 79, EUROJUST 38, EJN 33, CODEC 1131 (29.5.2013).
[xiii] “Article 6 (1). The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. (2). The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties. (3) Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.
[xiv] Specially, when the EIO Directive reminds in its Point 15 that such Directive should be implemented taking into account Directive 2010/64/EU of 20 October 2010, on the right to interpretation and translation in criminal proceedings (OJEU L 280, 26.10.2010); Directive 2012/13/EU of 22 May 2010 on the right to information in criminal proceedings (OJEU L 142, 1.6.2012) and Directive 2013/48/EU of 22 October 2013,on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJEU L 294, 6.11.2013.
[xv] Portugal has a very interesting background on adopting good practices or drawing up Handbooks in the field of the European Union Law. See, for instance, Direção-Geral dos Assuntos Europeus, Ministério dos Negócios Estrangeiros, Manual de Boas Práticas para a Negociação, Transposição e Aplicação de Legislação da União Europeia, (Aprovação: Deliberação do Conselho de Ministros, 31 de julho de 2014). Handbook available at: http://www.portugal.gov.pt/pt/os-ministerios/ministerio-dos-negociosestrangeiros/documentos-oficiais/20140918-manual-de-transposicao-diretivas.aspx (4.10.2015)
[xvi] “Scope and interpretation of rights and principles. (1) Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.
[xvii] Particularly interesting will be to pay attention to the in-depth regulation of the hearing by videoconference or other audiovisual transmission of the EIO Directive (Article 24) as in addition to the grounds for non-recognition or non-execution referred to in Article 11, the execution of an EIO may be also refused if the suspected or accused person does not consent on the videoconference. See also the interesting Council Recommendations — ‘Promoting the use of and sharing of best practices on cross- border videoconferencing in the area of justice in the Member States at EU level’, in particular point 22, c, that calls on the Member States to “Asses the impact of adopted EU instruments, such as the European Investigation Order in relation to current procedural rules” , (2015/C 250/01) , (OJEU 31.7.2015)
[xviii] Article 7 (4) of the EIO Directive.
[xix]Article 7 (5) of the EIO Directive.
Picture credits: Digital Forensics 2 by jon crel.