The European Union (hereinafter: the EU) maintains and develops an area of freedom, security and justice. According to Article 82 of the Treaty on Functioning of the European Union, judicial cooperation in criminal matters is to be based on the principle of mutual recognition of judgments and judicial decisions. Among EU countries, Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union and Council Framework Decision 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 and multilateral or bilateral treaties have so far been adopted.
2. The European Investigation Order and its application
In 2009, when the Stockholm Programme was adopted by the European Council, the existing legal framework was fragmented and too complicated. Directive 2014/41/EU of the European Parliament and of the Council (hereinafter: the Directive) set up a new European judicial decision instrument, called the European Investigation Order (hereinafter: EIO). An EIO aims to make legal cooperation between EU Members States easier; it sets up a comprehensive system for obtaining evidence in cases with cross-border dimensions. The EIO Directive came into force on May 22, 2017, with the EU having allowed time for Member States to implement it into their national legislation. However, the Czech Republic, for instance, implemented the Directive only on August 16, 2018 with Law 104/2013 Coll, Act on International Cooperation in Criminal Matters.
An EIO is a judicial decision, issued or validated by a judicial authority of a Member State (the issuing state) for the purpose of having one or several specific investigative measures carried out in another Member State (the executing state) to obtain evidence. An EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing state. The issuing of an EIO may be requested by prosecutors or judges, but also by the suspected or accused person as well as by lawyers on their behalf (within the framework of defence rights).
3. The procedure followed by the issuing Member State
Before issuing an EIO, the competent authorities of the issuing Member State should answer the following two questions. Does the Directive apply to the Member State in question? If so, which investigative measure can be used?
Today, the Directive has been implemented in every Member State (in the United Kingdom as well), except Ireland and Denmark, which are not taking part in the transposition of the Directive, and are thus not bound by it or subject to its application.
This means that between the Member States bound by the Directive, the latter takes precedence over any other domestic law or international agreement. Therefore, the Directive replaces the corresponding provisions of the European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of April 20, 1959, as well as its two additional protocols and the bilateral agreement, concluded pursuant to Article 26 thereof; the Convention implementing the Schengen Agreement; the Convention on Mutual Assistance in Criminal Matters between Member States of the European Union and its Protocol.
However, Member States may continue to apply multilateral or bilateral agreements after May 22, 2017 only insofar as these make it possible to further strengthen the aim of the Directive. Member States were given the opportunity to inform the Commission, before the implementation of the Directive, which agreements they wish to continue to apply. For example, the Czech Republic announced that it would like to continue to apply its bilateral agreements with Austria, Germany, and Slovakia.
With regards to investigative measures, an EIO can be (according to Art. 22 – 32 of Directive) issued requesting the following:
- Temporary transfer to the issuing State of persons held in custody for the purpose of carrying out an investigative measure;
- Temporary transfer to the executing State of persons held in custody for the purpose of carrying out an investigative measure;
- Hearing by videoconference or other audio-visual transmission;
- Hearing by telephone conference;
- Information on bank and other financial accounts;
- Information on banking and other financial operations;
- Investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time;
- Covert investigations;
- Interception of telecommunications with technical assistance of another Member State;
- Provisional measures.
Only the above-mentioned investigative measures fall under the scope of the EIO. Other investigative measures can still be requested, but are to be regulated and applied according to other relevant agreements.
An issuing authority may only issue an EIO if it is necessary and proportionate to the purposes of the criminal proceedings, and only if the investigative measure could have been ordered under the same conditions in a similar domestic case. The executing authority is entitled to opt for a less intrusive measure than the one indicated in an EIO, if it is possible to achieve similar results (Article 6 of the Directive).
3.1 Human rights and the EIO
The issuing authority must ensure the protection of the rights mentioned in Article 48 of the Charter of Fundamental Rights of the European Union, such as the presumption of innocence and the right of defence in criminal proceedings. Any limitation should conform to the requirements established in Article 52 of the Charter (necessity and proportionality).
However, if there are grounds for believing that the investigative measure would result in the breach of fundamental rights of the person concerned, the execution of an EIO should be refused by the authorities of the executing state. The execution of the EIO should be also refused, if it would involve a breach of immunity or privilege in a Member State.
3.2 A Form
An EIO is always issued in the form, set out in Annex A of the Directive (Article 5 of the Directive). The form should contain the following information:
- Data about the issuing authority and, where applicable, the validating authority;
- The object of and reasons for the EIO;
- The necessary information available on the person(s) concerned;
- A description of the criminal act, which is the subject of the investigation or proceedings, and the applicable provisions of the criminal law of the issuing State;
- A description of the investigative measures(s) requested and the evidence to be obtained.
Each Member State indicates the language(s) which, among the EU's official language(s) may be used for completing the translation of an EIO (Article 5(2) of the Directive). The Czech Republic accepts the EIO in Czech and Slovak languages.
Expenses in the territory of the executing Member State should be borne exclusively by it. However, if the cost is exceptionally high, the issue of the cost may be subject to consultations between the issuing Member State and the executing one (Article 21 of the Directive).
4. Non-execution of EIO
There are three reasons why an executing Member State may not execute an EIO:
- Return of the EIO to the issuing state
If an executing authority receives an EIO which was not issued by an authority specified in Article 2(c) of the Directive, the executing authority shall return the EIO to the issuing Member State.
- Obstacle in the executing
If it is impossible for the executing authority to take a decision on the recognition or execution of the EIO, because the Annex A form is incomplete or incorrect (Article 16(2)(a) of the Directive), it should inform the issuing authority and request that it complies with the rules of the Directive, otherwise the EIO will not be executed.
- Grounds for non-recognition or non-execution
The recognition or execution of an EIO can be refused in the executing Member State if:
- The executing Member State makes it impossible to execute the EIO under the immunity or a privilege according to its law (Article 11(a) of the Directive);
- The execution of the EIO would harm national security interest (Article 11(b) of the Directive);
- The EIO was issued although the investigative measure would not be authorised in similar domestic case under the law of the executing Member State (Article 11(c) of the Directive);
- The execution of the EIO would be contrary to the principle of ne bis in idem (i.e. no legal action can be instituted twice for the same cause) (Article 11(d) of the Directive);
- The EIO was issued for criminal offence which was committed outside the territory of the issuing Member State but on the territory of the executing Member State although the conduct is not an offence in the executing Member State (Article 11(e) of the Directive);
- The execution of the investigative measure would be incompatible with Article 6 of the Treaty of European Union and the Charter of Fundamental Rights of the European Union according to the executing Member State’s obligation (Article 11(f) of the Directive);
- The basic of the conduct on which the EIO was issued does not constitute an offence under the law of the executing Member State (Article 11(g) of the Directive).
There is no decision of rejection needed, as a note in a file and information provided to the issuing Member State is sufficient.
The Directive can be considered to be a useful legal instrument of the EU. The cooperation among Member States seems to be more effective and quicker, as opposed to other legal instruments based on multilateral or bilateral agreements. However, it would be more convenient if the execution of every investigative measure was covered by the Directive, as nowadays, in the same case the Directive is used for the execution of one investigative measure, while for another investigative measure (not included in Art. 22 – 32 of Directive), multilateral or bilateral contracts have to be applied.
By Šárka Šilhánková
PhD candidate, Masaryk University (Czech Republic)
This article represents an exclusive preview from our next issue, which will be published in February 2019.