The European Investigation Order: shaping a new approach to mutual recognition in criminal matters.

By Steve PEERS (*) and Emilio DE CAPITANI (**)

The adoption of Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal matters in the European Union notably after the entry into force of the Lisbon Treaty and of the EU Charter. This post focusses in turn on the broader legal context of the new Directive, its territorial scope in light of various opt-outs, and its important provisions on the relationship between human rights and mutual recognition.

A comprehensive single instrument

As from 22 May 2017, this Directive replaces most of the existing laws in a key area of judicial cooperation – the transfer of evidence between Member States in criminal cases – by a single new instrument which will make trans-border investigations faster and more efficient.
That current patchwork of rules comprises:
– the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols);
– parts of the Schengen Convention;
– the 2000 EU Convention on Mutual assistance in criminal matters (and its Protocol);
– the 2008 Framework Decision on the European evidence warrant;[i] and
– the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (as regards freezing of evidence).

Unlike the European Evidence Warrant, which most Member States thought was useless and have not bothered to implement, the new Directive will cover almost all investigative measures such as interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts.
The Directive will not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of a joint investigation team and the gathering of evidence within such a team which. According to the legislator, these issues “require specific rules which are better dealt with separately”.

A small part of the previous Conventions will remain in force because they regulate issues outside the scope of investigations, such as compensation for wrongful conviction. A handbook for practitioners will clarify this issue in future.

Territorial scope

The Directive will apply to all the EU Member States with the exception of Denmark (because of the general exclusion of this country from Justice and Home Affairs measures– see Protocol 22 attached to the Treaties) and of Ireland which, until now, has not “opted in” as it has the faculty to do according to Protocol 21 attached to the Treaties. Surprisingly the UK “opted in” and took also part in the vote even if by …abstaining. (Note : by so doing it also avoided national parliamentary scrutiny. See here).

Due to the position of Ireland and Denmark, the former Framework Decision on the European Evidence Warrant (2008/978/JHA) has not been repealed, so will “survive”, but only for the relations between Ireland and Denmark and the other EU Member States. Probably the legislator wanted to still the door open to Ireland for a late “opt-in” (still possible any time after the adoption of an EU JHA act – see Article 4 of Protocol 21).
This tricky (and hopefully transitional) legal situation has obliged the legislator to use in Article 34 of the Directive a generic and flexible reference to “…the Member States bound by this Directive” (a formula already used for the “Human Trafficking” Directive, as well as other measures such as EU asylum legislation).

These are legal acrobatics which do not strengthen legal certainty and have already triggered some public statements by several Member States which very politely urge the Commission and the Presidency to …”consider possibilities to ensure legal clarity on the repealing of the Framework Decision 2008/978/JHA for all Member States.”

From legal assistance to mutual recognition

The huge advance of the new text is that it makes the transition from the mutual legal assistance mechanisms, where the requested State has a wide discretion to comply with the request of another State, with a mutual recognition mechanism where each State must in principle recognise and execute a request coming from another Member State..
By choosing the word “order” and by referring to “issuing” and “executing” States, in place of “requesting” and “requested” States, the legislator clearly indicates how the system has changed.

In the same perspective the execution of an EIO should not be refused on grounds other than those stated in Article 11 of the Directive (such as human rights, territoriality, national security and double jeopardy), although the executing authority will be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it it is still possible to achieve similar results. Article 12 of the Directive set also mandatory deadlines for carrying out the investigative measures and requires that the recognition or execution should be carried out with the same priority and speed as for a similar domestic case.

Building on Mutual (but not blind) trust…

The mutual recognition regime been so incisive for the national systems of criminal law it is not surprising that several civil society organizations, academia and even …Eurojust raised several reservations on the introduction of a too ambitious EIO.

The main message was to take better into account the specificity of the national systems as well as the need to protect fundamental rights and the proportionality principle – all concerns already raised as regards the implementation of the European Arrest Warrant (EAW), which is at the same time the most successful but also controversial mutual recognition EU measure.
This time, all these aspects have been thoroughly negotiated by the European Parliament which engaged a strong four year dialogue with the member states representatives (from the presentation of the proposal in April 2010 until February 2014) before reaching, after twelve trialogues and several technical meetings, a “first reading agreement” on the text.[ii]

Fundamental rights and mutual recognition: resolving the conflict?

The EP’s role can best be seen in recital 19 in the preamble to the Directive, which states:
“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is reflected in Article 11(1)(f) of the Directive, which permits a refusal to execute an EIO on human rights grounds. To qualify as “rebuttable” in a legislative text the presumption of compliance by another Member State with EU law and fundamental rights is an important progress in an European Union which since the Tampere programme has considered mutual recognition to be the cornerstone of the judicial cooperation in criminal matters and which until now has made only generic reference to protection of fundamental rights in mutual recognition instruments[iii].

However by suggesting this wording the EP extended to criminal matters the principle expressed by the CJEU in EU asylum policy with the N.S. ruling, which states: “The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The Court considers that the Member States have a number of sufficient instruments at their disposal enabling them to assess compliance with fundamental rights and, therefore, the real risks to which an asylum seeker would be exposed were he to be transferred to the Member State responsible”

By analogy with the NS case, the refusal to execute an EIO on human rights grounds must logically be mandatory, even though the legislation suggests that such a refusal is optional. But it should be noted that the wording of the Directive suggests that a defect in another Member State should be judged in individual cases, whereas the NS ruling referred rather to “systemic deficiencies”.

Primacy of EU law and protection of national constitution’s principles

But the EP was also concerned for the respect of the protection of the fundamental principles of the national criminal law systems. These principles can be protected by the Member States during the negotiation of an EU measure by using the so called “emergency brake” foreseen by Articles 82 and 83 TFEU. The point remain how to take in due account these same fundamental aspects also after the adoption of an EU measure. The EP considered that the CJEU jurisprudence on Radu and Melloni (dealing with the implementation of the EAW) and giving priority to EU law also against constitutional principles in the Member States was going too far, so it insisted upon making explicit reference to the Member States’ constitutions.

The result of this pressure is mirrored in the first part of recital 39 in the preamble, which states : “This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitutions in their respective fields of application..”.

The final words of this recital echo Article 53 of the Charter of Fundamental Rights, which deals with the relationship between the Charter and (inter alia) national constitutions. While the CJEU found in Melloni that Article 53 justified setting a ceiling on national constitutional protection in that case, that judgment concerned an issue which had been extensively regulated by EU law (in absentia trials as a ground for refusal), whereas there are no equivalent provisions in the EIO Directive.

Will this text be sufficiently clear to push the CJEU to recognise a wider “margin of appreciation interpretation” of national authorities as regards JHA, as suggested by the former Advocate General Francis Jacobs some time ago? We may have still to wait for years before knowing the right answer. However, it could be arguable that in the meantime, the CJEU should take the rules in this Directive regarding the relationship between human rights and mutual recognition into account when interpreting other EU mutual recognition measures, such as the EAW.

Conclusion

These are only some general observations on a Directive which requires a deeper analysis. However it is worth noting that the Directive makes already explicit reference to the first three post-Lisbon measures dealing with procedural guarantees for criminal suspects, namely:
– Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1);
– Directive 2012/13/EU on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1); and .
– Directive 2013/48/EU on the right of access to a lawyer and the right to communicate when deprived of liberty (OJ L 294, 6.11.2013, p. 1).

Even though these are still only among the first EU criminal law texts adopted following the entry into force of the Treaty of Lisbon, all the pieces of the mosaic are progressively falling into place.

(*) Professor of EU and Human Rights Law at the University of Essex. Follow him on Twitter: @StevePeers
(**) Executive Director of the FREE-Group (ASBL) and visiting Professor at L’Orientale University (Naples)

NOTES
[i]The Framework Decision concerns certain types of evidence already available to the authorities of the requested State.
[ii] The procedure to be followed for “First reading agreements” where the co-legislator engage the negotiations during the first parliamentary phase of the legislative procedure is described in the Joint Declaration on practical arrangements for the codecision procedure OJ C 145, 30.6.2007, p. 5.
[iii] A partial exception is the Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties which makes not only reference to respects fundamental rights and to the principles recognised by “..Article 6 of the Treaty and reflected by the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof” but also to anti-discrimination principles by stating that “Nothing in this Framework Decision may be interpreted as prohibiting refusal to execute a decision when there are reasons to believe, on the basis of objective elements, that the financial penalty has the purpose of punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.”Moreover in the following paragraph (6) it is stated that “This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media”

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