Margarida Vasconcelos: the European Investigation Order set to enter into force

The Council has recently adopted a directive regarding the European Investigation Order (EIO) in criminal matters. The draft directive would create a single instrument for obtaining evidence located in another Member State in the framework of criminal proceedings - the so-called European Investigation Order.

The Government was successful in introducing important changes to the original proposal nevertheless UK authorities will be obliged to provide information about British citizens including bank accounts, as any judicial authority from any EU member state may ask the UK police to gather any criminal evidence. In fact, issuing authorities from other member states would be able to give instructions to the UK police officers. The EIO provides police and prosecution authorities from EU member states with the power to demand UK police forces to gather and share evidence with them within mandatory time limits.

Consequently, police resources would be spend on such requests, which the UK would not be able to refuse. Moreover, there is no obligation under the draft proposal to inform defendants about evidence obtained by an EIO before the trial. In fact, there is no requirement for people to be informed if evidence has been gathered about them under an EIO and shared with other member states.

The amendments made to the original draft have improved the content of the EIO. However, it is far from perfect and such amendments are not good enough in order to justify the government decision to opt into the proposal.

It is important to mention that last November the European Scrutiny Committee recommended a debate on the draft proposal however the Government had not scheduled it and, in the meantime, the Council adopted the draft directive without the Parliament having had an opportunity to debate its final contents. The European Scrutiny Committee considers “the EIO to be the most significant Justice and Home Affairs measure the Government has opted into since the Treaty of Lisbon came into force” thus, according to the Committee, “It is therefore deplorable that the Government did not make time for the debate.”

It is important to note that the EU has already provided for rules on obtaining evidence in criminal matters. The transmission of criminal evidence between EU Member States has been governed by different legal instruments based on the principle of mutual assistance such as the Convention on Mutual Assistance in Criminal Matters as well as on the principle of mutual recognition, including, the European Evidence Warrant. However, Brussels wants to subject all types of evidence used in criminal matters to mutual recognition between Member States. Yet there is no evidence that the system of mutual assistance is not working to justify setting up a system based on mutual recognition.

The European Evidence Warrant (EEW) was adopted in 2008 and all Member States were required to transpose it into national law by January 2011. The EEW is a judicial decision issued by a competent authority of a Member State in order to obtain, from another Member State, evidence that already exists and is directly available in the form of objects, documents and data for use in criminal proceedings. There is no evidence to justify the expanding the scope of the European Evidence Warrant. The scope of application of an EIO would be wider than the EEA as it would also cover evidence that is directly available but does not already exist, such as witnesses’ statements, interception of communications and monitoring of bank accounts as well as evidence that already exists but is not directly available without further investigation, such as analyses of existing objects and DNA samples or fingerprints. Member States would execute it on the basis of the principle of mutual recognition.

The Government has decided to opt into the draft directive creating the European Investigation Order. Hence, the Government is required, under the European Communities Act 1972, to put forward secondary legislation to transpose and implement this Directive. The UK is now subjected to the Commission enforcement powers and to the ECJ jurisdiction. Therefore, it can be taken before the ECJ for failure to implement correctly or in due time this draft directive. Moreover, it cannot withdraw from this proposal, which amounts to a loss of sovereignty and will unreasonably burden the police. It is highly expected that the EIO will lead to an increase in the number of requests for evidence, which, obviously, would entail further costs and resources.

The European Investigation Order is a judicial decision issue by a judicial authority of a Member State, a judge, a court, an investigating magistrate or a public prosecutor, to have one or more specific investigative measures carried out in another Member State to obtain evidence. The Government has welcomed the insertion of a new clause that provides that suspects or accused persons, or a lawyer acting on their behalf, may request an EIO to be issued. The EIO can be issued to obtain evidence in all types of criminal proceedings, which raises proportionality issues, as well as in some administrative proceedings having a criminal dimension.

It will cover any “investigative measure” aiming at obtaining evidence in criminal proceedings, including interviewing witnesses and interception of telecommunications, and information on and monitoring of bank accounts. In fact, the proposal solely foresees few measures which would not be covered, including the gathering of evidence within a joint investigation team as provided in the Convention on Mutual Assistance in Criminal Matters between the EU Member States and in Council Framework Decision on joint investigation teams.

The original draft proposal contained no "proportionality" requirement hence member states would not have been required to show that obtaining evidence was necessary and proportionate for the purpose of the criminal proceedings to which the issuing of the EIO was related. The draft directive has been amended and it now provides for two conditions for issuing and transmitting an EIO. Under the final draft an EIO can only be issued if obtaining the evidence sought is necessary and proportionate for the purpose of the criminal proceedings and when the evidence could be obtained in the issuing state, under its law, in a similar case, if it was available on its territory. It remains to be seen whether the proportionality principle will be correctly applied.

It is important to note that the proposal does not provide for an EIO to be solely issued where there is dual criminality, and there is no "double jeopardy" requirement in the EIO. The executing authority must recognise and execute the EIO, without any further formality being required, and, it must, therefore, take all the necessary measures for its execution in the same way as if an authority of the executing State had ordered the investigative measure, unless it decides to invoke one of the grounds for non-recognition or non-execution.

The executing authority carries out of the measure itself in accordance to its law. For instance, the issuing authority is competent to decide whether or not the search of a house is a necessary measure in the case concerned but the law of the executing State will govern the modalities of the search. The Member State executing authority is required to comply, with all the formalities and procedures expressly indicated by the issuing authority, in order to ensure the admissibility of evidence, providing they are not contrary to its fundamental principles of law.

It is important to note that the draft directive would allow one or several authorities of the issuing State to assist in the execution of the EIO in support to the competent authorities of the executing State, at the request of the issuing authority. The executing authority must comply with such request, unless such participation is contrary to the fundamental principles of law of the executing State or it harms its “essential national security interests.” The issuing State’s authorities wont have law enforcement powers in the territory of the executing State, unless the issuing authority and the executing authority agreed on the execution of such powers. However, the executing state would be obliged to allow the presence and participation of police from the member state that issued the EIO.

The executing authority would be allowed to carry out a different type of measure than the one indicated in the EIO when the measure does not exist under the law of the executing State or it “would not be available in a similar domestic case.” However, this possibility it is not applicable to a list of measures, "which always have to available under the law of the executing State" including “the obtaining of information or evidence which is already in the possession of the executing authority and the information or evidence could have been obtained, in accordance with the law of the executing State”, “the obtaining of information contained in databases held by police or judicial authorities and directly accessible by the executing authority in the framework of criminal proceedings”, “the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of the executing State”, “any non-coercive investigative measure as defined under the law of the executing State” and “the identification of persons holding a subscription of a specified phone number or IP address.”

It is also important to mention that in all these cases the recognition or execution of the EIO cannot be refused on the basis of the double criminality principle, hence only general grounds for refusal will apply to these cases. The executing authority may also carry out other investigative measure other than the one indicated in the EIO if the measure selected will achieve the same result as the measure provided for in the EIO by “less intrusive means.”

The original draft proposal provided very limited grounds for non-recognition or non-execution of an EIO in the executing State comparing to the both mutual legal assistance instruments and the EEW. The grounds for refusal have been extended during the negotiations but they are still too narrow. Proportionality has not been included as a ground for refusal.

Under the original draft it would have only been possible to refuse, in case of immunity or a privilege under the law of the executing State which makes it impossible to execute the EIO, as well as if the execution of the EIO “would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities.” Moreover, the executing authority may refuse to execute the EIO if the measure concerned does not exist in the law of the executing State or if it is limited to a list or category offences, which does not include the offence mentioned in the EIO, and there is no investigative measure available which could achieve a similar result. There is also the possibility to refuse an EIO if it has been issued for non-criminal proceeding.

The draft directive now provides that the executing State may refused the recognition or execution of an EIO if “there are rules on determination and limitation of criminal liability relating to freedom of the press and freedom of expression in other media, which make it impossible to execute the EIO.”

Moreover, the execution of an EIO may be refused if it would be contrary to the double jeopardy (ne bis in idem) principle, which guarantees that no one is prosecuted more than once for the same facts. The addition of this new ground for refusal is definitely an improvement comparing to the original draft, however it would not prevent the possibility of people being subject to parallel prosecutions in different Member States and, accordingly, by different investigative measures.

It also now provides for the exception for territoriality, whereby an executing state may refuse to execute an EIO if under its law the criminal offences in question are regarded as having been committed, wholly or partially, in its territory, and “the conduct in connection with which the EIO is issued is not an offence in the executing State;” The Government is pleased with this provision as it means that “UK residents involved in conduct in the UK which is lawful here, but is unlawful in another Member State, cannot be subject to any investigative measure under the EIO.”

The government also believes that the new ground for refusal where the investigative measure would be incompatibility with EU fundamental rights, is a “significant improvement” as it “will provide additional protection to UK residents from EIOs that could breach their human rights”.

The dual criminality has been included in the last draft as a ground for refusal to execute an EIO. However, the Government was unable to include in the draft proposal “a full dual criminality ground for non-recognition”. Under the draft directive the executing state may refuse the recognition or execution of an EIO if “the conduct for which the EIO has been issued does not constitute an offence under the law of the executing State, unless it concerns an offence listed within the categories of offences set out in Annex D, as indicated by the issuing authority in the EIO, if it is punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years”. Yet, as the Government pointed out “a full dual criminality check cannot be applied to an EIO for coercive measures”. Consequently, the UK would have to comply with an EIO even though the act for which assistance is requested is not a criminal offence in this country.

The recognition or execution of an EIO may also be refused if “the use of the investigative measure indicated in the EIO is restricted under the law of the executing State to a list or category of offences or to offences punishable by a certain threshold, which does not include the offence covered by the EIO.” It is important to stress that these two last provisions do not apply to investigative measures above mentioned, which are mainly non-coercive investigative measures. Hence, these additional grounds only apply to coercive measures.

Whilst under the mutual legal assistance regime there is no obligation on time limits, the mutual recognition regime does provide for deadlines. The draft directive introduces a new principle that “the decision on the recognition or execution should be taken and the investigative measure should be carried out with the same celerity and priority as for a similar national case” and “within the deadlines provided …” The competent executing authority would have 30 days, after the receipt of the EIO, to decide on the recognition or execution of it, and then it would have 90 days to carry out the investigation measures. These new deadlines are likely to be a challenge to ensuring adequate time and facilities for the preparation of a defence.

The draft directive also foresees that an EIO might be issued for the temporary transfer of persons held in custody in the executing State in order to have an investigative measure carried out for which his presence on the territory of the issuing State is required. The executing authority may refuse the execution of the EIO on the grounds on lack of consent from the person concerned or if the transfer is liable to prolong his/her detention. The issuing State would bear the costs arising from the transfer.

The proposal will also allow an EIO to be issued for the hearing of evidence in the executing State by means of videoconference or telephone conference. Under the draft proposal the costs for the execution of an EIO would be borne by the executing Member State, except in exceptional circumstances, when both countries reached a compromise on costs that are to be considered as “exceptionally high.” If that is the case, part of these costs would be covered by the issuing State.

The European Investigation Order would entail an increased financial burden on the functioning of the cooperation between Member States in the field of obtaining of evidence yet an accurate impact assessment has not been provided. The UK will have 3 years, after the entry into force, to implement the EIO.

The Government by agreeing to the adoption of the Directive, has accepted to change national practice and procedures. James Brokenshire, the Immigration and Security Minister at the Home Office, explained to the European Scrutiny Committee that the main changes required to the existing UK mutual legal assistance system are: “reduced discretion to refuse to accept/execute an EIO”, a “standardised EIO form” and “creation of deadlines for accepting (30 days) and executing a request (90 days)”. According to the Government it would be particularly challenging to comply with the deadlines but it “will be working closely with law enforcement agencies and courts prior to implementation to ensure the deadlines can be met.”

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