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The European Investigation Order for Evidence Gathering Abroad

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EU Criminal Justice

Abstract

In the context of the European Union, the structural differences between the various models of evidence-gathering has often been hindering the transnational circulation of evidence. The coming into force of the Lisbon Treaty has created the preconditions for a qualitative leap in European legal integration by establishing ‘minimum rules’ on the mutual admissibility of evidence between Member States. Even though the 2014/41/EU Directive on the EIO is the most advanced legislative act with reference to the ultra fines evidence-gathering in the European “regional” context, there has been no harmonising effect of the procedures aimed at making evidence mutually admissible wherever it is collected. Following a process characterised by an instance of simplified models and hybridism, the Directive has created a system of “blank procedural rules” which require being applied in compliance with fundamental human rights and fundamental principles of national systems, fully consistent with the principle of proportionality. However, entrusted to the wise evaluation of the judge in the specific case, these rules may create the danger to reduce the level of guarantees and to stop any future harmonisation of national systems.

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Notes

  1. 1.

    The limited scope of application of Framework Decision 2008/978/JHA—much more restricted than the one under traditional rogatory—and its substantial inadequacy gave rise to its abrogation by Regulation 2016/95/EU of the European Parliament and of the Council of 20th January, 2016.

  2. 2.

    In these terms Allegrezza (2008), p. 3886.

  3. 3.

    Tadic (2002), p. 4, emphasises in general terms how harmony is not synonymous with uniformity: uniformity has been associated with the idea of doing everything in the same way leaving no space for differences or peculiarities. Harmonisation (instead) is a mechanism by which things can function more efficiently and without conflict, leaving any differences or individual choices intact.” See also Amodio (2001), p. 553, who claims that there exist values which must be protected: that of the beauty of diversity. This teaches us that it is mistaken to believe in one European criminal procedure across all member States.

  4. 4.

    In reality, Directive 2014/41/EU on the European Investigation Order does not include a non-regression clause as opposed to the Directive on the rights of accused persons in criminal proceedings.

  5. 5.

    See the Stockholm Programme, 10–11th December 2009, in OJ 4th May 2010, C 115/1.

  6. 6.

    The reference is to the consultation initiated by the Commission within the EU member States by way of ‘Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its admissibility’, COM(2009)624 def.

  7. 7.

    The initiative came from Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden. On this, see Belfiore (2014), p. 207.

  8. 8.

    In these terms Spencer (2010), pp. 604f. It is understandable why some States are reluctant to abdicate their sovereignty, foregoing their own rules and evidentiary guarantees. See: Rafaraci (2014b), p. 38.

  9. 9.

    Daniele (2015), p. 87.

  10. 10.

    This approach is criticised in general terms by Bargis (2012), p. 920, and by Camaldo (2014), pp. 1ff.

  11. 11.

    Marafioti (2016), p. 22. More in general on the sterilising effect of harmonisation by mutual recognition, Mazza (2014), pp. 1401ff.

  12. 12.

    The EIO can be issued not only by a judge or a public prosecutor, but also by any other authority competent in carrying out investigations based on the national laws of the issuing State. In the case of police authority, however, the EIO must be validated by a judicial authority (Art. 2c) so as not to entirely entrust activities which might influence fundamental liberties into the hands of public security agencies.

  13. 13.

    Expressly stated in Art. 34 of Directive 2014/41/EU.

  14. 14.

    This is an undoubted merit of the Directive, according to Allegrezza (2014), p. 54.

  15. 15.

    See Belfiore (2014), pp. 147f; Caianiello (2015), p. 3, which speaks of the ‘syncretism’ of the Directive on the EIO since it seems to align with the development of mutual recognition although within it there are flexible solutions under the auspices of a rogatory regime.

  16. 16.

    The expression is Daniele’s (2016), p. 64.

  17. 17.

    Art. 1, para. 4, states that “This Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected”.

  18. 18.

    On the point see Marchetti (2015), p. 222.

  19. 19.

    The reference is to The European Convention on Mutual Assistance in criminal matters of the 1959 by the Council of Europe, to the related additional protocols and bilateral agreements concluded as per Art.26; to the Convention on the application of the Schengen Agreement (C.A.A.S.); to the Convention of Mutual Assistance in criminal matters between EU member States (Brussels, 2000); to the Framework Decisions 2008/978/JHA on the European Evidence Warrant and Framework decision 2003/577/JHA on orders freezing property or evidence. The substitution applies both to mutual assistance and mutual recognition instruments.

  20. 20.

    Consider specific forms of interception of telecommunication as set out by the Convention on cybercrime of the Council of Europe signed in Budapest, 23rd November 2001 and in force on 1st July 2004 once the minimum five ratifications were approved. Among the co-signatories not parties of the Council of Europe were the USA, Canada and Japan.

  21. 21.

    On the scope of application of the EIO, both ratione materiae and ratione personae, see Rafaraci (2014b), p. 39.

  22. 22.

    Notwithstanding Art. 34, b) of Directive 2014/41/EU expressly indicating the Convention implementing the Schengen Agreement among the “legal instruments, agreements and arrangements” which are subject to ‘substitution’.

  23. 23.

    According to Fiorelli (2013), p. 709, the 2000 Convention, as opposed to Directive 2014/41/EU, has not substituted the existing models. Even from Art. 1, the Brussels Convention aims to facilitate the 1959 European Convention of Mutual Assistance, its additional protocol of 1978, and all the other relevant conventional sources between member States, in particular the Convention implementing the Schengen Agreement (C.A.A.S.).

  24. 24.

    For a first comment on the law authorising the ratification of the 2000 Convention see La Rocca (2016), pp. 1ff; Triggiani (2016), pp. 1ff.

  25. 25.

    In these terms Daniele (2017), pp. 417f.

  26. 26.

    According to Rafaraci (2014b), pp. 40f, Art. 9, para.2, does not reduce the margin of choice of the issuing authority about the scope of application of the lex fori in the carrying out of the requested investigative measure.

  27. 27.

    According to Caianiello (2015), p. 10, it should be avoided that the authorities applying the EIO face too many difficulties in borrowing from the lex fori, thereby limiting any risks of error.

  28. 28.

    Critical of this formulation, Marchetti (2015), p. 224, who explains that it would have been preferable to oblige the participation of both the issuing judicial authority and the defence.

  29. 29.

    Fiorelli (2013), p. 712, note 36, highlights how this form of assistance is relevant for the criminal responsibilities of the issuing State’s officials, that, according to Art.17 of the Directive, “when present in the territory of the executing State … shall be regarded as officials of the executing State with respect to offences committed against them or by them during their stay in the foreign State of execution”.

  30. 30.

    See Caianiello (2015), p. 8, who says that such a ground for refusal might have been opposed where lis pendens occurs. However, he also observes that the best solution would be to identify “clear rules of attributing jurisdiction” so as to ensure the accused is not subjected to a number of procedures for the same ‘crime’. Only in this way would every reason be excluded for allowing a State not to cooperate just because the ‘crime’ took place wholly or in part in its territory. Similar perplexities are voiced by Fiorelli (2013), p. 714.

  31. 31.

    Belfiore (2015), pp. 3292f, observes that referring to the non-coercive nature of the measure compared to lex loci may create a disparity of treatment since a measure qualifying as such in one State may not qualify as such in another.

  32. 32.

    According to Daniele (2016), p. 64, we are facing “only an embryonic form of harmonisation”.

  33. 33.

    See Del Coco (2015), p. 8. What is interesting is that whereas the EU legislator is put to the test in codifying a ‘European model’ of investigation, he is worried about providing for an explicit probatory prohibition. The reference is Art. 31, para. 3, about interception of telecommunication where no technical assistance is needed: the competent authority of the notified Member States may, in case where the interception would not be authorised in a similar domestic case, notify the competent authority of the intercepting Member State that any material already intercepted while the subject of the interception was on its territory may not be used or may only be used under conditions which it shall specify.

  34. 34.

    As recalled by Caianiello (2015), p. 1, note 1, this would be fulfilled according to the Court of Justice’s method, 19th November 1991, Francovich, joined cases C-6/90 and C-9/90.

  35. 35.

    From the point of view of Daniele (2016), p. 65, such a duplication of checks represents the ‘ideal of dual legality’.

  36. 36.

    Caianiello (2015), p. 5, underlines how such a reference constitutes an evident legal assertion of the case-law in EAW matters. According to Daniele (2016), p. 76, the principle of proportionality derives from the general provision in Art. 52, para.1, of the Charter of Nice.

  37. 37.

    Daniele (2016), p. 65, defines the first check—on the relevance of evidence—as of ‘logical’ nature, whereas the second check—concerning the condition of a “similar domestic case”—as of judicial nature.

  38. 38.

    Fiorelli (2013), p. 711, as far as these two requisites are concerned, the check which must be carried out should always lead to the identification of a different measure compared to that solicited, so as to allow an “obligatory flexibility”; in the same terms see Del Coco (2015), p. 13.

  39. 39.

    This may happen within the limits imposed by the hypothesis in Art. 10, para. 2, according to which there must be full ‘accessibility’ and absolute ‘availability’ of investigative measures.

  40. 40.

    The words are from Daniele (2016), p. 66.

  41. 41.

    Save the mentioned hypothesis in Art. 31, para. 3, on interception of telecommunication.

  42. 42.

    Defence rights are expressly provided in Art. 1, para. 4, of the 2014/41/EU Directive since they are included within fundamental rights and the legal principles sanctioned by Art. 6 TUE; the Directive must comply with these rights and principles.

  43. 43.

    The reference is to Art. 1, para. 3, which provides that “The issuing of an EIO may be requested by a suspected or accused person, or by a lawyer on his behalf, within the framework of applicable defence rights in conformity with national criminal procedure”. This means being more open compared to the traditional mechanisms of judicial assistance in which the defence played a totally marginal role: the defence could only urge the Public prosecutor for help, ‘channelling’ through the prosecution for any investigative expectation (in these terms see Mangiaracina (2014), pp. 123f. On the defence promoting investigations abroad via the EIO, see Grifantini (2016), pp. 1ff.

  44. 44.

    This omission, referring to the Directive Proposal, was stigmatised by Ruggeri (2014), pp. 14f; analogous critical evaluations by De Amicis (2011), pp. 37f.

  45. 45.

    Thus Caianiello (2015), p. 8; in the same terms Daniele (2016), p. 69.

  46. 46.

    See Selvaggi (2016), pp. 73f.

  47. 47.

    As effectively highlighted, the EIO “transforms the precise national legislative rules on evidence into flexible principles which are fashioned on a case by case basis by the judiciary”: Daniele (2015), p. 87. See also Balsamo (2015), p. 239.

  48. 48.

    See Daniele (2015), p. 91; in the same terms Del Coco (2015), p. 10.

  49. 49.

    See Spangher (2016), p. 3053.

  50. 50.

    ECJ, 26th February 2013, C-399/11, Melloni; ECJ, 26th February 2013, C-617/10, Åkerberg Fransson.

  51. 51.

    On this point see Rafaraci (2014a), pp. 3f.

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  1. Department of Law, University of Catania, Catania, Italy

    Fabrizio Siracusano

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    Tommaso Rafaraci  & Rosanna Belfiore  & 

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Siracusano, F. (2019). The European Investigation Order for Evidence Gathering Abroad. In: Rafaraci, T., Belfiore, R. (eds) EU Criminal Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-97319-7_6

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