Emilio De Capitani and Steve Peers
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 of Fundamental Rights. 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 cross-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 2008 Framework Decision on the European evidence warrant; 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 so took part in the vote even if
by …abstaining. (Note: by so doing it also avoided national parliamentary scrutiny).
Due to the position
of Ireland and Denmark, the former Framework Decision on the European Evidence
Warrant 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 [on the European Evidence Warrant] 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.
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 usually made only generic reference to protection of fundamental rights in
mutual recognition instruments (one exception is the Framework Decision on the
mutual recognition of financial penalties).
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 2013/48/EU on the right of access to a lawyer and the right to
communicate when deprived of liberty.
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.
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