By Dr Arthur Azzopardi – Managing Partner
By means of Directive 2014/41/EU of the European Parliament and the Council dated 3rd April 2014, as subsequently published in the Official Journal of the European Union on the 1st May 2014, European Investigation Orders, became possible.
The raison d’être behind EIOs is to ensure a faster and more efficient manner of preservation and transmission of evidence situated in one territory of the Union, when that same evidence is required in another Union member state to be used in criminal trials.
This system, one may opine, has generally improved upon the previous traditional regime of letters rogatory both in terms of speed and in terms of efficiency.
Yet, this tool being only 9 years old, is far from perfect and potentially still must pass from further vetting by the Courts of Justice of the European Union.
The most notable of such tests took place on the 11th November 2021, in the case C-852/19 as a result of a preliminary ruling request made by the Specialised Criminal Court of Bulgaria in the criminal proceedings brought against Ivan Gavanozov.
The criminal case in Bulgaria against Gavanozov centred around running an organised group and of having committed tax offences. The Bulgarian authorities, in pursuance of their investigation and eventual prosecution, wanted to effect searches and seizures and hear a witness in the Czech Republic on the basis of an EIO.
Gavanozov opined differently. He claimed that Bulgarian law lacked any legal remedy both against the issuance of the EIO and the lawfulness of searches and seizures/witness hearings and as a result was in breach of his rights.
The Specialised Criminal Court of Bulgaria, referred the matter to the CJEU, asking:
- whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, and Articles 7 and 47 of the Charter of Fundamental rights of the European Union, read in conjunction with Articles 8 and 13 European Convention on Human Rights, must be interpreted as precluding legislation of a Member State which has issued an EIO that does not provide for any legal remedy against the issuing of an EIO the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference?
- whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, as well as Articles 7 and 47 of the Charter, read in conjunction with Articles 8 and 13 ECHR, must be interpreted as precluding the issuing, by the competent authority of a Member State, of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such an EIO.
The CJEU after having considered all the legal arguments brought forward by the parties and all relevant legisiation, decided by way of reply to each of the questions:
- Article 14 of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, read in conjunction with Article 24(7) of that directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of a Member State which has issued a European investigation order that does not provide for any legal remedy against the issuing of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference.
- Article 6 of Directive 2014/41, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 4(3) of the Treaty on European Union, must be interpreted as precluding the issuing, by the competent authority of a Member State, of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such a European investigation order.
The Court in reaching its conclusion followed the Opinion of Advocate General Bobek whereby he concluded in no uncertain terms that all issued acts will, by default, be tainted because the legislation under which they were issued was itself incompatible. He refers to the ECtHR, which repeatedly found that the absence of remedies against investigative measures in Bulgaria, such as searches and seizures, is in breach of the minimum standards of Art. 13 ECHR (the right to an effective remedy). As long as the Bulgarian legislature does not remedy this situation, Bulgaria is in constant breach of fundamental rights and can therefore not take part in the mutual recognition scheme brought about by the EIO.
The concept of mutual recognition and mutual trust has as a rule the fact that when the executing authority is required to recognise an EIO transmitted in accordance with Directive 2014/41, without any further formality being required, and is to ensure its execution in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing Member State, that authority must be sure that the issuing State complies with the EU’s fundamental rights. This includes the persons’ right to contest the need and/or lawfulness of an EIO and to obtain appropriate redress if an investigative measure has been unlawfully ordered or carried out.
Since the lack of legal remedies against the investigative measures in question and the issuance of an EIO in the current Bulgarian legislation infringes Art. 47(1) of the Charter and also rebuts the presumption of mutual trust, Bulgaria is not able to issue EIOs anymore.
Unfortunately, the situation in Malta does not differ from the situation in Bulgaria!