European Investigation Order: Background and Context

Report
European Investigation Order
Background and Context
Steve Peers
April 7, 2014
Council of Europe
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1959 Mutual Assistance Convention
- all Member States, all 47 CoE states and 3 more
1978 Protocol to Convention
- all Member States, 13 more CoE states (not
Swiss/Liech) and 2 more
• 2001 Second Protocol to Convention
• - 19 Member States (not AU, CY, FI, DE, GR, HU, IT,
LUX, ES), 11 more CoE states (not IC, LIECH) and 2
more
EU Conventions
• Schengen, Arts. 48-53: applied by all MS, and
4 Schengen associates
• Mutual Assistance Convention, 2000: in force
in 24 Member States (not GR, IT, HR, IE), plus
Norway and Iceland, in part Swi/Liech
• Mutual Assistance Protocol, 2001: in force in
23 Member States (not GR, EE, IT, HR, IE), plus
Norway and Iceland, in part Swi/Liech
European Evidence Warrant
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Framework Decision, adopted 2008
Deadline to apply: Jan. 2011
Applied by SLVN, NE, FI, DK
Only applies to certain forms of evidence, not
applicable to: interviews, statements; bodily
examinations; obtaining real-time information;
analysing documents; intercepting telecommunications
• Co-exists with other legal instruments (art 21)
• So can use mutual assistance treaties in specific cases
where this would facilitate cooperation, or if there is a
wider request for evidence
European Investigation Order
• Proposed 2010, by group of Member States
(to forestall Commission proposal)
• Lengthy negotiations within Council, then
between Council and EP, concluded late 2013
• Formally adopted March 2014; OJ publication
pending
• Deadline date: 3 years after entry into force,
which is 20 days after OJ publication (so
probably late April or May 2017)
European Investigation Order
• Applies to all MS except IE and DK
• Full jurisdiction of CJEU applies to post-Lisbon
measures (ie all courts, all participating
Member States; final court must refer;
infringement proceedings possible)
• No prospect of UK opt-out once it opts in to a
post-Lisbon criminal law measure, as it did
here
EIO Directive
• Relations to other legal rules:
• Art 34: replaces ‘corresponding provisions of’ Council of
Europe Conventions, and bilateral treaties; EU Conventions;
Schengen Convention
• EEW Framework Decision replaced entirely; also 2003
Framework Decision on freezing orders re assets and
evidence, as regards evidence
• Bilateral agreements still allowed if they strengthen the
aims & simplify or further facilitate evidence gathering,
subject to respect for level of safeguards in the Directive
• Transitional provision – prior rules apply to requests
received before the transposition date
UK opt-out
• No opt-out possible from EIO Directive – but it does
not apply until spring 2017
• UK govt position, will not seek to opt back in to, EU
convention and protocol, EEW; so they cease to apply
as of 1 Dec. 2014; will seek to opt back in to Schengen
MLA provisions – requires unanimous vote in Council
• Council can adopt transitional rules regarding the optout, will not apply to UK as such
• JHA opt-out does not apply to CoE conventions – but
will other Member States treat UK as a third State
under those conventions?
Main features of Directive
• Art 1: all forms of evidence (except Joint
Investigation Teams); can be requested by the
defence; principle of mutual recognition
• Art 1.4: does not affect human rights
obligations, incumbent on courts
• Art 2: issuing authorities not just courts and
prosecutors, but if not the request must be
validated
EIO – main points
• Art 6: only issued if necessary and proportionate,
could have been issued in domestic proceedings
• Conditions assessed by issuing authorities, but
executing authorities can consult on this
• Art 9: obligation to recognise unless a ground for
non-recognition applies
• Art 10: can use different evidence gathering
method in some cases, ie requested method does
not exist in executing state; but some methods
must always exist
EIO – main features
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Art 11 – grounds for refusal, including:
immunity or privilege;
national security;
ne bis in idem; extraterritoriality with lack of dual
criminality;
• ‘substantial grounds to believe’ that execution
would breach Art 6 EU/Charter;
• lack of dual criminality, subject to EAW list with
three-year threshold
EIO – main points
• Art 14 – legal remedies
• Same as in similar domestic proceedings
• Substance can only be challenged in issuing state,
subject to HR obligations
• Must usually inform about remedies
• Effective time-limits for remedies
• Non-suspensive effect, unless this applies to domestic
cases
• Issuing State must take a successful challenge into
account, ensure rights of defence and fairness of
proceedings when assessing evidence in EIO
EIO – main points
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Art 15 – postponement in some cases
Chapter IV – specific types of investigations
Art 22, 23 – temporary transfer
Art 24 – videoconference hearing
Art 25 – telephone hearing
Art 26, 27 – bank accounts
Art 28 – real-time gathering of evidence
Art 29 – covert operations
Chapter V (Arts 30, 31) – telecom interception
Chapter VI (Art 32 – provisional measures
Contact details
• Steve Peers
• Professor of EU & Human Rights Law,
University of Essex
• E-mail: [email protected]
• Twitter: @StevePeers
• LinkedIn
• Editor of ‘EU Law Analysis’ blog:
http://eulawanalysis.blogspot.co.uk/

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