Abstract
This paper focuses on pros and cons of the draft Directive on the European Investigation Order with the purpose of identifying what would have a positive impact on current legal assistance and what would affect it negatively. This paper also puts forward some considerations on mutual admissibility of evidence in the area of freedom, security and justice. Although admissibility is not specifically addressed by the draft Directive, it is a topical issue anyway, since Art. 82(2)(a) of the Treaty on the functioning of the EU provides that Member States may establish minimum rules on mutual admissibility of evidence, to the extent necessary to facilitate mutual recognition of judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension.
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Notes
- 1.
The only Member State that implemented the FD on the EEW is Denmark. See Rackow and Birrp (2010), p. 1108.
- 2.
Brussels, 11 November 2009, COM(2009) 624 final.
- 3.
OJ C 115, 4 May 2010, p. 1.
- 4.
- 5.
In critical terms see Spencer (2007), p. 477, who affirmed that the existing acquis on evidence and evidence-gathering does not amount to a coherent system. As the list of legal instruments concerning mutual legal assistance lengthens, so the fragmentation becomes ever worse.
- 6.
Article13 of the EU Convention on mutual legal assistance and FD 2002/465/JHA on JITs continue to apply. As clarified in the Explanatory Memorandum [2010/0817 (COD) Brussels, 3 June 2010, p. 5] of the draft Directive, the added value of the JIT is precisely that evidence freely circulates within the team, which means that there is no need for an EIO among its members.
- 7.
For some critical remarks on the FD EEW see: Belfiore (2009), pp. 4ff.
- 8.
The only exception applies to covert investigations. Article 27a(4) provides that covert investigations shall take place in accordance with the national law and procedures of the Member State on the territory of which the covert investigation takes place.
- 9.
However, the authorities of the issuing Member States shall be bound by the law of the executing Member State during the execution of the EIO. They shall not have any law enforcement powers in the territory of the executing Member State, unless the execution of such powers is in accordance with the law of the executing Member State and to the extent agreed between issuing and executing authorities [Art. 8(3)(a)]. The authorities of the issuing Member States present in the executing Member State may address an EIO which supplements the earlier EIO directly to the executing authority, while present in that State [Art. 7(2)], without the necessity to transmit it via central authorities, where they exist in accordance to Art. 6(2).
- 10.
Some derogations to the general regime are provided in terms of additional grounds for refusal.
- 11.
Hearing by videoconference may also represent an effective alternative to surrender, so as to contribute to the moderate use of EAWs. On other positive effects of videoconferences, see Marchetti (2011), pp. 139ff., and Piattoli (2007), pp. 151ff. For some critical remarks, see Blackstock (2010), p. 496.
- 12.
As clarified in the Explanatory Memorandum (fn. 6), p. 14, the scope of the EIO being much wider (the EEW covered only pre-existing evidence), the 60 days period provided in the FD EEW is extended to 90 days in this proposal. See also Marchetti (2011), p. 164.
- 13.
As pointed out by Lach (2009), p. 107, it happens that the execution of requests takes several months, or that a request “disappears” without any answer from the requested State.
- 14.
Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Brussels, 11 April 2011, COM(2011) 175 final.
- 15.
During the period taken into consideration, between 51 and 62 % of requested persons consented to their surrender.
- 16.
See the Explanatory Memorandum (fn. 6), p. 13.
- 17.
On proportionality and the EAW see Vogel and Spencer (2010), pp. 474ff.
- 18.
The Council has recommended that “[…] the competent authorities should, before deciding to issue a warrant, consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, (…) the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence. Other factors also include ensuring the effective protection of the public and taking into account the interests of the victims of the offence.” See Council conclusions on follow-up to the recommendations in the final report on the fourth round of mutual evaluations, concerning the European arrest warrant, Brussels, 28 May 2010, 8436/2/10, REV 2, p. 3.
- 19.
- 20.
We do not share the view of Heard and Mansell (2011), p. 357, who affirm that the proportionality assessment is to be welcomed as it prevents ‘forum shopping’, understood as the unfair advantage that prosecutors may take from differences between countries’ procedural systems. Proportionality is assessed according to national law and can be hardly circumvented by the issuing authority.
- 21.
For further comments on proportionality, see Belfiore (2014).
- 22.
See, however, Bachmaier Winter (2010) pp. 583f., who says that, like for the check on proportionality, requiring the check on admissibility by the issuing authority does not make any difference, since this condition will be assessed anyway (see above nt. 21). We believe that the prognosis on admissibility of evidence should not be given for granted, since this may not be required under national law.
- 23.
This is the interpretation given by Heard and Mansell (2011), p. 361.
- 24.
The same doubt is raised by Heard and Mansell (2011), p. 361.
- 25.
- 26.
- 27.
For some critical remarks on the system of legal remedies as framed under the draft Directive, see Blackstock (2010), pp. 494f.
- 28.
In favour of a similar scenario, see Allegrezza (2010), p. 576.
- 29.
The Tampere Conclusions state that evidence lawfully gathered by one Member State’s authorities should be admissible before the courts of other Member States, taking into account the standards that apply there. European Council of 15–16 October 1999, Conclusions of the Presidency—SN 200/1/99 REV 1.
- 30.
See also Belfiore (2009), pp. 6ff.
- 31.
- 32.
- 33.
- 34.
Spencer (2007), pp. 474f.
- 35.
The Model Rules are available at: http://www.eppo-project.eu/index.php/EU-model-rules/english.
- 36.
See the Introduction to the Model Rules, available at the same IP address.
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Belfiore, R. (2014). Critical Remarks on the Proposal for a European Investigation Order and Some Considerations on the Issue of Mutual Admissibility of Evidence. In: Ruggeri, S. (eds) Transnational Evidence and Multicultural Inquiries in Europe. Springer, Cham. https://doi.org/10.1007/978-3-319-02570-4_7
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