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European Investigation Order Background and Context Steve Peers April 7, 2014.

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1 European Investigation Order Background and Context Steve Peers April 7, 2014

2 Council of Europe 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

3 EU Conventions Schengen, Arts : 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

4 European Evidence Warrant Framework Decision, adopted 2008 Deadline to apply: Jan 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

5 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)

6 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

7 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

8 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 opt- out, 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?

9 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

10 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

11 EIO – main features 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

12 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

13 EIO – main points 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

14 Contact details Steve Peers Professor of EU & Human Rights Law, University of Essex LinkedIn Editor of EU Law Analysis blog:

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