The EIO: the end of MLA as we know it?
ECLA Seminar
7 April 2014
Jodie Blackstock
Director of criminal and
EU justice policy
The EIO from a procedural rights
perspective
• Does the EIO demonstrate an evolution in
rights protection?
• Can it solve (some of) the problems with the
European arrest warrant (EAW)?
European Investigation Order – a
directive
• Replacement of substantial body of MLA
agreements
• Complex and detailed instrument
• Four years in the making
• European Parliament co-decision
Does the EIO demonstrate an
evolution in rights protection?
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Language of rights – post Lisbon measure
Role for procedural safeguards
Grounds of refusal
Legal remedies
Language of Rights
• Recital 12:
IA should pay particular attention to ensuring rights
pursuant to article 48 CFR. Presumption of innocence
and rights of defence are a cornerstone of FR. Any
limitation must be in accordance with article 52 CR:
necessary, proportionate, legitimate objectives
• Recital 18:
standard para. on non-modification of rights BUT
operative provision in text
Role for procedural safeguards
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Article 2(c)(ii) – validation by judicial authority
Article 6 – conditions for issuing and transmissionIS may only issue where:
(a) necessary and proportionate taking into account rights of suspected or
accused person
(b) the measure could have been ordered in the IS
Article 10(3) – ES recourse to a different measure if same result can be
achieved through less intrusive means
Article 11(4) – consultation about grounds for refusal
Article 13(2) - suspension of transfer of evidence
pending a decision on a legal remedy
Article 14(3) - shall ensure information is provided about mechanisms to
seek legal remedies, where it would not undermine confidentiality of
investigation
Article 20 – Protection of personal data
Grounds for non-recognition/
execution
• Article 11 – ES may refuse where:
(a) Immunity or privilege
(b) National security or intelligence activities
(c) For ‘administrative’ offences in the ES the measure
could not be applied
(d) Ne bis in idem
(e) Terrritoriality
(f) Incompatible with article 6 TEU and CFR
(g) Double criminality
(h) Measure is restricted to category excluding this offence
(unless article 10(2) applies)
Legal Remedies
• Article 14
(1) MS must ensure remedies equivalent to available in a domestic case are
available
(2) substantive reasons can only be challenged in IS (subject to guarantees of
fundamental rights available in ES)
(6) Shall not suspend execution, unless would do so domestically
(7) IS shall take into account a successful challenge. Shall ensure the rights of
the defence and fairness of proceedings are respected when assessing
evidence
• How will this operate in practice? Will it be effective?
• Is it to invoke a ground of refusal or something else?
• NB – there is otherwise no right to a hearing specified
Can the EIO solve (some of) the
problems with the EAW?
• Proportionality
• Issue prior to ‘criminal prosecution’
• Detention pre-trial for lengthy periods
and in poor conditions
EAWS: ensuring an effective defence (2012)
• 72 cases between 19 MS
• 25% raised a HR issue
• 10% refused, almost all on technical grounds (non
for HR reasons)
• 28% withdrawn
• 51% involved lawyer in IS
• 30% related to acts prior to 2005 (range of
seriousness)
• No proportionality check
• Resort to EAW prior to proper search for suspect –
MLA measures ineffective
• Lengthy PTD but in many cases, short sentences
• Major upheaval to ES life
• Where ES refuses surrender, the person is trapped
• Some/all parts where RP cannot obtain legal
assistance
• Substantial no. of lawyers insufficiently experienced
to act in EAW cases
• Significant problems with interpretation and
translation
European Parliament Resolution on
EAW
• Agreed 27 February 2014. Makes recommendations
to the Commission for all MR measures:
• Validation by IS judge
• A proportionality check
• A consultation procedure
• Refusal where incompatible with human rights
• Effective legal remedy
EIO directive includes these measures to
regulate its own operation
Reduced need for EAW?
• Access to investigative measures to progress police
investigation prior to charge
• Article 22 – Temporary transfer with consent of a
person held in custody in order to gather evidence
• Article 24 - Hearing by audio-visual transmission
with consent of experts, witnesses and suspects
• Article 25 – Hearing by telephone?
Framework for less intrusive means to
investigate cross border crime
Effective defence rights?
• Potential for significant volume of requests (approx.
15,000 EAWs issued in 2011)
• Roadmap for strengthening procedural rights of
suspects and accused persons in criminal
proceedings
• Only applies to domestic and EAW cases
• Will it be possible to effectively defend against EIOs
w/o a built in hearing and w/o roadmap rights?