European Investigation Order Background and Context Steve Peers April 7, 2014 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 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 • • • • 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 • • • • 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 • • • • • • • • • • 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: speers@essex.ac.uk • Twitter: @StevePeers • LinkedIn • Editor of ‘EU Law Analysis’ blog: http://eulawanalysis.blogspot.co.uk/