THE EUROPEAN INVESTIGATION ORDER EIO A NEW TOOL

THE EUROPEAN INVESTIGATION ORDER (EIO) A NEW TOOL IN JUDICIAL CO-OPERATION IN CRIMINAL MATTERS LONDON- 5 TH DECEMBER 2018 ECLA CONFERENCE FRANCIS H. CASSIDY NATIONAL MEMBER FOR IRELAND EUROJUST

A EUROPEAN INVESTIGATION ORDER (EIO) IS A JUDICIAL DECISION WHICH HAS BEEN ISSUED OR VALIDATED BY A JUDICIAL AUTHORITY OF A MEMBER STATE TO HAVE ONE OR SEVERAL SPECIFIC INVESTIGATIVE MEASURE(S) CARRIED OUT IN ANOTHER MEMBER STATE TO OBTAIN EVIDENCE IN ACCORDANCE WITH THIS DIRECTIVE. MEMBER STATES SHALL EXECUTE AN EIO ON THE BASIS OF THE PRINCIPLE OF MUTUAL RECOGNITION AND IN ACCORDANCE WITH THIS DIRECTIVE. (article 1 (1) (2) of the Directive 2014/41/EU 2

MLA instruments on evidence gathering • 1959 Convention on MLA + 2 Protocols • 1990 Convention Implementing the Schengen Agreement • 2000 Convention on MLA + Protocol • 2002 FD on Joint Investigation Teams (2002/465/JHA) • FD on Freezing of evidence* * mutual recognition instrument 3

Mutual Recognition as a new paradigm • Natural evolution of the system • Positive aspects – EIO (as EAW did) replaces the old system – Clarifies the actors and rules ‐ deadlines, uniform templates (annexes), limited system of refusal grounds • Negative aspects – – Risks of malfunctioning Cumbersome system of refusal grounds Article 34 (“corresponding provisions” ‐ uncertainty) DK and IE are not in 4

A Natural Evolution 1959 MLA Convention 2000 MLA Convention ‐Inv. measures (art. 3(1)) ‐Direct service of writs (art. ‐Any investigative measure with the 5) exception of JITs and the gathering of evidence within such a team -Spontaneous exchange of ‐Temporary transfer (arts. 22&23) information (art. 7) ‐Hearing by video (art. 24) or telephone ‐Hearing by video (art. 10) conference (art. 25) or telephone conference -Information on bank accounts (art. 11) 26) ‐Controlled deliveries (art. -Gathering of evidence in real time, 12) e. g. controlled deliveries (art. 27) ‐Service of writs (art. 7) ‐Info from judicial records (art. 13) ‐Temporary transfer (art. 11) EIO Directive -JITs (art. 13) ‐Covert investigations (art. 14) ‐Covert investigations (art. 14) ‐Interception of telecommunications (arts. 30&31) ‐Interception of telecommunications (arts. 17‐ 22) 5

The EIO in practice Issuing Transmission Recognition and validation Execution

The EIO in practice – The issuing phase Issuing authority (Article 2): – Judicial authority (Judge, court, investigative judge, prosecutor) competent in the case concerned – Any other competent authority as defined by the issuing State, but subject to validation by a judicial authority 7

Issuing judicial authority; The executive • The ECJ has determined that the term issuing judicial authority (albeit when dealing with the EAW) is an automatous concept of EU law and • must be interpreted as precluding an organ of the executive, such as – the Lithuanian Ministry of justice (Case C‐ 477/16/PPU) – The Swedish police board. (Case‐ 452/16 PPU). • The term must be distinguished in accordance with the principles of separation of powers, which characterises the operation of the rule of law. 8

Public prosecutors • On the question of Public prosecutors, acting as judicial authorities, note Ozcelik; ( Case C‐ 453/16 PPU) – It appears that they have an obligation to objectivity and that they are the guarantors of the rule of law and lawful procedural processes. The Public Prosecutor’s Office has its own section in the German Court Constitution Act and the German court has stated that the Public Prosecutor’s Office and the court fulfil together the task of granting justice. • An alternative process whereby the police issue the warrant, but it is subsequently endorsed by a prosecutor, is acceptable. 9

The EIO in practice – The issuing phase Preliminary assessment CONDITIONS to be verified by the issuing authority (Article 6): • The issuing authority must check if the measure is necessary & proportionate; • The issuing authority must check, as well, if the measure could have been ordered under the same conditions in a similar domestic case. REMARKS: → The Execution of the EIO is governed by the law of the executing MS; →However, the executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority if not contrary to the fundamental principles of law of the executing MS ‐ (Article 9) 10

Necessary and proportionate – The two words mean different things. • The issuing authority needs to be satisfied that there is an appropriate balance between the disruption caused by the measure and the potential benefit to the investigation, • while determining that an order is necessary presupposes a conclusion there is no other alternative investigative measure by which this evidence can be collected. 11

Article 6. 1. (b) Is that what Irish prosecutors do that at present? • “could have been ordered under the same conditions in a similar domestic case”. • Taking of Evidence: S 62 Criminal justice (mutual assistance) 2008. • Search for Evidence; S 73. CJ (M/A) 2008. • DPP versus Damache (Supreme Court) • Independence; Morris Tribunal 12

The EIO in practice – The issuing phase Content – article 5 The EIO shall, in particular, contain the following information: a) a description of the investigative measures(s) requested and the evidence to be obtained – Section C and H (specific measures); b) the necessary information on the person(s) concerned – Section E; c) the object of and reasons for the EIO with a description of the criminal act which is the subject of the investigation or proceedings, and the applicable provisions of the criminal law of the issuing State – Section G; d) data about the issuing authority and, where applicable, the validating authority – Section K; 13

The EIO in practice – Transmission (Article 7) Transmission of EIOs directly between issuing and executing authority “With a view to ensuring the transmission of the EIO to the competent authority of the executing State, the issuing authority make use of any possible or relevant means of transmission, for example (…) Eurojust” – recital 13 of the Directive Under article 9 b of the Eurojust Decision (Ordinary powers), National Members, in their capacity as competent national authorities, may receive, transmit, facilitate, follow up and provide supplementary information in relation to the execution of EIOs (instruments giving effect to the principle of mutual recognition, in the wording of the Decision). 14

The EIO in practice – Transmission REMARKS: ─ If the identity of the executing authority is unknown, the issuing authority can consult the EJN contact points or the respective national member at Eurojust; ─ When several EIOs are to be transmitted in a coordinated way to several MS, EUROJUST might be the preferred option; ─ Same when a coordinated execution is needed. 15

The EIO in practice – Execution Executing authority (Article 2): – Authority having competence to recognise an EIO and ensure its execution • No common criteria • Purely domestic decision – Central Authority? – Ministry? 16

The EIO in practice – Execution Recognition Rule: • “Obligation to execute” (Article 1) • “without any further formality being required” (Article 9. 1. ) authority. BUT subject to recognition by the executing The principle of mutual recognition does not dispense a specific proceeding in the executing State with the purpose of rendering enforceable an EIO issued by the competent authorities of the issuing State. 17 17

“ordre public” • Article 10. 4; – The executing authorities shall comply provided such assistance is not contrary to the fundamental principles law of the executing state • Convention of 1959; Article 2 – Assistance may be refused if the requested party considers the execution of the request is likely to prejudice the sovereignty, security ordre public or other essential interests of the country 18

Key difference? • Request for mutual assistance in criminal matters. • Coercive order is made by requested state. • Proportionality and necessity responsibility of Requested state • Mutual recognition of order • Issuing State makes order • Proportionality and necessity responsibility of issuing state 19

“Preliminary” Recognition procedures Checks on the scope: • Concerning an investigative measure and the gathering evidence (except JITs) ‐ measures out of the scope of the EIO • Issued with respect to the type of proceedings mentioned in article 4 of the EIO Directive. Checks on form and content: ‐ Annex A was used and duly filled; ‐ ‐ Linguistic issues The lack of signature 20

The EIO in practice – Execution Recognition Grounds for non-recognition/non-execution – Grounds for refusal (Article 11) • In line with other MR instruments, but some changes and some new grounds (e. g. human rights or “the measure would not be authorised in a similar domestic case” ) – Incomplete EIOs or signed by wrong authority are sent back (Article 9(3), 16(2)(a)) 21

The EIO in practice – Execution Recognition Recourse to a different investigative measure (Article 10): – If the measure does not exist in the executing MS and it is not one of the measures included in Art. 10(2); – If it would not be available in a similar domestic case; • Just an example: replacing a search and seizure for a production order might have irreversible consequences in the chain of custody of e‐evidence. • Belgium Case In more complex situations, Eurojust can organise coordination meetings with the involved national authorities, giving them the chance to personally address these issues. 22

The EIO in practice – Execution Recognition Also: If a less intrusive measure would achieve the same result (risk for proportionality check by executing MS? ) The role of Eurojust in helping the involved authorities finding the well-balanced measure 23

The EIO in practice – Execution Mandatory deadlines (Article 12) The decision on the recognition shall be taken and the execution of the measure shall be carried out “with the same celerity and priority as for a national case” • Mandatory deadlines : ‐For taking the decision (30 days +30 days) ‐For taking the measure (90 days after the decision) • Provisional measures (Article 32) – decision, where possible, in 24 hours 24

SPECIFIC PROVISIONS FOR CERTAIN INVESTIGATIVE MEASURES

A smooth evolution 2 nd additional Measures Temporary transfer of a person held in custody Directive Conv. Co. E 1959 Conv. EU 2000 11 9 Videoconference 24 10 Telephone conference 25 11 Information on Bank accounts 26 Information on Bank operations 27 Gathering of evidence in real time 28 Interception of telecommunications Conv. EU 22 23 Covert investigations Protocol to the 1 2 3 29 14 30 18 31 20 26

Investigative measures 1. Temporary transfer of a person in custody (art. 22 and 23) 1. 2. To the issuing State – To the executing State ‐ Consent, guarantee custody, immunity of 2. Hearing by videoconference (art. 24) – agree on practical arrangements 1. 2. 3. In case of defendant/suspect: consent All cases: contrary to fundamental principles Right not to testify 3. Hearing by telephone conference (art. 25) – witnesses or experts only 1. Follows the regime of videoconference, but no need for consent 27

Investigative measures 1. Information on Bank and other financial accounts (art. 27) issuing authority shall indicate: – • • • the reasons why it considers that the requested information is likely to be of substantial value for the purpose of the criminal proceedings concerned; on what grounds it presumes that banks in the executing State hold the account and, to the extent available, which banks may be involved ‒ An EIO can also be issued with reference to the financial operations conducted by non-banking financial institutions. In such case and in addition to the grounds for non‐recognition and non‐execution referred to in Article 11, the execution of the EIO may also be refused where the execution of the investigative measure would not be authorised in a similar domestic case. 28

Investigative measures 1. Investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time (art. 28º): a) the monitoring of banking or other financial operations b) controlled deliveries Covert investigations (art. 29) 29

Investigative measures Interception of telecommunications (art. 31) Interception of telecommunications with technical assistance of another Member State: The EIO shall also contain the following information: a) information for the purpose of identifying the subject of the interception b) the desired duration of the interception; and c) sufficient technical data, in particular the target identifier, to ensure that the EIO can be executed Such an EIO may be executed by: a) transmitting telecommunications immediately to the issuing State; or b) intercepting, recording and subsequently transmitting the outcome of interception of telecommunications to the issuing State 30

Investigative measures Interception of telecommunications (art. 31) Where subject of the interception is being used on the territory of another Member State from which no technical assistance is needed to carry out the interception, the intercepting Member State shall notify the competent authority of that Member State of the interception by using the form set out in Annex C. The notification shall be made: ‐ prior to the interception; ‐ during the interception or immediately after it becomes aware that the subject of the interception is or has been during the interception, on the territory of the notified Member State. 31

Points for discussion • I. Legal and practical issues in relation to: – Content and form of the EIO – Issuing and transmitting of an EIO – Recognition and execution – Specific investigative measures – Speciality rule • II. Role and interaction of competent authorities involved: E. g. Issuing authorities; executing authorities; law enforcement authorities; validating authorities; central authorities. • III. Use of EIO vis‐à‐vis other legal instruments: E. g. Spontaneous exchange of information, Lo. Rs, freezing orders, EAWs, JITs 32

I. Legal + practical issues in relation to: (1) Content and form of the EIO: • The standard form (Annex A) • Information or documents to be –or not to be‐ provided by the issuing authority: e. g. original court order, national law • Language of the form and translation issues (2) Issuing and transmitting of an EIO: • • Proportionality check EIOs for several investigative measures EIO issued in multilateral cases EIOs supplementing an earlier EIO Way of transmitting the EIO Impact of the new validation procedure Transmission in urgent cases 33

I. Legal + practical issues in relation to: (3) Recognition and execution of an EIO: – Recourse to a less intrusive investigative measures – Use of grounds for non‐recognition – Modalities to execute the order – Time limits and consequences of non‐compliance – Costs (4) Specific investigative measures: – Hearing by videoconference (of the suspects; of the victims; in the trial phase) – Hearing by telephone conference (only for witnesses and experts, or also for suspects and accused persons? ) – Use of Annex C form (5) Speciality rule 34

II. Competent authorities involved – How do you see the different roles of issuing authorities, executing authorities, validating authorities, law enforcement authorities and central authorities working in practice? – Have you encountered any difficulties or challenges coming from the distribution of competences among different authorities under the EIO regime in your country or in other Member States? – Do you see any advantages in relation to the role of a receiving authority within the PPO? 35

III. Use of EIO vis-à-vis other legal instruments – How do you experience the use of EIOs vis-à-vis other co-existing legal instruments e. g. spontaneous exchange of information, Lo. Rs, freezing orders, EAWs, JITs? Do you have any cases where there was a need to coordinate the use of different legal instruments? – Meaning of the term “corresponding provisions” (Article 34 EIO DIR): Have you come across any difficulties in determining in practice whether a provision of a MLA Convention was replaced by the EIO Directive or not? 36

Contact Information Francis H. Cassidy National Member for Ireland fcassidy@eurojust. europa. eu +31 70 412 5190 www. eurojust. europa. eu 02/03/2021 Welcome to Eurojust 37