Recently, the CJEU got its first chance to interpret some provision of the Directive 2014/41/EU regarding the European Investigation Order in criminal matters.
The ruling (C-324/17, Gavanozov, 24 October 2019) concerns difficulties which the Specialised Criminal Court of Bulgaria encountered difficulties in completing Section J of the EIO form set out in Annex A to Directive 2014/41, which deals with legal remedies. The referring court noticed that Bulgarian law does not provide for any legal remedy against decisions ordering a search, a seizure or the hearing of witnesses.
The referring court in Bulgaria therefore asked, »in essence, whether Article 5(1) of Directive 2014/41, read in conjunction with Section J of the form referred to in Annex A to that directive, must be interpreted as meaning that the judicial authority of a Member State must, when issuing an EIO, include in that section a description of the legal remedies, if any, which are provided for in its Member State against the issuing of such an order.«
The CJEU ruled that »the issuing authority does not, when issuing an EIO, have to include in Section J of the form set out in Annex A to Directive 2014/41 a description of the legal remedies, if any, that are available in its Member State against the issuing of such an order.« The CJEU offered a pragmatic solution to the case which differs quite substantially from the opinion of AG Bot of 11 April 2019.
AG noticed that »inability in Bulgaria of a third party subject to investigative measures such as searches or seizures to challenge the substantive reasons behind those measures is a blatant lack of effective protection of that right.« His conclusion was that if no remedies exist in the issuing state, the form cannot be completed and the EIO therefore not issued.
Legal scholars are pointing out that this ruling (once again) brought to light the somewhat troubling relationship between mutual trust and fundamental rights. They are warning of »the risks of shifting from mutual legal assistance to mutual recognition, including that of increasing the difficulties for the defence to challenge evidence collected abroad.«
Jan Stajnko is a research and teaching assistant at University of Maribor, Faculty of Law, Chair for Criminal and Criminal Procedural Law.
Prof. Dr. Mário Simões Barata is an Assistant Professor at Polytechnic Institute of Leiria, Legal Sciences Department.