In a previous contribution to this blog Jan Stajnko and Mário Simões Barata commented the CJEU´s first ruling on the European Investigation Order (EIO) in Case C-324/17, Gavazonov, 24th October 2019, and pointed out to the fundamental rights objections in the Opinion of the Advocate General Yves Bot of 11 April 2019 and the criticisms expressed by legal scholars.
The CJUE ruled that the national issuing authority does not have to include a description of the legal remedies available in the issuing State to challenge an EIO when it fills out Section J of the form that can be found in the Annex to the EIO Directive. This interpretation of Article 5 (1) and points i) and ii) of Section J of the form is based on a textual reading of the legal norms as well as a teleological analysis of the EIO Directive (2014/41/EU).
However, the Advocate General “took a road less travelled by” and arrived at a very different conclusion. The AG’s approach adopts a systematic reading of the EIO Directive and concludes that EIO Directive requires that anyone who has been the subject of a search, seizure, or questioning has the right to a legal remedy in order to challenge the substantive reasons subjacent to the decision that ordered the investigate measure.
In Case C-324/17, the Bulgarian Code of Penal Procedure does not foresee a legal remedy or a safeguard to challenge a judicial decision that orders a search or seizure. Therefore, it does not comply with fundamental rights laid down in the European Convention on Human Rights nor is it line with the Charter of Fundamental Rights of the European Union (CFREU).
In the Opinion of the AG Bot the Bulgarian legislation is contrary to Article 47 of the CFREU. He considers that Article 14 of the EIO must be interpreted in a sense that the national judicial authority of an issuing State can not resort to an EIO if its domestic legislation does not consecrate a legal remedy designed to challenge the grounds for requesting an investigate measure.
The AG´s Opinion and the comments made by legal scholars raise an important issue that is tied to the necessity of protecting fundamental rights when public power orders an investigate measure that can be considered to be intrusive and susceptible of violating the rights of the persons involved. Furthermore, the CJUE’s ruling is criticized for having preferred expediency and the celerity of judicial cooperation in penal matters.
In sum, the necessity to observe fundamental rights at both the domestic and European level may require a legislative alteration to the EIO Directive to rebalance the interests involved.
Prof. Dr. Mário Simões Barata is an Assistant Professor at Polytechnic of Leiria and a Researcher at the Portucalense Institute for Legal Research (IJP-IP Leiria).
Jan Stajnko is a research and teaching assistant at University of Maribor, Faculty of Law, Chair for Criminal and Criminal Procedural Law.