Directive 2014/41/EU does not include many provisions which directly address rights of the defence and the right to fair trial. There are however some concepts embedded in the Directive which seem to indirectly address the principle of equality of arms. What else could be the purpose of Article 1(3)?
The issuing of an EIO may be requested by a suspected or accused person, or by a lawyer on his behalf, within the framework of applicable defence rights in conformity with national criminal procedure.
However, the defence cannot use this article to use the resources of Member States to arbitrarily gather evidence of its choosing. Article 1(3) should instead be understood as an empty shell which can only be interpreted by taking into consideration national rules (if they exist). The effectiveness of the EIO as an instrument for the defence is therefore questionable at best.
As argued by Fauchon, “suspects are not offered a general right to request the issuing of an EIO across the EU. On the contrary, it would depend on whether the national law grants suspect a right to request the execution of an investigative measure in domestic proceedings.” What is more, there seems to be no obligation on the part of Member State to implement a special procedure which would allow for the defence to initiate the issuing of an EIO.
When the defence requests for the issuing of the European investigation order, the issuing authority is free to refuse such a request in accordance with the national law. This means that defendants in different Member States might me in very unequal positions when it comes to equality of arms.
Anyhow, during the interviews with attorneys the EIO-LAPD research team also stumbled upon further problems regarding the effectiveness of EIO as an instrument for the defence. Attorney Assist. Prof. Dr. Miha Šošić pointed out that even if adequate procedures for requests would be implemented, attorneys might still be reserved to use the EIO to obtain evidence from abroad.
When gathering new evidence, there is always a risk that it might harm interests of the attorney’s client. And when the gathered evidence goes through the hands of the prosecution (which is considered a judicial authority according to the Directive), the risk of gathering unknown evidence and giving it directly in the hands of the prosecution is usually not acceptable under the attorneys’ code of ethics.
It therefore seems that the option for the defence to request for the issuing of EIOs is more of a paper tiger than an instrument aimed at upholding the principle of equality of arms, further enabling disparity in protection of defendant’s rights across the EU.
Author: assist. Jan Stajnko, Faculty of Law, University of Maribor