Considerations regarding the Gavanozov II case before the CJEU

Scholars already pointed out on this blog that the EIO has far-reaching consequences for the protection of fundamental rights. It is a procedural legal instrument based on the principle of mutual recognition, aiming to enhance judicial cooperation between Member States in criminal matters. As such it necessarily has a nature of constricting human rights to a certain extent. This could be observed in the Gavanozov I case brought before the Court of Justice of the European Union (CJEU) as well. In the criminal proceedings brought against I. D. Gavanozov the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria) first decided to issue an EIO in which it requested Czech authorities to execute searches of home and business premises and seizure of certain items. However, the Bulgarian court also decided to initiate a preliminary ruling procedure since it found that the Bulgarian implementation of the EIO directive does not allow for challenging the substantive reasons of issuing an EIO if it concerned the above-mentioned investigative measures.

Its question referred to preliminary ruling concerned if the Bulgarian implementation of the EIO directive allowing legal remedies regarding the issuing of an EIO is in line with the right to an effective legal remedy and the directive itself if it precludes a challenge with regard to certain investigative measures, for example the search of home and business premises and the seizure of items. The underlying issue is that the Bulgarian implementation regulates legal remedies regarding the EIO much like legal remedies provided in a similar domestic case and its legislation on criminal procedure does not allow to challenge the issuing of all kinds of investigative measures but just a constricted number of them.

It is clear, that the above-mentioned investigative measures necessarily violate – or rather constrict – the right to respect for the private and family life of persons involved in the criminal procedure. However, such limitation of a fundamental right must be necessary and proportionate to the aim of the criminal procedure. Fulfilling these requirements is safeguarded by the right to effective legal remedy in cases when the intrusion of state actions into the private life of concerned persons is of a considerable nature capable of having adverse effects as well. This safeguard is lacking in the case in question. This is not a Bulgarian speciality. Hungarian legislation also operates with a similar rule on legal remedies regarding the issuance of an EIO. It only allows to challenge the lawfulness of issuing an EIO if the investigative measure requested in it could be challenged in a similar domestic case. Thus, it also provides a somewhat limited scope of legal remedies in comparison with the scope of the EIO (however wider than its Bulgarian counterpart). This brings us to the rather problematic conclusion that the right to legal remedies against the issuing of an EIO is of varying nature according to which Member State issued it.

Thus, the assignment for the CJEU is clear. It needs to decide whether such legislation violates either the right to respect for private life or the right to effective legal remedies or not. The Luxembourg court avoided doing so in the Gavanozov I case by reformulating the question referred to it. Nevertheless, it should be noted that AG Bot considered such national legislation transposing the EIO directive to be in violation of Art. 47. of the CFREU, the right to an effective legal remedy.

However, after a closer look at the case-law of the CJEU it does not come as a surprise that it avoided answering the question. Since the principle of mutual recognition has only been applicable during the phase of criminal investigations for a couple of years by the time it needed to deliver the preliminary ruling in the Gavanozov I case it did not have case-law on the underlying issue. Of course there is the case-law of the European Court of Human Rights (ECtHR) which dealt with the issue in a series of cases of which there is a landmark decision delivered in the Posevini v. Bulgaria (App. no. 63638/14) ECtHR (2017) with a quite similar underlying criminal procedure. The defendants turned to the Strasbourg court since searches of their homes and business premises as investigative measures could not be challenged according to Bulgarian criminal procedure. The ECtHR found that such legislation violates the right to an effective remedy (so this specific fundamental right’s violation may be found in the context of violating another fundamental right, e.g. the right to respect for private life). This is an obvious indication if the right to legal remedies was violated in the Gavanozov case.

Since the CJEU avoided answering the question referred to it in the Gavanozov I case the Bulgarian court initiated another preliminary ruling procedure with a slightly different question in the beginning of 2020:

“Is national legislation which does not provide for any legal remedy against the issuing of a European Investigation Order for the search of residential and business premises, the seizure of certain items and the hearing of a witness compatible with Article 14(1) to (4), Article 1(4) and recitals 18 and 22 of Directive 2014/41/EU 1 and with Articles 47 and 7 of the Charter, read in conjunction with Articles 13 and 8 of the ECHR?

Can a European Investigation Order be issued under those circumstances?”

The Gavanozov II case is now pending. In my opinion the CJEU could arrive at two different conclusions and ultimately both conclusions will tell us of the CJEU’s current approach to the system of judicial cooperation in criminal matters based on mutual recognition. It could find that the Bulgarian legislation indeed violates the right to an effective remedy. As such it would open the possibility to apply the fundamental-rights-rejection-clause provided in the directive (note that according to the Eurojust report of 2020 on the application of the legal instrument this rejection clause has yet to be applied). However, such a preliminary ruling would indirectly accept the fact that criminal justice system of Member States are unequal since the underlying issue is – as I have already referred to it – the varying nature of legal remedies provided by each Member State. Another possible conclusion of the CJEU could be that the Bulgarian implementation of the directive is insufficient since it does not always provide the possibility to challenge the substantive reasons for (the lawfulness of) issuing the EIO which is stipulated in Art. 14. Para. 2. of the EIO directive. Such a preliminary ruling could result in an infringement procedure brought against Bulgaria. This solution would not have as far-reaching consequences as the first one, however it could be pointed out that in case of such a preliminary ruling, common criteria need to be worked out which could be the basis for issuing an EIO. On the other hand, this brings us closer to the core idea of mutual recognition, namely that it requires Member States not to examine the lawfulness of issuing a decision subject to automatic recognition and execution.

In conclusion authors mainly emphasise that most legal issues which could be encountered in the framework of criminal justice cooperation points in the direction of a badly needed minimum harmonisation regarding the core concepts and instruments of criminal procedure. The Gavanozov cases show us that minimum harmonisation is needed regarding the right to legal remedies against the EIO as well since the varying nature of legal remedies provided by Member States could only be effectively solved with such an approach.

Dr. Szijártó István, University of Pécs, Faculty of Law