The EIO-LAPD research group is proud to announce that the comparative report which addresses key issues as well as best practices gathered from practitioners is now available. To gather this valuable information, we interviewed public prosecutors, investigative judges, attorneys and other practitioners in Germany, Italy, Austria, Slovenia, Croatia and Portugal.

We are glad to report that the EIO is a well-functioning and useful instrument of mutual recognition. The overall feedback from issuing and executing authorities was overwhelmingly positive and it was stated multiple times that the EIO is an instrument which is used on a daily basis since it significantly simplified cross-border gathering of evidence. Some practical shortcomings were nonetheless identified. In final remarks, we shall lay out some of the most pressing issues.

Firstly, the use of (in-)secure communication channels emerged as a pressing concern. While the EIO form itself is mostly transmitted by issuing authorities by postal mail, the subsequent communication between the issuing and executing authorities is usually conducted via (not encrypted) email services or other insecure communication channels. Such practices are concerning since EIOs contain sensitive data related to the suspect or the accused.

What is more, if insecure communication channels (for example Google services such as Gmail) are used, sensitive data is transferred via servers which are not located within the EU. Such transfer of data does not only present a concern for protection of personal data, but national security concerns as well. We therefore strongly encourage all involved parties to facilitate the formation of a transnational online platform (communication hub) which would allow for encrypted and simplified communication as well as transfer of data between issuing and executing authorities.

Secondly, while the EIO form is certainly usable, there is little doubt that it could be improved in many ways. While a small number of practitioners reported that after a while they got used to filling out the EIO form, the majority argued that the form is not entirely logically laid out (for example duplication of information in different parts of the form; lack of certain checkboxes to be ticked when filling out the form; no place to indicate which annexes are sent with the EIO etc.). What is more, it seems that executing authorities encounter on a regular basis EIO forms which are not properly filled out (for example absence of essential information; lack of contact information of issuing authority; misplacement of information in wrong categories etc.).

Hence, we strongly support initiatives for training of issuing authorities in regards to proper filling out of the EIO form as well as drafting of respective guidelines for practitioners. What is more, we also strongly advocate for a creation of a working group tasked with improving the existing EIO form itself since we came to a conclusion that a more user friendly form would significantly facilitate cross-border gathering of evidence in the EU.

Thirdly, other areas where practitioner training and transfer of best practices would be beneficial were also identified. These include but are not limited to: the use and scope of the ne bis in idem non-recognition ground (especially how to deal with cases where the proceeding was stopped at the investigative/charge phase); responding to requests for execution of inexistent measures (some practitioners reported that they would flat out refuse the execution of such EIOs without prior consultation with issuing authority, while others even reported that they would carry out a different investigative measure without prior consultation); speciality rule (it was indicated by some practitioners that they would not seek a separate request before using the evidence for purposes other than the purpose stated in the original EIO); providing justifications for requests not to reveal a measure (not providing a justification might delay the execution of EIOs in some MS); requests for disclosure of traffic data (some practitioners indicated willingness to order for disclosure of traffic data via EIOs even if this would not be possible in their respective national system), accepting urgent EIO’s in English (some MSs still do not allow for this possibility) etc.

Lastly, we strongly urge all involved parties on EU as well as on national levels to re-evaluate the impact of the EIO on the rights of the accused and its compatibility with the principle of equality of arms in criminal proceedings. Significant problems were identified regarding the possibility of the defence to request issuing of an EIO. Some MS lack specific regulation on the procedure to request issuing of EIOs on the behalf of the defence. Hence, a lack of awareness of this possibility amongst attorneys was reported by some interviewees. What is more, in the light of the lack of specific national regulation, uncertainty regarding procedure after competent authorities decline the defence’s request to issue an EIO was also reported.

Moreover, in cases where the prosecution is the competent issuing authority, it is unrealistic to expect that attorneys will ask for the use of the EIO. There is always a risk that the revealed evidence will be harmful to their clients and fall into the hands of the prosecution (issuing authority). The existing framework (or lack thereof) in some MS might therefore be at odds with the principle of equality of arms in criminal proceedings.

Hence, we strongly advocate for a formation of a working group tasked with providing a comparative report on the implementation of the EIO Directive regarding the rights of the accused. Instead of the hands-off approach, clear guidelines should be presented to national lawgivers, explaining in more detail how to ensure for adequate implementation of the Directive, aimed at allowing the accused or suspect to request issuing of an EIO and to participate during the collection of evidence “within the framework of applicable defence rights” (Art. 1(3) of the Directive). What is more, additional awareness raising and training activities aimed specifically at attorneys (and not merely at issuing and executing authorities) are direly needed.

Authors:

Assoc. Prof. Dr. Miha Šepec, Unviersity of Maribor, Faculty of Law

Assist. Jan Stajnko, Unviersity of Maribor, Faculty of Law

Tamara Dugar, Intertrust Group