Art 11 para 1 point f EIO Directive explicitly formulates a ground for refusal of the recognition or execution of an incoming EIO due to a fundamental rights violation. This is a novelty compared to other European instruments of cross-border judicial cooperation. Accordingly, the executing state may refuse the recognition or execution of an EIO if it would violate Art 6 TEU or the CFR. This ground for refusal was adopted almost verbatim in the Austrian implementation law (§ 55a para 1 point 7 EU-JZG).
The fundamental rights refusal ground is to be used restrictively in the system of mutual recognition and is to be applied only in the case of a justified presumption of a serious violation of fundamental rights.
The scope of the ground for refusal is extremely controversial, especially with regard to the question of whether the lack of urgency of the suspicion or the disproportionate nature of the investigative measure can constitute an infringement of fundamental rights within the meaning of Article 11 para 1 point f of the EIO Directive.
The fact that the ground for refusal, in accordance with the system of mutual recognition, concerns the violation of fundamental rights by the execution of the EIO and not that by the issuing of the investigative measure, speaks for the fact that disproportionality does not fulfill the ground for refusal. The examination of proportionality and necessity is primarily the responsibility of the issuing authority pursuant to Art 6 para 1 EIO Directive. This was also the opinion of the Vienna Higher Regional Court, which rejected the examination of the proportionality and urgency of the suspicion by the executing authority (Vienna Higher Regional Court, 21.12.2018, 22 Bs 256/18k).
However, the executing authority has at least indirectly the possibility to examine the proportionality itself through the consultation procedure in Art 6 para 3 of the EIO Directive, in which it can express its doubts about the proportionality and urgency of the suspicion of the crime, and through the possibility to resort to other or less intrusive investigative measures pursuant to Art 10 para 1 point b and para 3 of the EIO Directive.
In Austria, section 55b of the EU-JZG in particular serves to uphold the principle of proportionality with regards to the execution of an EIO and makes it possible in practice to “defuse” incoming investigation orders by choosing less intrusive measures. In practice, too, the examination of proportionality by the executing authority is very much carried out, albeit not within the framework of the fundamental rights ground for refusal, but under the conditions of Section 55b EU-JZG.
Since the scope of the fundamental rights ground for refusal is so controversial and its application in practice is not clear, clarification of its scope by the ECJ in the course of preliminary ruling proceedings is long overdue.
Author: Mag. Lara Unger BA, research and teaching assistant at the Institute for Criminal Law, Criminal Procedure Law and Criminology at the University of Graz.