Directive 2014/41/EU was adopted on the 3rd of April 2014 and implemented in all EU Member States except Ireland and Denmark. European investigation order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State to have investigative measure(s) carried out in another Member State to obtain evidence. It is without doubt the most revolutionary instrument of international cooperation. Not even a decade flew by and the EIO has already become the leading instrument for cross-border gathering of evidence.

However, it would not be realistic to expect that an instrument of such gravitas would be without any shortcomings. Identifications of such shortcomings was the focus of the project EIO-LAPD. The open dilemma that I will address in this short contribution are problems related to the ne bis idem non-recognition ground.

The ne bis in idem non-recognition can be found in Article 11(1)(d) of the Directive:

Without prejudice to Article 1(4), recognition or execution of an EIO may be refused in the executing State where:

(d) the execution of the EIO would be contrary to the principle of ne bis in idem.

Dilemmas regarding this non-recognition ground are scarce in cases where legal proceedings are concluded with a final judgement (res judicata). They might however occur when simultaneous investigations are ongoing in two or more Member States; or when one Member State discontinues the investigation in early phases of criminal investigations or without involvement of the court. These dilemmas may only be properly addressed with an overview of relevant case law of the ECHR and ECJ.

The case law of the ECHR regarding the ne bis in idem principle used to be very fragmented. This changed in 2009, with the judgement in case Zolotukhin v. Russia. In this judgement, ECHR argued that Article 4 of Protocol No. 7 to the ECHR must be understood as prohibiting the prosecution or trial of a second offence in so far as it arises from identical facts or facts which are substantially the same. This safeguard is activated whenever the state engages in new prosecutions, where a prior acquittal or conviction has already acquired the force of res judicata.

However, as pointed out by ECHR in 2015 when delivering a judgement in case Boman v. Finland, Protocol No. 7 is not breached if there is a sufficiently close connection between proceedings, both in substance and in time. For example, the state is allowed to established a legal framework which calls for multiple sanctions to be imposed on the defendant in parallel or even subsequent proceedings, insofar as all these proceedings can be seen as a part of a broader unified proceedings which are all related to the same factual circumstances.

More importantly, in judgement from 2014 regarding case Trabelski v. Belgium and judgement from 2018 regarding case Krombach v. France, the ECHR reiterated that Protocol No. 7 does not secure the ne bis in idem principle in respect of prosecutions and convictions in different States. Nonetheless, one still needs to take into account international obligations arising from the European Convention on the International Validity of Criminal Judgements, Charter of Fundamental Rights of the European Union (Charter), Convention implementing the Schengen Agreement (CISA), European Convention on Extradition and European Convention on the International Validity of Criminal Judgements.

Standards for the protection set in these legal acts are above the minimal threshold set by the ECHR, at least when it comes to crime with cross-border elements. In its judgement from 2003 regarding joined cases C-187/01 and C-385/01 (Hüseyin Gözütok and Klaus Brügge), ECJ ruled that the ne bis in idem principle also applies to decisions definitively discontinuing prosecutions in a Member State, even where such decisions are adopted without the involvement of a court and do not take the form of a judicial decision. Where such a decision is adopted, the rule of the first applies – such decision barres any further prosecution in other Member States.

This doctrine was further developed in judgement from 2016 regarding case C-486/14 Piotr Kossowski). ECJ ruled that the ne bis in idem rule will arise only when a person’s trial has been finally disposed of within the meaning of Article 54 of the CISA. This means that further prosecution needs to be definitively barred in the Member State for Article 54 to take effect. What is more, the decision needs to be given after a determination as to the merits of the case.  If no detailed assessment whatsoever of the unlawful conduct alleged against the accused is made, the ne bis in idem rule is not activated.

Upon presenting the relevant case law, it is clear that executing authorities who receive an incoming EIO should be able to carefully analyse the scope of the investigation if they suspect that the ne bis in idem non-recognition ground might be activated in the present case. To determine if the EIO is to be recognised and executed, it needs to be carefully determined if a final decision was adopted in another Member State, and furthermore if such a decision was adopted after a determination as to the merits of the case.

 

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

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