The concepts of “judicial authority” and “issuing authority” have been the subject of some discussions and interpretations by the Court of Justice of the European Union relative to the European Arrest Warrant. Having transposed Directive 2014/41/EU, of the European Parliament and of the Council, of 3 April 2014, which gave rise to Portuguese law nº 88/2017, of the 21st of August, we sought to find if the interpretation sustained by that Court applies to the EIO mechanism in the same limiting terms. The problem centred upon the question of the independence of the Public Ministry in relation to the executive branch.
The Judgment of the Court of Justice of the European Union, of 8 December 2020, in Case C 584/19, clarified the issue. It is not indifferent whether the Public Prosecutor’s Office of a State has competence to issue an EIO or lacks prior authorization from a jurisdictional body as an entity that guarantees the rights, freedoms, and guarantees of citizens. Effectively, there are procedural acts of a probative nature, in Portuguese law, that need to be authorized by the criminal investigation judge or that must be performed by the criminal investigation judge himself (articles 268 and 269 of the CPP).
These articles refer the practice of jurisdictional acts that are reserved for the criminal investigation judge until the case is sent to trial and that can seriously and intrusively affect the fundamental rights of citizens, to obtain probative elements in the criminal process. The rules impose this legal requirement that conditions the validity, admissibility, and usability of evidence in domestic law. When transposing the Directive, subsection i) of section c) of Article 3 of Law nº 88/2017, of the 21st of August, defines «issuing authority» as the judge, court, judge that oversees the instruction phase and the Public Prosecutor’s Office, each one relative to the procedural acts within their competence.
In accordance with the Portuguese Criminal Procedure Code, the carrying out of evidentiary measures in the investigation phase is subject to the authorization or its practice by the criminal investigation judge, when they limit fundamental rights, thus enabling the Portuguese Public Prosecutor’s Office as the issuing authority. In turn, the Court of Justice of the European Union has established jurisprudence in the sense of not admitting as an “issuing judicial authority” the Public Prosecutor’s Office of Member States that are likely to be exposed to individual instructions by the executive branch, given their hierarchical structure and functional dependence on political power, namely the Ministry of Justice, in terms of the European Arrest Warrant.
Regarding the European Investigation Order, the case law of this Court has considered that this interpretation does not apply to it, due to procedural, guarantee, and teleological reasons. The Court emphasizes that the issuance and recognition of an EIO is subject to procedures and guarantees that are different from those governing the European Arrest Warrant, as the Public Prosecutor has to consider the principle of proportionality and the fundamental rights of the person concerned by the decision, which should be open to challenge (Judgment in Case C-584/19 Staatsanwaltschaft Wien/A. and Others, December 8, 2020 – AEA – EAL European Association of Lawyers (aea-eal.eu)).
The purpose of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between Member States (2002/584/JHA) is not equivalent to that of Directive 2014/41/ of the European Parliament and of the Council of 3 April 2014 relative to the European Investigation Order in Criminal Matters, since the first instrument results in the deprivation of liberty and the second cannot affect the freedom of the suspect or the accused, not being able to go beyond investigative measures that may prove to be intrusive.
Having interpreted the main precepts of Directive 2014/41/EU, the Court concluded that the Public Prosecutor’s Office of a Member State falls within the scope of the concept of “issuing authority”, regardless of the risks resulting from the existence of a relationship of legal subordination between the Public Prosecutor’s Office and the executive power of that State and the possible direct or indirect transmission of orders or individual instructions by that power. What is decisive is that the Public Prosecutor’s Office in the issuing Member State is competent in the case in question according to its domestic criminal procedural law.
Ana Paula Guimarães – Assistant Professor at Universidade Portucalense, Porto, Portugal;
Mário Simões Barata – Assistant Professor at Polytechnic of Leiria, Leiria, Portugal.