On the 11th of November 2021, the CJEU adopted the much anticipated judgement related to the Case Gavanozov II – C‑852/19. Other authors who publish on this blog already outlined the facts of the case and discussed the potential far-reaching consequences of this judgement for the protection of fundamental rights even before it was issued. In this short contribution, we want to discuss how the court assessed the Bulgarian legislation in light of the right to effective legal remedy.

In its ruling, the CJEU first observes that the wording of Articles 14(1) and 14(2) of the Directive does not require Member States to provide additional legal remedies:

  1. Member States shall ensure that legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicated in the EIO.
  2. The substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State, without prejudice to the guarantees of fundamental rights in the executing State.

The CJEU however observes that Member States are required to ensure compliance with the right to effective remedy in accordance with Article 47(1) of the Charter of Fundamental Rights of the European Union:

  • Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Hence, a suspect concerned with intrusive investigative measures such as searches and seizures which interfere with his or her private and family life, home and communications must therefore be able to exercise his right to effective remedy. The CJEU further notes that “it is for the Member States to provide in their national legal orders the legal remedies.”

The executing authority is, in principle, obliged to recognize an EIO without further formalities. What is more, substantive reasons for challenging an EIO may only be challenged in the issuing Member State. The CJEU argued that a suspect may therefore only effectively exercise his rights enshrined in Article 47 of the Charter when he has a legal remedy available in the issuing Member state. The CJEU then extended this reasoning from EIOs aimed at carrying out searches and seizures to EIOs aimed at hearing of hearing of witnesses by videoconference.

In light of all these considerations, the CJEU ruled that where the issuing state does not provide for legal remedies against issuing of EIOs aiming at searches and seizures as well as hearing of witnesses by videoconferences, they are precluded from issuing EIOs.

Judgement of the CJEU in Gavanozov II goes a long way to ensure  a more comprehensive protection of the right to effective remedy in Directive 2014/41/EU. On the other side, this judgement also presents a blow to the principle of mutual recognition and its underlying core idea of trusting other Member States’ legal systems. It shows that in order to uphold the principle of mutual recognition, a minimal harmonization of the structure of legal remedies in the EIO issuing procedure is necessary. It might therefore be prudent to put more emphasis on the rights of the defense when amending the EIO Directive or adopting other similar instruments in the future.

Author: as. Jan Stajnko, Faculty of Law, University of Maribor