After the Staatsanwaltschaft Wien judgment (C-584/19) in December 2020, on 16 December 2021 the European Court of Justice (ECJ) issued a second judgment dealing with the public prosecutor as an issuing authority of the European Investigation Order (EIO). In the Spetsializirana prokuratura judgment (C-724/19) the ECJ was dealing with the powers of public prosecutor to issue an EIO. In this case, the Bulgarian Public Prosecutor’s Office, as the authorized authority to issue EIOs in the pre-trial phase of criminal proceedings under the Bulgarian Law on the European Investigation Order, on 15 August 2018 issued four EIOs to obtain traffic and location data relating to telecommunications in Belgium, Germany, Austria and Sweden, although according to the national Code of Criminal Procedure such an order in the pre-trial phase is issued by the court at the request of the public prosecutor. A Belgian investigating judge, unlike the other executing authorities, transmitted a decision recognising the EIO addressed to the Belgian authorities. In order to assess whether the indictment is well-founded, Bulgaria’s Specialised Criminal Court has referred the ECJ two preliminary questions:
(1) is the national law, according to which the authority competent to issue an EIO for the provision of traffic and location data related to telecommunications is a public prosecutor, consistent with Article 2(c)(i) of the EIO Directive and the principle of equivalence, provided that in an identical domestic case the competent authority is a judge?
(2) Does recognition of that EIO by the competent authority of the executing State replace the court order required under the law of the issuing State? (par. 26).
With regard to the first question, the Court ruled that the Article 2(c)(i) of the EIO Directive should be interpreted as precluding a public prosecutor from having competence to issue an EIO in the pre-trial phase of criminal proceedings seeking to obtain traffic and location data associated with telecommunications, where, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure seeking access to such data.
With regard to the second question, the Court has ruled that the recognition, on the part of the executing authority, of an EIO cannot replace the requirements applicable in the issuing State, i.e. court order where required for obtaining such data in a similar domestic case. The Court’s judgment in Case C-724/19 shows that the public prosecutor’s power to issue EIOs independently may be limited in cases where the EIO seeks the execution of a coercive investigative measure that infringes on the rights of the individual. The EIO Directive itself does not contain a rule on which investigative measures require a court order, but the decision is left to each Member State. The rule is that public prosecutor cannot issue an EIO for an investigative measure where he is not authorized to do so in domestic criminal proceedings.
Implications of the judgment on national legal systems can be considered on the example of the Croatian legal system. According to the the Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union (Zakon o pravosudnoj suradnji u kaznenim stvarima s državama članicama Europske Unije, Narodne novine, no. 91/2010, 81/2013, 124/2013, 26/2015, 102/2017, 68/2018, 70/2019, 141/2020) authorizes the state attorney’s office and court conducting the proceedings to issue an EIO (Art. 6(2)), but is silent on the need for the state attorney to obtain a court order to conduct evidentiary actions in the case where such an order is sought in domestic proceedings. In that regard, the EIO-LAPD Croatian national report (EIO-LAPD-National-Report-Croatia-final.pdf) established that the majority of the interviewed state attorneys and judges would, as the issuing authority, request a court order when sending an EIO if the order is necessary for a certain measure in Croatian legal system. Since there is no clear practice on this issue, it would be best to make a legislative amendment, which would introduce the obligation for the state attorney to seek a court order for an investigative measure in the event that such an order is required in domestic proceedings.
As regards the execution of the EIOs, the judgment is relevant because the executing authorities will need to take into account whether the issuing public prosecutor is authorized to conduct a sought investigative measure without a court order in domestic criminal proceedings. The Croatian national report showed that the most of state attorneys and judges would request a court order before executing the EIO if a court order is needed in Croatian criminal proceedings. However, the Judgment adds a new aspect: whether the issuing public prosecutor is competent to conduct an investigative measure in a similar domestic case. Therefore, the Croatian executing authorities will have to check whether the issuing public prosecutor needs a court order for conducting investigative measure in similar domestic case. A legislative solution that could be considered is whether an additional precondition for the execution of the order could be introduced – whether the issuing authority (public prosecutor) is authorized to order investigative measure or measures in similar domestic case.
Authors: prof. dr. Elizabeta Ivičević Karas, assoc. prof. dr. Marin Bonačić, assoc. prof. dr. Zoran Burić, assist. prof. dr. Aleksandar Maršavelski