Judicial cooperation in criminal matters is universally considered to be of paramount importance for the smooth functioning of the European area of freedom, security and justice without internal frontiers. In the European Union, this goal was inter alia pursued by adopting normative acts resting upon the principle of mutual recognition. The crucial instrument which applied this principle to the gathering and transfer of evidence in criminal cases is Directive 2014/41/EU regarding the European Investigation Order in criminal matters. There is however a plethora of theoretical and practical questions, which aroused with the adoption of the new directive. This is why seven higher education and research institutions teamed up to cooperate in a project called European Investigation Order – Legal Analysis and Practical Dilemmas of International Cooperation – EIO-LAPD.
One of the crucial normative acts falling within a group of Framework Decisions and Directives applying this principle to the gathering and transfer of evidence in criminal cases is the Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters, adopted on the 3rd of April 2014. The Directive was adopted out of necessity to create a less fragmented and more efficient instrument of transnational evidence gathering. This was not only achieved by limiting the number of grounds upon which the authorities in MS where the evidence is gathered (the executing authority) can refuse to obtain the evidence. It furthermore envisages the investigative measure to be executed according to the formalities and procedures expressly indicated in the European Investigation Order (EIO) by the issuing authority, thus increasing the probability of admissibility of the evidence in the issuing MS by drifting from the traditional locus regit actum to the execution in line with the forum regit actum principle. A simplified and swifter cooperation across the European Union is furthermore encouraged by the introduction of deadlines for issuing authorities, which represent a novelty in legal assistance procedures and are widely acknowledged as a pushing factor towards increased rapidity.
In May 2017, when the deadline for the implementation of the Directive expired, Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, in a European Commission press release emphasized the importance of the EIO for tackling terrorism and other forms of international crime: “Criminals and terrorists know no borders. Equipping judicial authorities with the European Investigation Order will help them cooperate effectively to fight organised crime, terrorism, drug trafficking and corruption. It will give judicial authorities access to evidence quickly wherever it is in the EU.” If MSs, on the other hand, lack an efficient instrument for cross-border evidence gathering, the fight against terrorism and international crime cannot be effective. The importance of the instrument can furthermore be demonstrated on crimes committed against and by migrants who, during the process of migration, cross multiple national borders within the EU. The cross-border evidence gathering mechanisms need to function smoothly and efficiently to fight cross-border crime and ensure the protection of fundamental rights.