Mutual recognition in criminal matters and legal remedies: The first CJEU judgment on the European Investigation Order
International instruments on judicial cooperation in criminal matters are designed to facilitate and accelerate the cooperation between enforcement authorities in different countries. The EU legislator pursues these goals by grounding the cooperation system on the principles of mutual trust and mutual recognition. In the field of evidence, the European Investigation Order (Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters) is the most recent and comprehensive instrument. Following the model of mutual recognition instruments, it allows an issuing authority to order the execution of an investigative measure in another Member State, unless the executing authorities in that State invoke one of the expressly-indicated grounds for refusal.
One of the crucial issues in the field of international cooperation has always been the position of individuals vis-à-vis the authorities of two or more cooperating States. By nature, the defence encounters several difficulties when facing international cooperation of judicial and investigative authorities, due for example to differences between national systems, or simply to practical difficulties (language, procedures, costs, etc.). Therefore, although international cooperation has developed in the first place to meet the needs of prosecution, and not to facilitate the exercise of defence rights, EU and international instruments normally address key questions like: where, how, and when can individuals exercise their defence rights and seek legal remedy against decisions that affect their fundamental rights?
Recently, the CJEU had the chance to interpret for the first time some provisions of Directive 2014/41/EU and provide some clarification on the level of safeguards that needs to be provided ‘in practice’ (C-324/17, Gavanozov, 24 October 2019). Although it is a brief judgment that ultimately deals only with the interpretation of the form contained in an Annex to the Directive, the questions it raises touch upon broader and more fundamental issues of transnational enforcement.
- The problem
In criminal proceedings against Mr Gavanozov, the Bulgarian authorities ordered the execution of search and seizure at the office of a company established in the Czech Republic, and at the home of its legal representative, Mr. Y (who was not a suspect but merely a witness, i.e. a person ‘concerned’ by the investigative measures).
Directive 2014/41/EU does not lay down harmonised rules on legal remedies, but provides that 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’ (Art. 14(1)). In this case, facing a decision affecting his right to privacy, Mr. Y could have challenged the decision of the Czech executing authority to recognise and execute the EIO before Czech courts and applying Czech law, as if that decision were adopted in a Czech domestic case.
Like other EU instruments, however, it is specified that the ‘substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State’ (Art. 14(2)), thus in this case in Bulgaria. This follows the rationale of mutual recognition, whereby the executing authority should not look at the merits of the case, but trust the assessment of necessity and proportionality made by the issuing authority, and recognise the EIO ‘without any further formality’ (Art. 9(1)), with exceptions limited to specified grounds for non-recognition or non-execution. In other words, according to this model based on trust, the issuing authorities are considered to be in a better position to gauge the ‘substantive reasons’ for the order.
To facilitate recognition of EIOs, Directive 2014/41 – like the other mutual recognition instruments – provides that the issuing authority fills out the form contained in Annex A, and transmits it to the executing authority. Section J of the form requires the issuer to indicate ‘if a legal remedy has already been sought against the issuing of the EIO’ (point 1), and the details of an authority in the issuing State which can supply ‘further information on procedures for seeking legal remedies in the issuing State’ (point 2).
The problem in Gavanozov was that Bulgarian law does not provide for any legal remedy – i.e., any possibility to challenge the ‘substantive reasons’ as required by Art. 14(2) EIO – against decisions ordering such investigative measures against a witness.
Given the impossibility to properly fill out Section J of Annex A, the Bulgarian issuing authority referred to the CJEU some questions for a preliminary ruling, in essence aiming at clarifying: (a) whether the absence of such a legal remedy in the issuing State is compliant with EU law; (b) if not, what the consequences are (i.e., what the issuing and executing authorities should do when dealing with a similar situation); and (c) whether Art. 14(2) EIO has a direct ‘and immediate’ effect, obliging Bulgaria to grant a concerned person the possibility to challenge a court decision even if this is not provided by national procedural law.
- The judgment of the CJEU
After reformulating the questions, the CJEU focused on the interpretation of Section J of the form in Annex A, read together with Art. 14(5) Directive 2014/41. Point 1 of Section J of the form requires the issuing authority to indicate ‘if’ a legal remedy has been sought in the issuing state, and ‘if so’ to ‘provide further details (description of the legal remedy, including necessary steps to take and deadlines)’. In addition, Art. 14(5) obliges issuing and executing authorities to inform each other about legal remedies ‘sought’ against the EIO, i.e. not about all legal remedies available. In other words, according to the CJEU, there is no obligation to indicate in the form all available remedies.
Beside this textual interpretation, the CJEU recalled the main objective of this instrument of ‘facilitating and accelerating judicial cooperation between Member States on the basis of the principles of mutual trust and mutual recognition’ (§35). From this perspective, the form contained in Annex A is ‘intended to provide the minimum official information’ necessary for the executing authority to decide on the recognition of the EIO (§36).
Therefore, while avoiding answering all referred questions – the compatibility of the Bulgarian system with the EIO, the possible consequences of a negative assessment and the direct effect of this instrument – the CJEU offered a pragmatic solution to the case, by concluding that Directive 2014/41/EU should not be interpreted as requiring the issuing authority to include in the Annex a description of the legal remedies provided in the issuing countries, if those remedies have not been sought or do not exist.
- An alternative approach: the opinion of the AG
Those who were expecting, from the first CJEU judgment on the EIO, important clarifications on the key issues raised by the referring court, were probably a bit disappointed by the approach followed by the CJEU. Even more, after reading the opinion of AG Bot of 11 April 2019, whose analysis goes in a different – nearly opposite – direction.
Like the Court, the AG too started with the textual interpretation of Directive 2014/41/EU, namely of Art. 14(1) on legal remedies. He observed that the EU legislator must have assumed that remedies against investigative measures were available in domestic cases, when obliging Member States – if not to establish additional remedies – to make the existing remedies for domestic cases available in EIO procedures (§55). In his view, Art. 13(2) – which provides that the transfer of evidence may be suspended, pending a decision regarding a legal remedy – confirms the assumption of the legislator that such remedies would be available (§53).
In this regard, the AG emphasised the importance of providing such remedies for concerned persons other than the suspect and accused person, since Art. 1(4) EIO ‘did not confine the obligation to respect fundamental rights to the rights of the defence of persons subject to criminal proceedings’ (§59).
Furthermore, he focused on Section J of the Annex, namely on its second point requiring the issuing authority to indicate the authority which can supply ‘further information on procedures for seeking legal remedies in the issuing State and on whether legal assistance and interpretation and translation is available’. Such a provision – he observed – is important to ensuring the effectiveness of the grounds for refusal, namely that provided by Art. 11(1)(f) concerning a potential violation of fundamental rights in the issuing state (§76).
The AG also looked at the bigger picture and reflected on the overall setting of cooperation based on mutual recognition. In contrast to the CJEU, however, which only focused on the main objective of speeding up judicial cooperation, the AG looked at the ‘other side’ of mutual recognition and mutual trust, stressing the rebuttable presumption of compliance with adequate standards of fundamental rights protection. In this regard, he concluded that if a Member State is unable to offer legal avenues to all ‘concerned persons’ to challenge measures affecting their right to privacy, other States can legitimately believe that in that there is a ‘blatant lack of effective protection of that right’ in the issuing country (§82).
This reasoning led the AG to consider, first of all, that the absence in Bulgarian law of such a remedy against an investigative measure ordered against a witness does not comply with Directive 2014/41. Second, and more importantly, he believed that, as a consequence of such a situation, the CJEU should conclude that Bulgarian authorities are precluded from issuing a EIO. If the Annex cannot be duly completed, the EIO should not be issued (§77). If it cannot be presumed that a Member State respects fundamental rights, mutual trust cannot be required from other states and ‘mutual recognition cannot be implemented or taken advantage of by that Member State’ (§83).
Furthermore, the AG also addressed the issue of the potential direct effect of the Directive. After recalling the Court’s case law on the direct effect of ‘unconditional and sufficiently precise’ provisions of a non-implemented directive, he distinguished the case of legal remedies available in similar domestic cases, from the lack of any remedy for concerned persons in similar investigative procedures. In the first case, Directive 2014/41 could have a direct effect, and the person ‘could rely on the equivalence assumed in Article 14(1) of Directive 2014/41’ (§97). On the other hand, where remedies are not available in similar domestic cases, the AG was of opinion that such a procedural remedy cannot be created ex nihilo if it does not exist at all in national law (§98); therefore, the only solution remains launching infringement proceedings for failure to transpose the Directive correctly (§99).
- Some ‘new old’ remarks on mutual recognition, harmonisation, and fundamental rights
The utter distance between the opinion of the AG and the decision of the CJEU in Gavanozov is revealing of the precarious stability of the Area of Freedom, Security and Justice (AFSJ) built upon the mutual recognition principle, or at least of its ‘paradoxes’ (see Luchtman). It also shows the incompleteness of the existing legal framework and the importance of certain policy choices that should be made when adopting new instruments. In this regard, it is worth highlighting three dimensions:
- On effectiveness. In some way, both the CJEU and the AG recognised the importance of interpreting the Directive in order to ensure its effectiveness. But effectiveness has ‘many faces’: while the CJEU focused on the main objective of facilitating judicial cooperation, the AG embraced a broader vision encompassing the necessity to make sure that the grounds for refusals – which end up hindering cooperation – could be effectively invoked. He underlined the importance of the ground for refusal based on a potential violation of fundamental rights, which for the first time was expressly included in a mutual recognition instrument. In literature, the ‘symbiotic relationship’ between mutual trust and fundamental rights has been widely analysed; in the specific context of evidence, it is worth mentioning that already in the debate preceding the adoption of the EIO, some scholars (see, among others, Bachmaier Winter) had warned of the risks of shifting from mutual legal assistance to mutual recognition, including that of increasing the difficulties for the defence to challenge evidence collected abroad. Considering the developments of CJEU case law recognising the limits of mutual trust, the question, therefore, is whether it is tenable for the EU to give up on requiring and enforcing high standards of procedural safeguards.
- On the relationship between mutual recognition and harmonisation. The EIO clearly does not pursue any harmonisation objective; nonetheless, the AG seemed to hint towards a sort of implicit or de facto minimum harmonisation when suggesting that the lack of available remedies in the issuing State does not comply with Directive 2014/41. He had to acknowledge, however, the limit of such an implicit harmonisation, for example when recognising the procedural autonomy of Member States (§104). Art. 82(2) TFEU clearly puts harmonisation of procedural laws in an ancillary position to the cornerstone of mutual recognition (‘To the extent necessary to facilitate mutual recognition …’). However, as recently observed by Öberg, focusing on the transnational dimension of the exercise of fundamental rights could give the EU the legitimacy to intervene even beyond the strict test of necessity for the functioning of judicial cooperation. This is chiefly a question for EU policy-makers, who should keep assessing whether the actual level of fundamental rights protection in a cross-border setting requires further intervention.
- On the consequences of Member States’ violations. The AG suggested the idea that mutual recognition is a privilege and ‘should not be accorded for free’ (Salazar; opinion, §83). If a Member State cannot guarantee adequate legal remedies, the authorities of that Member State should be prevented from taking part in the effective cooperation system based on mutual recognition. This approach has also been taken by some MEPs in the context of the proposed e-evidence package: they suggest such an exclusion in the case of risks of serious breaches of the rule of law referred to in Art. 7 TEU, even before the European Council takes a decision according to the procedure provided by that Article (see on this blog the analysis of the Commission proposal and the EP draft report; here and here the amendments tabled by all MEPs).
There are significant differences between the lack of a legal remedy and the more general concerns related to the respect of the rule of law. In both cases, however, such a consequence would go well beyond the scrutiny carried out by the executing authority on the fundamental rights protection ensured by the issuing State. It would not only be about refusing a request for cooperation on a case-by-case basis, but it would mean excluding a Member State from any cooperation based on mutual recognition and to apply, instead, the traditional mutual legal assistance procedure.
It falls outside the scope of this contribution to discuss the desirability and feasibility of designing a ‘two-speed’ judicial cooperation system in the AFSJ. Certainly, such an approach has some appeal. At the same time, however, it presents several risks and pitfalls, especially considering that it would be the consequence of a Member State’s failure. It would require addressing several questions, such as: what kind of violations should lead to exclusion from the mutual recognition system? Who should have the power to declare a Member State unfit for mutual recognition? Would it be a proportionate sanction to exclude tout court a Member State from any possibility to apply a ‘better’ instrument? And would that be in the EU interest?
The CJEU’s reasoning in Gavanozov did not touch upon this issue at all, and in future cases it will probably be difficult for the Court to reach such a ‘creative’ conclusion if such a consequence is not envisaged by a legislative instrument. In LM – the renowned case concerning the independence of the judiciary in Poland (see on this blog) – the CJEU held that the decision on the suspension of the European Arrest Warrant in respect of one Member State is a prerogative of the European Council pursuant to Art. 7 TEU. This was also based on the text of Recital 10 of the Framework Decision on the European Arrest Warrant – which provides for such a consequence if there is a decision of the European Council – but a similar provision is not contained in the EIO. Considering the current status of mutual trust in the EU, this is a complex policy question that should be carefully addressed by the EU legislator when adopting new instruments.
Michele Simonato is a policy advisor at the European Parliament, Committee on Civil Liberties, Justice and Home Affairs (LIBE). The opinions expressed in this post do not reflect those of the European Parliament, nor of any political group, and are the personal opinions of the author.