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NEWS

Five years on, European Investigation Order under review

admin - May 22, 2019 - European Investigation Order

 

Yesterday marked the five-year deadline for the first review of the European Investigation Order (EIO), adopted by the European Union in 2014 as a tool that would simplify and speed up cross-border criminal investigations. The European Commission is under obligation to present to the European Parliament and the Council a report on the application of the EIO Directive, including an evaluation of its impact on cooperation in criminal matters and the protection of fair trial rights. On this occasion, our LEAP member and criminal defence lawyer Achille Campagna reflects on progress made in Italy since the introduction of the EIO. Although Italy has taken important steps in addressing some of the issues raised in our 2014 position paper, the inadequate protection of defence rights remains a concern.

The EIO is intended to facilitate cross-border evidence-gathering in criminal cases by enabling one Member State to seek evidence which is located in another Member State at all stages of criminal proceedings. The EIO also allows suspects and witnesses to testify via videoconference and the police to collect evidence like written statements. Ahead of the five-year review deadline, a focus group discussion hosted by the European University Institute brought together Italian prosecutors, law enforcement agents, ICT experts, scholars, and other practitioners to share their experiences with EIOs and to examine proposals to improve it. The participating practitioners acknowledged the importance of the EIO in carrying out transnational criminal investigations but noted that issues remain in the protection of fundamental rights following the transposition of the EU Directive into Italian domestic law.

One of main concerns highlighted by practitioners is that in practice defendants and defence lawyers in Italy only challenge an EIO when law enforcement engages in a search or seizure procedure. The EIO Directive limits challenges to the substantive reasons for issuing an EIO to the issuing country only. Fair Trials has been concerned that limiting challenges in this way may discourage people from seeking remedies, as they will be faced with the daunting prospect of mounting a legal challenge in a foreign jurisdiction. The 2014 EU Directive does not provide executing states with a ground to refuse to execute a disproportionate EIO in order to prevent time and money being wasted on unnecessary evidence-gathering and to ensure that fundamental rights are not infringed for trivial reasons or to a greater degree than is necessary.

Another recurring concern identified by Italian practitioners is the absence of a written decision on the EIO by a competent authority in the executing state. In several cases, Italian authorities have authorised EIOs without providing written justification for the decision. Italy’s Court of Cassation held that in such cases the domestic procedure was void. Italian defence lawyers suggested establishing clear criteria for authorising EIOs in order to limit the broad and unlimited powers of the prosecution. The aim of such criteria would be to rectify the imbalance between the discretionary power of the prosecutor to rule on EIOs and the need to ensure respect for the principle of equality of arms.

The extremely short timeframe to appeal an EIO in Italy is another cause for alarm. Italian practitioners noted that the five-day deadline is both inaccessible and impractical for most defendants. Effective remedies for breaches of individual rights in the issuance or execution of an EIO are necessary to properly safeguard these rights and to ensure that systemic problems are identified and addressed. The EIO Directive includes provisions ensuring that remedies equivalent to those available in a similar domestic case are available, that information about remedies is provided, that time limits are reasonable, and that defence rights are considered.

Although the EIO Directive aimed to reduce the need for states to employ harsher measures like extradition, states continue to request the extradition of suspects in order to acquire evidence like testimony or statements. As Fair Trials has documented in its “Beyond Surrender” report, the European Arrest Warrant (EAW) has a devastating impact on the lives of people who get extradited and are often left languishing in poor pre-trial detention conditions for months. However, looking at judicial practice, courts appear to be struggling to consider tools like EIO as viable alternatives to EAWs, which continue to be relied upon by Member States even if less intrusive measures are available.

Fair Trials and LEAP will continue to monitor the implementation and use of the EIO and work towards a fair and just use of this powerful law enforcement tool.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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