The European Investigation Order: A new approach to mutual recognition in criminal matters

Emilio De Capitani and Steve Peers

  

The adoption of Directive 2014/41/EU on the European Investigation Order (EIO) is a milestone for judicial cooperation in criminal matters in the European Union notably after the entry into force of the Lisbon Treaty and of the EU Charter of Fundamental Rights. This post focusses in turn on the broader legal context of the new Directive, its territorial scope in light of various opt-outs, and its important provisions on the relationship between human rights and mutual recognition.

A comprehensive single instrument

As from 22 May 2017, this Directive replaces most of the existing laws in a key area of judicial cooperation – the transfer of evidence between Member States in criminal cases – by a single new instrument which will make cross-border investigations faster and more efficient.

That current patchwork of rules comprises:

-          the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (and its two additional protocols);

-          parts of the Schengen Convention;

-          the 2000 EU Convention on Mutual assistance in criminal matters (and its Protocol);

-          the 2008 Framework Decision on the European evidence warrant; and

-          the 2003 Framework Decision on the execution in the European Union of orders freezing property or evidence (as regards freezing of evidence).

Unlike the European Evidence Warrant, which most Member States thought was useless and have not bothered to implement, the new Directive will cover almost all investigative measures  such as interviewing witnesses, obtaining of information or evidence already in the possession of the executing authority, and (with additional safeguards) interception of telecommunications, and information on and monitoring of bank accounts. The Directive will not apply to Schengen cross-border surveillance by police officers under the Schengen Convention, or to the setting up of a joint investigation team and the gathering of evidence within such a team which. According to the legislator, these issues “require specific rules which are better dealt with separately”.

A small part of the previous Conventions will remain in force because they regulate issues outside the scope of investigations, such as compensation for wrongful conviction. A handbook for practitioners will clarify this issue in future.

Territorial scope

The Directive will apply to all the EU Member States with the exception of Denmark (because of the general exclusion of this country from Justice and Home Affairs measures– see Protocol 22 attached to the Treaties) and of Ireland which, until now, has not “opted in” as it has the faculty to do according to Protocol 21 attached to the Treaties. Surprisingly the UK “opted in” and so took part in the vote even if by …abstaining. (Note: by so doing it also avoided national parliamentary scrutiny).

Due to the position of Ireland and Denmark, the former Framework Decision on the European Evidence Warrant has not been repealed, so will “survive”, but only for the relations between Ireland and Denmark and the other EU Member States. Probably the legislator wanted to still the door open to Ireland for a late “opt-in” (still possible any time after the adoption of an EU JHA act – see Article 4 of Protocol 21).

This tricky (and hopefully transitional) legal situation has obliged the legislator to use in Article 34 of the Directive a generic and flexible reference to “…the Member States bound by this Directive” (a formula already used for the “Human Trafficking” Directive, as well as other measures such as EU asylum legislation).

These are legal acrobatics which do not strengthen legal certainty and have already triggered some public statements by several Member States which very politely urge the Commission and the Presidency to …”consider possibilities to ensure legal clarity on the repealing of the Framework Decision [on the European Evidence Warrant] for all Member States.”  

From legal assistance to mutual recognition

The huge advance of the new text is that it makes the transition from the mutual legal assistance mechanisms, where the requested State has a wide discretion to comply with the request of another State, with a mutual recognition mechanism where each State must in principle recognise and execute a request coming from another Member State. By choosing the word “order” and by referring to “issuing” and “executing” States, in place of “requesting” and “requested” States, the legislator clearly indicates how the system has changed.

In the same perspective the execution of an EIO should not be refused on grounds other than those stated in Article 11 of the Directive (such as human rights, territoriality, national security and double jeopardy), although the executing authority will be entitled to opt for a less intrusive investigative measure than the one indicated in an EIO if it it is still possible to achieve similar results. Article 12 of the Directive set also mandatory deadlines for carrying out the investigative measures and requires that the recognition or execution should be carried out with the same priority and speed as for a similar domestic case.

Building on Mutual (but not blind) trust…

The mutual recognition regime been so incisive for the national systems of criminal law it is not surprising that several civil society organizations, academia and even ...Eurojust raised several reservations on the introduction of a too ambitious EIO.

The main message was to take better into account the specificity of the national systems as well as the need to protect fundamental rights and the proportionality principle - all concerns already raised as regards the implementation of the European Arrest Warrant (EAW), which is at the same time the most successful but also controversial mutual recognition EU measure.

This time, all these aspects have been thoroughly negotiated by the European Parliament which engaged a strong four year dialogue with the member states representatives (from the presentation of the proposal in April 2010 until February 2014) before reaching, after twelve trialogues and several technical meetings, a “first reading agreement” on the text.

Fundamental rights and mutual recognition: resolving the conflict?

 

The EP’s role can best be seen in recital 19 in the preamble to the Directive, which states:

“The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”(emphasis added)

This principle is reflected in Article 11(1)(f) of the Directive, which permits a refusal to execute an EIO on human rights grounds. To qualify as “rebuttable” in a legislative text the presumption of compliance by another Member State with EU law and fundamental rights is an important progress in an European Union which since the Tampere programme has considered mutual recognition to be the cornerstone of the judicial cooperation in criminal matters and which until now has usually made only generic reference to protection of fundamental rights in mutual recognition instruments (one exception is the Framework Decision on the mutual recognition of financial penalties).

However by suggesting this wording the EP extended to criminal matters the principle expressed by the CJEU in EU asylum policy with the N.S.ruling, which states:“

The Member States, including the national courts, may not transfer an asylum seeker to the Member State indicated as responsible where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. The Court considers that the Member States have a number of sufficient instruments at their disposal enabling them to assess compliance with fundamental rights and, therefore, the real risks to which an asylum seeker would be exposed were he to be transferred to the Member State responsible”       

By analogy with the NS case, the refusal to execute an EIO on human rights grounds must logically be mandatory, even though the legislation suggests that such a refusal is optional. But it should be noted that the wording of the Directive suggests that a defect in another Member State should be judged in individualcases, whereas the NS ruling referred rather to “systemic deficiencies”.

Primacy of EU law and protection of national constitution’s principles

But the EP was also concerned for the respect of the protection of the fundamental principles of the national criminal law systems. These principles can be protected by the Member States during the negotiation of an EU measure by using the so called “emergency brake” foreseen by Articles 82 and 83 TFEU. The point remain how to take in due account these same fundamental aspects also after the adoption of an EU measure.  The EP considered that the CJEU jurisprudence on Radu and Melloni (dealing with the implementation of the EAW) and giving priority to EU law also against constitutional principles in the Member States was going too far, so it insisted upon making explicit reference to the Member States’ constitutions.

The result of this pressure is mirrored in the first part of recital 39 in the preamble, which states :

“This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States' constitutions in their respective fields of application..”.

The final words of this recital echo Article 53 of the Charter of Fundamental Rights, which deals with the relationship between the Charter and (inter alia) national constitutions. While the CJEU found in Mellonithat Article 53 justified setting a ceiling on national constitutional protection in that case, that judgment concerned an issue which had been extensively regulated by EU law (in absentiatrials as a ground for refusal), whereas there are no equivalent provisions in the EIO Directive.

Will this text be sufficiently clear to push the CJEU to recognise a wider “margin of appreciation interpretation” of national authorities as regards JHA, as suggested by the former Advocate General Francis Jacobs some time ago?  We may have still to wait for years before knowing the right answer. However, it could be arguable that in the meantime, the CJEU should take the rules in this Directive regarding the relationship between human rights and mutual recognition into account when interpreting other EU mutual recognition measures, such as the EAW.

Conclusion

These are only some general observations on a Directive which requires a deeper analysis. However it is worth noting that the Directive makes already explicit reference to the first three post-Lisbon measures dealing with procedural guarantees for criminal suspects, namely:

-          Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings;

-          Directive 2012/13/EU on the right to information in criminal proceedings; and .

-          Directive 2013/48/EU on the right of access to a lawyer and the right to communicate when deprived of liberty.

Even though these are still only among the first EU criminal law texts adopted following the entry into force of the Treaty of Lisbon, all the pieces of the mosaic are progressively falling into place.

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Reconciling EU free movement rules with UK border controls

By Steve Peers 

Today’s Advocate-General’s opinion in the McCarthycase raises important questions about the scope of the EU’s free movement law rules and the relationship between those rules and EU or national rules on border controls and visas. It concerns Mr. McCarthy, a dual citizen of the UK and Ireland residing in Spain, with his third-country national (Colombian) wife and their joint child (also a dual citizen of the UK and Ireland).

Each time the family seeks to travel to the UK for short visits, they have to obtain a ‘family visa’ for Mr. McCarthy’s wife. This entails a trip within Spain from their residence in Marbella to the British consulate. Is this compatible with EU law?

As regards short visits, an issue like this one will largely arise only for people travelling between the Member States applying the Schengen rules (22 Member States, plus 4 non-EU associates) and the Member States not applying those rules (the UK, Ireland, Romania, Bulgaria, Cyprus and Croatia). That’s because legal third-country national residents of the Schengen States don’t need visas to visit other Schengen States, whether they are family members of an EU citizen (or travelling with that EU citizen) or not. In any case, they aren’t checked when they cross the borders between those States.

However, the UK and Ireland have negotiated a special protocol relating to border controls with the rest of the EU. They can check people at the borders to determine whether they are really entitled to enter the country in accordance with EU law. The other four non-Schengen States are obliged to join Schengen eventually, and must apply aspects of the Schengen rules in the meantime.

So is Mr. McCarthy’s wife entitled to enter the UK with him, and what rules apply when she seeks to do so? The starting point is the EU’s citizens’ Directive, adopted in 2004, which (among other things) intended to facilitate travel and residence for exactly this category of persons. The third-country national family members of EU citizens resident in other Member States (like Mrs. McCarthy) have to be given a ‘residence card’ to prove their status. If they have such a card – and Mrs. McCarthy does – they can travel to other Member States without having to obtain a visa, even if (for instance, if they are Colombians visiting the UK) they would normally have to do so.

This works both ways: for instance, if a French woman living in the UK wished to visit Germany with her Nigerian wife, Germany could not insist that the third-country national spouse obtain a Schengen visa, if the latter woman held a residence card.

In light of this legal background, what is the problem? There is clearly no possibility for the UK to require a ‘family visa’ for these trips. In fact, three issues arise in this case: the applicability of EU free movement law; the possibility of measures to control ‘abuse’ of EU law rights; and the interpretation of the borders protocol.  

Scope of EU law

At first sight, the McCarthy family’s position falls squarely within the scope of EU law, as he is a British & Irish citizen living in Spain with his family. But the case does not concern his position in Spain, but his visits to the UK, where he is a citizen.

The Advocate-General refers to recent CJEU case law (the S and O judgment) applying the citizens Directive by analogy to cases where a citizen of one Member State moves to another Member State, then seeks to return with his or her family to that first Member State. In his view, it is unsatisfactory to interpret EU primary law (the Treaty free movement rules) in accordance with secondary law which does not apply to that specific case. So he argues that the citizens’ Directive as such should apply to such cases, or at least to short-term visits as distinct from longer-term residence. 

Abuse of EU rights

Article 35 of the citizens’ Directive allows for measures to be taken to control abuse of free movement rights. The UK doesn’t claim that anyone in the McCarthy family is abusing those rights. But of course the ‘family visa’ requirement wasn’t adopted specifically for them, but for all third-country national family members of EU citizens who have moved between Member States, and who seek to visit the UK on the basis of a residence card.

The UK argues that the ‘family visa’ rule is justified because checks by the UK Border Agency found that a significant number of those holding residence cards were not genuinely entitled to them (it exempts from the rule those whose residence cards were issued in a more secure form). However, in the Advocate-General’s view, a measure taken against the abuse of rights can only concern individual cases, not all cases.

Border control powers

Finally, the opinion argues that the UK cannot justify its position by reference to the borders protocol. It allows the UK to check at its borders if people have rights under EU law, but not to breach EU free movement law as regards the position of those who indeed enjoy such rights.

Comments

On the questions actually asked by the national court (on abuse of rights and the borders protocol), the opinion is clearly correct. As regards abuse of rights, the limitation of this principle to individual cases is clearly established in prior CJEU case law. Indeed, the facts of this case show why the principle should be limited in that way, as the UK is seeking to do exactly what the Directive prohibits: to impose a visa requirement upon third-country national family members holding residence cards.

As regards the borders protocol, it is clearly and expressly subordinate to EU free movement law. The approach suggested in the opinion would leave the UK free to check that everyone seeking to enter the country pursuant to EU free movement law was entitled to do so, without restricting the free movement rights of those persons any further.

Undoubtedly, though, the evidence suggests that some individuals with residence cards are not entitled to have them. This is a legitimate concern of the UK government, but its response was simply disproportionate. So the opinion should have referred in more detail to other methods of dealing with this issue, for instance a joint agreement between Member States on common standards to ensure the authenticity of residence cards.

Finally, what about the scope of the Directive, an issue only raised by the CJEU itself? On this point, with great respect, the Advocate-General has led himself down something of a garden path. The key flaw in his reasoning is his implicit assumption that the EU citizens’ Directive can never apply to a citizen of the host Member State who is also a citizen of another Member State. On the one hand, it is correct (based on the case law, and the clear wording of the Directive) to say that British citizens, like Mr. McCarthy, cannot invoke the Directive against the UK. But on the other hand, Irish citizens, like Mr. McCarthy, certainly can. Like Schrodinger’s cat, he is simultaneously covered by the Directive, and not covered by it.

Back in 2011, in a case involving a differentdual British and Irish citizen named McCarthy, the CJEU ruled that the Directive could not apply. But in that case, the McCarthy in question had never resided outside the UK. As I have argued (along with Jonathan Tomkin and Elspeth Guild), in the Commentary on the EU citizens’ Directive, that judgment should only apply where a dual citizen of two Member States has always resided in one of them, which is hardly the situation when the person concerned in fact lives in a third Member State. More broadly, we argue that the 2011 McCarthy judgment is contradictory and confused, and should be set aside at the earliest opportunity. It is a great shame that the opinion does not seize the opportunity either to call for overturning the judgment or for limiting its scope, but rather assumes that its scope is very broad indeed.

Having opened Pandora’s Box by arguing implicitly that nodual citizens of two Member States can everrely on the citizens’ Directive, the Advocate-General immediately tries to close it again, by calling upon the Court to reverse the rule which he has himself created. But it would be better not to create that rule in the first place. One cannot seriously argue that the 2014 McCarthy, a pensioner who has spent only five years of his life in the UK, should be in the same legal position as regards the UK as the 2011 McCarthy, who had never resided outside the country.

Leaving aside the position of dual citizens, the Advocate-General’s opinion would also e relevant to the citizen of one Member State who seeks to visit his or her own country. Since CJEU case law has already confirmed that EU free movement law applies to those who return to their own country to reside there, it must also apply to those who return only to visit.

But does the EU citizens’ Directive apply as such(as the opinion argues) or by analogy(as the CJEU case law says)? Really, this is a distinction without a difference, as the outcome would be the same whichever route is chosen. Either way, the Court would be giving effect to the spirit of the free movement rules. It is unfortunate that the Advocate-General chose to chase this semantic butterfly, while leaving the front door open to the deterioration of the legal position of those who are dual citizens of two Member States. 


Barnard & Peers: chapter 13, chapter 26

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Procedural rights and subsidiary protection

By Steve Peers

The first phase legislation of the Common European Asylum System (CEAS) set out a definition of ‘subsidiary protection’ (protection for those individuals who did not qualify for refugee status, but who still should not be sent back to their country of origin) in the Qualification Directive. However, other first phase CEAS legislation, most notably the asylum procedures Directive, did not apply to those applying for subsidiary protection. Nor did that legislation expressly regulate the relationship between refugee and subsidiary protection status.

This rather peculiar gap has been filled in several ways. First of all, as for the future, the second-phase CEAS legislation applies fully to applicants for subsidiary protection, and also regulates the relationship between refugee and subsidiary protection status. However, some of that legislation will not apply until July 2015; most notably, the Directive on international protection procedures (which replaces the asylum procedures Directive) will only apply to applications made after that point.

Secondly, a large majority of Member States already have a ‘one-stop shop’ procedure, in which applications for subsidiary protection are considered along with applications for refugee protection. In that case, the rules in the asylum procedures Directive apply to the whole procedure.

Thirdly, where Member States do not have such a procedure, the CJEU ruled in the M judgment that the general principle of EU law, set out in Article 41 of the EU Charter of Fundamental Rights, on the ‘right to good administration’, applied to the national process of considering subsidiary protection claims, even though the wording of the Charter restricted that right to EU bodies (as distinct from national administrations).

Today’s judgment in HN raises further questions about the nature of the procedure for deciding on subsidiary protection claims in Member States which do not have a ‘one-stop shop’. Furthermore, it has broader relevance beyond such situations. Like the M case, the HN case concerns a subsidiary protection application made in Ireland. Irish law not only requires two separate procedures for examining refugee and subsidiary protection status, but also requires the first issue to be resolved before the second one is. Mr. HN, who considered that he had no chance of success as regards refugee status but a good argument for subsidiary protection status, argued that these rules breached EU law.

 According to the CJEU, they did not. First of all, in light of the pre-eminence of Geneva Convention refugee status in the Treaties and secondary EU law, subsidiary protection is ‘intended for third country nationals who do not qualify for refugee status’. It followed that ‘an application for subsidiary protection should not, in principle, be considered before’ an authority concludes that an application for refugee status is unfounded. So the national law could not be criticised on that ground.

The CJEU also considered two other aspects of EU law: the principle of effectiveness and the right to good administration. As regards effectiveness, while Member States have some discretion to regulate the subsidiary protection process unless they have a ‘one-stop shop’ in place, such discretion is not unlimited. Since a two-step process delays the application process, it must be possible to make an application for both types of status at the same time, and to consider the subsidiary protection claim ‘within a reasonable period of time’, taking account also of the time taken to decide on the refugee claim first.

As for the right to good administration, the CJEU confirmed that Article 41 of the Charter was applicable to national proceedings linked to EU law. In this case, the relevant provisions were the right to an impartial decision, and the right to a decision within a reasonable time. The ‘reasonable time’ rule applied in the same way as the principle of effectiveness. Furthermore, the principle of impartiality was not violated simply because the applicant had been told, due to the failure of his refugee claim, that he might be deported, even before the subsidiary protection application was decided.

Comments

There are a number of broader implications of the Court’s ruling. First of all, its confirmation that Article 41 of the Charter applies to all national proceedings within the scope of EU law is relevant well outside the scope of asylum law, and is therefore important given the large role that national administrations have in implementing EU law. For instance, the finding could be relevant as regards immigration, free movement or tax decisions (along with many others).

Secondly, while the Court’s judgment refers specifically to the right to an impartial decision, and to a decision within a reasonable time, there are several other aspects of Article 41 which must be equally applicable to national administrative decisions linked to EU law. In the M judgment, the CJEU already referred to the right to be heard. Article 41 also refers to fair administration, access to the file, the obligation to give reasons for decisions, a right to damages and linguistic communication rights.

As for the issues specific to asylum law, the Court’s judgment must logically mean that Article 47 of the Charter (the right to a court and an effective remedy) is also applicable to subsidiary protection claims by analogy, even in Member States without a one-stop shop. Arguably the EU Charter’s rights to dignity and social protection are also applicable to applicants for subsidiary protection in such Member States.

The Court’s approach in the M and HN cases is also relevant by analogy to cases where people apply for refugee or subsidiary protection in Member States from outside EU territory, after interception on the high seas for instance. While the asylum procedures Directive does not apply outside EU territory, there is no such geographic limit on the scope of the qualification Directive. So logically, the latter Directive applies to claims made outside of EU territory to Member States, and the Charter applies as regards procedural rights in such cases.

The Court’s approach to the relationship between refugee applications and subsidiary protection applications will make it more difficult for applicants to avoid the imposition of the EU’s ‘Dublin’ rules on allocation of asylum cases simply by means of withdrawing a refugee application, but simultaneously making or maintaining a subsidiary protection application. But this point is only relevant to applications made before the start of 2014 anyway, since as from that date the Dublin III Regulation applies, and that Regulation has extended the ‘Dublin’ rules to cover subsidiary protection applications.

What about the relationship between refugee status and purely national forms of protection outside the scope of the qualification Directive? There is nothing in the Court’s ruling today that addresses the relationship between such national forms of protection, which have not been harmonised by EU law at all, and the qualification Directive (or other EU asylum law, such as the Dublin rules). So it is still open to argue, for instance, that the Dublin rules cannot apply if a person is expressly applying only for a national form of protection. Conversely, it might be desirable to argue that the HN judgment applies by analogy if a Member State awards an applicant for refugee and/or subsidiary protection a purely national form of status, which gives that person fewer rights, without considering the former claims on the merits.

It is clear from this judgment that a claim for refugee status must always be refused before the possibility of subsidiary protection can be examined. This rule applies even before the second-phase procedures Directive sets it out expressly in EU law, and so applies to applications made before July 2015, including pending applications. Arguably, a Member State which has already awarded a person subsidiary protection without considering the merits of a refugee application can be called upon to reopen that process. However, it might be necessary for further case law to clarify the position where a person wishes to appeal the decision to refuse refugee status while the consideration of the subsidiary protection claim is ongoing.

Finally, it should be noted that even though the UK and Ireland have opted only into the first-phase qualification and procedures Directives, some key rules in the second phase legislation nevertheless apply to them, as a result of the CJEU’s interpretation of the first phase rules in its case law. In particular, they are bound by some basic procedural rules as regards subsidiary protection applications; they must consider a refugee claim before a subsidiary protection claim; and they must decide those claims within a reasonable time (although that rule is less precise than the precise time limits in the second-phase procedures Directive). So just because a rule appears expressly in the second-phase asylum law, but not in the first-phase asylum law, it doesn’t necessarily mean that the UK and Ireland are not bound by it; it is still possible that the first-phase legislation contains that rule implicitly. Of course, this is only one of the many legal complications arising from the complex system of opt-outs from EU law.


Barnard & Peers: chapter 8, chapter 26

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