As criminal investigations tend to become trans-national, Costaș, Negru & Asociații team is paying attention to recent developments in this field. A new and exciting topic in this respect is the European Investigation Order.
Before proceeding to the actual analysis of the issues in case C-670/22, pending before the Court of Justice of the European Union, we decided to briefly present the rationale behind the European Investigation Order, hereafter referred to as EIO.
First of all, this instrument was born with the need to facilitate criminal investigations in the sense of a faster possibility to obtain evidence in criminal proceedings. Like the European Arrest Warrant, this possibility exploits the mutual trust that exists between the judicial authorities of the Member States. The aim of adopting these procedures at Union level was undoubtedly to thwart cross-border crime by facilitating judicial cooperation between Member States.
As an example, we can take a criminal group from Hungary operating on Romanian territory, somewhere near the border – Satu Mare, Bihor or Arad county. They commit crimes in Romania and return to Hungarian territory immediately after committing the crime. What can the Romanian authorities do if they discover certain data about the potential identity of criminals but do not have access to the databases to which the Hungarian authorities have access?
Before the implementation of the European Investigation Order, this process was difficult because it involved a much more complicated process than what exists today. The relationship between extradition and the European Arrest Warrant can be seen when comparing the current mechanism with the former means of judicial cooperation at Union level in the collection of evidence in criminal proceedings being the European Evidence Warrant .
Thus, at present, in the above case, the Romanian “issuing authority” will issue an EIO, on the basis of which the authorities of the executing state – Hungary will collect evidence or send evidence already collected on that criminal group back to the authorities of the issuing state (Romania).
Case C-670/22, Staatsanwaltschaft Berlin (EncroChat), currently pending before the CJEU, raises the issue of the transfer of evidence already obtained by the French authorities to the German authorities.
The French judicial authorities also gathered evidence on German territory by intercepting the telecommunications of certain suspects, but failed to notify the German authorities of this evidence gathering.
EncroChat was a globally operating network that aimed to facilitate encrypted communications. The people behind this network are unknown. They achieved this by developing an operating system of the same name, which was pre-installed on phones made available to people who wanted to use these encrypted communication services. The phones had a facility called a “panic button” whereby, subject to the entry of the PIN to unlock the screen, all data on that phone was erased.
The Gendarmerie nationale in France discovered these devices in 2017, and in January 2020 a French judge authorized, under Article 706-102-1 of the French Code of Criminal Procedure, the hacking of EncroChat servers. The German and Dutch authorities have formed joint investigation teams (JITs) through EuroJust.
On the night of 12-13 June 2020, EncroChat users received a message warning that authorities had breached security systems, and that all users were advised to physically dispose of their devices. Arrests have been made in the following countries: the Netherlands, Ireland, Sweden, Germany and the United Kingdom.
In Case C-670/22, the 14 questions referred for a preliminary ruling were referred by the Regional Court of Berlin, Germany.
The German prosecutor’s office has issued three EIOs, requesting the use of intercepted data in criminal proceedings in connection with suspected illicit drug trafficking by unidentified persons suspected of being part of an organised crime group. A French criminal court, namely the Lille Criminal Court, authorised the requests and provided the requested evidence. The German public prosecutor’s office then carried out investigations into the individuals found to be EncroChat users. The defendant in this case was charged on the basis of evidence received from France.
Advocate General Tamara Ćapeta, who filed her submissions in the case , which are the main subject of this analysis, highlights that an EIO can only be issued if the investigative measure it entails could have been ordered under the same conditions in a similar domestic case. In the present case, a similar domestic case is one in which evidence is transferred from one Public Prosecutor’s Office to another in Germany. As the Directive allows a prosecutor with jurisdiction in a particular case to issue an EIO, and German law does not appear to require a court to authorise a transfer of evidence between prosecution offices domestically, the Advocate General considers that the German prosecutor was entitled to issue the EIO in the case.
In other words, EU law does not require the order to be issued by a judge, all the more so as the public prosecutor is expressly listed among the judicial bodies that may be subsumed under the notion of competent authority, under Article 2 lit. (c)(i) of the Directive, “issuing judicial authority” means a judge, a court, an investigating magistrate or a public prosecutor competent for the case in question.
The Advocate General has chosen to deal with the 14 questions in 5 separate sections. In the first two sections, the conditions for issuing an EIO for the transfer of existing evidence to the competent authority are considered.
As regards the conditions for issuing an EIO, these are set out in Article 6(6). (1) of the EIO Directive:
“a. the issuance of the EIO is necessary and proportionate to the purpose of the proceedings referred to in Article 4, taking into account the rights of the suspected or accused person, and
- the investigative measure(s) indicated in the EIO could be ordered under the same conditions in a similar domestic case“
In this regard, Ms Ćapeta considers that, despite the fact that the evidentiary process which led to the collection of that evidence was subject to authorisation by the judge, the transfer of the evidence obtained by carrying out the evidentiary process thus used, through the EIO, is not necessarily also issued by a judge. Thus, we will refer to the possibility for the prosecutor to request the transfer of the evidence obtained in accordance with the applicable German law in order to verify the condition of Art. 6(b). (1).
Going further, as regards the verification of the conditions of necessity and proportionality, Ms Ćapeta argues that these are verified by reference to both Union law and the law of the issuing State. Similarly, the fact that the criminal investigation was successful and led to a large number of convictions for very serious offences is irrelevant.
However, it considers that a serious interference with fundamental rights and freedoms, such as that in the present case, may be justified by a public interest of significant importance, the existence of which can be assessed only by the issuing authority or by the national court exercising review of the measure ordered, that right of assessment remaining outside the Court’s jurisdiction.
The question then arises whether a prosecutor is in a position to assess impartially the proportionality of the measure to request access to telecommunications data from network service providers. The referring court refers to the Prokuratuur case , but the Advocate General emphasises the distinctions between the factual situation here and in the case referred to. In the first case, it was a question of the actual authorisation to request that data from the operators collecting that information, and therefore the authorisation of a judge was absolutely necessary. In the present case, however, a French judge has already ruled on the collection of that information, and therefore the proportionality standard has already been assessed by an impartial and independent body.
The fourth section of questions comes and answers the doubts on Article 31 of the EIO Directive and the obligation to notify. The situations concerned are those where Member State X intercepts telecommunications from the territory of another Member State Y, without any technical assistance from Member State Y being required.
As regards the obligation to notify the German authorities of the listening activities carried out, it is pointed out that this is not conditional on the existence of a European Investigation Order, given the use of the binomial ‘intercepting’ State and ‘notified’ State, not ‘issuing’ State and ‘executing’ State.
It is argued that in this case Article 31 was fully applicable and France was obliged to notify the German authorities. As regards the specific body, the Advocate General submits that the relevant provision does not imperatively state which body must be notified.
Thus, the notification could be addressed both to a German prosecutor and to a German court, even if the jurisdiction to order the measure under German law was exclusive to the court, on the assumption that the French had no way of knowing which authority would have jurisdiction in a similar domestic case.
Finally, as regards the admissibility of evidence in criminal proceedings where it has been obtained by means of an unlawfully issued EIO, the Advocate General considers that this is a matter for the national law of each country, and that EU law does not intervene in this respect in order to penalise such evidence with possible exclusion from the file. This is currently a matter for the criminal policy of each State, as confirmed by the case law of the ECHR . Although the European Union is entitled, under Article 82 para. (2)(a) TFEU, to regulate minimum measures to harmonise legislation on the mutual admissibility of evidence, this has not yet been done.
Reference is made, in Art. 14 para. (7) sentence II of the EIO Directive: art.14The second paragraph of Article 14(7) of the EIO Directive: “without prejudice to national procedural rules, Member States shall ensure that, in criminal proceedings in the issuing State, the rights of the defence and the fairness of proceedings are respected in the assessment of evidence obtained by means of the EIO”, while the footnotes in the conclusions, which refer to this text, invoke recital (34) of the same Directive: “moreover, for the same reason, the decision whether or not to use an item as evidence and, therefore, whether it is the subject of an EIO should be left to the issuing authority”.
The conclusion on the fifth section leads us back to the idea behind the European Arrest Warrant and the principle of judicial cooperation in criminal matters at EU level, according to which Member States must show mutual confidence in the conformity of the legal systems of the Member States in the conduct of criminal proceedings and, in particular, in the legislative framework ensuring the right to a fair trial and respect for the fundamental rights and freedoms of citizens.
Thus, we look forward to the Court’s judgment and consider the Advocate General’s conclusions to be well-founded and balanced, as they continue to support the facilitation of judicial cooperation in criminal matters at European level, without unduly restricting the prerogatives of Member States’ public prosecutors in the conduct of criminal investigations, but also without undermining the procedural guarantees that judicial bodies are obliged to provide to citizens in criminal proceedings.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by Mr. Rareș Costași of the Arad Bar Association.
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 Judgment of 2 March 2021, Prokuratuur (Conditions for access to data relating to electronic communications) (C746/18‑, EU:C:2021:152)
 ECHR Judgment of 12 July 1988, Schenk v. Switzerland, EC:ECHR:1988:0712JUD001086284, §§ 45 and 46, Judgment of 11 July 2017, Moreira Ferreira v. Portugal (No. 2), EC:ECHR:2017:0711JUD001986712, § 83, and Judgment of 1 March 2007, Heglas v. Czech Republic, EC:ECHR:2007:0301JUD000593502, § 84.