By PATRICK STEPHENSON
BRUSSELS – As criminals and terrorists refine and expand their transnational networks, European police operations have remained frustratingly national, particularly for obtaining evidence regarding cross-border investigations. Even in terrorism cases, police cooperation between European member states can be fraught with jurisdictional issues, legal differences and communication problems.
To streamline the transfer of evidence from one EU nation to another, the EU created the European Investigation Order (EIO) in 2014. Its purpose: to simplify and standardise cooperation between judicial authorities, speed up investigations and thus help prevent crimes and terrorist attacks before they happen.
The directive officially entered force on 22 May 2017 and the European Commission is now evaluating how the member states have transposed the EIO into national law. So far, the verdict is mixed, with a full accounting due only by May 2019. But already problem loom. These include a too-wide latitude for “receiving” countries to reject an EIO request, as well as the usual member-state delays in implementing an EU directive.
The baseline principle of the EIO is mutual recognition, meaning when one EU member state receives an EIO from another, the latter will treat the order as if its own judicial authorities authorised it. Lawyers can only challenge the EIO’s issuance in the courts of the member state that issued it.
The receiving state has 30 days to notify the submitting state of the EIO’s receipt, and 90 days to carry out the Order. Its mandate can include evidence collected through telecommunication surveillance, covert operations, and bank account monitoring. Even people in custody can be temporarily transferred to a requesting state for their testimony, although curiously, the people in custody must provide their consent to be transferred.
The EIO is intended to complement the European Arrest Warrant, adopted in 2004. But while the latter specialises in extraditing suspects, the Order focuses on gathering evidence.
The EIO aims to speed up the gathering and sharing of cross-border evidence, but the receiving state has amble grounds to refuse it, particularly if its authorities believe that complying with the Order would impede freedom of the press or expression, or intrude upon national security matters.
A receiving state can also reject an EIO if the crime under investigation is not a crime within its own borders. A submitting state must describe the justification behind the EIO in its request. The costs of implementing the Order fall to the receiving state, unless the costs are deemed “exceptionally high” through an unexplained mechanism. In that case, either the costs are shared, or the issuing state withdraws its Order.
Věra Jourová, EU Commissioner for Justice, Consumers and Gender Equality, said in a press release that the EIO will “give judicial authorities access to evidence quickly wherever it is in the EU. I call on all Member States to implement it as quickly as possible to improve our common fight against terrorism.”
Unfortunately, the Order has yet to be transposed into most EU national legislation. European Commission spokesperson Melanié Voin told SECURITY EUROPE that only France and Germany have fully transposed the EIO. “It’s a quite complex instrument, and it’s also quite new, and it goes far into areas of traditional cooperation,” she said. “Basically, we’re asking member states to [transpose the Directive] quickly, because it will be the basis for more work on e-evidence [digital traces of cyber-crimes], which is what we’re working on that the moment.”
Toma Milieskaite, legal officer within Jourová DG, qualified Voin’s comments by saying that the Commission has so far received ‘notifications of transposition’ form six member states: Belgium, France, Germany, Latvia, Romania and Slovenia – though each has implemented the EIO in varying degrees. Any of the remaining 22 EU countries that fail to notify the Commission in the next two-to-three months will face legal action.
Echoing Voin, Milieskaite said that the complicated nature of the Order could explain much of the delay. “The directive replaces provisions from other legal assistance conventions,” she said. “It will probably take more time than envisaged.”
Asked if the Order has yet been invoked, she replied: “We’re not aware of any practical examples yet”, adding that its lack of use was not surprising, given that it only went into full effect a month ago.
Other concerns about the EIO also remain. While the Commission touts the presumably narrow justifications that members states can use for refusing to comply with an Order, the directive’s language is sufficiently broad that a capital could probably always find plausible justification to refuse compliance, if it so chose.
In practice, the EIO’s impact will probably come down to bilateral relationships. If those are good between EU member states – and traditions of cooperation are strong – the EIO will prove useful indeed. The French/German nexus is the obvious example. But among states whose legal authorities tend to look at each other with scepticism – between, say, Romania or Hungary and one of the Western European members – the EIO’s application could be difficult, and even further poison relations instead of improving them.