Effective protection of rights as a precondition to mutual recognition: Some thoughts on the CJEU’s Gavanozov II decision
| Author | Alba Hernandez Weiss |
| DOI | http://doi.org/10.1177/20322844221104817 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(2) 180–197
© The Author(s) 2022
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DOI: 10.1177/20322844221104817
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Effective protection of rights as
a precondition to mutual
recognition: Some thoughts on
the CJEU’s Gavanozov II
decision
Alba Hernandez Weiss
Humboldt-Universitat zu Berlin, Berlin, Germany
Abstract
This contribution intends to analyze the ruling of the CJEU in the Gavanozov II case. The Court
ruled that Member States that do not have legal remedies available against European Investigation
Orders are precluded from issuing EIOs altogether. The Gavanozov II decision is the first time that
the CJEU de facto suspends the use of a mutual recognition instrument in the field of cooperation in
criminal matters due to noncompliance with EU fundamental rights. It deals with two issues that lie
at the heart of criminal cooperation in the EU: On the one hand, the relationship between mutual
recognition and mutual trust and on the other hand, the position of the individual in transnational
proceedings and the effective protection of their rights.
Keywords
Mutual recognition, mutual trust, judicial cooperation in criminal matters, European Investigation
Order, effective judicial protection, Court of Justice of the European Union, legal remedies
Introduction
Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the
European Investigation Order in criminal matters (hereinafter “EIO Directive”) introduced a single
framework for conducting investigative measures abroad as well as obtaining evidence that is
Corresponding author:
Alba Hernandez Weiss, Humboldt-Universitat zu Berlin, Unter den Linden 6,10099 Berlin, Germany.
Email: alba.hdz.weiss@gmail.com
already in possession of another Member State.
1
The EIO Directive gave effect to the principle of
mutual recognition in the area of cross-border evidence gathering.
2
The Court of Justice of the
European Union (hereinafter “CJEU”) was thus given jurisdiction over cooperation at the in-
vestigation stage.
The Gavanozov II case is one of the first opportunities that the CJEU has had to interpret the
provisions of the EIO Directive. The case primarily concerns the right to an effective remedy in
cross-border proceedings. Specifically, it raises the question of what happens when a Member State
does not provide for any legal remedies to challenge a European Investigation Order (hereinafter
“EIO”) and in turn the investigative measures requested therein.
3
In a first preliminary ruling on the matter in 2019,
4
contrary to Advocate General Bot’s opinion,
5
the CJEU reduced the issue to a merely formal matter concerning the manner in which the EIO form
was to be filled out. The Court completely avoided the key fundamental rights issues, which in turn
led the referring Bulgarian Court to resubmit questions to the CJEU.
6
In a second preliminary ruling, on the 11 of November of 2021, the CJEU did a 180-degree turn
ruling that the EIO Directive, read in light of the Charter of Fundamental Rights (hereinafter “The
Charter”) precludes Member States’legislation which do not provide for any legal remedies against
investigative measures requested through the EIO system. Furthermore, and more importantly, it
concluded that in such a case the Member State in question would not be allowed to issue European
Investigation Orders at all, thereby effectively excluding it from making use of the system of mutual
recognition for cross-border evidence gathering.
7
The Gavanozov II decision is a first of its kind, being the first time that the CJEU de facto
suspends the use of a mutual recognition instrument in criminal law due to noncompliance with
fundamental rights. Furthermore, it deals with two issues that lie at the heart of judicial cooperation
in criminal matters: On the one hand, the relationship between mutual recognition and mutual trust
and on the other hand, the position of the individual in transnational proceedings and the effective
protection of their rights.
This case note starts with a short introduction on the principle of mutual recognition and the
European Investigation Order. Thereafter, the case and the Court’s reasoning are summarized. This
contribution will contextualize the decision within the CJEU’s case law concerning mutual rec-
ognition and mutual trust where fundamental rights’concerns are starting to play an important role,
and will assess the potential impact of the Gavanozov II decision. This text intends to show that the
Gavanozov II decision represents a departure from previous case law, shifting the focus from limits
1. See Article 1 EIO Directive.
2. The EIO Directive is not applicable in Ireland or Denmark (see recitals 44 and 45 of the EIO Directive). The Directive
replaces some parts of the Mutual Legal Assistance Instruments, as well as Framework Decision 2008/978/JHA on the
European Evidence Warrant and framework Decision 2003/577/JHA on the execution in the EuropeanUnion of orders
freezing property or evidence. For an overview the European Investigation Order’s scope of application Jorge A. Espina
Ramos, “The European Investigation Order and its Relationship with Other Judicial Cooperation instruments:
Establishing Rules on the Scope and Possibilities of Application,”1/2019, [2019], Eucrim, 53-60.
3. Case C-852/19, Ivan Gavanozov II, [2021].
4. Case C-324/17, Ivan Gavanozov, [2019].
5. Opinion of AG Bot in case C-324/17, Ivan Gavanozov, [2019].
6.Forabriefanalysisofthecase,seeMicheleSimonato,“Mutual Recognition in Criminal Matters and Legal
Remedies: The First CJEU Judgment on the European Investigation Order”(European Law Blog, 1 April 2020)
<https://europeanlawblog.eu/2020/04/01/mutual-recognition-in-criminal-matters-and-legal-remedies-the-first-cjeu-
judgment-on-the-european-investigation-order/>
7. Case C-852/19, Ivan Gavanozov II, [2021], para 62.
Hernandez Weiss 181
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