The European Investigation Order

AuthorJodie Blackstock
Publication Date01 December 2010
DOI10.1177/203228441000100407
Date01 December 2010
SubjectArticle
New Journal of Eur opean Crimina l Law, Vol. 1, Issue 4, 2010 481
tHe eURoPeAn InvestIGAtIon oRDeR
J B*
ABSTRAC T
is article presents a critical evaluation of the latest EU proposal in the area of judicial
cooperation in criminal proceedings. Whil st a f ramework decision on requests for
evidence was adopted in 200 8, which aimed to streamline the evidence gathering
mechanisms across EU borders, the majority of Member States now agree that the
instrument is in fact unworkable, since it fails to cove r all forms of requests. A s such,
conventions on mutual legal a ssistance, which are hampered by slow an d uncertain
responses, continue to be the mechanism through which ev idence is requested, gathered
and transferred in the EU. e proposed Member State initiative of a European
investigation order has greater a mbition. However, this article seeks to show that in
attempting to provide a more ecient instr ument adhering st rictly to the principle of
mutual recognition, much of the protection for suspects, and therefore the cornerstone
of equality of arms, i s lost.
1. HISTORICAL DEVELOPMENT
Requesting assistance from other countries in the course of a criminal investigat ion is
not a new concept. Within the C ouncil of Europe, there has been a mutual legal
assistance regime since 19591, prior to which bi-lateral and informa l relations h ave
* Jodie Blackstock is a ba rrister at the bar of Eng land and Wales and senior lega l ocer in EU Justice
and Home Aair s at JUSTICE, the Brit ish Section of the Inte rnational Commi ssion of Jurists. is
article expands upon JUSTICE’s brie ng on the Initiative for a Directi ve regarding the Europea n
Investigation Ord er.
1 Council of Europe Convention on mut ual assistanc e in crimina l matters 1959 ETS No. 030,
supplemented by its additional protocol of 1978, ETS No. 099, the second additional protocol of
2001, ETS No. 182; the Benelux Treat y of 1962; the Schengen Implementi ng Convention of 1990 OJ
L 239 of 22.9.2000; a nd the Convention on mutual as sistance between t he Member States of the EU
29.05.2000, OJ C 197 of 12.7.2000 Many prov isions of the convention a re similar to those included
in the s econd additional protocol of 2001 to the 1959 convention, ET S No. 182, which s ome of the
Member States also ra tied, and the addit ional protocol from 2001 OJ C 326 of 21.11.2001. Bilateral
treaties al so exist.
Jodie Blacksto ck
482 Intersentia
existed t hroughout history. In an EU without borders, however, Member States have
for some time desired the opportunity to catch crimina ls at the same spe ed with
which they commit crime. A n EU C onvention on Mutual Legal Assista nce (MLA)
was adopted in 20 00 to ensure that Member States were fol lowing a uniform regime,
but without binding legislation the approaches have remained disparate and responses
slow. In 20 08 another attempt was made, this time by way of a European Evidence
Warrant (EEW), in the form of a framework decision.2 e need for unanimity i n the
adoption of legislation at EU level under the Amsterdam Treaty meant that the
instrument became a compromise which only covered evidence already in the control
of the requested Member States, or th at required a search for objects. e instru ment
ought to have been coming into force in Januar y 2011, but Member States have since
argued that they will always require other measures tha n those ava ilable under t he
EEW in order to ensure all relevant evidence is obtained , and therefore the least
complex request can still be made by using the M LA regime rat her than issu ing an
EEW and a MLA request. As such, the EEW wa s never likely to be tr ansposed into
domestic legislation.3
e problem has be en identied in the new Treaty arrangements, se t out in Title
V, Area of Freedom, Security and Justice, Treaty on the Functioni ng of the European
Union (TFEU). Article 82(1)(a) now provides:
(1) Judicial cooperation in criminal m atters in the Union shall be based on the principle of
mutual recognition of judgme nts and judicial decisions and shall incl ude the approximation
of the laws and regula tions of the Member States in the area s referred to in paragraph 2 and
in Article 83.
e European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, shall ad opt measures to:
(a) lay d own rul es and procedures for ensuring recognition throughout the Union of all
forms of judgme nts and judicial decision s; …
(d) facilitate cooperation betwee n judicial or equivalent authorit ies of the Member States in
relation to proceeding s in criminal matters and the enfo rcement of decisions.
2 Council Fra mework Deci sion 2008/9 78/JHA of 18th Dec ember 20 08, on the European evidence
warrant for the purpose of obtaini ng objects, documents and data for use in proceedings in crimina l
matters, OJ L 350 of 30.12. 2008, p. 72.
3 e EEW is referred to below by way of comparison with the EIO, but for an extensive critique of the
EEW see P. De Hert et al., ‘e Framework Decision of 18 December 2008 on the European ev idence
warrant for the purpose of obtaining objec ts, documents a nd data for use in criminal pr oceedings
in a crimina l mat ter – a cr itical assessment ’, NJE CL, Volume 0, Spe cial Edition, 2009 [pages
55–78].

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