The European Investigation Order-travelling without a 'roadmap'. CEPS Liberty and Security in Europe, June 2011 (original) (raw)
Related papers
2010
Mar Jimeno-Bulnes The CEPS 'Liberty and Security in Europe' publication series offers the views and critical reflections of CEPS researchers and external collaborators with key policy discussions surrounding the construction of the EU's Area of Freedom, Security and Justice. The series encompasses policy-oriented and interdisciplinary academic studies and commentary about the internal and external implications of Justice and Home Affairs policies inside Europe and elsewhere throughout the world. Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which he is associated. This publication may be reproduced or transmitted in any form for non-profit purposes only and on the condition that the source is fully acknowledged.
The European Investigation Order Travelling without a 'roadmap
2011
The European Investigation Order (EIO) seeks to establish a complete system for obtaining evidence in crossborder cases. It represents a further step in the evolution of the mutual recognition agenda and the deepening of criminal cooperation among member states. It has far-reaching implications for individual rights because of its breadth, its application to individuals who are not suspects and the nature of its invasive provisions. Careful justification is required to ensure legitimacy. In analysing this proposal, this paper considers the following aspects: • the place of the EIO within the mutual recognition programme. It looks at judicial cooperation by way of mutual recognition and the common characteristics shared by such measures. It explores the lessons arising from experience with mutual recognition (specifically the European Arrest Warrant, EAW) and the need for mutual trust; and • the scope of the EIO-what is it and what does it replace? The paper investigates the EIO's potential scope and application. It asks whether it is really a measure of judicial cooperation and assesses how the EIO departs from existing measures on mutual recognition. It also asks the question, does the EIO go too far? Furthermore, what are the ramifications for human rights? The paper analyses the sufficiency of the safeguards in the EIO. It explores whether the lessons from the EAW have been learnt, e.g. the need for proportionality and the effect of inconsistency in the implementation of human rights standards. It considers whether the Roadmap for Strengthening Procedural Safeguards will assist and takes into account the views of the EU Agency for Fundamental Rights and the European Data Protection Supervisor. Mutual recognition requires mutual trust, which demands proportionality and fair processes. The EIO overlooks this at its peril. This paper recommends specific protections for the individual, to ensure proportionality and to guarantee the consistent implementation of the EIO in practice, including consistent standards for evidence gathering, data protection law and respect of human rights. The CEPS 'Liberty and Security in Europe' publication series offers the views and critical reflections of CEPS researchers and external collaborators on key policy discussions surrounding the construction of the EU's Area of Freedom, Security and Justice. The series encompasses policy-oriented and interdisciplinary academic studies and commentary about the internal and external implications of Justice and Home Affairs policies inside Europe and elsewhere throughout the world. Unless otherwise indicated, the views expressed are attributable only to the author in a personal capacity and not to any institution with which she is associated. This publication may be reproduced or transmitted in any form for non-profit purposes only and on the condition that the source is fully acknowledged.
Justice and Trust: The European Arrest Warrant and Human Rights
2013
This thesis considers the relationship between human rights and the principle of mutual recognition as applied in criminal matters. It examines the impact of the European Arrest Warrant (EAW) on human rights and highlights the importance of human rights for the success of mutual recognition measures. Having embarked on the mutual recognition programme, on the basis of largely theoretical presumptions, an attempt by the EU to reposition human rights and to ensure that a genuine area of justice exists for all, can be witnessed through recent Directives on defence rights,. This research addresses the scope and method of human rights protection with focus on the implementation of the EAW. In the first part, mutual recognition and the EAW are defined. The second part considers the practical effect of the EAW on human rights, setting out the ECHR minimum standards and the extended EU scope. The third part evaluates the defence measures adopted to date by the EU under the Stockholm Roadmap. The final part summarises the main research findings which show that human rights are key to promoting mutual trust. The scope of some rights has already been extended and reinforced by the Charter of Fundamental Rights or the EU defence rights measures. The thesis argues that the best method for reinforcing these rights in practice is a tripartite collaborative approach between the EU, Member States and the Council of Europe. In order to address the tension between human rights and mutual recognition, work needs to continue beyond adoption of the Stockholm measures. It requires genuine commitment on the part of the EU institutions and Member States for the necessary amendments, adoptions, implementation and human rights protection to take place and be reflected in practice.
European Union and its neighbours in a globalized world, 2023
The European Union relies on the principle of mutual recognition for the circulation of judicial decisions of Member States, thus shaping their relations like clay resting on a pedestal of mutual trust. However, if this principle were applied without limitation, the fundamental rights of individuals involved in criminal proceedings would risk being unjustifiably compromised. In particular, blindly accepting the application of judicial cooperation instruments in criminal matterse.g. the European Investigation Orderin a spirit of unconditional and unquestioning solidarity could lead to serious violations of these rights, endangering both mutual trust and the substantive rule of law. In this context, the chapter outlines the relationship between mutual recognition and solidarity, followed by a brief analysis of Court of Justice case law on the European Investigation Order and related practical indications and solutions to the aforementioned risks, with consequences for (even future) Member States that should not be underestimated.
The paper examines the impact of the principle of proportionality for the European Arrest Warrant (EAW). The only function of proportionality discussed here is the one concerning the mutual recognition context. The argument is enunciated against the backdrop of over-emphasis on speedy judicial cooperation in criminal matters. The paper is structured in two levels; the central level of the Court of Justice of the EU (CJEU) case law analysis and the decentralised level of judicial authorities using the EAW. The analysis firstly explores the recent case law of the CJEU affirming the need to secure the operation of the mutual recognition and secondly the debate on overusing the instrument. It provides an analysis of the quest for a proportionality based analysis in the context of mutual recognition where fundamental rights protection are competing with fast judicial cooperation.
CEPS Paper in Liberty and Security in Europe No. 2018-01, 2018
According to the principle of mutual recognition in EU criminal justice, judicial decisions taken in one member state should automatically be accepted and enforced across the Union. Mutual recognition presupposes mutual trust, suggesting that all member states share with the EU the same foundational values, including the rule of law, respect for human rights and that judicial decisions are the outcome of fair and independent processes. The EU’s legislative bodies have adopted a series of laws in the criminal justice area on the basis of mutual trust without leeway to opt out if doubts arise concerning the issuing member state’s respect for values common to the EU and its member states according to Art. 2 of the Treaty on European Union. Yet it has turned out that mutual trust was premature and unjustified: certain member states notoriously violate the dictates and most basic tenets of the rule of law, engage in systemic human rights violations and jeopardise judicial independence. Those executing states that adhere to EU values find themselves between a rock and a hard place: they either follow mutual recognition-based laws and thereby become responsible for the proliferation of rule of law problems and human rights abuses across the Union, or they disrespect EU secondary laws. This paper shows how the rigid insistence on mutual trust by the EU’s legislative institutions puts into jeopardy the operation of mutual recognition-based instruments, and also the whole body of EU law and values underlying EU integration. The paper argues that the values the EU shares with the member states and mutual recognition can and should mutually reinforce each other, and in that vein offers recommendations to overcome the challenges described.
ERA Forum, 2007
this article discusses the desirability of EU action to complement the protection offered by the European convention on Human Rights to suspects in criminal proceedings. implementation of the mutual recognition principle should not tip the balance too far in favour of law enforcement and prosecution interests. the authors argue that increased efficiency in the protection of basic procedural rights is also urgently needed as a precondition for further mutual recognition of criminal judgments. the article also theorises on the harmonisation of criminal procedure in the light of considerations relating to the 'equality of arms'. Such equality is not naturally present in the criminal process, particularly during police questioning and investigations. Decisions about how far to restrict state power in criminal investigations will depend on the attitude to authority in a particular country.
Springer, 2019
This book is a collection of updated and thoroughly revised presentations from three international conferences organised within the Jean Monnet project entitled “Three Conferences on EU Criminal Justice: Fundamental Rights, Investigation Measures and the Future European Public Prosecutor’s Office – EUJuCo” by the University of Catania, between September 2015 and February 2017, at the Department of Law and the Siracusa International Institute for Criminal Justice and Human Rights. In line with the project – for the benefit of scholars, students and practitioners of law – this book presents, first of all, some contributions dedicated to the Directives, and their domestic implementation, which have progressively reinforced the cornerstone of procedural rights of suspects and defendants in criminal proceedings in the EU Member States so as to facilitate judicial cooperation (Part I). So, it is in this necessary framework that the following contributions must be placed concerning investigative measures and evidence in transnational criminal proceedings, which have to be seen as a cross section of the current state of judicial cooperation in the Area of Freedom, Security and Justice, with the related issues of efficiency, coordination, settlement of conflicts of jurisdiction, and guarantees (Part II). Lastly, the contributions in the final part concern emblematically the prospect of a supranational justice system, presenting the legislative proposal for the establishment of the European Public Prosecutor’s Office, and its developments. By the time this Jean Monnet project had already been concluded, the proposal, by means of ‘enhanced cooperation’, took the form of EU Regulation 2017/1939, which the contributions naturally take into account (Part III). The Editors trust that these essays, also thanks to the proven expertise of their Authors, might stimulate critical reflection on a protean and continually evolving subject.