European Investigation Order: Frequently Asked Questions

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1 European Investigation Order: Frequently Asked uestions Fair Trials International 29 July 2010

2 This note has been produced following extensive media coverage on the European Investigation Order or EIO, a new EU law proposed by a group of eight EU countries in April 2010, which the UK Government opted into on 27 July The law will introduce major changes to the system by which evidence is obtained and shared between EU countries in criminal cases. Our aim in this note is to clarify some of the potential consequences, both for individuals civil liberties and for police resources, if the EIO in its current form became law in all EU countries. Does the EIO just simplify and codify the UK s current evidence-sharing arrangements as has been claimed? No. The EIO would replace the existing system with a very different one. The current system for evidence gathering and sharing between EU countries has been in place for decades and is based on the principle of mutual legal assistance, a flexible and discretionary system that allows a case-bycase consideration of overseas requests and how best to deal with them. The EIO, on the other hand, is based on the more recent EU principle of mutual recognition the automatic acceptance by one country of another country s judicial or prosecution decisions. This is a mandatory system characterized by strict time limits for compliance, limited grounds for refusal and almost no discretion for the country receiving the demand on whether to comply or not. As such, the EIO gives police and prosecution forces across the EU a new power to order police in other EU countries to gather and share evidence with them. (At present they can only request this and cannot impose mandatory time limits.) What kind of evidence could EU countries require each other to obtain and share under these new powers? The EIO would allow EU countries law enforcement bodies (including police officers) to demand from their counterparts in other countries a much wider range of evidence than can be demanded under existing (as yet un-implemented) mandatory evidence gathering provisions. Examples include: - The taking of witness statements and questioning of suspects; - Intercept evidence, such as recording of telephone calls; - The real-time monitoring of banking activity; - The taking of bodily samples; - The analysis of evidence for different purposes than that for which it was originally obtained. What new powers does the EIO give to EU countries police forces and prosecutors to operate outside their own country? The EIO contains a new obligation on the country that receives an EIO to allow the presence and participation of law enforcement officers from the country that issued it. This means, for example, that if the French authorities wanted to investigate an offence, they could require police officers in the UK to let them participate directly in the UK investigation. This represents a change from the current system, under which the UK authorities would be entitled to refuse this. It is unclear how much involvement the officers from the issuing country would have, but they would not have direct law enforcement powers. That this new power departs from current practice is accepted in the explanatory memorandum to the EIO. It states that the obligation to let overseas forces participate is new compared to existing EU instruments. 1

3 It has been reported that a UK citizen could be arrested by police from another EU country, for failing to comply with an EIO. Is this true? No. The EIO does not give direct law enforcement powers to police from other EU countries. Powers like those of arrest, search or seizure would remain with the domestic police. Will the EIO place an extra burden on the police? By simplifying the system for requesting evidence and making it mandatory, it is likely that the EIO will lead to an increase in the number of requests for evidence. The Home Office itself accepts that the introduction of standardised forms is likely to increase both the numbers of [evidence] requests received from EU countries and those that are made by the UK which will inevitably have cost implications. The European Arrest Warrant (EAW) another mutual recognition instrument is a good indicator of what impact the EIO will have on police resources in the UK. Since this fast-track extradition system was introduced, the number of EAWs sent to the UK has increased exponentially and yet the UK s own use of the system has remained relatively steady. The UK issues around 200 EAWs a year, but now receives between 3,000 and 6,000 EAWs a year from other EU countries. This has led to British police complaining about having to deal with a deluge of extradition requests for minor offences. The EIO contains no proportionality requirement, so it could pose similar or even greater risks of over-use by some countries prosecutors (particularly those, like Poland, which appear to have little or no discretion about whether to prosecute offences, however minor). Can the EIO be used to investigate activity that is not a crime in my country? European countries differ when it comes to what they class as illegal. For example, criminal defamation is an offence Portugal and holocaust denial an offence in Germany. However, there is no dual criminality requirement in the EIO. This means that police in your country, acting on an order from authorities in another country, may in some circumstances have to investigate you in relation to conduct that is not a crime under your domestic law. Could the EIO be used to investigate me for an offence I have already been tried for? Yes. There is no double jeopardy requirement in the EIO at present. This means that if a person has been tried and acquitted by one EU country, another can continue to order that evidence be gathered about that person for the same conduct. Can the EIO be used to gather evidence about me even if I m not a suspect? Yes, in its current form. There is no requirement in the EIO that you need to be suspected of a crime for evidence to be gathered from or about you under an EIO. Nor is there any requirement for you to be informed if evidence has been gathered about you under an EIO and shared with other European countries. You may never find out that this has occurred or what has happened to the personal information that was collected about you. There are no safeguards or rules about this in the EIO. Can the EIO be used for fishing expeditions where there is no clear link between the evidence demanded and any offence? There is no clear statement in the EIO that a country issuing an EIO must provide enough information to satisfy the country receiving it that the evidence to be provided bears direct relevance to an actual offence they reasonably believe has occurred. Only in relation to evidence about bank accounts is there an express requirement to state in the EIO why the information is likely to be of value in investigating the alleged offence. There is no such obligation for evidence like DNA profiles or 2

4 witness testimony. The draft legislation contains no right to refuse an EIO where the evidence sought has no reasonably obvious relevance to the alleged criminal conduct. The UK Government has claimed that the right to privacy and family life contained in Article 8 of the European Convention on Human Rights is enough of a safeguard against fishing expeditions but Article 8 has proved ineffective in stopping disproportionate privacy infringements in the law enforcement context by many EU countries including the UK. Could the EIO make it easier for suspects and defendants to get evidence too? Not in its present form. The EIO is drafted as a prosecution tool, not as one that could be used to obtain evidence needed by the defence. Although the UK Government has stated that the EIO will apply to both prosecutors and defence lawyers the current draft does not expressly say this. However, under the current mutual legal assistance framework which the EIO would replace, defendants in many EU countries (including the UK), can ask judicial authorities to help them obtain evidence located in another country, for example to compel a witness from overseas to testify. In reality, the people we assist in cross-border cases often tell us it is difficult to get hold of important evidence located overseas that could help prove their innocence. If the EIO was available to defendants, it could help to improve this situation. We hope the UK Government will press for this in negotiations on the directive. What is Fair Trials International s position on the EIO? Fair Trials International welcomes legal measures that help European countries cooperate in bringing to justice those suspected or convicted of criminal offences. We also recognise that maximizing the amount of relevant evidence that can be obtained and shared fairly can only have a positive impact on the trial process. In principle, the more legally and fairly obtained evidence that is available, the more likely there will be a just outcome. However, we are not convinced the EIO is the best way to achieve this. We also have major concerns both about the fundamental rights implications and the lack of any effective scrutiny or political debate prior to the UK being forced to decide whether to opt in. Does the current system really need this overhaul? As with any new law, the question must be asked: do we really need this? Almost no information has been provided yet to show why we need to overhaul the current system, which many countries including the UK have said works well. If more time had been available before the EIO was rushed through, this could have been looked at in depth and more care taken to focus on the actual problems with the current system and how best to remedy them. As it is, we risk losing the benefits of the current system and repeating the mistakes of the first EU mutual recognition instrument, the European Arrest Warrant, which was also rushed into law with insufficient public debate or political scrutiny. Lack of public and political debate or scrutiny We are concerned about the invidious position in which the UK and Ireland were placed in relation to the opt-in decision. (Denmark also had an opt-out and made it clear earlier this year that it would not opt in to any measure of this sort.) The UK had to decide in just three months (during which a general election was held), whether to opt in and thus at least have the chance to try and influence the final text (but with no guarantee of doing so). There was no debate in Parliament before the opt-in, merely questions to the Home Secretary after her opt-in announcement. The three-month deadline imposed on the UK to decide whether to opt in also prevented the Commons European Scrutiny Committee from looking at the EIO before the opt-in decision. The alternative was to opt out, meaning requests for evidence made to or by the UK would be handled under a different regime than that which would apply to the majority of States bound by the 3

5 EIO. The UK could have chosen to opt in later but, having opted in now, cannot later opt out. If the EIO has the same serious flaws it has now when it is enacted, the UK will be stuck with it. Fair Trials International had hoped that Member States and Members of the European Parliament would use their influence to persuade the eight EU countries who initiated the EIO proposal to withdraw it and allow more time for a thorough impact assessment to be carried out, the likely cost of implementing the EIO to be determined and the appropriate scrutiny, at EU and national level, to be conducted. Instead, an unsatisfactory measure was rushed through and will now have to be negotiated over carefully in the hope that its shortcomings will all be rectified before it becomes law. Experience with the European Arrest Warrant suggests this may be optimistic. Fair trial, privacy and data protection fears The EIO would have a significant impact on the way evidence is gathered and shared in Europe: we are concerned about the ramifications it will have for police resources and civil liberties. We question whether mutual recognition is really the right model to use for investigations and evidence-gathering between countries with very different legal systems, privacy protection and fair trials standards. This is especially so when basic minimum data protection and fair trial standards are still not in place across the EU. Laws like the EIO require EU countries to place blind faith in each other s fair trials and datahandling standards. This kind of cooperation requires real trust, not just blind faith. What next? Since the UK has chosen to opt in, Fair Trials International will closely monitor the progress of negotiations on the text of the legislation. We will lobby for necessary safeguards to be introduced to minimize the risks for fundamental fair trial and privacy rights and ensure there is no repeat of the injustices and waste of resources that are the unintended side effect of the European Arrest Warrant. We were pleased that the UK Government has committed itself (in the Home Secretary s announcement in the Commons on 27 July) to negotiating hard for many of safeguards we have called for. You can see a copy of the EIO proposal here, and our briefing paper on the EIO here. For further information, please contact: Catherine Heard or Daniel Mansell at Fair Trials International ( ) Catherine.Heard@fairtrials.net Policy.Intern@fairtrials.net 4

European Investigation Order

European Investigation Order 1 Plan I. Background II. Types of Cooperation A. Mutual Legal Assistance B. Mutual Recognition III. European Investigation Order A. Comparison with EEW B. Implementation C.