European Investigation Order 1 Plan I. Background II. Types of - - PowerPoint PPT Presentation

▶

Jun 22, 2023 316 likes •522 views

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. Double Criminality D.

SLIDE 1

European Investigation Order

SLIDE 2

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 3

Background

Wish to speed up slow MLA
2003-2008: MS lack of trust  difficulties with MR and

EEW

2009: Group of 7 MS present proposal for EIO
Idea:

– Replace traditional MLA almost fully – Based on MR principle – Using similar wording as EEW – But much wider in scope

SLIDE 4

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 5

Types of Cooperation

MLA MR When? Diplomatic cooperation Introduced in 2000 Where? Worldwide EU Who? Requesting state Requested state Issuing state Executing state What? Request Order or warrant How? Many possibilities Limited possibilities Follow up? Dependent on grounds for refusal In principle blind execution

SLIDE 6

Types of Cooperation

MLA MR Applicable law?

Locus regit actum: requested state vs Forum regit actum: requesting state  Admissibility of evidence Decision executed as domestic decision

Follow up?

Dependent on grounds for refusal In principle blind execution

Instruments?

CoE Convention + Protocols
EU Convention + Protocol
Prüm
Schengen Implementation

Convention

…
FD on EAW
FD on Freezing Order
FD on EEW
Directive on EIO
...

SLIDE 7

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 8

Comparison with EEW

EEW EIO When? 2008

(impl. by 19.01.2011)

2014

(impl. by 22.05.2017)

Where? All EU MS Not Denmark and Ireland What? Existing evidence (so MLA still needed) Existing and new evidence How? Transfer of existing objects, documents or data Any investigative measure

exc. JITs

Timing? 30 + 60 days (after receipt!) 30 + 90 days (after decision!)

SLIDE 9

Comparison with EEW

EEW EIO Who?

Judicial authority to Authority competent under national law Judicial authority to Judicial authority (+ validation procedure)

Follow up? Limited grounds for refusal Limited grounds for refusal Applicable law? Executing state Executing state

SLIDE 10

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 11

EIO - Implementation

Implementation status
Handbook?
Flexible provisions
Grounds for refusal

SLIDE 12

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 13

EIO - Double Criminality

EEW EIO Double criminality?

Only for:

coercive measures

Except when:

ffence is in 32-list and
max. prison sentence of min.

3yrs

No check but ground for refusal based on territoriality

SLIDE 14

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 15

EIO – Procedural Rights

Remedies
Defendant
Right to information

SLIDE 16

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. Double Criminality D. Procedural Rights

IV. Lessons learned from EAW

SLIDE 17

Lessons Learned from EAW

„Blind“ recognition
Proportionality
Fundamental rights

SLIDE 18

Conclusion

Implementation
Practical issues
Trust

SLIDE 19

Thank you for your attention and cooperation!

Dr. Els De Busser

European Investigation Order

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. Double Criminality D. Procedural Rights

Background

EEW

– Replace traditional MLA almost fully – Based on MR principle – Using similar wording as EEW – But much wider in scope

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. Double Criminality D. Procedural Rights

Types of Cooperation

MLA MR When? Diplomatic cooperation Introduced in 2000 Where? Worldwide EU Who? Requesting state Requested state Issuing state Executing state What? Request Order or warrant How? Many possibilities Limited possibilities Follow up? Dependent on grounds for refusal In principle blind execution

Types of Cooperation

MLA MR Applicable law?

Locus regit actum: requested state vs Forum regit actum: requesting state  Admissibility of evidence Decision executed as domestic decision

Follow up?

Dependent on grounds for refusal In principle blind execution

Instruments?

Convention

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. Double Criminality D. Procedural Rights

Comparison with EEW

EEW EIO When? 2008

(impl. by 19.01.2011)

2014

(impl. by 22.05.2017)

Where? All EU MS Not Denmark and Ireland What? Existing evidence (so MLA still needed) Existing and new evidence How? Transfer of existing objects, documents or data Any investigative measure

Timing? 30 + 60 days (after receipt!) 30 + 90 days (after decision!)

Comparison with EEW

EEW EIO Who?

Judicial authority to Authority competent under national law Judicial authority to Judicial authority (+ validation procedure)

Follow up? Limited grounds for refusal Limited grounds for refusal Applicable law? Executing state Executing state

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. Double Criminality D. Procedural Rights

EIO - Implementation

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. Double Criminality D. Procedural Rights

EIO - Double Criminality

EEW EIO Double criminality?

Only for:

Except when:

3yrs

No check but ground for refusal based on territoriality

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. Double Criminality D. Procedural Rights

EIO – Procedural Rights

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. Double Criminality D. Procedural Rights

Lessons Learned from EAW

Conclusion

Thank you for your attention and cooperation!

Senior Lecture – Senior Researcher Faculty of Law Faculty of IT & Design, Centre of Expertise Cyber Security The Hague University of Applied Sciences