14. Probelms of Issuing the European Investigation Order

Abstract

European investigation order is a new tool for judicial cooperation in criminal matters and the above mention instrument is in effect since 15^th of July 2017. Until this date judicial cooperation in criminal matters were regulated by various international conventions, its additional protocols, European evidence order. European investigation order has changed rigid/inflexible tools of judicial cooperation between countries and it is going to foster the conduction of legal action in EU member states.

According to article 6 on Conditions for issuing and transmitting an EIO of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European investigation order in criminal matters the issuing authority may only issue an EIO where the following conditions have been met:

(a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings referred to in Article 4 taking into account the rights of the suspected or accused person; and

(b) the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case.^[1]

The European investigation order raises questions to practitioners on its implementation. For example, how to explain meaning of one of conditions for EIO – necessary? Which criteria determines when it is necessary to issue the EIO and in which cases it is not recommended?

Therefore, the above mentioned questions define aspects of the research, precisely to analyze conception one of the EIO issuing element of conditions “necessary”, its interpretation in the jurisprudence of supranational and national courts, to provide criteria which would help make a decision to issue or refuse to issue EIO in a specific pre-trial investigation/criminal case.

[1] European investigation order in criminal matters. Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014. Official Journal of the European Union, L 1.5.2014, 130/1.