On 7th March 2014 the European Parliament and the Council of the European Union adopted Directive 2014/41/EU on the European Investigation Order (EIO), which aims at providing Member States with a number of minimum standards in criminal evidence matters.[1] In this respect, the Directive at issue should be seen as one of the results of the European Union’s increasing interest on the principles of fair trial, including those relating to the pre-trial phase. This post attempts to assess the impact of Directive 41 on the EU’s efforts for a minimum standard of procedural rights for accused and suspected persons.

According to the relevant European Union’s primary and secondary sources – including Directive 2014/41/EU – all Member States must provide for a minimum level of guarantees connected to the right of defence, irrespective of the specific judicial system in force in each country. In particular, in December 2009, following the entry into force of the Lisbon Treaty, the European Council adopted the Stockholm Programme, which aimed at reforming the ‘current patchwork of rules’ and providing a single instrument in relation to the gathering of evidence in the EU.[2] This Programme also promoted a minimum level of procedural rights for accused and suspected persons, as a result of the new role played by both the European Union Charter of Fundamental Rights and the European Convention on Human Rights.

In examining Directive 41, one can identify a number of references to earlier EU instruments addressing such procedural rights. Indeed the 2nd, 12th, and 15th Whereas make reference to the Treaty on the Functioning of the European Union (TFEU), the EU Charter of the Fundamental Rights, and the three post- Roadmap Directives.[3]

In particular, Article 82 TFEU underlines the importance of the approximation of law and regulations, including those relating to such procedural rights, among Member States. This position is reiterated in Directive 41 that explicitly refers to Article 82 TFEU and to the main pillars of Judicial Cooperation in Criminal Matters, namely the principle of mutual recognition of judgments and that of mutual confidence between Member States. Accordingly, from Article 82 TFEU, and subsequently Directive 41, derives the necessity to provide minimum common rules in relation to the rights of individuals in criminal procedure.

The Directive also makes reference to the relevant provisions of the EU Charter, namely Articles 48 (concerning the presumption of innocence and all the rights of defence in criminal proceedings) and 52 (regarding the protection of the rights and freedoms of others). This reference is not a coincidence as it reflects the current importance of the EU Charter of Fundamental Rights in this field. Article 48, which shares the same content as Article 6 (2) and (3) of the ECHR, focuses on the right to defence and the presumption of innocence; while, Article 52, that is among the general provisions of the Chapter 7, highlights the importance of the scope of the rights and freedoms recognised by the Charter (and by the ECHR as well). Directive 41, through these references, underlines the need for building a new system of evidence and investigations in criminal matters based on these supreme principles.

In line with its efforts for the establishment of such minimum standards of procedural rights in criminal proceedings, the EU Council adopted, on 30 November 2009, a Resolution on a Roadmap for strengthening such rights.[4]As a consequence, the EU adopted the following directives: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty. Accordingly, the adoption of these Directives acted as a first great step towards recognising and also applying the common general principles provided by both the EU Charter and the ECHR in regard to procedural rights. Thanks to them, the EU has for the very first time a list of the most important procedural rights, such as: the right to information, the right to access to a lawyer as soon as possible, the right to interpretation and translation, regardless of the personal condition of both the accused and the suspected person. Although Directive 41 is supposed to intervene in the specific field of evidence and investigation’s matters, its reference to these other Directives shows that the new-born system should act in compliance with the catalogue of rights drowned by post Roadmap Directives.

As it has been demonstrated, a reading of Directive 41 indicates that it has been conceived to be in compliance with these earlier  instruments  and consequently shares the same rationale. Indeed, it is not a coincidence that the 10th, 18th, 19th, and 39th Whereas make reference to the supreme interest of protecting the fundamental rights of accused and suspected persons, while balancing it with the European Investigation Order’s needs. Similar statements can also be found in Chapter I, article 1, paras. 3 – 4, and Chapter II, article 6, paras. 1 (a), which underline the importance of taking into account the right of defence when issuing a European Investigation Order.

Nevertheless, despite the efforts of Directive 41 to further the EU’s aim of setting a minimum standard of procedural rights for the accused and suspected persons, applying these rights in practice may be a challenge. Indeed, the mere declaration of principles regarding the minimum rights of accused and suspected persons may not be adequately enforced by Member States. Specifically, it is still unclear how suspected and accused persons would balance their rights with all the other powers involved in criminal proceedings, such as the Prosecution’s powers. One of the main obstacles to the realisation of this goal is that Directive 41 does not take into account the differences between the judicial systems of Member States and how this makes the application of such standards more difficult.

In brief, as long as each Member State continues to regulate its own procedural instruments in criminal matters without taking into account either the other Members States’ rules, or the European minimum common rules, ensuring an effective protection of procedural rights, including those linked to the field of the rules of evidence, will remain an unattainable ideal.

[1] As for the Directive’s precedents, see the Council Framework Decision 2003/577/JHA of July 2003 on the execution in the European Union of orders freezing property or evidence, and the Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

[2] De Capitani – Peers, The European Investigation Order: A new approach to mutual recognition in criminal matters, available on EU Law Analysis, http://eulawanalysis.blogspot.it/.

[3] We are talking about the Road Map on procedural rights which was adopted in 2009 by the Justice Council, see http://ec.europa.eu/justice/criminal/criminal-rights/index_en.htm. .

[4] Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, text available on http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:295:0001:0003:en:PDF.