EIO and the reserved position of the FRA

The structure of FRA promotes a great deal of interaction between both statal and non-statal actors in Member States and organizations of the EU and the CoE. This can be considered to be co-operative problem-analysis.⁷⁸⁰ The role of external actors and networks in this is essential. It is set out in Article 4 of the Council regulation setting up the FRA that one of the tasks of the Agency is to “formulate and publish conclusions and opinions on specific thematic topics, for the Union institutions and the Member States when implementing Community law, either on its own initiative or at the request of

775 Ibid., Amendment 4, p. 8.

776 Ibid., Amendment 8, p. 11.

777 Ibid., Amendment 24, pp. 24-25.

778 Ibid., Amendment 35, p. 30.

779 Ibid., Amendment 40, p. 33.

780 Von Bogdandy Armin und Von Bernstorff Jochen: Die Europäische Agentur für Grundrechte in der europäischen Menschenrechtsarchitektur und ihre Fortentwicklung durch den Vertrag von Lissabon. In Haller Gret, Günther Klaus, Neumann Ulfrid (Hg.): Menschenrechte und Volkssouveränität in Europa. Gerichte als Vormunde der Demokratie? Campus Verlag GmbH. Frankfurt am Main 2011, p.

254.

the European Parliament, the Council or the Commission”. Furthermore, recital 13 of the same Agency regulation lays down that the institutions should be able to request opinions on their legislative proposals or positions taken during the legislative procedures as far as the compatibility with fundamental rights is concerned. FRA formally adopted its opinion on EIO on 14 February 2011.⁷⁸¹ The opinion originated from a request of the EP that had asked the opinion of the FRA on the following questions:

1. Does the Charter of Fundamental Rights of the European Union include certain standards for an instrument involving mutual recognition of investigation orders?

2. Should the EIO Directive provide for review by the executing state of an issued measure, due to the current lack of comparability of existing standards in criminal procedural law between EU Member States?

FRA therefore tackled these questions and stated in the beginning of its analysis that consistency with fundamental rights needs to be ensured irrespective of who initiates the legislative proposal.⁷⁸² Given this fact, the FRA also very clearly remarks that the “draft directive is neither based on a proper impact assessment nor on an extensive gathering of evidence in the 28 Member States.”⁷⁸³ In initiatives like this, the lack of adequate impact assessments can be a real pitfall. This lack blurs and dilutes the evidence on which the proposal in question has been based.

In its opinion on EIO, the FRA considered that the EIO potentially interfered with several fundamental rights. It nevertheless concentrated mainly on the right to fair trial that was also highlighted in the request of opinion by the EP.⁷⁸⁴ In order to pave the way for deeper analysis on this substantial fundamental right, the FRA highlights the interpretation practice of the ECtHR, namely the case of Miailhe v. France.⁷⁸⁵ In this ground-breaking verdict, the court held that it must satisfy itself that the proceedings as a whole are fair.⁷⁸⁶ Furthermore, according to the court’s case law no investigative measure is acceptable if it would prejudge the right to a fair trial.⁷⁸⁷ Most importantly, the FRA gave particular attention to the ne bis in idem principle, which is extremely pertinent in the context of the EIO. This is the case mainly because of the eventuality of the suspects to be tried for the same crimes in different jurisdictions.⁷⁸⁸ Another key aspect of the FRA opinion related to defence rights. FRA especially found it important to take up the principle of

781 See Opinion of the European Union Agency for Fundamental Rights on the Draft Directive regarding the European Investigation Order. Vienna, 14 February 2011.

782 Ibid., pp. 2-3.

783 Ibid., p. 14.

784 Ibid., p. 3.

785 Miailhe v. France, No. 18978/91, 26 September 1996.

786 See ibid., paragraph 43.

787 FRA opinion, p. 4.

788 Ibid., p. 4. It should be noted that double jeopardy rule is set out in Article 50 of the EUCFR.

Moreover, the Charter connects the principles of legality and proportionality into guaranteeing fairness in criminal proceedings in Article 49.

the presumption of innocence.⁷⁸⁹ In addition to this crucial principle, FRA also observed other issues related to defence rights, such as the right to be notified of criminal charges, access to legal aid and lawyer and most notably the effective access to courts.⁷⁹⁰ All of these aspects were inextricably linked with the proposed EIO directive.

The second spearhead of the FRA arguments dealt with issues wrapped up in the right to privacy and data protection. The request of the EP was also centred in this topic. In connection with the right to the protection of personal data, FRA fully supports the EDPS recommendations that were laid down in the EDPS opinion. Above all, the lack of the Council Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in the text of the EIO has been identified as a major handicap leading potentially to legal uncertainty.⁷⁹¹ FRA found that, for example, the ECtHR has very often considered Article 8 of the ECHR and its potential interferences in light of the in accordance with law principle.⁷⁹² This can be seen, for example, in case Malone v. the United Kingdom that dealt with a judicial order to telephone tapping in a situation where legislation is not clear enough.⁷⁹³ This need to clearly indicate the scope of public authorities has been confirmed in consecutive ECtHR rulings. Another legal point to be taken into account had to do with the retention of personal data and particularly the need to ensure that it is in line with data protection legislation, notably in the case of the European data protection system under the Data Protection Directive.⁷⁹⁴ One of the most important questions in the EIO was the issue of execution of EIO and possible fundamental rights-based refusal grounds. The key question was if the executing state should be able to refuse to execute an EIO on the basis of a breach of fundamental rights.⁷⁹⁵ FRA found that “a fundamental rights-based refusal ground could acts as an adequate tool to prevent fundamental rights violations occurring during cross-border investigations”.⁷⁹⁶ On the other hand the FRA expressed misgivings about the possibility of the executing state to be totally familiar with criminal law rules and procedures of the issuing state. This might – according to FRA – lead to time-consuming and complex procedures that might undermine the used fundamental right standards.⁷⁹⁷ The FRA therefore had some concerns in relation to different approaches of the Member States in the implementation phase of the directive and this would not be a good thing for the system of mutual recognition nor the protection of fundamental rights.

The FRA also pinpointed that the proposed Article 10 of the draft EIO did not include a fundamental rights-based refusal ground. The FRA was of the opinion that as Member States are generally obliged to respect fundamental

789 Ibid., p. 5.

790 Ibid., pp. 5-6.

791 Ibid., p. 8.

792 Ibid., p 9.

793 See ECtHR, Malone v. the United Kingdom, No 8691/79, 2 August 1984, paragraph 67.

794 FRA opinion, p. 9.

795 Ibid., p. 10.

796 Ibid., p. 11.

797 Ibid.

rights, it is arguable that the possible contradiction of fundamental rights could be removed by including a reference to Article 1 (3) of the draft EIO that confirmed that the directive does not have the effect of modifying the obligation to respect fundamental rights as set out in the Treaty.⁷⁹⁸ The FRA was also somewhat sceptical towards the approach of the Council Presidency and the Commission to insert the double jeopardy rule into the text.⁷⁹⁹ The FRA, however, also saw merits in this approach, mainly because of its relative objectivity. The FRA proposed four types of safeguards in order to ameliorate the situation. Firstly, the FRA advised to include a provision in the text that would expressly require the executing state to adopt the least intrusive investigatory measures regarding interference with fundamental rights when executing the issuing state’s request.⁸⁰⁰ Secondly, due to data protection concerns, the FRA deemed it necessary to define the concept of “investigatory measures” in order to enable these measures to be carried out in accordance with law.⁸⁰¹ Thirdly, the FRA called for adequate safeguards to address the right to fair trial and eventually the Agency found it necessary to include clear provisions on legal remedies and time limits. Similarly, ex post evaluation and assessment of the system’s operability was considered to be an important element.⁸⁰²

To conclude, the FRA answered the questions put forward by the EP. The first question in connection with the EUCFR and fundamental rights standards in relation to mutual recognition of investigation orders was responded to in the following way. FRA opinion was focused on the existing EU standards, concentrating mainly on fair trial, based on the case law of the CJEU and the ECtHR.⁸⁰³ The second question was about review of the executing state of an issued measure due to the current lack of comparability of existing standards in criminal procedural law between Member States. FRA paid attention to a potential provision on fundamental rights-based refusal ground. The FRA found that this kind of provision would have to be clearly defined. FRA emphasized the importance of various safeguards to be introduced in the text.⁸⁰⁴ What is important in the FRA conclusion are the critical remarks on the lack of impact assessment of this proposal put forward by a group of Member States.⁸⁰⁵ It is evident that assessment of impacts cannot be as complete as evaluation carried out by the Commission on a great variety of Member States' systems across the EU. The evidence used for the assessment, and its comparability on the Member States' legal systems, is questionable. Hence, probably the biggest pitfall of Member States initiatives can be found in the field of assessing impacts.

798 Ibid.

799 Ibid., p. 12.

800 Ibid.

801 Ibid.

802 Ibid., pp. 12-13.

803 Ibid., p. 14.

804 Ibid.

805 See Ibid.