delivered on 11 April 2019 (1)

Case C‑324/17

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling — Judicial cooperation in criminal matters — Directive 2014/41/EU — European Investigation Order — Procedures and safeguards in the issuing Member State — Substantive reasons for issuing a European Investigation Order — Absence of legal remedies in the issuing Member State — Procedural autonomy — Principles of equivalence and effectiveness — Charter of Fundamental Rights of the European Union — Article 47 — Article 14 of Directive 2014/41 — Concept of ‘party concerned’ — Person against whom a criminal charge is brought and measures to collect evidence applied in respect of third persons)

I.Introduction

1.The opening of borders within the European Union has inevitably facilitated the cross-border aspect of crime, and indeed created new opportunities in that respect. Accordingly, the legal framework in which investigations are carried out, in particular the investigative powers of judicial authorities in the Member States, needs to be able to transcend national borders.

2.The Member States hence worked to establish judicial cooperation, in particular in respect of evidence. (2)

3.Although the growing number of judicial procedures enabling cooperation between the authorities of the Member States increased the effectiveness of cooperation in respect of obtaining evidence, it nonetheless became clear, as the EU legislature emphasised, that the European judicial framework for gathering evidence had become both too fragmented and complicated due, in the main, to the cumulation of specific instruments. (3) Directive 2014/41 was designed to replace cooperation instruments in respect of evidence. It seeks to simplify the legal framework for obtaining evidence and improve the effectiveness of investigative procedures.

4.Directive 2014/41 has a general, particularly broad scope in comparison with the instruments that it replaces. Accordingly, the first subparagraph of Article 1(1) of that directive provides that a European investigation order (EIO) is a judicial decision which has been issued or validated by a judicial authority of a Member State (‘the issuing State’) to have one or several specific investigative measure(s) carried out in another Member State (‘the executing State’) to obtain evidence in accordance with that directive.

5.In addition, authorities in the Member States are in principle required to execute EIOs on the basis of the principle of mutual recognition in accordance with the framework established by Directive 2014/41. (4)

6.Since the investigative measures ordered by the competent authorities to obtain evidence in criminal matters may be particularly intrusive inasmuch as they are liable to affect the right to a private life of the persons concerned, EU legislation must find a balance between the effectiveness and speed of investigative procedures, on the one hand, and the protection of the rights of the persons subject to those investigative measures on the other.

7.This case invites the Court to interpret Directive 2014/41 for the first time, but above all it affords an opportunity to take a position on that important but delicate balance.

8.The questions referred essentially concern Article 14 of that directive and the legal remedies available against the substantive reasons for the investigative measures indicated in an EIO.

9.In this Opinion I shall explain the reasons why, first, I consider that Article 14 of Directive 2014/41 precludes legislation of a Member State which does not permit a witness concerned by investigative measures, such as a search, a seizure and a hearing, to bring an appeal challenging the substantive reasons for those investigative measures, or to receive compensation. Such being the case, I likewise consider that Article 14, read in the light of fundamental rights, precludes a national authority from issuing an EIO.

10.Second, it is my view that, where remedies are not provided for under national law in similar domestic cases, Article 14 of Directive 2014/41 cannot be relied on by an individual before a national court to challenge the substantive reasons for issuing an EIO.

11.Third, I consider that the concept of ‘party concerned’ within the meaning of Directive 2014/41 covers, in the first place, a witness subject to the investigative measures requested in an EIO where his home is subject to a search and a seizure and he is to be heard and, in the second place, the person against whom a criminal charge has been brought where a measure to collect evidence ordered during the proceedings against him is directed at a third party.

II.Legal framework

12.The first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (5) reads as follows:

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

13.Under Article 48(2) of the Charter, ‘respect for the rights of the defence of anyone who has been charged shall be guaranteed’.

14.Article 52(3) of the Charter provides as follows:

‘In so far as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, (6) the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.’

15.Recitals 2, 11, 12, 18, 19, 22 and 39 of Directive 2014/41 state:

‘(2) Pursuant to Article 82(1) [TFEU], judicial cooperation in criminal matters in the Union is to be based on the principle of mutual recognition of judgments and judicial decisions, which is, since the Tampere European Council of 15 and 16 October 1999, commonly referred to as a cornerstone of judicial cooperation in criminal matters within the Union.’

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(11) The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings, whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned, and whether, by means of issuing the EIO, another Member State should be involved in the gathering of that evidence. …

(12) When issuing an EIO the issuing authority should pay particular attention to ensuring full respect for the rights as enshrined in Article 48 of the [Charter]. The presumption of innocence and the rights of defence in criminal proceedings are a cornerstone of the fundamental rights recognised in the Charter within the area of criminal justice. Any limitation of such rights by an investigative measure ordered in accordance with this Directive should fully conform to the requirements established in Article 52 of the Charter with regard to the necessity, proportionality and objectives that it should pursue, in particular the protection of the rights and freedoms of others.

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(18) As in other mutual recognition instruments, this Directive does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 [TEU] and the Charter. In order to make this clear, a specific provision is inserted in the text.

(19) The creation of an area of freedom, security and justice within the Union is based on mutual trust and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable. Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.

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(22) Legal remedies available against an EIO should be at least equal to those available in a domestic case against the investigative measure concerned. In accordance with their national law Member States should ensure the applicability of such legal remedies, including by informing in due time any interested party about the possibilities and modalities for seeking those legal remedies. In cases where objections against the EIO are submitted by an interested party in the executing State in respect of the substantive reasons for issuing the EIO, it is advisable that information about such challenge be transmitted to the issuing authority and that the interested party be informed accordingly.

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(39) This Directive respects the fundamental rights and observes the principles recognised by Article 6 of the TEU and in the Charter, notably Title VI thereof, by international law and international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and in Member States’ constitutions in their respective fields of application. ...’

16.Under Article 1 of Directive 2014/41:

‘1. A European investigation order is a judicial decision which has been issued or validated by a judicial authority of a Member State … to have one or several specific investigative measure(s) carried out in another Member State … to obtain evidence in accordance with this Directive.

The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State.

…

17.Article 5(1) of that directive states that ‘the EIO in the form set out in Annex A shall be completed, signed, and its content certified as accurate and correct by the issuing authority’.

18.Article 6 of that directive provides:

‘1. 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

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19.Article 11 of Directive 2014/41, in Chapter III, entitled ‘Procedures and safeguards for the executing State’, provides:

‘1. Without prejudice to Article 1(4), recognition or execution of an EIO may be refused in the executing State where:

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(f) there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter;

…

…’

20.Under Article 14 of that directive:

‘1. Member States shall ensure that legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicated in the EIO.

6. A legal challenge shall not suspend the execution of the investigative measure, unless it is provided in similar domestic cases.

21.Under Article 24 of that directive:

‘1. Where a person is in the territory of the executing State and has to be heard as a witness or expert by the competent authorities of the issuing State, the issuing authority may issue an EIO in order to hear the witness or expert by videoconference or other audiovisual transmission in accordance with paragraphs 5 to 7.

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(a) the suspected or accused person does not consent; or