As cross-border organized crime operates on global scale in an ever-evolving technological context, judicial cooperation is essential for the deterrence, prevention, and repression of transnational criminality. To ensure the productive and successful apprehension of criminal offenders, the European Union has implemented legal tools that allow Member States to coordinate their response to organized and globalized crime.
Initially, the 2000 EU Convention and its additional Protocol of 2001 were the main tools for obtaining cross-border evidence within the EU, completing the Strasbourg Convention of 1959 and its additional Protocol of 1978, which were the first regional conventions ever adopted in the matter of European transnational cooperation. Signatory states were expected to afford each other “the widest measure of mutual assistance” in proceedings related to offences which fell within the jurisdiction of the requesting State.
In this context, the main way to request judicial assistance was done by drafting a letter rogatory “for the purpose of procuring or transmitting articles to be produced in evidence, records or documents precising the purpose of the requested proceedings,” or request for mutual assistance transmitted directly through judicial authorities.
Letters rogatory were sometimes very time-consuming because they could involve unique issues of domestic procedural law and because they were likely to remain a dead letter.
To overcome such challenges, the Directive regarding the European Investigative Order (“EIO”) was enacted in 2014 and implemented in Member States by May 2017 to replace the above framework. The EIO 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 measures carried out in another Member State to obtain evidence in an ongoing criminal investigation.
Other effective measures such as Joint Investigation Teams (“JIT”) which was created by EU Law, enable direct cross-border cooperation to simplify criminal investigations.
These tools appear especially effective as the recent example of the EncroChat investigation in 2020 shows.
1. Recent example of an effective EIO facilitating the transfer of evidence in a cross-border context: The EncroChat investigation
1. As the EIO is based on the principle of mutual recognition, the executing authority must recognize the other country’s request and ensure its execution according to the same conditions as if the investigative measure concerned had been ordered by an authority of the executing state. An EIO may therefore be issued in proceedings brought by a judicial authority in respect of a criminal offence under the national law of the issuing State, where the investigative acts are necessary, adequate, and proportionate to the case at hand, and within determined time limits.
2. Various investigative acts are covered, such as search and seizure, hearing of suspects and witnesses (including by videoconference or by phone), restitution of articles obtained by criminal means, temporary transfer of persons detained who could provide important information on the criminal offence being investigated, controlled delivery, covert investigations, or interception of telecommunications or transmission of evidence already collected.
3. Executing states have some grounds for refusal to execute an EIO including immunity rules, harm to essential national interests in security matters, non-criminal proceedings, non bis in idem principle, dual criminality, incompatibility with fundamental rights obligations, or impossibility to execute the measure.
4. An interesting example of the use of an EIO was when the UK issued an EIO to France in 2020 to obtain evidence already collected by the French authorities as part of the EncroChat investigation which was widely reported in the press.
5. It was reported that the French authorities had managed to hack the EncroChat encrypted network which was hosted on servers located in France and was allegedly used by criminal organizations to secure their communications and conduct their illegal activities.
6. The admissibility of the evidence collected and the validity of the EIO issued by the UK was of course challenged before the English courts. According to British legal practitioners, this was the first time that the issue of EIO was litigated before English Courts but could also be the last since the United Kingdom has left the European Union.
7. Nonetheless, this cooperation was a great success which led to the arrest of a considerable number of alleged criminals in the UK. This example shows the effectiveness with which this investigative tool was used by authorities of Member States to successfully transfer evidence gathered in order to enable investigation and combat organized crime on a global scale.
2. Joint investigation teams allow the hacking of the EncroChat encryption network
8. It should be noted that the hacking of the EncroChat encryption network resulted from a joint effort from French and Dutch authorities which formed a Joint Investigation Team.
9. The 2000 EU Convention allows for the creation of JITs between member states, which consist in teams comprised of judges, prosecutors, and law enforcement authorities, set up in a written agreement between several Member States for a specific purpose and for a limited period of time. The European Council also enacted a framework decision of model agreements in 2017 for such investigation teams.
10. Usually, JITs are formed where difficult investigations into criminal offences are required on the territories of one or more countries or where there is a need for coordinated and concerted action. JITs have the distinct advantage that information and evidence collected during the investigation may be directly shared between investigators without going through traditional channels of mutual legal assistance.
11. This successful JIT led by the French and Dutch authorities was also supported by EU agencies such as Europol or Eurojust also provided which can provide logistical, intelligence or even legal support. This example showcases the usefulness of this legal cooperation mechanism at the disposal of the Member states and European authorities to conduct efficient and speedy investigations in the context of cross-border crime.
12. In addition, it can be noted that many bilateral conventions are regularly being ratified in this matter. Nevertheless, efforts still have to be made for a better harmonization of cross-border cooperation.
13. Recently, the European Commission issued proposals for a regulation and a directive to establish a legal framework that would facilitate the securing and obtaining of access to electronic evidence by police and judicial authorities in cross-border cases, indispensable to carry out their missions in a world transformed by new technologies.
14. In its 2020 opinion regarding these proposals, and while supporting the above-mentioned objective, the European Data Protection Supervisor (“EDPS”) expressed reservations concerning their respect of the Charter of Fundamental Rights of the EU and the EU data protection body of law.
15. It underlined that other alternatives providing greater safeguards for the same purpose should be further assessed and recommended that the proposals reassess the balance between the type of offences for which EIOs could be issued and the categories of data concerned.
