European Investigation Order Research Articles

The Court of Justice in Staatsanwaltschaft Berlin v. M.N. (EncroChat): From cross-border, data-driven police investigations to evidence admissibility

The ruling of the Grand Chamber of the Court of Justice of the EU (CJEU) in Case C-670/22 Staatsanwaltschaft Berlin v. M.N. addresses the realities of data-driven police investigations in the light of the Directive 2014/41/EU on the European Investigation Order (EIO Directive). In particular, it examines the cross-border, digital investigation of the encrypted communication network EncroChat and the use and sharing of intercepted telecommunication data in criminal proceedings. In doing so, the CJEU offers clarifications as to the interpretation of the term ‘issuing authority’ under the EIO Directive and the proportionality requirements for issuing an EIO, taking into account its prior jurisprudence on the implications of access to traffic and location data for the private life of the persons concerned. More importantly, this CJEU ruling takes a stand on admissibility of intercepted data as evidence in criminal proceedings, considering the technical complexity of contemporary investigation measures and the secrecy of said police methods. Overall, although this judgment seems to hold no great surprises regarding the interpretation of the EIO Directive's provisions, it underscores the important role of the national legislator and national courts in striking the right balance between rearing the rewards of data-driven policing and safeguarding defence rights.

Judgment of the Court of Justice of the European Union of 30 April 2024 in the “EncroChat case” (case No. C-670/22): does this judgment really legitimise Forum Shopping in criminal proceedings, and how will it impact Lithuanian criminal proceedings?

The article analyses the judgment of the Court of Justice of the European Union of 30 April 2024 in case No. C-670/22 (EncroChat) and its implications for Lithuanian criminal proceedings. According to this judgment, only a senior prosecutor can issue a European Investigation Order to obtain evidence already in the possession of the competent authorities of the executing state during a pre-trial investigation in Lithuania, and only the court hearing the criminal case can issue a European Investigation Order when the criminal case is in the hands of a court. The Code of Criminal Procedure of the Republic of Lithuania does not provide a legal basis for the prosecuting authorities to secretly intercept the content of all communications of the users of mobile telephones, which are fully encrypted by means of a special software and a modified device, and it is therefore questionable whether (i.) the transfer of the data obtained in this way to Lithuania as an extraditing state meets the substantive legal conditions arising from Article 162 of the CPC, which, according to the Code of Criminal Procedure of the Republic of Lithuania, defines the legitimacy of the use of the information obtained in another criminal proceeding, and whether (ii.) the data obtained by the receiving state by means of such a measure can be used in the criminal proceedings of Lithuania as an issuing state as evidence in an incriminating sense. If the executing State does not disclose the nature and essential technical characteristics of the means used to intercept the full content of the users’ communications by means of mobile telephones, which, by means of special software and a modified device, provide a fully encrypted connection, the defendants in general are deprived of an effective opportunity to know and present their position on these incriminating facts; therefore, such evidence is inadmissible in Lithuania’s criminal proceedings as an extraditing state.

Legal Remedy Against the Issuing of a European Investigation Order Regarding Hearing of a Witness by Videoconferencing

W glosie dokonano krytycznej analizy stanowiska Trybunału Sprawiedliwości wyrażonego w sprawie C-852/19 Gavanozov II. Wskazano, że wymóg zapewnienia w państwie wydającym środka prawnego w rozumieniu art. 47 KPP UE w odniesieniu do END dotyczącego przesłuchania w drodze wideokonferencji jest zbyt daleko idący, ponieważ jest to czynność, która sama w sobie nie wiąże się z ingerencją w sferę praw i wolności jednostki. W dalszej części rozważono praktyczne implikacje wyroku dla europejskiej współpracy sądowej w sprawach karnych. Analizie poddano wymagania, jakie powinien spełniać środek prawny, o którym mowa w art. 47 KPP UE. Przyjęto, że są one spełnione w przypadku, gdy prawo krajowe zapewnia możliwość ogólnego kwestionowania przez świadka swojego wezwania, czy to w formie pisemnej po otrzymaniu wezwania, czy też ustnie w chwili stawienia się przed organem procesowym.

Exploring the Ne Bis in Idem principle: Material scope and application in EU law

This article examines and analyses the application of the ne bis in idem principle based on a final verdict of acquittal or conviction by a competent court where the cases have already been concluded by a final decision. It examines the principle concerning Article 4 of Protocol No. 7 of the European Convention on Human Rights (Article 4P7 ECHR), Article 50 of the Charter of Fundamental Rights of the European Union and its implication under Articles 54 to 58 of the Convention Implementing the Schengen Agreement (CISA). By reviewing previous literature, case law and fact sheets of the Court of Justice on the Ne bis in idem principle, the paper analyses the material scope of application of the principle and highlights the multifaceted significance of the Ne Bis in idem principle in criminal proceedings and the harmonisation of legal practices within the European Union. It reaffirms the principle's foundational importance in fostering fairness, legal certainty, and the protection of fundamental rights across a wide array of legal contexts. It elaborates and provides an interpretative analysis of the principle on the associated jurisprudence of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). The paper also shows that the ne bis in idem principle serves as a common ground for judicial cooperation in criminal matters and mutual recognition of the Council Framework Decision 2002/584/JHA concerning the European Arrest Warrant (‘EAW FD’) and Directive 2014/41/EU regarding the European Investigation Order in criminal matters.

Mutual Recognition By Private Actors In Criminal Justice? E-Evidence Regulation And Service Providers As The New Guardians Of Fundamental Rights

A large and constantly growing number of criminal offences, not only cybercrime, is committed in a way that leaves digital traces which can serve as evidence. This data is in the possession of service providers, often located in a different country than the place of an investigation. The available model of cross-border gathering of evidence, based on mutual legal assistance, is considered too cumbersome and lengthy for the digital world. Similar reservations have been made as regards the European Investigation Order. In response, the European Commission proposed the so-called e-evidence package in 2018, which – after 5 years of arduous negotiations – was finally adopted on 12 July 2023. Its main element is the European Production Order, an instrument based on mutual recognition which will allow law enforcement authorities in one Member State to request Internet service providers in another Member State to produce data without or with limited involvement of the authorities of the latter State. This new system is effectively a legal revolution which redefines the concept of mutual recognition and creates a model where service providers will play a significant role in safeguarding their users’ fundamental rights. This article examines the paradigm shift caused by this instrument, analyses the dynamics of interaction between the parties involved – in particular the role private actors will play in it – in order to verify the correctness of the legal basis and reveal the consequences of such a new system for transnational cooperation and service providers in the EU.

Obtaining and Assessing Evidence From the Hearing of a Minor Victim under the European Investigation Order – Selected Problematic Issues

Obtaining and Assessing Evidence From the Hearing of a Minor Victim under the European Investigation Order – Selected Problematic Issues

Formal and Informal Circulation of Cross-Border Evidence in Europe and Possible Improvements: Toward an “Annex E” of the European Investigation Order?

Formal and Informal Circulation of Cross-Border Evidence in Europe and Possible Improvements: Toward an “Annex E” of the European Investigation Order?

The Concept of an Effective Remedy Under Article 47 of the Charter in Context of the European Investigation Order

The Concept of an Effective Remedy Under Article 47 of the Charter in Context of the European Investigation Order

Issuance of the European investigation order at the stage of a preparatory proceeding for the purpose of obtaining information constituting bank secrecy

Abstract The article discusses matters related to the issuance of the European Investigation Order (EIO) during the stage of a preparatory proceeding, the objective of which is to obtain information protected by banking secrecy from a foreign bank. Attention is drawn to the essence of this instrument of international cooperation in criminal matters and its comprehensive nature. A key problem revealed in prosecutorial and judicial practice consists of determining the entity competent to issue the European Investigation Order in the in rem phase of the preparatory proceedings. This issue also necessitates determining whether, in such a procedural situation, it is necessary to obtain the consent of the district court to access information subject to bank secrecy and whether this affects the scope of competence of the court or the prosecutor. An examination of case law and the accompanying opinions of the doctrine presented in the article reveals a non-uniform, even mutually exclusive, approach to this issue. A critical look at the presented range of views enables a clear stance on the aforementioned issues and the formulation of a de lege ferenda proposal.

Obtaining Evidence Protected by Banking Secrecy through European Investigation Order in Preparatory Proceedings. Remarks from the Polish Perspective

The subject matter of considerations undertaken in the paper is the issue of obtaining evidence entailing banking secrecy under the European Investigation Order at the stage of the preparatory proceedings from the Polish perspective. The examination of the described evidence activity is often necessary to make key findings, for example, in the field of the data on bank accounts or bank transactions. Actions taken in this regard may concern the monitoring of banking opera­tions and may also be used for establishing financial links be­tween entities operating in different European Union Member States. The procedure for applying the European Investigation Order generates many problems in the analysed scope, in par­ticular at the stage of the preparatory proceedings, starting from determining the authority competent to issue the European In­vestigation Order, to the need to consider legitimacy of obtain­ing the consent by the prosecutor to exempt from banking se­crecy in order to further request for the required information. Against the background of the issues presented in the article, an attempt was made to analyse the normative institution of the European Investigation Order, used for obtaining evidence covered by banking secrecy, and to show the model that deter­mines its optimal functioning in the face of existing problems in the application challenges related to the European cooperation in this area.

Verification in the Issuing State of Evidence Obtained on the Basis of the European Investigation Order

The aim of this article is to address the issue of the ex­tent of incorporation and verification of evidence for purpose of the criminal trial as the evidence base for the judgement, namely the evidence that is obtained on the basis of the Euro­pean Investigation Order, including the evidence obtained in various forms that may raise doubts in terms of the protection of individual rights. The authors would like to focus on the analysis from the perspective of the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 on the European Investigation Order in criminal matters and Polish legislation, and consider what kind of possibilities the issuing state’s authorities have to verify admissibility of evidence, especially the way in which the evidence is obtained when it has not been produced upon request but only delivered since it has already been in possession of the executing state’s authorities.

Gloss on the Judgement of the Polish Supreme Court of 2 June 2022, I KZP 17/21

The article discusses the decision of the Polish Su­preme Court of 2 June 2022, I KZP 17/21. The ruling of the Su­preme Court was issued based on a legal question submitted by a common court in relation to the European Investigation Or­der (EIO). The Author refers to the ruling by discussing broadly both the issues of the legal question and the authority issuing the European Investigation Order within the framework of pre-trial proceedings. Of paramount importance are the characteristics of the subjective sphere, i.e. the authority empowered to issue a European Investigation Order from the point of view of legally protected confidential information, in particular bank secrecy constituting the subject matter that served the basis for the ruling of the Supreme Court being commented herein.

Wybrane problemy procesowej kontroli i utrwalania rozmów

This study addresses certain aspects of procedural surveillance and recording of wiretapped calls which are relevant to prosecutorial practice. This subject matter, regulated in Chapter 26 of the Code of Criminal Procedure, involves fundamental rights of individuals which are strictly protected under the Constitution and the highest-ranking instruments of international law. Therefore, it is of utmost importance to not only appropriately elaborate the legal regulations that permit the surveillance of citizens, but apply them in the everyday practice of law enforcement and the judiciary. The author discusses the evolution of procedural wiretapping in the Polish legal order in order to facilitate the understanding of the current regulations in this field. He also points out to specific difficulties in interpreting certain vague terms such as ‘an urgent case’, whereby a public prosecutor may order surveillance and recording of the content of telephone conversations; or a ‘particularly justified case’ which constitutes the grounds for extended surveillance and wiretapping of telephone conversations. In addition, the article takes a closer look at a possibility of procedural wiretapping under a relatively new legal institution, i.e., the European Investigation Order. With regard to this issue, mention was made of numerous controversies amongst legal scholars as to the amendment to Article 237a of the Code of Criminal Procedure, which has eliminated the so-called ‘subsequent consent of a court of law’ and placed the decision on the use of the information obtained by way of procedural wiretapping in the hands of a public prosecutor within the framework of expanding the objective or subjective boundaries of surveillance.

Organ właściwy do wydania europejskiego nakazu dochodzeniowego w postępowaniu przygotowawczym w fazie in rem w zakresie informacji objętych tajemnicą bankową. Uwagi na tle postanowienia Sądu Najwyższego z 2 czerwca 2022 r., I KZP 17/21, OSNKW 2022/7/26

"This article is devoted to the decision of the Supreme Court of 2 June 2022, no. I KZP 17/21, which applies to the authority competent to issue a European Investigation Order in the pre-trial proceedings during the in rem phase with regard to information covered by banking secrecy. In the commented decision, the Supreme Court refused to adopt the resolution on the presented legal issue, submitted pursuant to Article 441 § 1 of the Act of 6 June 1997 – the Code of Criminal Procedure by the Court of Appeal in Kraków. It required an elementary interpretation of the Act to answer the question whether it is the public prosecutor or the regional court (Sąd Okręgowy) that is competent to issue the European Investigation Order under Article 589w § 1 and § 5 of the Code of Criminal Procedure in pre-trial proceedings concerning disclosure of information constituting a banking secret with regard to a bank established beyond the territory of the Republic of Poland’. Regardless of the foregoing, given the importance of the problem and the consequences of an incorrect interpretation of Article 589w § 1 of the Code of Criminal Procedure, which may occur in practice on the basis of the current prosecutorial practice and jurisprudence, the Supreme Court examined the above issue in the statement of reasons for its ruling in response to the Court of Appeal in Kraków, from which it follows that a prosecutor cannot issue an EIO pursuant to Article 589w § 1 of the Code of Criminal Procedure in order to obtain information constituting banking secrecy from another Member State under to Article 106b(1) of the Banking Law Act of 29 August 1997, unless the court gives its consent thereto. The article is devoted to the legal analysis of the above decision of the Supreme Court; and the consequential assessment of the issued ruling is critical."

Unblurring the Fuzzy Line Between Specialty and Data Protection in EU Mutual Legal Assistance After the European Investigation Order

The purpose limitation principle takes a central place in data privacy law. The specialty principle plays a key role in international cooperation in criminal matters, including in the context of mutual legal assistance (MLA), which is aimed at the cross-border collection and use of information and evidence. Since the specialty principle also frames use limitations for information or evidence obtained through MLA and must therefore be considered a traditional MLA correlative of the purpose limitation principle in data privacy law, both concepts are clearly intertwined. However, since the entry into force of the European Investigation Order, and the EU Data Protection Directive 2016/680 for Police and Criminal Justice, it has become unclear how both principles interplay, and what that implies for the rights position of the data subject or person concerned. This paper unblurs the fuzzy line between specialty and data protection in the current EU MLA context. Based on historical and conceptual analysis, the paper unravels whether the new data protection provisions of the European Investigation Order and Directive 2,016,680 have speciality features and, if so, to which extent they effectively serve a specialty function. This paper does not only demonstrate that both principles do not fully equate with one another, but features an analysis of how they differ, both conceptually and functionally. It argues and concludes that only a fuller, generic specialty rule and data ownership principle have the potential to promote free movement of information and evidence, whilst equally enhancing the procedural rights position of persons concerned.

Interception of Communications on the Territory of Another European Union Member State Based on the European Investigation Order

The article begins with an explanation of why the topic of the European Investigation Order and interception of communications was addressed. The great practical importance of this issue as well as the lack of detailed studies on this subject have been highlighted. The specialist character of the study paper was then explained and each stage of the procedure for the implementation of interception of communications on the basis of an EIO, i.e., the agreement between the parties, the approval by the prosecutor and the court, and the implementation of interception has been discussed. However, each of the abovementioned steps involves problematic issues pertaining to the facts of the case and the law, which had to then be analysed and the arising concerns resolved. Amongst other things, the article mentions that competent prosecutors read and evaluate the EIO before sending it to a court and propose their decision on the EIO and the role of the court in approving it. The issue of classification of confidential documents as secret and what must be done to effectively deliver them to the state that executes the EIO to implement the interception is discussed. The article concludes with a summary containing a brief description of the most important conclusions resulting from the detailed analysis of the research undertaken.

Funkcja dowodowa przesyłki niejawnie nadzorowanej.

n the article, the author presented some regulations by law which condition the execution of an offensive method of operational work, viz. a controlled delivery. He has referred to the recent amendments to the Code of Criminal Procedure which enable one to make use of this legal institution under the European Investigation Order. While elaborating on the essence of controlled delivery, he has underlined a series of advantages which result mainly from the evidential function assigned by the legislator thereto, due to which it becomes a very efficient tool for fighting against crime, and especially against organized crime. The author has shared an opinion that a sufficient legal basis for the use the materials collected during a special activity with controlled delivery in criminal proceeding is article 393 § 1 , sentence 1 of the Code of Criminal Procedure. Basing upon an analysis of controlled delivery, the author explicitly advocates the necessity of a close relationship between the results of operational work and criminal proceeding so as to reach the primary objective, namely, an efficient fight against crime.

European Investigation Order's Issuance Procedure for Smuggling Crime Investigation

European Investigation Order's Issuance Procedure for Smuggling Crime Investigation

European Investigation Order – Selected Problems on Polish Implementation

The paper presents selected key problems of Directive 2014/41/EU regarding the European Investigation Order in criminal matters within the context of its Polish implementation in 2018. The paper focuses on the concept of investigative measures, administration of justice and exclusionary evidence rules as a limitation of issuing a Polish EIO. Additionally, the study attempts to approximate the reduced procedural mechanism in the context of issuing the ECI.

Admissibility of Evidence Obtained as a Result of Issuing an European Investigation Order in a Polish Criminal Trial

This article analyses the admissibility of evidence gathered by the Polish procedural authorities as a result of issuing an European Investigation Order, on the basis of provisions implemented due to the adoption on the 3th of April 2014 of the Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. This Directive created a mechanism that allows for transfer of evidence between EU Member States. In this text the question will be answered how to deal with results of investigative measures that have been legally obtained in the executing state but despite acting in accordance with the legality principle by both states, happen to be illegal in the issuing Member State. Another discussed problem is how the rules of admissibility of evidence obtained from the result of issuing an EIO work in Poland – or at least how they should operate. The second discussed issue thus will refer to the current provisions in force in Poland regulating the method of dealing with evidence obtained abroad – that is also with evidence transferred from other Member States. It will be shown that they are unclear and may lead to undesirable results. In addition, suggested changes in Polish law will be proposed.