Op-Ed: “Gavanozov II and the need to go further beyond in establishing effective remedies for violations of EU fundamental rights” by Vânia Costa Ramos
Effective legal protection – a fundamental right under EU Law
Ubi jus ibi remedium − where there is a right there is a remedy. This is one of the basic tenets of States or Unions under the Rule of Law. The reason is obvious: there is no point in having a right if, once that right is infringed upon, there are no consequences. Thus, once one asserts a violation of their rights, they must be entitled to be heard by a (impartial) court, following fair proceedings. And they must be entitled appropriate redress in case a violation is found.
Effective judicial protection is a general principle of EU law, belonging to the constitutional traditions of Member States. It is primarily for national authorities to redress the alleged violations of EU law (Article 19, para. 1, §2 TEU).
So far, so good.
In this Op-Ed, I will comment on a recent judgment of the Court of Justice in case Gavanozov II (C-852/19), published on 11 November 2021. The case raises a key issue: What happens if there is no remedy to vindicate one’s fundamental rights in the cross-border context in criminal cases? I conclude that from a certain perspective this judgment represents a step further in the protection of persons affected by a European Investigation Order (EIO). However, from another viewpoint, the reliance on the role of the issuing Member State aggravates existing problems. Finally, I will argue that many questions remain open, namely what will happen in cases (i) where infringements stemming from the lack of procedural remedies have not been previously found by consistent European Court of Human Rights (ECtHR) case law, or (ii) where there is no effective substantive remedy to redress the violation of fundamental rights, namely where evidence thereby obtained will not be excluded. As I will explain below, this remedy is necessary if we are to speak of effective remedies in the field of evidence gathering.
Must a Member State establish a remedy against the issuing of an EIO?
In the past I have written (here, at p. 156) that, if there are no means of challenging the issuing or the recognition and execution of a EIO − or if these are not effective −, that would constitute an infringement of Article 47 of the Charter. This would amount to a particularly serious infringement when other fundamental rights are involved.
I therefore asserted that although Article 14 of Directive 2014/41 regarding the EIO in criminal matters (EIO Directive) does not require that Member States establish an autonomous procedural mechanism, the principle of equivalence presupposed the existence of remedies equivalent to those available to address violations of national law. Thus, the lack of such a remedy, would be a violation of Article 14, para. 1, consistently read in light of Article 47 CFREU.
The case at hand dealt with the lack of a remedy in the issuing State. The Court of Justice squarely concluded that, where investigative measures affect fundamental rights protected by EU law, the persons affected need to be able to challenge their lawfulness and proportionality before a court and to ask for adequate compensation in case of a finding of unlawfulness.
The Gavanozov II case concerned an EIO requesting a search and seizure and a witness statement by video-conferencing. These measures impinge upon the right to respect for private and family life, home and communications, and the right to property (Articles 7 and 17(1) of the Charter), as well as the right against arbitrary and disproportionate interference by the State in one’s private sphere, a general principle of EU law, respectively (Gavanozov II, paragraphs 31-33 and 44-47).
Since ‘substantive reasons’ to issue an EIO may only be challenged in the issuing Member State (Article 14(2) EIO Directive) the Court of Justice concluded that this Member State had to establish a judicial remedy in respect thereof. Otherwise its legislation would be inconsistent with Article 14 EIO Directive, read in the light of Article 47 of the Charter (Gavanozov II, paragraph 50).
Does the lack of a remedy affect the mutual recognition system?
In the European Arrest Warrant (‘EAW) field, the Court of Justice had ruled that even where there is evidence of systemic or generalised deficiencies concerning the independence of the judiciary, such deficiencies do not necessarily affect every decision of the courts of that Member State, and could therefore not suspend the functioning of the EAW (L and P, C‑354/20 PPU and C‑412/20 PPU, paragraph 50).
How different is the decision in Gavanozov II?
It goes a step further. For the first time ever in the field of EU criminal law, the Court recognises circumstances that trigger the suspension of a mutual recognition instrument, ruling that a Member State, in the case at hand Bulgaria, cannot issue an EIO.
As the Court pointed out, the mutual recognition principle establishes that the executing authority may only derogate from the rule that it should recognise and enforce an EIO in exceptional circumstances of serious risks of violation of fundamental rights to be verified on a case-by-case basis (Article 11(1)(f) EIO Directive). This arrangement is based on mutual trust, which in turn is grounded on the rebuttable presumption that other Member States respect EU law and in particular fundamental rights.
In the case at hand the presumption had clearly been rebutted due to multiple cases of violation declared by the ECtHR, and even acknowledged by the relevant Member State.
Thus, the Court of Justice ruled that the issuing of the EIO itself would not be compatible with the principles of mutual trust and sincere cooperation (Article 4(3) TEU), the latter requiring the issuing Member State to create the conditions to allow the executing authorities to cooperate in accordance with EU law. As AG Bobek had stated in his Opinion on the case, it would be incompatible with such principles to allow a Member State which is aware of the incompatibility of its acts with the minimum safeguards in relation to fundamental rights to benefit of the mutual recognition system, since those acts could not generate mutual trust, but rather mutual distrust (Opinion, point 82).
Despite this innovation, Gavazonov II does not imply a complete suspension of the EIO mechanism. It simply outlaws its use when the investigative measures affect fundamental rights. The holding applies to searches and seizures and to depositions by video-conferencing (since they may be obtained under legal constraint). The reasoning however makes it clear, in my opinion, that the same will apply to other measures affecting fundamental rights (Gavanozov II, paragraphs 31-33 and 44-47).
One should not be too enthusiastic, though. If persons affected argue that there is no remedy, or no effective remedy in the issuing Member State, without prior clear rulings by the ECtHR, I doubt that the Court of Justice will issue a similar decision. Those situations will likely be dealt with under Article 11(1)(f) EIO Directive (see also the Opinion of AG Bot in Gavanozov I, C-324/17 (point 86).
Concentration of remedies in the issuing State − A remedy sufficiently available?
One cannot avoid but looking at this judgment as a ground-breaking decision that will affect the system of cross-border evidence gathering throughout the EU. However, many questions remain unanswered, and the systemic flaw that needs to be corrected by creating a truly ‘transnational organisation of legal protection’, as Luchtman argues (here, at p. 57), remains unaddressed.
It is true that the Gavanozov II judgment improves the protection of those affected, in that it prevents overtly tainted procedural acts from entering the system, protecting individuals and companies from what AG Bobek names ‘Russian roulette’ (the faith of the vindication of rights depending on the diligence of the executing States’ authorities (Opinion, paragraphs 84 and ff.).
Further, the judgment clearly indicates that in a situation such as that at hand, the executing authority has to refuse the execution of the concerned EIO (Article 11(1)(f) EIO Directive).
Yet, in practice I often see an approach of ‘throwing them against the wall to see if it sticks’. Issuing authorities issue EIOs. And it ‘sticks’: Executing authorities, enchanted by the perfume of mutual trust and immersed in the principle of mutual recognition, oblige without further ado, relying on any outstanding matters being dealt with in the issuing Member State. This is even more so where the person affected is not even aware of the measure at the time of the decision on recognition and enforcement in the executing Member State.
Practice, and this judgment, intensify the focus on the role of the issuing Member State. Despite the executing State being able to refuse an EIO due to the infringement of Article 47 of the Charter, the Court of Justice has placed the emphasis on the issuing State and its ‘exclusive jurisdiction’ to address the substantive grounds for issuing an EIO. Therefore it all ends again in the hands of the issuing State, which needs to be able to assess and draw the consequences of any possible violations.
This ironically aggravates the problems of the protection of those affected by mutual recognition measures arising from the concentration of legal remedies in the issuing Member State (fn 1). Concentration carries a risk that even where there is a remedy, it is in practice not accessible to those affected, due to geographical distance and also because of the linguistic, cultural, procedural, and legal divergences and the ignorance of the law of the issuing Member State (fn 2). At the very least, it makes the exercise of defence rights much more difficult. This is specially so when coupled with the lack of a clear legal framework of the right of cross-border access to legal assistance and legal aid in the context of the EIO. The case at hand is a good illustration of this: The persons affected are not suspects or accused. Thus, had Bulgaria had a remedy, despite having no connection with the criminal proceedings in that Member State, the persons affected would have to instruct lawyers and make the case in a different Member State, facing the inherent difficulties.
Whether any remedies established either in the issuing or executing Member State would actually be effective is another question, one of ‘substantive remedies’ (the appropriate relief that must be made available) not addressed in Gavanozov II. I will not deal with it, but I argue that when dealing with a fundamental right breach in the field of gathering of evidence, the only effective remedy is, at least, the exclusion of the concerned piece of evidence.
The right to effective legal protection in Article 47 of the Charter may serve as the source for asserting such rules for fundamental rights violations in the field of evidence gathering more broadly, taking rights seriously in the field of evidence gathering to its ultimate consequences. Not just yet, but anytime soon.
Vânia Costa Ramos is a Criminal Defence Lawyer based in Portugal. She is Vice-Chair of the European Criminal Bar Association, PhD Researcher at the Research Centre of the Institute of Criminal Law and Criminal Sciences (University of Lisbon) and Scientific Collaborator at the Legal Clinic on EU Criminal Law (Université Libre de Bruxelles).
(fn 1) Klip, European Criminal Law, 3rd ed., 2016, p. 470.
(fn 2) Blackstock, ‘The European Investigation Order’ (2010) 1 New Journal of European Criminal Law 4, p. 494.