Bulgaria was among the seven EU Member States (together with Austria, Belgium, Estonia, Slovenia, Spain and Sweden) who in 2010 put forward an initiative for a European Investigation Order (EIO). The EIO was introduced by Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters establishing a single framework for obtaining and use of evidence in criminal matters by one MS through investigative measures (such as temporary transfer of a person in custody, hearing of witnesses or expert, suspected or accused person by videoconference or other audiovisual transmission, interceptions of telecommunications, covert investigations and information on banking/financial acoounts and operations) carried out in another MS. It applies to all EU countries (except Denmark and Ireland) and was transposed into Bulgarian legislation by the EIO Act in February 2018.
The following advantages of the European Investigation Order have been announced when it entered into force. The EIO makes it possible:
- to create a single comprehensive instrument with a large scope replacing the existing fragmented legal framework for obtaining evidence;
- to set strict deadlines for gathering the evidence requested (Member States have up to 30 days to decide if they accept a request; if accepted, there is a 90-day deadline to conduct the requested investigative measure);
- to limit the reasons for refusing such requests (the receiving authority can only refuse to execute the order under certain circumstances, e.g. if the request is against the country's fundamental principles of law or harms national security interests);
- to reduce paperwork by introducing a single standard form translated into the official language of the executing State for authorities to request help when seeking evidence;
- to protect the fundamental rights of the defence (among others, Member States must ensure legal remedies equivalent to those available in a similar domestic case and ensure that persons concerned are properly informed of their procedural rights).
Bulgarian judicial experts consider the EIO a useful tool and point out its advantages over pre-existing instruments such as requests for mutual legal assistance, among them: speed and efficiency, mainly due to the use of standardised templates, large scope for obtaining evidence, applicable strict deadlines, strict deadlines and limited possibilities for refusal by the executing State, as well as wide support provided by Eurojust.
There is a positive trend towards a more frequent use of the EIO as well as increased awareness of it. In recent years, a number of EIOs have been issued and executed by prosecutor’s offices and courts in the country. The investigative measures that have been executed or requested cover a wide range of crimes, including organised crime, trafficking in drugs and in human beings, money laundering, fraud, cybercrime etc.
Along with these benefits, Bulgarian practitioners face a number of problems and deficits. On the one hand, in some of the received EIOs there are incomplete data and lack of reliable information, they are poorly translated or it is difficult to identify the competent authority to which the EIO should be sent. On the other hand, there are obstacles such as: the limited technical capabilities for using video conferencing in Bulgaria (including the technical incompatibility between the various types of videoconferencing equipment), contradictory national legislation which does not allow real-time monitoring of banking and financial operations,1 and certain problems related to the execution of the requested investigative measure (appointment of lawyer, remedies, documentation, equipment, etc.).
In order to strengthen the impact of the EIO as a useful instrument on improving cross-border cooperation it would be recommended to:
- establish a central register of EIOs at the national level;
- raise awareness and conduct specialised trainings for practitioners working with EIOs;
- overcome the lack of conformity between the national legal framework and the European directive, which is about to disqualify Bulgaria as a country authorised to issue and execute EIOs.
Bulgaria has often been criticised and convicted by the ECtHR for violating the right to a fair trial within reasonable time under Article 6 § 1 ECHR. The state is liable for damages resulting from the excessive length of legal proceedings also under the national administrative-judicial mechanism for compensation of those affected by the so-called "slow justice". A wider and more convincing application of the EIO could significantly shorten and speed up criminal proceedings by modernising and facilitating the collection and exchange of evidence.
1Although the Bulgarian European Investigation Order Act allows the issuance of an EIO for monitoring banking and financial operations in real time (Art. 32, para1, item1), there is no corresponding provision in the Credit Institutions Act. Thus, when requested, investigative measures regarding information on banking and other financial operations can be executed only up to this limit. The prevailing expert opinion is that according to the Credit Institutions Act bank secrecy can only be disclosed for past operations (Article 62, para. 6, item 1, Credit Institutions Act in conjunction with Article 31, European Investigation Order Act).