The active and passive implementation of the European Investigation Order (EIO) along with the undeniable advantages of this new instrument for judicial cooperation between EU Member States raise a number of critical issues relevant to the observance of fundamental rights. They are debated among practitioners and in the research community at both national and European level. It is acknowledged that the “obtaining of evidence in criminal proceedings is a highly sensitive matter from the point of view of fundamental rights, since the courts, prosecution services, and other law enforcement authorities must often limit the suspect’s rights in order to get information in the criminal investigation.” Attention is also paid to the different standards of fundamental rights protection across Member States as a serious obstacle when dealing with judicial cooperation among them.
Within the entire catalog of fundamental rights under the Charter of Fundamental Rights of the European Union (CFREU), those most affected by using an EIO are probably: human dignity, protection of personal data, equality before the law, non-discrimination, right to an effective remedy and to a fair trial, presumption of innocence and right of defence, special protection of the vulnerable groups (children, elderly, persons with disability), etc.
Cross-border criminal investigations under EIO face a number of challenges that may affect negatively certain procedural rights of the persons concerned (whether suspects or accused, witnesses or experts) in pre-trial or trial criminal proceedings. In view of the country’s current experience both as an issuing and an executing State, judicial practitioners and scholars in Bulgaria have identified some possible negative consequences primarily for the right to defence as well as the right to effective remedies, arising mainly from legislative or procedural/practical features.
 Prof. Dr. Regina Garcimartín Montero, The European Investigation Order and the Respect for Fundamental Rights in Criminal Investigations, Issue 1/2017.
Potential risks to fundamental rights
One of the potential risks stems from the need to ensure confidentiality of investigation measures under EIO that might impede or discourage the communication of the EIO issued to the persons concerned as well as the action taken to implement it. In cases where confidentiality will not be undermined, Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (EIO Directive) provides for the issuing authority and the executing authority to ensure that information is provided about the possibilities under national law for seeking the legal remedies when these become applicable and in due time to ensure that they can be exercised effectively (Art. 14, para 3). The Bulgarian European Investigation Order Act (EIO Act) reproduces this provision literally, without detailing the measures for providing such information (Art. 18 para 3). In its turn, the lack of a notification procedure when implementing an EIO, can limit the scope of the right of appeal. Theoretically, the ruling of the district court which recognises an EIO can be appealed and protested within 5 days before the appellate court (Art 11, para 5, EIO Act). In practice, however, this can hardly be applied because the receipt and confirmation of an EIO is communicated neither to a prosecutor, nor to a party who needs to be informed of the upcoming proceedings. Some judges have argued that although these proceedings are often conducted without the involvement of parties, it is still necessary for the five-day period to expire before proceeding with the execution of the EIO. There is a similar problem in pre-trial proceedings, where the recognition decision of the prosecutor is also subject to appeal to a prosecutor from a higher-ranking prosecutor's office (Art. 12 para 5, EIO Act; Art. 200, Criminal Procedure Code). Since the receipt and confirmation of an EIO is not communicated to the persons concerned, the latter will know about it at a later stage, only after the investigative measures requested have been undertaken.
On the other hand, the substantive grounds for issuing an European Investigation Order may be challenged only in an action brought in the issuing State (Art 14, para 2, EIO Directive; Art. 18, para 2 EIO Act), which, in the absence of notification, is even more difficult for the parties concerned, despite the abstract reference (in both acts) to the guarantees of fundamental rights in the executing State, in this case - the Bulgarian legislation.
 Lex.bg, „Прокуратурата е получила 50 европейски заповеди за разследване и е изпратила 40”, September 5, 2018.
EU case law' challenges
The issue of effective legal remedies regarding the EIO is problematic both for Bulgarian authorities and for judicial cooperation in criminal matters within the EU. The EU Court of Justice (CJEU) case law together with the relevant opinions of the Advocates General and researchers are indicative of the debated nature of the topic. An example in this regard is the judgment of the CJEU in Case C-324/17 Gavazonov (representing the first decision in which the EIO Directive is examined), delivered on 24 October 2019 and preceded by the fundamental rights objections in the Opinion of the Advocate General Yves Bot of 11 April 2019. According to the Opinion of the AG Bot, the Bulgarian legislation is contrary to Article 47 of the CFREU. He considers that Article 14 of the EIO Directive must be interpreted in the sense that the national judicial authority of an issuing State cannot resort to an EIO if its domestic legislation does not consecrate a legal remedy designed to challenge the grounds for requesting an investigate measure. In its ruling, the CJEU focuses rather on the form that the issuing authorities (in this case, the Bulgarian court) are required to complete (section J, Annex A of the EIO form requiring the issuing authorities to “indicate if a legal remedy has already been sought against the issuing of an EIO”, and if so to provide “description of the legal remedy, necessary steps to take and deadlines”). The Court ruled that the issuing judicial authority does not have to include a description of the legal remedies, if any, which are provided for in its Member State against the issuing of such an order, but only of the legal remedy has been sought against an EIO. Contrary to the Advocate General's view, the court ruling considers it unnecessary in the present case to interpret Article 14 of the EIO Directive “in order, in particular, to determine whether that provision precludes national legislation which does not provide for any legal remedy against the substantive grounds for issuing an EIO requesting a search, a seizure of specific items and the hearing of a witness.”
These diverging positions have provoked reactions among legal experts. Some of them raise the issue tied to the necessity of protecting fundamental rights when public power orders an investigate measure that can be considered to be susceptible to violating the rights of the persons involved and criticise the CJUE’s ruling for giving priority to "expediency and the celerity of judicial cooperation in penal matters".
In a subsequent case C‑852/19, Advocate General Bobek delivered an opinion on 29 April 2021, which goes even further. He argues that Art. 14, para 1 of the EIO Directive is applicable to legal remedies not only in the executing but also in the issuing Member State and recommends that the CJEU decide that Bulgarian authorities cannot issue European Investigation Orders (EIOs), unless Bulgaria introduces remedies against investigative measures. Moreover, the Advocate General maintains that all issued acts will, by default, be tainted because the legislation under which they were issued was itself incompatible. In this context he claims that “equivalence” within the meaning of Art. 14(1) would be “logically only acceptable if the situation in the issuing State, to which the requirement of equivalence refers, is itself compatible with the minimum standards for protection of fundamental rights, as required by the Charter* and the ECHR” and maintains that if this minimum level of protection cannot be ensured by national law, the issuing Member State is not allowed to issue EIOs.
The designation of competent authorities, especially for issuing EIOs in the light of Bulgaria's experience, also seems to create tension. Indicative in this respect is Case C-724/19, stemming from a reference for a preliminary ruling made by the Bulgarian Specialised Criminal Court, lodged on 1 October 2019, in connection with the interpretation of the term "issuing authority" of a European Investigation Order. The question of the referring court is whether the prosecutor's office of a Member State is competent to issue a European Investigation Order requesting traffic and location data in relation to certain electronic communications when, under the national law of the issuing State, the taking of such evidence may be authorized only by a judge or a court.
In his opinion, the Advocate General (AG) Campos Sánchez-Bordona argues that the public prosecutor of a Member State cannot issue a European Investigation Order with a view to obtaining the relevant traffic and location data to certain electronic communications, where, under the national law of the issuing Member State, in a similar national case, a judge or a court has exclusive jurisdiction to order that evidence be obtained. "
The ruling of the EUCJ is still pending but the discussions on the matter are ongoing.
 The request for a preliminary ruling lodged by the Bulgarian Specialised Criminal Court regarding criminal proceedings in Bulgaria against Ivan Gavanozov, concerns the compatibility between Bulgarian law and the EIO Directive, notably Article 14 on legal remedies.
 The Advocate General Bot refers also to the "repeated findings of breach of Articles 3, 8 and 13 ECHR by the Republic of Bulgaria" and the fact that the Bulgarian Criminal ProcedureCode does not foresee a legal remedy or a safeguard to challenge a judicial decision that orders a search or seizure, to conclude "it is evident to me that respect for fundamental rights by that Member State cannot be presumed" - CL_AG_Gavanozov_2019.
 EUR-lex, Judgment of the Court (First Chamber) of 24 October 2019. Criminal proceedings against Ivan Gavanozov.
 Prof. Dr. Mário Simões Barata and Jan Stajnko, The Fundamental Rights Objections.
 The Bulgarian Specialised Criminal Court requested a second preliminary ruling regarding the same criminal proceedings as in the above case C-324/17 aiming at clarification on whether the Bulgarian Court can issue a European Investigation Order for searches and seizures and a witness hearing from the Czech Republic, since the national legislation does not provide for any legal remedy against the issuing of a European Investigation Order for the search of residential and business premises, the seizure of certain items and the hearing of a witness (Case C-852/19: Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Bulgaria) lodged on 21 November 2019 — Criminal proceedings against Ivan Gavanozov).
 Wahl, T., AG: Bulgaria Not Allowed to Issue EIOs, May 20, 2021.
 evropeiskipravenpregled.eu, „Българската прокуратура не може да издаде и да предаде Европейска заповед за разследване с цел получаване на данни за трафика и местонахождението във връзка с определени електронни съобщения“, May 24, 2021; Lex.bg, „Генерален адвокат постави под въпрос някои заповеди за разследване на български прокурори“, May 20, 2021.
Legislative and policy measures to mitigating challenges to fundamental rights
In general, to prevent any possible challenges three preconditions must be met:
- With regard to the persons concerned, when implementing a particular measure requested by an EIO that may create any potential risk to fundamental rights, the executing party should ask the issuing party to review and possibly replace it with another action. Particular care should be taken when asking for special investigation techniques.
- When conducting the investigative measures, the executing authority needs to take all appropriate measures for guaranteeing the rights of the persons concerned and for ensuring that legal remedies are exercised effectively.
- The right of defence of persons subject to criminal proceedings must be explicitly recorded in the EIO and the executing party should be committed to providing it.
Parallel to this, all procedural rights of the parties should be more strongly guaranteed in their details at the national level. For instance:
- the right to fair trial should include the right to be heard by a competent, independent and impartial tribunal, the right to a public hearing, the right to be heard within a reasonable time, the right to counsel, the right to interpretation;
- the right of legal aid, contact with/presence of a lawyer during the execution of an EIO should be implemented;
- the right of appeal in the pre-trial and trial proceedings requires introduction of effective rules and a specialised instance for appealing the EIOs that may seriously affect fundamental rights;
- special rules should be applied where an EIO is executed through a hearing by videoconference or other audiovisual transmission:
- assistance by an interpreter on one or both sides of the link, where necessary;
- guarantees for both the identity of the person to be heard and respect for the fundamental principles of the law of the executing State;
- agreement on measures (between the competent authorities of the issuing State and the executing State) for the protection of the person to be heard;
- the hearing shall be conducted directly by, or under the direction of, the competent authority of the issuing State in accordance with its own laws;
- accused persons need to be informed in advance of the hearing about their procedural rights, including the right not to testify; witnesses and experts need to be informed in advance of the hearing about their right not to testify which would accrue to them under the law of either the executing, or the issuing State.
Execution of an EIO through hearing by videoconference may be refused if either the suspect, or the accused person does not consent or the execution of such an investigative measure in a particular case would be contrary to the fundamental principles of the law of the executing State. In this case, substitute procedural steps should be taken into account.
Additional guarantees for a more extensive protection of fundamental rights when implementing the EIO are needed also at the national and EU level, such as :
- Special legal guarantees at the national level for the right of a person concerned to be heard, where investigative measures requested with EIOs include (home) search and a seizure;
- Stronger guarantees for the victims of the investigated crime with respect to their role in crime investigation subject to an EIO and the regime for their interrogation/interview;
- Clear rules who/which country appoints the defence lawyers of the persons concerned and provides legal aid when necessary and admissible;
- Unambiguous regulation of the grounds for non-recognition or non-execution of an EIO at the EU and the national level on the basis of the common set of grounds in the Directive and national legislation transposing it, that proclaim existence of any risk for fundamental rights and fundamental legal principles as enshrined in the Treaty on European Union and the Charter of Fundamental Rights;
- Adopting the European Production and Preservation Orders for electronic evidence in criminal matters will simplify the procedure for requesting the data of a subscriber of telephone or internet service and help law enforcement solve serious crime, but it will, at the same time, protect the fundamental rights of European citizens;
- Raising awareness on legal guarantees for citizens and their property when executing an EIO and the role of defence lawyers in this process.
In summary, there is a necessity for policy and legislative changes in Bulgaria, as well as amendments to the EIO Directive to balance between increasing the effectiveness of the instrument and better protecting the fundamental rights.
See also Fact Sheet - European Investigation Order and Money Laundering Offences, May 2021,
and Fact Sheet - European Investigation Order and Data Protection, June 2021.