CJEU Case C-852/19 / Judgment

Criminal proceedings against Ivan Gavanozov
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (First Chamber)
Type
Decision
Decision date
11/11/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:902
  • CJEU Case C-852/19 / Judgment

    Key facts of the case:

    Request for a preliminary ruling from the Spetsializiran nakazatelen sad.

    Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/41/EU – European investigation order in criminal matters – Article 14 – Legal remedies – Charter of Fundamental Rights of the European Union – Article 47 – Absence of legal remedies in the issuing Member State – Decision ordering searches, seizures and a hearing of a witness by videoconference.

     

    Outcome of the case:

    On those grounds, the Court (First Chamber) hereby rules:

    1.  Article 14 of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, read in conjunction with Article 24(7) of that directive and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding legislation of a Member State which has issued a European investigation order that does not provide for any legal remedy against the issuing of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference.
    2.  Article 6 of Directive 2014/41, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union and Article 4(3) of the Treaty on European Union, must be interpreted as precluding the issuing, by the competent authority of a Member State, of a European investigation order, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such a European investigation order.
  • Paragraphs referring to EU Charter

    1) This request for a preliminary ruling concerns the interpretation of Article 1(4) and Article 14(1) to (4) of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ 2014 L 130, p. 1) as well as Articles 7 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

    ...

    23) In those circumstances the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    1. 'Is national legislation which does not provide for any legal remedy against the issuing of [an EIO] for the search of residential and business premises, the seizure of certain items and the hearing of a witness compatible with Article 14(1) to (4), Article 1(4) and recitals 18 and 22 of Directive [2014/41] and with Articles 47 and 7 of the Charter, read in conjunction with Articles 13 and 8 [of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (“ECHR”)]?
    2. Can [an EIO] be issued under those circumstances?’

    24) By its first question, the referring court asks, in essence, whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, and Articles 7 and 47 of the Charter, read in conjunction with Articles 8 and 13 ECHR, must be interpreted as precluding legislation of a Member State which has issued an EIO that does not provide for any legal remedy against the issuing of an EIO the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference.

    ...

    28) That said, it should be borne in mind that when the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection (judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 43 and the case-law cited).

    29) As the procedure for issuing and executing an EIO is governed by Directive 2014/41, it constitutes such an implementation of EU law within the meaning of Article 51(1) of the Charter, meaning that Article 47 of the Charter is applicable (see, by analogy, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 50 and the case-law cited).

    30) The first paragraph of Article 47 of the Charter states that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.

    31) As regards, in the first place, the issuing of an EIO the purpose of which is the carrying out of searches and seizures, it must be noted that such measures constitute interferences with the right of every person to respect for his or her private and family life, home and communications, guaranteed by Article 7 of the Charter. Furthermore, the seizures are likely to infringe Article 17(1) of the Charter, which recognises the right of every person to own, use, dispose of and bequeath his or her lawfully acquired possessions.

    32) Any person who wishes to rely on the protection conferred on him or her by those provisions in the context of proceedings relating to an EIO the purpose of which is the carrying out of searches and seizures must therefore be accorded the benefit of a right to an effective remedy guaranteed by Article 47 of the Charter.

    33) That right necessarily means that the persons concerned by such investigative measures must have appropriate legal remedies enabling them, first, to contest the need for, and lawfulness of, those measures and, second, to request appropriate redress if those measures have been unlawfully ordered or carried out. It is for the Member States to provide in their national legal orders the legal remedies necessary for those purposes.

    34) That interpretation of Article 47 of the Charter corresponds, furthermore, to that of Article 13 ECHR used by the [European Court of Human Rights (‘the ECtHR’)] in its case-law. It follows from the case-law of the ECtHR that, by virtue of Article 13 ECHR, which corresponds, in essence, to the first paragraph of Article 47 of the Charter, the persons concerned by searches and seizures must be able to access a procedure enabling them to contest the need for, and lawfulness of, the searches and seizures carried out and to obtain appropriate redress if those measures have been unlawfully ordered or carried out (see, to that effect, ECtHR, 22 May 2008, Iliya Stefanov v. Bulgaria, CE:ECHR:2008:0522JUD006575501, § 59; ECtHR, 31 March 2016, Stoyanov and Others v. Bulgaria, CE:ECHR:2016:0331JUD005538810, §§ 152 to 154; and ECtHR, 19 January 2017, Posevini v. Bulgaria, CE:ECHR:2017:0119JUD006363814, §§ 84 to 86).

    ...

    41) Therefore, in order for the persons concerned by the execution of an EIO issued or validated by a judicial authority of that Member State, the purpose of which is the carrying out of searches and seizures, to be able effectively to exercise their right guaranteed by Article 47 of the Charter, it is for that Member State to ensure that those persons have a remedy available to them before a court of the same Member State that enables them to contest the need for, and lawfulness of, that EIO, at the very least having regard to the substantive reasons for issuing such an EIO.

    ...

    46) The Court has stated that that protection may be relied on by any person as a right guaranteed by the law of the Union, for the purposes of the first paragraph of Article 47 of the Charter, in order to challenge before a court an act adversely affecting that person, such as an order to provide information or a penalty imposed on the ground of non-compliance with that order (see, to that effect, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters), C‑245/19 and C‑246/19, EU:C:2020:795, paragraph 58 and the case-law cited).

    47) Accordingly, it must be held that the execution of an EIO, the purpose of which is the hearing of a witness by videoconference, is likely to adversely affect the person concerned and that that person must therefore have a legal remedy available to him or her against such a decision, in accordance with Article 47 of the Charter.

    ...

    50) In the light of the foregoing considerations, the answer to the first question is that Article 14 of Directive 2014/41, read in conjunction with Article 24(7) of that directive and Article 47 of the Charter, must be interpreted as precluding legislation of a Member State which has issued an EIO that does not provide for any legal remedy against the issuing of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference.

    51) By its second question, the referring court asks, in essence, whether Article 1(4) and Article 14(1) to (4) of Directive 2014/41, read in the light of recitals 18 and 22 of that directive, as well as Articles 7 and 47 of the Charter, read in conjunction with Articles 8 and 13 ECHR, must be interpreted as precluding the issuing, by the competent authority of a Member State, of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such an EIO.

    ...

    56) However, the fact that it is impossible to contest, in the issuing Member State, the need for, and lawfulness of, an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, at the very least in the light of the substantive reasons for issuing that EIO, constitutes an infringement of the right to an effective remedy, enshrined in Article 47 of the Charter, such as to rule out the possibility of mutual recognition being implemented and benefiting that Member State.

    ...

    59) Furthermore, as is apparent from paragraph 43 of the present judgment, Directive 2014/41 is based on the principle that EIOs are to be executed. Article 11(1)(f) of that directive permits the executing authorities to derogate from that principle, exceptionally, following an assessment on a case-by-case basis, where there are substantial grounds to believe that the execution of an EIO would be incompatible with the fundamental rights guaranteed, in particular, by the Charter. However, in the absence of any legal remedy in the issuing State, the application of that provision would become automatic. Such a consequence would be contrary both to the general scheme of Directive 2014/41 and to the principle of mutual trust.

    60) Therefore, as the Advocate General noted in points 81 to 84 of his Opinion, the issuing of an EIO in respect of which there are substantial grounds to believe that execution would lead to an infringement of Article 47 of the Charter and the execution of which should therefore be refused by the executing Member State in accordance with Article 11(1)(f) of that directive, is not compatible with the principles of mutual trust and sincere cooperation.

    61) As can be seen from the examination of the first question, the execution of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, the lawfulness of which cannot be contested before a court of the issuing Member State, is such as to entail an infringement of the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter.

    62) In the light of all the foregoing considerations, the answer to the second question is that Article 6 of Directive 2014/41, read in conjunction with Article 47 of the Charter and Article 4(3) TEU, must be interpreted as precluding the issuing, by the competent authority of a Member State, of an EIO, the purpose of which is the carrying out of searches and seizures as well as the hearing of a witness by videoconference, where the legislation of that Member State does not provide any legal remedy against the issuing of such an EIO.