Law of Procedure Archives - Arthur Azzopardi & Associates

Case C-670/22: Recent clarifications on European Investigation Orders

Ryan Mifsud — Thu, 24 Oct 2024 12:50:05 +0000

By Dr Arthur Azzpardi – Managing Partner and Michaela Sciberras – Legal Intern

The EU’s legal framework for judicial cooperation in criminal matters aims to enhance cooperation among Member States in combating cross-border crime. A critical tool within this framework is the European Investigation Order (EIO), established under Directive 2014/41, which enables authorities in one Member State to request evidence or investigative measures from another during criminal investigations.

However, its application has raised significant legal concerns regarding the protection of individual rights. To address these issues, the Regional Court of Berlin has referred key questions to the Court of Justice of the European Union (CJEU) for clarification on the proper regulation of EIOs to ensure adherence to fundamental rights. The case bears number C-670/2022 in the names M.N. v Staatsanwaltschaft Berlin.

The first question raised in this case concerns the authority competent to issue an EIO. The CJEU clarified that Articles 1(1) and Article 2(c) of Directive 2014/41 should be interpreted together, establishing that an EIO need not necessarily be issued by a judge if, under the law of the issuing State, a public prosecutor is competent to order the initial gathering of evidence in a purely domestic case.

The second issue examined by the CJEU involves the two cumulative conditions under which an EIO may be issued, as outlined in Article 6. The first condition, stipulated under Article 6(1)(a), requires the issuing authority to determine that the EIO is necessary and proportionate whilst taking into account the rights of the suspect or accused. The CJEU clarified that, an EIO does not necessarily require an existing suspicion of a serious offense for each individual at the time it is issued, unless such a requirement is specified under the national law of the issuing state. Furthermore, the Court emphasized that the validity of an EIO is maintained even if the integrity of the intercepted data cannot be verified, provided that the right to a fair trial is guaranteed in subsequent legal proceedings.

Regarding the second condition under Article 6(1)(b), the CJEU directed that when the investigative measure specified in the EIO involves obtaining evidence already held by the competent authorities of the executing state, certain conditions must be met. Specifically, the transmission of that evidence to the authorities of the issuing state is permitted only if it could have been ordered under similar conditions in a domestic case.

Subsequently, the CJEU focused on the interpretation of Article 31 of Directive 2014/41 concerning the infiltration of terminal devices for gathering traffic, location, and communication data from internet-based services. The Court ruled that such measures constitute an “interception of telecommunications,” which requires notification to the designated authority in the Member State where the subject of the interception is located. If the intercepting Member State cannot identify the appropriate authority, it may notify any suitable authority within the notified Member State. Furthermore, the CJEU emphasized that Article 31 is designed to protect the rights of individuals affected by such interception measures, reinforcing the need for safeguards in cross-border investigations to ensure compliance with fundamental rights.

Lastly, the CJEU determined that if the referring court finds, based on the responses to the subsequent questions, that the EIOs were unlawfully issued, Article 14(7) of Directive 2014/41 requires national criminal courts to exclude any evidence obtained in violation of EU law. This obligation applies particularly in situations where the accused is unable to effectively challenge that evidence, especially when such evidence is likely to have a significant impact on the findings of fact. This interpretation reinforces the necessity of protecting fair trial rights and ensures that evidence obtained unlawfully does not compromise the defence of the accused.

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The Prescription of the Criminal Action

Ryan Mifsud — Mon, 11 Mar 2024 17:30:14 +0000

By Dr Frank Anthony Tabone – Associate

Once a criminal offence is committed either the Police or the Attorney General, depending on the nature of the offence committed, has a certain amount of time to issue charges against a particular individual.

If a particular individual is charged in court with a criminal offence of which action is barred by prescription, the court either on the request of the defendant or ex officio will throw out the case and the individual will be acquitted from all the charges brought against him.

However, it is important to point out that once an individual is served with the criminal charges issued against him, the period of prescription in respect of those criminal offences becomes suspended until such time as the definite judgement is delivered.

Article 691 of Chapter 9 of the Laws of Malta (the Criminal Code) provides that the prescription period shall run from the day on when the offence was completed and with regards to attempted offences from the day on which the last act of execution was committed. In the case of continuous offences, the prescription period shall run from the day of the last violation and in regard to continuing offences from the day on which the continuance ceased.

Article 692 of the Maltese Criminal Code further provides that when it comes to criminal offences, the prescription shall not start running if the offender is not known.

Article 688 of Chapter 9 of the Laws of Malta (Criminal Code), provides that criminal action is barred by prescription:

By the lapse of 20 years for crimes liable to the punishment of imprisonment for a period not less than 20 years;
By the lapse of 15 years for crimes liable to imprisonment for a term of less than 20 but not less than 9 years;
By the lapse of 10 years for crimes liable to imprisonment for a term of less than 9 but not less than 4 years;
By the lapse of 5 years for crimes liable to imprisonment for a term of less than 4 but not less than 1 years;
By the lapse of 2 years for crimes liable to imprisonment for a term of less than 1 year OR to a fine (multa) or for those crimes subject to the punishments established for contraventions;
By the lapse of 3 months in respect of contraventions or of verbal insults liable to the punishment established for contraventions.

There are also exceptions to the prescription period provided for in article 688 of the Criminal Code. In such cases, the specific prescription period will be provided for by the law regulating that particular offence.

For example in the case of article 338(z) of the Criminal Code regulating the offence of when an individual fails to pay the alimony fixed by court, the law specifically states that for such offence criminal action is barred by the lapse of 6 months.

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The Warrant of Impediment

Ryan Mifsud — Mon, 22 Jan 2024 12:00:28 +0000

By Dr Analise Magri – Junior Associate

Precautionary acts, also known as precautionary warrants, certainly need no introduction. These measures, purposely designed in order to safeguard one’s position prior to a pronouncement of a definitive judgment on the merits of the case, have become common tools which various litigants opt to resort to and issue against their seemingly defaulting counterpart. Though much has been said about the warrant of prohibitory injunction, not much attention is given to the warrant of impediment.

Just like any other warrant of prohibitory injunction, this precautionary act aims at restraining someone from carrying out an act which is detrimental and prejudicial to the person who issues the warrant. As stipulated by article 877 of Chapter 12 of the Laws of Malta (the Code of Organization and Civil Procedure), such a warrant is issued in order to restrain any person from taking any minor outside of Malta. More often than not, a warrant of impediment is resorted to between spouses or between the parents of a particular child in an attempt to ensure that the minor remains in the country.

A person interested in suing out a warrant of this sort, has to do so by means of an application on a legally prescribed form, which has to be confirmed on oath and contain various requisite details. Such details shall include the name and surname of the minor and any other particulars that may be established by regulations, so as to enable the persons served with the warrant to establish the identity of the minor. As a matter of fact, a photo of the minor is quite often attached to the same application in order to ensure that the minor is properly identified. Moreover, the applicant filing the warrant also ought to state the reasons why he is making such a request to the Court.

For a person to have a warrant of impediment issued successfully, she or he must attain the prerequisites applicable to any other warrant of prohibitory injunction; namely, that the warrant must be issued in order to preserve the rights of the applicant and that prima facie (at face value) such person must appear to possess such right. In such a scenario, these criteria, which must be cumulatively fulfilled, denote that the person seeking the issuance of the warrant has a real fear that the minor will be taken out of the country by another person (whether a spouse, partner, or any other third person) who has no intention of returning the same minor. In fact, the law states that the warrant shall be served on the person or persons having, or who might have, the legal or actual custody of the minor enjoining them not to take, or allow anyone to take, the minor out of Malta, who would then have ten days in order to file a reply thereto.

Does this mean that during this interim period, the person against whom the warrant had been filed can freely travel with the minor? The answer to this question is ‘no’. Following the filing of a warrant of impediment, very often the presiding Judge issues an interim order which accedes the injunction requests for a provisional period – up until the request made in the warrant is decided in a definitive manner. As a matter of fact, after the warrant is filed with the Court Registry, other parties are also served; namely, the Director of Passports and the Commissioner of Police. Such a process is often straightforward when the minor whose travel is being prohibited does not hold a passport. The same does not always apply in the contrary scenario. If, before the service of the warrant on the officer charged with the issue of passports, a passport in respect of the minor had already been included in the passport of another person, such officer shall take the steps necessary to withdraw the said passport in respect of the minor, and of any other passport which includes the name of the minor, and to delete the name of the minor from such passport. However, with Malta being part of the Schengen Agreement, this provision is hard to enforce because there is no need to have a passport in order to travel to States within the Schengen Area.

When the written part of the procedure is deemed concluded, the Court would have already set a date and time in order to hear the parties make their own oral submissions as to why the warrant should be upheld or rejected altogether, following which the Court will pronounce its final decree during the sitting or otherwise in chambers. The court shall decide on its merits within the shortest time possible, but not later than 1 month from the day when the warrant had been filed and confirmed on oath, and the parties have been duly notified. It is important to emphasise that the decree issued by the Court, irrespective of whether it upholds or rejects the request, cannot be appealed from and would be considered as a final decree on the warrant of impediment.

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