The European Investigation Order and the hearing of witnesses and experts by telephone conference

The unfortunate circumstances we are enduring due to the COVID-19 pandemic have brought as a side effect the need to resort to technical means of communication to compensate the difficulties of bringing people together for the purpose of judicial proceedings. Thus, technical means which were previously regarded as mere exceptions are already becoming the rule, both at domestic level (for example, urgent legislation has been passed recently in Spain to deal with the new needs stemming from the pandemic, and the use of telematics means has been declared the default situation) and in the field of international cooperation. I will focus on the latter, by briefly analysing one of the measures offered by the European Investigation Order (EIO): the telephone conference (TC). By looking at its concept, features and novelties as compared with the previous cooperation legal framework, we will see it has the potentiality to become a very useful tool in the hands of judicial authorities to hear witnesses and experts who happen to be abroad.

Concept

The TC is a specific way to conduct the hearing of witnesses or legal experts who are in the territory of another Member State (MS), by means of a telephone call as provided by the EIO Directive. It is of course by no means a novelty, as Article 11 of the EU Convention 2000 or Article 10 of the Second Additional Protocol to the European Convention on Mutual Legal Assistance in Criminal Matters of 1959 already regulated TC, but the Directive introduces a number of new interesting features that significantly increase its potential usefulness and may boost its practical importance in the field of judicial cooperation.1

The TC the Directive introduces is a measure that the competent authorities of the MSs can resort to, provided that all of the following conditions are met:

• It is issued in the framework of criminal proceedings (as defined by Article 4),

• The issuing and executing authorities belong to MSs bound by the Directive (Recitals 44 and 45, meaning it is not applicable to Ireland and Denmark),

• It is documented by means of a form (provided by Annex A of the Directive) duly translated into one of the languages ​​recognized by the executing MS (Article 5),

• It has the purpose of obtaining evidence by hearing witnesses or experts who happen to be in the executing MS, provided that

  1. it is not possible or convenient to have them transferred to the issuing MS, and

  2. there are no other suitable means to obtain such statements (Article 25(1)).

TC as ultima ratio

The Directive seems to define this measure as a last resort, an ultima ratio only to be used once all other possible mechanisms have been ruled out. Indeed, Article 25(1) indicates that an issuing authority may order a TC “where it is not appropriate or possible for the person to be heard to appear in its territory in person, and after having examined other suitable means”. Therefore, a TC may be requested whenever, after having ruled out other possible suitable mechanisms:

1. the issuing authority understands that it fulfils all the procedural needs of the case and it is not convenient to try to conduct a personal interview (i.e., the presence of the person is not deemed appropriate); or,

2. even though the issuing authority understands the presence of the witness or expert would be the most appropriate way to conduct the hearing, it was not feasible (i.e., the presence of the person to be heard was not possible).

Rules governing the execution

As regards the modalities of execution and unless otherwise agreed between the competent authorities, the TC will be governed mutatis mutandis by the videoconference rules established in certain sections of Article 24, specifically in the following ones:

• Article 24(3): the executing authority will be in charge of summoning and properly identifying the witness or expert;

• Article 24(5): which regulates tasks:

  • for the issuing authority (to conduct or direct the hearing)

  • for the executing authority, such as

    • to be present during the hearing, assisted by an interpreter if necessary,

    • to ensure the fundamental principles of the law of the executing MS are respected, and

    • to provide an interpreter to the witness or expert, if necessary, at the request of the issuing authority or of the person to be heard.

  • for both authorities (agreeing on measures for the protection of the person to be heard).

• Article 24(6): obligation of the executing authority to draw up a detailed record of the measure for its referral to the issuing authority.

• Article 24(7): the witness or expert is subject to the same legal consequences in case of refusal to declare or not declaring the truth, as if it were a case conducted under the law of the executing MS.

The role of particular agreements: a flexible measure

However, it must be stressed that such provisions will only be applicable if the involved authorities do not agree otherwise. This implies a degree of flexibility as regards the practicalities of the TC that is unique in the framework of the Directive, as it allows the involved authorities to disregard even the provisions on videoconferencing the Directive uses as a guide by means of the referral done under Article 25(2). Indeed, its wording is clear: “unless otherwise agreed, the provisions of article 24(3), (5), (6) and (7) shall apply mutatis mutandis to hearings by telephone conference”. Thus, the option to have practical agreements in place is mentioned before the normative referral to the specific paragraphs of Article 24 and, therefore, the regulation contained in those can be replaced by such arrangements. However, this also means the general scope of the measure as provided for by Article 25(1) cannot be superseded by these agreements. Therefore, involved authorities could not agree, for instance, to hear a suspect via TC.

In my opinion, this is a positive solution as it enhances the flexibility of the TC and increases its usefulness (for example, by deciding that police delegated by judicial authorities will be in charge of conducting the TC). It is true that the lack of applicability of (all or some of) the paragraphs of Article 24 might be perceived as negative from the perspective of procedural rights as it gives almost complete freedom to authorities to design the practicalities of the measure. However, on the other hand, there are also strong arguments to present this flexibility as a positive trait, because:

1. The TC is a last resort to be used when everything else has failed (so flexibility might be the key feature to obtain the desired outcome);

2. The TC never concerns hearing of suspects, but only of witnesses and experts;

3. Any deviation from the provisions of Article 24 will be stemming from an agreement between the issuing and executing authorities, which are bound to ensure that the TC is carried out in full respect of procedural rights of all parties and the fundamental rights enshrined in the Charter (Recitals 12, 18, 19 and 39, and Article 1(4)).

Conclusions

To sum up and in view of all the above, we can conclude that, despite being a not very common measure in many national systems within the EU, the TC has an enormous potential to be developed as an effective mechanism to gather evidence through hearing of witnesses and experts abroad, in particular given that:

• As per the rules governing the hearing of witnesses and experts in the international cooperation field (as per Article 8 of the European Convention on Mutual Legal Assistance of 1959), there is no legal mechanism – either conventional or based in the mutual recognition principle – to compel a witness or expert to travel to the issuing MS to give testimony;

• If a TC is used, the witness or expert can be compelled to testify and tell the truth, under the same regime that would be applicable if it was a domestic case according to the law of the executing MS;

• It is not necessary that the witness or expert consents to the TC;

• It is based on extremely simple technical tools (an international telephone line with access to a speaker normally suffices), which can be deemed available to all relevant authorities in the EU (so much so that the legislator has not considered necessary to apply to the TC the provision under Article 24(4) which allows the issuing MS to provide the technical means for videoconferencing when the executing authority has no access to such means);

• Costs are diminished and the overall efficiency of the system is improved, as TC allows a better allocation of resources; and

• The practical modalities can be subject to modulation through practical arrangements agreed by the involved authorities, but always respecting the scope of the measure and procedural and fundamental rights concerned.

All these features define a measure that should be perceived by the judicial authorities as a tool which is agile, effective and worth using as a practical mechanism to gather evidence from witnesses and experts that would otherwise be very difficult or impossible to obtain, especially if we place all of the above in the global framework of the need to promote telematic means in the area of Justice, due to the coronavirus pandemic.