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European investigation order EIO: the Italian way


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Does the new European Investigation Order really improve mutual trust in criminal transnational cases? And hoe is the directive implemented on national basis?
My presentation in Krakow for ERA.

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European investigation order EIO: the Italian way

  1. 1. European Investigation Order: the (new) Italian way Nicola Canestrini ERA Academy of European Law, National School of Judiciary and Public Prosecution, Cracow, March 1st, 2018
  2. 2. Italian criminal justice system “semi- adversarial” (inquisitorial approach) independent prosecutor leads investigation investigation is mandatory
  3. 3. “rex in regno suo est imperator”
  4. 4. mutual assistance mutual recogition sovereignity cooperation on political basis discretionality no deadlines lex loci trust cooperation of judicial authorities “automatism” deadlines lex fori
  5. 5. Blind trust? EAW experience
  6. 6. “Needs of international criminal law enforcement cannot prejudice fundamental rights” Corte Costituzionale, decision 280/1985
  7. 7. EIO .. from blind trust fundamental rights protection “rebuttable” presumption of compliance of member states with fundamental rights (§ 19) specificity of national systems proportionality principle (double check) primacy of EU law BUT protection of national constitution’s principles to distrust?
  8. 8. Directive 2014/41/EU of 3 April 2014 European Investigation Order in criminal matters Law 21 June, 2017, n. 108 entered into force July 28 2017
  9. 9. Italy executing MS: EIO is received
 (Italian) executing authority: prosecutor* of (27) district court validation (30 days) execution (90 days) EIO is executed with formalities requested by issuing State (lex fori) respecting Italian (fundamental) principles (lex loci) exceptions *judge of preliminary investigations if requested by issuing MS or by It. Law chamber hearing defence lawyer? (new) legal remedy
  10. 10. right to be informed and to assist governed by Italian law victims’ lawyer? double defense
  11. 11. CHECKS respect of fair trial, fundamental rights (Charta and Italian Constitution), fundamental principles of Italian law (artt. 1, 4/2, 10) proportionality (art. 7) mandatory refusal grounds (art. 10) any problem? direct contact! (art. 6)
  12. 12. ?role of defense of defendant and 3rd parties ?self restrictions ? mandatory refusal grounds admissibility is decided by national court “Power of love LAW”
  13. 13. Is it used?*casesinvolvingactiveroleofItalianJA* 060 120 180 240 (active) 2014 2015 2016 2017 227 17999 116 2018 (Jan, Feb) 28 EIO’s 18 rogatories *Courtesy of Eurojust, Italian Desk
  14. 14. t @canestrinilex  g+ +canestrinilex f canestrinilex