Opinion of Advocate General Bobek delivered on 29 April 2021.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:346
• Date: 29 April 2021
• Celex Number: 62019CC0852
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL BOBEK

delivered on 29 April 2021 (1)

Case C‑852/19

Spetsializirana prokuratura

v

Ivan Gavanozov

(Request for a preliminary ruling from the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Directive 2014/41/EU – European Investigation Order – Search of residential and business premises of a person and the seizure of certain items – Hearing of the person concerned as a witness – Absence of remedies in the issuing Member State – Sincere cooperation – Mutual trust)

I. Introduction

1. Mr Ivan Gavanozov is the subject of criminal proceedings in Bulgaria for offences relating to value added tax (VAT). Those offences appear to have involved the participation of shell companies, including a company established in the Czech Republic and its representative, who is now a witness in the criminal proceedings.

2. The Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), the referring court in the main proceedings, ordered a search of the business premises of the Czech company; a search of the residence of the witness; the seizure of certain documents, if found therein; and a hearing of the witness by way of videoconference. Since this evidence needs to be obtained in the Czech Republic, the referring court considers it necessary to issue a European Investigation Order (EIO).

3. However, Bulgarian legislation does not allow for any remedies either against the national investigative measure, or against an EIO issued on its basis. Since the national legal system does not provide for any effective legal remedy to challenge the lawfulness of searches and seizures, that Member State has been found repeatedly in breach of the minimum standards under Article 13 of the European Convention on Human Rights (‘ECHR’) by the European Court of Human Rights (‘ECtHR’). Within such a context, is the absence of any remedy in the issuing Member State compatible with Directive 2014/41/EU regarding the European Investigation Order in criminal matters (2) and with the Charter of Fundamental Rights of the European Union (‘the Charter’)?

II. Legal framework

A. EU law

4. Recital 22 of Directive 2014/41 states that: ‘Legal remedies available against an EIO should be at least equal to those available in a domestic case against the investigative measure concerned. In accordance with their national law Member States should ensure the applicability of such legal remedies, including by informing in due time any interested party about the possibilities and modalities for seeking those legal remedies. …’

5. Article 1(4) of Directive 2014/41 provides that:

‘This Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Article 6 of the TEU, including the rights of defence of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected.’

6. Article 11 lists the grounds for non-recognition or non-execution. Its paragraph (1)(f) provides that recognition or execution of an EIO may be refused where ‘there are substantial grounds to believe that the execution of the investigative measure indicated in the EIO would be incompatible with the executing State’s obligations in accordance with Article 6 TEU and the Charter’.

7. Article 14 of the same directive, which falls under Chapter III, ‘Procedures and safeguards for the executing State’, is entitled ‘Legal remedies’. It is worded as follows:

‘1. Member States shall ensure that legal remedies equivalent to those available in a similar domestic case, are applicable to the investigative measures indicated in the EIO.

2. The substantive reasons for issuing the EIO may be challenged only in an action brought in the issuing State, without prejudice to the guarantees of fundamental rights in the executing State.

3. Where it would not undermine the need to ensure confidentiality of an investigation under Article 19(1), the issuing authority and the executing authority shall take the appropriate measures 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.

4. Member States shall ensure that the time limits for seeking a legal remedy shall be the same as those that are provided for in similar domestic cases and are applied in a way that guarantees the possibility of the effective exercise of these legal remedies for the parties concerned.

5. The issuing authority and the executing authority shall inform each other about the legal remedies sought against the issuing, the recognition or the execution of an EIO.

6. A legal challenge shall not suspend the execution of the investigative measure, unless it is provided in similar domestic cases.

7. The issuing State shall take into account a successful challenge against the recognition or execution of an EIO in accordance with its own national law. Without prejudice to national procedural rules Member States shall ensure that in criminal proceedings in the issuing State the rights of the defence and the fairness of the proceedings are respected when assessing evidence obtained through the EIO.’

B. Bulgarian law

8. Article 6(1) of the Zakon za Evropeyskata zapoved za razsledvane (Law on the European Investigation Order, ‘the ZEZR’) (DV No 16 of 20. 2. 2018) lays down ‘conditions for issuing a European Investigation Order’:

‘The competent authority in accordance with Article 5(1) shall issue a European Investigation Order following an individual assessment, on condition that:

1. A European Investigation Order is necessary and appropriate in light of the purpose of the criminal proceedings, taking account of the rights of the accused or the defendant.

2. The investigative and other procedural measures for which the European Investigation Order is issued could be carried out in a similar case under the same conditions under Bulgarian law.’

9. No provision of ZEZR provides for a possibility of challenging the issuance of an EIO.

10. Article 161(3) of the Nakazatelno-protsesualen kodeks (Code of Criminal Procedure, ‘the NPK’) (DV No 86/05, in the version applicable at the time of the order for reference DV No 83/19) states that ‘search and seizure measures in court proceedings shall be carried out on the orders of the court in which the proceedings are pending’.

11. Article 341(3) of the NPK excludes the possibility of appealing against acts other than those expressly listed. Thus, the NPK does not allow for orders for the hearing of witnesses or for a search and seizure of residential and business premises to be challenged.

12. The referring court further explains that the person concerned by the search and seizure or the hearing of the witness cannot challenge the decision because he is not party to the proceedings. It refers to Article 318(1) of the NPK according to which ‘proceedings in the appellate court shall be initiated upon objection of the public prosecutor or complaint of the parties’. Article 253 of the NPK lists as parties to the proceedings: the public prosecutor, the accused party and defence counsel; the private claimant and private prosecutor; the civil claimant and the civil defendant.

III. Facts, national proceedings and the questions referred

13. Mr Gavanozov stands accused of running an organised criminal group, the purpose of which was to avoid the assessment and payment of VAT on a particularly large scale. In that context, a Czech company is alleged to have issued four false invoices that were not based on any actual deliveries.

14. In the pre-trial phase of the proceedings, no investigative measures were carried out in order to obtain evidence against the Czech company or the witness, who is the representative of that company. It was established, nonetheless, that Mr Gavanozov and the witness had communicated with each other either through an interpreter or in English because neither of them spoke the other’s native language.

15. Although the witness was summoned twice, he failed to appear, claiming prior commitments. Instead, he provided a statement in Czech maintaining that, due to the language barrier, he used an interpreter in his business dealings with Mr Gavanozov. The witness did not attend the hearing that took place subsequently and failed to indicate when he would be able to attend.

16. The case file before the referring court contains an exclusive representation contract, drafted solely in Bulgarian, between Mr Gavanozov and the Czech company (represented by the witness). That contract is signed by the witness and bears the stamp of the Czech company.

17. The referring court decided that it was necessary to obtain new evidence on the actual relationship between Mr Gavanozov and the witness. For that reason, the referring court ordered the following investigative measures:

– a search and seizure at the business premises of the Czech company in order to establish whether the exclusive representation contract is included among the documents of the Czech company and whether documents have been issued in connection with its performance;

– a search and seizure at the witness’s home in order to establish whether the witness is retaining in his home documents of relevance to the criminal activity;

– that the witness be questioned by videoconference call, as his argument that he has prior commitments is tantamount to a refusal to appear in Bulgaria for questioning.

18. Under national law, that court order is final and cannot be challenged by the parties to the proceedings or by the persons concerned, that is to say either by the Czech company or by the witness.

19. In view of the fact that the investigative measures have to be carried out by the...