European Investigation Order – legal analysis and practical dilemmas of international cooperation – EIO-LAPD

Project implementation period

01/05/2019 – 30/04/2021

Grant Agreement Number

831623

NATIONAL REPORT:

Slovenia

National report on legal implementation

and practical application of the EIO in Slovenia

Assist. Prof. Dr. Miha Šepec

Assoc. Prof. Dr. Anže Erbežnik

Jan Stajnko

Tamara Dugar

Maribor, October 2020

2

Table of Contents

Introductory note4Report on the legal implementation5Report on the practical application24Data from issuing and executing authorities26Data from attorneys37Final Remarks43Introductory note4Report on the legal implementation5Report on the practical application23Data from issuing and executing authorities25Data from attorneys36Final Remarks42

Disclaimer

This document is not meant for commercial purpose. No license, expressed or implied, to any intellectual property rights is granted by or in connection with this document. This document is subject to change without notice.

EIO-LAPD brings together prominent experts willing to enhancing the knowledge and contributing to legal and practical implementation of the Directive 2014/41/EU. EIO-LAPD does not represent the official view of the European Commission and cannot be held responsible for any use which may be made of information generated. This document reflects only the view of the author(s) and the European Commission cannot be held responsible for any use which may be made of the information contained herein.

Introductory note

The main objective of the EIO-LAPD National reports is to provide a comprehensive overview of legal and practical implementation of the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (henceforth: EIO Directive) in each Member State. Separate national reports were drafted for the following Member States: Austria, Croatia, Germany, Italy, Portugal and Slovenia.

National reports are key deliverables of the EU JUST project “European Investigation Order – legal analysis and practical dilemmas of international cooperation – EIO-LAPD”. They contain information on legal implementation of the EIO Directive in the given Member State. Data on legal implementation was gathered by a group of experts with academic and professional experience by engaging in cabinet research work. By analysing the existing national and international legal framework, case law and literature, we provided answers to the Questionnaire for legal research, which was a separate project deliverable.

National reports furthermore contain data gathered from legal practitioners who act as issuing and/or executing authorities, such as public prosecutors, judges and investigative judges, as well as legal officers and attorneys who have experience with the EIO in legal practice. Data was gathered by using the Questionnaire for practitioners, which aims mainly at issuing and/or executing authorities and is a project deliverable. During the course of the project, a separate Questionnaire for attorneys was also drafted.

National reports will serve as a basis for the International comparative report, which will analyse and compare the results of National reports. The comparative report will be published as a separate project deliverable. By analysing and comparing National reports, we will strive to find generally applicable solutions to tackle theoretical and practical problems arising from the implementation on national as well as on the international level.

Report on the legal implementation

Question #1:

Did your lawgiver already implement the Directive? If yes, when did the national legislation enter into force? Was the Directive implemented on time? If it was not, what were the official and unofficial reasons[footnoteRef:1] for the delay in its implementation? Is it implemented by a separate legal act? [1: Reasons that are officially given by legislators as well as reasons based on your analysis.]

Yes, the Slovenian Parliament transposed the Directive 2014/41/EU on the European Investigation Order[footnoteRef:2] (hereinafter Directive) into Slovenian legal order by adopting the Act Amending the Cooperation in Criminal Matters with the Member States of the European Union Act[footnoteRef:3], which was passed in the parliament on 22nd of March 2018 and entered into force on 5th of May 2018. The Government proposed the bill in the Parliament in December 2017 and suggested a shortened legislative procedure, since the amendment entailed a non-complex harmonisation with the European Union (henceforth EU) law. The bill was passed after the 3rd reading in the 39th sitting of the National Assembly, with only one Member of the Parliament voting against it. [2: 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 L 130, 1. 5. 2014, p. 1–36.] [3: Cooperation in Criminal Matters with the Member States of the European Union Act (Zakon o spremembah in dopolnitvah Zakona o sodelovanju v kazenskih zadevah z državami članicami Evropske unije – ZSKZDČEU-1B), Official Gazette of the Republic of Slovenia, No. 22/18, published on 4. 4. 2018.]

Given that the due date for transposing the Directive into national legal orders, set forth in Article 36 of the Directive, was 22nd of May 2017, the implementation took place nearly one year past the deadline, even though Slovenia was one of the proponents of the Directive.

An MP dr. Vinko Gorenak from the (at that time) opposition Slovenian Democratic Party, which was at that time an opposition party, sent a written question to the Government in November 2017, asking about the reasons for delay in the implementation of the Directive and the possibility of the Commission bringing an action against the Republic of Slovenia under Art. 258 Treaty on the Functioning of the EU (hereinafter TFEU) for failing to fulfil its obligations under the Treaties. The Government answered in December 2017 that the delay was due to the fact that the Ministry of Justice had many other important projects that took priority and a limited number of staff working in the field of punitive law. The Ministry of Justice started to prepare the material for the amendment in the summer and sent it to expert and interdepartmental coordination on 1st of August 2017.[footnoteRef:4] [4: Government’s answer to Parliamentary question 00104-563/2017/6, URL: http://vrs-3.vlada.si/MANDAT14/VLADNAGRADIVA.NSF/aa3872cadf1c8356c1256efb00603606/bd608ca605e15733c12581fe00278ca2?OpenDocument (accessed 12. 2. 2020), p. 2.]

The Government reasoned that the late implementation would not be problematic, because at the time of answering the MP’s question in November 2017 there were still 10 other Member States that have not yet completed the transposition of the Directive. The Government also provided the Commission with timely notice on partial implementation of the Directive, since CCMMSEUA had already contained Chapters 8 and 9, which transposed the Framework Decision 2008/978/PNZ on European Evidence Warrant[footnoteRef:5], which was in force until the adoption of the EIO Directive. The Framework Decision 2008/978/PNZ had similar provisions to EIO Directive, however it provided certain different grounds for refusal of the recognition and execution of the European evidence warrant; it could not be used for the purposes of obtaining evidence; and it was limited to obtaining evidence that already existed, so only certain provisions needed to be amended. In addition to notification on partial implementation of the Directive, the Government also provided the Commission with the timeline of the adoption of relevant legislation.[footnoteRef:6] [5: Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L 350, 30. 12. 2008, p. 72–92.] [6: Government’s answer to Parliamentary question 00104-563/2017/6, URL: http://vrs-3.vlada.si/MANDAT14/VLADNAGRADIVA.NSF/aa3872cadf1c8356c1256efb00603606/bd608ca605e15733c12581fe00278ca2?OpenDocument (accessed 12. 2. 2020), p. 1.]

Another unofficial reason for the delay in implementation might have been the internal problems of the previous Government, which culminated with the resignation of the Prime Minister Miro Cerar on 14th of March 2018, a week before the CCMMSEUA was passed in the Parliament. The Prime Minister resigned following the decision of the Supreme Court of Slovenia, which annulled the results of the “Second Railway Track” referendum and ordered a new vote. His resignation was, however, unrelated to the implementation of the Directive.

The Directive was not implemented by a separate legal act, but rather as an amendment to the Cooperation in Criminal Matters with the Member States of the European Union Act (hereinafter CCMMSEUA), which introduced a revised Chapter 8 (Recognition and execution of the European investigation order), revised Chapter 9 (Sending EIO to other Member States for recognition and execution) and a new Chapter 9.a (Special provisions regarding certain investigative measures under the EIO).

Question #2:

For what types of proceedings does your domestic law allow issuing of an EIO (Article 4 of the Directive)? Can tax authorities in your country issue an EIO?

In accordance with Article 72 of the CCMMSEUA the EIO can be issued in criminal and misdemeanour proceedings.

There are some unofficial incentives to extend the possibility to issue an EIO to the Commission for the Prevention of Corruption[footnoteRef:7] and parliamentary investigation commissions.[footnoteRef:8] As things stand at the moment, however, there is no legal basis for these authorities to issue an EIO since they have no competences to conduct criminal or misdemeanour proceedings on their own. [7: See the Integrity and Prevention of Corruption Act (Zakon o integriteti in preprečevanju korupcije - ZIntPK), Official Gazette of the Republic of Slovenia, No. 69/11 – official consolidated text.] [8: See the Parliamentary Investigation Act (Zakon o parlamentarni preiskavi – ZPPre), Official Gazette of the Republic of Slovenia, No. 63/93 and 63/94 – KZ.]

Although EIOs can be issued by the tax authority in misdemeanour proceedings (when it is competent to pursue relevant tax related misdemeanours), they cannot issue EIO’s in tax (administrative) proceedings. What is more, even in misdemeanour proceedings, tax authorities in Slovenia cannot issue EIOs by themselves. If authority other than national court or State Prosecutor’s Office proposes issuing the EIO, it has to be validated by either the investigative judge or the state prosecutor in criminal proceedings or a local court judge in misdemeanour proceedings (Art. 73 CCMMSEUA).

Question #3:

Does your State have a system of civil confiscations (confiscation of property in civil/administrative procedure where there is no need to prove a criminal offence)? Can the authorities issue EIOs for civil confiscations?

Yes, a system of civil confiscation of property is in place in Slovenia, in addition to confiscation of property in criminal proceedings. The legal basis for the latter provides the Criminal Code[footnoteRef:9] in Chapter 7, titled Confiscation of Proceeds of Crime (Art. 74 - 77.c Criminal Code, hereinafter CC). Ordinary criminal confiscation is a conviction based confiscation, where only the pecuniary gain acquired by or as a result of criminal offence, for which a person was convicted, can be confiscated. It applies to all criminal offences, where a pecuniary gain can be gained by or as a result of criminal offence. Confiscation of proceeds of crime is not a criminal sanction, but rather a civil one, intended to make a restitution of legal and economic situation, which has been altered by the crime.[footnoteRef:10] Confiscation of pecuniary gain is pronounced in judgement of conviction (Art. 74 CC). [9: Criminal Code (Kazenski zakonik – KZ-1), Official Gazette of the Republic of Slovenia, No. 50/12 – official consolidated text, 6/16 - corr., 54/15, 38/16 and 27/17.] [10: I. Bele, Kazenski zakonik s komentarjem: Splošni del, 2001, str. 515.]

Moreover, Art. 498.a of Criminal Procedure Act[footnoteRef:11] (hereinafter CPA) regulates extended criminal confiscation, which is a non-conviction based confiscation that applies only to corruption offences and money laundering. Money or assets of illegal origin can be confiscated, if only certain elements of criminal offences are proven (elements that show that the money or assets derived from criminal offenses or elements that show that the reward, gift, bribe or other pecuniary gain was given or accepted). This proceeding can be initiated even if the proceeding against the accused ended with a judgement of acquittal or dismissal, due to a halt, if the proceeding could not be initiated or if there were circumstances excluding prosecution.[footnoteRef:12] Decision on extended confiscation is proposed by state prosecutor and taken by the Chamber of judges (Art. 498.a(2) CPA). [11: Criminal Procedure Act, Official Gazette of the Republic of Slovenia, No. 32/12 – official consolidated text, 47/13, 87/14, 8/16 – dec. CC, 64/16 – dec. CC, 65/16 – dec. CC, 66/17 – ORZKP153, 154 and 22/19.] [12: Š. Horvat, Zakon o kazenskem postopku (ZKP): s komentarjem, 2004, str. 1052.]

Civil confiscation of property is regulated by the Confiscation of Assets of Illicit Origin Act[footnoteRef:13] (hereinafter CAIOA), which applies to more serious offences, listed in Art. 4 of the same act (e.g. terrorism, human trafficking, bribery etc.). It allows for extended (non-conviction based) confiscation with reversed burden of proof (Art. 5 CAIOA). Only the assets, the v [13: Confiscation of Assets of Illicit Origin Act (Zakon o odvzemu premoženja nezakonitega izvora – ZOPNI), Official Gazette of the Republic of Slovenia, No. 91/11, 25/14 and 53/18 – dec. CC.]

alue of which is obviously disproportionate to the legal income of the accused, can be confiscated, if the accused cannot demonstrate with sufficient degree of probability that the assets were acquired legally.[footnoteRef:14] The procedure starts by financial investigation, which is ordered by the state prosecutor. Financial investigation is carried out, if during the pre-trial or criminal proceedings there are reasons to believe that certain individuals have assets of illegal origin and their value exceeds 50.000 EUR (Art. 3 CAIOA). [14: B. Lamešič, Pravosodni bilten 3/2014, str. 173.]

No, Slovenian authorities cannot issue EIOs for civil confiscations.

Question #4:

Who acts as the issuing authority in your State?

The issuing authorities in Slovenia are the authorities competent to order investigative measures in criminal and misdemeanour proceedings.

State prosecutor at the District State Prosecution Office or the Specialised State Prosecution Office of the Republic of Slovenia acts as the issuing authority for the following investigative measures in pre-criminal or criminal procedure:

· secret surveillance without the use of technical devices (Art. 149.a CPA)

· requesting information about the owner or user of a communication device from a mobile service provider (Art. 149.č CPA)

· temporary retention of traffic and content data (Art. 149.e CPA)

· feigned purchase (Art. 155 CPA)

· feigned acceptance or giving of gifts (Art. 155 CPA)

· feigned acceptance or giving of bribes (Art. 155 CPA)

· undercover operations without the use of technical devices (Art. 155.a CPA)

Investigative judge at the District Court is the issuing authority for the following investigative measures in pre-criminal or criminal procedure:

· secret surveillance with the use of technical devices (Art. 149.a CPA)

· obtaining traffic data in an electronic communications network (Art. 149.b CPA)

· securing traffic data (Art. 149.c CPA)

· requesting information about the owner or user of a communication device from a mobile service provider (Art. 149.č CPA)

· monitoring of electronic communication with tapping and recording and securing of such evidence (Art. 150 CPA)

· control of letters and other shipments (Art. 150 CPA)

· control of computer systems of banks or other legal persons (Art. 150 CPA)

· wiretapping and recording of conversations (Art. 150 CPA)

· control of mobile telephony signals (with IMSI-catcher) (Art. 150.a CPA)

· tapping and observing of individuals in foreign apartments or other premises and secret entry when necessary (Art. 151 CPA)

· undercover operations with the use of technical devices (Art. 155.a CPA)

· ordering the bank or other financial institution to send confidential information and documentation regarding deposits, account balance and transactions (Art. 156 CPA)

· house search and personal search (Art. 214 CPA)

· seizure (Art. 220 CPA)

· hearing of suspect or accused person (Art. 227 CPA)

· hearing of witness (Art. 234 CPA)

· inspection (Art. 245 CPA)

· expert witness (Art. 248 CPA)

The judges are the issuing authorities for the following investigative measures:

· house search and personal search (Art. 214 CPA)

· seizure (Art. 220 CPA)

· hearing of suspect or accused person (Art. 227 CPA)

· hearing of witness (Art. 234 CPA)

· inspection (Art. 245 CPA)

· expert witness (Art. 248 CPA)

The judge at the Local Court is the issuing authority for investigative measures in the procedure on misdemeanours, where provisions on investigative measures in the CPA are applicable.

Question #5:

Does your system require a validation? If so, which measures can be taken by the police/law enforcement? If so, what assessment does the validation procedure provide? Who acts as the validation authority?

Yes, there is a validation procedure required when authorities other than national courts or State Prosecutor’s Office suggest issuing the EIO (Art. 73(2) CCMMSEUA).

The police can only take measures intended to obtain information. It may for example request information about the owner or user of a communication device from a mobile service provider (Art. 149.č(1) CPA), it may request temporary retention of traffic and content data until the receipt of court order (Art. 149.e(1) CPA) and it may request information from banks and other financial institutions regarding the account holder or its authorised person (Art. 156(5) CPA).

The validation authority assesses whether all the requirements for ordering the investigative measure in Slovenia are met (Art. 73(3) CCMMSEUA).

In criminal proceedings, the validation authority is either the investigative judge or the state prosecutor, depending on the fact which of the two has competence to order the investigative measure in national Criminal Procedure Act. In misdemeanour proceedings the validation authority is the judge at the local court.

Question #6:

Who acts as the executing authority in your State?

The competent executing authority is the state prosecutor at the District State Prosecution Office within the jurisdiction of which the requested investigative measure should be performed. For the cases where the territorial jurisdiction cannot be established, the executing authority is the District State Prosecution Office of Ljubljana. This applies to investigative measures, listed in answer to Question No. 4.

The investigative judge at the District Court, within the jurisdiction of which the requested investigative measure should be performed, is the executing authority for the remaining investigative measures, listed in answer to Question No. 4. For the cases where the territorial jurisdiction cannot be established, the executing authority is the District Court of Ljubljana.

For investigative measures in the procedure on misdemeanours the executing authority is the Local Court within the jurisdiction of which the requested investigative measure should be performed.

Question #7:

Does the ECJ-Judgement of 27.5.2019 - C-508/18 (Parquet de Lübeck) affect your system? If so, in which way? – Are adjustments necessary?

In case C-508/18 the European Court of Justice (hereinafter ECJ) took issue with the possibility of Ministry of Justice in Germany being able to give directions and instructions to state prosecutors in German states, thereby compromising their supposedly independent nature, which is a prerequisite for an authority issuing the European arrest warrant (hereinafter EAW). The same does not apply in Slovenia. The only issuing authority of EAW in Slovenia is the court, state prosecutors cannot issue the EAW. They can, nevertheless, propose the issuing of EAW, but the ultimate decision will be made

have been taken by the competent court (Art. 41 and 42 CCMMSEUA).

State prosecutors in Slovenia also enjoy a much more independent position than their counterparts in Germany. Although institutionally part of the executive branch of the government, it is evident from the Constitution[footnoteRef:15] (Art. 135) and State Prosecution Service Act[footnoteRef:16] (hereinafter SPSA)that state prosecutors cannot be given instructions and directions by the executive branch of the government, which safeguards their independent nature from political pressure. This was reiterated by the Constitutional Court in its 2013 decision: “Slovenian state prosecutor, when exercising its powers, is therefore not part of the executive branch in such a way that any kind of political and professional instructions in specific matters could be given to them by the government or any ministry.”[footnoteRef:17] [15: Constitution of the Republic of Slovenia (Ustava Republike Slovenije), Official Gazette of the Republic of Slovenia, No. 33/91-I, 42/97 – UZS68, 66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 – UZ14, 69/04 – UZ43, 69/04 – UZ50, 68/06 – UZ121, 140, 143, 47/13 – UZ148, 47/13 – UZ90,97,99 and 75/16 – UZ70a.] [16: State Prosecution Service Act (Zakon o državnem tožilstvu – ZDT-1), Official Gazette of the Republic of Slovenia, No. 58/11, 21/12 – ZDU-1F, 47/12, 15/13 – ZODPol, 47/13 – ZDU-1G, 48/13 – ZSKZDČEU-1, 19/15, 23/17 – ZSSve and 36/19).] [17: Constitutional Court of the Republic of Slovenia, U-I-42/12, ECLI:SI:USRS:2013:U.I.42.12, par. 27.]

Nevertheless, state prosecutors can issue EIOs in Slovenia and although they cannot be given instructions by the Government, they are given instructions by the Supreme State Prosecutor’s Office. The Prosecutor General adopts prosecution policies (Art. 145 SPSA) and issues general instructions under respective prosecution policies, where he defines conditions, criteria and special circumstances that influence the decisions of state prosecutors.[footnoteRef:18] He also issues general instructions for the conduct of prosecutors in handling of cases. The general instructions refer to the uniform application of the law, directing or equalizing prosecution policies and informing State Prosecution Offices (Art. 167 SPSA). All of these instructions from the Prosecutor General have a direct impact on the independent judgement of state prosecutors. Adjustments of Slovenian legal system therefore could be necessary in such a way that the EIOs issued by state prosecutors would have to be validated by the courts. However, if the ECJ follows the opinion of Advocate General M. Campos Sánchez-Bordona in preliminary reference procedure in case Case C‑584/19 (Staatsanwaltschaft Wien)[footnoteRef:19] of 16. 7. 2020, that would not be necessary after all. [18: Prosecutor General's Office, URL: https://www.dt-rs.si/pristojnosti (accessed 17. 2. 2020).] [19: Opinion of Advocate General Campos Sánchez-Bordona of 16. 7. 2020, Staatsanwaltschaft Wien, C‑584/19, , ECLI:EU:C:2020:587.]

Question #8:

Did you establish a central authority? If so, what are its prerogatives as well as its organizational/institutional and personal structure? If so, is the central authority part of the executive (administrative) or judicial branch?

Slovenia did not establish a central authority regarding the EIO.

Question #9:

In what languages are you accepting EIOs? Would English be accepted in urgent cases?

According to Art. 6(6) CCMMSEUA Slovenia accepts EIOs in Slovene as well as in English language. It is therefore not necessary for the issuing authority to show that a case is urgent in order to ensure that an EIO in English language is accepted.

Question #10:

What channels of communication[footnoteRef:20] do you allow for transmissions of EIOs? [20: Are electronic documents for example accepted? Do you use an automated system/channel of communication? Would other channels of communication be accepted in certain cases (letters, phone etc.)?]

Various channels of communication are allowed under CCMMSEUA. According to Art. 6, the EIOs can be sent in writing by post, telefax and in electronic form (e-mail)[footnoteRef:21]. The EIOs can also be sent through other safe technical means, which provide an appropriate level of security of personal information during the transfer, ensure that documents are illegible or unrecognisable and enable the executing authority to verify the credibility of the sender and data. Since Slovenia is also a member of Eurojust and European judicial network, those channels of communication can also be used. [21: It is important to note that although an EIO may be sent via e-mail in urgent matters, the original EIO has to be sent as soon as possible.]

Issuing authorities in other Member States can get the information regarding the competent Slovenian courts and prosecution offices and their contact information through European judicial network and its contact points as well as through national representative ofto Eurojust. The Ministry of Justice may also assist with identifying competent authorities or provide other relevant information if needed.

Question #11:

If you get an EIO issued by a prosecutor, for which a court order is required in your state, are you using the possibility of Article 2(d) of the EIO Directive to get a court order in your state? Please specify: Given that the issuing authority is not required to transmit evidence, what is the examination subject of the order?[footnoteRef:22] [22: Using the possibility of Art. 2(d) might run to nothing, as the executing state’s court might not have the information necessary for a substantive examination.]

Slovenia did not make use of the possibility provided in Art. 2(d) of the Directive when implementing the Directive. If the investigative measure cannot be ordered by a prosecutor in Slovenia, but rather by an investigative judge, and the EIO in respect of that investigative measure is issued by a prosecutor in the issuing state, the EIO will be recognised and executed by the investigative judge as the executing authority, provided there are no grounds for non-recognition and execution of the EIO.

Question #12:

Does your system allow measures required by an issuing state that are inexistent in your state (for example, the use of Trojan viruses, drone surveillance, ankle monitors or other modern technology)? If so, how is this compatible in your system with the foreseeability requirement for special investigative techniques?

No, measures required by an issuing state that are inexistent in Slovenia would not be allowed. According to Art. 63.a(1) CCMMSEUA, in case the investigative measure, requested in the EIO, does not exist in Slovenian legal order or would not be allowed in a similar domestic case, the executing authority can choose a different investigative measure than the one requested. In such a case, however, the executing authority would have to consult the issuing authority first (Art. 63 CCMMSEUA). It is important to note that if the use of an alternative investigative measure would not be able to yield the same results as the requested investigative measure, inexistent in Slovenia, the executing authority would have to inform the issuing authority that the EIO could not be executed (Art. 63.a(4) CCMMSEUA).

The issue of the foreseeability requirement for special investigative measures therefore does not arise, because the measures used would be the ones existent in Slovenian legal order.

Question #13:

Does your system allow measures required by an issuing state, which as such exist in your state but for legal reasons could not be ordered in the given case according to your rules? E.g. what happens if the requested measure is (according to your rules) restricted to a certain type of offence which is not the subject of the issuing states procedure?[footnoteRef:23] [23: Most measures as such probably exist in the majority of cases. Yet, that e.g. the legal requirements for a wire-tapping-op are covered in the issuing state but not in the other might be a frequent situation/problem.]

No, investigative measures requested in the EIO, which exist in Slovenian legal order, but could not be ordered in the given case, would not be allowed. Pursuant to Art. 63.a(1) CCMMSEUA, if the requested investigative measure would not be allowed in a similar domestic case, the executing authority can choose an alternative measure, if it would yield the same results. If that wasere not the case, it would inform the issuing authority that the EIO could not be executed.

Nevertheless, the use of an alternative measure is not allowed, even if the requested measure would not be allowed in a similar domestic case, if the requested investigative measure was one of the measures that always have to be available under the law of the executing sState according to Art. 10(2) of the Directive. Investigative measures that would therefore always be executed are:

a) the obtaining of information or evidence which is already in the possession of the executing authority and the information or evidencewhich could be used in other criminal proceedings in accordance with the CPA;

b) the obtaining of information contained in personal databases held by the police, state prosecution offices or courts, to which the executing authority has direct access in the framework of criminal proceedings;

c) the hearing of a witness, expert, victim, suspected or accused person or third party in the territory of Slovenia;

d) any non-coercive investigative measure as defined in the CPA;

e) the identification of persons holding a subscription of a specified phone number or IP address.

After having consulted the issuing authority first, the executing authority also has the possibility to use an investigative measure other than the one indicated in the EIO, if it would achieve the same result by less intrusive means (Art. 63.a(3) CCMMSEUA).

Question #14:

Is the concept of criminal responsibility of legal persons/entities used in your legal system? Are you granting as executive state an EIO used against legal persons even if your legal system does not acknowledge a concept of corporate legal responsibility? Does your legislation allow for additional formalities requested by an EIO and not foreseen in your domestic system (for example, a request that a specific number of witnesses or special kind of witnesses, for example representatives of the Bar Association, are present at a house search requested by an EIO)? – Please specify: Would you allow the issuing state’s formalities for mere tactical reasons?[footnoteRef:24] [24: Requests for additional formalities can stem from a legal or a tactical need. For example, searches at nighttime in accordance with (only) the issuing state’s law in order to provide for simultaneous searches in several states. Art. 9(1)(2) EIO Directive is open to different interpretations.]

Slovenia’s legal system has incorporated the concept of criminal responsibility of legal persons by passing the Liability of Legal Persons for Criminal Offences Act[footnoteRef:25]. According to Art. 60(d) CCMMSEUA, the EIO, issued in respect of a criminal offence of a legal person in the issuing state, would therefore be recognised and executed. [25: Liability of Legal Persons for Criminal Offences Act (Zakon o odgovornosti pravnih oseb za kazniva dejanja - ZOPOKD), Official Gazette of the Republic of Slovenia, No. 98/04, 65/08 and 57/12.]

Yes, additional formalities requested by an EIO and not foreseen in Slovenian legal order would be allowed pursuant to Art. 66(2) CCMMSEUA, provided that they are not contrary to fundamental principles of Slovenian legal order.

The issuing state’s formalities for mere tactical reasons would therefore be allowed. That would not be the case, if the requested formalities would breach the fundamental principles of Slovenian legal order, such as the principle of equal treatment (if, for example, the house search was exercised in such a way that it would discriminate against the suspect in Slovenia) or the principle of proportionality (if, for example, the intrusiveness of the house search would exceed what is necessary for its purposes).

Question #15:

How do you ensure as the issuing State that the condition of proportionality is respected before sending an EIO? Would you consider a flagrant denial of proportionality as a fundamental rights non-recognition ground? If necessary: describe, in very short terms, whether and to what extent proportionality is a constitutional value in your legal system.

Art. 73(1) CCMMSEUA sets forth conditions that need to be respected by the competent issuing authority before issuing the EIO. One of the conditions is that the obtaining of evidence, presumed to be on the territory of the executing state, is necessary and proportionate for the purposes of conducting a criminal or misdemeanour proceeding, taking into account the rights of the suspected or accused person. The proportionality of the measure is therefore assessed by the issuing authority with regard to the characteristics of a particular case.

Yes, a flagrant denial of proportionality could be considered a fundamental rights non-recognition ground in Slovenia. When assessing the recognition and execution of an EIO, the executing authority must take into account the fundamental rights non-recognition ground, set forth in Art. 62(1)(f) CCMMSEUA, which mentions Slovenia’s obligations under Art. 6 TEU and the Charter, as well as fundamental principles of Slovenian legal order. The recognition of the EIO should therefore be refused if it lacks proportionality, otherwise it would be contrary to Art. 52(1) of the Charter as well as to fundamental principles of Slovenian legal order.

Although the Constitution does not explicitly mention the principle of proportionality, it is generally accepted as one of the principles of the rule of law (Art. 2 of the Constitution). The Constitutional Court in its decisions established the principle of proportionality as one of the foundations of the constitutional review criteria, thereby elevating the principle of proportionality to the constitutional level.

In addition to the fact that human rights restrictions can be based only on a constitutionally permissible objective (Art. 15(3) of the Constitution), it must also be assessed, whether the restriction is also in accordance with the rule of law (Art. 2 of the Constitution), i.e. one of the principles which prohibit excessive interventions by the state, even in cases where they pursue constitutionally permissible objectives (the general principle of proportionality). In its review of constitutionality, the Constitutional Court assesses the excessiveness of human rights restrictions on the basis of a proportionality test: 1) is the restriction of human rights necessary; 2) is the restriction appropriate to achieve the objective pursued; 3) is the gravity of the consequences deriving from the human rights restriction proportional to the value of the objective pursued or to the benefits that will result from the restriction (the principle of proportionality in the narrow sense)[footnoteRef:26]. [26: Constitutional Court of Slovenia, U-I-18/02, ECLI:SI:USRS:2005:U.I.219.03.]

Question #16:

How do you define/interpret the concept of coercive/non-coercive measures as indicated in Article 10(2)(d) and Recital 16 of the EIO Directive?

The CPA does not define the concept of coercive/non-coercive measures as indicated in Article 10(2)(d) and Recital 16 of the Directive. They are, however, interpreted with respect to the fundamental rights restriction. Coercive measures are the ones where the enforcement of measures entails a more severe restriction of certain fundamental rights (e.g. the right to respect for private and family life). Those measures can only be ordered by the investigative judge. Non-coercive measures are the ones where the enforcement of measures restricts fundamental rights of persons to a lesser extent and can be ordered by the state prosecutor.[footnoteRef:27] [27: Š. Horvat, Zakon o kazenskem postopku (ZKP): s komentarjem, 2004, str. 324.]

Question #17:

Are you considering requests for a dynamic IP address as coercive or non-coercive? Who can order the identification of dynamic IP addresses in your system?

The request for a dynamic IP address is considered a coercive measure in Slovenian legal order. Pursuant to Art. 149.b(1) CPA, it can be ordered by an investigative judge upon a reasoned proposal of a state prosecutor. If, in exceptional circumstances, the order could not be obtained in writing on time and the delay would put the lives or health of people at risk, the investigative judge couldan order the measure orally upon an oral proposal of a state prosecutor. A written order must, however, follow no later than 12 hours after the initial oral order of the measure (Art. 149.b(3) CPA).

Question #18:

Are you considering the request for historical telecommunication data as a coercive or non-coercive measure? Who can order the disclosure/discovery of traffic telecommunication data in your system? Do you have a general data retention system in your state still in place? If so, describe it briefly. Would you use an EIO to get such data from another member State where such system exists, even if your own domestic system does not provide for a data retention system?

Similar to the answer to the previous question, the request for historical telecommunication data is considered a coercive measure in Slovenian legal order. The disclosure of traffic telecommunication data can be ordered by an investigative judge upon a reasoned proposal of a state prosecutor, in accordance with Art. 149.b CPA. If, in exceptional circumstances, the order could not be obtained in writing on time and the delay would put the lives or health of people at risk, the investigative judge couldan order the measure orally upon an oral proposal of a state prosecutor. A written order must, however, follow no later than 12 hours after the initial oral order of the measure (Art. 149.b(3) CPA).

No, in Slovenia a general data retention system is no longer in place. When transposing the Directive 2006/24/EC[footnoteRef:28] (Data Retention Directive), Slovenia amended the Electronic Communications Act[footnoteRef:29] and added provisions regarding mandatory retention of electronic communications data for a period of two2 years, which was later shortened to fourteen14 or eight8 months. In 2013, the Information Commissioner requested a review of the constitutionality of Articles 162 through 169 of the Electronic Communications Act (hereinafter ECA-1), contained in Chapter XIII, titled Retention of Data. The Constitutional Court started to hear the case U-I-65/13-19[footnoteRef:30], but stayed the proceedings until the ECJ took a decision in joined cases C-293/12 and C-594/12 (Digital Rights Ireland)[footnoteRef:31]. Deciding on the validity of Data Retention Directive, it held that the Directive was invalid ab initio. Although Data Retention Directive limited the purpose of retention only to the investigation, detection and prosecution of serious offences, the contested articles of the ECA-1 did not contain such a restriction and therefore disproportionately interfered with the right to protection of personal data, as guaranteed under Article 38 of the Constitution.[footnoteRef:32] The Constitutional Court consequently repealed the contested articles, i.e. the complete Chapter XIII on Retention of Data. [28: Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, OJ L 105, 13. 4. 2006, p. 54–63.] [29: Electronic Communications Act, Official Gazette of the Republic of Slovenia, No. 109/12, 110/13, 40/14 – ZIN-B, 54/14 – dec. CC, 81/15 and 40/17.] [30: Constitutional Court of Slovenia, U-I-65/13-19, ECLI:SI:USRS:2014:U.I.65.13.] [31: Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and Kärntner Landesregierung and Others, joined cases C-293/12 and C-594/12, ECLI:EU:C:2014:238.] [32: Constitutional Court of Slovenia, U-I-65/13, ECLI:SI:USRS:2014:U.I.65.13, par. 27.]

The retention of data was, however, reintroduced with the Act Amending the Criminal Procedure Act[footnoteRef:33], which entered into force on 20th of October 2019. To comply with the Constitutional Court’s decision, the amendment applied a nuanced approach to obtaining traffic data under the CPA. Articles 149.b through 149.e each set out a specific aspect of obtaining traffic data, with Art. 149.e providing for temporary retention of electronic evidence, including traffic data.[footnoteRef:34] Legal basis for general and blanket data retention is however no longer in place. [33: Act Amending the Criminal Procedure Act (Zakon o spremembah in dopolnitvah Zakona o kazenskem postopku – ZKP-N), Official Gazette of the Republic of Slovenia, No. 22/19, published on 5. 4. 2019.] [34: Predlog Zakona o spremembah in dopolnitvah Zakona o kazenskem postopku, URL: https://e-uprava.gov.si/drzava-in-druzba/e-demokracija/predlogi-predpisov/predlog-predpisa.html?id=9837 (accessed 12. 2. 2020), p. 9-10.]

The question if in Slovenia the issuing authority could use an EIO to get data from another member State where this data is being retained on the basis of a general and blanket data retention system is a tricky one. On one hand, the new Article 149.b of the CPA explicitly allows for gathering of existing traffic data from the telecommunications operator and/or provider. On the other hand, however, operators and providers lack the legal basis for general and blanket data retention – with the exception of retention of data for the current month until the monthly payment of the receipt. This means that in CPA there is an appropriate investigation measure for gathering of existing traffic data. However, the legal basis for general and blanket data retention by the telecommunications operator and/or provider does not exist. Hence, in a similar domestic case, the state prosecution would could not access such data, but would be allowed access to it if such data would have been collected.

The question which arises is therefore a question of interpretation: How to interpret the general rule that the investigative measure would not be authorised under Slovenian law in a similar domestic case? Should this general rule be viewed narrowly, by only looking at the nature and scope of the investigative measures in the criminal procedural law? Or should this rule bey understood more broadly, by looking at the possibility in a legal system as a whole, thereby taking into account that such data would not be available to the state prosecution because service providers and operators lack the legal basis for its retention. At least in cases of blanket and general data retention, which was considered by the Slovene constitutional court[footnoteRef:35] as unconstitutional, authors of this contribution consider the broad interpretative approach to be more appropriate. This means that in cases where in another Member State a blanket and general data retention system is in place, and EIO should not be issued by a Slovene authority since such traffic data could also not be accessed in a similar domestic case. [35: Constitutional Court of Slovenia, U-I-65/13, ECLI:SI:USRS:2014:U.I.65.13.]

Question #19

Which non-recognition grounds have you applied in your system in view of Article 11 or other Articles of the EIO Directive?

Slovenia had applied all of the non-recognition grounds listed in Article 11 of the Directive. Pursuant to Art. 62 CCMMSEUA, the executing authority shall refuse to recognise and execute an EIO out of the following reasons:

a) the execution of the EIO would be contrary to the rules on immunity, applicable in Slovenia, or there are rules on limitation of criminal liability relating to freedom of the press and freedom of expression in the media, which make it impossible to execute the EIO;

b) the execution of the EIO would harm essential national security interests, jeopardize the source of the information or involve the use of classified information relating to certain intelligence activities;

c) the EIO has been issued in proceedings referred to in Article 60(b) or (c) CCMMSEUA (Art. 4(b) and (c) of the Directive) and the investigative measure would not be authorised under Slovenian law in a similar domestic case;

d) the EIO has been issued in relation to a criminal offence for which the person had already been acquitted or convicted and the decision is final, or where the criminal proceedings had been finally terminated or the charge had been finally rejected, or where the competent state prosecutor had dismissed the criminal complaint because the suspect had fulfilled the settlement agreement or, in accordance with the instructions of the state prosecutor, the suspect had fulfilled orders to reduce or eliminate the adverse consequences of the criminal offence in accordance with the law governing the criminal proceedings; or the EIO has been issued in respect of an misdemeanour for which the person was found guilty and the decision is final (the ne bis in idem principle);

e) the EIO relates to an offence which is alleged to have been committed outside the territory of the issuing State and wholly or partially committed on the territory of Slovenia, and the conduct in connection with which the EIO is issued is not an offence under Slovenian Criminal procedure act;

f) there are reasonable grounds to believe that the execution of the evidentiary measure indicated in the EIO would be incompatible with Slovenia’s obligations in accordance with Art. 6 of the Treaty on the European Union and the Charter of Fundamental Rights of the EU or with fundamental principles of Slovenian legal order;

g) the conduct for which the EIO has been issued does not constitute an offence under Slovenian Criminal Code, unless if, according to the issuing authority, it concerns an offence from Art. 9 CCMMSEUA (categories of offences set out in Annex D);

h) the use of the investigative measure indicated in the EIO is under Slovenian law restricted to a list or category of offences or to offences punishable by a minimal criminal sanction, which does not include the offence covered by the EIO.

Question #20:

Do you apply the additional non-recognition grounds provided for specific sensitive measures, namely in Article 22-31?

Yes, Slovenia also applied additional non-recognition grounds provided for specific sensitive measures, set forth in Art. 22-31 of the Directive, that apply in addition to non-recognition grounds enumerated in Art. 62 CCMMSEUA.

Regarding the temporary transfer of persons held in custody to the issuing sState for the purpose of carrying out an investigative measure, the execution of the EIO might also be refused if: a) the person in custody does not consent; b) the transfer could prolong the detention of the person in custody (Art. 77.b(8) CCMMSEUA).

In regards to execution of the EIO for the purpose of hearing of a witness, expert, suspect or the accused person by a videoconference or other audiovisual transmission, the recognition can also be refused if the suspected or accused person does not consent (Art. 77.č(2) CCMMSEUA). The same non-recognition ground also applies to hearing of a witness or expert by a telephone conference (Art. 77.d CCMMSEUA).

When the EIO has been issued for the purpose of executing the investigative measures that imply the gathering of evidence in real time, continuously and over a certain period of time, the execution can also be refused if the execution of the requested investigative measure would not be authorised in a similar domestic case (Art. 77.f(2) CCMMSEUA).

In case the EIO has been issued for the purpose of carrying out a covert investigation in Slovenia, the execution can be refused if: a) the execution of the covert investigation would not be authorised in a similar domestic case; b) it was not possible to reach an agreement on the arrangements for the covert investigations under paragraph 3 of the same article (Art. 77.h(2) CCMMSEUA).

Lastly, when the EIO has been issued for the interception of telecommunications with the technical assistance of Slovenia, the execution of the EIO couldan also be refused if the investigative measure would not have been authorised in a similar domestic case. National courts can make their consent subject to any conditions, which would have to be observed in a similar domestic case (Art. 77.j(3) CCMMSEUA).

Question #21:

Do you apply the fundamental rights non-recognition ground (Article 11(1)(f) of the Directive)? If yes, what is the formulation you have used? Did you use a reference to Article 6 TEU as in the EIO Directive? Do you consider that higher national constitutional standards on fundamental rights could be used under that clause? On what pre-conditions would in your system such a ground be used?

Yes, Slovenia applied the fundamental rights non-recognition ground in Art. 62 CCMMSEUA with a reference to Article 6 TEU and Charter, as well as to fundamental principles of Slovenian legal order. The execution of the investigative measure indicated in the EIO would therefore be refused, if there were reasonable grounds to believe that the execution of the investigative measure would be incompatible with Slovenia’s obligations in accordance with Art. 6 TEU and the Charter or with fundamental principles of Slovenian legal order.

Yes, higher national constitutional standards on fundamental rights could be used under that clause, because Slovenia explicitly added fundamental principles of legal order to the formulation of the clause, in order to safeguard it as a non-recognition ground in Slovenia.

Question #22:

Have you introduced time limits for the recognition and the execution of an EIO? If yes, what are the consequences if the time limit is not respected? Does the time limit extend if a specific legal remedy for EIO exists in your system and is used?

Yes, in accordance with Art. 68 CCMMSEUA the executing authority must decide on the recognition and the execution of EIO in time limits applicable to investigative measures in national legislation, but no later than 30 days after the receipt of the EIO. The executing authority should, if possible, abide by the time limit suggested by the issuing authority. In any case, the investigative measure should be executed without undue delay, but no later than 90 days after the recognition of the EIO.

If the time limit for recognition and execution of the EIO canould not be respected, the executing authority immediately notifies the issuing authority, explains reasons for the delay and gives an estimated time frame in which the EIO could be executed. In such cases the time limit of 30 days can be prolonged for up to 30 days. If the requested investigative measure cannot be executed in intended 90-day time limit, the executing authority immediately notifies the issuing authority, gives reasons for the delay and consults the issuing authority regarding the new appropriate date. Non-compliance with time limits does not entail the application of any sanction: the time frame for recognition and execution will, accordingly, be left to the discretion of the state prosecutor or the judge. Although both Judicial Service Act[footnoteRef:36] (hereinafter JSA, Art. 81 (point 3)) in and State Prosecution Service Act (Art. 80(2)(point 3)) provide for disciplinary procedures against judges and state prosecutors for the reason of undiligent, untimely, inappropriate or negligent performing of duties, the procedure against the judge or state prosecutor would not be initiated for a single non-compliance with time limits in the EIO. [36: Judicial Service Act (Zakon o sodniški službi – ZSS), Official Gazette of the Republic of Slovenia, No. 94/07 – official consolidated text, 91/09, 33/11, 46/13, 63/13, 69/13 – corr., 95/14 – ZUPPJS15, 17/15, 23/17 – ZSSve and 36/19 – ZDT-1C.]

There is no specific legal remedy against EIOs in Slovenian legal order.

Question #23:

Does your system provide for EIO’s applied for by the defence?

CCMMSEUA does not have a specific provision regarding the possibility of EIOs being applied for by the defence. However, according to Art. 2(3) CCMMSEUA, for matters not directly regulated by CCMMSEUA, the provisions of CPA apply, which allows for the possibility of a suspect or accused person or lawyer on their behalf suggesting the issue of the EIO to a competent judge or state prosecutor. The possibility of issuing the EIO would then be assessed by the judge or the state prosecutor with regard to the conditions, set forth in CCMMSEUA. If, for example, the state prosecutor makes an assessment, in accordance with Art. 73(1) CCMMSEUA, that the issuing of the EIO would not be necessary in the given proceeding or it would be disproportionate, it is in his discretion to deny the issue of the EIO. In the investigative phase the parties can also propose the order of an investigative measure (and the EIO) to investigative judge. However, if the judge disagrees with it, he has to refer the matter to the chamber of judges at the district court to decide on it definitely (Art. 177 CPA). It is important to note that the judge on the whole cannot arbitrarily refuse the issue of the EIO, as that would infringe the suspect’s right of defence and due process.

Question #24:

Do you have a specific legal remedy for EIO cases? Do you provide for a remedy in the situation where an EIO is requested against a third party/not the suspect?

CCMMSEUA does not provide a specific legal remedy for EIO cases. Remedies regarding the EIO follow the rules of the CPA, which does not foresee a legal remedy for situations where the EIO is requested against a third party.

Report on the practical application

Clarification regarding the methodology:

Most practitioners were interviewed in person, in one1-on-one1 interviews. There were two group interviews, one at the District Court in Maribor, where a judge, a legal officer and a prosecutor were present, and one at the District StatePublic Prosecutor’s Office in Ljubljana, where two prosecutors were present. One interview was conducted online (using VoIP software) due to COVID-19 restrictions.

Interviews typically lasted from 1 to 2 hours, depending on the interviewees’ depth of knowledge and the extent of experience with the EIO. Most interviews were first recorded (with explicit consent of interviewees) before being transcribed into a written form. The written transcriptions formed a fundament for this national report.

List of practitioners who were interviewed:

Specialized StatePublic Prosecutor's Office:

· Ana Bučar Brglez, District Prosecutor, EJN prosecution contact at the Specialized StatePublic Prosecutor's Office)

· mag. Tanja Frank Eler, District Prosecutor

District StatePublic Prosecutor's Office in Ljubljana:

· dr. Katarina Bergant, High State Prosecutor, Head of the District Prosecutor's Office in Ljubljana

· Iztok Stražar, District Prosecutor, EJN prosecution contact point for territory under jurisdiction of the High Court in Ljubljana

· Luka Virant, District Prosecutor

District StatePublic Prosecutor's Office in Maribor

· Tilen Ivič, District Prosecutor, Head of the department for general crime, EJN prosecution contact point for territory under jurisdiction of the High Court in Maribor.

District StatePublic Prosecutor's Office in Celje

· mag. Urška Germadnik Šupek, High Legal Officer

District StatePublic Prosecutor's Office in Koper

· Katjuša Poropat Lakošeljac, District Prosecutor

Dictrict Court in Ljubljana

· Tanja Tošič Benigar, Judge

· Marjutka Paškulin, Judge

· Lidija Kolonić Hočevar, Legal officer at the Department for Investigation, specialized in cross-border investigation.

· Luka Šorli, Legal officer at the Department for Investigation, specialized in cross-border investigation.

District Court in Maribor

· mag. Vanja Verdel Kokol, Judge, Head of the Department for Criminal Law and Juvenile Offenders; Head of the Specialized Department for complex cases of organized crime, white collar crime, terrorism, corruption and simmilar criminal offences; EJN judicial contact point for territory under jurisdiction of the High Court in Maribor.

· Helena Melliwa, Legal officer at the Department for Investigation, specialized in cross-border investigation.

· dr. Boštjan Polegek, Judge

District Court in Celje

· Matjaž Guček, Judge

District court in Murska Sobota

· Terezija Cipot, Judge

·

Local Court in Murska Sobota

· Simona Vinkovič Škalič, Judge

· Terezija Cipot, Judge

Attorneys

· dr. Miha Šošić

Data from issuing and executing authorities

Question #1:

In which phase of the criminal process do you use the EIO?

a) in the preliminary investigative police/prosecutorial phase (or an equivalent phase);

b) in the court/prosecutor investigation phase (or an equivalent phase);

c) in the trial phase (or an equivalent phase);

d) in the post-trial phase (or an equivalent phase).

The statepublic prosecutors answered that they mostly use the EIO in the preliminary investigative police/prosecutorial phase, where they have the authority to issue the EIO, while in court/prosecutor investigation phase and the trial phase they can propose the issue of the EIO to the judge. The investigative judges use the EIO in the preliminary investigative police/prosecutorial phase and the court/prosecutor investigation phase, while the judges use it in court/prosecutor investigation phase and the trial phase. No practitioners indicated that they had ever used the EIO in the post-trial phase.

Question #2:

Have you used and are you familiar with the Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union? If yes, do you think that at the preliminary investigative phase (or an equivalent phase) it offers an alternative to the EIO?

None of the practitioners have ever used the Council Framework Decision 2006/960/JHA, however most of them were familiar with it. They did not consider it an alternative to the EIO, because the use of Council Framework Decision 2006/960/JHA is a lot narrower than the use of the EIO, as it concerns only the existing information and evidence.

Question #3:

As executing authority, have you encountered problems with the EIO form as regards information provided by the issuing State? If yes, what were the problems you encountered? Did you use the option of a consultation procedure provided in Article 11(4) EIO?

The practitioners answered that they had encountered very little problems with the EIO form, as the EIOs are usually filled in very well. The problems they noted related to the absence of essential information, duplication of information in different categories of the EIO form and misplacement of information in wrong categories (e.g. some issuing authorities provided inaccurate information in section E of the form - identity of the relevant person, which relates to the identity of the subject of the requested investigative measure and not the identity of the suspect, as some mistakenly interpret it). They also noted problems with the quality of translations. Furthermore, some practitioners noted that in cases of bilateral agreements between Slovenia and other MSs, under which the authorities of the issuing MS can send MLA in their own language, they send EIOs in their own language as well. Since Slovenia accepts EIOs only in Slovenian and English language, the issuing authorities are in such cases requested to send proper translations of the EIOs. It was however noted, that the practitioners in bilingual areas along the Italian border execute the EIOs in Italian language as well and do not request the translation.

If practitioners encounter any problems with the incoming EIOs, they all use the consultation procedure. Whether it is a formal consultation or direct informal consultation via e-mail or telephone, is dependent on the issue in the matter. If the issuing authorities cannot be reached through these channels, they use the help of EJN or Eurojust.

Question #4: 

As executing authority, have you ever refused to execute an EIO due to problems with the EIO form? If yes, please list the problems encountered.

The practitioners all answered that so far they had never refused to execute the EIO due to problems with the form, as the problems were mostly related to the content of the EIO. If there were any problems with the form, they would try to avoid refusing the execution of the EIO by the use of consultation procedure.

Question #5:

As issuing authority, have you encountered problems with the EIO form? If yes, please list the problems encountered. Did you ever experience a refusal of your EIO due to problems with the form?

The practitioners did not experience any problems with the EIO form, however they believe there is some room for improvement. One of the main critiques of the EIO form was that it is complex and difficult to read. Some found the order of categories to be a little impractical, since it starts with the category of requested investigative measure, while the substance of the case and the legal qualification come later. They believe the order of categories should follow the one in domestic investigation orders, where the substance of the case comes first (suspect, criminal offence, investigative measure). They also noted that because of the structure of the categories a lot of the information is duplicated in more than one category. Furthermore, some would like to see additional categories, such as the suspect in the case (now there is only the subject of the investigative measure) or the authority to which the EIO is being sent (i.e. the executing authority). Since the EIOs are being sent to translators, who could have problems translating online forms, some practitioners use the Word version of the EIO form and have also encountered some technical problems, e.g. when some sections need to be marked, they have to copy-paste the crosses in order to achieve that. Although filling out the EIO form is a lengthy and tiresome process, the practitioners nevertheless rarely experienced refusals of their EIOs due to any reason and never due to the problems with the form.

It was also pointed out that the EIO could use some improvement on protection of human rights and the principle of trust. It could follow the example of EAW, where it is evident that the decision on detention was made by the competent judicial authority, whereas with incoming EIO one cannot know, whether the issuing authority would be able to order such investigative measure, as requested in the EIO, in a domestic case. What is more, the issuing authorities usually provide in the EIO only the provisions of local Criminal code, which are necessary for double criminality check, but not the provisions of local Criminal procedure act, which would allow the executing authority to see e.g. that the EIO was issued by the prosecutor, who could not order such investigative measure in a domestic case, but would need the order of the court. It would therefore be beneficial to human rights protection if it was indicated on the EIO form, whether or not the EIO went through the assessment of a competent authority in the issuing state.

Question #6:

As executing authority, would you invoke the ne bis in idem non-recognition ground? If yes, would you invoke the non-recognition ground if the procedure was stopped at the investigative/charge phase (or at an equivalent phase)?

The practitioners all answered that they would invoke the ne bis in idem non-recognition ground, as this is one of the mandatory non-recognition grounds in Slovenian implementation legislation (Article 62 CCMMSEUA). If the procedure was stopped at the investigation phase of the criminal proceeding, they would generally not invoke it as the non-recognition ground. Some said that it depended on the reason why the proceeding waswas the proceeding stopped in Slovenia, whether it was the lack of procedural requirements or a decision on the merits. If it was not a decision on the substance of the case, they would not refuse the recognition of the EIO, because in that case the proceeding could be initiated again and the suspect could be charged anew.

Question #7:   

What is your experience with the EIO time-frame? Is the time-frame appropriate for the recognition and execution? Do you have any experience with an urgency request under the EIO? If yes, please elaborate.

There was no uniform position between the prosecutors regarding the EIO time-frame. Some considered it appropriate and never experienced any problems with execution of EIOs in time, while others considered it too short, since none of their EIOs were ever executed on time. Those who thought the time-frame was too short, said that EIOs usually get executed in 3 to 6 months. In their experience the results vary between different MSs and executing authorities. The judges on the other hand considered the time-frames to be appropriate, however they also noted that they are seldom respected.

Most of the practitioners had already had experience with urgency requests, yet they were very rare and sometimes unjustified. The MSs also differ significantly in justification of urgency – some simply write that it is necessary for criminal or pre-criminal procedure, while others explain the need for urgency and the deadline. The practitioners also said that they rarely use the urgency requests, but when they do, the urgency is respected.

Question #8:

What secure channels of communication do you use for transmitting/answering to an EIO? Do you use the electronic version of the EIO form? Do you consult the EJN webpage before issuing an EIO?

The practitioners do not use any specific secure channels of communication. They transmit EIOs by post or via e-mail (some use both at the same time) and they confirm the receipt of the EIO via e-mail. Almost all of the practitioners use the electronic versions of the EIO form, while some use the Word versions because of translations. All of them also use Atlas on the EJN website before issuing an EIO. If they cannot find the relevant information, they ask for help the contact points with EJN or Eurojust for help. The latter has also offered to be the intermediary in EIO matters, so the issuing authorities can send the EIOs to Eurojust (via e-mail) and they transmit them to the executing authorities. During the Covid-19 epidemic it was agreed that the EIOs should be sent to contact points via e-mail to be transmitted to the executing authorities.

Question #9: 

As issuing authority, do you provide a justification why you would not reveal a measure to the suspect for confidentiality reasons? As executing authority, do you request a specific justification why the measure should not to be revealed to the suspect for confidentiality reason?

The prosecutors answered that they do not provide a special justification for not revealing a measure to the suspect for confidentiality reasons. The judges on the other hand noted that this is relevant when requesting bank information and traffic data, because in some countries banks and telecommunications operators notify the person whose information is being requested. In these cases they follow the rules of the CPA and ask for confidentiality, they indicate it section I of the EIO and cite the relevant provisions of the CPA (Art. 156 and 149.b). The difference in approach of the prosecutors and judges might be due to the fact that only the judges can order such coercive investigative measures, where confidentiality is crucial.

None of the practitioners ever requested justification when acting as executing authorities.

Question #10:

As issuing authority, have you ever requested specific formalities to be fulfilled by the executing authority? If yes, what did they relate to? Have you ever requested formalities to be fulfilled for tactical reasons, e.g. the synchronicity of searches? Did the executing authority follow your request?

The specific formalities that the practitioners requested to be fulfilled, were mostly the instruction of the suspect or witness on their rights, especially the right to refuse to testify and the privilege against self-incrimination, the hearing of a witness by a judge, that the person should be served with documents in person. Such formalities were usually respected. Another important formality that they requested was the presence of two2 witnesses during a house search, however this formality is often not followed by the executing authorities (especially in Italy).

In experience of one judge, the synchronicity of house searches is almost a rule in joint actions (the same applies to joint investigation teams under Eurojust). The issuing authority indicates in the EIO the preferred date of synchronised house searches and specifies the formalities or other circumstances of house searches and the same is expected from other issuing authorities. After receiving such an EIO, the specifics are discussed with participating executing authorities, they are warned about certain things etc. However, none of the other practitioners have ever requested formalities to be fulfilled for tactical reasons, except for one prosecutor, who was involved in unsuccessful synchronised house searches in Slovenia and Italy. In Slovenia they quickly sent the proposal to the court to issue an order of house search, which was limited in time. However, in Italy the order was not issued on time, so the house search in Slovenia was delayed twice, until they could not wait any longer and they conducted the house search in Slovenia alone.

Question #11:   

As executing authority, do you use proportionality as a non-recognition ground? Do you consider an obvious violation of proportionality as a fundamental rights non-recognition ground? Do you - within the framework of proportionality - question the grounds for issuing the EIO (e.g. request for the search of someone who is obviously innocent)?

All of the practitioners answered that they would use proportionality as a non-recognition ground, but they had never had experience with a case like that before. They advocate the principle of trust, so they do not question the grounds for issuing the EIO and would consider doing that only, if it was really obvious that the use of EIO is disproportionate (e.g. in very minor offences). The issuing authority has an obligation to respect the principle of proportionality when issuing the EIO, so they trust their judgement. They also noted that it is hard for the executing authority to assess the proportionality, because the EIO is a form, in which judicial authority of the issuing state claims that someone committed an offence. It is impossible to know whether or not the issuing authority has sufficient evidence for such a claim, because the executing authority does not receive enough information regarding the case from the issuing authority. EIOs and MLA can therefore not be held to the same standards as ordering investigative measures in domestic criminal procedures. One prosecutor had experience with an EIO requesting a house search, but in their assessment the same result could be achieved with seizure of an object, so in accordance with proportionality principle they did that.

Question #12:

As issuing/executing authority, have you experienced the use of a fundamental rights non-recognition ground? If yes, what were the reasons? How was the matter resolved?

None of the practitioners ever experienced the use of fundamental rights non-recognition ground neitherwhether as issuing nor as executing authority.

Question #13:

As executing authority, what would you do if a measure which does not exist in your system is requested by an issuing sState (for example, issuing Member State A requests from executing Member State B an EIO for the use of a Trojan virus; however, such measure does not exist in your system)?

All of the practitioners answered that in such a case they would notify the issuing authority that the requested investigative measure cannot be executed in Slovenia and suggest to the executing authority an alternative measure that is similar to the one requested or can achieve the same results and is allowed under Slovenian legislation. If such measure did not exist, they would refuse the execution of the EIO.

Some noted problems when wiretapping is requested by the issuing authorities. In accordance with Art. 150 CPA, the order of wiretapping in Slovenia is issued for a limited period of one1 month, which can be extended on the basis of substantiated proposal, if there are sound reasons to believe that concrete evidence will be discovered later. A lot of MSs, e.g. Germany and Netherlands, order wiretapping for substantially longer time periods of three3 or four4 months. When issuing authorities in such countries issue an EIO for wiretapping, such measure is therefore allowed under the rules of the CPA, but the time limits requested are longer than allowed under Slovenian law. It also has to be taken into account that approximately ten10 days areget lost because of translation. This issue could be solved if the investigative measures limited in time were regulated on the EU level.

Question #14:

Do you have experience with video conferences as a tool for cross-border gathering of evidence? If yes, please specify. Do you use video conferences based on an EIO at trial level (or an equivalent phase)? Do you have the appropriate equipment for video conferences at your disposal?

The prosecutors have not had experience with video conferences in pre-trial phase of the criminal proceeding, because of the nature of the investigative measures at their disposal and the fact that Slovenia is one of the rare countries that has the investigative judge, but they had experience with it in the investigation phase and the trial phase, where they can propose gathering of evidence with the use of EIO. They do not have the necessary equipment at statepublic prosecutor’s offices.

Most of the judges on the other hand had already had experience with video conferences as a tool for cross-border gathering of evidence in EIO cases in the trial phase of the proceeding. All of the judges also answered that they have the proper equipment at their disposal at the court. They noticed that in some MSs the courts do not have the proper equipment, especially courts in the periphery, and this is true even for some of the Western countries. They noted that in the last few years video conferences have become one of the most important means of gathering evidence, not only in EIO cases, and they were particularly useful in times of Covid-19 epidemic, when witnesses and suspects could not commute from one MSs to the other.

Question #15:

Would you issue an EIO for an investigative measure (wiretappings, for example) conducted in the executing state where no assistance of the executing state is necessary (e. g. the issuing state would perform the investigative measure)? Do you have any experience with such EIOs as the issuing/executing authority?

Only one judge had experience with such EIOs as the issuing and executing authority. They usually get requests for consent that relate to wiretapping of conversations in vehicles that crossed Slovenian soil. Most of the time the wiretapping was already performed and the MS used Annex C (Notification about interception of telecommunication without technical assistance), while they issued their consent afterwards. When wiretapping is ongoing and relates to a future act, they have to issue a decision which allows it. None of the other practitioners had any experience with issuing an EIO for investigative measures in the executing state where no assistance of the executing state was required. If the circumstances of the cases called for such a measure, they were in agreement to notify the executing state with Annex C (in Slovenian version Annex 3.b).

Question #16:

As issuing/executing authority, have you encountered any issues as regards double criminality? If yes, please specify.

Most of the practitioners had encountered issues regarding double criminality, especially in cases where a certain offence is considered a criminal offence in Slovenia, but a misdemeanour in executing MS and vice versa. In cases like those the executing authorities on both ends refused the EIOs. The examples of criminal offences in Slovenia that were not a criminal offence in executing MS were: non-payment of child support, which does not constitute a criminal offence in Austria; small theft, which is considered a misdemeanour in Hungary; and infringement of workers’ rights, which is not a criminal offence in Austria and Germany. On the other hand, most traffic offences are considered a criminal offence in Germany and a misdemeanour in Slovenia and doping is also not a criminal offence in Slovenia.

It was pointed out that there is a systemic problem regarding double criminality in EIO cases, because the EIO was introduced to simplify the gathering of evidence in other MSs, yet the list of criminal offences is based on the list of criminal offences in the EAW. Composing such a list in EAW was definitely a considerable step forward, because there was no need to check double criminality in such cases, however there is no need for the same logic to apply to EIO, because the EIO does not interfere with the basic human rights the same way as the EAW does, which normally includes detention of the suspect and restriction of his freedom. What is more, the evidence gathered by the executing state can be exculpatory evidence.

Question #17:

As executing authority, would you refuse an EIO that is obviously intended for non-evidentiary purposes (freezing of property, for example)?

The prosecutors answered that they would refuse the EIO that is obviously intended for non-evidentiary purposes. However, they added that they are tolerant and pragmatic, considering the expenses that the issuing authority had had with issuing the EIO, so they would also execute the EIOs intended for certain other purposes, such as service of documents. They were in agreement that issuing EIOs for other purposes is sometimes easier, because the EIO has become a sort of a central tool. Some also said that they would consult the issuing authority to see, whether or not there had been a mistake (e.g. they filled out the wrong form). The judges on the other hand answered that they would refuse such an EIO and notify the issuing authority on other available means of international cooperation.

Question #18:

Does your national system allow the use of evidence transferred under an EIO for other purposes (in other procedures not specified in the EIO – speciality rule)? If yes, specify under which circumstances.

The Slovenian system allows the use of evidence transferred under an EIO for other purposes and does not have the use of evidence limited by the speciality rule. This rule is also not mentioned in the EIO Directive, however the practitioners were in agreement that it is safer to obtain consent of the executing state for the use of evidence in other procedures, which is also the recommendation of Eurojust.

One prosecutor observed that by closely reading the EIO Directive it is evident that the speciality rule should be respected. Before requesting the gathering of evidence with the EIO, the issuing authority has to perform a test to make sure that the requested measure is necessary and proportionate. Such a test cannot be performed afterwards in a different proceeding, so the speciality rule should also apply to evidence gathered with the use of EIO.

Question #19:

As executing authority, do you check whether the issuing authority has the status of a judicial authority (see ECJ-Judgement of 27.5.2019 - C-508/18)? Do you accept EIOs automatically whenever the issuing authority is a prosecutor?

The practitioners do not check whether the issuing authority has the status of a judicial authority and they automatically accept EIOs when the issuing authority is a prosecutor. Some pointed out that this judgment cannot have a significant impact on accepting the EIOs issued by the prosecutors, since the judgement concerned the EAW and detention orders interfere greatly with one of the most important basic freedoms of a persons, the personal freedom. The EIO, on the other hand, concerns investigative measures, which are in most MSs already in the hands of statepublic prosecutors, to a large extent also in Slovenia, and the investigative measures do not present such a serious interference with human rights and freedoms.

Question #20:

If in your system a court order is necessary for a certain measure, as issuing authority, would you request such an order when sending an EIO or would you send the EIO without having obtained a domestic court order?

All of the prosecutors answered that if a court order is necessary for certain investigative measures, they do not issue the EIOs themselves, but rather propose the order of the investigative measure and the issue of EIO to the court. The judge then issues an order for the investigative measure and the EIO at its own discretion, so the EIO is sent by the competent authority.

Question #21:

If in your system a court order is needed for a certain measure (for example, a house search, content electronic data, etc.), would you, as executing authority, request such a court order before executing an EIO?

All of the prosecutors stated that if they receive the EIO as executing authority and a court order is needed for requested investigative measures in Slovenia, they transmit the EIO to the court, so the judge is the executing authority.

Question #22:

As issuing/executing authority, have you encountered any problems specific to digital evidence (electronic data, traffic data – data retention)? As issuing authority, would you use the EIO to order the disclosure of traffic telecommunication data of a suspect in the executing state, even if your own national system does not provide for a data retention system?

The practitioners did not encounter any specific problems regarding digital evidence. Most of the practitioners said that they would not use the EIO to order the disclosure of traffic telecommunication data of a suspect in the executing state, if the EIO could not be issued in a similar domestic case (e.g. data retention period in executing state is longer than in Slovenia, where data can be retained only for 3 months). The prosecutors explained that they do not have the competence to request traffic data, as this is reserved for the courts, so the prosecutors have to propose the gathering of evidence to the court in accordance with the provisions of the CPA (Art. 149.b). The judge then issues an order for disclosure of traffic data and an EIO on its basis. Such an order therefore cannot be issued contrary to the provisions of the CPA, so neither can the EIO.

Question #23:

As issuing/executing authority, have you encountered cases in which the suspected/accused person made use of legal remedies regarding the EIO? Please elaborate. What were the results?

The practitioners have never encountered a case in which the suspected/accused person made use of legal remedies regarding the EIO. Although Slovenian legislation does not provide for legal remedy against the EIO itself, the parties can request exclusion of evidence gathered with the use of EIO in accordance with the rules of the CPA, however the practitioners have yet to witness that.

Data from attorneys

Question #1:

As an attorney[footnoteRef:37], have you ever requested issuing of an EIO, in line with the applicable defence rights of national law? If not, why have you never made such a request? If yes, were you successful? Please elaborate, provide examples and describe potential issues regarding requests for the issuing of an EIO under your legal system. What is the procedure to use an EIO for defence purposes in your Member State? Can you issue it directly or do you have to request it from a prosecutor or judge? Please elaborate. [37: A definition of an attorney is not provided in the Directive 2014/41/EU regarding the EIO in criminal matters. For the purpose of this questionnaire, an attorney is a legal professional who is legally qualified and licensed, according to national law, to represent a suspect/defendant in any types of proceedings for which an EIO can be issued according to Article 4 of the of the Directive 2014/41/EU.]

The interviewee never requested issuing of an EIO in line with the applicable defence rights of national law. He furthermore noticed that in general, attorneys are not aware of this option and do not use it often (if at all). The reasons are, according to the interviewee, manifold. First of all, there is no specific regulation or procedure which would allow for the defence to use the EIO. Hence, not many attorneys are aware of this option. What is more, a lack of specific provisions brings with it a specific uncertainty regarding the procedure and the use of the EIO for an attorney and his client.

Another reasons for the lack of usage is the fact that the defence needs to ask the judge (or the investigative judge) to initiate the procedure. Such an approach is connected with two significant problems. First of all, it is not entirely clear how to react if the (investigative) judge declines the attorney’s request. As a general rule, such decline could constitute a breach of the defendant’s right to defence and a due process violation. There is however no existing legal practice regarding this question, which makes it hard to predict the outcome of such (potential) legal proceedings. Secondly, asking for retrieval of evidence through a court might not be a sound strategy from the perspective of trial tactics. As an attorney, you cannot be entirely sure what evidence might be uncovered through the EIO. Such evidence could potentially hurt the attorney’s client standing, as it would be reviewed by the court before it would be passed to the attorney. Hence, it is more sound to just refrain from gathering such evidence through EIO in the first place. Even the Attorney Ethics Code may be read in a way as to prevent the use of the EIO in the first place if there is even a shred of doubt that doing so could potentially hurt the attorney’s client.

Last but not least, it is not entirely clear how the EIO could be used in the early stages of the criminal proceedings, since the dominus litis of the “pre-criminal procedure”