Unofficial translation/summary:
Facts:
- Gavanozov has been charged with being the leader of a criminal organisation aimed at committing tax offences, namely mass evasion and evasion of VAT, by means of drawing up and using false documents and by wrongly deducting VAT.
- The charge is that he imported sugar from other Member States, including sugar from supplier ‘X’ from the Czech Republic, represented by witness ‘Y ˮ , to Bulgaria via intermediary companies and then sold it on the national market without any documents, but at the same time issued documents for the export of the sugar to Romania.
- Evidence was gathered in the proceedings concerning personal and business contacts between Gavanozov and witness “Y ˮ .
- The judge decided that new evidence had to be gathered concerning the actual relations between Gavanozov and witness ” Y ” .
- As it is likely that witness “Y” will not cooperate closely and to the full extent, the judge therefore decided to issue a European Investigation Order at a later date for the purpose of a search and seizure at the offices of company “X ˮ and at the residence of witness ” Y ˮ , as well as an interrogation of witness ” Y ˮ .
- The present application for a preliminary ruling was made before the EIO was issued.
Consideration:
- The referring court states that Directive 2014/41 does not regulate the nature of the remedies available to challenge the issue of an EIO.
- Article 14 and Recital 22 of Directive 2014/41 are based on the mandatory requirement to provide for certain legal remedies against the issuing of an EIO and deal only with the conditions that must be fulfilled for it to be issued.
- Since the EIO at issue in the main proceedings concerns the search of a dwelling, the seizure of certain objects and the summoning of a natural person to give evidence,
- Article 7 of the Charter, which concerns the right to respect for private life and home, applies.
- It follows that Article 47 on the right to an effective remedy against the acts adversely affecting the person concerned also applies. In addition, the case-law of the ECtHR also applies since, according to Article 1(4) and recital 18 of the Directive, the obligation to respect fundamental rights is laid down in Article 6 TEU, paragraph 2 of which refers to the ECHR.
- Consequently, the question arises whether national legislation which does not provide for any appeal against the issuing of an EIO is compatible with Article 14 and recital 22 of Directive 2014/41, Articles 47 and 7 of the Charter and Articles 13 and 8 ECHR.
Question referred:
- Is national legislation which does not provide for any legal remedy against the issue of a European Investigation Order for the search of a dwelling and an office, for the seizure of certain objects and for the organisation of the hearing of witnesses compatible with Article 14(1) to (4), Article 1(4), recitals 18 and 22 of Directive 2014/41 and Articles 47 and 7 of the Charter, read in conjunction with Articles 13 and 8 of the ECHR?
Cited (recent) case-law: ( С -128/18), LM ( С -216/18), ML ( С -220/18), С -404/15), (C-452/16), ( С -477/16)
Source: minbuza.nl
