The document summarizes key aspects of the European Investigation Order (EIO) as implemented in the Italian criminal justice system. It notes that Italy has adopted the EIO through legislation that entered into force in July 2017. The EIO is received and validated by prosecutors in Italian district courts and executed respecting both the formalities requested by the issuing state and fundamental Italian principles of law. The role of defense lawyers and mandatory refusal grounds are addressed, and statistics are presented showing increasing Italian involvement with the EIO since its adoption.

1. European Investigation Order:
the (new) Italian way
Nicola Canestrini
ERA Academy of European Law, National School
of Judiciary and Public Prosecution, Cracow, March
1st, 2018

2. Italian criminal justice system
“semi-
adversarial”
(inquisitorial approach)
independent
prosecutor leads
investigation
investigation
is mandatory

3. “rex in regno suo
est imperator”

5. mutual
assistance
mutual recogition
sovereignity
cooperation on
political basis
discretionality
no deadlines
lex loci
trust
cooperation of
judicial
authorities
“automatism”
deadlines
lex fori

6. Blind trust?
EAW experience

7. “Needs of international criminal
law enforcement cannot
prejudice fundamental rights”
Corte Costituzionale, decision 280/1985

8. EIO .. from blind trust
fundamental rights
protection
“rebuttable” presumption of
compliance of member states
with fundamental rights (§ 19)
specificity of national
systems
proportionality
principle (double
check)
primacy of EU law
BUT protection of
national constitution’s
principles
to distrust?

9. Directive 2014/41/EU of
3 April 2014
European
Investigation Order in
criminal matters
Law 21 June, 2017, n.
108 entered into
force
July 28 2017

11. Italy executing
MS: EIO is
received
(Italian)
executing authority:
prosecutor* of (27)
district court
validation (30 days)
execution (90 days)
EIO is executed with
formalities requested by
issuing State (lex fori)
respecting Italian
(fundamental) principles
(lex loci) exceptions
*judge of
preliminary
investigations
if requested by
issuing MS or by It.
Law
chamber hearing
defence
lawyer?
(new)
legal
remedy

12. right to be
informed and to
assist governed
by Italian law victims’ lawyer?
double
defense

13. CHECKS
respect of fair trial, fundamental
rights (Charta and Italian
Constitution), fundamental
principles of Italian law (artt. 1, 4/2,
10)
proportionality (art. 7)
mandatory refusal grounds (art. 10)
any problem?
direct contact!
(art. 6)

14. ?role of defense of defendant and 3rd parties
?self restrictions
? mandatory refusal grounds
admissibility is decided by national court
“Power of love LAW”

15. Is it used?*casesinvolvingactiveroleofItalianJA*
060
120
180
240
(active)
2014 2015 2016 2017
227
17999
116
2018 (Jan, Feb)
28 EIO’s
18
rogatories
*Courtesy of
Eurojust,
Italian Desk

16. www.canestriniLex.com
t @canestrinilex g+ +canestrinilex f canestrinilex