Introduction to the Proposal of a European Investigation Order: Due Process Concerns and Open Issues

The draft Directive on a European Investigation Order, launched by eight Member States in 2010, constitutes the last step in a long path towards the creation of a European regulation on the collection of evidence abroad. The complex structure of the proposed instrument, aimed both at conducting investiga- tions overseas and obtaining evidence which is already in the possession of the executing State, reveals a new way of providing mutual recognition, combined with the flexibility of the MLA system. Despite its ambitious goals and the announced innovations, this instrument provides a complicated combination of fairly old solutions, which does not allow a proper balance to be achieved between the efficiency of transnational prosecution and the protection of human rights, and therefore does not satisfy the need for a fair investigative procedure in transnational cases. This introductory study provides a critical view of the main general and specific issues of the draft proposal, focusing on some due process concerns and unresolved issues of the new instrument.