Seminar 4: Collecting evidence throughout the European Union II: The European Evidence Warrant and New Instruments in this Field

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1 With financial support from the Criminal Justice Programme of the European Union Seminar 4: Collecting evidence throughout the European Union II: The European Evidence Warrant and New Instruments in this Field Amsterdam (NL), June 2012 Specific Grant Agreement JUST/2010/JPEN/AG/FPA/001 Framework Partnership Agreement JLS/2007/JPEN-FPA/017 Improving Judicial Cooperation in Criminal Matters in the area of Freedom, Security and Justice, Institutional Processes and Topical Areas Mutual recognition instruments in the field of collecting evidence II: Assessment of the European Evidence Warrant Presented by Petra Jeney Senior Lecturer at the European Centre for Judges and Lawyers EIPA Luxembourg This publication has been produced with the financial support of the Criminal Justice Programme of the European Commission. The contents of this publication are the sole responsibility of the author Petra Jeney and can in no way be taken to reflect the views of the European Commission".

2 European Institute of Public Administration - Institut européen d administration publique Mutual recognition instruments in the field of collecting evidence II: Assessment of the European Evidence Warrant Petra Jeney learning and development - consultancy - research EIPA, June 5, 2013 Table of contents 1 From mutual assistance to mutual recognition 2 Relation between EEW and pre-existing MLA instruments 3 Main issues and provisions of the EEW 4 Safeguards 5 Evaluation

3 From mutual assistance to mutual recognition mutual assistance mutual recognition 1999 European Council in Tampere 2000 multi-annual JHA programme COM Mutual recognition MR in evidence gathering is considered of a highest priority From mutual assistance to mutual recognition mutual assistance mutual recognition 1999 European Council in Tampere 2000 multi-annual JHA programme COM Mutual recognition MR in evidence gathering is considered of a highest priority

4 European Evidence Warrant 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 to be applicable from 2011 does not apply to all movement of evidence collection of an already existing evidence two stage step for replacing mutual legal assistance with mutual recognition - EEW was meant to be the first step - EEW was meant to co-exist with the mutual legal assistance instruments at least for a transitory period EEW can only be issued if the evidence sought is necessary and proportionate and if such evidence could be obtained under the national law of the issuing state Relation between EEW and pre-existing MLA/MR instruments Council Framework decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence 1959 European Convention on Mutual Legal Assistance in Criminal Matters (+ protocols) 1990 Convention Implementing the Schengen Agreement 2000 European Mutual Assistance Convention

5 FD 2003/577/JHA on freezing orders 2003 FD deals with only a small part of international cooperation with respect to evidence gathering 2003 FD has a limited scope to provisional measures `prevent the destruction, transformation, moving, transfer or disposal of evidence` 2003 FD has to be accompanied with a request to transfer the evidence transfer of evidence still subject to MLA eventually two procedures are needed - one MR for freezing and one MLA for transferring the evidence 1959 European Convention on Mutual Assistance in Criminal Matters traditional mechanism of mutual legal assistance, requests for the transfer of evidence will be executed according to the laws of the requested country (letters of rogatory) grounds of refusal + any Contracting Party may, by way of a declaration, reserve the right to make the execution of letters of rogatory concerning search and seizure dependent on one or more of the following conditions - offence is punishable in both the requesting and requested countries (double criminality) - offence is an extraditable offence in the requested country - execution of the letters rogatory is in accordance of the law of the requested country centralized system, transfer of requests through central authorities political interference possible

6 1990 Convention Implementing the Schengen Agreement limits the possibility to use the reservations made available under the 1959 Convention rogatory letters for coercive measures (search and seizure) can only be refused when the following conditions are not fulfilled - letters rogatory does not meet the minimum requirements of maximum penalties - execution would not be consistent with the law of the requested state - first careful step to abolish political interference in the execution of MLA requests 2000 European Mutual Assistance Convention broad scope, covers all types of evidence general provision for mutual assistance detailed provisions on specific measures (restitution, temporary transfer of persons held in custody for purpose of investigations, interception of telecommunications etc.) the requested MS shall comply with the formalities and procedures expressly indicated by the requesting MS, unless otherwise provided direct system, requests are transferred directly to the judicial authorities of the MS

7 Main issues and provisions of the EEW scope mutual recognition standardized procedure, quicker and more efficient issuing authority territoriality proportionality double criminality procedural safeguards Scope of the EEW EEW can be issued to obtain objects, document or data which are directly available in the executing MS - covers any related object, document or data, which the authorities of the executing MS discover during the execution of the EEW other types of evidence are excluded from the scope of the EEW, unless they are already in the possession of the executing authority before the EEW has been issued - except from extract of the criminal records statements from persons present during the execution of the EEW and directly related to the subject of the warrant can also fall within the scope, provided that the the issuing authority requested so

8 Mutual recognition Member States shall execute any EEW on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision - no further formality - treated as if evidence was obtained in similar domestic cases grounds of non-recognition and non-execution or postponement Standardized procedure simplification and acceleration of the procedure standard form strict deadlines

9 Issuing authority issuing State shall mean: the Member State in which the EEW has been issued; issuing authority shall mean: (i) a judge, a court, an investigating magistrate, a public prosecutor; or (ii) any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings with competence to order the obtaining of evidence in crossborder cases in accordance with national law;

10 Territoriality ground for refusal refusing the execution of the EEW when the executing MS itself is competent to start legal proceedings crime was committed on the territory wholly or for a major part on the territory or a place equivalent to the territory of the executing state crime was committed outside the territory of the issuing MS and the law of the executing MS does not permit legal proceedings to be taken in respect of such offences Proportionality EEW only to be issue dif the issuing authority is satisfied that obtaining the objects, documents or data sought is necessary and proportionate for the purpose of proceedings the objects, documents or data can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used these conditions shall be assessed only in the issuing State in each case.

11 Double criminality the recognition or execution of the EEW shall not be subject to verification of double criminality unless it is necessary to carry out a search or seizure if it is necessary to carry out a search or seizure for the execution of the EEW, the following offences, if they are punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of that State, shall not be subject to verification of double criminality under any circumstances: - 32 crimes Procedural safeguards minimum procedural guarantees for both the issuing state and the executing state and for interested parties procedural safeguards in the issuing state - respect for formalities and procedures as indicated by the issuing state - obligation to inform procedural safeguards in the executing state - issuing authority - conditions for issuing the EEW - grounds of refusal - measures that will need to be taken for the execution of the EEW - grounds for postponement procedural safeguards for interested parties - human rights clause - legal remedies

12 Procedural safeguards in the issuing state respect for formalities and procedures as indicated by the issuing state - to make sure that the evidence gathered in another MS will be admissible before the national courts of the issuing state `The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided` [] `and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.` - no obligation to take coercive measures. obligation to inform Procedural safeguards in the issuing state respect for formalities and procedures as indicated by the issuing state - to make sure that the evidence gathered in another MS will be admissible before the national courts of the issuing state `The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided` [] `and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.` - no obligation to take coercive measures. obligation to inform

13 Procedural safeguards in the executing state issuing authority conditions for issuing the EEW grounds of refusal measures that will need to be taken for the execution of the EEW grounds for postponement Procedural safeguards for interested parties human rights clause legal remedies

14 German Declaration reserves the right under Article 23(4) of that Framework Decision to make execution subject to verification of double criminality in the case of the offences relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion and swindling listed in Article 14(2) of that Framework Decision, unless the issuing authority has stated that the offence in question meets the following criteria under the law of the issuing State Evaluation fragmented legislation mutual assistance and mutual recognition both present

15 Epilogue Commission Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its admissibility Stockholm Programme non-implementation of EEW status of Denmark European Investigation Order Do You Have Any Questions? We would be happy to help.