The EEW from the perspective of the defence

Transcription

1 The EEW from the perspective of the defence Vânia Costa Ramos THE EUROPEAN EVIDENCE WARRANT THE ACQUISITION AND ADMISSIBILITY OF FOREIGN EVIDENCE Dublin, 9-10 October 2009 Dublin Castle, Dublin 2, Ireland

2 EEW quicker, more effective judicial co-operation in criminal matters COM (2003) 688 final, p. 2 Safeguards?

3 Safeguards in FD Challenging EEW in Issuing State General considerations Article 4 Nature of evidence, documents and data Article 5 Nature of procedure in issuing state Article 10 Use of personal data Article 7 (a) Proportionality Article 7 (b) Admissibility to obtain evidence available on the territory of the issuing state in a comparable case according its internal law These considerations can only be invoked in the issuing state (Article 18 (2) legal remedies)

4 Safeguards in FD Challenging EEW in Executing State Article 4 Nature of evidence, documents and data Article 5 Nature of procedure in issuing state Article 10 (2) Use of personal data Article 11 (2) proportionality (see recital 12) and conformity towards ES procedural rules (see also article 17 (b)) Article 11 (4) issuing by authority other than judge, court, investigating magistrate or public prosecutor without validation by these authorities Grounds for non-recognition or non-execution (Article 11 (1)) Article 13 (a) - Ne bis in idem ECJ case-law Gözütok e Brügge Van Straaten Van Esbroeck Miraglia Kraaijenbrink Kretzinger Gasparini Bourquain Turanský

5 Safeguards in FD Challenging EEW in Executing State Article 13 (b) and 14 double criminality Article 13 (d) Immunities and privileges (see recital 17) Article 13 (e) non-validation o EEW by judicial authorities Article 13 (f) territoriality Article 13 (h) form is not complete or correct Article 18 legal remedies These considerations can only be invoked in the executing state

6 Problems Some examples: Art. 1 e) definition of search and seizure tensions with privilege against selfincrimination Art. 4 (4) restrictions to the use of such objects, documents or data? Art. 5 free circulation of evidence between different kinds of proceedings? Art. 15 (5) and 18 (6) immediate transfer of objects, documents or data may prejudice the exercise of legal remedies Art. 55 (6) can the suspect/interested party request the national authorities for indication regarding returning of objects, documents or data? If so, when? The party may only have access to file after evidence having been sent to issuing state Art. 18 Legal remedies when? Before or after the decision? With previous access to file? (see art. 18 (5) ) Cases where no coercive measures are used?

7 Problems The safeguards enshrined on the FD are clearly not sufficient, in particular having regard that there is no common framework on procedural safeguards and therefore there is no guarantee that the individuals or legal persons affected will: a) Enjoy the privilege against self-incrimination b) Have the right to be informed on the EEW c) Be assisted in an effective manner by defence counsel and interpreter d) Have access to translation of relevant evidence, data and documents e) Have the right to seek an EEW f) Have access to files in order to ensure effective use of legal remedies

8 Issues to be taken in account by implementing legislation 1. Definition of competent authorities for issuing and executing an EEW - Police authorities? - Scrutiny/verification of the EEW? 2. Definition of administrative proceedings under the scope of EEW and rules applying to the use of data collected in or for use in such proceedings 3. Minimum procedural safeguards - Privilege against self-incrimination - Proportionality (see recital 12) - Relation between procedural decisions in both States - Prohibition of night search - Information on the EEW and legal remedies - Access to file - Right to legal assistance (and to legal aid) - Right to interpretation and translation - Effective legal remedies

9 Issues to be taken in account by implementing legislation 4. Procedural safeguards regarding the type of material obtained: - Admissibility of evidence - Return, use, destruction and onward transmission of sensitive evidence material - Protection of privileged material (lawyer-client privilege see recital (17)) - Personal data - Material already in the possession of the authorities 5. Age of criminal responsibility 6. Application for an EEW by the defendant 7. Certifying the procedure of obtaining evidence, data or documents 8. Return and copy of material 9. Challenge and suspension of transmission of material

10 Issues to be taken in account by implementing legislation Is it admissible to address these issues in implementing legislation? YES FD refers to national legislation and fundamental principles Article 1 (3), recitals (28), (15); Article 12 ; Article 17 (1) (b); Articles 18 (1), (2), (3), (5) and (6) Moreover it is compulsory! Art. 6 TUE and ECHR - Fundamental Rights (Recital 27 and Article 1 (3)) - Procedural Rights fair trial (equality of arms, right to appeal, right to silence, right to legal assistance, right to an interpreter/translation, access to files, contradicting evidence,...) - Substantive Rights and Freedoms Recital 28 right to fair trial There must be rules safeguarding those Rights and Freedoms and the interested parties must be granted legal remedies to contest the validity of EEW in the light of fundamental Rights and Freedoms, even if not specifically mentioned in the FD

11 ECBA - EUROPEAN CRIMINAL BAR ASSOCIATION An association of European defence lawyers 25 Bedford Row London WC1R 4HD United Kingdom Tel.: secretariat@ecba.org To become a member of the ECBA, please visit our website at:

12 Thank you for your attention. Vânia Costa Ramos