With the launch of a recent Green Paper, The European Commission invites Member States and all concerned stakeholders to define a European strategy concerning the collection of admissible evidence in criminal matters in a cross-border context.
The Commission Communication recalls that already with the Tampere Conclusions in 1999 the European Council clearly set out the necessity to facilitate mutual trust and recognition of national decisions to overcome the obstacles derived from the differences between national legal systems and promote the fight against cross-border criminality.
Several measures have been adopted applying to pre-trial orders and afterwards, especially following the emotional waive raised by the attacks of 9/11.
Among all the domains of possible cooperation in a cross border context the most desirable, despite the existence of various co-existing and non coordinated mechanisms, seems the one which would enable competent authorities to quickly secure evidence in criminal matters.
Indeed Existing rules on obtaining evidence in criminal matters in the EU are of two different kinds: on the one hand, there are instruments based on the principle of mutual assistance (such as the European Convention on mutual assistance in criminal matters supplemented by the Schengen Agreement in addition to the Convention on mutual assistance in criminal matters and its protocol) and on the other hand instruments based on the principle of mutual recognition, which most notably include the Framework Decision on the European Evidence Warrant.
Another instrument based on the principle of mutual recognition is the Framework Decision of the Council of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.
However, the scope of such an instrument is limited to the seizure of evidence in another Member State. The transfer of evidence to the involved Member States is regulated by instruments of judicial assistance or by the Framework Decision on the European Evidence Warrant.
According to the Commission, because of the limited scope, the European Evidence Warrant cannot be issued, for example to gather evidence via interviews of witnesses , statements or hearings of suspected individuals. Neither to obtain real-time evidence- electronic interception of communications or monitoring of bank accounts because these evidence although available, do not exist yet.
Furthermore it is not possible to use a European arrest warrant to gather evidence by analysis existing objects, documents or data, including biological information such as DNA or fingerprints because although available these data are not directly available without further investigations or analysis.
However the co-existence of different mechanisms makes the application of norms burdensome and may cause confusion among practitioners who may not be able ti identify the most appropriate instrument for the evidence sought. Ultimately, these elements risk undermining effective cross-border cooperation.
Furthermore, the Commission points out that, instruments based on mutual assistance, may be regarded as slow and inefficient given the fact that they do not impose any standard forms to be used when issuing a request for obtaining evidence located in another Member State or any fixed deadlines for executing the request. Instruments based on mutual recognition may also be regarded as unsatisfactory in that they only cover specific types of evidence and that they provide for a large number of grounds for refusal to execute the order.
In conclusion, the most effective solution to the above mentioned difficulties would seem to lie in the replacement of the existing legal regime on obtaining evidence in criminal matters by a single instrument based on the principle of mutual recognition and covering all types of evidence. Compared with the scope of application of the Framework Decision on the European Evidence Warrant, this new instrument would also cover evidence that – although directly available – does not already exist, such as statements from suspects or witnesses or information obtained in real time, such as interception of communications or monitoring of bank accounts. It would also include evidence that – although already existing – is not directly available without further investigation or examination, such as analyses of existing objects documents or data or obtaining bodily material, such as DNA samples or fingerprints.
It also needs to be examined whether specific rules for particular types of evidence should be included in the instrument. This has been done in the current mutual assistance instruments which, in addition to the general provisions applying to all types of evidence, contain detailed rules on requests for certain specific forms of mutual assistance, such as interception of telecommunications or hearing by videoconference.
In addition, it needs to be examined whether it would be appropriate to apply the typical characteristics of mutual recognition instruments (such as the use of orders instead of requests for assistance, standard forms for issuing the order, fixed deadlines for executing the order and direct contact between the competent authorities) to all types of evidence. For example, it may not be appropriate to introduce standard forms for hearing of witnesses or fixed deadlines for setting up a joint investigation team. Furthermore, grounds for refusal provided for in mutual recognition instruments may no longer be necessary in relation to evidence that can be obtained without using coercive measures.
Finally, it needs to be examined whether it would be appropriate to supplement any existing or future instrument with non-legislative measures. This could include initiatives aimed at raising awareness of the instrument(s) among practitioners, such as drafting guidelines or providing training to practitioners on their application. This could also include initiatives aimed at ensuring that the instrument is implemented correctly, such as the setting up of monitoring and evaluation systems.
Member States and concerned stakeholders are kindly requested to submit their replies to the Green Paper by 22 January 2010 at the latest. The replies should be sent to the following address:
Directorate General Justice, Freedom and Security
Attn: Mr Anders AAGAARD
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