Evidence sharing : Commission issues opinion on Member States’ proposals

In order to research for evidence in another EU country, an investigator relies on a 50-year-old patchwork of rules. This implies long administrative procedures to obtain different evidence. The authorities across the border can ignore the request, or set their own deadline. The European Commission adopted an opinion on a proposal by seven EU Member States (Austria, Belgium, Bulgaria, Estonia, Slovenia, Spain and Sweden) for a European Investigation Order – a system facilitating justice authorities’ work in obtaining evidence for transnational criminal proceedings (or investigations).

The proposal would allow authorities to request their counterparts to investigate, share and gather evidence. If a Swedish investigator, for example, is tracking criminals holed up in Spain, they can ask their colleagues to carry out a house search. The opinion published today by the Commission recognises the added value of replacing the current fragmented system for investigative measures with a single legal framework. It also notes the need for clear and detailed rules, which would be fully compliant with the EU Charter of Fundamental Rights. These measures would include minimum standards for gathering evidence so that its admissibility in court is beyond doubt, as well as high data protection standards for sensitive information.

The Commission adopted an analysis of a proposal for evidence sharing –without admissibility standards – put forward by seven EU Member States (Austria, Belgium, Bulgaria, Estonia, Slovenia, Spain and Sweden) on 21 May 2010. The United Kingdom has also notified its wish to participate in the proposed Directive.

The Commission noted the advantage that the EU Member States’ proposal for a simpler, unified system could have – if backed by the appropriate procedural and fundamental rights standards. Investigators could use one standard form to directly request all kinds of evidence from their counterparts: from sharing witnesses’ submissions to triggering house searches. It would also help victims avoid repeating their ordeal several times or travelling to a jurisdiction by giving evidence via video link.

Authorities would only be able to refuse to recognise or carry out orders in a limited number of circumstances, such as national security concerns.

However, the Commission noted that authorities will be reluctant to use shared evidence such as bank data, phone records or DNA without first having mutual trust in the way it is obtained. It therefore needs to be accompanied by common minimum standards for gathering evidence across the EU, to ensure their admissibility in court as well as respect for fundamental and fair trial rights. Any exchanges of data would have to comply with EU data protection rules.

All 27 EU Member States will now negotiate a final proposal, which would then be voted by the European Parliament under the co-decision procedure. The Commission will then decide whether it needs to make separate proposals, particularly on the obtaining/admissibility of evidence. Any proposals for EU rules have to comply with the EU Charter of Fundamental Rights.

Background

The European Evidence Warrant, agreed in December 2008, allows certain investigators to ask each other to share existing, but not to gather new evidence. However, none have ever been issued, compared to 14,000 European Arrest Warrants in 2008, because it is only in force in one Member State (Denmark).

Last December European leaders endorsed the Stockholm Programme. The Commission turned these political objectives into an action plan for 2010-2014.

Existing agreements only lay the basis for justice authorities to assist, but not to recognise, each others’ decisions. The Council of Europe in 1959 adopted the European Convention on Mutual Assistance in Criminal Matters. Under the European Conventions on Mutual Assistance in Criminal Matters of 29 May 2000, the EU Council of Ministers aimed to encourage spontaneous cooperation between judicial, police and customs authorities.

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