Sunday, 2 May 2010

EU criminal justice: European evidence warrant and beyond

One of the main aims of the European Union is to offer its citizens an area of freedom, security and justice (FSJ) without internal frontiers.

With the Lisbon Treaty in force since 1 December 2009, the provisions on judicial cooperation in criminal matters are found in Part Three, Title V, Chapter 4 of the Treaty on the Functioning of the European Union (Articles 82 to 86 TFEU; OJEU 30.3.2010 C 83 for the latest consolidated version of the EU Treaties).

Judicial cooperation in criminal matters in the European Union is based on the principle of mutual recognition of judgments and judicial decisions. The ordinary legislative procedure is now used to lay down rules and procedures for ensuring recognition throughout the EU of all forms of judgments and judicial decisions (Article 82 TFEU; OJEU 30.3.2010 C 83/79).

Before the entry into force of the amending Lisbon Treaty, the Council Framework Decision 2008/978/JHA was adopted, although the EU member states have until 19 January 2011 to take the necessary measures to comply with the provisions:

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; published OJEU 30.12.2008 L 350/72

EEW introductory presentations

For an overview, see European evidence warrant (EEW) among the summaries of EU legislation on the Europa webpages (last update 11 May 2009).

A more detailed and academic presentation is by Mihaela Laura Pamfil: Judicial Cooperation Based On a European Evidence Warrant (15 May 2009; 5 pages; downloadable at SSRN).

Stockholm Programme

In the 2010─2014 Stockholm Programme - An open and secure Europe serving and protecting citizens (new version in Council document 5731/10, dated 3 March 2010), the European Council stated that in the face of cross-border crime, more efforts should be made to make judicial cooperation more efficient (page 38).

The European Council made the following observations (page 39):

The European Council considers that the setting up of a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued. The existing instruments in this area constitute a fragmentary regime. A new approach is needed, based on the principle of mutual recognition but also taking into account the flexibility of the traditional system of mutual legal assistance. This new model could have a broader scope and should cover as many types of evidence as possible, taking account of the measures concerned.

The European Council then invited the Commission to (page 39):

• propose a comprehensive system, after an impact assessment, to replace all the existing instruments in this area, including 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, covering as far as possible all types of evidence and containing deadlines for enforcement and limiting as far as possible the grounds for refusal;

• explore whether there are other means to facilitate admissibility of evidence in this area;

Stockholm Programme Action Plan

The European Commission has published its Communication (proposal) for the implementation of the Stockholm Programme:

Delivering an area of freedom, security and justice for Europe's citizens
Action Plan Implementing the Stockholm Programme; Brussels, 20.4.2010; COM(2010) 171 final

The following paragraph presents the general aims of the Commission in the area of criminal matters (page 5):

Criminal law is a relatively novel area of EU action for which the Treaty of Lisbon sets a clear legal framework. A criminal justice strategy, fully respecting subsidiarity and coherence, should guide the EU's policy for the approximation of substantive and procedural criminal law. It should be pursued in close cooperation with European Parliament, national parliaments and the Council and acknowledge that focus will remain primarily on mutual recognition and the harmonisation of offences and sanctions will be pursued for selected cases.

Promoting mutual recognition in the field of criminal law, the Commission foresees two proposals in 2011 (page 18):

• Legislative proposal on a comprehensive regime on obtaining evidence in criminal matters based on the principle of mutual recognition and covering all types of evidence

• Legislative proposal to introduce common standards for gathering evidence in criminal matters in order to ensure its admissibility

UK House of Commons

The UK House of Commons Justice Committee has published an assessment of developments in the European Union:

UK House of Commons Justice Committee: Justice issues in Europe (HC 162-I; published 6 April 2010; 60 pages)

On pages 26 and 27 the Committee discusses the European evidence warrant and related questions:

59. Nevertheless, there are currently two parallel initiatives which may provide the basis for a new measure. The first, a green paper on the gathering and admission of evidence, was issued by the European Commission in 2009 to enable consultation and detailed investigation before new legislation is proposed. In addition, it is anticipated that a member state initiative, led by Belgium, will propose the introduction of a “European investigation order”.

Criticism against the disproportionate use of EU instruments has been heard, because the Justice Committee concludes:

60. While the Government may wish the EU to adopt a “look before you legislate” approach, the ability of member states to present their own initiatives may pre-empt more considered approaches by the European Commission. We agree with the Government that, if the European evidence warrant is revised or replaced, lessons should be learned from the operation of the European arrest warrant by incorporating safeguards into the legislation to minimise the potential for disproportionate use.

Ralf Grahn

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