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Evidence

Evidence is any element that tends to prove or disprove the existence of a specific fact. It is a key element in any criminal procedure to establish a person's guilt in the committing of an offence. In order to tackle criminality within the EU and beyond and fight against organised crime, judicial cooperation is an essential tool.

The role of the EU

One of the EU's objectives is to maintain and develop an area of freedom, security and justice, notably by facilitating and accelerating judicial cooperation in criminal matters between EU countries.

Faced with cross-border crime, the administration of justice must not be impeded by differences between the EU countries' judicial systems and the lack of mutual recognition for judicial decisions.

In this regard, it is particularly important to foster effective cooperation on obtaining evidence in relation to criminal matters.

Collaboration between EU countries

At present, obtaining criminal evidence within the EU is governed by the following legal instruments based on the principle of mutual assistance:

(i)  the European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of 20 April 1959, as well as its additional protocols, and the bilateral agreements concluded pursuant to Article 26 thereof;

(ii) the Convention implementing the Schengen Agreement; and

(iii) Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 2000 and its protocol.

As of 22 May 2017, obtaining criminal evidence within the EU will be governed by the following legal instruments based on the principle of mutual recognition: the Directive on the European Investigation Order.

Following the adoption of the latter, the Framework Decision on the European Evidence Warrant of 2008, which only applied to evidence which already exists and therefore covered a limited spectrum of judicial cooperation in criminal matters with respect to evidence, will be revoked in early 2016.

EU achievements

The Directive on the European Investigation Order was adopted on 3 April 2014 and Member States have until 22 May 2017 to transpose it into their national legal systems. Denmark and Ireland are not bound by this instrument and will therefore continue to cooperate with other Member States on the basis of the Convention on Mutual Legal Assistance of 2000 and the European Convention on Mutual Assistance in Criminal Matters of the Council of Europe of 20 April 1959.

The Directive is based on the principle of mutual recognition for judicial decisions when it comes to obtaining evidence for use in criminal proceedings.

A European Investigation Order can be issued in order to obtain evidence that already exists and is directly available in the form of items, documents or data. It can also be issued for the purpose of having one or several specific investigative measure(s) carried out in the State executing the EIO (‘the executing State’) with a view to gathering evidence.

It covers all investigative measures aimed at gathering evidence, including the most modern and sensitive ones (e.g. telephone interceptions, covert investigations, information on banking operations). However, the setting up of a joint investigation team and the gathering of evidence by such a team require specific rules which are better dealt with in a separate instrument.

It is issued using a standard form and translated into the official language of the executing State. It shall be recognised and acted upon within a fixed deadline of maximum 30 days for evidence already available or 120 days for investigative measures which still need to be carried out by the executing Member State, unless there are applicable and relevant grounds for refusal. The execution of a European Investigation Order will not be subject to verification of dual criminality if the offence is punishable by a custodial sentence of at least three years and is mentioned on a list of offences in the Directive.

The executing authority should, wherever possible, use another type of investigative measure if the indicated measure does not exist under its national law or would not be available in a similar domestic case. The executing authority may also have recourse to another type of investigative measure where it would achieve the same result as the investigative measure indicated in the EIO by means implying less interference with the fundamental rights of the person concerned.

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