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
There are two types of rules on obtaining criminal evidence within the EU:
- firstly, instruments based on the principle of mutual assistance. Chief among these are the European Convention on mutual assistance in criminal matters, supplemented by the Schengen Agreemen t and the Convention on mutual assistance in criminal matters and its Protocol;
- secondly, instruments based on the principle of mutual recognition , most notably the Framework Decision on the European Evidence Warrant.
In 2008, the Council adopted a Framework Decision on warrants that applies the principle of mutual recognition for judicial decisions when it comes to obtaining evidence for use in criminal proceedings.
A European Evidence Warrant can be issued in order to obtain evidence that already exists and is directly available in the form of items, documents or data.
It is issued using a standard form and translated into the official language of the executing State. The authorities of the issuing State must find that the evidence could also be obtained under national law in a similar case and that the evidence sought is necessary and proportionate for the proceedings in question.
It shall be recognised and acted upon within a fixed deadline unless there are applicable and relevant grounds for refusal. The execution of a European Evidence Warrant will not be subject to verification of dual criminality if:
- it is not necessary to carry out any search or seizure;
- the offence is punishable by a custodial sentence of at least three years and is mentioned on a list of offences in the Framework Decision.
The existing instruments in this area are fragmentary. A new approach is needed, based on the principle of mutual recognition while also taking into account the flexibility of the traditional system of mutual legal assistance:
- in April 2010, EU countries launched an initiative for the adoption of a Directive on the European Investigation Order ;
- the Commission is presently analysing the opportunity to put forward a proposal for two further instruments, one in the area of mutual recognition, the other in the area of admissibility of evidence. The latter could establish minimum rules for recognition of evidence presented to criminal courts in EU countries.
Those proposals are specifically aimed at practitioners and could bring considerable added value to the existing fragmented arrangements. It is regarded as a step forward in the fight against cross-border serious crime and for law enforcement across the EU.
Achievements in this area should also help to strengthen the security of European citizens.