Taking evidence in a criminal case

A key element in a criminal investigation procedure is to establish whether a person is guilty of committing an offence. Effective cooperation between EU countries in obtaining evidence in relation to criminal matters is key to efficiently fight cross-border crime in the EU.

European investigation order

The Directive regarding the European investigation order in criminal matters was adopted on 3 April 2014 and EU countries had to transpose the directive into their national legal systems by 22 May 2017. Denmark and Ireland are not bound by this instrument.

Directive 2014/41/EU regarding the European investigation order in criminal matters

What is it?

A European investigation order is a judicial decision, which has been issued or validated by a judicial authority of one EU country, requesting another EU country to carry out one or more specific investigative measure(s) to obtain evidence. A European investigation order may also be issued to obtain evidence that already exists.

The European Investigation Order is based on mutual recognition, which means that the executing country is in principle obliged to recognise and ensure execution of the request of the other country, in the same way and under the same modalities as if the investigative measure concerned had been ordered by an authority of the executing country. The execution of the Order can be refused only in specific cases.

The directive creates a single comprehensive framework for investigative measures with a large scope. The investigative measures would, for example, include hearing of witnesses, telephone interceptions, covert investigations, information on banking operations.

How does it work?

A European investigation order is issued using a standard form and translated into the official language of the executing country. It must be recognised within a fixed deadline of 30 days, and the investigative measures requested must be carried out within 90 days following the taking of the decision on the recognition and execution.

In July 2021, the European Commission adopted a report assessing the implementation of the Directive regarding the European investigation order in criminal matters. The report describes the state of play of the Directive’s implementation by Member States, focusing on the main provisions which are crucial for the smooth functioning of the EIO. It also provides some data relating to the Directive’s application by Member States.

Electronic evidence

Obtaining electronic evidence (e-evidence), such as information on the holder of an email account or the timing and content of messages exchanged via Facebook messenger, for criminal investigations often has cross-border implications, as the data may be stored or the service provider located in another EU country or somewhere else in the world.

Traditional judicial cooperation tools are considered too slow in this context. Work is ongoing on solutions to equip judicial and law enforcement authorities with modern investigation tools to improve their access to e-evidence.

Taking evidence in a civil and commercial case

Simplifying and accelerating cooperation between courts in the taking of evidence is important in judicial proceedings.

The Regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters sets out the relevant rules.

This Regulation applies to all EU Member States except Denmark.

Both requesting and requested courts must use the prescribed document forms.

On 25 November 2020 a revised version of the Regulation ((EU) 2020/1783) was adopted. One major objective of the proposal is to adapt the cooperation mechanisms and transmission workflows in the regulation to the technical developments provided by the digitalization. The Regulation will become applicable partially from 1 July 2022. However, the decentralised IT system as an obligatory means of communication to be used for the transmission and receipt of requests, forms and other communication will only start applying from the first day of the month following the period of three years after the date of entry into force of the implementing acts referred to in Article 25 (for further details see Article 35 of Regulation (EU) 2020/1783)).