The elimination of border controls within the EU has considerably facilitated the free movement of citizens, but has also made it easier for criminals to operate across borders. Consequently, effective cooperation within the EU on obtaining evidence in criminal matters is necessary.
The existing rules on obtaining evidence in criminal matters in the EU are based on mutual assistance treaties, most notably the Convention on Mutual Assistance in Criminal Matters, and mutual recognition instruments, most notably the Framework Decision on the European Evidence Warrant.
- The Convention covers mutual assistance in general such as taking statements from suspects and witnesses and specific forms of mutual assistance, such as the use of videoconferencing and interception of and obtaining evidence by means of search and seizure. The Convention also contains rules on telecommunication. Furthermore, the Protocol to the Convention contains rules on obtaining information regarding bank accounts and banking transactions.
- Requests for mutual assistance shall, as a general rule, be transmitted directly between the issuing and executing authority. Unless a ground for refusal is invoked by the executing authority, the request shall be executed as soon as possible and if possible within the deadlines indicated by the issuing authority.
- In order to ensure the admissibility of the evidence obtained, the authorities of the requested State shall comply with the formalities and procedures indicated by the authorities of the requesting State provided that they are not contrary to fundamental principles of law in the requested State.
The Framework Decision
- The Framework Decision applies the principle of mutual recognition to judicial decisions for the purpose of obtaining evidence for use in criminal proceedings. A European Evidence Warrant (EEW) can be issued in order to obtain evidence that already exists and is directly available in the form of objects, documents or data.
- It shall be issued in a standard form and translated into an official language of the executing State. The authorities of the issuing State must assess that the evidence could also be obtained under national law in a similar case and must be satisfied that the evidence sought is necessary and proportionate for the proceedings in question.
- It shall be recognised and executed within a fixed deadline unless a ground for refusal applies. The execution of a European Evidence Warrant shall not be subject to verification of dual criminality (i.e. that the act committed is considered a criminal offence in both the issuing and the executing State) if it is not necessary to carry out search or seizure or if the offence is punishable by a sentence of at least three years' imprisonment and is mentioned on a list of offences in the Framework Decision.
- In order to ensure the admissibility of the evidence obtained, the authorities of the executing State are obliged to comply with the formalities and procedures indicated by the authorities of the issuing State provided that they are not contrary to fundamental principles of law in the executing State.
The European Commission is currently considering whether any further action is necessary in order to improve co-operation between Member States on obtaining evidence in criminal matters. In April 2010, seven Member States presented an initiative for a Directive of the European Parliament and the Council regarding the European Investigation Order in criminal matters ("EIO"). This proposal is presently in the process of being negotiated between the co-legislators.
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