Transcript European Evidence Warrant Mutual recognition and judicial

European Evidence Warrant
Mutual recognition and judicial cooperation in criminal matters in the
EU
Jarlath Spellman
Irish National Member Eurojust
IIEA Justice Group 22 May 2009
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Council Framework Decision of 18 December
2008/978/JHA
 Proposal built on agreement at Tampere
Council 1999
 EEW could be seen as a first step towards an
EU Mutual Recognition Instrument for Legal
Assistance
 First part of an EU scheme to replace existing
Mutual Legal Assistance
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European Evidence Warrant
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Evidence already existing and is clearly available
 objects, documents or data obtained under production,
seizure orders - including criminal records.
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For example to facilitate a transfer of objects, documents or
data from a search of a suspect’s premises
Excluded from scope inc-
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a.
b.
c.
d.
e.
Taking of evidence such as interviews of witnesses , statements or
hearings
Forensic samples from the body in particular DNA samples
Real-time evidence- electronic interception of communications or
monitoring of bank accounts
Evidence requiring analysis of existing objects,documents or data
Evidence related to data retention
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Why ?
To accelerate and simplify the process of
gathering and transmitting evidence in criminal
cases with a cross border element.
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Article 2 Definitions- Issuing State /authority,
Executing State/ Authority
Article 4 –Scope of EAW –
points to realistic limit of potential use in serious cross
border crime investigations
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Art 4. Matters not included
Interviews, statements, hearings of
witnesses/experts
 No body samples including DNA
 No telephone intercepts, covert surveillance,
monitoring of bank accounts
 Contrast with wider categories of requests in
incoming/outgoing requests via 2000 EU MLA
convention via Criminal Justice Mutual
Assistance Act 2008
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Contrast with wider categories of requests in
incoming/outgoing requests via 2000 EU MLA
convention via Criminal Justice Mutual Assistance
Act 2008
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EEW relates to existing evidence
Type of proceedings for which EEW may
issue
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Article 6- Content and Form of EAW
Title II Procedures and safeguards for the issuing State
 Article 7 – Conditions for ussuing the EEW
 Article 8- Transmission of the EEW
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Article 10- Personal Data limits use of EEW
Article 11- Recognition and execution
Article 12 – Formalities to be followed in Executing
State –
To build mutual trust specific obligation for
executing authority to comply with all formalities
expressly indicated by requesting authority unless
otherwise provided for in EEW ……
Article 13 Grounds of non recognition or non
execution ….
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Article 14 Double Criminality
No dual criminality required for execution of the
EEW IF not necessary to carry out a search of private
premises
Otherwise a list of offences for which EEW can be
used:
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Participation criminal organization, terrorism, THB, child sex,
drug & weapons trafficking, corruption, money laundering,
fraud on EU budget, counterfeiting currency, computer crime,
environmental crime, facilitation of unlawful entry/residence,
murder, GBH, trafficking organs, vehicles, kidnap, racism,
rape, arson, acts of violence, damage and theft
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Eurojust & EJN where appropriate to facilitate action
Breach of time limits to be reported to Eurojust
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similar to EAW provisions
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Article 15- Deadlines for recognition ,
Execution and Transfer
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Time Limits & Deadlines for
Refusal of Execution or non recognition :
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30 days of receipt of the EEW (request)
If materials are already held by executing authority or
or grounds for postponement exist per Article 16 :
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The executing authority will take possession within 60 days
After receipt of EEW by competent executing authority
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Article 16 Grounds for postponement, of
recognition or execution
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If forms incomplete
If damage will be caused to existing criminal investigation
If objects being used in other proceedings
Article 17- Obligation to inform
Article 18- Legal remedies- legal challenges
only in issuing State
Article 19- reimbursement
Title IV – Final provisions
Requests before 19 January 2011-existing
MLA Instruments apply Art-22
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Article 23 – Implementation
19 January 2011
Article 24 – Annual Review obligation by MS to
report to Council and Commission of any
dificulties experienced in executing EEWs re
Article 13(1) and also report by each MS at
start of each calender year application of non
recognition or non execution grounds per
Article 23(4) in the previous year
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Grounds of refusal of request are limited
 Where act under investigation in requested MS
is not a crime
 Offences in requesting State must be punishible
by 3 year custodial sentence
What kind of offences does EEW apply ?
32 offences
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Territoriality clause Article 13 para 1 (f) (i) of
Clause allows a requested member state not to
recognise EEW request if it considers crime
under investigation was committed fully or
partially within its territory.
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Safeguards
Authority issuing the EEW
-limited to Judges, Investigating Magistrates, public
prosecutors
- must be clear that they would be able to obtain
it in their own state
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Other grounds for refusal
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Immunities or privileges under law of executing
state
Art 11 obligation …. executing authority shall
recognise a European evidence Warrant
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Implementation period
 January 2011
Mutual Recognition –
Dependent on trust – Eurojust experience of EAW –
Practical problems – translation, competing EAWs ,
speciality
Ne bis in idem, requests to prosecute for additional offences
not in
 Council final report on the fourth round of mutual
evaluations April 2009
 Several recommendations –some specific to MS
 Necessity stressed by several MS to take further steps to
approximate legislation and identify common procedural
standards as a means of enhancing mutual trust
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The Framework Decision on the EAW
584/JHA (13 June 2002) first instrument in the
field of criminal law implementing the principle
of mutual recognition – generally considered a
success
A number of other FW instruments inc –
Mutual recognition of Confiscation Orders
Organisation of EU Asset recovery offices
freezing property or evidence
Recognition of financial penalties
Proposed mutual recognition of criminal
convictions
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Conclusions;
EEW text is limited in scope and effect from
original proposal in order to achieve consensus
It is likely to be expanded in its use after peer
evaluation with agreement of Member States eg
for requests to obtain objects
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584/JHA (13 June 2002) on the European arrest
warrant and the surrender procedures between Member States, Council
Framework Decision 2003/577/JHA (22 July
2003) on the execution in the European Union of orders freezing property or
evidence, and Council Framework Decision
2005/214/JHA (24 February 2005)
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Article 24(3) Commission shall establish a report
not later than 19 January 2014 based on
previous reports by MS to Council and
Commission to consider……(inter alia) …..
Whether following provisions be repealed or modified;
Article 13(1), and (3)
And Article 23(4).
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Objective to create an effective mutual
recognition instrument through an evaluation
process
Also this scheduled review process not later than
2014 enables consideration further substantial
amendment of EEW to be wider in scope
ultimately perhaps to replace all existing MLA
instruments within the European Union.
Jarlath Spellman, Irish National Member , Eurojust , The Hague.
Eurojust [email protected]
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