Evidence

The exchange of evidence across borders is becoming daily business for criminal defence lawyers. The ECBA has been paying close attention to this topic. It is a field where dual or multiple defence plays a key role. ECBA membership and attendance to conferences provides optimal networking opportunities to get to know defence lawyers with expertise in European and also other jurisdictions and exchange experience in this field.

Defence practitioners need to be able to answer these questions:
- How can I get evidence located abroad?
- How can I defend a request from abroad for gathering evidence in my jurisdiction?
- How can I defend against the use of evidence obtained abroad?

Accordingly the ECBA has formed a working group to promote the study and exchange of practical experience concerning these 3 questions.

Are you interested in joining this working group? Please contact the secretariat This email address is being protected from spambots. You need JavaScript enabled to view it..

Within the Council of Europe States but also beyond that, the Convention on Mutual Assistance in Criminal Matters of the Council of Europe and its Protocols (ETS 030, 099, 182) as well as the Cybercrime Convention (ETS 185) are key instruments, which also apply to countries that are not Members of the Council of Europe.

Within the European Union, MLA is giving way to Mutual Recognition in the field of evidence, following the introduction of the European Investigation Order (EIO) – Directive 2014/41/EU.

The current state of play of implementation is [1] :
- 12 Members States have implemented: Belgium, Estonia, Finland, France, Germany, Hungary, Italy, Latvia, Lithuania, Netherlands, Portugal and United Kindom.
- 14 Member States have not implemented yet
- 2 Members States do not take part in the EIO: Denmark, Ireland

In the past, there were three proposals in this area, but they were abandoned and the European Investigation Order is now the key instrument in this regard. The stated objective of the EIO Directive is to replace the mixture of mutual legal assistance and mutual recognition instruments in this field and to replace them with a single, efficient and flexible instrument for obtaining all types of evidence located in another Member State in the framework of criminal proceedings. It should be noted that Joint Investigation Teams (JIT) and the cross-border gathering of evidence within those teams have not replaced by this instrument. The ECBA has been involved in the debate on this instrument, seeking clearer guidance and campaigning with national legislators to ensure that the instrument is available to the defendant under the principles of equality of arms.

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[1] Source https://www.ejn-crimjust.europa.eu/ejn/EJN_Library_StatusOfImpByCat.aspx?CategoryId=120 (status as of 21.08.2017)

The ECBA has issued a Statement on the Member State initiative regarding the European Investigation Order in Criminal Matters 9145/10 (Brussels, 29 April 2010).

This Statement will be send to all Ministers of Justice of all Member States and to all Members of the European Parliament.
Please click here for the Statement.

A reply to the attention of Mr Holger Matt, signed by the Bundesminister der Justiz, Mrs. Sabine Leutheusser-Schnarrenbe has been received on 25 November 2010.
Please click here for the reply in German.
For the translation in English click here

The Belgium government and others have put forward a proposal for a European Investigation Order. The ECBA are in the process of drafting a response to this proposal, and welcome any views or thoughts from members of the Association.

Please click here for the Proposal for a Directive of the European Parliament and the Council regarding the European Investigation Order in criminal matters.

Please click here for the explanatory memorandum.