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.

As presented by Vânia Costa Ramos at the conference
The European Evidence Warrant, The Acquisition and Admissibility of Foreign Evidence
Dublin, 9-10 October 2009, Ireland

Please click here for the presentation.

The Framework Decision of the European Evidence Warrant (EEW) is an instrument that is intended to further improve judicial co-operation by applying the principle of mutual recognition to a judicial decision for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters in different Member States. The EEW sets in place mutual legal assistance procedures in two phases, the first phase mainly deals with pre-existing evidence, whereas phase two will cover evidence gathering including the taking of witness statements. During the interim period the EEW and mutual legal assistance procedures will run in parallel. The draft proposal in many ways shares the characteristics of the European Arrest Warrant and the objective is to streamline and speed up the process by which evidence is transferred to another Member State.

The latest version of the text available on the Council website and appears to be the formal version following linguistic checks; however there does not appear to be any substantive changes since Autumn 2007. We understand that the text is due to be finalised and formally adopted by the end of the year.
Therefore we are about to embark on the next phase in the EEW, the implementation international legislation by 2009. The ECBA are keen to assist and encourage Bar Associations throughout Europe to engage with the national legislators to identify potential problems in the new system and to ensure that procedural safeguards are considered and incorporated in the implementing legislation. In particular, the EEW does not specify that the mechanism should be available for use by the defence or accused with this being left as an option for each Member State to decide.

The Council Framework Decision 2008/978/JHA of 18 December 2008 on on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.
Please click here for the Framework Decision.

George Gebbie Scottish advocate and member of the European Criminal Bar Association’s cross-border evidence working group, spoke at the Law Society’s Criminal Justice Conference on the subject of the EU evidence exchange warning.
Please read more by clicking on following link: Law Society Gazette.

Introduction
As presented by Louise Hodges at the ECBA conference in Amsterdam.

Current version of the European Evidence Warrant

Paper drafted for a meeting with the Home Office in the UK in September 2007
Ms Louise Hodges.

The European Evidence Warrant: An Introduction
As presented by Gavin Irwin at the ECBA conference in Potsdam.

Members who are interested in joining the working group should contact in the first instance This email address is being protected from spambots. You need JavaScript enabled to view it..

“EU cross-border gathering and use of evidence in criminal matters. Towards mutual recognition of investigative measures and free movement of evidence?”

This follow-up study which is based on replies to a questionnaire from ten Member States, was conducted by Gent University and aimed to obtain up to date information on the national laws of the European Union’s Member states on evidence and to analyze that information in the light of recent legal developments, in particular the European Evidence Warrant.

With this study, the Commission also intended to initiate preparatory work on a new legal instrument covering all types of evidence and replacing the existing regime of mutual legal assistance within the EU by the mutual recognition  principle. Finally, the study aimed at reaching a conclusion on the need to improve cooperation on the gathering, obtaining and admissibility of evidence in criminal matters and, if there was this need, to identify the way to proceed.

Please click here for the study (PDF).

On 11 November 2009 the Commission adopted a Green Paper on obtaining evidence in criminal matters (ref.: COM(2009)624).
Click here to go to the Green Paper.

The ECBA has replied in a statement to the Commission on 20 January 2010.
Please click here for the ECBA statement.

Vania Costa Ramos presented the ECBA’s position at the ECBA’s conference in Antwerp in April 2010 to the delegates and to Peter Csonka, Head of Unit Criminal Justice.  In addition she comments on the studies on legal immunities and privileges.
Click here for her presentation.