Jarlath Spellman Irish National Member Eurojust IIEA Justice Group 22 May 2009

1. European Evidence WarrantMutual recognition and judicial co-operation in criminal matters in the EU Jarlath Spellman Irish National Member Eurojust IIEA Justice Group 22 May 2009

2. 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

3. European Evidence Warrant • Evidence already existing and is clearly available • objects, documents or data obtained under production, seizure orders - including criminal records. • For example to facilitate a transfer of objects, documents or data from a search of a suspect’s premises • Excluded from scope inc- • 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

4. Why ? • To accelerate and simplify the process of gathering and transmitting evidence in criminal cases with a cross border element.

5. 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

6. 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

7. Contrast with wider categories of requests in incoming/outgoing requests via 2000 EU MLA convention via Criminal Justice Mutual Assistance Act 2008 • EEW relates to existing evidence • Type of proceedings for which EEW may issue • 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

8. 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 ….

9. 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: • 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 • Eurojust & EJN where appropriate to facilitate action • Breach of time limits to be reported to Eurojust • similar to EAW provisions

10. Article 15- Deadlines for recognition , Execution and Transfer • Time Limits & Deadlines for • Refusal of Execution or non recognition : • 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 : • The executing authority will take possession within 60 days • After receipt of EEW by competent executing authority

11. Article 16 Grounds for postponement, of recognition or execution • 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

12. 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

13. 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

14. 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.

15. 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

16. Other grounds for refusal • Immunities or privileges under law of executing state • Art 11 obligation …. executing authority shall recognise a European evidence Warrant

17. 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 mutualtrust

18. 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

19. 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

20. 584/JHA (13 June 2002) on the European arrest warrant and the surrender proce- dures between Member States, Council Framework Decision 2003/577/JHA (22 July 2003) on the execution in the Euro- pean Union of orders freezing property or evidence, and Council Framework Decision 2005/214/JHA (24 February 2005)

21. 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).

22. 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 jspellman@eurojust.europa.eu