The European Evidence Warrant & Investigation Order

Introduction

The EU’s European Arrest Warrant allows the justice authorities in one Member State to seek evidence from another Member State’s police if the offence is one of 32 serious offences (including terrorism, rape and human trafficking).  The police and judicial authorities in one Member State have to recognise the evidence warrant issued by another Member State’s authorities with only limited grounds for refusal.  The introduction of the European Arrest Warrant was an important breakthrough in enabling the police to bring proceedings against criminals who had evaded justice because evidence of their crime was not available in the country where they lived.

The evidence warrant has however been criticised for being ineffective in many cases and for lacking appropriate civil liberties safeguards for the suspect.  In 2009 seven EU Member States proposed that it should be replaced with a European Investigation Order.¹

This briefing paper explains the history, purpose and effect of the European Evidence Warrant (EEW).  It also looks briefly at the proposed European Investigation Order (EIO).  A separate SEE briefing looks at the European Arrest Warrant.

Background

The collection and sharing of evidence was already possible in Europe as a result of the 1959 Convention of the Council of Europe and an EU Mutual Assistance Convention of 2000.  The EEW built on those Conventions but of course only applies to the Member States of the EU, whereas the Council of Europe Convention applies to all 45 of its member countries.

The difficulty with existing European legal co-operation measures was that there was not automatic recognition of the validity of the request.  The EEW is based on the principle of mutual trust between EU Member States.  Member States trust each other’s police and judicial authorities to only issue an EEW in accordance with the law and when it is appropriate to do so.  The receiving state has to implement the EEW; there are only limited grounds for refusing to do so but a proportionality test discourages its use for trivial offences.

First proposed in 2003, the EEW was agreed in principle by the Council of Ministers in June 2006 but legislation was not adopted until 2009.  The legislation came into force in January 2011.

The European Evidence Warrant

An EEW must be issued by the appropriate judicial or investigating authorities in the issuing state, such as a public prosecutor, magistrate or judge.  It must request existing evidence from the executing state; this means that certain types of evidence, such as interviews, statements, DNA and other bodily material, and recordings of intercepted communications, can only be requested if they are known to exist already.  The EEW applies to criminal and not civil cases.

The principle of dual criminality (that an offence in the issuing state must also be an offence in the executing state) is set aside for 32 serious offences.  These include: rape; murder; terrorism; hijacking of ships or aircraft; kidnapping; human trafficking; child sexual exploitation or child pornography; arson; and others.  For all other cases, dual criminality is also set aside except if a search or seizure of property is required.

The following grounds can be used for refusing to execute an EEW:

• it would constitute double jeopardy;
• it would require a search or seizure and it is not an offence in the executing state;
• because the executing state has no means to do so;
• if it has not been issued by the correct authority;
• if the offence is governed by privilege or immunity in the executing state;
• if the paperwork has not been properly completed;
• if the offence was committed on the territory of the executing and not the issuing state;
• if to do so would harm national security, jeopardise the source of the information or require classified intelligence material.

Where an executing state declines to execute an EEW it must consult the issuing state and inform Eurojust.

On receipt of an EEW, the executing state must act within 30 days.  A court can postpone the execution of the warrant on limited grounds, for example because it would interfere with an on-going investigation in the executing state.

Member States must ensure that there are legal remedies available to those who wish to challenge an EEW, for example through court procedures.

As the EEW has only been available in practice for about a year it is not possible to judge its effectiveness and whether the concerns raised while the legislation was being debated were justified.  The fact that the group of seven Member States mentioned above proposed a replacement for the EEW before the EEW legislation had come into force suggests serious scepticism about its effectiveness.  This criticism derives in part from the fact that the EEW only applies to existing evidence; an EEW cannot result in a new investigation in order to obtain additional evidence.  Critics of the EEW argued that this limits its value.

Other critics of the EEW were concerned that such the warrants could be used in ways which would violate the human rights of suspects.  They pointed out, for example, that the absence of a dual criminality protection meant that an abortion clinic in a Member State in a country where abortion is legal could be searched for evidence on the basis of an EEW from a country where abortion is illegal.  This particular example was frequently cited before the law came into effect but there is no known example of this having happened.

The European Investigation Order

The proposal for a European Investigation Order was endorsed by the European Council in 2009 as a key part of the Stockholm package of justice and home affairs measures.  The idea was to have a more holistic evidence tool, one that would enable new investigations to be initiated and which would replace not just the EEW but other mutual assistance measures in EU and Council of Europe conventions.  The proposal was a response to the perceived inadequacies of the EEW.  The Council of Ministers reached political agreement on a revised text in December 2011 that is now being discussed in detail by Member States.

The legal structure for the EIO is very similar to that of the EEW – the issuing state sends the document to the executing state on the authority of a judge, magistrate or prosecutor and the executing state must carry out the order ordinarily within 30 days.  There is provision for dual criminality with the exception of the same list of serious offences as the EEW to which it cannot apply.  An executing state may also be able to adopt a different method of investigation than that requested by the issuing state.

The crucial difference from the EEW is that an EIO can require not merely existing evidence to be transmitted to the issuing state but require new investigations.  In certain circumstances a person already in custody could be temporarily transferred to the issuing state to assist with a criminal investigation.  Witnesses could also be interviewed in a video-conference or by telephone.

A sentence in the preamble to the draft directive provides for a test of proportionality:

The EIO should be chosen where the execution of an investigative measure seems proportionate, adequate and applicable to the case in hand.

This is important because the Association of Chief Police Officers in the UK said that they would not support the EIO unless there were to be a proportionality test as they would otherwise run the risk of being overwhelmed with orders.

Future Developments

The intention of Member States is that the EIO should replace the EEW in 2014 or 2015.  Negotiations have been slow so far and much remains to be agreed before the Council and the Parliament could approve a final text.

Human rights concerns will continue to loom large in discussions of the proposed EIO.  The British Government opted in to the EIO proposal in July 2010 and the final text will require UK legislation before it can come into force here.  Reservations have been expressed about the proposal in the UK Parliament, emphasizing the importance of a dual criminality test and a test of proportionality.