The EU Law of Evidence – Development and Challenges for National Criminal Procedure System

Teresa Bedulskaja

MA in Law, Vilnius University

 

Introduction

It has to be admitted that the modern reality forces states to cooperate and even to join various international organizations. Meanwhile, international organizations working on their tasks pass binding legal acts that affect the law of their contracting states.

For a long time criminal law remained out of the scope of international law as it was considered to be the cornerstone of state sovereignity. Nowadays, also the criminal law is widely internationalised. This is especially true about the European Union (EU): criminal law of the EU Member States is quite significantly affected by norms enacted by the EU.

One might notice that modern EU criminal law is developing in two ways. First of all, the minimum requirements for criminalisation and penalties are established by the EU institutions. This is so-called vertical harmonization as criminal law norms are directly imposed by the EU on national criminal law systems. Secondly, in accordance with the principles of mutual recognition and mutual trust, norms regulating legal cooperation are passed (horizontal harmonization).

The multi-level character of European criminal procedure is, generally speaking, not as apparent as in the field of substantive criminal law,[1] but still significantly interferes with national legal systems. Unlike the rules in the field of substantive criminal law, the legal acts enacted in the field of criminal procedure in many occasions might have direct application and do not require further implementation.[2] This article will look at mutual recognition of evidence and the following approximation of criminal procedures in the EU Member States as well as discuss the impact of such an imposed recognition on national law.

 

 1. EU competence in the area of evidence law

The current legislative competences of the Union in the field of criminal procedure are shaped by Article 82 TFEU. On the basis of this provision, directives establishing minimum rules are adopted, aiming to facilitate mutual recognition of judgments and judicial decisions, as well as police and judicial co-operation in criminal matters. The abovementioned legal acts relate inter alia to mutual admissibility of evidence between Member States.

We should also be reminded that not only the EU legal acts, which are adopted in the area of criminal procedure, deal with evidence law. Some provisions can be found in other legislation such as the Directive on trafficking in human beings.[3] The Directive lists measures which should be applicable while investigating trafficking in humans (interception, covert surveillance, including electronic monitoring).

This article will only target the legal acts dealing with evidence law directly, leaving other related legislation aside. But firstly, a short look at the principles of EU evidence law.

 

 2. Principles of evidence law in the EU

The judicial cooperation in criminal matters within the EU is based on two basic principles – mutual legal assistance and mutual recognition. Mutual legal assistance follows a forum regit actum philosophy when the evidence received due to interstate cooperation as the result of the judicial cooperation is intended to be sent back to the requesting forum state. The mutual recognition philosophy, on the other hand, requires Member States to accept foreign decisions and execute them “as if they were their own”. Therefore, execution is strictly locus regit actum.[4] The objective of mutual recognition is to remove the possibility of political involvement and to avoid a second examination as to the substantive merits of the case. It may be possible to verify that a certain authority in another Member State has taken a decision, but the merits of that decision should, in principle, be beyond review.

It should be mentioned in this context that it is not always the domestic decision of Member State that has to be recognized, i.e. in case of mutual recognition of judicial decision, a court decision would be subject to recognition, however, if the European Arrest or Evidence Warrant would be issued on the basis of above-mentioned decision, the Warrant itself has to be recognised.[5] As legal scholars point it out, mutual legal assistance still dominates while dealing with supranational evidence law with some exceptions as regarding mutual recognition of evidence warrants[6].

 

 3. EU legal acts in the area of evidence law

Due to the fact that the EU was denied competence in the field of criminal law for quite a while, the usual forms of cooperation between Member States were applied and the legal acts typically used in international law were enacted. This is why first legal documents in the field of cross-border gathering and handling of evidence, the EU Convention from 2000[7] and its Protocol from 2001[8], were based on mutual legal assistance.

The Framework decision on freezing assets and evidence[9] constituted the next important step towards improving the free movement of evidence in the EU. Its features, such as the abolition of the double criminality requirement for the list of so-called “32 offences” and limitation of grounds for refusal to accept the freezing order definitely signified progress in the international cooperation. However, some legal scholars doubted whether the list of “32 offences” did not amount to breach of constitutional provisions: it concerned the equality issues, as not all offences on this list were covered by national criminal law.[10]

It should be mentioned that the said “32 offences” might be divided into three groups: (i) offences under international law, (ii) the so-called common offences which can be found in the criminal law of all the states, and (iii) the offences, which EU requires to criminalise. Thus, it is clear, that similar criminal activity is or must be punishable under the law of all Member States of the EU. The application of this measure with regard to similar but not identical criminal activity, on the other hand, may not constitute a breach of principle of equality in itself. If the collection and freezing of evidence would take place under national law, it would not require all the features of criminal offence definition established, it only would be necessary that the act committed would be punishable under criminal law.

Still, the scope of this Framework decision was not broad enough to cover all aspects of evidence law. The purpose of the act was to prevent evidence from destruction, transformation, moving, transfer and disposal of it. It did not regulate the matters of transmission of evidence between the Member States, thus, in order to get the frozen evidence from other Member State it was necessary to apply other legal acts such as Convention on mutual legal assistance[11] or bilateral or multilateral international agreements.

Such a system did not answer the needs of prosecutorial authorities or courts, and it also negatively affected defendants’ rights, such as the right to trial within a reasonable time. The situation had to be changed. In 2003, the Commission announced that several steps would be taken with respect to transmission of evidence. The European Evidence Warrant (EEW), which made it possible obtaining the already existing evidence, was meant to be the first step. Next, the legal acts on evidence, which does not exist but is directly accessible, and evidence, which does exist but is not accessible without using scientific methods, had to be adopted. The last step was meant to be the unification act, which would apply to all features of evidence law and repeal the former provisions.[12]

The first step towards improving free movement of evidence was already completed as the Framework Decision on European Evidence Warrant[13] was adopted in December 2008. It had to be transposed into Member States’ national law by January 2011. The European Evidence Warrant enables Member State authorities to issue decisions, which require the executing Member State to obtain objects, documents or data necessary and proportionate for the purposes of criminal proceedings, which could be used in proceedings, were they to be found on the territory of the issuing Member State.

Under Article 7(a) of the Framework decision, an EEW may only be issued if the objects, documents or data sought are necessary and proportionate to the purpose of the proceedings, and if they can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used. Some authors argue, that no safeguards protecting human rights exist, as no challenge may be brought on such grounds in the executing State.[14] It is probably undeniable, that application of this measure does to some extent limit the rights of the persons involved. Still, parallels can be drawn with the national rules. For example, the Lithuanian Code of Criminal Procedure[15] contains some provisions which enable the investigating officers or the court to request the corresponding officials in other state district to apply some investigative measures in order to avoid unnecessary delay or expenses.[16]  These investigative measures may not be challenged in the district court of delegation. Such system also limits the rights of persons. Of course, there is a difference between the other district of a state and the other state. However, in both situations, there exists a possibility to challenge the way the evidence is collected or the evidence itself. This can be achieved by applying to the destination state or district court, so the rights of individuals are protected. As new technologies are introduced into court process, challenging evidence and its collection becomes even more accessible.

Shortly after the adoption of the European Evidence Warrant, some Member States called for further improvement of transfer of evidence. This resulted in the Proposal for the Directive on European Investigation Order.[17] The objective of the proposed directive is to create single, efficient and flexible instrument for obtaining evidence located in another Member State in the framework of criminal proceedings.[18] The newly adopted directive should replace both the provisions of convention on mutual legal assistance and above-mentioned framework decisions. The main focus of this legal act is to cover all the investigative measures.

The newly proposed measure is harshly criticized by some legal scholars. For example, Peers points that “Although it is certainly desirable to consolidate the complex legal framework in this area, and some of the provisions of the proposed Investigation Order are unobjectionable, many of the changes proposed to the current legal framework would constitute a reduction in human rights protection and even […] an attack on the national sovereignty of Member States.”[19]

However, it is hard to agree that the proposed act constitutes such a threat. First of all, the protection of a person’s rights is ensured by granting the executing Member State discretion to apply another investigative measure which would achieve the same result as the measure provided for in the European Investigation Order by less coercive means (paragraph 10 of the preamble, art. 9).  This provision also shows that the state sovereignty is not so limited.

Secondly, although it is true that the wording of the directive contains no grounds to refuse an order on the basis of ne bis in idem, it should be borne in mind that various provisions of the Directive contain referral to the protection of fundamental rights (e.g. paragraph 17 of the preamble, paragraph 3 of art. 1). Lastly, there is a provision for refusal to recognise the order on the basic of immunity or a privilege under the law of the executing State (paragraph 1 of art. 10), which does include the possibility to take into account the principle of ne bis in idem.

 

Conclusions

As one might notice, the EU competence in the criminal procedure is shifting from traditional means of interstate cooperation towards a new legal order. This shift is clearly visible in the area of evidence law. Still, the aim to improve cooperation cannot always be achieved due to various impediments related to EU institutional structure and will of Member States. The proposed stages of harmonization of evidence law are excessive and duplicate each other. In the light of legal economy it would be more appropriate to adopt one legal act covering all the aspects of transmission of evidence, since the more legal acts implemented into national law, the more expensive it is, from the reprint of legal acts and new forms of legal documents and up to the principle of legal certainty.

 


[1] Klipp, A. European Criminal Law. An integrative approach. 2nd edition. Intersentia. 2012. p 225.

[2] Ibid

[3] Directive 2011136/EU of the European Parliament and of the Council of 5 April 2011 on preventing and com­bating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. [2011] OJ 110111. This directive replaced Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings.  OJ L20311.

[4] EU cross-border gathering and use of evidence in criminal matters. Towards mutual recognition of investigative measures and free movement of evidence? IRCP-series. Volume 37.

[5] Miettinen, S.  Criminal Law and Policy in the European Union. New York: 2013 p. 177.

[6] Krzysztofiuk, G. Europejski nakaz dochodzeniowy // Prokuratura i prawo. 2012. No 2. p. 81- 106.

[7] Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.  OJ C 197, 12.7.2000, p. 1–23;

[8]  Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. OJ C 326, 21.11.2001, p. 1–1.

[9] Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence. OJ L 196, 2.8.2003, p. 45–55. 

[10] Švedas, G. Tarptautinė teisinė pagalba baudžiamosiose bylose. Baudžiamojo persekiojimo perdavimas ir kitos savitarpio teisinės pagalbos baudžiamosiose bylose formos. Vilnius, 2008, p. 140.

[11] Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.  OJ C 197, 12.7.2000, p. 1–23;

[12] Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters, COM (2003) 688 final, p. 10.

[13] Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. OJ L 350, 30.12.2008, p. 72–92.

[14] Irvin, G. The European Evidence Warrant: an Introduction. ECBA Spring Conference, Potsdam, April 2007. P.  3.

[15] Lietuvos Respublikos Baudžiamojo proceso kodeksas. Valstybės Žinios, 2002. Nr. 37-1341, with further amendments.

[16] Art. 175, para 1. Separate orders.When investigative activities  have to be carried out in another place, the prosecutor or the investigating officer may undertake it or delegate to do this to the appropriate prosecutor or the investigating body. […]

[17] European Investigation Order in criminal matters. Initiative Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden. 2010/0817(COD).

[18] Proposal for a Directive of the European Parliament and the Council regarding the European Investigation Order in criminal matters. Explanatory Memorandum.

[19] Peers, S. The proposed European Investigation Order: attack on human rights and national sovereignty. © Statewatch ISSN 1756-851X. P. 1.