Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters
Date: 2003-11-14
Institutions: European Commission
Subjects: European judicial area, area of freedom, security and justice, criminal procedure, framework decision, mutual recognition principle, proof

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 14.11.2003
COM(2003) 688 final

2003/0270 (CNS)

Proposal for a

COUNCIL FRAMEWORK DECISION

on the European Evidence Warrant for obtaining objects, documents and data for use in
proceedings in criminal matters

(presented by the Commission)

EXPLANATORY MEMORANDUM

1.

1.

2.

INTRODUCTION

This  proposal  for  a  Council  Framework  Decision  applies  the  principle  of  mutual
recognition  to  a  European  warrant  for  the  purpose  of  obtaining  objects,  documents
and data for use in proceedings in criminal matters. The European warrant is referred
to  hereafter  as  the  European  Evidence  Warrant.  It  will  result  in  quicker,  more
effective  judicial  co-operation  in  criminal  matters,  and  will  replace  the  existing
mutual  assistance  regime  in  this  area  in  line  with  the  conclusions  of  the  Tampere
European Council. Minimum safeguards for such co-operation are also introduced.

The proposal  focuses on objects, documents  or  data  obtained  under  procedural  law
measures such as production orders and search & seizure orders. It includes requests
for  copies  of  criminal  records.  It  does  not  address  taking  statements  (in  whatever
manner)  from  suspects,  defendants,  witnesses  or  victims.  Nor  does  it  address
procedural  investigative  measures  which  involve  obtaining  evidence  in  real-time,
such as interception of communications and monitoring of bank accounts. Although
this  proposal  does  not  cover  the  obtaining  of  these  other  types  of  evidence,  the
Commission considers it to be the first step towards replacing the existing regime of
mutual assistance within the European Union by a single EU body of law based on
mutual recognition and subject to minimum safeguards.

3.

The background to this proposal is explained below.

1.1.

National approaches for obtaining evidence

4.

Member  States’  legal  systems  use  a  variety  of  procedural  measures  during  the
process of collecting evidence for proceedings in criminal matters. These include:

1.1.1.

Preservation powers.

5.

At international level, the  Council  of Europe 2001 Convention  on Cybercrime1 has
introduced  a  distinction  between  “preservation  orders”  and  “seizure”  orders.
Preservation orders apply only to third parties, and require them to preserve evidence
without handing it over to the competent investigating authorities. A separate order is
then required for the disclosure or production of the evidence.

1.1.2.

Seizure powers.

6.

Seizure  goes  beyond  mere  preservation  of  the  evidence  by  involving  (where
necessary) the temporary possession of the evidence by the competent investigating
authorities.  It  applies  to  evidence  under  the  control  of  suspects  as  well  as  third
parties.

1

Council of Europe, European Treaty Series No 185 (see http://conventions.coe.int).

2

                                                
7.

Seizure  is  a  commonly  accepted  notion  in  national  and  international  criminal  law,
although  its  scope  and  modalities  may  vary.  All  Member  States  have  given  their
police  and  judicial  authorities  powers  to  seize  evidence.  Seizure  powers  can  be
exercised  by  judicial  authorities  and,  in  certain  circumstances,  by  law  enforcement
authorities under their own powers.

1.1.3.

Powers to require production / disclosure of evidence.

8.

9.

10.

11.

In  some  Member  States,  judicial  authorities  have  general  powers  to  require  third
parties to disclose evidence. These powers rely on the co-operation of the third party.
Where such co-operation is lacking, the judicial authority can use a search order to
seize the evidence.

Other  Member  States  have  a  specific  investigative  power  known  as  a  “production
order”  used  for  obtaining  evidence  (in  particular  documents)  from  a  third  party.
These  powers  can  be  limited  to  serious  offences  and  to  specific  categories  of
evidence  (such  as  documents  held  in  confidence),  or  they  can  be  a  more  general
power.  “Production  orders”  are  coercive  since  they  place  the  third  party  under  an
obligation to hand over the evidence. Sanctions – including criminal sanctions – are
used to ensure  co-operation. Nevertheless, production  orders  are  less  intrusive  than
search and seizure powers.

Production orders can be useful when a third party is content to co-operate but, for
legal reasons such as liability issues associated with breaching the confidentiality of
its  customers,  it  would  rather  be  forced  to  disclose  evidence  than  to  co-operate
voluntarily  with  the  competent  investigating  authority.  In  other  circumstances,
however,  it  may  be  necessary  to  search  the  premises  of  a  third  party  to  obtain  the
evidence.  This  includes  the  situation  where  there  is  a  real  risk  that  the  third  party
might destroy the evidence.

All  these  production  powers  apply  only  to  material  that  already  exists.  Separate
powers  are  used  for  “real-time”  disclosure  of  information,  such  as  orders  for  the
interception of communications or the monitoring of bank account transactions.

1.1.4.

Search & seizure orders

12.

13.

Member  States’  legislation  on  entering  and  searching  premises  contain  significant
differences.  In  some  Member  States,  the  power  is  limited  only  to  serious  offences.
Other Member States have a much wider power available for the investigation of all
offences.

The  European  Convention  for  the  Protection  of  Human  Rights  and  Fundamental
Freedoms  (ECHR)  provides  the  minimum  standard  for  safeguards  for  search  and
seizure.  However,  within  this  framework,  there  are  significant  variations  in  the
safeguards. These include: the level of certainty that  evidence is on the premises to
be  searched;  the  time  of  day  when  search  powers  can  be  used;  notification  of  the
person whose premises  have been  searched;  the  rules  applicable  when the occupier
of premises is absent; and the need for independent third parties to be present at the
search.

3

1.2.

14.

15.

16.

17.

Existing international co-operation mechanisms to obtain evidence

The Council of Europe 1959 Convention on Mutual Assistance in Criminal Matters2
provides the basic framework for co-operation on obtaining evidence. This provides
for the execution of requests for mutual assistance to be executed in accordance with
the  law  of  the  requested  State,  and  provides  a  number  of  grounds  of  refusal  for
mutual  legal  assistance.  The  1959  Convention  has  been  supplemented  in  order  to
improve co-operation by its additional protocols of 19783 and 20014. Within the EU,
the 1959 Convention has been supplemented by the 1990 Schengen Convention5, the
EU Convention of May 2000 on Mutual Assistance in Criminal Matters6 and its 2001
Protocol7. The EU 2000 Convention and its 2001 Protocol have not yet entered into
force.

Despite  the  improvements  introduced  by  these  instruments,  co-operation  on
obtaining evidence is nevertheless still carried out using traditional mutual assistance
procedures. This can be slow and inefficient. Moreover, differences in national laws
(as described in section 1.1) result in barriers to co-operation.

The variation in national laws on search and seizure is mirrored by differences in the
extent to which Member States are able to provide mutual assistance. Under Article 5
of  the  1959  Convention,  each  Contracting  Party  may  declare  that  the  execution  of
letters  rogatory  for  search  or  seizure  of  property  may  be  made  dependent  on  one  or
more of the following conditions: dual criminality exists; the offence is extraditable in
the requested Party; or the execution must be consistent with the law of the requested
Party.

Article  51  of  the  1990  Schengen  Convention,  however,  limits  the  possibility  for
Member  States  to  make  use  of  such  reservations  under  the  1959  Convention:
Member  States  may  not,  according  to  Article  51,  make  the  admissibility  of  letters
rogatory  for  search  and  seizure  dependent  on  conditions  other  than  the  following.
First,  that  the  offence  is  punishable  under  the  law  of  both  Member  States  by  a
custodial sentence of a maximum of at least six months, or is punishable under  the
law of one of the two Member States by an equivalent penalty and under the law of
the other as an infringement which is prosecuted by administrative authorities where
the  decision  may  give  rise  to  proceedings  before  a  criminal  court.  The  second
condition is that the execution is otherwise consistent with the law of the requested
Member State.

2

3

4

5

6

7

Council of Europe, European Treaty Series No 30.
Council of Europe, European Treaty Series No 99.
Council of Europe, European Treaty Series No 182.
Convention  of  19  June  1990  implementing  the  Schengen  Agreement  of  14  June  1985  on  the  gradual
abolition of checks at the common borders, OJ L 239, 22.9.2000, p. 19.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
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.

4

                                                
18.

Under this proposal, these existing mutual assistance procedures  would be replaced
by a European Evidence Warrant based on the principle of mutual recognition. The
following benefits would result.

–  A request made by judicial decision from another Member State will be  directly
recognised without the need for its transformation into a national decision (by way
of an exequatur procedure) before it can be enforced.

–  Requests will be standardised by the use of a single form.

–  Deadlines will be laid down for the execution of requests.

–  Minimum safeguards will be introduced both for the issuing of a request and for

its execution.

–  The  grounds  for  refusing  to  execute  requests  will  be  limited.  In  particular,  dual
criminality will not be a ground of refusal except for a transitional period for those
Member  States  that  have  already  made  execution  of  a  request  for  search  and
seizure dependent on the condition of dual criminality.

1.3.

19.

20.

The principle of mutual recognition

At  the  European  Council  in  October  1999  in  Tampere,  it  was  agreed  that  the
principle  of  mutual  recognition  should  become  the  cornerstone  of  judicial  co-
operation in both civil and criminal matters, including for pre-trial orders in criminal
investigations.

The  European  Council  also  asked  the  Council  and  the  Commission  to  adopt,  by
December  2000,  a  programme  of  measures  to  implement  the  principle  of  mutual
recognition  in  criminal  matters8.  The  first  instrument  to  be  adopted  on  mutual
recognition in criminal matters is the Council Framework Decision of 13 June 2002
on  the  European  arrest  warrant  and  the  surrender  procedures  between  Member
States9.

21.

The programme of measures attached the highest priority (priority 1) to the following
action:

“2.1.1.

Orders for the purpose of obtaining evidence

Aim: To  ensure  that  evidence  is  admissible,  to  prevent  its  disappearance  and  to
facilitate  the  enforcement  of  search  and  seizure  orders,  so  that  evidence  can  be
quickly  secured  in  a  criminal  case  (point  36  of  the  conclusions  of  the  Tampere
European  Council).  Article  26  of  the  European  Convention  on  the  Transfer  of
Proceedings  in  Criminal  Matters  of  15  May  1972  and  Article  8  of  the  Rome
Convention of 6 November 1990 on the Transfer of Proceedings in Criminal Matters
should be borne in mind.

8

9

OJ C 12, 15.01.2001, p. 10.
OJ L 190, 18.07.2002, p. 1.

5

                                                
Measure 5: Seek feasible ways of:

-

-

ensuring that the reservations and declarations provided for in Article 5 of the
European Convention on Mutual Assistance of 1959, supplemented by Articles
51  and  52  of  the  Convention  implementing  the  Schengen  Agreements  with
regard  to  coercive  measures,  are  not  invoked  between  Member  States,  in
particular  in  the  field  of  combating  organised  crime,  laundering  of  proceeds
from crime, and financial crime,

ensuring that the grounds for refusal of mutual aid provided for in Article 2 of
the  1959  Convention,  supplemented  by  Article  50  of  the  Convention
implementing  the  Schengen  Agreement,  are  not  invoked  between  Member
States.

Measure 6: Drawing  up  of  an  instrument  concerning  the  recognition  of  decisions
on  the  freezing  of  evidence,  in  order  to  prevent  the  loss  of  evidence  located  in  the
territory of another Member State.”

The  Council  Framework  Decision  of  22  July  2003  on  the  execution  in  the
European Union of orders freezing property or evidence

Measure 6 of the programme of measures is fulfilled by the Framework Decision on
the execution in the European Union of orders freezing property or evidence10. This
requires the mutual recognition of orders issued for the purpose of freezing evidence
with a view to its eventual transfer to the issuing State, or for the purpose of freezing
property with a view to its eventual confiscation. The Framework Decision applies to
orders issued by a judicial authority, as defined under national law, in respect of any
criminal offence.

The need for further action on mutual recognition of orders to obtain evidence

The Framework Decision on freezing orders deals with only part of the spectrum of
co-operation  with  respect  to  evidence.  Indeed,  the  purpose  of  the  Framework
Decision  is  explicitly  limited  to  provisional  measures  to  “prevent  the  destruction,
transformation,  moving,  transfer  or  disposal  of  ...  evidence”.  In  some  cases,  such
provisional action prior to transfer of the evidence to another Member State will not
be necessary.

There is also a need to resolve significant outstanding problems in co-operation with
respect to evidence falling within the scope of the Framework Decision on freezing
orders. For example, the Framework Decision explicitly provides that any additional
coercive  measures  rendered  necessary  by  the  freezing  order  should  be  taken  in
accordance with the applicable procedural rules of the executing State11. This leaves
open 
the
circumstances  of  a  particular  case,  the  national  procedural  rules  do  not  allow  for  a
search to be carried out in order to seize evidence.

that  co-operation  might  be 

ineffective  where, 

the  possibility 

in 

1.4.

22.

1.5.

23.

24.

10 
11

OJ L 196, 2.8.2003, p. 45.
Article 5(2).

6

                                                
25.

26.

27.

1.6.

28.

29.

Moreover, the Framework Decision requires the freezing order to be accompanied by
a request for the transfer of the evidence to the issuing Member State (or a statement
that such a request will be forthcoming). Normal mutual assistance rules apply to this
transfer.  This  means  that,  with  the  exception  of  dual  criminality,  other  grounds  of
refusal  for  mutual  assistance  will  continue  to  apply.  As  a  result,  there  will  be  a
substantial  difference  –  at  least  in  theory  –  between  the  rules  applicable  to  the
freezing of evidence  (mutual  recognition  principles)  and  the  rules  applicable  to  the
subsequent transfer of the evidence (mutual assistance principles).

The  Final  Report  on  the  first  evaluation  exercise  on  mutual  legal  assistance  in
criminal matters12 saw the additional stage in the transfer of material relating to the
execution  of  the  requests  as  “a  pointless  requirement,  which  could  hardly  be
regarded  as  providing  additional  guarantees,  and  was  therefore  simply  a  cause  of
delay”. Recommendation 8 of the Final Report therefore called upon Member States
to “simplify the procedure for transfer of material to the requesting Member State by
dispensing with multiple controls”.

During  negotiations  on  the  Framework  Decision  on  freezing  orders,  it  was
recognised that there was a need for two  further initiatives as a consequence of the
Framework Decision on freezing orders:

(i)

(ii)

an  initiative  on  mutual  recognition  of  confiscation  orders.  The  Danish
Presidency brought forward an initiative for a draft Framework Decision on the
execution in the European Union of confiscation orders13. This supplements the
Framework  Decision  on  freezing  orders  by  providing  for  full  mutual
recognition of orders to confiscate property.

an  initiative  on  mutual  recognition  of  orders  to  obtain  evidence.  The
Commission  announced  during  negotiations  of  the  Framework  Decision  on
freezing  orders  that  it  would  bring  forward  a  proposal  on  this  subject.  This
proposal  was  therefore  included  in  the  Commission  Work  Programme  for
200314.

The objectives and scope of the proposed Framework Decision

This  proposal  for  a  Framework  Decision  supplements  the  Framework  Decision  on
freezing  orders  by  applying  the  principle  of  mutual  recognition  to  orders  with  the
specific objective of obtaining objects, documents and data for use in proceedings in
criminal  matters.  The  European  Evidence  Warrant  will  provide  a  single,  fast  and
effective mechanism for obtaining evidence and transferring it to the issuing State. It
will not be necessary for a prior freezing order to have been issued.

The  proposal  for  a  Framework  Decision  applies  to  objects,  documents  or  data
obtained  under  various  procedural  powers,  including  seizure,  production  or  search
powers.  However,  the  European  Evidence  Warrant  is  not  intended  to  be  used  to
initiate the interviewing of  suspects, taking  statements,  or hearing  of  witnesses  and
victims. These require special consideration. In particular, the Commission adopted
in  February  2003  a  Green  Paper  on  procedural  safeguards  for  suspects  and

12

13

14

OJ C 216, 1.8.2001, p. 14.
OJ C 184 , 2.8.2002, p. 8.
Available from http://europa.eu.int/comm/off/work_programme/index_en.htm

7

                                                
30.

31.

32.

33.

15

16

17

defendants in criminal proceedings in the European Union15, and will continue work
during 2003 on other aspects of taking evidence from suspects, defendants, victims
and witnesses. The taking of evidence from the body of a person, in particular DNA
samples, is also excluded from the scope of the European Evidence Warrant.

The European Evidence Warrant is also not intended to be used to initiate procedural
investigative  measures  which  involve  obtaining  evidence  in  real-time  such  as
interception  of  communications  and  monitoring  of  bank  accounts.  These  specific
forms  of  co-operation  have  recently  been  the  subject  of  considerable  discussion  in
the Council. A specific  regime  for  co-operation  on  interception  of  communications
has  been  established  in  the  EU  2000  Convention16,  and  a  regime  for  co-operation
with  respect  to  monitoring  bank  accounts  has  been  established  by  Article  3  of  the
2001 Protocol to the Convention17. The Convention and its Protocol have yet to enter
into force. However, as  regards  assistance  relating  to  bank  accounts,  it  is  proposed
that the European Evidence Warrant should be used for requests for information on
operations which have been carried out during a specified period on a specified bank
account.  Such  assistance  is  provided  for  by  the  1959  Convention  and  has  been
clarified by Article 2 of the 2001 Protocol.

Nor is  the  European  Evidence  Warrant  intended  to  be  used  to  obtain  evidence  that
can only result from further investigation or analysis. It could therefore not be used
to require the commissioning of an expert’s report. Nor, for example, could it be used
to  require  an  executing  authority  to  undertake  computerised  comparison  of
information (computer matching) in order to identify a person. Conversely, however,
the  European  Evidence  Warrant  should  be  used  where  the  evidence  is  directly
available  in  the  executing  State  for  example  by  extracting  the  relevant  information
from a register (such as a register of criminal convictions). The European Evidence
Warrant should also be used for requesting data on the existence of bank accounts (as
also provided for by Article 1 of the 2001 Protocol) where such data is available in
the requested State.

Nevertheless,  the  European  Evidence  Warrant  may  be  used  for  the  purpose  of
obtaining objects, documents or data falling within the excluded categories provided
that  they  had  already  been  gathered  prior  to  the  issuing  of  the  warrant.  In  these
circumstances,  it  will  be  possible  to  obtain  existing  records  of  intercepted
communications,  surveillance,  interviews  with  suspects,  statements  from  witnesses
and the results of DNA tests.

Given that the proposal for a Framework Decision is intended to replace the existing
mutual assistance regime, its scope should be the same as the EU 2000 Convention.
This means that the European Evidence Warrant should be available for use:

(a) with respect to any criminal offence; and

COM (2003) 75 final, 19.2.2003.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
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.

8

                                                
1.7.

34.

35.

36.

37.

1.8.

38.

(b) with respect to acts which are punishable under the national law of the issuing
Member State by virtue of being infringements of the rules of law, and where
the decision may give rise to proceedings before a court having jurisdiction in
particular in criminal matters.

How to apply the principle of mutual recognition to orders to obtain evidence

The  Commission  proposal  for  a  European  Evidence  Warrant  adopts  the  same
approach  to  mutual  recognition  as  the  Framework  Decision  on  the  European  arrest
warrant18. This has several advantages over the approach adopted in the Framework
Decision on freezing orders.

First, it is more practical. A European Evidence Warrant should result in faster and
more  effective  co-operation  than  a  system  of  mutual  recognition  based  on  a
combination of a national order and a European certificate. The European Evidence
Warrant  is  a  single  document  translated  by  the  issuing  authority  into  an  official
language of the executing State. No further translation is necessary. In contrast, the
Framework  Decision  on  freezing  orders  is  based  upon  the  mutual  recognition  of
national  orders  supplemented  by  a  standard  European  certificate  annexed  to  the
Framework  Decision.  Although  the  issuing  State  is  required  to  translate  only  the
certificate into an official language of the executing State, in practice many executing
Member  States  are  likely  to  consider  it  necessary  also  to  translate  the  original
national  order.  The  result  of  this  additional  translation  is  likely  to  be  slower  co-
operation.

Secondly,  as  illustrated  in  section  1.1,  an  “order  to  obtain  evidence”  has  many
different  meanings  in  the  Member  States’  procedural  laws.  It  can  range  from  a
prosecutor’s request to disclose evidence to more coercive measures such as a court
order  issued  for  the  purpose  of  the  entry  and  search  of  private  premises.  Mutual
recognition  of  specific  types  of  national  orders  to  obtain  evidence  could  therefore
result  in  the  executing  State  being  required  to  carry  out  a  search  and  seizure  in
circumstances in which it would normally use less intrusive mechanisms such as the
general powers of a prosecutor or a production order.

For  this  reason,  the  proposal  for  a  European  Evidence  Warrant  allows  the  issuing
State  to  specify  only the objective to  be  achieved (i.e.  to  obtain  specific  evidence),
and leaves the executing State to obtain the evidence in accordance with its domestic
procedural law. Although it  is  mandatory under  the  European  Evidence  Warrant  to
obtain the evidence, it is left to the executing State to determine, in the light of the
information  supplied  by  the  issuing  State,  the  most  appropriate  way  to  obtain  the
evidence in accordance with its domestic procedural law.

Replacing mutual assistance by mutual recognition

Notwithstanding  the  advantages  of  the  proposed  European  Evidence  Warrant,  it
remains  the  case  that  practitioners  need  to  rely  on  a  variety  of  co-operation
instruments  in  order  to  obtain  evidence  from  other  Member  States.  Indeed,  the
proposed  European  Evidence  Warrant  risks  introducing  the  inconvenience  for  the
practitioner of having to use different types of instruments for different aspects of the

18

OJ L 190, 18.7.2002, p. 1.

9

                                                
same  case  (for  example,  a  European  Evidence  Warrant  for  objects  and  documents,
but a mutual assistance request for taking witness statements).

39.

It is therefore necessary to make clear that the European Evidence Warrant is, in the
Commission’s  view,  the  first  step  towards  a  single  mutual  recognition  instrument
that would in due course  replace all of  the  existing  mutual  assistance  regime.  The
steps towards a single instrument could be as follows.

– 

– 

The  first  step  would  be  the  proposed  European  Evidence  Warrant,  which
provides  for  the  obtaining  of  evidence  that  already  exists  and  that  is  directly
available.

The next stage would be to provide for the mutual recognition of orders for the
obtaining of other types of evidence. These can be divided into two categories.

– 

– 

First,  there  is  evidence  that  does  not  already  exist  but  which  is  directly
available. This includes the taking of evidence in the form of interviews
of suspects, witnesses or experts, and the taking of evidence through the
monitoring of telephone calls or banking transactions.

Secondly,  there  is  evidence  which,  although  already  existing,  is  not
directly available without further investigation or analysis. This includes
the taking of evidence from the body of a person (such  DNA samples).
This category also includes situations where further inquiries need to be
made, 
in  particular  by  compiling  or  analysing  existing  objects,
documents  or  data.  An  example  is  the  commissioning  of  an  expert’s
report.

– 

In  a  final  stage  these  separate  instruments  could  be  brought  together  into  a
single consolidated instrument which would include a  general  part containing
provisions applicable to all co-operation.

Such  a  single  consolidated  instrument  would  within  the  EU  replace  mutual  legal
assistance in the same way that the European arrest warrant will replace extradition.
The existing mosaic of international and EU conventions governing the cross-border
gathering of evidence within the EU would thus be replaced by a single EU body of
law.  Achieving  that  end  objective  straightaway  by  means  of  a  single  instrument
would, however, be unduly complex. This proposal is therefore limited to a first step.

Minimum safeguards

Article  6  of  the  Treaty  on  European  Union  provides  that  the  Union  shall  respect
fundamental rights, as guaranteed by the European Convention for the Protection of
Human  Rights  and  Fundamental  Freedoms  (ECHR)  and  as  they  result  from  the
constitutional  traditions  common  to  Member  States.  Moreover,  in  December  2000,
the  European  Commission,  the  Council  and  the  Parliament  jointly  signed  and
solemnly proclaimed the Charter of Fundamental Rights of the European Union. The
Charter  covers  the  whole  range  of  civil,  political,  economic  and  social  rights  of
European  citizens,  by  synthesising  the  constitutional  traditions  and  international
obligations  common  to  the  Member  States.  It  asserts  that  respect  for  fundamental
rights will be at the foundation of all European law.

40.

1.9.

41.

10

42.

43.

44.

45.

46.

The European Court of Justice has recognised the importance of mutual trust, which
is the basis for the application of the principle of mutual recognition, by holding that
the ne bis in idem principle enshrined in Article 54 of the 1990 Schengen Convention
implied that the "Member States have mutual trust in their  criminal  justice  systems
and that each of them recognises the criminal law in force in the other Member States
even when the outcome would be different if its own national law were  applied."19
The  ne  bis  in  idem  principle  is  a  safeguard,  and  Article  54  does  not  make  its
application conditional upon the approximation of the criminal laws of the Member
States.  However,  in  the  different  field  of  judicial  co-operation,  in  particular  where
coercive  measures  are  envisaged,  the  Commission  considers  that  the  building  of
mutual  trust  should  be  fostered  by  specific  action  at  the  Union  level  in  order  to
achieve a common minimum level of safeguards.

The Commission Communication to the Council and the European Parliament of 26
July 2000 on Mutual Recognition of Final Decisions in Criminal Matters20 expressed
the position that “it must therefore be ensured that the treatment of suspects and the
rights  of  the  defence  would  not  only  not  suffer  from  the  implementation  of  the
principle  [of  mutual  recognition]  but  that  the  safeguards  would  even  be  improved
through the process”.

This  was  endorsed  in  the  Programme  of  Measures  to  Implement  the  Principle  of
Mutual Recognition of Decisions in Criminal Matters21, adopted by the Council and
the Commission, which stated that “mutual recognition is very much dependent on a
number  of  parameters  which  determine  its  effectiveness”,  one  of  which  is  “the
definition  of  common  minimum  standards  necessary  to  facilitate  the  application  of
the principle of mutual recognition”.

To  take  forward  these  commitments,  the  Commission  adopted  in  February  2003  a
Green  Paper  on  procedural  safeguards  for  suspects  and  defendants  in  criminal
proceedings22. The Green Paper stressed the fact that the Member  States  of  the  EU
are  all  signatories  of  the  principal  treaty  setting  these  standards,  the  European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),
as are all the acceding states and candidate countries, so the mechanism for achieving
mutual  trust  is  already  in  place.  Nevertheless,  the  Green  Paper  explained  that
divergent  practices  ran  the  risk  of  hindering  mutual  trust  and  confidence,  which
justifies the EU taking action on procedural standards pursuant to Article 31 TEU.

The  Green  Paper  does  not  address  the  issue  of  procedural  safeguards  for  obtaining
evidence using the coercive powers covered by this Framework Decision. However,
in line with the general approach described in the Green Paper, this proposal contains
specific safeguards for the issuing and executing States to enhance the effectiveness,
consistency and visibility of some of the standards relevant for obtaining evidence at
EU level.

19

20

21

22

Joined  Cases  C-187/01  and  C-385/01,  Gözütok  and  Brügge,  judgement  of  11  February  2003,  at
paragraph 33.
COM (2000) 495 final, 26.7.2000.
OJ C 12, 15.1.2001, p. 10.
COM (2003) 75 final, 19.2.2003.

11

                                                
47.

48.

In the issuing State, the issuing judicial  authority  is  limited to  judges, investigating
magistrates  or  prosecutors.  There  is  also  a  need  to  ensure  equivalence  with  the
domestic  criminal  procedural  law  of  the  issuing  State  when  dealing  with  evidence
obtained  in  another  Member  State.  For  this  reason,  the  judicial  authority  issuing  a
European  Evidence  Warrant  must  be  satisfied  that  it  would  be  able  to  obtain  the
objects, documents or data in similar circumstances if they were on the territory of its
own Member State. This prevents the European Evidence Warrant from being used
to circumvent national safeguards on obtaining evidence. As an example, this would
preclude using the European Evidence Warrant to obtain objects, documents or data
from  the  executing  State  that  would  be  impossible  to  obtain  in  the  issuing  State
because it is protected by legal, medical or journalistic privileges.

In  the  executing  State,  there  is  a  need  to  ensure  that  the  fundamental  right  not  to
incriminate  oneself  is  protected,  as  well  as  a  need  for  additional  safeguards  with
respect  to  search  and  seizure.  When  coercive  measures  are  used  to  obtain  the
evidence,  it  is  essential  that  effective  legal  remedies  exist  in  both  the  issuing  and
executing States. Further safeguards are provided in the grounds of refusal to execute
the European Evidence Warrant.

1.10. Obtaining official records of criminal convictions

49.

In  its  Communication  on  mutual  recognition23,  the  Commission  identified  the
necessity of being aware of decisions taken in other Member States. As a first step,
the Commission proposed “developing common European multi-language forms that
could  be  used  to  request  information  on  existing  criminal  records.  By  using  such
forms, practitioners could send a demand for information to the competent (central,
one would hope) authorities of all other EU [Member States] to find out whether a
person they are dealing with has a criminal history there.”

50.

This  was  subsequently  reflected  in  Measure  3  of  the  programme  of  measures  for
mutual recognition in criminal matters24:

“Measure 3: In order to facilitate the exchange of information, a standard form like
that  drawn  up  for  the  Schengen  bodies,  translated  into  all  the  official  Union
languages, should be introduced for criminal records applications”.

51.

The  1959  Convention25  provides  the  basic  framework  for  the  exchange  of  criminal
records  between  judicial  authorities.  It  provides  for  two  types  of  exchange:
information  to  be  provided  upon  request  (Article  13);  and 
the  automatic
communication  of  criminal  convictions  of  nationals  of  other  contracting  parties
(Article 22).  Article  4  of  the  1978  Additional  Protocol26  to  the  1959  Convention
added  a  second  paragraph  to  Article  22  providing  for  information  to  be  provided,
again upon request, further to an automatic communication under the first paragraph
of Article 22.

23

24

25

26

COM (2000) 495 final, 26.7.2000.
OJ C 12, 15.1.2001, p. 10.
Council of Europe, European Treaty Series No 30.
Council of Europe, European Treaty Series No 99.

12

                                                
52.

53.

54.

55.

Article  13(1)  of  the  1959  Convention  states  that  “a  requested  Party  shall
communicate  extracts  from  and  information  relating  to  judicial  records,  requested
from  it  by  the  judicial  authorities  of  a  Contracting  Party  and  needed  in  a  criminal
matter,  to  the  same  extent  that  these  may  be  made  available  to  its  own  judicial
authorities  in  like  case”.  The  term  “judicial  records”  means  records  of  criminal
convictions.

Having  considered  the  possibility  of  a  separate  initiative  for  a  standard  form  for
criminal  records  applications,  the  Commission  has  decided  that  it  is  appropriate  to
combine the standard form for criminal records applications with the standard form
in  this  Framework  Decision  for  obtaining  objects,  documents  and  other  data.  It  is
therefore  proposed  that  this  Framework  Decision  should  be  used  to  implement
measure 3 of the programme of measures for mutual recognition in criminal matters.

This  means  that  the  existing  mutual  assistance  regime  for  records  of  criminal
convictions will be replaced by a system that places an obligation on the executing
State to produce such records. The procedure for obtaining such records will be the
same  as  for  more  general  documentary  evidence  under  the  European  Evidence
Warrant. This proposal therefore requires that criminal records held in one Member
State should be available to a judicial authority in another Member State with respect
to any person relevant to the proceedings and at any stage during those proceedings
(pre-trial, sentencing and the subsequent execution of the sentence).

It  is  proposed  that  there  should  be  an  obligation  on  Member  States  to  establish  a
“central criminal records authority” responsible for dealing with European warrants
asking for production of criminal records. In cases where the only information sought
relates to a criminal record, the issuing authority would send the form annexed to this
Framework Decision directly  to the central  criminal  records  authority. However, in
situations where the issuing authority is seeking a wide range of objects, documents
or  data  including  a  criminal  record,  it  might  be  more  appropriate  for  a  judicial
authority in the executing State to co-ordinate the gathering of this information and
thus  take  it  upon  itself  to  obtain  the  criminal  record  from  the  central  authority.
Flexibility  is  therefore  required  to  allow  the  issuing  and  executing  authorities  to
determine the most appropriate way to co-operate in such situations.

1.11. Mutual admissibility of evidence

56.

The  European  Council  in  Tampere  in  1999  concluded  that  “evidence  lawfully
gathered by one Member States’ authorities should be admissible before the courts of
other Member States, taking into account the standards that apply there”.

13

57.

58.

59.

60.

61.

27

28

29

30

The Commission’s Green Paper on  the European  Public Prosecutor27 addressed  the
issue  of  the  mutual  admissibility  of  evidence.  In  summary,  the  Green  Paper
concluded that “the prior condition for any mutual  admissibility of  evidence is  that
the evidence must have been obtained lawfully in the Member State where it is found.
The law that must be respected if evidence is not to be excluded is first and foremost
the national law of the place where the evidence is situated”. A number of comments
were  submitted  in  response  to  the  question  in  the  Green  Paper  on  mutual
admissibility of evidence28. This issue was also discussed at the public hearing on the
European Public Prosecutor on 16-17 September 2002 and in subsequent seminars.

This proposal for a Framework Decision does not directly address the issue of mutual
admissibility of evidence. This is because consultation with experts has identified the
need for further preparatory work. However, the proposal is nevertheless intended to
facilitate the admissibility of evidence obtained from the territory of another Member
State.

First,  the  admissibility  of  evidence  should  be  facilitated  by  the  inclusion  of  some
procedural safeguards to protect fundamental rights.

Secondly,  admissibility  should  be  facilitated  by  maintaining  and  clarifying  the
approach in Article 4 of the EU 2000 Convention29. This lays down a new principle
in  which  the  requested  State  must  provide  assistance  in  accordance  with  the
formalities  and  procedures  expressly  indicated  by  the  requesting  State  to  the
maximum extent possible. The requested State can only refuse to comply with these
requirements  where  this  would  be  contrary  to  its  fundamental  principles  of  law  or
where  the  Convention  itself  expressly  states  that  the  execution  of  requests  is
governed by the law of the requested State. This is also consistent with the approach
in the Council Regulation on the taking of evidence in civil or commercial matters30.
In  respect  of  four  specific  formalities  (points  (a)  to  (d)  of  Article  13)  that  may  be
required by the issuing authority, this Framework Decision goes further than the EU
2000  Convention  by  removing  the  possibility  to  refuse  to  comply  with  those
formalities.

Thirdly,  as  described  above,  it  is  proposed  that  the  European  Evidence  Warrant
should be issued only when the issuing authority is satisfied that it would be possible
to obtain the objects, documents or data in similar circumstances if they were on the
territory  of  its  own  Member  State.  This  should  also  facilitate  the  subsequent
admissibility  of  the  objects,  documents  or  data  as  evidence  in  proceedings  in  the
issuing State.

COM (2001) 715 final, 11.12.2001.
Follow-up  report  on  the  Green  Paper  on  the  criminal-law  protection  of  the  financial  interests  of  the
Community and the establishment of a European Prosecutor, COM (2003) 128 final, 19.3.2003, at page
18.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
Council  Regulation  (EC)  No  1206/2001  of  28  May  2001  on  co-operation  between  the  courts  of  the
Member States in the taking of evidence in civil or commercial matters, OJ L 174, 27.6.2001, p. 1.

14

                                                
62.

Fourthly,  there  is  an  obligation  to  inform  the  issuing  authority  immediately  if  the
executing authority believes that the warrant was executed in a manner contrary to its
national law. This should provide further reassurance that the evidence was lawfully
obtained, and thus facilitate its admissibility in the courts of the issuing State.

1.12.

Jurisdiction issues associated with computer data

63.

64.

65.

66.

The European Evidence Warrant will be available for use with respect to documents
and  data  held  electronically.  In  fact,  it  is  reasonable  to  anticipate  that  a  significant
proportion of cases in which the warrant will be used will relate to computer data.

In  principle,  there  should  be  no  difference  between  a  document  held  electronically
and a document held in physical form. However, there is a difference with respect to
jurisdiction. As an example, some multinational businesses will hold computer data
about their customers in one Member State on a  server  located  in  another  Member
State.  The  issuing  State  is  likely  to  send  the  European  Evidence  Warrant  to  the
Member  State  in  which  the  customer  is  located  rather  than  the  Member  State  in
which the server is located. In such cases, it is important that there is legal clarity to
ensure that the evidence can be obtained without the need to seek the  agreement of
the Member State on which the server is located. This will ensure the effectiveness of
cross-border investigations, and will provide legal clarity for industry.

These  issues  have  been  discussed  (and,  to  a  certain  extent,  solutions  have  been
found) in the context of the Council of Europe 2001 Convention on Cybercrime31. In
particular,  Article  18  of  the  Convention  provides  an  order  to  require  production  of
specified computer data in a person’s “possession or control”, or to require a service
provider  offering  its  services  in  the  territory  of  a  Party  to  submit  subscriber
information  relating  to  such  services  in  that  service  provider’s  “possession  or
control”.  In  the  Explanatory  Report  to  the  Convention,  it  is  indicated  that  this  is
intended  to  cover  situations  in  which  the  data  to  be  produced  is  outside  of  the
person’s physical possession but the person can nonetheless freely control production
of the data from within the State’s territory.

This Framework Decision aims to go beyond the 2001 Convention on Cybercrime by
resolving  some  of  the  jurisdictional  questions  that  arise  with  respect  to  obtaining
computer data held on servers within the European Union. It clarifies that it is lawful
for  the  executing  State  to  obtain  computer  data  that  is  lawfully  accessible  from  its
territory and relates to services provided to its territory, even though it is  stored on
the territory of another Member State. The Framework Decision is without prejudice
to  other  jurisdictional  issues  related  to  computer  data,  in  particular  where  third
countries are involved.

31

Council of Europe, European Treaty Series No 185.

15

                                                
2.

67.

68.

3.

69.

32

33

34

LEGAL BASIS

This  proposal  has  a  legal  basis  under  Article  31  of  the  Treaty  on  European  Union
(TEU),  as  amended  by  the  Treaty  of  Nice,  which  deals  with  common  action  on
judicial co-operation in criminal matters. It aims at “facilitating and accelerating co-
operation between competent ministries and judicial or equivalent authorities of the
Member  States,  including,  where  appropriate,  co-operation  through  Eurojust,  in
relation to proceedings and the enforcement of decisions” (Article 31(1)(a)).  It also
provides for “ensuring compatibility in rules applicable in the Member States, as may
be  necessary  to  improve  such  co-operation”  (Article  31(1)(c)),  in  particular  by
providing  for  some  approximation  of  minimum  procedural  rules  in  the  Member
States to enhance mutual trust and confidence. The  Framework Decision also seeks
to  encourage  co-operation  through  Eurojust  and  the  European  Judicial  Network  in
line with Article 31(2) TEU.

The  Commission  considers  that  this  proposal  constitutes  a  development  of  the
Schengen  acquis32.  It  builds  upon  Article  51  of  the  Schengen  Convention33  by
improving co-operation with respect to search and seizure. It also contains provisions
which build upon Articles 3, 6 and 23 of the EU 2000 Convention34, all of which the
Council has decided represent developments of the Schengen acquis.

FINANCIAL STATEMENT

The implementation of the proposed Framework Decision would entail no additional
operational expenditure to be charged to the budgets of the Member States or to the
budget of the European Communities.

With the consequence that it is necessary to associate Iceland and Norway: Agreement concluded by the
Council of the European Union and the Republic of Iceland and the Kingdom of  Norway  concerning
the latters' association  with the implementation, application and development of the Schengen acquis,
OJ  L  176,  10.7.1999,  p.  36;  Council  Decision  of  17  May  1999  on  certain  arrangements  for  the
application  of  the  Agreement  concluded  by  the  Council  of  the  European  Union  and  the  Republic  of
Iceland  and  the  Kingdom  of  Norway  concerning  the  association  of  those  two  States  with  the
implementation, application and development of the Schengen acquis, OJ L 176, 10.7.1999, p. 31.
Convention  of  19  June  1990  implementing  the  Schengen  Agreement  of  14  June  1985  on  the  gradual
abolition of checks at the common borders, OJ L 239, 22.9.2000, p. 19.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.

16

                                                
4.

EXPLANATION OF THE ARTICLES

Title I – The European Evidence Warrant

Article 1 – Definition of the European Evidence Warrant and obligation to execute it

70.

This Article adopts the same approach as Article 1 of the Framework Decision on the
European arrest warrant35. It establishes the European Evidence Warrant as a judicial
decision issued by a Member State with a view to obtaining objects, documents and
data  from  another  Member  State  for  the  purpose  of  the  proceedings  referred  to  in
Article  4.  It  contains  an  obligation  on  Member  States  to  execute  the  European
Evidence Warrant on the basis of the principle of mutual recognition.

Article 2 – Definitions

71.

72.

73.

35

36

37

38

This  Article  establishes  definitions  for  the  issuing  State,  executing  State,  issuing
authority,  and  the  executing  authority.  It  is  important  to  note  that  the  issuing
authority  must  a  judge,  investigating  magistrate  or  prosecutor.  Other  competent
authorities  (including  police,  customs  and  administrative  authorities)  are  not
permitted  to  issue  a  European  Evidence  Warrant.  Such  authorities  must  seek  the
decision  of  a  judge,  investigating  magistrate  or  prosecutor  in  order  to  have  a
European Evidence Warrant issued.

To  assist  the  interpretation  of  Title  IV  on  jurisdiction  for  obtaining  data  over
electronic  communications  networks, 
this  Article  contains  definitions  of
“information  system”  and  “computer  data”  which  are  taken  from  the  draft
Framework  Decision  on  attacks  against  information  systems36.  It  also  contains  a
definition of electronic  communications network which is the same as that  adopted
by  the  EC  2002  Directive  on  a  common  regulatory  framework  for  electronic
communications networks and services37.

Finally,  this  Article  defines  an  “offence”  as  meaning  a  criminal  offence  or  an  act
which is punishable under the national law of the issuing State by virtue of being an
infringement  of  the  rules  of  law,  provided  that  the  decision  may  give  rise  to
proceedings before a court having jurisdiction in particular in criminal matters. This
means  that  such  infringements,  which  are  covered  by  the  existing  dual  criminality
regime  in  Article  51  of  the  1990  Schengen  Convention38,  are  also  covered  by  the
dual criminality regime of this proposal (Articles 16 and 24).

OJ L 190, 18.7.2002, p. 1.
Consensus – including on the definitions - was reached on this draft Framework Decision at the Justice
and Home Affairs Council on 27 and 28 February 2003.
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common
regulatory framework for electronic communications networks and services (Framework Directive), OJ
L 108, 24.4.2002, p. 33.
Convention  of  19  June  1990  implementing  the  Schengen  Agreement  of  14  June  1985  on  the  gradual
abolition of checks at the common borders, OJ L 239, 22.9.2000, p. 19.

17

                                                
Article 3 – Types of objects, documents or data covered

74.

75.

76.

77.

This Article defines the types of objects, documents or data for which the European
Evidence  Warrant  may  be  issued.  It  covers  any  objects,  documents  or  data  which
could  be  used  in  proceedings  referred  to  in  Article  4.  This  is  based  upon  the
definition of evidence contained in the Framework Decision on freezing orders.

However,  it  is  not  permitted  to  use  the  European  Evidence  Warrant  to  initiate  the
following action:

(a)

(b)

(c)

(d)

the  taking of  evidence in the  form of interviews, statements or other types of
hearings  (including  telephone  conferences  and  videoconferences)  involving
suspects, witnesses, experts or any other party;

the taking of evidence from a person’s body, in particular the taking of DNA
samples (whether from the hair, mouth or blood of the person);

real-time  evidence  gathering 
communications, covert surveillance or monitoring of bank accounts; and

such  as 

through 

the 

interception  of

requiring further inquiries, in particular the compilation or analysis of existing
objects, documents or data.

Co-operation  with  respect  to  gathering  these  types  of  evidence  is  governed  by
existing mutual  assistance agreements,  in  particular  the  EU  2000  Convention39  and
its 2001 Protocol40. In due course, there will be a need to replace these forms of co-
operation with a system based on the principle of mutual recognition. But that is not
the purpose of this Framework Decision.

Nevertheless, this Article does  allow  the European  Evidence  Warrant  to be used to
obtain  evidence  falling  in  these  categories  which  has  been  gathered  prior  to  the
issuing  of  the  warrant.  For  example,  this  would  include  obtaining  a  statement
previously given by a suspect to an investigating authority in the executing State with
respect  to  an  earlier  investigation  conducted  by  that  State.  It  would  also  cover
historical records of intercepted communications, surveillance or monitoring of bank
accounts.

Article  4  –  Type  of  proceedings  for  which  the  European  Evidence  Warrant  may  be
issued

78.

39

40

This  Article  establishes  the  type  of  proceedings  for  which  the  European  Evidence
Warrant  may  be  issued.  It  is  available  for  criminal  proceedings,  as  well  as  for
administrative  proceedings  for  infringements  where  there  is  a  right  of  appeal  to  a
court  with  jurisdiction  in  criminal  matters.  It  is  also  available  for  any  such
proceedings which relate to offences or infringements for which a legal person may
be held liable in the issuing State.

Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
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.

18

                                                
79.

This ensures that the proposal has the same scope as existing instruments on mutual
assistance in criminal matters within the European Union, in particular as a result of
the EU 2000 Convention41.

Article 5 – Content and form of the European Evidence Warrant

80.

81.

This  Article  ensures  that  the  European  Evidence  Warrant  will  be  issued  in
accordance  with  the  standard  Form  A  in  the  Annex  to  the  Framework  Decision.  It
must be signed, and its contents certified as accurate, by the issuing authority (i.e. by
a judge, investigating magistrate or prosecutor).

The  European  Evidence  Warrant  must  be  translated  by  the  issuing  State  into  the
official  language  or  one  of  the  official  languages  of  the  executing  State.  The
executing  State  may  accept  translations  into  other  official  EU  languages  by
submitting a declaration to the General Secretariat of the Council. This is the same
approach  as  in  other  mutual  recognition  instruments,  including  for  the  European
Arrest Warrant.

Title II – Procedures and safeguards for the issuing State

Article 6 – Conditions for issuing the European Evidence Warrant

82.

83.

This  Article  provides  some  important  minimum  safeguards  to  help  protect
fundamental rights.

It ensures that the European Evidence Warrant will be issued only when the issuing
authority is satisfied that the following conditions have been met:

(a)

 (b)

the objects, documents or data sought are necessary and proportionate  for the
purpose of the proceedings for which the warrant is issued. This is intended to
avoid  unnecessary  intrusions  on  privacy  as  well  as  situations  where,  for
is  sought  for  an
example,  a  disproportionate  quantity  of  documents 
investigation into a relatively minor offence. Form A in the Annex requires that
the  issuing  authority  must  include  a  description  of  the  offence(s)  under
investigation,  the  relevant  grounds  for  issuing  the  warrant  and  a  summary  of
the facts as known to it.

it would be possible to obtain the objects, documents or data under the law of
the issuing State in similar circumstances if they were available on the territory
of the issuing State. This prevents the European Evidence Warrant from being
used to circumvent protections in the national law of the issuing State to obtain
certain  types  of  objects,  documents  and  data,  for  example  legally  privileged
material. For this reason, Form A contains a specific section about whether the
objects,  documents  and  data  are  likely  to  be  covered  by  any  privileges  or
immunities.  However,  this  subparagraph  does  not  mean  that  the  same
procedural measures must be available to both the issuing and executing States.
Indeed,  the  issuing  State  might  need  to  obtain  a  specific  order  to  search  the
premises  of  a  third  party  to  seize  the  evidence,  whereas  the  executing  State

41

Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.

19

                                                
might  have  a  less  intrusive  procedure  in  which  it  can  require  a  third  party  to
produce the evidence without the need for a search.

(c)

the objects, documents and data are likely to be admissible in the proceedings
for  which  it  is  sought.  This  prevents  the  European  Evidence  Warrant  from
being used to circumvent protections in the national law of the issuing State on
admissibility of evidence, particularly if further action is taken in the future on
the  mutual  admissibility  of  evidence  obtained  pursuant  to  the  European
Evidence Warrant.

84.

Form  A  in  the  Annex  also  requires  the  issuing  authority  to  specify,  to  the  extent
known, the identity of the natural or legal person(s) in respect of whom the objects,
documents or  data  are sought as  well  as the  person(s)  believed  to  hold  the  objects,
documents or data.

Article 7 – Transmission of the European Evidence Warrant

85.

86.

This  Article  provides  for  direct  transmission  of  the  European  Evidence  Warrant
between competent judicial authorities. This principle was established by Article 6 of
the EU 2000 Convention42.

In cases where the competent executing authority is not known, provision is made to
use  the  European  Judicial  Network.  If  the  competent  authority  receiving  the
European  Evidence  Warrant  has  no  jurisdiction  to  recognise  and  execute  it,  it  is
required  to  transmit  the  warrant  to  the  relevant  competent  judicial  authority  for
execution and to inform the issuing authority.

Article 8 – Central criminal records authority

87.

This  Article  requires  each  Member  State  to  establish  a  central  authority  for  the
purpose of obtaining a copy of any official record in that Member State of a criminal
conviction, and subsequent measures, with respect to a natural or legal person. The
purpose is to ensure that a European Evidence Warrant limited to obtaining a copy of
a criminal record can be sent directly to an authority which controls, or at least has
access to, official records of criminal conviction.

Article 9 – Warrant for additional evidence

88.

This  Article  addresses  the  need  to  deal  with  situations  where  multiple  requests  for
objects, documents or data are made with respect to the same investigation. A similar
provision is contained in Article 6 of the 2001 Protocol43 to the EU 2000 Convention.

42

43

Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
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.

20

                                                
89.

90.

91.

To avoid duplication of effort, the issuing authority may use Form B in the Annex to
obtain  objects,  documents  or  data  which  are  additional  to  an  earlier  European
Evidence Warrant issued for the purpose of the same proceedings. There is no need
to issue a new European Evidence Warrant, provided that the content of the original
warrant  (in  particular  the  facts  known  to  the  issuing  authority  and  identity  of  the
person(s)  in  respect  of  whom  the  objects,  documents  or  data  are  sought)  remains
accurate.

The  executing  State  is  required  to  comply  with  any  such  warrant  for  additional
evidence in the same way as for the original European Evidence Warrant.

If  the  competent  issuing  authority  participates  in  the  execution  of  the  European
Evidence  Warrant  in  the  executing  State,  it  may  address  a  warrant  for  additional
evidence directly to the executing authority while present in that State.

Article 10 – Conditions on the use of personal data

92.

93.

94.

95.

44

45

46

This Article is based upon Article 23 of the EU 2000 Convention44. It supplements
the protection afforded by the Council of Europe 1981 Convention for the protection
of individuals with regard to the automatic processing of personal data45. The 1981
Convention,  which  has  been  ratified  by  all  Member  States,  provides  that  personal
data undergoing automatic processing may amongst other things only be stored and
used  for  specified  and  legitimate  purposes  except  where  necessary  in  a  democratic
society in the interests of protecting State security, public safety or the suppression of
criminal  offences.  The  EC  1995  Data  Protection  Directive46  does  not  apply  to
judicial co-operation in criminal matters.

The purpose limitation in this Article follows the approach in Article 23(1) of the EU
2000 Convention.

In  the  circumstances  of  a  particular  case,  the  executing  State  may  also  require  the
Member State to which the personal data have been transferred to  give information
on the use made of the data. This requirement to provide information about the use
made of the data is in line with Article 23(3) of the EU 2000 Convention.

Paragraph  4,  in  line  with  Article  23(6)  of  the  EU  2000  Convention,  excludes  from
the  scope  of  Article  10  personal  data  obtained  by  a  Member  State  under  the
Framework Decision and originating from that Member State.

Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
Council of Europe, European Treaty Series No 108.
Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24  October  1995  on  the
protection of individuals  with regard to the  processing  of  personal  data  and  on  the  free  movement  of
such data, OJ L 281, 25.11.95, p. 31.

21

                                                
Title III – Procedures and safeguards for the executing State

Article 11 – Recognition and execution

96.

This Article requires that the competent authorities of the executing State recognise a
European  Evidence  Warrant  without  any  further  formality  being  required  and
forthwith take the necessary measures for its execution. The execution of the warrant
should  be  carried  out  in  the  same  way  as  the  objects,  documents  or  data  would  be
obtained by an authority of the executing State.

Article 12 – Safeguards for execution

97.

This  Article  ensures  that  the  European  Evidence  Warrant  will  be  executed  in
accordance with the following minimum conditions:

(a)

(b)

(c)

the  least  intrusive  means  necessary  should  be  used  to  obtain  the  objects,
documents or data;

a natural person should not be required to produce objects, documents or data
which might result in self-incrimination; and

the issuing authority should be informed immediately if the executing authority
discovers that the warrant was executed in a manner contrary to the law of the
executing State.

98.

The following additional safeguards are provided with respect to search and seizure:

(a)

(b)

(c)

a  search  of  private  premises  should  not  start  at  night,  unless  this  is
exceptionally necessary due to the particular circumstances of the case;

a  person  whose  premises  have  been  searched  should  be  entitled  to  receive
written notification of the search. This should state, as a minimum, the reason
for  the  search,  the  objects,  documents  or  data  seized  and  the  legal  remedies
available; and

in  the  absence  of  the  person  whose  premises  are  being  searched,  the
notification  of  the  search  should  be  provided  to  that  person  by  leaving  the
notification on the premises or by other suitable means.

Article 13 – Formalities to be followed in the executing State

99.

This  Article  allows  the  issuing  authority  to  require  that  the  executing  authority
follows certain formalities for the execution of the warrant. Four specific formalities
are mentioned:

(a) where, in the opinion of the issuing authority, there is a significant risk that the
objects,  documents  or  data  sought  might  be  altered,  moved  or  destroyed,  the
issuing  authority  may  require  that  the  executing  authority  uses  coercive
measures to execute the warrant. This is designed to ensure that the executing
authority  obtains  the  objects,  documents  and  data  in  a  way  that  ensures  that
they will not be altered or destroyed, for example by avoiding any reliance on
the  voluntary  co-operation  of  the  party  in  control  of  them.  Any  such
requirement must be justified in Form A in the Annex.

22

(b)

(c)

the  fact  that  an  investigation  is  being  carried  out,  and  the  substance  of  the
investigation, shall be kept confidential except to the extent necessary for the
execution  of 
the  European  Evidence  Warrant.  Similar  obligations  of
confidentiality can be found in Article 4 of the 2001 Protocol47 to the EU 2000
Convention in respect of monitoring and information on banking transactions,
and  in  Article  33  of  the  1990  European  Convention  on  Laundering,  Search,
Seizure and Confiscation of the Proceeds from Crime48.

the executing State should allow a competent authority of the issuing State, or
an interested party nominated by the issuing authority, to be present during the
execution of the warrant. This is based on Article 4 of the 1959 Convention49.
However, unlike the  1959 Convention, it  is proposed  that  the  executing State
could not refuse to accept the presence of such parties. Moreover, the executing
State should allow the authority from the issuing State that is present to have
the  same  access  as  the  executing  authority  to  any  object,  document  or  data
obtained as a result of the execution of the warrant. This is in order to ensure
that the presence of the issuing authority has some practical value notably with
a view to issuing a warrant for additional evidence in accordance with Article
9(3).

(d)

the issuing authority should be able to require the executing authority to keep a
record of  who  has  handled the  evidence  from  the execution of the  warrant  to
the  transfer  of  the  evidence  to  the  issuing  State.  This  should  help  to
demonstrate the integrity of the “chain of evidence”.

100.

Subparagraph (e) follows the approach of Article 4 of the EU 2000 Convention50. It
allows  the  issuing  authority  to  require  that  the  executing  authority  complies  with
other  specified  formalities  and  procedures  expressly  indicated  by  it,  unless  such
formalities  and  procedures  are  contrary  to  the  fundamental  principles  of  law  in  the
executing State. For example, an issuing authority seeking the seizure and transfer of
computer  data  will  need  to  consider  indicating  formalities  and  procedures  that  will
ensure the security and integrity of the computer data.

Article 14 – Obligation to inform

101.

This  Article  is  based  upon  Article  5  of  the  2001  Protocol51  to  the  EU  2000
Convention. It requires the executing authority, in the course of the execution of the
European  Evidence  Warrant,  to  inform  immediately  the  issuing  authority  when  it
considers that it may be necessary to undertake investigations not initially foreseen.

47

48

49

50

51

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.
Council of Europe, European Treaty Series No 141.
Council of Europe, European Treaty Series No 30.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.
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.

23

                                                
Article 15 – Grounds for non-recognition or non-execution

102.

This  Article  addresses  grounds  for  refusing  to  recognise  and  execute  the  European
Evidence Warrant. The only grounds for refusal are those in this Article as well as,
for  a  transitional  period,  dual  criminality  as  provided  for  in  Articles  16  and  24.  A
decision  of  non-recognition  or  non-execution  is  explicitly  limited  to  a  judge,
investigating  magistrate  or  prosecutor  in  the  executing  State.  This  avoids  the
situation  in  which  a  police  or  administrative  authority  would  have  the  power  to
overturn  a  judicial  decision.  In  cases  where  a  police  or  administrative  authority  is
responsible for the execution of the warrant, that authority must nevertheless seek the
decision  of  a  judge,  investigating  magistrate  or  prosecutor  in  order  to  refuse  to
recognise and execute the warrant.

103. With  respect  to  ne  bis  in  idem,  a  distinction  is  made  between  situations  in  which
there is a ne bis in idem in another Member State, and situations in which ne bis in
idem might arise as a result of proceedings in a third State. As regards the principle
of ne bis in idem with respect to another Member State, this will be governed by the
outcome  of  discussions  on  the  initiative  of  the  Hellenic  Republic  for  a  Council
Framework Decision concerning the application of the ne bis in idem principle52. In
such  circumstances,  it  should  be  mandatory  to  refuse  to  recognise  and  execute  the
European Evidence Warrant. With respect to ne bis in idem as a result of proceedings
in a third State, there is an optional ground of refusal to recognise and execute. This
distinction is consistent with the approach adopted in the Framework Decision on the
European arrest warrant53.

104.

Refusal  is  also  permitted  where  an  immunity  or  privilege  under  the  law  of  the
executing State makes it impossible to execute the European Evidence Warrant. This
is the approach adopted in the Framework Decision on freezing orders.

Article 16 – Dual criminality

105.

Refusal  to  execute  the  European  Evidence  Warrant  on  the  grounds  that  the  act  on
which  it  is  based  does  not  constitute  an  offence  under  the  national  law  of  the
executing  State  (dual  criminality)  is  inconsistent  with  the  principle  of  mutual
recognition  of  a  judicial  decision.  It  should  consequently  not  be  possible  to  refuse
execution on such grounds. However, in order to facilitate the change-over from the
existing  rules  to  the  new  mutual  recognition  regime  of  the  European  Evidence
Warrant, a two-stage approach is proposed. First, this Article narrows the conditions
in which execution can be made dependant on dual criminality. Secondly, Article 24
provides  that  dual  criminality,  as  more  narrowly  defined  by  Article  16,  can  be
invoked only for a transitional period.

52

53

OJ C 100, 26.4.2003, p. 24.
OJ L 190, 18.7.2002, p. 1.

24

                                                
106.

107.

108.

109.

110.

Under the 1959 Convention54, dual criminality may be imposed as a condition of co-
operation  to  obtain  evidence  only  with  respect  to  search  and  seizure  powers.  This
was  further  restricted  by  Article  51  of  the  1990  Schengen  Convention55,  which
addressed  the  issue  of  administrative  proceedings  in  criminal  matters.  Dual
criminality  cannot  be  imposed  as  a  condition  of  execution  where  the  objects,
documents or data are already under the control of the executing authority.

This  Article  builds  on  the  position  in  existing  instruments  that  dual  criminality  is
abolished  except  where  the  executing  State  considers  it  necessary  to  carry  out  a
seizure or a search of premises. It goes further by abolishing the ability to refuse co-
operation on the ground of dual criminality where either:

(a)

it is not necessary to carry out a search of private premises for the execution of
the warrant. This reflects the added sensitivity of searching private premises; or

(b)

the offence is on the list of offences specified in this Article.

The list of offences in this Article is copied from the list of offences in Article 2 of
the  draft  Framework  Decision  on  the  application  of  the  principle  of  mutual
recognition to financial penalties. This builds upon the list of offences in Article 2 of
the Framework Decision on the European arrest warrant56, which is also incorporated
in Article 3 of the Framework Decision on freezing orders.

In line with the approach adopted in the draft Framework Decision on the application
of the principle of mutual recognition to financial penalties, the list does not contain
a threshold level of imprisonment or other penalty in the issuing State.

Paragraph  3  provides  that  even  if  it  is  necessary  to  carry  out  a  search  of  private
premises and the offence is not on the list, then dual criminality can be invoked as a
ground of refusal only as provided for by the transitional arrangements in Article 24.

Article 17 – Deadlines and procedures for recognition, execution and transfer

111.

112.

This Article establishes deadlines for the recognition and execution of the European
Evidence Warrant. Deadlines are necessary to ensure quick, effective and consistent
co-operation  on  obtaining  objects,  documents  or  data  for  use  in  proceedings  in
criminal matters throughout the European Union.

The  issuing  authority  is  able  to  indicate  in  Form  A  in  the  Annex  that,  due  to
procedural  deadlines  or  other  particularly  urgent  circumstances,  a  shorter  deadline
than  otherwise  laid  down  in  this  Article  is  necessary.  In  such  cases,  the  executing
authority is required to take as full account as possible of the shorter deadline. This is
the approach already adopted in Article 4 of the EU 2000 Convention57.

54

55

56

57

Council of Europe, European Treaty Series No 30.
Convention  of  19  June  1990  implementing  the  Schengen  Agreement  of  14  June  1985  on  the  gradual
abolition of checks at the common borders, OJ L 239, 22.9.2000, p. 19.
OJ L 190, 18.7.2002, p. 1.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of
the European Union, OJ C 197, 12.7.2000, p. 1.

25

                                                
113.

114.

115.

116.

117.

This  proposal  goes  further  by  requiring  that  any  decision  to  refuse  recognition  or
execution must be taken and notified as soon as possible and, whenever practicable,
within  10  days  of  the  receipt  of  the  European  Evidence  Warrant.  This  is  the  same
deadline as used in Article 17(2) of the Framework Decision on the European arrest
warrant with regard to persons who have consented to surrender.

Execution of the warrant may be postponed for one of the reasons set out in Article
18.  Otherwise  it  should  be  executed  immediately  in  situations  where  the  objects,
documents or data sought by the issuing authority are already under the control of the
executing  authority, or where  a  copy of  an official  record of  criminal  conviction  is
sought  from  a  central  criminal  records  authority.  In  other  circumstances,  such  as
where  coercive  measures  are  required,  the  warrant  should  be  executed,  wherever
practicable, within 60 days of its receipt.

Transfer  of  the  objects,  documents  or  data  obtained  under  the  European  Evidence
Warrant  to  the  issuing  State  should  take  place  immediately  where  the  objects,
documents or data are already under the control of the executing authority, or where
a copy of an official record of criminal conviction is sought from a central criminal
records  authority.  In  other  cases,  transfer  should  take  place  without  delay  and,
wherever  practicable,  within  30  days  of  the  execution  of  the  warrant.  The  only
exception to this rule is where there is a legal remedy is underway in the executing
State, in which case the procedures and deadlines of Article 19 apply.

In  accordance  with  Article  6(2)  of  the  1959  Convention58,  the  executing  authority
may require that the objects, documents or data should be returned to the executing
State  as  soon  as  they  are  no  longer  required  by  the  issuing  State.  No  further
conditions  may  be  placed  on  the  transfer  of  the  objects,  documents  or  data  to  the
issuing State.

Reasons must be given for any  refusal or failure to execute the  European  Evidence
Warrant.  Where,  in  exceptional  circumstances,  a  Member  State  cannot  observe  the
time limits provided  for  in  this  Article,  it  is  required  to  inform  Eurojust  giving  the
reasons for the delay. This information is intended to assist Eurojust in its efforts to
improve  judicial  co-operation  in  criminal  matters.  This  requirement  is  based  on
Article 17 of the Framework Decision on the European arrest warrant59.

Article 18 – Grounds for postponement of execution

118.

This Article establishes the grounds for which postponement of execution is justified.

119.

Postponement  of  execution  may  occur  where  the  form  is  incomplete;  its  execution
might damage  an ongoing criminal investigation;  or the objects, documents  or data
concerned are already being used in other proceedings falling within the scope of this
Framework Decision. The relevant competent authority in the issuing State should be
informed of the reasons for the postponement and its likely duration.

120.

As soon as the ground for postponement has ceased to exist, the executing authority
must  forthwith  take  the  necessary  measures  for  the  execution  of  the  European
Evidence Warrant and inform the relevant competent authority in the issuing State.

58

59

Council of Europe, European Treaty Series No 30.
OJ L 190, 18.7.2002, p. 1.

26

                                                
Article 19 – Legal remedies for coercive measures

121.

122.

123.

124.

125.

Member States must provide legal remedies available to interested parties, including
bona fide third parties, in order to preserve their legitimate interests for situations in
which the execution of the European Evidence Warrant requires coercive measures.
It  is  therefore  not  compulsory  for  Member  States  to  introduce  legal  remedies  in
situations where, for example, the objects, documents and data are already under the
control of a judicial authority in the executing State and are simply being transferred
to  the  issuing  authority.  In  such  circumstances,  it  is  left  to  the  Member  States  to
protect the rights of persons affected by the proceedings in accordance with domestic
law and in conformity with the ECHR.

This Article is based on the approach adopted in the Framework Decision on freezing
orders. However, in this proposal, the legal remedies can have suspensive effect on
the  transfer  of  the  objects,  documents  and  data  to  the  issuing  State,  subject  to  the
deadline below.

In general, the legal remedy should be brought before a court in the issuing State or
in the executing State in accordance with the national law of each. However, it is not
possible for the substantial reasons for issuing the European Evidence Warrant to be
challenged in the executing State. Instead, the reasons for issuing the warrant may be
challenged only in an action brought before a court in the issuing State.

The issuing State is required to ensure that any time limits for bringing an action are
applied  in  a  way  that  guarantees  the  possibility  of  an  effective  legal  remedy  for
interested  parties.  Both  the  issuing  and  executing  States  are  required  to  take  the
necessary  measures  to  facilitate  the  exercise  of  the  right  to  bring  an  action,  in
particular by providing relevant and adequate information to interested parties.

As  mentioned  above,  the  executing  State  may  suspend  the  transfer  of  the  objects,
documents  or  data  pending  the  outcome  of  a  legal  remedy.  However,  despite  the
existence of a legal remedy in the executing State, the issuing authority may require
the  executing  State  to  transfer  the  objects,  documents  or  data  60  days  after  the
execution  of  the  European  Evidence  Warrant.  This  is  intended  to  provide  an
appropriate balance between the need to avoid paralysis in judicial co-operation as a
result  of  legal  challenges  to  the  transfer  of  the  objects,  documents  or  data,  and  the
need to provide adequate  legal remedies  to interested parties  in the  executing  State
prior to the transfer. In such cases, however, if, as the outcome of the legal remedy
the  transfer  would  not  have  been  allowed,  the  objects,  documents  and  data  shall
immediately be returned to the executing State.

Article 20 – Reimbursement

126.

This Article deals with reimbursement by the issuing State to the executing State in
respect  of  any  sums  paid  in  damages  by  virtue  of  the  responsibility  of  the  issuing
State except if, and to the extent that, the injury or any part of it is exclusively due to
the conduct of the executing State. This is the same approach as that adopted in the
Framework Decision on freezing orders.

27

Title IV – Jurisdiction over electronic communications networks

Article  21  –  Jurisdiction  for  computer  data  held  on  an  information  system  on  the
territory of another Member State

127.

As described in Section 1.12, this Article clarifies that it is lawful for the executing
State to obtain evidence in the form of computer data that is lawfully accessible from
its  territory using an  electronic  communications network,  provided that  it relates to
services provided to its territory, even though it is stored on the territory of another
Member State. Each Member State is also required to verify that, with respect to data
on its territory, its domestic law does not prohibit another Member State from taking
such action.

Title V – Final provisions

Article 22 – Monitoring the effectiveness of the Framework Decision

128.

It  is  important  that  the  Commission  is  able  to  monitor  the  effectiveness  of  this
Framework Decision, in particular to assist the future  development  of  policy  at  EU
level  on  how  to  improve  the  effectiveness  of  judicial  co-operation  in  criminal
matters. With this in mind, there is a requirement to inform the Commission if there
are  repeated  problems  in  the  execution  of  European  evidence  warrants.  This
requirement  is  based  on  Article  17  of  the  Framework  Decision  on  the  European
arrest  warrant60,  except  that  it  is  the  Commission  rather  than  the  Council  that  is
informed of any repeated problems so as to assist its preparation of the report to the
European Parliament and Council on the implementation of the Framework Decision.

129.

This Article also requires each Member State to provide, by 31 March each year, the
following information in respect of the preceding calendar year:

(a)

(b)

(c)

the  number  of  European  Evidence  Warrants  issued  by  its  own  authorities  to
each Member State;

the  average  number  of  days  taken  to  receive  the  objects,  documents  or  data
specified in the warrant from each Member State; and

the  number  of  European  Evidence  Warrants  issued  by  its  own  authorities  to
each Member State for which recognition was refused, or for which execution
was not possible, and a summary of the reasons for this.

130.

The information is gathered centrally by the issuing State. It is reasonable to assume
that  the  issuing  State  will  attach  importance  to  ensuring  that  its  investigations  are
facilitated  effectively  and  quickly  by  other  Member  States.  There  is,  of  course,
nothing to stop each Member State from also keeping central information about the
effectiveness  of  its  own  judicial  authorities’  execution  of  European  Evidence
Warrants issued by other Member States.

60

OJ L 190, 18.7.2002, p. 1.

28

                                                
131.

In  addition,  similar  information  is  required  to  be  produced  each  year  by  central
criminal records authorities with respect to their execution of warrants  they  receive
for the production of official records of criminal convictions.

Article 23 – Relation to other legal instruments

132.

133.

134.

This  Article  ensures  that  this  Framework  Decision  replaces  existing  mutual
assistance  provisions  in  relevant  Conventions  of  the  Council  of  Europe  and  of  the
European Union in so far as these deal with objects, documents or data falling within
the scope of this instrument. A similar approach was adopted for the European Arrest
Warrant, which will replace existing extradition instruments from 1 January 2004.

This  Article  also  ensures  the  repeal  of  Article  51  of  the  Schengen  Implementation
Convention and Article 2 of the 2001 Protocol to the EU 2000 Convention.

The Framework Decision is without prejudice to co-operation arrangements between
Member States with respect to obtaining objects, documents or data in so far as such
agreements  or  arrangements  achieve  more  effective  and  efficient  co-operation  in
criminal  matters.  Such  arrangements  might  include  co-operation  between  police
authorities with respect to objects, documents and data already held by them, as well
as co-operation with respect to public documents which are easily  available and do
not  involve  the  exercise  of  coercive  measures.  It  is  not  the  intention  of  this
Framework  Decision  to  add  new  barriers  to  such  co-operation.  However,  it  is
proposed  that  any  new  arrangements  or  agreements  should  be  notified  to  the
Commission and the Council.

Article 24 – Transitional arrangements

135.

136.

Paragraph 1 of this Article clarifies that mutual assistance requests received before 1
January 2005 will continue to be governed by existing instruments relating to mutual
assistance in criminal matters. After that date, this Framework Decision will govern
judicial co-operation in criminal matters with  respect  to  objects, documents or data
falling within its scope.

Paragraphs 2 and 3 of this Article provide for a five-year transitional period during
which  dual  criminality,  to  the  extent  that  it  is  not  abolished  by  Article  16,  may
continue  to  be  invoked  as  a  ground  for  refusal  by  those  Member  States  that  have
already  under  existing  rules  made  execution  of  a  request  for  search  and  seizure
dependent on the condition of dual criminality. During that transitional period those
Member States may allow a judicial authority to refuse recognition or execution on
the  ground  of  dual  criminality  as  defined  in  Article  16.  As  with  the  grounds  of
refusal provided for in Article 15, a decision of non-recognition or non-execution is
explicitly limited to a judge, investigating magistrate or prosecutor in the executing
State.  Dual  criminality  cannot  be  invoked  as  a  ground  for  non-recognition  or  non-
execution  of  the  European  Evidence  Warrant  other  than  as  provided  for  in  this
Article.

29

Article 25 – Implementation

137.

This  Article  requires  that  Member  States  must  implement  the  Framework  Decision
by 1 January 2005 and, by the same date, send the text of the provisions transposing
this  Framework  Decision  into  national  law.  Six  months  after  implementation,  the
Commission  must  submit  a  report  to  the  European  Parliament  and  to  the  Council,
assessing the extent to which the Member States have taken the necessary measures
in  order  to  comply  with  this  Framework  Decision,  accompanied,  if  necessary,  by
legislative proposals.

Article 26 – Entry into force

138.

This  Article  provides  that  the  Framework  Decision  will  enter  into  force  on  the
twentieth day following that of its publication in the Official Journal of the European
Union.

Annex

Form A – the European Evidence Warrant

139.

140.

This  is  the  form  for  the  European  Evidence  Warrant  itself.  It  has  been  produced
specifically for the purposes of this Framework Decision. However, it is also based
upon the approach adopted in the annex to the Framework Decision on the European
arrest warrant61, and the annex to the Framework Decision on freezing orders.

Form  A  contains  the  following  sections:  (a)  the  judicial  authority  which  issued  the
warrant; (b) reasons for issuing the warrant; (c) information on person in respect of
whom objects, documents or data are sought; (d) objects, documents or data sought
by the warrant; (e) formalities to be complied with for the execution of the warrant;
(f)  legal  remedies  against  the  warrant  available  in  the  issuing  State;  and  (g)  final
provisions and signature.

Form B – the Warrant for additional evidence

141.

142.

This  is  the  form  for  seeking  additional  objects,  documents  or  data  required  by  the
issuing authority with respect to an earlier European Evidence Warrant. The original
European Evidence Warrant must be attached to this form.

Form B contains the following sections: (a) details of the original European Evidence
Warrant;  (b)  objects,  documents  or  data  sought  by  the  additional  warrant;  (c)
formalities to be complied with for the  execution of the additional warrant; and (d)
final provisions and signature.

61

OJ L 190, 18.7.2002, p. 1.

30

                                                
2003/0270 (CNS)

Proposal for a

COUNCIL FRAMEWORK DECISION

on the European Evidence Warrant for obtaining objects, documents and data for use in
proceedings in criminal matters

THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  on  European  Union,  and  in  particular  Articles  31  and  34(2)(b)
thereof,

Having regard to the proposal of the Commission62,

Having regard to the opinion of the European Parliament63,

Whereas,

(1)

(2)

(3)

(4)

62 
63

64

65

66

The European Union has set itself the objective of maintaining and developing an area
of  freedom,  security  and  justice.  According  to  the  Conclusions  of  the  Tampere
European Council of 15 and 16 October 1999, and in particular point 33 thereof, the
principle of mutual recognition should become the cornerstone of judicial co-operation
in both civil and criminal matters within the Union.

On  29  November  2000  the  Council,  in  accordance  with  the  Tampere  conclusions,
adopted a programme of measures to implement the principle of mutual recognition in
criminal matters64. This Framework Decision is necessary to complete measures 5 and
6 of the programme of measures, which deal with the mutual recognition of orders to
obtain evidence, and measure 3 of the programme of measures, which suggests that a
standard  form  like  that  drawn  up  for  the  Schengen  bodies,  translated  into  all  the
official languages, should be introduced for the purpose of obtaining criminal records.

The Council Framework Decision of 13 June 2002 on the European arrest warrant and
the surrender procedures between Member States65 was the first  concrete measure in
the field of criminal law implementing the principle of mutual recognition.

The Council Framework Decision  of 22 July 2003 on  the  execution  in the European
Union  of  orders  freezing  property  and  evidence66  addresses  the  need  for  immediate
mutual  recognition  of  orders  to  prevent  the  destruction,  transformation,  moving,
transfer or disposal of evidence. However, this deals only with part of the spectrum of

OJ C …
OJ C …
OJ C 12, 15.1.2001, p. 10.
OJ L 190, 18.7.2002, p. 1.
OJ L 196, 02.08.2003, p. 45

31

                                                
(5)

(6)

(7)

(8)

(9)

(10)

judicial  co-operation  in  criminal  matters  with  respect  to  evidence,  and  subsequent
transfer of the evidence is left to mutual assistance procedures.

It  is  therefore  necessary  to  further  improve  judicial  co-operation  by  applying  the
principle  of  mutual  recognition  to  a  judicial  decision,  in  the  form  of  a  European
warrant,  for  the  purpose  of  obtaining  objects,  documents  and  data  for  use  in
proceedings in criminal matters. This European Evidence Warrant should replace the
traditional mutual assistance arrangements under the 1959 Convention of the Council
of Europe on Mutual Assistance in Criminal Matters, and related instruments, in so far
as these arrangements fall within the scope of this instrument. It should be transmitted
directly to the competent authority for execution.

The European Evidence Warrant should be used to obtain any objects, documents and
data  for  use  in  proceedings  in  criminal  matters  for  which  the  European  Evidence
Warrant may be issued. This  includes  objects, documents or data from a third party;
from a search of premises including the private premises of the suspect; historical data
on  the  use  of  electronic  communications  networks;  historical  data  on  the  use  of  any
services including financial transactions; forensic evidence except where this involves
taking evidence from a person’s body; historical records of statements, interviews and
hearings;  and  other  records  from  police  or  judicial  files  including  official  records  of
criminal convictions and the results of special investigative techniques.

The European Evidence Warrant should not be used to initiate the taking of evidence
in  the  form  of  interviews,  statements  or  other  types  of  hearings  involving  suspects,
witnesses  or  any  other  party;  to  initiate  the  taking  of  evidence  from  the  body  of
suspects, witnesses or any other person, including DNA samples; to initiate the taking
of  evidence  in  real-time  such  as  through  the  interception  of  communications,  covert
surveillance  or  monitoring  of  bank  accounts;  or  to  initiate  further  inquiries,  in
particular the compilation or analysis of existing objects, documents or data.

The  principle  of  mutual  recognition  is  based  on  a  high  level  of  confidence  between
Member States. In order to promote this confidence, this Framework Decision should
contain  important  safeguards  to  protect  fundamental  rights.  It  should  therefore  be
issued  only  by  judges,  investigating  magistrates  and  prosecutors,  and  only  when
certain  minimum  conditions  have  been  satisfied.  These  should  include  the  tests  of
necessity  and  proportionality.  There  is  also  a  need  to  prevent  the  issuing  State  from
circumventing its national  law by  obtaining objects, documents or  data that it  would
not  be  able  to  obtain  in  similar  circumstances  if  they  were  available  on  its  own
territory.

The execution of the European Evidence Warrant should also be subject to safeguards,
including  protection  against  self-incrimination  and  safeguards  for  the  search  of
premises,  as  well  as  other  safeguards  which  exist  under  the  national  law  of  the
executing State.

To ensure the effectiveness of judicial co-operation in criminal matters, the possibility
of  refusing  to  recognise  or  execute  the  European  Evidence  Warrant,  as  well  as  the
grounds for postponing execution, should be limited. In particular, refusal to execute
the European Evidence Warrant on the grounds that the act on which it is based does
not  constitute  an  offence  under  the  national  law  of  the  executing  State  (dual
criminality)  is  inconsistent  with  the  principle  of  mutual  recognition  of  a  judicial
decision  and  consequently  it  should  not  be  possible  to  refuse  execution  on  such

32

grounds.  However,  in  order  to  facilitate  the  change-over  to  the  European  Evidence
Warrant, exception should be made for a transitional period for those Member States
that  have  under  existing  rules  made  execution  of  a  request  for  search  and  seizure
dependent on the condition of dual criminality.

(11) Deadlines are also necessary to ensure quick, effective and consistent co-operation on
obtaining  objects,  documents  or  data  for  use  in  proceedings  in  criminal  matters
throughout the European Union.

(12) Any  interested  party,  including  bona  fide  third  parties,  should  have  legal  remedies
against  a  European  Evidence  Warrant  executed  using  coercive  measures.  Such  legal
remedies may have suspensive effect on the transfer of the evidence, at least until the
maximum deadline laid down in this Framework Decision has expired.

(13)

(14)

It  is  necessary  to  clarify  that  the  executing  State  may  obtain  data  that  is  lawfully
accessible  from  its  territory  and  relates  to  services  provided  to  its  territory,  but  is
nevertheless stored on the territory of another Member State. This without prejudice to
situations involving third countries.

It is necessary to establish a mechanism to assess the effectiveness of this Framework
Decision.  Member  States  should  therefore  gather  and  record  centrally  a  minimum
amount  of  information  for  the  purpose  of  monitoring  the  co-operation  they  receive
from other Member States pursuant to this Framework Decision. Similar information
should  be  gathered  and  recorded  by  Member  States’  central  criminal  records
authorities.

(15) As regards Iceland and Norway, this Framework  Decision constitutes a development
of  the  provisions  of  the  Schengen  acquis  which  falls  within  the  area  referred  to  in
Article 1 of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements
for the application of the Agreement concluded by the Council of the European Union
and the Republic of Iceland and the Kingdom of Norway concerning the association of
those  two  State  with  the  implementation,  application  and  development  of  the
Schengen  acquis67.  The  procedures  set  out  in  that  Agreement  have  been  followed  in
respect of this Framework Decision.

(16) A European Evidence Warrant should not be executed if this would infringe the ne bis
in  idem  principle  according  to  the  Framework  Decision  2003/…/JHA  on  the
application of the principle of ne bis in idem68.

(17)

Since  the  aim  of  replacing  the  system  of  mutual  assistance  in  criminal  matters  for
obtaining objects, documents or  data  cannot be  sufficiently achieved by  the Member
States acting unilaterally and can therefore, by reason of its scale and effects, be better
achieved  at  Union  level,  the  Council  may  adopt  measures  in  accordance  with  the
principle of subsidiarity as  referred to in  Article  2  of  the  Treaty  on  European  Union
and Article 5 of the Treaty establishing the European Community. In accordance with
the  principle  of  proportionality,  as  set  out  in  the  latter  Article,  this  Framework
Decision does not go beyond what is necessary in order to achieve that objective.

67

68

OJ L 176, 10.7.1999, p. 31
OJ L …

33

                                                
(18)

The personal data processed in the context of the implementation of  this  Framework
Decision will be protected in accordance with the principles of the Council of Europe
Convention  of  28  January  1981  for  the  protection  of  individuals  with  regard  to  the
automatic processing of personal data, as well as by the additional protection afforded
by  this  Framework  Decision  in  line  with  Article  23  of  the  Convention  on  Mutual
Assistance in Criminal Matters between the Member States of the European Union of
29 May 200069.

(19)

This Framework Decision respects the fundamental rights and observes the principles
recognised by Article 6 of the Treaty on European Union and reflected by the Charter
of Fundamental Rights of the European Union.

HAS ADOPTED THIS FRAMEWORK DECISION:

TITLE I – THE EUROPEAN EVIDENCE WARRANT

Article 1
Definition of the European Evidence Warrant and obligation to execute it

1.

2.

The  European  Evidence  Warrant  is  a  judicial  decision  issued  by  a  competent
authority  of  a  Member  State  with  a  view  to  obtaining  objects,  documents  and  data
from another Member State for use in proceedings referred to in Article 4.

Member  States  shall  execute  any  European  Evidence  Warrant  on  the  basis  of  the
principle  of  mutual  recognition  and  in  accordance  with  the  provisions  of  this
Framework Decision.

For the purposes of this Framework Decision,

Article 2
Definitions

(a)

(b)

(c)

(d)

"issuing  State"  shall  mean  the  Member  State  in  which  the  European  Evidence
Warrant has been issued.

"executing  State"  shall  mean  the  Member  State  in  whose  territory  the  objects,
documents or data are available.

“issuing  authority”  shall  mean  a  judge,  investigating  magistrate  or  prosecutor  with
competence under national law to issue a European Evidence Warrant.

“executing authority” shall mean an authority with competence under national law to
execute a European Evidence Warrant.

69

OJ C 197, 12.7.2000, p. 1.

34

                                                
(e)

(f)

(g)

(h)

1.

2.

3.

“information  system”  means  any  device  or  group  of  inter-connected  or  related
devices, one or more of which, pursuant to a program, performs automatic processing
of computer data, as well as computer data stored, processed, retrieved or transmitted
by them for the purposes of their operation, use, protection and maintenance.

“computer data” means any representation of facts, information or concepts in a form
suitable  for  processing  in  an  information  system,  including  a  program  suitable  for
causing an information system to perform a function.

“electronic  communications  network”  means  transmission  systems  and,  where
applicable,  switching  or  routing  equipment  and  other  resources  which  permit  the
conveyance  of  signals  by  wire,  by  radio,  by  optical  or  by  other  electromagnetic
means,  including  satellite  networks,  fixed  (circuit-  and  packet-switched,  including
Internet) and mobile terrestrial networks, electricity cable systems, to the extent that
they  are  used  for  the  purpose  of  transmitting  signals,  networks  used  for  radio  and
television  broadcasting,  and  cable  television  networks,  irrespective  of  the  type  of
information conveyed.

“offence” means criminal offence or act which is punishable under the national law
of the issuing State by virtue of being an infringement of the rules of law, provided
that the decision  may  give  rise to  proceedings  before  a  court  having  jurisdiction  in
particular in criminal matters.

Article 3
Types of objects, documents or data covered

The European Evidence Warrant may be issued with respect to obtaining any type of
object, document or data which could be used in proceedings referred to in Article 4.

The European Evidence Warrant shall not be issued for the purpose of initiating:

(a)

the  taking of  evidence in the  form of interviews, statements or other types of
hearings involving suspects, witnesses, experts or any other party;

(b)

the taking of evidence from the body of any person, including DNA samples;

(c)

(d)

the  taking  of  evidence  in  real-time  such  as  through  the  interception  of
communications, covert surveillance or monitoring of bank accounts; and

the taking of evidence requiring further inquiries, in particular the compilation
or analysis of existing objects, documents or data.

The  European  Evidence  Warrant  may  be  issued  with  respect  to  obtaining  existing
evidence  falling  within  paragraph  2  where  the  evidence  has  been  gathered  prior  to
the issuing of the warrant.

35

Article 4
Type of proceedings for which the European Evidence Warrant may be issued

The European Evidence Warrant may be issued with respect to the following proceedings:

(a)

(b)

(c)

1.

2.

criminal proceedings;

proceedings  brought  by  administrative  authorities  in  respect  of  acts  which  are
punishable  under  the  national  law  of  the  issuing  State  by  virtue  of  being
infringements  of  the  rules  of  law,  and  where  the  decision  may  give  rise  to
proceedings before a court having jurisdiction in particular in criminal matters; and

proceedings  referred  to  in  points  (a)  and  (b)  which  relate  to  offences  for  which  a
legal person may be held liable in the issuing State.

Article 5
Content and form of the European Evidence Warrant

The European Evidence Warrant shall contain the information set out in Form A in
the  Annex.  It  must  be  signed,  and  its  contents  certified  as  accurate,  by  the  issuing
authority.

The  European  Evidence  Warrant  shall  be  translated  by  the  issuing  State  into  the
official language or one of the official languages of the executing State.

Any Member State may, when this Framework Decision is adopted or at a later date,
state in a declaration deposited with the General Secretariat of the Council that it will
accept a translation in one or more other official languages of the Institutions of the
European Communities.

TITLE II – PROCEDURES AND SAFEGUARDS FOR THE ISSUING STATE

Article 6
Conditions for issuing the European Evidence Warrant

Each Member State shall take the necessary measures to ensure that the European Evidence
Warrant  is  issued  only  when  the  issuing  authority  is  satisfied  that  the  following  conditions
have been met:

(a)

(b)

(c)

the  objects,  documents  or  data  sought  are  necessary  and  proportionate  for  the
purpose of proceedings in Article 4.

the objects, documents or data can be obtained under the law of the issuing State in
similar circumstances if they were available on the territory of the issuing State, even
though different procedural measures might be used.

the  objects,  documents  or  data  are  likely  to  be  admissible  in  the  proceedings  for
which they are sought.

36

1.

2.

3.

1.

2.

1.

2.

3.

Article 7
Transmission of the European Evidence Warrant

The European Evidence Warrant shall be transmitted by the issuing authority directly
to  the  competent  authority  for  execution  by  any  means  capable  of  producing  a
written record under conditions allowing the executing State to establish authenticity.

If the competent authority for execution is unknown, the issuing authority shall make
all  necessary  inquiries,  including  via  the  contact  points  of  the  European  Judicial
Network, in order to obtain the information from the executing State.

When  the  authority  in  the  executing  State  which  receives  the  European  Evidence
Warrant has no jurisdiction to recognise it and to take the necessary measures for its
execution,  it  shall,  ex  officio,  transmit  the  European  Evidence  Warrant  to  the
competent authority for execution and shall so inform the issuing authority.

Article 8
Central criminal records authority

Each  Member  State  shall  designate,  in  a  declaration  deposited  with  the  General
Secretariat of the Council, a central criminal records authority to which the European
Evidence  Warrant  can  be  transmitted  for  the  purpose  of  obtaining  a  copy  of  any
official  record  in  that  Member  State  of  a  criminal  conviction,  and  subsequent
measures, with respect to a natural or legal person.

Each Member State shall ensure that its central criminal records authority has access
to the information necessary to comply with paragraph 1.

Article 9
Warrant for additional evidence

Where the issuing authority requires objects, documents or data which are additional
to  an  earlier  European  Evidence  Warrant  issued  for  the  purpose  of  the  same
proceedings, and the content of the original warrant remains accurate, it shall not be
required to issue a new European Evidence Warrant. In such circumstances, it shall
issue a warrant for additional evidence containing the information set out in Form B
in the Annex.

The executing State shall comply with any additional requirements under paragraph
1 in the same way as for the original European Evidence Warrant.

Where, in accordance with the provisions in force, the competent authority which has
issued a European Evidence Warrant participates in the  execution of the warrant in
the executing State, it may address the warrant for additional evidence directly to the
executing authority while present in that State.

37

Article 10
Conditions on the use of personal data

1.

Personal  data obtained under  this  Framework Decision  may  be  used  by  the  issuing
State for the purpose of:

(a)

proceedings for which the European Evidence Warrant may be issued;

(b)

judicial  and  administrative  proceedings  directly  related 

other 
proceedings referred to under point (a);

to 

the

(c)

for preventing an immediate and serious threat to public security.

For  any  purpose  other  than  those  set  out  in  the  first  subparagraph  personal  data
obtained under this Framework Decision can be used only with the prior consent of
the  executing  State,  unless  the  issuing  State  has  obtained  the  consent  of  the  data
subject.

Personal  data  obtained  under  this  Framework  Decision  shall  remain  confidential
except in so far as it is necessary to disclose it for the purposes specified in paragraph
1 or for other reasons specified in national law.

In  the  circumstances  of  the  particular  case,  the  executing  State  may  require  the
Member State to which the personal data have been transferred to  give information
on the use made of the data.

This Article does not apply to personal data obtained by a Member State under this
Framework Decision and originating from that Member State.

2.

3.

4.

TITLE III – PROCEDURES AND SAFEGUARDS FOR THE EXECUTING STATE

Article 11
Recognition and execution

Except  as  otherwise  provided  for  in  this  Framework  Decision,  the  executing  authority  shall
recognise  a  European  Evidence  Warrant,  transmitted  in  accordance  with  Article  7,  without
any further formality being required, and shall forthwith take the necessary measures for its
execution  in  the  same  way  as  the  objects,  documents  or  data  would  be  obtained  by  an
authority of the executing State.

Article 12
Safeguards for execution

1.

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  the  European
Evidence Warrant is executed in accordance with the following minimum conditions:

(a)

the executing authority shall use the least intrusive means necessary to obtain
the objects, documents or data;

38

(b)

(c)

a  natural  person  shall  not  be  required  to  produce  objects,  documents  or  data
which may result in self-incrimination; and

the issuing authority shall be informed immediately  if the executing  authority
discovers that the warrant was executed in a manner contrary to the law of the
executing State.

2.

Each Member State shall take the necessary measures to ensure that, where a search
and seizure is considered necessary in order to obtain objects, documents or data, the
following minimum safeguards shall apply:

(a)

(b)

(c)

a  search  of  premises  shall  not  start  at  night,  unless  this  is  exceptionally
necessary due to the particular circumstances of the case;

a person whose premises have been searched shall be entitled to receive written
notification  of  the  search.  This  shall  state,  as  a  minimum,  the  reason  for  the
search, the objects, documents or data seized, and the legal remedies available;
and

in  the  absence  of  the  person  whose  premises  are  being  searched,  the
notification described in  point  (b)  shall  be  provided  to  that  person  by  leaving
the notification on the premises or by other suitable means.

Article 13
Formalities to be followed in the executing State

The issuing authority may require that the executing authority:

(a)

(b)

(c)

(d)

(e)

uses  coercive  measures  to  execute  the  warrant  where,  in  the  opinion  of  the  issuing
authority, there is a significant risk that the objects, documents or data sought might
be altered, moved or destroyed;

keeps  the  fact  that  an  investigation  is  being  carried  out,  and  the  substance  of  the
investigation,  confidential  except  to  the  extent  necessary  for  the  execution  of  the
European Evidence Warrant;

allows a competent authority of the issuing State, or an interested party nominated by
the issuing authority, to be present during the execution of the warrant  and  to  have
the same access as the executing authority to any object, document or data obtained
as a result of the execution of the warrant;

keeps a record of who has handled the evidence from the execution of the warrant to
the transfer of the evidence to the issuing State; or

complies with other specified  formalities and procedures expressly indicated by the
issuing  authority,  unless  such  formalities  and  procedures  are  contrary  to  the
fundamental principles of law in the executing State.

39

Article 14
Obligation to inform

If the executing authority, in the course of the execution of the European Evidence Warrant,
considers that it may be appropriate to undertake investigations not initially foreseen,  which
could not be specified when the warrant was issued, it shall immediately inform the  issuing
authority in order to enable it to take further action.

1.

2.

1.

2.

–

–

–

–

–

70

Article 15
Grounds for non-recognition or non-execution

A  judge,  investigating  magistrate  or  prosecutor  in  the  executing  State  shall  oppose
the recognition or execution of the European Evidence Warrant if this would infringe
the  ne  bis  in  idem  principle  according  to  the  Framework  Decision  2003/.../JHA  on
the application of the principle of ne bis in idem70.

A  judge,  investigating  magistrate  or  prosecutor  in  the  executing  State  may  also
oppose the recognition or execution of the European Evidence Warrant if:

(a)

(b)

its  execution  would  infringe  the  ne  bis  in  idem  principle  with  respect  to
proceedings in a third State; or

there  is  an  immunity  or  privilege  under  the  law  of  the  executing  State  which
makes it impossible to execute the European Evidence Warrant.

Article 16
Dual criminality

The recognition or execution of the European Evidence Warrant shall not be subject
to  verification  of  dual  criminality  if  either  or  both  of  the  following  conditions  are
met:

(a)

it is not necessary to carry out a search of private premises for the execution of
the warrant; or

(b)

the offence is listed in paragraph 2.

The following offences, as they are defined by the law of the issuing State, shall not
be subject to verification of dual criminality under any circumstances:

participation in a criminal organisation,

terrorism,

trafficking in human beings,

sexual exploitation of children and child pornography,

illicit trafficking in narcotic drugs and psychotropic substances,

OJ L …

40

                                                
–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

–

illicit trafficking in weapons, munitions and explosives,

corruption,

fraud,  including  that  affecting  the  financial  interests  of  the  European  Communities
within  the  meaning  of  the  Convention  of  26  July  1995  on  the  protection  of  the
European Communities' financial interests,

laundering of the proceeds of crime,

counterfeiting currency, including of the euro,

computer-related crime,

environmental crime, including illicit trafficking in endangered animal species and in
endangered plant species and varieties,

facilitation of unauthorised entry and residence,

murder, grievous bodily injury,

illicit trade in human organs and tissue,

kidnapping, illegal restraint and hostage-taking,

racism and xenophobia,

organised or armed robbery,

illicit trafficking in cultural goods, including antiques and works of art,

swindling,

racketeering and extortion,

counterfeiting and piracy of products,

forgery of administrative documents and trafficking therein,

forgery of means of payment,

illicit trafficking in hormonal substances and other growth promoters,

illicit trafficking in nuclear or radioactive materials,

trafficking in stolen vehicles,

rape,

arson,

crimes within the jurisdiction of the International Criminal Court,

unlawful seizure of aircraft/ships,

41

–

–

–

–

–

–

–

–

3.

1.

2.

3.

sabotage,

conduct  which  infringes  road  traffic  regulations,  including  breaches  of  regulations
pertaining to driving hours and rest periods and regulations on hazardous goods,

smuggling of goods,

infringements of intellectual property rights,

threats and acts of violence against persons, including violence during sports events,

criminal damage,

theft,

offences  established  by  the  issuing  State  and  serving  the  purpose  of  implementing
obligations  arising  from  instruments  adopted  under  the  Treaty  establishing  the
European Community or under Title VI of the Treaty on European Union.

If neither of the conditions of  paragraph 1 are  met,  recognition  or  execution  of  the
European Evidence Warrant may be subject to the condition of dual criminality only
to the extent provided for in the transitional arrangements laid down in Article 24(2)
and (3).

Article 17
Deadlines for recognition, execution and transfer

Each Member State shall take the necessary measures to ensure compliance with the
deadlines  provided  for  in  this  Article.  Where  the  issuing  authority  has  indicated  in
the  European  Evidence  Warrant  that,  due  to  procedural  deadlines  or  other
particularly  urgent  circumstances,  a  shorter  deadline  is  necessary,  the  executing
authority shall take as full account as possible of this requirement.

Any decision to refuse recognition or execution must be taken and notified as soon as
possible  to  the  relevant  competent  authority  of  the  issuing  State  by  any  means
capable of producing a written record. Such notification shall take place no later than
10  days  after  the  receipt  of  the  European  Evidence  Warrant  by  the  competent
executing authority.

Unless  a  ground  for  postponement  is  justified  in  accordance  with  Article  18,  the
executing authority shall execute the European Evidence Warrant:

(a)

immediately  where  the  objects,  documents  or  data  sought  by  the  issuing
authority are  already under the  control  of  the  executing  authority,  or  where  a
copy  of  an  official  record  of  criminal  conviction  is  sought  from  a  central
criminal records authority;

or, in other circumstances,

(b) without  delay  and,  wherever  practicable,  within  60  days  of  its  receipt  by  the

competent executing authority.

42

4.

5.

6.

7.

8.

9.

1.

Unless a legal remedy is underway in accordance with Article 19, the executing State
shall transfer the objects, documents or data obtained under the European Evidence
Warrant to the issuing State:

(a)

immediately  where  the  objects,  documents  or  data  sought  by  the  issuing
authority  are  already  under  the  control  of  the  executing  authority,  or  where  a
copy  of  an  official  record  of  criminal  conviction  is  sought  from  a  central
criminal records authority;

or, in other circumstances,

(b) without delay and, wherever practicable, within 30 days of its execution.

The  executing  authority  may  require  that  the  objects,  documents  or  data  shall  be
returned to the executing State as soon as they are no longer required by the issuing
State.

Subject to paragraphs 4 and 5, no further conditions shall be placed on the transfer of
the objects, documents or data.

Reasons  must  be  given  for  any  refusal,  failure  or  delay  in  executing  the  European
Evidence Warrant and in the subsequent transfer of the objects, documents or data.

In case it is in practice impossible to execute the European Evidence Warrant for the
reason  that  the  objects,  documents  or  data  have  disappeared,  have  been  destroyed,
cannot be found in the location indicated in the warrant or the location of the objects,
documents or data has not been indicated in a sufficiently precise manner, even after
consultation  with  the  issuing  State,  the  relevant  competent  authority  of  the  issuing
State shall be notified forthwith.

Where, in exceptional circumstances, a Member State cannot observe the time limits
provided for in this Article, it shall inform Eurojust, giving the reasons for the delay.

Article 18
Grounds for postponement of execution

The  executing  authority  may  postpone  the  execution  of  the  European  Evidence
Warrant where:

(a)

the form provided for in the Annex is incomplete;

(b)

(c)

its execution might damage an ongoing criminal investigation, until such time
as it deems reasonable; or

the  objects,  documents  or  data  concerned  are  already  being  used  in  other
proceedings  falling  within  the  scope  of  Article  4,  until  such  time  as  the
evidence is no longer required for this purpose.

43

2.

In the case of paragraph 1(a), the executing authority may:

3.

4.

1.

2.

3.

4.

5.

6.

(a)

postpone execution until the form has been completed or corrected, or

(b)

exempt  the  issuing  authority  from  this  requirement  if  it  considers  that  the
information provided is sufficient to execute the warrant fairly and lawfully.

A report on  the  postponement of the execution of  the  European  Evidence  Warrant,
including the grounds for the postponement and, if possible, the expected duration of
the postponement, shall be made forthwith to the relevant competent authority in the
issuing State by any means capable of producing a written record.

As soon as the ground for postponement has ceased to exist, the executing authority
shall  forthwith  take  the  necessary  measures  for  the  execution  of  the  European
Evidence  Warrant  and  inform  the  relevant  competent  authority  in  the  issuing  State
thereof by any means capable of producing a written record.

Article 19
Legal remedies for coercive measures

Member  States  shall  put  in  place  the  necessary  arrangements  to  ensure  that  any
interested  party,  including  bona  fide  third  parties,  have  legal  remedies  against  a
European  Evidence  Warrant  executed  pursuant  to  Article  11  using  coercive
measures, in order to preserve their legitimate interests.

The  action  shall  be  brought  before  a  court  in  the  issuing  State  or  in  the  executing
State in accordance with the national law of each. However, the substantial reasons
for issuing the European Evidence Warrant, including whether the criteria in Article
6 have been met, may be challenged only in an action brought before a court in the
issuing State.

The issuing State shall ensure that any time limits for bringing an action mentioned
in  paragraphs  1  and  2  are  applied  in  a  way  that  guarantees  the  possibility  of  an
effective legal remedy for interested parties.

If  the  action  is  brought  in  the  executing  State,  the  judicial  authority  of  the  issuing
State shall be informed thereof and of the grounds of the action, so that it can submit
the  arguments  that  it  deems  necessary.  It  shall  be  informed  of  the  outcome  of  the
action.

The issuing and executing authorities shall take the necessary measures to facilitate
the exercise of the right to bring an action mentioned in paragraph 1, in particular by
providing relevant and adequate information to interested parties.

The executing State may suspend the transfer of objects, documents and data pending
the outcome of a legal remedy. However, despite the existence of a legal remedy in
the executing State, the issuing authority may require the executing State to transfer
the  objects,  documents  and  data  60  days  after  the  execution  of  the  European
Evidence  Warrant.  In  such  cases,  if,  as  the  outcome  of  the  legal  remedy  in  the
executing State, the transfer of the objects, documents and data would not have been
allowed, these shall immediately be returned to the executing State.

44

Article 20
Reimbursement

1.

2.

Without  prejudice  to  Article  19(2),  where  the  executing  State  under  its  law  is
responsible  for  injury  caused  to  one  of  the  parties  mentioned  in  Article  19  by  the
execution of a European Evidence Warrant transmitted to it pursuant to Article 7, the
issuing  State  shall  reimburse  to  the  executing  State  any  sums  paid  in  damages  by
virtue  of  that  responsibility  to  the  said  party  except  if,  and  to  the  extent  that,  the
injury or any part of it is exclusively due to the conduct of the executing State.

Paragraph 1 is without prejudice to the national law of the Member States on claims
by natural or legal persons for compensation of damage.

TITLE IV – JURISDICTION OVER ELECTRONIC COMMUNICATIONS NETWORKS

Article 21
Jurisdiction for computer data held on an information system on the territory of another
Member State

1.

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  it  is  able  to
execute a European Evidence Warrant, without further formality, when:

(a)

(b)

the computer data sought is held on an information system on the territory of
another Member State, but is lawfully accessible to a legal or natural person on
the territory of the executing State by means of an electronic communications
network; and

the computer data relates to a service provided by that legal or natural person
on  the  territory  of  the  executing  State  to  a  legal  or  natural  person  on  the
territory of the same State.

Each  Member  State  shall  also  take  the  necessary  measures  to  ensure  that,  with
respect  to  computer  data  on  its  territory,  its  national  law  permits  another  Member
State to take action in accordance with paragraph 1.

TITLE V – FINAL PROVISIONS

Article 22
Monitoring the effectiveness of the Framework Decision

A  Member  State  which  has  experienced  repeated  problems  on  the  part  of  another
Member  State  in  the  execution  of  European  Evidence  Warrants  shall  inform  the
Commission  to  assist  its  evaluation  of  the  implementation  of  this  Framework
Decision at Member State level.

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  it  is  able  to
provide,  by  31  March  each  year,  the  following  information  in  respect  of  the
preceding calendar year:

2.

1.

2.

45

3.

4.

1.

(a)

(b)

(c)

the  number  of  European  Evidence  Warrants  issued  by  its  own  authorities  to
each Member State;

the average  number of days taken  to  receive  the  objects,  documents  and  data
specified in the warrant from each Member State; and

the  number  of  European  Evidence  Warrants  issued  by  its  own  authorities  to
each Member State for which recognition was refused, or for which execution
was not possible, and a summary of the reasons for this.

Each  Member  State  shall  take  the  necessary  measures  to  ensure  that  its  central
criminal records authority is able to provide, by 31 March  each  year, the  following
information  in  respect  of  European  Evidence  Warrants  it  received  in  the  preceding
calendar year:

(a)

(b)

(c)

(d)

the  number  of  European  Evidence  Warrants  it  received  from  each  Member
State;

the average number of days taken to transmit a reply to an European Evidence
Warrant;

the  number  of  refusals  to  execute  a  European  Evidence  Warrant,  and  a
summary of the reasons for the refusals or failures to reply;

the number of European Evidence Warrants to which a reply was not provided
within 10 days, and a summary of the reasons for this.

Upon  written  request  from  the  Commission,  Member  States  shall  provide  to  the
Commission the information specified in paragraphs 2 and 3.

Article 23
Relation to other legal instruments

Without prejudice to their application in relations between Member States and third
countries,  this  Framework  Decision  shall,  from  1  January  2005,  replace  the
corresponding provisions of the following legal instruments in relations between the
Member States in so far as these instruments concern mutual assistance requests for
evidence falling within the scope of this Framework Decision:

(a)

the  European  Convention  on  Mutual  Assistance  in  Criminal  Matters  of  20
April 195971, and its additional protocols of 17 March 197872 and 8 November
200173.

(b)

the European Convention on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime of 8 November 199074.

71

72

73

74

Council of Europe, European Treaty Series No 30.
Council of Europe, European Treaty Series No 99.
Council of Europe, European Treaty Series No 182.
Council of Europe, European Treaty Series No 141.

46

                                                
(c)

(d)

the Convention of 19 June 1990 implementing the Schengen Agreement of 14
June 1985 on the gradual abolition of checks  at common  borders (hereinafter
referred to as the ‘Schengen Implementation Convention’).

the Convention on Mutual Assistance in Criminal Matters between the Member
States of the European Union of 29 May 200075 and its Protocol of 16 October
200176.

2.

The following provisions are hereby repealed:

(a) Article 51 of the Schengen Implementation Convention.

3.

4.

5.

6.

7.

8.

(b) Article  2  of  the  Protocol  of  16  October  2001  to  the  Convention  on  Mutual
Assistance  in  Criminal  Matters  between  the  Member  States  of  the  European
Union of 29 May 2000.

Member  States  may  continue  to  apply  bilateral  or  multilateral  agreements  or
arrangements  in  force  when  this  Framework  Decision  is  adopted  in  so  far  as  such
agreements or arrangements allow the objectives  of this  Framework  Decision  to be
extended  or  enlarged  and  help  to  simplify  or  facilitate  further  the  procedures  for
obtaining evidence falling within the scope of this Framework Decision.

Member  States  may  conclude  bilateral  or  multilateral  agreements  or  arrangements
after this Framework  Decision has  come into  force  in  so far as  such  agreements or
arrangements  allow  the  objectives  of  this  Framework  Decision  to  be  extended  or
enlarged  and  help  to  simplify  or  facilitate  further  the  procedures  for  obtaining
evidence falling within the scope of this Framework Decision.

The agreements and arrangements referred to in paragraphs 3 and 4 may in no case
affect relations with Member States which are not parties to them.

Member  States  shall,  within  three  months  from  the  entry  into  force  of  this
Framework  Decision,  notify  the  Council  and  the  Commission  of  the  existing
agreements and arrangements referred to in paragraph 3 which they wish to continue
applying.

Member  States  shall  also  notify  the  Council  and  the  Commission  of  any  new
agreement  or  arrangement  as  referred  to  in  paragraph  4,  within  three  months  of
signing it.

Where  the  conventions  or  agreements  referred  to  in  paragraph  1  apply  to  the
territories  of  Member  States  or  to  the  territories  for  whose  external  relations  a
Member State is responsible to which this Framework Decision does not apply, those
instruments shall continue to  govern the  relations  existing  between  those  territories
and the other Member States.

75

76

OJ C 197, 12.7.2000, p. 1.
OJ C 326, 21.11.2001, p. 1.

47

                                                
Article 24
Transitional arrangements

Mutual  assistance  requests  received  before  1  January  2005  will  continue  to  be
governed  by  existing  instruments  relating  to  mutual  assistance  in  criminal  matters.
Requests received on or after that date for  evidence falling within the scope of this
Framework  Decision  will  be  governed  by  the  rules  adopted  by  Member  States
pursuant to this Framework Decision.

Member States that have under existing instruments relating to mutual assistance in
criminal matters made execution of a request for search and seizure dependent on the
condition  of  dual  criminality  may,  if  neither  of  the  conditions  of  Article  16(1)  are
met  and  at  the  latest  until  five  years  after  entry  into  force  of  this  Framework
Decision,  allow  a  judge,  investigating  magistrate  or  prosecutor  to  oppose  the
recognition or execution of the European Evidence Warrant on the basis that the act
on  which  it  is  based  does  not  constitute  an  offence  under  the  law  of  the  executing
State, whatever the constituent elements of the offence or however it is described.

In  relation  to  offences  in  connection  with  taxes  or  duties,  customs  and  exchange,
recognition or execution may not be opposed in accordance with paragraph 2 on the
ground that the law of the executing State does not impose the same kind of tax or
duty  or  does not contain a  tax,  duty,  customs  and  exchange  regulation  of  the  same
kind as the law of the issuing State.

Article 25
Implementation

Member  States  shall  take  the  necessary  measures  to  comply  with  the  provisions  of
this Framework Decision by 1 January 2005.

By  the  same  date  Member  States  shall  transmit  to  the  General  Secretariat  of  the
Council  and  to  the  Commission  the  text  of  the  provisions  transposing  into  their
national law the obligations imposed on them under this Framework Decision.

The Commission shall, by 30 June 2005, submit a report to the European Parliament
and to the Council, assessing the extent to which the Member States have taken the
necessary measures in order to comply with this Framework Decision, accompanied,
if necessary, by legislative proposals.

The General Secretariat of the Council shall notify Member States, the Commission
and Eurojust of the declarations made pursuant to Articles 5 and 8.

1.

2.

3.

1.

2.

3.

4.

48

Article 26
Entry into force

This  Framework  Decision  shall  enter  into  force  on  the  twentieth  day  following  that  of  its
publication in the Official Journal of the European Union.

Done at Brussels, [...]

For the Council
The President
[...]

49

Annex

Form A

EUROPEAN EVIDENCE WARRANT77

This  warrant  has  been  issued  by  a  competent  judicial  authority.  I  request  that  the  objects,
documents and data specified below be obtained and transferred.

I am satisfied that:

(i)

(ii)

the  objects,  documents  and  data  sought  by  this  warrant  are  necessary  and
proportionate for the purpose of the proceedings specified below;

it would be possible to obtain these objects, documents and data under the law of the
issuing  State  in  similar  circumstances  if  they  were  available  on  the  territory  of  the
issuing State, even though different procedural measures might be used; and

(iii)

the objects, documents and data sought by this warrant are likely to be admissible in
the proceedings for which they are sought.

77

This warrant must be written in, or translated into, one of the official languages of the executing State
or any other language accepted by that State.

50

                                                
(A)

THE JUDICIAL AUTHORITY WHICH ISSUED THE WARRANT

Official name:

................................................................................................................................................................

Name of its representative: ……………………………………………………………………………

Post held (title/grade): ...........................................................................................................................

Tick the type of judicial authority which issued the warrant:

(cid:1)

(cid:1)

(cid:1)

judge

investigating magistrate

prosecutor

File reference: ........................................................................................................................................

Address: .................................................................................................................................................

................................................................................................................................................................

Tel. No: (country code) (area/city code) (...) ........................................................................................

Fax No: (country code) (area/city code) (...) .........................................................................................

E-mail: ………………………………………………………………………………………………...

Languages in which it is possible to communicate with the issuing authority: ………………...........

Contact details (including languages in which it is possible to communicate with the person(s)) of
the person(s) to contact if additional information on the execution of the warrant is necessary or to
make  necessary  practical  arrangements  for  the  transfer  of  objects,  documents  and  data.  (if
applicable):

................................................................................................................................................................

51

(B)

1.

REASON FOR ISSUING THE WARRANT

Description of the relevant grounds for issuing the European Evidence Warrant and
a summary of the facts as known to the issuing judicial authority:

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

2.

Tick the type of proceedings for which the warrant is issued:

(cid:1)

(cid:1)

criminal proceedings; or

proceedings  brought  by  administrative  authorities  in  respect  of  acts  which  are
punishable  under  the  national  law  of  the  issuing  State  by  virtue  of  being
infringements  of  the  rules  of  law,  and  where  the  decision  may  give  rise  to
proceedings before a court having jurisdiction in particular in criminal matters.

3.

If  applicable,  tick  one  or  more  of  the  following  offences  to  which  the  proceedings
identified above relate(s) as defined by the law of the issuing State:

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

participation in a criminal organisation;

terrorism;

trafficking in human beings;

sexual exploitation of children and child pornography;

illicit trafficking in narcotic drugs and psychotropic substances;

illicit trafficking in weapons, munitions and explosives;

corruption;

fraud,  including  that  affecting  the  financial  interests  of  the  European  Communities
within  the  meaning  of  the  Convention  of  26 July 1995  on  the  protection  of  the
European Communities' financial interests;

52

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

laundering of the proceeds of crime;

counterfeiting currency, including of the euro;

computer-related crime;

environmental crime, including illicit trafficking in endangered animal species and in
endangered plant species and varieties;

facilitation of unauthorised entry and residence;

murder, grievous bodily injury;

illicit trade in human organs and tissue;

kidnapping, illegal restraint and hostage-taking;

racism and xenophobia;

organised or armed robbery;

illicit trafficking in cultural goods, including antiques and works of art;

swindling;

racketeering and extortion;

counterfeiting and piracy of products;

forgery of administrative documents and trafficking therein;

forgery of means of payment;

illicit trafficking in hormonal substances and other growth promoters;

illicit trafficking in nuclear or radioactive materials;

trafficking in stolen vehicles;

rape;

arson;

crimes within the jurisdiction of the International Criminal Court;

unlawful seizure of aircraft/ships;

sabotage;

conduct  which  infringes  road  traffic  regulations,  including  breaches  of  regulations
pertaining to driving hours and rest periods and regulations on hazardous goods;

53

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

(cid:1)

smuggling of goods;

infringements of intellectual property rights;

threats and acts of violence against persons, including during sports events;

criminal damage;

theft;

offences  established  by  the  issuing  State  and  serving  the  purpose  of  implementing
obligations  arising  from  instruments  adopted  under  the  Treaty  establishing  the
European Community or under Title VI of the Treaty on European Union.

4.

Full descriptions of the nature and legal classification of any offence(s) not covered by
section 3 above for which the warrant was issued:

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

...............................................................................................................................................................

54

(C)

IDENTITY OF THE PERSONS CONCERNED

Information  regarding  the  identity  of  the  (i)  natural  or  (ii)  legal  person(s)  in  respect  of  whom
objects, documents or data are sought (as applicable):

(i)

Natural persons

Name: ......................................................................................................................................

Forename(s): ............................................................................................................................

Maiden name, where applicable: .............................................................................................

Aliases, where applicable: .......................................................................................................

Sex: ..........................................................................................................................................

Nationality: ..............................................................................................................................

Date of birth: ...........................................................................................................................

Place of birth: ..........................................................................................................................

Residence and/or known address, if not known state the last known address:

..................................................................................................................................................

Language(s) which the person understands (if known):

..................................................................................................................................................

(ii)

Legal persons

Legal name: .............................................................................................................................

Legal form of incorporation: ………………………………………………………………...

Shortened name, commonly used name or trading name, where applicable:

..................................................................................................................................................

Country of incorporation: ........................................................................................................

Register and number of incorporation: ………………………………………………………

Address of registered office:

..................................................................................................................................................

55

(D)

OBJECTS, DOCUMENTS OR DATA SOUGHT BY THE WARRANT

1.

(cid:1)

Description of what is sought by the warrant (tick and complete as appropriate):

Objects:

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

(cid:1)

Copy of criminal record required on person identified in section C.

Information in judicial or police records on person identified in section C (further details
below):

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

Other documents and data (further details below):

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

2.

Is  the  material  likely  to  be  covered  by  any  privileges  or  immunities  (if  so,  provide
further details):

…............................................................................................................................................................

................................................................................................................................................................

................................................................................................................................................................

................................................................................................................................................................

3.

Location of objects, documents or data (to the extent known or believed):

...............................................................................................................................................................

56

...............................................................................................................................................................

...............................................................................................................................................................

................................................................................................................................................................

4.

(i)

Information regarding the identity of the (i) natural or (ii) legal person(s) believed to
hold the objects, documents and data (where applicable):

Natural persons:

Name: ......................................................................................................................................

Forename(s): ............................................................................................................................

Maiden name, where applicable: .............................................................................................

Aliases, where applicable: .......................................................................................................

Sex: .....................................................................................................................................….

Nationality: ..............................................................................................................................

Date of birth: ...........................................................................................................................

Place of birth: ..........................................................................................................................

Residence and/or known address, if not known state the last known address:

..................................................................................................................................................

Language(s) which the person understands:

..................................................................................................................................................

(ii)

Legal persons:

Legal name: .............................................................................................................................

Legal form of incorporation: ………………………………………………………………...

Shortened name, commonly used name or trading name, where applicable:

..................................................................................................................................................

Country of incorporation: ........................................................................................................

Register and number of incorporation: ………………………………………………………

Address of registered office: ………………………………………………………………...

Other address(es) where business is conducted:

………………………………………………………………………………………………..

57

(E)

1.

EXECUTION OF THE WARRANT

Deadlines  for  execution  of  the  warrant  are  laid  down  in  the  Framework  Decision.
But, if the request is particularly urgent, please indicate any earlier deadline and the
reason for this:

…............................................................................................................................................................

................................................................................................................................................................

2.

(cid:1)

Tick and complete if any of the following are applicable:

it  is  necessary  to  use  coercive  measures  to  obtain  the  objects,  documents  and  data  to
prevent their alteration, movement or destruction (justification and further details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

it  is  necessary  to  keep  the  facts  and  substance  of  the  investigation  confidential  (further
details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

a competent authority of the issuing State – or an interested party nominated by the issuing
authority – is required to be present during the search (further details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

a record is required of the handling of the evidence (further details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

other  formalities  (which  are  not  contrary  to  the  fundamental  principles  of  the  law  of  the
executing State) are required as explained below:

…............................................................................................................................................................

................................................................................................................................................................

58

 (F)

LEGAL REMEDIES AGAINST COERCIVE MEASURES TAKEN PURSUANT TO THE WARRANT

1.

Description  of  the  legal  remedies  for  interested  parties,  including  bona  fide  third
parties, available in the issuing State including necessary steps to take:

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

2.

Court before which the action may be taken

…............................................................................................................................................................

................................................................................................................................................................

3.

Information as to those for whom the action is available

…............................................................................................................................................................

................................................................................................................................................................

4.

Time limit for submission of the action

…............................................................................................................................................................

................................................................................................................................................................

5.

Authority in the issuing State who can supply further information on procedures for
submitting  appeals  in  the  issuing  State  and  on  whether  legal  assistance  and
interpretation and translation is available:

Name: ....................................................................................................................................................

Contact person (if applicable): ..............................................................................................................

Address: .................................................................................................................................................

Tel. No: (country code) (area/city code) ..............................................................................................

Fax No: (country code) (area/city code) ................................................................................................

E-mail: ...................................................................................................................................................

59

(G)

FINAL PROVISIONS AND SIGNATURE

1.

Other circumstances relevant to the case (optional information):

…............................................................................................................................................................

................................................................................................................................................................

2.

Requested means of transfer of the objects, documents or data:

□

□

□

□

by e-mail

by fax

in the original by post

by other means (please specify):

…..............................................................................................................................................

3.

Signature  of  the  issuing  judicial  authority  and  /or  its  representative  certifying  the
content of the European Evidence Warrant as accurate:

…............................................................................................................................................................

Name: ....................................................................................................................................................

Post held (title/grade): ...........................................................................................................................

Date: ......................................................................................................................................................

Official stamp (if available):

60

Form B

Warrant for additional evidence required by the issuing State with respect to an earlier
European Evidence Warrant78

This  warrant  for  additional  evidence  is  issued  by  a  judicial  authority  with  competence  to  issue  a
European Evidence Warrant. I attach a  copy of the original European Evidence Warrant to which
this warrant relates.

I request that the objects, documents or data specified below be obtained and transferred.

I am satisfied that:

(i)

(ii)

(iii)

(iv)

the content of the original European Evidence Warrant to which this request relates is still
accurate;

the  objects,  documents  or  data  sought  by  this  additional  warrant  are  necessary  and
proportionate for the purpose of the proceedings specified in the original warrant;

it would be possible to obtain these objects, documents or data under the law of the issuing
State in similar circumstances if they were available on the territory of the issuing State,
even though different procedural measures might be used; and

the  objects,  documents  or  data  to  which  this  additional  warrant  relates  are  likely  to  be
admissible in the proceedings for which they is sought.

(A)

DETAILS OF THE ORIGINAL EUROPEAN EVIDENCE WARRANT

Date issued: ...........................................................................................................................................

File reference on original warrant: ........................................................................................................

References on any exchange of correspondence pursuant to the original warrant:

…............................................................................................................................................................

78

This form must be written in, or translated into, one of the official languages of the executing State or
any other language accepted by that State.

61

                                                
(B)

OBJECTS, DOCUMENTS OR DATA SOUGHT BY THE WARRANT

1.

(cid:1)

Description of what is sought by the warrant (tick and complete as appropriate):

Objects:

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

................................................................................................................................................................

(cid:1)

(cid:1)

Copy of criminal record required on person identified in section C of the original warrant.

Information in  judicial or police records on person identified in  section  C  of  the  original
warrant (further details below):

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

Other documents and data (further details below):

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

2.

Is  the  material  likely  to  be  covered  by  any  privileges  or  immunities  (if  so,  provide
further details):

62

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

3.

Location of objects, documents or data (to the extent known or believed):

…............................................................................................................................................................

................................................................................................................................................................

…............................................................................................................................................................

................................................................................................................................................................

4.

(i)

Information regarding the identity of the (i) natural or (ii) legal person(s) believed to
hold the objects, documents and data (where applicable):

Natural persons:

Name: ......................................................................................................................................

Forename(s): ............................................................................................................................

Maiden name, where applicable: .............................................................................................

Aliases, where applicable: .......................................................................................................

Sex: ..............................................................................................................................…........

Nationality: ..............................................................................................................................

Date of birth: ...........................................................................................................................

Place of birth: ..........................................................................................................................

Residence and/or known address, if not known state the last known address:

..................................................................................................................................................

Language(s) which the person understands:

..................................................................................................................................................

(ii)

Legal persons:

Legal name: .............................................................................................................................

Legal form of incorporation: ………………………………………………………………...

Shortened name, commonly used name or trading name, where applicable:

63

..................................................................................................................................................

Country of incorporation: ........................................................................................................

Register and number of incorporation: ………………………………………………………

Address of registered office: ………………………………………………………………...

Other address(es) where business is conducted:

………………………………………………………………………………………………..

64

(C)

EXECUTION OF THE WARRANT

1.

Deadlines  for  execution  of  the  warrant  are  laid  down  in  the  Framework  Decision.
But, if the request is particularly urgent, please indicate any earlier deadline and the
reason for this:

…............................................................................................................................................................

................................................................................................................................................................

2.

(cid:1)

Tick if any of the following are applicable:

it is necessary to use coercive measures to obtain the objects, documents or data to prevent
their alteration, movement or destruction (justification and further details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

it  is  necessary  to  keep  the  facts  and  substance  of  the  investigation  confidential  (further
details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

a competent authority of the issuing State – or an interested party nominated by the issuing
authority – is required to be present during the search (further details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

a record is required of the handling of the evidence (further details below)

…............................................................................................................................................................

................................................................................................................................................................

(cid:1)

other  formalities  (which  are  not  contrary  to  the  fundamental  principles  of  the  law  of  the
executing State) are required as explained below:

…............................................................................................................................................................

................................................................................................................................................................

65

(D)

FINAL PROVISIONS AND SIGNATURE

1.

Other circumstances relevant to the case (optional information):

…............................................................................................................................................................

................................................................................................................................................................

2.

Requested means of transfer of the objects, documents or data:

□

□

□

□

by e-mail

by fax

in the original by post

by other means (please specify):

…..............................................................................................................................................

3.

Signature  of  the  issuing  judicial  authority  and  /or  its  representative  certifying  the
content of the Warrant for additional evidence as accurate:

…............................................................................................................................................................

Name: ....................................................................................................................................................

Post held (title/grade): ...........................................................................................................................

Date: ......................................................................................................................................................

Official stamp (if available):

66