European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters *European Parliament legislative resolution of 21 October 2008 on the draft Council framework decision on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (13076/2007 — C6-0293/2008 — 2003/0270(CNS)
Date: 2008-10-21
Institutions: Committee on Civil Liberties, Justice and Home Affairs, European Parliament
Subjects: European judicial area, area of freedom, security and justice, criminal procedure, framework decision, mutual recognition principle, proof








CE2010015EN.01009901.xml










21.1.2010   


EN


Official Journal of the European Union


CE 15/99





Tuesday 21 October 2008European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters *
P6_TA(2008)0486
European Parliament legislative resolution of 21 October 2008 on the draft Council framework decision on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (13076/2007 — C6-0293/2008 — 2003/0270(CNS))
2010/C 15 E/29
(Consultation procedure — renewed consultation)

The European Parliament,
having regard to Council draft (13076/2007),
having regard to the Commission proposal to the Council (COM(2003)0688),
having regard to its position of 31 March 2004 (1),
having regard to Article 34(2)(b) of the EU Treaty,
having regard to Article 39(1) of the EU Treaty, pursuant to which the Council consulted Parliament (C6-0293/2008),
having regard to Rules 93, 51 and 55(3) of its Rules of Procedure,
having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A6-0408/2008),






1.


Approves the Council draft as amended;










2.


Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;










3.


Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;










4.


Calls on the Council to consult Parliament again if it intends to amend its draft substantially;










5.


Should this text not be adopted prior to the entry into force of the Treaty of Lisbon, is determined to consider any subsequent proposal by urgent procedure, in close cooperation with the national parliaments;










6.


Instructs its President to forward its position to the Council and the Commission.










COUNCIL DRAFT


AMENDMENTS





Amendment 1






Council draft


Recital 8











(8)


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. The EEW should therefore be issued only by judges, 
courts,
 investigating magistrates
,
 public prosecutors 
and certain other judicial authorities as defined by Member States in accordance with this Framework Decision
.












(8)


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. The EEW should therefore be issued only by judges, investigating magistrates 
and
 public prosecutors.









Amendment 2






Council draft


Recital 9











(9)


This Framework Decision is adopted under Article 31 of the Treaty and therefore concerns judicial cooperation within the context of that provision, aiming to assist the collection of evidence for proceedings as defined in Article 5 of this Framework Decision. 
Although authorities other than judges, courts, investigating magistrates and public prosecutors may have a role in the collection of such evidence in accordance with Article 2(c)(ii),
 this Framework Decision does not cover police, customs, border and administrative cooperation which are regulated by other provisions of the Treaties.












(9)


This Framework Decision is adopted under Article 31 of the Treaty and therefore concerns judicial cooperation within the context of that provision, aiming to assist the collection of evidence for proceedings as defined in Article 5 of this Framework Decision. This Framework Decision does not cover police, customs, border and administrative cooperation which are regulated by other provisions of the Treaties.









Amendment 3






Council draft


Recital 24a (new)





 










24a.





It is of paramount importance to adopt Framework Decision 2008/…JHA of … on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters as soo as possible, providing for an adequate level of data protection and including the processing of personal data at national level.










Amendment 4






Council draft


Recital 25











(25)


The EEW should coexist with existing mutual assistance procedures, but such coexistence should be considered transitional until, in accordance with the Hague Programme, the types of evidence-gathering excluded from the scope of this Framework Decision are also the subject of a mutual recognition instrument, the adoption of which would provide a complete mutual recognition regime to replace mutual assistance procedures.












(25)


The EEW should coexist with existing mutual assistance procedures, but such coexistence should be considered transitional until, in accordance with the Hague Programme, the types of evidence-gathering excluded from the scope of this Framework Decision are also the subject of a mutual recognition instrument, the adoption of which would provide a complete mutual recognition regime to replace mutual assistance procedures. 
The European Commission should at the earliest opportunity present proposals aimed at completing the framework for recognition of criminal evidence, while also consolidating the legislation already adopted.




The Commission is also invited to encourage efforts to harmonise the system for obtaining evidence in the Member States. Harmonisation represents the best foundation for cooperation in criminal matters.











Amendment 5






Council draft


Recital 25a (new)





 










(25a)





The European Commission should at the earliest opportunity present a proposal for a legislative instrument concerning procedural safeguards in criminal proceedings.










Amendment 6






Council draft


Article 2 — point c











(c)


‘issuing authority’ shall mean:












(c)


‘issuing authority’ shall mean: a judge, investigating magistrate or public prosecutor 
competent under national law to issue a European Evidence Warrant;
















(i)


a judge, 
a court,
 an investigating magistrate, a public prosecutor; 
or














(ii)






any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings with competence to order the obtaining of evidence in cross-border cases in accordance with national law;








 





Amendment 7






Council draft


Article 4 — paragraph 1a (new)





 




1a.
   
The European Evidence Warrant is an instrument available to both the defence and the prosecution. Consequently, both the defence and the prosecution may ask the competent judicial authority to issue a European Evidence Warrant.







Amendment 8






Council draft


Article 4 — paragraph 6







6.
   
Notwithstanding paragraph 2, the EEW may, if requested by the issuing authority, also cover taking statements from persons present during the execution of the EEW and directly related to the subject of the EEW. The relevant rules of the executing State applicable to national cases shall also be applicable in respect of the taking of such statements.






deleted







Amendment 9






Council draft


Article 7 — paragraph 1 — point ba new





 










(ba)





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










Amendment 10






Council draft


Article 7 — paragraph 1a (new)





 




The issuing authority shall certify in the warrant that the conditions laid down in the first paragraph have been fulfilled.







Amendment 11






Council draft


Article 8 — paragraph 2





2.   Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent authorities. 
A Member State may, if necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of the EEW as well as for other official correspondence relating thereto.




2.   Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.





Amendment 12






Council draft


Article 10 — paragraph 3a (new)





 




3a.
   
Anyone affected by an exchange of data carried out in accordance with the present framework decision may claim the right to data protection, including blocking, correction, deletion and access to information pertaining to them, as well as access to any means of redress to which they are entitled under the legislation of the issuing State or the executing State.







Amendment 13






Council draft


Article 11 — paragraph 4







4.
   
If the issuing authority is not a judge, a court, an investigating magistrate or a public prosecutor and the EEW has not been validated by one of those authorities in the issuing State, the executing authority may, in the specific case, decide that no search or seizure may be carried out for the purpose of the execution of the EEW. Before so deciding, the executing authority shall consult the competent authority of the issuing State.






deleted







Amendment 14






Council draft


Article 11 — paragraph 5







5.
   
A Member State may, at the time of adoption of this Framework Decision, make a declaration or subsequent notification to the General Secretariat of the Council requiring such validation in all cases where the issuing authority is not a judge, a court, an investigating magistrate or a public prosecutor and where the measures necessary to execute the EEW would have to be ordered or supervised by a judge, a court, an investigating magistrate or a public prosecutor under the law of the executing State in a similar domestic case.






deleted







Amendment 15






Council draft


Article 11a (new)





 



Article 11a


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;














(b)






a natural person shall not be required to produce objects, documents or data which may result in self-incrimination under the legislation of the issuing State or the executing State; and














(c)






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)






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














(b)






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














(c)






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.











Amendment 16






Council draft


Article 12





The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in this Framework Decision and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State. 
This Article shall not create an obligation to take coercive measures.






Without prejudice to Article 11a,
 the executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in this Framework Decision and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.





Amendment 17






Council draft


Article 12 — paragraph 1a (new)





 




The issuing authority may also require the executing authority to:










(a)






preserve the confidentiality of the investigation and its content except to the extent necessary for the execution of the warrant;














(b)






allow a competent authority from the issuing State or an interested party designated by the issuing authority to be present at the execution of the warrant and to have access, under the same conditions as the executing authority, to any object, document or item of data obtained on that occasion;














(c)






record the names of the people through whose hands the evidence has passed between the execution of the warrant and its transfer to the issuing State.











Amendment 18






Council draft


Article 13 — paragraph 1 — point aa (new)





 










(aa)





if the offence on which it is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law;










Amendment 19






Council draft


Article 13 — paragraph 1 — point ab (new)





 










(ab)





if the person who is the subject of the European Evidence Warrant may not, owing to his age, be held criminally responsible for the acts on which the evidence warrant is based under the law of the executing Member State;










Amendment 20






Council draft


Article 13 — paragraph 1 — point e













(e)





if, in one of the cases referred to in Article 11(4) or (5), the EEW has not been validated;









deleted







Amendment 21






Council draft


Article 13 — paragraph 1 — point f













(f)





if the EEW relates to criminal offences which:









(i)






under the law of the executing State are regarded as having been committed wholly or for a major or essential part within its territory, or in a place equivalent to its territory; or














(ii)






were committed outside the territory of the issuing State, and the law of the executing State does not permit legal proceedings to be taken in respect of such offences where they are committed outside that State's territory;














deleted







Amendment 22






Council draft


Article 13 — paragraph 2





2.   The decision to refuse the execution or recognition of the EEW pursuant to paragraph 1 shall be taken by a judge, court, investigating magistrate or public prosecutor in the executing State. 
Where the EEW has been issued by a judicial authority referred to in Article 2(c)(ii), and the EEW has not been validated by a judge, court, investigating magistrate or public prosecutor in the issuing State, the decision may also be taken by any other judicial authority competent under the law of the executing State if provided for under that law.




2.   The decision to refuse the execution or recognition of the EEW pursuant to paragraph 1 shall be taken by a judge, court, investigating magistrate or public prosecutor in the executing State.





Amendment 23






Council draft


Article 13 — paragraph 3







3.
   
Any decision under paragraph 1(f)(i) in relation to offences committed partly within the territory of the executing State, or in a place equivalent to its territory, shall be taken by the competent authorities referred to in paragraph 2 in exceptional circumstances and on a case-by case basis, having regard to the specific circumstances of the case, and in particular to whether a major or essential part of the conduct in question has taken place in the issuing State, whether the EEW relates to an act which is not a criminal offence under the law of the executing State and whether it would be necessary to carry out a search and seizure for the execution of the EEW
.




deleted







Amendment 24






Council draft


Article 13 — paragraph 4







4.
   
Where a competent authority considers using the ground for refusal under paragraph 1(f)(i), it shall consult Eurojust before taking the decision.




Where a competent authority is not in agreement with Eurojust's opinion, Member States shall ensure that it give the reasons for its decision and that the Council be informed.






deleted







Amendment 25






Council draft


Article 13 — paragraph 5





5.   In cases referred to in paragraph 1(a), (g) and (h), before deciding not to recognise or not to execute an EEW, either totally or in part, the competent authority in the executing State shall consult the competent authority in the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary information without delay.


5.   In cases referred to in paragraph 1(a), 
(aa), (ab),
 (g) and (h), before deciding not to recognise or not to execute an EEW, either totally or in part, the competent authority in the executing State shall consult the competent authority in the issuing State, by any appropriate means, and shall, where appropriate, ask it to supply any necessary information without delay.





Amendment 26






Council draft


Article 14 — paragraph 2 — introductory part





2.   If it is necessary to carry out a search or seizure for the execution of the EEW, the following offences
, if they are punishable in the issuing State by a custodial sentence or a detention order for a maximum period of at least three years and
 as they are defined by the law of 
that
 State, shall not be subject to verification of double criminality under any circumstances:


2.   If it is necessary to carry out a search or seizure for the execution of the EEW, the following offences as they are defined by the law of 
the issuing
 State, shall not be subject to verification of double criminality under any circumstances:





Amendment 27






Council draft


Article 15 — paragraph 3





3.   Unless 
either
 grounds for postponement under Article 16 
exist
 or the executing authority has the objects, documents or data sought already in its possession, the executing authority shall take possession of the objects, documents or data 
without delay and, without prejudice to paragraph 4,
 no later than 60 days after the receipt of the EEW by the competent executing authority.


3.   Unless 
one of the
 grounds for postponement under Article 16 
justifies it
 or the executing authority has the objects, documents or data sought already in its possession, the executing authority shall take possession of the objects, documents or data 
as early as possible and
 no later than 60 days after the receipt of the 
European Evidence Warrant
 by the competent executing authority
, without prejudice to paragraph 4.







Amendment 28






Council draft


Article 15 — paragraph 3a (new)





 




3a.
   
In the absence of an action brought in accordance with Article 18 and unless one of the grounds for postponement referred to in Article 16 justifies it, the executing State shall transfer to the issuing State the objects, documents or data obtained by virtue of the European Evidence Warrant, immediately where the latter are already under the control of the executing authority or, where this is not the case, as early as possible and no later than 30 days following the date on which the executing authority takes possession of the evidence.




When the objects, documents or data obtained are transferred, the executing authority shall state whether it requires them to be returned to the State of execution as soon as they cease to be needed by the issuing State.







Amendment 29






Council draft


Article 15 — paragraph 4





4.   When it is not practicable 
in a specific case
 for the competent executing authority to meet the deadline set out 
in paragraphs 2 or 3 respectively
, it shall without delay inform the competent authority of the issuing State 
by any means
, giving the reasons for the delay and the estimated time needed for the action to be taken.


4.   When it is not practicable 
under exceptional circumstances
 for the competent executing authority to meet the deadline set out 
in this Article
, it shall without delay inform 
Eurojust and
 the competent authority of the issuing State 
in writing
, giving the reasons for the delay and the estimated time needed for the action to be taken.





Amendment 30






Council draft


Article 15 — paragraph 5







5.
   
Unless a legal remedy is pending in accordance with Article 18 or grounds for postponement under Article 16 exist, the executing State shall without undue delay transfer the objects, documents or data obtained under the EEW to the issuing State.






deleted







Amendment 31






Council draft


Article 15 — paragraph 6







6.
   
When transferring the objects, documents or data obtained, the executing authority shall indicate whether it requires them to be returned to the executing State as soon as they are no longer required by the issuing State.






deleted







Amendment 32






Council draft


Article 17a (new)





 



Article 17a


Subsequent use of evidence



The use of the evidence acquired pursuant to this Framework Decision shall in no way prejudice the rights of the defence in subsequent criminal proceedings.




These rights shall be fully respected, in particular as regards the admissibility of the evidence, the obligation to disclose that evidence to the defence and the ability of the defence to challenge that evidence.







Amendment 33






Council draft


Article 18 — paragraph 1





1.   Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against the recognition and execution of an EEW pursuant to Article 11, in order to preserve their legitimate interests. 
Member States may limit the legal remedies provided for in this paragraph to cases in which the EEW is executed using coercive measures.
 The action shall be brought before a court in the executing State in accordance with the law of that State.


1.   Member States shall put in place the necessary arrangements to ensure that any interested party, including bona fide third parties, have legal remedies against the recognition and execution of an EEW pursuant to Article 11, in order to preserve their legitimate interests. The action shall be brought before a court in the executing State in accordance with the law of that State.





Amendment 34






Council draft


Article 23 — paragraph 1





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


1.   Member States shall take the necessary measures to comply with the provisions of this Framework Decision by … 
and they shall do everything they can to agree before that date on a Framework Decision on procedural rights in criminal proceedings throughout the European Union, taking the European Parliament's opinion into consideration.







Amendment 35






Council draft


Article 23 — paragraph 1a (new)





 




1a.
   
Member States shall indicate, in a declaration lodged with the Secretariat-General of the Council, the national bodies appointed to act as issuing authorities and executing authorities.







Amendment 36






Council draft


Article 23 — paragraph 3







3.
   
Any Member State that intends to transpose the ground for refusal set out in Article 13(1)(f) into its national law shall notify the Secretary General of the Council thereof upon adoption of this Framework Decision by making a declaration.






deleted







Amendment 37






Council draft


Article 23 — paragraph 4







4.
   
Germany may by a declaration reserve its right to make the execution of an EEW subject to verification of double criminality in cases referred to in Article 14(2) relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling if it is necessary to carry out a search or seizure for the execution of the EEW, except where the issuing authority has declared that the offence concerned under the law of the issuing State falls within the scope of criteria indicated in the declaration.




Should Germany wish to make use of this paragraph, it shall notify a declaration to that effect to the Secretary-General of the Council upon the adoption of this Framework Decision. The declaration shall be published in the Official Journal of the European Union.






deleted







Amendment 38






Council draft


Article 23 — paragraph 5a (new)





 




5a.
   
Each year, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Framework Decision, paying special attention to the application of procedural safeguards.







Amendment 39






Council draft


Article 24 — paragraph 2







2.
   
At the beginning of every calendar year, Germany shall inform the Council and the Commission of the number of cases in which the ground for non-recognition or non-execution referred to in Article 23(4) was applied in the previous year.






deleted







Amendment 40






Council draft


Annex — Section B — point iia (new)





 










(iia)





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










Amendment 41






Council draft


Annex — Section C — point d













(d)





any other judicial authority as defined by the issuing State and, in the specific case, acting in their capacity as an investigating authority in criminal proceedings with competence to order the obtaining of evidence in cross-border cases in accordance with national law.







This EEW has been validated by a judge or court, investigating magistrate or a public prosecutor (see sections D and O).






deleted







Amendment 42






Council draft


Annex — Section D













(D)





THE JUDICIAL AUTHORITY VALIDATING THE EEW (WHERE APPLICABLE)



If point (d) in Section C has been ticked and this EEW is validated, tick the type of judicial authority which has validated this EEWt:








 
(a)






judge or court












 
(b)






investigating magistrate












 
(c)






public prosecutor








Official name of the validating authority:


…


Name of its representative


…


Post held (title/grade)


…


File reference


…


Address:


…
…
…


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


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


E-mail:
 …








deleted







Amendment 43






Council draft


Annex — Section E













(E)





WHERE A CENTRAL AUTHORITY HAS BEEN MADE RESPONSIBLE FOR THE ADMINISTRATIVE TRANSMISSION AND RECEPTION OF EEWS AND, IF APPLICABLE, FOR OTHER OFFICIAL CORRESPONDENCE RELATING THERETO



Name of the central authority:
 …
…


Contact person, if applicable (title/grade and name):
 …
…


Address:
 …
…


File reference:
 …


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


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


E-mail:
 …








deleted







Amendment 44






Council draft


Annex — Section F













(F)





THE AUTHORITY OR AUTHORITIES WHICH MAY BE CONTACTED (IN THE CASE WHERE SECTION D AND/OR E HAVE BEEN COMPLETED):












Authority under section C




Can be contacted for questions concerning
 …















Authority under section D




Can be contacted for questions concerning
 …















Authority under section E




Can be contacted for questions concerning
 …












deleted







Amendment 45






Council draft


Annex — Section I — Footnote






Where the EEW is addressed to Germany, and according to the declaration made by Germany in accordance with Article 23(4) of the Council Framework Decision 2007/…/JHA (2) of … on the European Evidence Warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters, the issuing authority may additionally complete box N.1 to confirm that the offence(s) fall(s) within the scope of criteria indicated by Germany for this type of offence.





deleted







Amendment 46






Council draft


Annex — Section N — point 1







Optional information to be given only in relation to Germany:













It is declared that the offence(s) concerned under the law of the issuing State falls(s) within the scope of criteria indicated by Germany in the declaration made in accordance with Article 23(4) of Framework Decision …










deleted








(1)  OJ C 103 E, 29.4.2004, p. 659.

(2)  
OJ L …