Green Paper on obtaining evidence in criminal matters from one Member State to another and securing its admissibility
Date: 2009-11-11
Institutions: European Commission
Subjects: admissibility, area of freedom, security and justice, cross-border cooperation, data collection, exchange of information, judicial cooperation in criminal matters in the EU, mutual recognition principle, proof

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.11.2009 
COM(2009) 624 final 

GREEN PAPER 

on obtaining evidence in criminal matters from one Member State to another and 
securing its admissibility 

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GREEN PAPER 

on obtaining evidence in criminal matters from one Member State to another and 
securing its admissibility 

1. 

INTRODUCTION  

One of the objectives of the European Union is to maintain and develop an area of freedom, 
security  and  justice,  notably  by  facilitating  and  accelerating  judicial  cooperation  in  criminal 
matters between Member States. Faced with cross-border crime, the administration of justice 
must not be impeded by differences between the Member States’ judicial systems and the lack 
of mutual recognition of judicial decisions. In this regard it is particularly important to foster 
effective cooperation on obtaining evidence in criminal matters. 

A number of instruments are already in force, providing for mechanisms for a Member State 
to  seek  the  collection  of  admissible  evidence  in  criminal  matters  in  a  cross-border  context. 
Closer  cooperation  in  this  field  is  key  to  the  effectiveness  of  criminal  investigations  and 
proceedings  in  the  EU,  and  the  Commission  therefore  intends  to  take  further  action  to 
promote such cooperation. The objective of the Green Paper is to consult Member States and 
all concerned stakeholders on a number of issues that are relevant in that respect.  

2. 

BACKGROUND 

Since the entry into force of the Amsterdam Treaty, a number of texts have clearly set out the 
necessity to facilitate the gathering of evidence in a cross-border context and to promote the 
admissibility of such evidence before the courts.  

The  Tampere  Conclusions1  identify  mutual  recognition  as  the  cornerstone  of  judicial  co-
operation and state that enhanced mutual recognition of judicial decisions and judgments and 
the  necessary  approximation  of  legislation  would  facilitate  co-operation  between  authorities 
and  the  judicial  protection  of  individual  rights.  They  also  state  that  the  principle  of  mutual 
recognition  should  apply  to  pre-trial  orders,  in  particular  to  those  which  would  enable 
competent authorities to quickly secure evidence and to seize assets which are easily movable, 
and that evidence lawfully gathered by one Member State’s authorities should be admissible 
before the courts of other Member States, taking into account the standards that apply there. 

The Programme of measures to implement the principle of mutual recognition2 states that the 
aim, in relation to orders for the purpose of obtaining evidence, is to ensure that the 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.  

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European Council of 15-16 October 1999, Conclusions of the Presidency - SN 200/1/99 REV 1. 
Programme  of  measures  to  implement  the  principle  of  mutual  recognition  of  decisions  in  criminal 
matters (OJ C 12, 15.1.2001, p. 10). 

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The  Hague  Programme3  states  that  further  development  of  judicial  co-operation  in  criminal 
matters is essential to provide for an adequate follow up to investigations of law enforcement 
authorities  of  the  Member  States  and  Europol.  It  also  states  that  the  comprehensive 
programme of measures to implement the principle of mutual recognition of judicial decisions 
in  criminal  matters,  which  encompasses  judicial  decisions  in  all  phases  of  criminal 
procedures,  such  as  gathering  and  admissibility  of  evidence,  should  be  completed  and  that 
further  attention  should  be  given  to  additional  proposals  in  that  context.  The  Action  Plan 
implementing the Hague Programme4 also foresees a proposal on minimum standards relating 
to the taking of evidence with a view to admissibility. 

The  Commission  Communication  “An  area  of  freedom,  security  and  justice  serving  the 
citizen”5  foresees  inter  alia  the  establishment  of  a  comprehensive  system  for  obtaining 
evidence  in  cross-border  cases.  According  to  the  Communication,  this  would  require  the 
replacement  of  the  existing  legal  instruments  in  this  area  by  a  new  single  instrument.  This 
instrument  would  be  automatically  recognised  and  applicable  throughout  the  EU,  thereby 
encouraging  prompt  and  flexible  cooperation  between  the  Member  States.  It  would  also  lay 
down  deadlines  for  enforcement  and  limit  as  far  as  possible  the  grounds  for  refusal.  This 
instrument  could  include  rules  on  electronic  evidence  and  a  European  order  for  bringing 
persons  to  court  that  takes  account  of  the  opportunities  offered  by  videoconferences.  In 
addition,  minimum  principles  to  facilitate  the  mutual  admissibility  of  evidence  between 
Member States, including scientific evidence, could be provided for. 

3. 

EXISTING RULES ON OBTAINING EVIDENCE IN CRIMINAL MATTERS 

Existing rules on obtaining evidence in criminal matters in the EU are of two different kinds. 
On  the  one  hand,  there  are  instruments  based  on  the  principle  of  mutual  assistance.  These 
most  notably  include  the  European  Convention  on  mutual  assistance  in  criminal  matters6, 
supplemented  by  the  Schengen  Agreement7  and  the  Convention  on  mutual  assistance  in 
criminal  matters8  and  its  Protocol.  On  the  other  hand,  there  are  instruments  based  on  the 
principle of mutual recognition, which most notably include the Framework Decision on the 
European  Evidence  Warrant9.  The  mutual  assistance  instruments  and  their  protocols  cover 

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The Hague Programme: strengthening freedom, security and justice in the European Union (OJ C 53, 
3.3.2005, p. 1). 
Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, 
security and justice in the European Union (OJ C 198, 12.8.2005, p. 1). 
Communication from the Commission to the European Parliament and the Council: An area of freedom, 
security and justice serving the citizen - COM(2009) 262. 
European Convention of 20 April 1959 on mutual assistance in criminal matters. 
Convention  of  19  June  1990  implementing  the  Schengen  Agreement  of  14  June  1985  between  the 
Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the 
French  Republic  on  the  gradual  abolition  of  checks  at  their  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 Framework Decision of 18 December 2008 on the European evidence warrant for the purpose 
of  obtaining  objects,  documents  and  data  for  use  in  proceedings  in  criminal  matters  (OJ  L  350, 
30.12.2008, p. 72). Another instrument on this matter based on the principle of mutual recognition is the 
Council Framework Decision of 22 July 2003 on the execution in the EU of orders freezing property or 
evidence (OJ L 196, 2.8.2003, p. 45). However, the scope of this instrument is limited to the freezing of 
evidence  located  in  another  Member  State.  The  subsequent  transfer  of  the  evidence  between  the 
Member  States  involved  would  be  regulated  by  mutual  assistance  instruments  or  the  Framework 
Decision on the European Evidence Warrant. 

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mutual assistance in general but also contain rules on specific forms of mutual assistance such 
as  the  interception  of  telecommunications  or  the  use  of  videoconferencing.  Requests  for 
mutual  assistance  shall,  as  a  general  rule,  be  transmitted  directly  between  the  issuing  and 
executing  authority.  Unless  a  relevant  ground  for  refusal  is  invoked  by  the  executing 
authority,  the  request  shall  be  executed  as  soon  as  possible  and  if  possible  within  the 
deadlines  indicated  by  the  issuing  authority.  In  order  to  ensure  the  admissibility  of  the 
evidence obtained, the authorities of the requested State shall comply with the formalities and 
procedures  indicated  by  the  authorities  of  the  requesting  State  provided  that  they  are  not 
contrary to fundamental principles of law in the requested State. 

The Framework Decision on the European Evidence Warrant applies the principle of mutual 
recognition to judicial decisions for the purpose of obtaining evidence for use in proceedings 
in criminal matters. A European Evidence Warrant can be issued in order to obtain evidence 
that already exists and is directly available in the form of objects, documents or data10. It shall 
be  issued  in  a  standard  form  and  translated  into  an  official  language  of  the  executing  State. 
The authorities of the issuing State must find that the evidence could also be obtained under 
national law in a similar case and that the evidence sought is necessary and proportionate for 
the proceedings in question. It shall be recognised and executed within a fixed deadline unless 
a relevant ground for refusal applies. The execution of a European Evidence Warrant shall not 
be subject to verification of dual criminality if it is not necessary to carry out search or seizure 
or if the offence is punishable by a custodial sentence of at least three years and is mentioned 
on  a  list  of  offences  in  the  Framework  Decision.  In  order  to  ensure  the  admissibility  of  the 
evidence  obtained,  the  authorities  of  the  executing  State  are  obliged  to  comply  with  the 
formalities and procedures indicated by the authorities of the issuing State provided that they 
are not contrary to fundamental principles of law in the executing State. 

4. 

FUTURE PROSPECTS 

4.1. 

Obtaining evidence 

As mentioned above, the existing rules on obtaining evidence in criminal matters in the EU 
consist  of  a  number  of  co-existing  instruments  based  on  different  underlying  principles, 
namely that of mutual assistance and that of mutual recognition. This makes the application of 
the  rules  burdensome  and  may  cause  confusion  among  practitioners.  This  can  also  result  in 
situations  where  practitioners  do  not  use  the  most  appropriate  instrument  for  the  evidence 
sought.  Ultimately,  these  factors  may  therefore  hinder  effective  cross-border  cooperation. 
Furthermore, instruments based on mutual assistance, may be regarded as slow and inefficient 
given the fact that they do not impose any standard forms to be used when issuing a request 
for obtaining evidence located in another Member State or any fixed deadlines for executing 
the request. Instruments based on mutual recognition may also be regarded as unsatisfactory 
in that they only cover specific types of evidence and that they provide for a large number of 
grounds for refusal to execute the order. 

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Because  of  this  limited  scope  of  application,  a  European  Evidence  Warrant  cannot  be  issued  for  the 
purpose of for example interviewing suspects or witnesses or obtaining information in real time, such as 
interception of communications or monitoring of bank accounts, as these types of evidence – although 
directly  available  –  do  not  already  exist.  Nor  can  a  European  Evidence  Warrant  be  issued  for  the 
purpose of for example conducting analyses of existing objects documents or data or obtaining bodily 
material, such as DNA samples or fingerprints, as these types of evidence – although already existing – 
are not directly available without further investigation or examination.  

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As  set  out  in  the  Communication  “An  area  of  freedom,  security  and  justice  serving  the 
citizen”, the most effective solution to the above mentioned difficulties would seem to lie in 
the  replacement  of  the  existing  legal  regime on obtaining evidence in criminal matters by a 
single  instrument  based  on  the  principle  of  mutual  recognition  and  covering  all  types  of 
evidence.  Compared  with  the  scope  of  application  of  the  Framework  Decision  on  the 
European Evidence Warrant, this new instrument would also cover evidence that – although 
directly available – does not already exist, such as statements from suspects or witnesses or 
information  obtained  in  real  time,  such  as  interception  of  communications  or  monitoring  of 
bank accounts. It would also include evidence that – although already existing – is not directly 
available  without  further  investigation  or  examination,  such  as  analyses  of  existing  objects 
documents  or  data  or  obtaining  bodily  material,  such  as  DNA  samples  or  fingerprints.  The 
present consultation is aimed at confirming the validity of this approach.  

It also needs to be examined whether specific rules for particular types of evidence should be 
included  in  the  instrument.  This  has  been  done  in  the  current  mutual  assistance  instruments 
which, in addition to the general provisions applying to all types of evidence, contain detailed 
rules  on  requests  for  certain  specific  forms  of  mutual  assistance,  such  as  interception  of 
telecommunications or hearing by videoconference.  

In  addition,  it  needs  to  be  examined  whether  it  would  be  appropriate  to  apply  the  typical 
characteristics of mutual recognition instruments (such as the use of orders instead of requests 
for  assistance,  standard  forms  for  issuing  the  order,  fixed  deadlines  for  executing  the  order 
and direct contact between the competent authorities) to all types of evidence. For example, it 
may not be appropriate to introduce standard forms for hearing of witnesses or fixed deadlines 
for  setting  up  a  joint  investigation  team.  Furthermore,  grounds  for  refusal  provided  for  in 
mutual recognition instruments may no longer be necessary in relation to evidence that can be 
obtained without using coercive measures. 

Finally, it needs to be examined whether it would be appropriate to supplement any existing 
or  future  instrument  with  non-legislative  measures.  This  could  include  initiatives  aimed  at 
raising  awareness  of  the  instrument(s)  among  practitioners,  such  as  drafting  guidelines  or 
providing  training  to  practitioners  on  their  application.  This  could  also  include  initiatives 
aimed  at  ensuring  that  the  instrument  is  implemented  correctly,  such  as  the  setting  up  of 
monitoring and evaluation systems. 

4.2. 

Admissibility of evidence 

As  mentioned  above,  the  existing  instruments  on  obtaining  evidence  in  criminal  matters 
already  contain  rules  aimed  at  ensuring  the  admissibility  of  evidence  obtained  in  another 
Member State, i.e. to avoid evidence being considered inadmissible or of a reduced probative 
value in the criminal proceedings in one Member State because of the manner in which it has 
been  gathered  in  another  Member  State.  However,  these  rules  only  approach  the  issue  of 
admissibility of evidence in an indirect manner as they do not set any common standards for 
gathering evidence. There is therefore a risk that the existing rules on obtaining evidence in 
criminal matters will only function effectively between Member States with similar national 
standards for gathering evidence. 

As  set  out  in  the  Communication  “An  area  of  freedom,  security  and  justice  serving  the 
citizen”,  the  best  solution  to  this  problem  would  seem  to  lie  in  the  adoption  of  common 
standards for gathering evidence in criminal matters. The present consultation is also aimed at 
confirming the validity of this approach. 

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It  also  needs  to  be  examined  whether,  in  the  affirmative,  it  would  be  best  to  adopt  general 
standards applying to all types of evidence or to adopt more specific standards accommodated 
to the different types of evidence. Given the characteristics of the different types of evidence, 
the  former  approach  would  be  limited  to  agreeing  on  general  principles  while  the  latter 
approach would allow for more specific approximation rules. 

5. 

QUESTIONS TO MEMBER STATES AND ALL CONCERNED STAKEHOLDERS 

In  order  to  identify  the  best  way  for  the  Commission  to  proceed,  Member  States  and  all 
concerned stakeholders are kindly requested to answer the following questions: 

5.1. 

Obtaining evidence 

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5. 

Would  you  in  principle  welcome  a  replacement  of  the  existing  legal  regime  on 
obtaining evidence in criminal matters by a single instrument based on the principle 
of  mutual  recognition  covering  all  types  of  evidence,  including  evidence  that  does 
not  already  exist  or  is  not  directly  available  without  further  investigation  or 
examination? Why? 

In  your  opinion,  would  it  be  necessary  to  include  specific  rules  for  some  types  of 
evidence in the instrument? If so, which? Why? 

In  your  opinion,  would  it  be  inappropriate  to  apply  the  characteristics  of  mutual 
recognition  instruments  to  all  types  of  evidence,  including  evidence  that  does  not 
already exist or is not directly available without further investigation or examination? 
If so, which types of evidence would deserve a specific treatment? Why? 

In your opinion, would it be useful to supplement the instrument with non-legislative 
measures? If so, which? Why? 

In your opinion, are there any other issues which should be addressed? If so, which? 
Why? 

5.2. 

Admissibility of evidence 

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9. 

Would you in principle welcome the introduction of common standards for gathering 
evidence? Why? 

Would you prefer to adopt general standards applying to all types of evidence or to 
adopt  more  specific  standards  accommodated  to  the  different  types  of  evidence? 
Why? 

If common standards should be adopted, which would you envisage? Why? 

In your opinion, are there any other issues which should be addressed? If so, which? 
Why? 

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6. 

DEADLINE FOR REPLYING 

Member States and concerned stakeholders are kindly requested to submit their replies to the 
Green  Paper  by  22  January  2010  at  the  latest.  The  replies  should  be  sent  to  the  following 
address: 

By mail: 
European Commission 
Directorate General Justice, Freedom and Security 
Attn: Mr Anders AAGAARD 
MO59 03/096 
B-1049 Brussels 
Belgium 

By e-mail: 
JLS-CRIMINALJUSTICE@ec.europa.eu 

Contributions  will  be  published  on  the  Internet.  It  is  important  to  read  the  specific  privacy 
statement  attached  to  this  consultation  for  information  on  how  your  personal  data  and 
contribution  will  be  dealt  with.  Professional  organisations  are  invited  to  register  in  the 
Commission's  Register  for  Interest  Representatives  (http://ec.europa.eu/transparency/regrin). 
This  Register  was  set  up  in  the  framework  of  the  European  Transparency  Initiative  with  a 
view to provide the Commission and the public at large with information about the objectives, 
funding and structures of interest representatives. 

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