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Key developments
in police and judicial criminal co-operation are taking place, and
at an unprecedented pace, in European justice and home affairs (JHA).
With the implementation of the European arrest warrant, extradition
between member states has been replaced by a simple surrender procedure.
Hot on the tails of the arrest warrant, a draft framework decision
on financial penalties, a framework decision on confiscation orders
and a framework decision on freezing orders to prevent the destruction
or disposal of evidence are being negotiated or have already been
agreed. The Commission proposal for a Council framework decision
on the European evidence warrant for obtaining objects, documents
and data for use in proceedings in criminal matters (EEW) is the
latest in this series of judicial co-operation agreements.
The present proposal provides for the obtaining of evidence that
already exists and that is directly available. It is not intended,
at least at this stage in the development of this aspect of EU criminal
law, to be used to initiate the interviewing of suspects, the taking
of statements, or the hearing of witnesses. The taking of evidence
from the body of a person, in particular DNA samples, is also excluded
from the scope of the EEW. The EEW will not be used to initiate
procedural investigative measures such as interception of communications
and monitoring of bank accounts. However, the current proposal is
envisaged by the Commission as just the first step towards a single
mutual recognition instrument dealing with the obtaining of evidence
which will, in due course, replace all of the existing mutual assistance
regimes. The next stages foreseen by the Commission will cover:
(i) evidence that does not already exist but that is directly available,
such as interviews with suspects, witnesses or experts, and the
obtaining of evidence by the monitoring of telephone calls and bank
accounts; and (ii) evidence that already exists but that is not
directly available, for instance DNA samples. The present proposals
for the EEW are intended to be implemented in all 25 member states
by 1st January 2005.
Mutual recognition
All of these measures implement the principle of mutual recognition
of judicial decisions and judgments taken in other member states,
expounded at the 1999 Tampere European Council. Enhanced mutual
recognition is intended to ‘facilitate co-operation between
authorities and the judicial protection of individual rights’
. It relies on mutual trust between member states, which in turn
rests on the presumption that the criminal justice systems of all
EU member states provide comparable protection of individual rights.
However, the proposals have been developed without ensuring that
this is in fact the case. This was a serious concern with the European
arrest warrant, as evidenced by the fact that most member states
failed to comply with the 1st January 2004 deadline for implementation.
Regrettably, the current proposals for a European evidence warrant
demonstrate the same failure to consider and put in place procedural
safeguards to protect the rights of defendants and suspects and
to guarantee fair trial rights.
Shortcomings
The explanatory notes to the EEW emphasise that
[I]n the … 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.
Such safeguards have so far, however, failed to receive the same
attention as moves to enhance the efficiency of investigations and
prosecutions. The long awaited Commission proposal on minimum procedural
safeguards that was finally presented in April 2004, has failed
to fulfil hopes that it would establish a high common level of defence
rights. Instead, it is questionable whether its provisions meet
even the minimal standards of the European Convention on Human Rights
(ECHR). It is therefore imperative that the individual EU JHA measures
being developed incorporate adequate protections on the face of
the instruments that establish them. A serious cause for concern,
however, is that the present proposal for a EEW provides strikingly
less human rights protection than the four other measures agreed
or proposed in this area on the basis of mutual recognition.
Types of proceedings
A EEW may be issued with respect to (a) criminal proceedings; (b)
proceedings brought by administrative authorities in respect of
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; and (c) proceedings
referred to above which relate to offences for which a legal person
may be held liable in the issuing state. The extension of the EEW
to proceedings brought by administrative authorities whose decision
may give rise to proceedings before a court extends the ambit of
the EEW to cases where criminal proceedings in a court may never
take place. It is worth noting that the framework decision on freezing
orders (with which the EEW proposal has a logical link) does not
share this ambiguity and is clearly limited to criminal proceedings.
It is also unclear whether use of the EEW will be confined to cases
where criminal proceedings have already been instituted or whether
it could be utilised during the investigation of a suspected offence.
As presently worded, this creates a danger that the issuing state
could issue a EEW as a ‘fishing exercise’ to obtain
sufficient evidence to justify the commencement of criminal proceedings.
Issuing authorities
Article 2(c) EEW defines issuing authorities as ‘judges, investigating
magistrates or prosecutors with competence under national law to
issue a EEW’. There are, however, concerns that this open-ended
definition could allow EEWs to be issued by persons who lack sufficient
independence to prevent EEWs being issued in inappropriate cases.
The catalogue of improperly conducted investigations and prosecutions
by HM Customs and Excise over the last five years shows how damaging
to mutual recognition it would be to allow such a body to issue
an EEW in one member state, particularly, as we discuss below, where
it is proposed that there will be no method for challenging the
substantive decision to issue the EEW in the executing member state.
Legal remedies
Article 19 EEW requires the executing state to make legal remedies
available to all interested parties, including bona fide third parties.
However, this protection only applies where a EEW is executed using
coercive measures. As presently drafted, those whose property or
data has been obtained pursuant to a EEW, but using non-coercive
means, will therefore be deprived of an effective legal remedy in
breach of article 13 ECHR. |
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Further injustice
to the defence may also occur where a legal remedy is pending. The
executing state has a discretion under article 19(6) to suspend
the transfer of objects, documents or data obtained pursuant to
a EEW. However, the issuing state may nonetheless require such objects,
documents or data to be transferred after 60 days despite the fact
that any challenge to the legality of the EEW has not been finally
decided. It is lamentable that the present proposal makes no provision
to ensure that the defence will have adequate access to any data,
documents or objects obtained pursuant to a EEW prior to transfer.
This will certainly prejudice the rights of the defence and of legitimate
third parties where they have a genuine interest in preserving the
evidence in the executing state. Article 19(6) wrongly assumes that
a legal remedy after the fact can provide full compensation for
unlawful state action.
Are the proposed protections
in article 6 EEW sufficient?
The key protections of article 6 EEW require
the issuing authority to be satisfied that (a) the objects, documents
or data are necessary and proportionate to the purpose of the criminal
proceedings; (b) the objects, documents and data can be obtained
under the law of the issuing state in similar circumstances if they
were available in its territory, even though different procedural
measures might be used; and (c) the objects, documents or data are
likely to be admissible in the proceedings for which they are sought.
However, what will inevitably lead to unfairness for the defence
is the proposal that these key conditions (and the substantial reasons
for issuing the EEW), may only be challenged in the issuing state.
This does not take adequate account of the linguistic, financial
and technical barriers faced by individuals seeking to bring legal
challenges abroad.
Of equal concern is the fact that there are
no provisions in the proposed EEW that guarantee access to legal
counsel, interpretation/translation services or legal aid. The absence
of these essential protections on the face of the EEW provide a
striking illustration of the prejudicial effect on defence rights
that the premature application of mutual recognition is likely to
have.
Equality of Arms
Article 1 of the EEW proposal raises further
concerns in respect of the equality of arms principle that underlies
article 6 ECHR. In particular, it is not clear that a defence team
could apply to a competent judicial authority to issue a EEW in
the same way that a prosecutor could. Presumably existing mutual
assistance arrangements would remain open to the defence but these
are significantly less effective and expeditious than the procedure
proposed by the EEW. It is therefore imperative that the EEW be
amended to make it clear on the face of the EEW that the procedure
will be available to both the defence and the prosecution. It is
clear from the present draft form of a EEW (set out in the Annex
to the proposal) that the Commission has simply omitted to consider
the possibility that the procedure may be utilised by the defence
as well as the prosecution.
Grounds for non-recognition
or non-execution
The present proposal for a EEW repeals the
optional grounds for refusal in article 51 of the 1990 Schengen
Agreement, namely double criminality and consistency with the law
of the requested state, as well as article 2(b) of the 1959 Council
of Europe Convention – where execution of a request is likely
to prejudice the sovereignty, security, ordre public or other essential
interests of its country, and the limited form of the political
offence exception still allowed pursuant to article 9 of the 2001
Protocol to the 2000 EU Convention on Mutual Assistance. Article
15(2) of the EEW only includes two optional grounds for non-recognition
or non-execution. These are (a) double jeopardy with respect to
proceedings in a third state and (b) where there is an immunity
or privilege under the law of the executing state which makes it
impossible to execute a EEW. The only mandatory ground for refusal
under article 15 EEW is double jeopardy as defined by the EU framework
decision on double jeopardy.
By contrast, the European arrest warrant includes
as a ground for non-execution double jeopardy, the existence of
an amnesty in the executing state and the age of criminal responsibility
in the executing state as mandatory grounds for refusal to execute
a warrant. It also contains an optional ground for non-recognition
or non-execution of a warrant on territorial grounds, that is where
the offence was committed in part or in whole on its territory.
There does not seem to be any principled reason for distinguishing
these provisions in the EEW from those in the European arrest warrant.
The authors also advocate the addition of
a mandatory ‘human rights clause’ that would oblige
the executing state to refuse to recognise or execute a EEW where
there are objective and reasonable grounds to suspect that the execution
of the EEW would amount to a violation of a defendant’s or
third party’s human rights. This would clarify, for implementation
purposes, paragraph 19 of the EEW Preamble. An amendment could be
modelled on section 21 of the UK Extradition Act 2003 which implements
article 1(3) of the European arrest warrant, referred to above.
The inclusion of such a provision would greatly enhance the certainty
and consistency of implementation across the EU and, in turn, bolster
the trust at the heart of mutual recognition.
Conclusion
The introduction of the EEW scheme relies,
as much as the other EU judicial co-operation proposals that preceded
it, on the existence and application of adequate procedural safeguards
in all 25 EU member states. The Commission’s recent proposal
on procedural safeguards is not, however, bold enough to meet these
criteria. Nor, if the delays to which it has already been subject
are any indication, will it be agreed in time to apply in tandem
with the EEW. The individual safeguards on which the success of
the mutual recognition programme itself relies must therefore be
incorporated on the face of the EEW. If not, the rights of the defence
will be severely diminished and mutual recognition may instead breed
mistrust, suspicion and uncertainty rather than fostering the culture
of trust and co-operation necessary to effectively tackle cross-border
crime.
Paul Garlick QC
is a barrister practising in extradition, human rights and European
Justice and Home Affairs at Outer Temple Chambers, 222 The Strand,
London, WC2R 1BA.
Marisa Leaf is the EU Legal Officer for JUSTICE,
59 Carter Lane, London EC4V 5AQ.
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