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Statewatch briefing on the European Evidence Warrant to the European Parliament

01 March 2004

Statewatch has sent this briefing to the European Parliament in mid-March raising substantial concerns over the Commission's proposal for a Framework Decision on a European Evidence Warrant.

This briefing and proposed amendments from Statewatch (as a pdf)

Introduction

The Commission's proposal for a Framework Decision on a European evidence warrant, first introduced in November 2003, has the valid objective of simplifying and accelerating the gathering and transfer of evidence in criminal proceedings with a cross-border element. But it would need significant amendment in order to fully ensure that the rights of criminal suspects and defendants are fully protected when such proceedings are underway.

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Background

The background to the evidence warrant proposal is a complex set of treaties at Council of Europe level (comprising all 45 Member States of the Council of Europe), supplemented by pre-existing EU measures.

The core measure is the 1959 Council of Europe Convention on mutual assistance, which has been ratified by all of the EU Member States (and all new EU Member States about to join). It sets out the basic rules for the gathering and transfer of evidence in criminal proceedings where more than one State is involved. It is supplemented by a Second Protocol from 2001 has a limited number of ratifications to date.

The Council of Europe measures have been modified as regards certain terrorist-related offences by the 1977 Council of Europe Convention on the suppression of terrorism. This Convention has also been ratified by all EU Member States and all incoming EU Member States. It has also been supplemented by a Protocol opened for signature in 2003, but that Protocol is not yet in force.

Within the EU, some limited amendments to the Council of Europe rules were made by Articles 48-53 of the Schengen Convention. These provisions are in force among 13 Member States (plus Norway and Iceland). The UK and Ireland are also committed to apply these rules, although this commitment is not fully in force yet. Also, the new Member States must apply these rules as from joining the EU on 1 May 2004.

Subsequently, after long negotiations, the EU Member States signed the EU Mutual Assistance Convention in 2000 in order to supplement the Council of Europe and Schengen rules. Only Spain, Portugal, Finland and Sweden had ratified this Convention by early March 2004. In 2001, EU Member States signed a Protocol to the EU Convention in order to address further mutual assistance issues. No Member States had ratified the Protocol as of early March 2004.

The proposed Framework Decision on the European Evidence Warrant would in principle take effect a year or two after the adoption of the Framework Decision, thus avoiding formal ratification by national parliaments, although action b