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 cooperation in both civil and criminal matters within the Union.
(2)
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 matters (2). This Framework Decision is necessary to complete measures 5 and 6 of that programme, which deal with the mutual recognition of orders to obtain evidence.
(3)
Point 3.3.1 of the Hague Programme (3), included in the Conclusions of the European Council of 4 and 5 November 2004, emphasises the importance of the completion of the comprehensive programme of measures to implement the principle of mutual recognition in criminal matters and highlights the introduction of the European evidence warrant (EEW) as a matter of priority.
(4)
Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (4) was the first concrete measure in the field of criminal law implementing the principle of mutual recognition.
(5)
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property and evidence (5) 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 judicial cooperation in criminal matters with respect to evidence, and subsequent transfer of the evidence is left to mutual assistance procedures.
(6)
It is therefore necessary further to improve judicial cooperation by applying the principle of mutual recognition to a judicial decision, in the form of an EEW, for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.
(7)
The EEW may be used to obtain any objects, documents and data for use in proceedings in criminal matters for which it may be issued. This may include for example 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 any services including financial transactions, historical records of statements, interviews and hearings, and other records, including the results of special investigative techniques.
(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.
(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.
(10)
The definition of the term ‘search or seizure’ should not be invoked for the application of any other instrument applicable between Member States, in particular the Council of Europe Convention on Mutual Assistance in Criminal Matters of 20 April 1959, and the instruments which supplement it.
(11)
An EEW should be issued only where obtaining the objects, documents or data sought is necessary and proportionate for the purpose of the criminal or other proceedings concerned. In addition, an EEW should be issued only where the object, documents or data concerned could be obtained under the national law of the issuing State in a comparable case. The responsibility for ensuring compliance with these conditions should lie with the issuing authority. The grounds for non-recognition or non-execution should therefore not cover these matters.
(12)
The executing authority should use the least intrusive means to obtain the objects, documents or data sought.
(13)
The executing authority should be obliged to execute the EEW for electronic data not located in the executing State only to the extent possible under its law.
(14)
It should be possible, if the national law of the issuing State so provides in transposing Article 12, for the issuing authority to ask the executing authority to follow specified formalities and procedures in respect of legal or administrative processes which might assist in making the evidence sought admissible in the issuing State, for example the official stamping of a document, the presence of a representative from the issuing State, or the recording of times and dates to create a chain of evidence. Such formalities and procedures should not encompass coercive measures.
(15)
The execution of an EEW should, to the widest extent possible, and without prejudice to fundamental guarantees under national law, be carried out in accordance with the formalities and procedures expressly indicated by the issuing State.
(16)
To ensure the effectiveness of judicial cooperation in criminal matters, the possibility of refusing to recognise or execute the EEW, as well as the grounds for postponing its execution, should be limited. In particular, refusal to execute the EEW 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) should not be possible for certain categories of offences.
(17)
It should be possible to refuse an EEW where its recognition or execution in the executing State would involve breaching an immunity or privilege in that State. There is no common definition of what constitutes an immunity or privilege in the European Union and the precise definition of these terms is therefore left to national law, which may include protections which apply to medical and legal professions, but should not be interpreted in a way which would run counter to the obligation to abolish certain grounds for refusal in Article 7 of the 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 (6).
(18)
It should be possible to refuse to recognise or execute an EEW to the extent that execution would harm essential national security interests, jeopardise the source of the information or involve the use of classified information relating to specific intelligence activities. However, it is accepted that such ground for non-recognition or non-execution would be applied only where, and to the extent that, the objects, documents or data would not be used for those reasons as evidence in a similar domestic case.
(19)
The specific provisions in Article 13(3) in relation to Article 13(1)(f)(i) do not prejudice how and the extent to which the other grounds for refusal in Article 13(1) are implemented.
(20)
Time limits are necessary to ensure quick, effective and consistent cooperation on obtaining objects, documents or data for use in proceedings in criminal matters throughout the European Union.
(21)
Each Member State has in its law legal remedies available against the substantive reasons underlying decisions for obtaining evidence, including whether the decision is necessary and proportionate, although those remedies may differ between Member States and may apply at different stages of proceedings.
(22)
It is necessary to establish a mechanism to assess the effectiveness of this Framework Decision.
(23)
Since the objective of this Framework Decision, namely to replace the system of mutual assistance in criminal matters for obtaining objects, documents or data between Member States 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 set out in 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.
(24)
The personal data processed in the context of the implementation of this Framework Decision will be protected in accordance with the relevant instruments including 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 2000 (7).
(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.
(26)
Member States are encouraged to draw up, for themselves and in the interest of the European Union, tables which as far as possible show the correlation between the provisions of this Framework Decision and the national implementation measures and to communicate this to the Commission together with the text of the national law implementing this Framework Decision.
(27)
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, notably Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to execute an EEW when there are reasons to believe, on the basis of objective elements, that the EEW has been issued for the purpose of prosecuting or punishing a person on account of his or her sex, racial or ethnic origin, religion, sexual orientation, nationality, language or political opinions, or that the person’s position may be prejudiced for any of these reasons.
(28)
This Framework Decision does not prevent any Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.
(29)
This Framework Decision does not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security in accordance with Article 33 of the Treaty,
