The 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 – A Critical Assessment
| Author | Nathalie Cloosen,Karen Weis,Paul De Hert |
| Date | 01 June 2009 |
| DOI | 10.1177/203228440901a00109 |
| Published date | 01 June 2009 |
| Subject Matter | Article |
New Journal of Eur opean Crimina l Law – Special Edit ion 55
ARTICLE
THe 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
– a CRITICal assessMenT
P D H, K W and N C*
On 18 December 2008, the 27 EU Member State s formally adopted the Framework
Decision on the European evidence warrant for the purpose of obtaining objec ts,
documents and data for use in proceedings in criminal matters. is ended a ve year
long discussion between on this rather delicate subject. is te xt will , aer a short
introduction, discuss some key elements of the Framework Decision. Firstly, the relation
between the Framework Decision on the European Evidence Warrant and the exis ting
MLA instr uments will be assessed. Secondly, a short introduction w ill be given on the
content of the Framework Decision itself. Special attenti on will be given to topics that
gave rise to a lively discussion in the Council during the legislative process. A s a third,
the safeguards – as they exi st in the Framework Decision – will be the subject of critical
assessment. Are these safeguards satisfactory and will they prove eective enough to
protect the fundamental rights of persons who are confronted with a European Evidence
War ra nt?
1. INTRODUCTION
Since the Tampere European Council, the pri nciple of “mutual recognition” has been
the cornerstone of judicia l cooperat ion in crimina l matters between EU Member
* Paul De Her t is a profe ssor at the Vrije Universiteit Brussel and e University of Tilburg. Karen
Weis is a resea rcher at the Vrije Universiteit Br ussel. Nat halie C loosen works at t he Minis try of
Justice i n Belgium. Her views in this article a re her own and they do not expre ss in any kind t he
views of the author ity she is representing .
Paul De Hert, Ka ren Weis and Nathalie Cloos en
56 Intersentia
States. Mutual recognition is about acknowledgi ng dierences between the judicial
systems of the Member States and accepting them. According to this principle, t here
is no reason to treat a request for cooperation in criminal matters drawn up in another
member state, dierently then a similar national decision. e rst concrete realization
related to the implementation of this principle w as Council Fra mework Decision of
13 June 2002 on t he European arrest wa rrant and the surrender proc edures between
Member States.1
In 200 0, the multi-an nual ‘Tampere program me’ on measures to implement the
principle of mutual recognition in crim inal matters was adopted by the Europe an
Council. In it the highest priority was given to ensuring that evidence could be
gathered in all the Member States on the basi s of t his principle.2 e Commis sion
formulated a proposal for a Framework Dec ision on the European Evidence Warrant
in November 2003, which aimed par ticularly at quicker and more eective judicial
co-operation in respect of collecting evidence. e European Commission considered
this Framework Decision as being just a rst step towards a single mutual recognition
instrument that would in due ti me replace all t he existi ng mutual legal assistance
instruments. It only dea ls wit h a part of t he spect rum of evidence gathering (see
further). Other instruments wil l have to be drawn up in the futu re for evidence that
does not fall w ithin the scope of the European Evidence Warrant. e na l objective
is to bring all these separate instruments together into a single consolidated instrument
applicable to all ty pes of cooperation in order to obtain evidence.3
is proposal was also closely lin ked to t he adoption of anot her Fra mework
Decision, na mely the Framework Decision of 22 July 2003 on the execution in the
European Union of orders freezing property or evidence.4 e latter only dea ls with a
small part of international co-operat ion with respect to evidence and this made a new
mutual recognition instr ument necessary. e scope of the Framework Decision of
22 July 2003 is namely limited to provisional measures that w ill “prevent the
destruction, t ransformation, moving, tra nsfer or disposal of evidence”. If t he issuing
authority thus wants to use this evidence in its own court rooms, the freezi ng order
will need to be accompanied by a request for the transfer of the evidence to the issuing
Member State or by a statement that such a request will be forthcoming. Accordi ng to
this Framework Decision, the normal mutual assistance rules would apply to thi s
transfer. It is thus possible that two dierent procedures will need to be used in one
1 Council Framework Decision 2002/584 /JHA of 13 Ju ne 2002 on t he European arrest war rant and
the surrender procedures between Member States – Statement s made by certai n Member States on
the adoption of the Fra mework Decision, OJ L 190, 18/07/2002, 1–20.
2 For the Tampere Programme: see OJ C 012, 15/01/2001, point 2.1.1.
3 Proposal for a Council Framewor k Decis ion on the European Evidence Warrant for obtaining
objects, doc uments and data for use in proc eedings in cr iminal mat ter, /* COM/2003/0688 nal –
CNS 2003/0270 */, n°39.
4 Council Fr amework D ecision 2003/577/JHA of 22 July 2003 on t he execut ion in the Europea n
Union of orders freezi ng property or evidence , OJ L 196, 02/08/ 2003, 45–55.
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