Welcometo Maastricht University

Faculty of Law

Oral v. written evidence in the European Union

Prof. André KlipMaastricht University,

Ravenna 14 May 2011

Faculty of Law

Cornerstones, internal markets and areas of freedom, security and justice

• European integration and criminal law

• An internal market principle• Free flow of “criminal products”?• Can criminal law deal with the

principle?

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Compatibility of two convergent areas

• Internal market• Area of freedom, security and justice• Whose interests are protected by

mutual recognition?• Member States’ interests v. the

accused

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What is mutual recognition?

• No definition• Relationship with the five freedoms

– Services– Workers– Goods– Capital– Residence (Art. 21 TFEU)

• EU-citizen entitled to fundamental freedoms• Charter of Fundamental Rights

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Examples of mutual recognition

• Driving licenses• Regulation 44/2001 on civil judgments• Ne bis in idem • European arrest warrant

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What questions are raised?

• Who recognizes whom?• What is being recognized?• What is recognition?• What is mutual recognition?

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Absolute recognition?

What discretion do Member States have not to recognise?

- Prevailing obligations- Obvious shortcomings- Applicable grounds for refusal- Irreconcilable decisionsSee Klip, European Criminal Law, p. 330-

353

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EEW-1 (FD 2008/978)

• Implementation period lapsed 19 January 2011

• EEW is parallel to the regular international cooperation in criminal matters

• EEW is a judicial decision concerning existing evidence (Art.4 par. 4): NB: not a request to collect new evidence

• Evidence = objects, documents, data

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EEW-2

• EEW may only concern evidence which could be obtained under the law of the issuing Member State (art.7)

• Executing Member State must execute, unless art. 13

• Abolition of double criminality, list offences (art.14)

• Absent: - standarisation of the collection of evidence

- the conclusions to be drawn from admissible evidence

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EEW-3 European Investigation Order

• Member States are negotiating a new Directive

• Differences with the FD EEW

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On-line consultation of data

• Prüm and Decisions 2008/615 en 2008/616• Availability principle => standarisation on

DNA (art.7 Decision 2008/616 + Annex); and on finger prints (art. 12 Decision 2008/616 + Annex), license plates

• First stage, investigatory purposes, no collection of evidence yet

• Conditional of purpose: art.26 Decision 2008/615

• Limitation of access: specialists only (art.30 Decision 2008/615)

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Division of tasks

• Issuing Member State– Grounds/ necessity of EEW– Applicability of list offence

• Executing Member State– Application of grounds for refusal– Double criminality (non list offences)– Purpose within the Framework Decision?– Assessment of the interests of the requested

person

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Article 82, par. 1 – a closer look

• Judicial cooperation based on mutual recognition

• Approximation• Measures to:

– A. ensure recognition– B. prevent/settle conflicts of jurisdiction– C. support training judiciary– D. facilitate cooperation

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Article 82, par. 2 TFEU

• Minimum rules to facilitate mutual recognition:– A. mutual admissibility of evidence– B. rights of individuals in criminal

procedure– C. rights of victims of crime– D. any other aspect

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The emergency break

• Articles 82, par. 3 and 83, par. 3 TFEU• Draft Directive affecting fundamental

aspects of its criminal justice system

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Proliferation of Mutual Recognition

• Transitionary period of EAW comes to an end

• MR in all areas of cooperation– see FD’s to be implemented– Art. 82 TFEU

• Co-existence of alternatives requires a new balance to be found

• Conflicting MR warrants

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Character of EU law on evidence

• Predominantly influenced by civil law• Predominantly influenced by the internal

market (see for instance Directive 2011/16 on administrative cooperation in the field of taxation)

• Focus on written evidence• However: Directive 2010/64 on the right to

interpretation and translation in criminal proceedings

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Future perspectives

• Further development of common criminal policy– in legislation => more influence on national

criminal law– in establishing structures

• More intensive cooperation• Separate EU criminal justice system• Balance between the internal market and the

area of freedom, security and justice