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Last Updated: Tuesday, 6 June 2006, 11:25 GMT 12:25 UK
Q&A: European evidence warrant
Madrid train bombing
The US, Madrid and London attacks accelerated EU anti-crime efforts
European Union member states have agreed on a system to speed up the transfer of evidence needed for criminal investigations, from one member state to another.

The agreement, reached on 1 June 2006, creates an "evidence warrant" - an order that would be issued by a judicial authority in one member state and recognised in another.

EU Justice Commissioner Franco Frattini hailed the deal as a key step towards "completing the European space to fight terrorism and organised crime".

What does the evidence warrant change?

Up to now, a country's courts or its justice ministry have been free to choose whether to satisfy another country's request for evidence.

Once the evidence warrant comes into effect, grounds for refusal will be very limited. Announcing their agreement, the member states said the warrant should be "executed immediately in the same way as a domestic procedural measure".

The process is supposed to take a maximum of 60 days or less, instead of months or years.

This could mean that fewer cases collapse for lack of evidence.

Why has the EU taken this step?

There are two main reasons. One is the removal of internal borders in large parts of the EU, which has given a boost to cross-border crime. Most member states agree that this needs to be tackled by better cross-border law enforcement.

The other reason is international terrorism. The attacks in the US in 2001, Madrid in 2004 and London in 2005, have underlined the need for Europeans to work together to improve security.

What kinds of evidence does the warrant cover?

It applies to objects, documents and data which already exist, are readily available, and have been specifically requested - a warrant cannot ask police to go "fishing" for evidence.

The warrant does not apply to statements from suspects or witnesses (these fall into the category of evidence that does not already exist).

Nor does it apply to DNA samples or fingerprints, covert surveillance, interception of communications, monitoring of bank accounts, or electronic communications data.

However, a warrant can be used to request all these types of evidence if they have already been gathered before the issuing of the warrant.

What kinds of offence does it apply to?

It will be possible to issue a warrant for evidence needed in connection with any criminal proceedings. However, the procedure will be simplest and quickest in relation to 32 serious offences, such as terrorism, people trafficking, child abuse, drugs and weapon trafficking.

In these cases, countries providing the evidence will not stop to verify whether the offence mentioned in the warrant is also an offence under their legal system.

What are the arguments against the evidence warrant?

The evidence warrant is attacked by those who do not think it goes far enough, and those who think it goes too far.

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Enthusiasts for European collaboration in the field of justice and home affairs regret that the warrant does not cover statements, as these form a large proportion of requests for evidence. However the European Commission plans to issue proposals in future to extend the warrant to include statements and other kinds of evidence currently excluded.

Critics who think the warrant goes too far see it as an attack on national sovereignty. They are particularly alarmed by the fact that countries such as Bulgaria and Romania - criticised by the European Commission for judicial corruption - will be able to issue warrants once they join the EU in 2007 or 2008.

What do human rights campaigners think?

They say that, in general, the EU is making efforts to improve security, but doing nothing to improve civil liberties. For example, it has not taken steps to improve access to bail for citizens of one EU state arrested in another. The argument is that the EU is undermining the balance between national security and civil liberties achieved in each member state.

Do any countries have opt-outs?

Yes, for a transitional period of five years after the legislation comes into force, Germany will be allowed to check whether offences mentioned in a warrant are offences under German law, if they fall within six categories which Germany says are poorly defined.

These categories are: terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling.

Is there a risk of a country getting swamped by evidence warrants?

The Netherlands is afraid that it will be bombarded with requests about the purchase of drugs. It insisted on a clause saying that a country need not provide the requested evidence if the crime in question occurred wholly or partly on its own territory.

However, any country proposing to refuse to execute a warrant for this reason will have to consult Eurojust, a body of senior prosecutors, judges and police officers from each member state, whose main role is to help national authorities work together on investigations and prosecutions of serious crimes.

This measure will also be reviewed five years after the warrant comes into existence.

Is this a major step towards harmonising EU states' judicial systems?

It may be less radical than the European Arrest Warrant, which has been in force since 2004, but it does extend the principle of mutual recognition of judicial systems to a new area.

This EU plans to take this process a lot further, but in practice member states find it hard to agree with one another. Experts say that further progress - for example in agreeing standards for criminal proceedings - may depend on abolishing the national veto in the field of criminal justice.

The list of 32 offences which countries will automatically acknowledge as offences under their own law:

  • participation in a criminal organisation
  • terrorism
  • human trafficking
  • sexual exploitation of children / child pornography
  • drug trafficking
  • weapons trafficking
  • corruption
  • fraud, including that affecting the financial interests of the European Communities
  • laundering proceeds of crime
  • counterfeiting
  • computer-related crime
  • environmental crime, including trafficking in endangered animal / plant species
  • facilitation of unauthorised entry and residence
  • murder, grievous bodily injury
  • illicit trade in human organs and tissue
  • kidnapping, illegal restraint and hostage-taking
  • racism and xenophobia
  • organised or armed robbery
  • illicit trafficking in cultural goods
  • swindling
  • racketeering and extortion
  • counterfeiting and piracy of products
  • forgery of administrative documents and trafficking therein
  • forgery of means of payment
  • illicit trafficking in hormonal substances / growth promoters
  • illicit trafficking in nuclear or radioactive materials
  • trafficking in stolen vehicles
  • rape
  • arson
  • crimes within the jurisdiction of the International Criminal Court
  • unlawful seizure of aircraft/ships
  • sabotage

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