Brussels, 09/11/2010 (Agence Europe) - European justice ministers are finding it difficult to facilitate the exchange of criminal evidence within the Union. A first debate on the creation of a European Investigation Order was held on Tuesday 9 November in Brussels.
The initiative presented in May this year and backed by seven member states -Belgium, Bulgaria, Estonia, Spain, Austria, Slovenia and Sweden - aims to allow an EU member state to call on another country for elements of proof within 90 days, such as the hearing of witnesses, searches and seizures and, with additional safeguards, interception of telecommunications, observation or infiltration and the monitoring of bank accounts.
Justice Minister Stefaan De Clerck of Belgium said after the meeting he welcomed the fact that they had reached broad consensus although some points are still to be discussed.
The thorniest issue concerns the grounds on which one member state may refuse to provide evidence. In order to ensure that judicial cooperation in criminal matters is effective, the Presidency's proposal is restricted to the ability to refuse the European investigation order in relation to four categories of evidence classified according to their intrusive nature. Although, at this stage, no classification has been operated, it is now foreseeable that Category 1 will have low grounds for refusal and will include elements of proof that are the least detrimental to individuals' rights, and that Category 4 will have high reason for refusal being considered the most intrusive, for example, evidence gained from phone tapping.
François Biltgen, Luxembourg's Justice Minister, said some countries feel that decision must foresee a possibility of general refusal to the request for data exchange on the basis of their legislations, whereas others want to restrict this possibility as far as possible. Biltgen said he felt refusal must be allowed but must remain “exceptional”.
Germany above all supports a generalised refusal mechanism. Although it is quite natural for a member state to give a positive response to a request for investigation data from another country, the country which carries out the request must, on the other hand, remain master of the means for achieving the result hoped for, he added. He felt the dossier was “very thorny” but has its importance. The text aims to replace a 2008 framework decision on the mandate for taking of evidence that almost no country has managed to transpose into national law. As of 2011, the deadline for transposition, there will be problems and the risk of a warning issued by the Commission, Biltgen pointed out. The Belgian Presidency therefore plans to present a new compromise text in December in this field with a view to reaching a more general approach. (B.C./transl.jl)