The existing rules on obtaining evidence from another Member State consist of a number of co-existing instruments based on different underlying principles and scopes. This makes the application of these rules burdensome and may cause confusion among practitioners, and lead to situations where they do not use the most appropriate instrument for the evidence sought. Ultimately, these factors may therefore hinder the course of justice, and effective cross-border cooperation.
The European Commission is considering replacing the various and intricate procedures of obtaining evidence from fellow member states, regarding criminal law, with a straightforward course of action founded on the mutual recognition of judicial systems.
The Commission vice-president Jacques Barrot stated, “Faced with cross-border crime, the administration of justice must not be impeded by differences between the Member States judicial systems and the lack of mutual recognition of judicial decisions.”
The initiative, put forward as a Green paper in Brussels, addresses the importance of cross border co-operation in order to harmonize the gathering of evidence. Barrot stated, ” In this regard it is particularly important to foster more effective cooperation on obtaining all types of evidence in criminal matters, thus facilitating and accelerating judicial cooperation between Member States.”
However, little is said about the admissibility of the evidence in court, partly due to the current lack of standards in this practice. The Commission have acknowledged that the cross-border cooperation in obtaining evidence could remain exclusive to the Member States, and may exacerbate the gathering of evidence for a cross-border crime that was committed in both a member state, and a non-member state.
This said, the Commission has also expressed its wishes to instate common standards in the gathering of cross border evidence, thus making it easier to obtain evidence in criminal matters from one Member State to another and ensuring its admissibility in a court of law.
