This is a motion re Council framework decision on the European evidence warrant, EEW. I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Conor Lenihan.
Before we commence I wish to advise everyone that we will receive a presentation from the Minister of State, which will be followed by a question and answer session.
I thank the members of the joint committee for considering this motion regarding the EU proposal for a Council framework decision on the European evidence warrant (EEW) for obtaining objects, documents and data for use in proceedings in criminal matters.
The motion before the Oireachtas states:
That Dáil Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
a proposal for a Council Framework Decision on the European Evidence Warrant for the purpose of obtaining, documents and data for use in proceedings in criminal matters,
a copy of which measure was laid before Dáil Éireann on 25 November 2008.
A motion in similar terms stands in respect of Seanad Éireann.
The members are probably aware that a previous motion covering this proposal was passed by the Oireachtas in November 2005. At that time the then Minister for Justice, Equality and Law Reform, Michael McDowell, advised the committee there would be some amendments to the Council framework decision. The principal issues of substance which remained to be finalised at the time were a definition of search and seizure and of issuing authorities. Difficulties had arisen in these areas due to slight variations in systems and procedures in member states. Since that motion was passed, the text of the Council framework decision has been subject to further amendment and the Attorney General has therefore advised that the Oireachtas approval of this revised text should be sought.
The most significant change in the framework decision is a new article, namely, Article 23(4), permitting Germany to make a declaration reserving its right to make the execution of an EEW subject to the verification of dual criminality in such cases where search or seizure is sought and the offence is one of the following offences: terrorism; computer-related crime; racism and xenophobia; sabotage; racketeering; and extortion or swindling. This amendment is required to address a difficulty which arose from a decision of the German Constitutional Court involving the European arrest warrant.
It does not present a difficulty from an Irish perspective. Ireland and the other member states, apart from Germany, are happy that they can comply with the provisions contained in Article 14.2 of the framework decision, without reservations. This article states that in cases where it is necessary to carry out a search or seizure, the recognition and execution of the European evidence warrant in respect of certain listed offences which are punishable in the issuing state by a sentence of a maximum of more than three years, shall not be subject to verification of double criminality. This is consistent with the precedent set in Irish law in implementing the European arrest warrant.
Given that some current members of this committee may not have had involvement in previous discussions of this framework decision, I will, for the benefit of the committee, outline in brief some other key provisions of the instrument. As the committee has already been advised, this measure is governed by the provisions of Title VI of the Treaty of the European Union which deals with, among other things, judicial co-operation in regard to criminal matters. In October 1999, the European Council endorsed, in what became known as the Tampere conclusions, the principle of mutual recognition. These agreed that this principle should become the cornerstone of judicial co-operation in civil and criminal matters between member states.
The aim of this instrument is to apply the principle of mutual recognition to a European evidence warrant issued for the purpose of obtaining objects and documents for use in proceedings in criminal matters. It is envisaged that the framework decision, when implemented, will result in quicker, more effective judicial co-operation in criminal matters.
The key content of the framework decision is Article 4 which outlines the scope of the EEW. The European evidence warrant will be used only to obtain information which is already in the possession of the Garda, or already in the possession of the authorities in another state. It will, therefore, be restrictive in its use. The warrant shall not be issued for the taking of evidence in the form of interviews, statements or hearings or from a person's body, including DNA samples and biometric material; or for obtaining information in real time such as via interception of communications, surveillance or the monitoring of bank accounts; or for conducting inquiries concerning existing objects, documents or data by means of, for example, forensic analysis or systematic compilation, unless such material is already in the possession of the executing authority.
Article 5 specifies that the EEW can be issued for any criminal offence under the law of the issuing state or for administrative proceedings which may give rise to criminal proceedings before a court. It may also be issued for any of the foregoing proceedings which relate to offences or infringements for which a legal person may be held liable in the issuing state. The procedures and safeguards to be followed by the issuing state are dealt with in Articles 7 to 10 of the framework decision. An EEW may only be issued where the issuing authority considers it necessary and proportionate and where the evidence sought can be obtained under the law of the issuing state in similar circumstances, even though different procedural measures might be used. Personal data obtained under the framework decision is confidential. The provisions are similar to those in other instruments in this field.
Articles 11 to 19, inclusive, deal with procedures and safeguards for the executing state. They provide that any formalities or procedures indicated by the issuing state must be followed unless they are contrary to fundamental principles of law in the executing state. These articles also provide grounds for the non-recognition and non-execution of an EEW. These grounds include that a warrant may be refused if there is immunity or privilege under the law of the executing state; if its execution would infringe the ne bis in idem principle; if it relates to offences which have been committed on the territory of the executing state; or if it relates to offences committed outside the territory of the issuing state and the executing state’s national law does not permit proceedings to be taken where the offence is committed ex-territorially. Recognition or execution may also be refused in the interest of national security.
Execution of a warrant may also be postponed if its execution would prejudice an ongoing investigation or prosecution or if the evidence is already in use in other proceedings. There is also provision for arrangements to be put in place to ensure that any interested parties have a legal remedy against the recognition and execution of an EEW. There is also provision for the issuing state to reimburse the executing state for any damages paid to any interested party or bona fide party who has been injured in the course of the execution of an EEW.
Article 23 provides for the implementation of the framework decision. In particular, it includes the provision I mentioned earlier allowing Germany to make a declaration to the effect that it will seek verification of dual criminality in cases where search or seizure is required in order to execute an EEW relating to terrorism, computer-related crime, racism and xenophobia, sabotage, racketeering and extortion or swindling.
I thank the members of the committee for their attention and am happy to address any questions they may have.
I have many questions for the Minister of State, but he can relax as we have been down this road before.
I can see the television screen and there appears to be real issues of conflict today. I am not deliberately avoiding the forensic questioning.
I have no questions on this matter. We merely seek to make an exception for Germany because of its system of law. Otherwise the essence of the framework decision has been approved since 2005. This exception for Germany causes no difficulty for us. This is purely a precautionary measure on the advice of the Attorney General lest any issues arise concerning the framework decision in the future and I am happy to agree on that basis.
I have a question for the Minister concerning Article 6. The warrant form must be completed, signed and certified in one of the official languages of the executing state. I presume Ireland has the choice of using either Irish or English. Ultimately, justice is vital. The completion of all documentation and the execution of justice is necessarily dependent on the interpretation of the documentation. What security is in place to ensure a very focused, fine line of interpretation between the official request of the warrant and the ultimate interpretation of the documents in the hearing in court?
I am informed the document is standard throughout Europe. The purpose of a Europe-wide evidence warrant is to standardise procedures to prevent blatant contradictions with the standards applied. That is the cornerstone of what is proposed. This is the first time such a measure has been employed to prevent a District Court or High Court challenge to given evidence on technical grounds. There is a standardised application form for physical or other evidence throughout the European Union. This is basically an administrative test.
I am grateful to the Minister and I thank the Chairman for the opportunity to contribute.
