Mutual admissibility of evidence and the European investigation order: aspirations lost in reality
- PDF / 627,581 Bytes
- 10 Pages / 439.37 x 666.142 pts Page_size
- 12 Downloads / 186 Views
Mutual admissibility of evidence and the European investigation order: aspirations lost in reality Martyna Kusak1,2
Published online: 7 January 2019 © The Author(s) 2019
Abstract This article deals with the topic of mutual admissibility of evidence in the EU. It presents inability of the forum legit actum principle to overcome problems related to free movement of evidence and points out the ideas that can be undertaken in the future. Keywords European investigation order · Mutual admissibility of evidence · Forum regit actum · Minimum standards
1 Introduction The European Investigation Order (hereafter EIO)1 is a new legislative measure aimed at facilitating evidence-gathering in criminal matters in the EU, which is be1 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the
European Investigation Order in criminal matters, OJ L 130/1 (hereafter the EIO Directive).
The paper has been supported by grant PRO-2014/15/N/HS5/02686 awarded by the National Science Centre, Poland. The author has been supported by the Foundation for Polish Science (FNP).
B M. Kusak
[email protected]
1
Adjunct Professor, Adam Mickiewicz University in Pozna´n, Pozna´n, Poland
2
Post-doc collaborator, Institute for International Research on Criminal Policy, Ghent University, Ghent, Belgium
392
M. Kusak
lieved to be more efficient than a freezing order2 or a European evidence warrant.3 An EIO is to be issued for the purpose of having one or several specific investigative measures carried out in the state executing the EIO with a view to gathering evidence. The instrument applies to all investigative measures aimed at gathering of evidence,4 as well as at obtaining evidence that is already in the possession of the executing authority (Article 1(1) of the EIO Directive). The EIO, however, is not free from conceptual weaknesses which will hamper its cross-border efficiency. In particular, the Directive is not accompanied with rules facilitating mutual admissibility of evidence gathered using the EIO, which is the key to its effectiveness. Therefore, this article will clarify some features of the topic of mutual admissibility of evidence, and point out the ideas that can be undertaken in the future.
2 Uncompleted path towards mutual admissibility of evidence in the EU The question of how to address the admissibility of evidence gathered in a crossborder context is of long standing both within the European Union and in the context of Council of Europe cooperation in criminal matters.5 The 1959 Convention6 (often called a ‘mother treaty’), which was originally the sole legal basis for mutual legal assistance between the EU member states, relied on the locum regit actum principle (Article 3), according to which any letters rogatory relating to a criminal matter are to be executed by the requested party in the manner provided by its own law. In other words, the locus regit actum principle assumes that the decisive element in determining the applicable law is the location of the evidence or the inv
Data Loading...
