MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TOPIC 4 THE 1959 CONVENTION ON MUTUAL

MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TOPIC 4 THE 1959 CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS.- AUTHOR: JOSÉ MIGUEL GARCÍA MORENO

Red Europea de Formación Judicial (REFJ) European Judicial Training Network (EJTN)

Réseau Européen de Formation Judiciaire (REFJ)

JUDICIAL COOPERATION IN CRIMINAL MATTERSIN THE CONTEXT OF THE COUNCIL OF EUROPE (I)

Mutual Assistance: European Convention on Mutual Assistance in

Criminal Matters of 20 April 1959 Additional Protocols (2) to the European

Convention on Mutual Assistance in Criminal Matters

Extradition: European Convention on Extradition of 13

December 1957 Additional Protocols to the European Convention

on Extradition

JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE (II)

Other Council of Europe Conventions European Convention on the Supervision of Conditionally Sentenced or

Conditionally Released Offenders of 1964

European Convention on Information on Foreign Law of 1968 and its Additional Protocol of 1978

European Convention on the International Validity of Criminal Judgments of 1970

European Convention on the Transfer of Proceedings in Criminal Matters of 1972

Convention on the Transfer of Sentenced Persons of 1983 and its Additional Protocol of 1997

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 1990

Convention on Cybercrime of 2001

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 2005.

MUTUAL ASSISTANCE: THE COUNCIL OF EUROPE CONVENTION

European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 Territorial Scope: All Council of Europe countries and

Israel, Chile and Korea Protocols

First Additional Protocol of 17 March1978 (extension to fiscal offences; extension of mutual assistance to the service of documents concerning the enforcement of a sentence and enforcement measures; and supplemented with a provision on the exchange of information on criminal convictions)

Second Additional Protocol of 8 November 2001 (Extension of the measures of the Convention on Mutual Assistance in the European Union – 2000 Convention)


General Rules (I): - General obligation to provide assistance in the context of

proceedings regarding offences whose punishment falls within the jurisdiction of the judicial authorities of the requesting party, except for offences of a military nature (Article 1)

- Each state defines what it considers a judicial authority to be for the purposes of the Convention (Article 24)


General Rules (II):

- Refusal of Mutual Assistance (Article 2)

(a) If the request refers to offences that the requested party considers political offences or offences connected to political offences or fiscal offences.

(b) If the requested party considers that acceding to the request could affect the sovereignty, security, ordre public or other essential interests of its country.


Letters rogatory (I): Aimed at procuring evidence or transmitting articles to be produced in evidence, records or documents (Article 3.1)

General Rules of Execution (Article 3 et seq): The requested party will execute, in the manner provided for

by its law, any letters rogatory regarding a criminal matter sent by the judicial authorities of the requesting party and whose purpose is to procure evidence or transmit articles to be produced in evidence, records or documents.

If the requesting party desires witnesses or experts to give evidence on oath, it shall expressly so request and the requested party shall comply with the request if the law of its country does not prohibit it.


Letters Rogatory (II): General Rules of Execution (Article 3 et seq):

Any Contracting Party may reserve the right to make the execution of letters rogatory for search or seizure of property dependent on one or more of the following conditions:

(a) That the offence motivating the letter rogatory is punishable under both the law of the requesting party and the law of the requested party.

(b) That the offence motivating the letter rogatory is an extraditable offence in the requested country.

(c) That the execution of the letter rogatory is consistent with the law of the requested party.


Service and appearance (Article 7 et seq) (I) The requested party shall effect service of writs and

records of judicial verdicts which are transmitted to it for this purpose by the requesting party.

By simple transmission of the writ or record to the person to be served.

If the requesting Party expressly so requests, service shall be effected by the requested Party in the manner provided for the service of analogous documents under its own law or in a special manner consistent with such law.


Service and appearance (Article 7 et seq) (II)

A witness or expert who has failed to answer a summons to appear, service of which has been requested, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure of restraint, unless subsequently he voluntarily enters the territory of the requesting Party and is there again duly summoned.

A person in custody whose personal appearance as a witness or for purposes of confrontation is applied for by the requesting Party shall be temporarily transferred to the territory where the hearing is intended to take place, provided that he shall be sent back within the period stipulated by the requested Party.

MUTUAL ASSISTANCE: THE COUNCIL OF EUROPE CONVENTIONService and appearance (Article 7 et seq) (III)

Transfer may be refused: (a) If the person in custody does not consent. (b) If his presence is necessary at criminal proceedings pending in the

territory of the requested party. (c) If transfer is liable to prolong his detention, or (d) If there are other overriding grounds for not transferring him to the

territory of the requesting Party. (e) A Contracting Party may refuse to grant transit to its own nationals.

A witness or expert, whatever his nationality, appearing on a summons before the judicial authorities of the requesting Party shall not be prosecuted or detained or subjected to any other restriction of his personal liberty in the territory of that Party in respect of acts or convictions anterior to his departure from the territory of the requested Party. The immunity shall cease when the witness or expert or prosecuted person, having had for a period of fifteen consecutive days from the date when his presence is no longer required by the judicial authorities an opportunity of leaving, has nevertheless remained in the territory, or having left it, has returned.


Judicial records (Article 13) A requested Party shall communicate extracts from and information relating to judicial records, requested from it by the judicial authorities of a Contracting Party and needed in a criminal matter, to the same extent that these may be made available to its own judicial authorities in like case.

Laying of information (Article 21) Information laid by one Contracting Party with a view to proceedings in the courts of another Party shall be transmitted between the Ministries of Justice concerned.

Exchange of information from judicial records (Article 22) Each Contracting Party shall inform any other Party of all criminal convictions and subsequent measures in respect of nationals of the latter Party, entered in the judicial records. Ministries of Justice shall communicate such information to one another at least once a year.


General Rules of Procedure (I)

Basic content of requests (Article 14)

(a) the authority making the request.(b) the object of and the reason for the request.(c) where possible, the identity and the nationality of the person concerned.(d) where necessary, the name and address of the person to be served.(e) letters rogatory shall, in addition, state the offence and contain a summary of the facts.

MUTUAL ASSISTANCE: THE COUNCIL OF EUROPE CONVENTION General Rules of Procedure (II)

Language (Article 16) Translation is not required, although reservations may be made

requiring translation into one of the official languages of the Council of Europe or into the language of the requested state.

Channels for sending mutual assistance requests (Article 15)

General: by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party and returned through the same channels.

In case of urgency, letters rogatory may be addressed directly by the judicial authorities of the requesting Party to the judicial authorities of the requested Party. This transfer may take place through the International Criminal Police Organisation (Interpol).

Documents

MODULE II: THE INSTRUMENTS OF JUDICIAL COOPERATION IN CRIMINAL MATTERS IN THE CONTEXT OF THE COUNCIL OF EUROPE.- TOPIC 4 THE 1959 CONVENTION ON MUTUAL