Slide 1/39 © copyright Standard training programme in judicial cooperation in criminal matters in the European Union Version : 3.0 Last updated: 20.12.2012

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Standard training programme in judicial cooperation in criminal matters in the European Union

Version : 3.0Last updated: 20.12.2012

The European JudicialTraining Network

With the support of the European

Union

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(logo of the training organiser)

Training organised by(name of training organiser)

on (date) at (place)

Title (of the training/ module)

The European JudicialTraining Network

With the support of the European

Union

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Module 6 The pre-trial stage and

obtaining evidence (part I): cross-cutting issues

Version: 3.0 Last updated: 20.12.2012

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Contents

> Module 6: Obtaining evidence (I):

Contents:

1. Legal framework2. Scope3. Form and content of the request4. Transmission of the request5. Nature of the execution procedure6. Grounds for refusal7. Double criminality8. Procedural law applicable to execution9. Admissibility of evidence10. Subsequent use of evidence

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Pre-trial stage limited here to obtaining evidence transmission of records and laying of information with a view to proceedings are addressed in Module 9

Module 6 (general procedure) and Module 7 (specific procedures for types of investigative measure) are inseparable

Introduction


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Contents:

Judicial cooperation and police cooperation

Judicial cooperation and mutual recognition

Navigating the multiple instruments

1. Legal framework


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1.1. Judicial cooperation and police cooperation

Police cooperation is preferred for the preliminary stage of the investigation, when avenues of inquiry are closed off

More flexible, faster, more efficient

If ‘police’ information proves significant, possibility of ‘validating’ it through mutual legal assistance

Police cooperation = applicable only to information, not to objects

1. Legal framework


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1.2. Mutual legal assistance or mutual recognition?

Mutual legal assistance = the rule / Mutual recognition = the exception

Mutual recognition situation somewhat confusing: Framework Decision of 22 July 2003 on freezing property and

evidence not widely applied

1. Legal framework


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(Mutual recognition situation somewhat confusing:) Council Framework Decision of 18 December 2008 on the European

Evidence Warrant was due to apply to some evidence from 9 January 2011

But widely criticized as too complex and not sufficiently broad Most Member States have decided not to apply it Proposal for a Directive on the European Investigation Order (EIO

Directive) under negotiation but very slow progress

1. Legal framework


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Pending the EIO Directive: mutual assistance and mutual recognition coexist, at the discretion of the requesting/issuing authority – reason and disadvantages

1. Legal framework


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1.3. Towards a comprehensive reform of obtaining evidence

The EIO Directive – if adopted! – will replace all instruments (mutual legal assistance and existing instruments of mutual recognition) with a single legal framework for obtaining evidence

The EIO Directive will cover all investigative measures and should provide for time limits for execution

The EU Council has approved a draft text which must then be negotiated with the European Parliament

The end result and when it will be finalised are very uncertain

1. Legal framework


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1.4. Navigating the multiple instruments

For the freezing of property, if the instrument of mutual recognition is chosen, a single FD

If the system is mutual assistance (i.e. most cases), need to juggle with several instruments

1. Legal framework


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1.4. Navigating the multiple instrumentsThe instruments of mutual legal assistance:1. Basic framework = 1959 Convention2. Amended and supplemented (but not replaced) by

1. First additional protocol to the 1959 Convention (1978)2. Schengen Convention (1990)3. Convention of 20004. Additional protocol to the Convention of 2000

NB: The Convention of 2000 and its 2001 Protocol are in force but have not yet been ratified by all!

1. Legal framework


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1.4. Navigating the multiple instruments

The instruments of mutual legal assistance:3. + Instruments with restricted frameworks (bilateral agreements,

Benelux cooperation, Nordic cooperation)4. Some specific rules for some investigative measures in the

various instruments

1. Legal framework


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2.1. Severity of the offence

No limitation But indirect obstacle (see below): Double criminality Impossibility of using the measure in question for the type of

offence Lack of proportionality between the measure sought and the

severity of the acts

2. Scope


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2.2. Type of proceedingsCriminal proceedings but also:1. Mutual legal assistance (Article 49 Schengen Conv. and Article

3 2000 Conv):- administrative offences subject to legal remedy before a criminal

court- compensation proceedings related to a criminal case- civil and criminal cases joined while the criminal proceedings are

pending- …

2. Mutual recognition:- FD freezing property: very restrictive- FD EEW = as for mutual legal assistance

2. Scope


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3.1. Mutual legal assistance

3.1.1. Content = Article 14 of the 1959 Conv. the authority making the request the object of and the reason for the request where possible, the identity and nationality of the person

concerned where necessary, the name and address of the person to be

served the offence a summary of the facts

3. Form and content of the request


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3.1.2. Form

Article 6 of the 2000 Convention: requests for mutual assistance ‘shall be made in writing, or by any means capable of producing a written record under conditions allowing the receiving Member State to establish authenticity’.

There are two tools for partially standardising these requests Standard cover note (see Annex A) Compendium (EJN website)



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3.1.2. Form


National situation

Indicate whether your State has standard mutual assistance requests and attach these templates to the

training module


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3.1.3. Translation

Article 16 of the 1959 Convention

See Annex 1: table of languages accepted by each State



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3.2. Mutual recognition

Stricter form and content: a ‘certificate’ (with the original decision attached) FD on

freezing (2003) or a ‘warrant’ (= the decision) FD on the EEWTranslation: see Module 7.



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4.1. Medium and means

Requests/certificates/warrants to be transmitted ‘by any means capable of producing a written record, under conditions allowing the receiving (or executing) State to establish authenticity’.

- Post or courier- Fax: accepted in most States, at least as a draft- Electronically: no sufficiently extensive practice BUT secure

EJN network

4. Medium and transmission of the request


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4.2. Transmission of the request

4.2.1. Mutual legal assistance• The rule = direct contact between judicial authorities• Exceptions: Going via a central authority ‘in specific cases’ UK and Ireland Certain other Member States, in contradiction to the Schengen Conv.

and the 2000 Conv. Urgent cases via Interpol Extracts of criminal records Transmission via Eurojust

4. Medium and transmission of the request


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4.2.2. Mutual recognition

Rule of thumb is always direct contact

But exceptions vary:• FD on freezing (2003): exception only for the UK and

Ireland• DC EEW: more flexible, possibility available to all MS

4. Transmission of the request


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4.2.3. How does direct contact work?

Identify the competent local authorityFor mutual legal assistance: Atlas on the EJN website (see

Module 3)For mutual recognition: not yet Atlas for the FD on freezing

property (see below)

Contact problems? EJN and Eurojust

4.3. Best practice

4. Transmission of the request


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Reminder (see Module 2):

Mutual legal assistance has not been fully judicialised the governmental/political authority may play a role or have a right of veto

Mutual recognition fully judicialised, in principle no decision-making role for government, unless instruments are improperly implemented

5. Nature of the execution procedure


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6.1. Mutual legal assistance (For specific grounds for refusing certain investigative measures, see Module 7 + For double criminality see below)General grounds for refusal (Article 2(2) 1959 Conv.):‘if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, law and order or other essential interests of its country’.

= very broad wording that includes:- Political grounds- Legal grounds to be qualified by subsequent limitations

6. Grounds for refusal


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(6.1. Mutual legal assistance)

Impossibility of using the measure for this type of offence or lack of proportionality:

• only explicitly referred to for telecoms interception• conversely, not applicable in principle to the remainder, but...

Fiscal offence: ground for refusal abolished (Article 8 2000 Conv.)

Political offence: abolished (Article 9 2001 Protocol) but may be partly maintained (optional declarations: DK, FR, LAT)

Banking secrecy: abolished (Art. 7 2001 Protocol)



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Reminder (see Module 2): More grounds for refusal of a political nature (judicialisation)Legal grounds for refusal limited and reference to specific legal

conceptsSee Module 6 for the FD on freezing (2003)



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• infringement of the ne bis in idem principle • immunity or privilege• incomplete or incorrect warrant or certificate

The issue of grounds for refusal is central issue in debates in negotiations on the EIO Directive. Final system impossible to predict.



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7.1.1. The basic ruleBasic rule: Article 5 1959 Convention, Article 51 CISA the double criminality requirement is only permissible if execution of the

mutual assistance request makes it necessary to carry out a search or seizure (however, see below);

application of reciprocity is no longer permissible within the EU in this area;

the EU States cannot use Article 5(b) of the 1959 Convention, i.e. the requirement for an extraditable offence, between themselves (since this condition is more restrictive than the one found in Article 51 of the Schengen Convention);

7. Double criminality

> Module 6: Obtaining evidence (I)

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7.1.1. The basic rule (2)the EU States may therefore, between themselves: waive the double criminality rule; apply double criminality without reference to a minimum

penalty; if they apply double criminality with a minimum penalty, require

that the penalty in question is up to six months.



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7.1. Mutual legal assistance 7.1.1. The basic rule (3)NB: subsequent transfer of evidence frozen on the basis of the FD on freezing (2003) partial removal of double criminality applied

7.1.2 Implicit or explicit extension to other investigative measuresIn principle, ‘DC’ limited to searches and seizures BUT:Special procedures for some investigative measures (e.g. telecoms

interception) some take the view that ‘DC’ applies by analogy to measures involving

constraint application of ‘DC’ via general grounds for refusal (public order)



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For freezing decisions (FD 2003/577JHA), the double criminality requirement is strictly limited cf. solution of the FD on the European arrest warrant.

No verification if:- Prison sentence of at least 3 years in the issuing State- + the offence, as defined by the law of the issuing State, is

included in a list of 32 categories of offences.



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8.1. The ‘locus regit actum’ principle8.2. Qualification of the principle

Procedural law applicable is that of the requested (or executing) State

2. BUT the requested State must apply the formalities and procedures required by the requesting State, provided these formalities and procedures are not contrary to the fundamental principles of law of the requested State. (Art 6(1) 2000 Conv., Art 5(2) FD freezing)

8. Law applicable to executing a request


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9.1. No EU rule on this point Reference to national law For example, if the search cannot take place during the night

in the requesting State, is evidence gathered during such a search in the requested State inadmissible in the requesting State?

9. Admissibility of evidence

National situation

Indicate here the general rules on the admissibility of evidence gathered abroad under your national law


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9.2. Overcoming difficulties

Consult the ‘Fiches Belges’ (see Module 4) Requesting authority: indicate the formalities and procedures

that must be applied Contact the requested authority Use the EJN and Eurojust to overcome obstacles in mutual

understanding



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Instruments on mutual legal assistance leave the issue of legal remedy to the discretion of national laws


Explicit but rather vague rules in the existing instruments. Stumbling block in negotiations on the EIO Directive.

10. Rights of legal remedy against the measure


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Can the evidence be used for purposes other than thoseoriginally intended? Art 23 of the 2000 Conv.:

The data can be used: for the purposes of criminal proceedings; for other judicial and administrative proceedings directly related to

proceedings referred to under point (a); for preventing an immediate and serious threat to public security; for any other purpose, only with the prior consent of the communicating

Member State, unless the Member State concerned has obtained the consent of the data subject.



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Slide 1/39 © copyright Standard training programme in judicial cooperation in criminal matters in the European Union Version : 3.0 Last updated: 20.12.2012