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European Cooperation in Criminal Matters

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by

Els De Busser

on 28 September 2017

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Transcript of European Cooperation in Criminal Matters

assistance
judicial (police) authorities
in another state
criminal investigation or prosecution
or execution of a criminal sentence
conventions and agreements
human rights
MLA Conventions & Agreements
Regional Instruments
1959 MLA Convention
2000 Transnational Organised Crime Convention
Bilateral agreements
1997 Belgium - Morocco
2001 France - US
2008 UK - Libya
1962 Benelux Treaty
1962 Nordic Cooperation Agreement
1990 Schengen Agreement
1990 Schengen Implementation Convention
2000 MLA Convention
2001 Protocol to MLA Convention
50 ratifications
mother convention
scope
all criminal offences within jurisdiction of requesting state
1978 1st Protocol
to MLA Convention
43 ratifications
following problems
with MLA Convention
ground for refusal
fiscal offences removed
2001 2nd Protocol
to MLA Convention
36 ratifications
following problems with
MLA Convention and 1st Protocol
scope
extended to:
"administrative" proceedings
legal persons
+ 5 new MLA measures copied from EU MLA Convention
Title III, Chapter 2 = MLA
supplements CoE MLA
Convention
grounds for refusal
political or fiscal offence
prejudice sovereignty, security, ordre public or other essential interests
ne bis in idem
double criminality: see declarations
procedure
contact = Ministry of Justice

applicable law
requested state
scope
extended
scope
"administrative" proceedings
tax offences
applicable law
requested state
procedure
direct contact!

supplements CoE + SIC
repeals SIC provisions
Not in force for Croatia, Greece, Italy, Ireland
scope
"administrative" proceedings
legal persons
NEW MLA measures
applicable law
shift to requesting state!
unless contrary to fundamental principles of law
admissibility of evidence
procedure
direct contact
supplements 2000 MLA Convention
Not in force for Croatia, Estonia,
Greece, Italy, Ireland
scope
extended to info on bank accounts
& transactions
Art. 18 on MLA
ratified by 188 states
+ 3 protocols
procedure
central authority, diplomats or Interpol
applicable law
requested state
grounds for refusal
request not in conformity with TOC
prejudice sovereignty, security, ordre public or other essential interests
prohibition in requested state to carry out action
granting request contrary to requested state's MLA laws
hearing by video or telephone conference
controlled deliveries
Joint Investigation Teams (JITs)
when presence is not possible or desirable
restricted refusal
conducted by requesting state
presence of requested state
= cross border surveillance with postponed interference
possibly including +2 states
origin = drug trafficking
EU Framework Decision -> 9/11 effect
JIT =
cooperation between police and judicial authorities
states linked to int. criminal investigation
for limited time and specific purpose (agreement)
changing team leadership
facilitates MLA
human rights
and many more ...
What is cooperation in criminal matters?
Mutual
Recognition
Instruments


Financial
Penalties
such as:
hearing witnesses in another country
exchanging information with another country
cross-border hot pursuit
extradition/surrender
transfer of proceedings
transfer of sentences
mutual legal assistance
mutual recognition
traditional
relatively new
request
order/warrant
yes/no/certain conditions
+ reciprocity
"blind" recognition
requesting-requested state
issuing-executing state
sometimes dual criminality
no dual criminality
for list of 32 offences
How to cooperate in criminal matters?
mutual
trust
human
rights
MLA
letters rogatory
via diplomatic
channels
MLA request
for hearing witness
central authority
hearing transcript
central authority
Traditional
MLA
order for hearing witness
hearing transcript
Mutual Recognition
For cross-border
investigative measures,
which law applies?

forum regit actum
=
law of requesting/issuing state
locus regit actum
=
law of requested/executing state
order for house search
results/report of house search
order for house search
+ formulaties!
results/report of house search
traditional
CoE and UN
since 2000
EU
MLA + MR
+ exceptions!
Freezing & Confiscation Orders
2014 Directive
2013 Radu
2013 Melloni
2016 Aranyosi-Caldararu
focus on FD on EAW
no
EU Charter test
no

MS constitution
test
2 step test
(#Soering):
systemic violations
real risk
CJEU:
2002
EAW
= immobilizing evidence awaiting seizure for ...
FIU -> AROs (-> freezing) -> confiscating
Persons
other
evidence

EIO
EIO
Why?
Where?
When?
What?
How?
EIO = MS
initiative
Denmark & Ireland
so Evidence Warrant not repealed
European
Evidence
Warrant
EU MS
but
:
22 May 2017
all evidence
except:
Joint Investigation Teams
ISSUING
judicial authority
form
necessity & proportionality
similar in domestic case
suspect
TRANSMITTING
EXECUTING
REFUSING
direct transmission
possible over EJN telecom system
decision by
receiving
authority
applicable law = issuing state => admissibility of evidence
other investigative measure
consultation
documents
witness
freezing
confiscation
interception of
telecommunications
cross-border + serious crime
+complex investigation = JIT
EU
CoE
UN
EIO
EU MLA Convention/
FD on JITs
1959 MLA
Convention

2000 TOC
2001 2nd Protocol
to MLA Convention
2001 2nd Protocol
to MLA Convention
exc: Denm & Irel
(EEW or MLA)
admissibility of evidence
contract law & sovereignty
surrender
between MS
32 offences = no double criminality check
mutual recognition
min. grounds for refusal
human rights assumption!
FIUs and AROs
> EU
freezing
confiscating
evidence
in criminal trial
(instrumentalities
of crime)
OR
removing proceeds
of crime
Movable
Objects

MLA
MR
2000 UN Transnational Organised Crime Convention
1959 CoE MLA Convention + protocols
2000 EU MLA Convention + protocol
1990 Schengen Implementation Agreement
EAW
Financial Penalties
Confiscation and Freezing Order
Prison sentences
Supervision Order
Protection Order
European Evidence Warrant
European Investigation Order
recap
old - traditional
request-based
many grounds for refusal
sometimes dual criminality
wide possibilities for assistance
new (since 2000) - FDs and Directives
order/warrant (no conversion into national decision)
limited grounds for refusal
no dual criminality check for 32 offences
limited possibilities for assistance
arrest
EU MS
3rd state
EAW
CoE
Extradition
Convention
UN
TOC
Bilateral
Extradition
Treaty
(location of suspect is known)
MLA shopping
Commission initiative
limited to existing evidence
no support from MS
wider scope
including also new evidence
lesson learned from EAW
Aranyosi-Caldararu case
stepping away from mutual trust?
contrary to national security
contrary to fundamental rights
ne bis in idem
double criminality (list of 32 offences!)
...
How to decide on applicable legal instrument?
which country?
which measure?
which crime?
example overview
/ FD on JITs
Full transcript