General framework of judicial cooperation in criminal matters within

Report
Standard training programme in judicial
cooperation in criminal matters
within the European Union
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Version: 3.0
Last updated: 20.12.2012
The European Judicial
Training 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)
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Title (of the training/ module)
The European Judicial
Training Network
With the support
of the European
Union
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Module 2
General framework of judicial
cooperation in criminal matters
within the EU
Version: 3.0
Last updated: 20.12.2012
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Module 2: General framework of judicial cooperation in the EU
Contents
I.
II.
Introduction: the concept of cooperation in criminal matters
and classifications of the various forms of judicial
cooperation
The evolution of judicial cooperation in criminal matters
within the EU
1. Conventional cooperation
2. ‘Enhanced’ judicial cooperation
3. Mutual recognition
Illustration of this evolution
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III.
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I. Introduction: concept and classifications
1.

Principle: criminal law is core to national sovereignty => Principle of
territoriality => but if there is strict application of this territorialism,
situations with a foreign element cannot be adequately managed!
Development of cooperation:
 to prevent the existence of borders and the principle of territorality
from disrupting the smooth running of the criminal justice system.
 Important development because the number of situations with
foreign elements has increased.
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
The concept of cooperation in criminal matters
> Module 2: General framework of judicial cooperation in criminal matters within the EU
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

Definition:
 Judicial cooperation in criminal matters
 Conventionally, can be defined as ‘a series of actions
performed by a competent judicial authority (requested
authority) within a State (requested State) on behalf of a
requesting judicial authority within another State
(requesting State)’.
Level of cooperation:
 differs according to the framework in which it occurs:
different degrees of legal integration => cooperation will
be more or less conventional
> Module 2: General framework of judicial cooperation in criminal matters within the EU
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I. Introduction: concept and classifications
I. Introduction: concept and classifications
2.

Types of traditional mechanisms of judicial cooperation
in criminal matters
Mechanisms relating to the pre-trial stage :
 Minor MLA
 Transfer of proceedings

Mechanisms relating to the pre-trial and trial stages:
 Extradition: 'the surrender of an individual by one State to another
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requesting State in order to try them for a criminal offence or
enforce a sentence'.
> Module 2: General framework of judicial cooperation in criminal matters within the EU
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I. Introduction: concept and classifications

Mechanisms relating to the trial and post-trial stages
 Enforcement of foreign judgments
 Recognition of the res judicata authority of foreign
judgments:
• either positive: taken into account
• or negative (ne bis in idem)
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 the transfer of sentenced persons
> Module 2: General framework of judicial cooperation in criminal matters within the EU
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II. The evolution of judicial cooperation
in criminal matters
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3 phases:
1. The starting point, or conventional judicial cooperation
2. Enhanced judicial cooperation
3. Mutual recognition of judicial decisions in criminal matters, or
the specificity of the EU
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II. The evolution of judicial cooperation
in criminal matters
1. Conventional judicial cooperation
1.1 The main sources => Conventions of the Council of Europe

Minor MLA:
 European Convention on Mutual Assistance in Criminal Matters of
20 April 1959, its first Protocol of 17 March 1978, and its second
Protocol of 8 November 2001 (relates more to enhanced
cooperation)

Extradition
 European Convention on Extradition of 13 December 1957 and its
two additional Protocols of 15 October 1975 and of 17 March 1978

Transfer
 European Convention on the Transfer of Sentenced Persons of 21
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March 1983 and its additional Protocol of 18 December 1997
> Module 2: General framework > Conventional cooperation
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II. The evolution of judicial cooperation
in criminal matters
1.2 Characteristics


Highly traditional cooperation mechanisms => principle of territorial
sovereignty
Functions slowly and cumbersomely:
 The channel used to transmit cooperation requests.
 The scope of the acts giving rise to cooperation
 Other grounds for refusing cooperation
 The lack of deadline within which the cooperation must take place
 Reservations and declarations
> Module 2: General framework > Conventional cooperation
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• Restrictions related to the severity of the acts
• Restrictions related to the requirement of double
criminality
• Restrictions related to their specific nature (e.g.
political, fiscal, military offences)
II. The evolution of judicial cooperation
in criminal matters
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2. Enhanced judicial cooperation
2.1 Instruments:
 1990 Convention Implementing the Schengen Agreement
 The extradition conventions concluded within the EU in 1995
and 1996
 Joint Action of 29 June 1998 on good practice in mutual legal
assistance in criminal matters
 Convention of 29 May 2000 on Mutual Assistance in Criminal
Matters between the Member States of the European Union
and its Protocol of 2001
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2.2 Improvements:
Faster and more flexible cooperation
mechanisms:
 more direct channels for transmitting requests
 broadening of the types of offence giving rise to
cooperation
 reduced grounds for refusal
 reduced opportunities to make reservations
=> But instruments still traditional => no alternative to existing
instruments
> Module 2: General framework > Enhanced cooperation
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II. The evolution of judicial cooperation
in criminal matters
II. The evolution of judicial cooperation
in criminal matters
extension of the principle between the Contracting Parties => key, due
to ‘transnationalisation’ of the scope of ne bis in idem
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A. Schengen Agreement
 On minor legal assistance (Article 53 CISA)
 possibility of direct contact without prejudice to the right to
go through the Ministries of Justice
 On extradition (Articles 59 et seq. CISA)
 the impact of the SIS and alerts on the basis of Article 95
= same effect as a request for provisional arrest under the
1957 Convention
 On transfers (Articles 67 et seq. CISA)
 On the ‘ne bis in idem’ principle (Article 54 of the CISA) =>
II. The evolution of judicial cooperation
in criminal matters
B. The EU extradition conventions
 Convention of 1995
 Aim: to simplify the extradition procedure by concentrating on
cases where the subject consents to their extradition.

Convention of 1996 => reform of the procedures
 Relaxes restrictions on the offences that can give rise to
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extradition, as regards their severity, the requirement of double
criminality, their nature (e.g. fiscal and political offences)
 Reduced grounds for refusal: e.g. conventional option to refuse
extradition of their nationals
=> Improvements but traditional aspects remain, such as:
 Restrictions on the removal of double criminality
 Restrictions on the removal of the exception for nationality
> Module 2: General framework > Enhanced cooperation
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II. The evolution of judicial cooperation
in criminal matters
C. Joint Action of 29 June 1998




Direct contact standardised but possibility of sending requests through central
authorities only in specific cases (Article 6)
Transition from locus regit actum to forum regit actum (Article 4)
Execution of the request for mutual assistance as soon as possible, taking as full
account as possible of the deadlines indicated by the requesting Member State
(Article 4)
Adaptation of MLA to new technologies (hearings by videoconference,
teleconference, telecommunications interception, etc.).
> Module 2: General framework > Enhanced cooperation
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=> Promoting ‘best practice’
D. The mutual assistance convention of 29 May 2000
=> Improvements:
II. The evolution of judicial cooperation
in criminal matters
D. Protocol of 2001 to the 2000 Convention
=> Sector covered: banking (requests for information on bank
=> Improvements: grounds for refusal

No removal of grounds founded on ‘sovereignty, security and law and
order, or the essential interests of the requested State’ but obligation to
notify the Council if the requested State uses this option

Relaxation of other grounds for refusal based on:
 banking secrecy
 the fiscal nature of the offences
 the political nature of the offences
> Module 2: General framework > Enhanced cooperation
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accounts, bank transactions etc.)
II. The evolution of judicial cooperation
in criminal matters
3. Mutual recognition of judicial decisions in criminal matters, or the
specificity of the EU
A.
B.
C.
D.
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E.
Context
The principle of mutual recognition is ambitious
Mutual recognition used in conjunction with other instruments of cooperation
The philosophy and foundation of mutual recognition and respect for
fundamental rights
Measures accompanying mutual confidence and recognition
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A. Context
 Mutual recognition already existed within the European Union but in
other sectors:
 Community law
 Judicial cooperation in civil and commercial matters
 Extension to criminal matters
 Cardiff European Council of June 1998
 Tampere European Council of October 1999, ‘the cornerstone of
judicial cooperation in criminal matters’
 Programme of measures to implement the principle of mutual
recognition of decisions in criminal matters (Nov 2000)
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II. The evolution of judicial cooperation
in criminal matters
II. The evolution of judicial cooperation
in criminal matters
B. The principle of mutual recognition is ambitious
=> An ambitious principle
 Aim: to realize the concept of ‘European criminal lawenforcement area’
recognition and execution of judicial decisions handed down in
other Member States
 Speed, flexibility, less formality


Ambitious at three levels:
> Module 2: General framework > Mutual recognition
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1. Its symbolic or formal aspects
2. Its scope
3. How cooperation functions
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II. The evolution of judicial cooperation
in criminal matters
1. Symbolic or formal aspects
=> change of terminology:
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Requesting State/Requested State => Issuing
State/Executing State
Extradition => Surrender
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II. The evolution of judicial cooperation
in criminal matters
2. Its scope:


All stages of criminal proceedings are affected.
10 legislative instruments adopted:
FD of 13 June 2002 on the EAW and surrender procedures between Member States
FD of 22 July 2003 on the execution of orders freezing property or evidence
FD 24 February 2005 on financial penalties
FD of 6 October 2006 relating to confiscation orders
FD of 24 July 2008 on the taking account of convictions in the Member States of the EU in the course of new
criminal proceedings

FD of 27 November 2008 on judgments and probation decisions with a view to the supervision of probation
measures and alternative sanctions

FD of 27 November 2008 on judgments in criminal matters imposing custodial sentences or measures
involving deprivation of liberty for the purpose of their enforcement in the EU

FD of 18 December 2008 on the European Evidence Warrant (‘EEW’)

FD of 23 October 2009 on the application, between Member States of the EU, of the principle of mutual
recognition to decisions on supervision measures as an alternative to provisional detention (‘European
Supervision Order’ or ‘ESO’)

Directive of 13 December 2011 on the European Protection Order (‘EPO’)
(+ FD of 26 February 2009 on proceedings in absentia)






And more to come (‘EIO’ Directive)
And the case-law of the CJEU
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
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II. The evolution of judicial cooperation
in criminal matters
3. How cooperation functions


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
No ‘automatic’ cooperation – maintenance of certain grounds and
procedures - but procedures greatly simplified and accelerated
5 elements:
A more central role for judicial authorities
 channels for transmitting requests made more fluid: standard
procedure = direct exchange between judicial authorities (with
exceptions).
 cooperation becoming an entirely judicial process (novel for some
mechanisms, particularly extradition)
Fewer formalities => warrant or certificate technique
> Module 2: General framework > Mutual recognition
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


Broadening the types of offence that can give rise to cooperation:
 as to the severity of the acts
 as to the requirement of double criminality (with differences depending
on the text)
 as to the nature of the acts
Reduction of other conventional grounds for refusing cooperation
 e.g. the EAW, which removes grounds for refusal based on nationality
 e.g. the FD on the freezing of property and evidence, which removes
the conventional grounds for refusing assistance on the basis of the
essential interests of the requested State
Setting deadlines:
 Binding deadlines in some cases (e.g. EAW and EEW)
 Indicative deadlines (e.g. FD on the freezing of property and evidence)
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II. The evolution of judicial cooperation
in criminal matters
II. The evolution of judicial cooperation
in criminal matters
C. Mutual recognition used in conjunction with other instruments of
cooperation

Rationalisation of instruments: in theory, replacement of existing
instruments (e.g. FDs on the EAW, on the taking account of
convictions, penalties and custodial measures and alternative
sanctions)

Qualifications
 Existing texts are still applicable (between third countries + between MS
and third countries)
Mutual recognition is gradual: it will only totally replace existing
mechanisms once fully implemented. Meanwhile, mutual
recognition and the existing mechanisms coexist
 Relationship with existing individual variable instruments
> Module 2: General framework > Mutual recognition
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
II. The evolution of judicial cooperation
in criminal matters
D. The philosophy and foundation of mutual recognition and
respect for fundamental rights
1.
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2.
Philosophy and foundation of mutual recognition
Respect for fundamental rights
> Module 2: General framework > Mutual recognition
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II. The evolution of judicial cooperation
in criminal matters


Philosophy and foundation of mutual recognition
Aims to enhance, facilitate, simplify and accelerate judicial
cooperation
Founded on a (high) degree of mutual confidence. Importance of
mutual confidence confirmed by the CJEU (cf., inter alia, Joined
Cases Gözütok and Brügge, judgment of 11 February 2003, §
33)
 Double verification in the issuing State and in the executing
State must be avoided
 Majority of verifications in the issuing State rather than the
executing State.
Cf. Court of Justice judgment of 16 November 2010, Case C261/09, Mantello and Eur. Court HR decision as to inadmissibility
of 4 May 2010, Stapleton Case.
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1.
II. The evolution of judicial cooperation
in criminal matters
Sensitive relationship between mutual recognition and fundamental
rights
Mutual recognition does not have the effect of modifying the obligation
to respect fundamental rights as enshrined in Article 6 of the TEU
and the EU Charter of Fundamental Rights
Examination of:
 Texts of the instruments of MR
 Transposing laws
 Application
 Case-law of the CJEU: Court of Justice, 21 December 2011,
N.S. and Others Case, Joined Cases C-411/10 and C-493/10.
Radu Case, C-396/11.
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2. Respect for fundamental rights
II. The evolution of judicial cooperation
in criminal matters
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E. Measures accompanying mutual confidence and
recognition
=> Creation of an environment conducive to mutual confidence =>
adoption of accompanying measures:

Preventing conflicts of jurisdiction and determining competency criteria

Exchange of information relating to decisions handed down in other
Member States
> Module 2: General framework > Mutual recognition
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II. The evolution of judicial cooperation
in criminal matters
 Evaluation of the implementation of European criminal
law instruments by the Member States and evaluation of
national legal systems
 Judicial training: the European Judicial Training Network
and other projects
 Approximation of laws:
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 substantive criminal law
 but above all procedural criminal law
> Module 2: General framework > Mutual recognition
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III. Illustrations of the evolution of judicial
cooperation in criminal matters

Case study 1: mutual legal assistance in criminal matters
Enquiries conducted in France into a transnational drugs trafficking
case that also concerned Portugal and Italy: X, leader of the criminal
organisation, has a bank account in Portugal and has contacts with Y
and Z in Italy => French Judge of Toulouse wants to freeze the assets
in this account in Portugal and conduct a search at the home of Y and
Z Italy. 5 months after the request, the Portuguese authorities refuse to
freeze the assets, declaring that it would be contrary to their essential
national interests. The Italian authorities carried out a search at
10.30pm.
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Comments:
1. Transmission of the French request for freezing and letters rogatory for searches
2. The possibility for the Portuguese authorities to refuse the freezing request
3. The deadlines
4. The law governing the search
> Module 2: General framework > Mutual recognition
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Case study 2: the Ramda case
Rachid Ramda case: In 1995, a bomb exploded in the Paris metro killing eight people
and injuring more than 200. R. Ramda was charged. He was arrested by British
police a few months later on the basis of an international arrest warrant. An
extradition request was sent by the French authorities to the British authorities, but
was rejected on the basis of the risk of violations of the accused’s human rights upon
his surrender to France. In 2005, the British minister finally ordered his extradition to
France and, following appeal, Ramda was finally extradited.
Comments
1. The length of the procedure
2. The nature of the procedure and the transmission of the extradition request
3. Other grounds for refusing extradition
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
The contents and opinions expressed herein are solely that of the EJTN, and the European
Commission cannot be held responsible for any use that may be made of these contents and
III. Illustrations of the evolution of judicial
cooperation in criminal matters
> Module 2: General framework > Mutual recognition
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