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

Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: 20.12.2012. The European Judicial Training Network. With the support of the European Union. (logo of the training organiser). Training organised by

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

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  1. Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: 20.12.2012 The European JudicialTraining Network With the support of the European Union

  2. (logo of the training organiser) Training organised by (name of training organiser) on (date) at (place) Title (of the training) Version: 2.0 Last updated: 31.08.2009 The European JudicialTraining Network With the support of the European Union

  3. Module 7The pre-trial stage and obtaining evidence (part II): specific procedures according to types of investigative measure Version: 3.0 Last updated: 20.12.2012

  4. Introduction Module 6 = cross-cutting issues and general procedure for obtaining evidence Module 7 = specific procedures for different investigative measures  Only rules which depart from the general procedure > Module 7: Obtaining evidence (II)

  5. Contents • Banking information • Interception of telecommunications • Criminal records • Freezing of assets • Hearing and appearance in court of witnesses • Hearing and appearance in court of an accused person • Searches • Cross-border surveillance and hot pursuit • Infiltration and covert investigations > Module 7: Obtaining evidence (II)

  6. 1. Banking information 1.1. Introduction Legal instruments: 2001 Protocol to the 2000 Conv., Articles 1-4 + Framework Decision on the European evidence warrant (from January 2011) Fiche Belge: 4.03 > Module 7: Obtaining evidence (II) > 1. Banking information

  7. 1. Banking information • 1.1. Introduction • Type of measure: • Information on bank accounts: identifying a person’s accounts in any bank • Information on banking transactions: information about an account and transactions during a limited period in the past • Monitoring banking transactions: monitoring transactions from a specific time > Module 7: Obtaining evidence (II) > 1. Banking information

  8. 1. Banking information 1.2. Scope In the 2001 Protocol: 1.2.1. Information on bank accts: limitation to serious crimes (4 years in the requesting State and 2 years in the requested State, Europol’s competence or protection of the financial interests of the Community) 1.2.2. Information on banking transactions:no limitations 1.2.3. Monitoring of banking transactions: limitations provided for by the law of the requested State In the FD on the European evidence warrant: no limitations > Module 7: Obtaining evidence (II) > 1. Banking information

  9. 1. Banking information 1.3. Double criminality 1.2.1. Information on bank accts: same procedure as for searches and seizures 1.2.2. Information on banking transactions: same procedure as for searches and seizures 1.2.3. Monitoring of banking transactions: full application of double criminality 1.4. Mandatory information Besides the information required in all mutual assistance requests, the 2001 Protocol stipulates obligations to indicate why the information is needed > Module 7: Obtaining evidence (II) > 1. Banking information

  10. 2. Information extracted from criminal records • 2.1. Introduction • Specific legal instrument: • Framework Decision 2009/315/JHA of 26 February 2009 (criminal records) • Implemented by Council Decision 2009/316/JHA of 6 April 2009 (European Criminal Records Information System) (ECRIS) • Relevant ‘Fiche Belge’: 405 > Module 7: Obtaining evidence (II) > 1. Banking information

  11. 2. Information extracted from criminal records • 2.2. Type of measure: • Transmission of information extracted from the criminal records of a Member State. The request may be made in the context of criminal proceedings, for example to get an idea, at the investigation stage, of the profile of the person concerned or, at the judgment stage, in order to apply the rules on reoffending. • National laws on criminal records vary greatly • which offences are recorded? • legal and natural persons? • only final judgments? • only criminal convictions? > Module 7: Obtaining evidence (II) > 2. Criminal records

  12. 2. Information extracted from criminal records • 2.3. Centralisation of information on convictions in the Member State of nationality • The challenge is not only how to obtain the information, but also knowing which State to obtain it from. • the State where conviction took place (= the State of conviction) notifies it to the State of the convicted person’s nationality (= State of nationality). • State of nationality (central authority) must retain the data in question to be able to transmit it to the central criminal record of another Member State requesting the information. > Module 7: Obtaining evidence (II) > 2. Criminal records

  13. 2. Information extracted from criminal records • The principle of centralising convictions is coupled with an interconnection of the criminal recordsECRIS (European Criminal Records Information System), in operation since April 2012. • no direct access to criminal records: an intervention will be required each time in the Member State of conviction • Value-added: • electronic exchange, • standardisation  obligation for Member States (of conviction and nationality) to use the equivalence tables (offence and penalty) to transmit convictions. 2.4. The ECRIS system: interconnection and standardisation > Module 7: Obtaining evidence (II) > 2. Criminal records

  14. 2. Information extracted from criminal records 2.5. Future developments Establishment of a ‘European index’ for nationals of third countries convicted in one of the Member States (to identify the State of conviction). > Module 7: Obtaining evidence (II) > 2. Criminal records

  15. 2. Information extracted from criminal records 2.6. Transmission channel Exception to the rule of direct contacts: here, everything goes via a central authority in each Member State and transmission from one State to another is done electronically via ECRIS National situationIndicate here the contact details of the central authority for your State > Module 7: Obtaining evidence (II) > 2. Criminal records

  16. 2. Information extracted from criminal records 2.7. Form of the request Transmission of the request and the response between the central authority of the requesting State and that of the requested State is, however, standardised and electronic: the information required is laid down by Framework Decision 2009/315/JHA. 2.8. Time limits: 10 days max National situationIndicate here how to ask your central authority to request consultation of the criminal records of another Member State. > Module 7: Obtaining evidence (II) > 2. Criminal records

  17. 2. Information extracted from criminal records • 2.9. Depending on the person involved • 2.6.1. EU nationals • The requesting authority requests the State of nationality and obtains information on convictions handed down: • in the requested State (= the State of nationality here) • in any other EU Member State (immediate notification under the Member State of nationality principle) • in any Member State of the Council of Europe (notification once peryear under the Member State of nationality principle) • where applicable, in another Member State, but this depends on relations between that State and the requested State. > Module 7: Obtaining evidence (II) > 2. Criminal records

  18. 2. Information extracted from criminal records • 2.6.2. National of a (non-EU) third country • Possibility of directly addressing the State of nationality, but legal framework for cooperation uncertain • If the person is resident in the EU, advisable to contact the Member States •  Work underway to create, potentially, a European index of third country nationals convicted in EU territory to determine which Member State to contact > Module 7: Obtaining evidence (II) > 2. Criminal records

  19. 2. Information extracted from criminal records Practical example (part I) X, of German nationality, is convicted in Italy of drugs trafficking. This conviction is entered into the Italian criminal records database. Pursuant to Article 22 of the 1959 Convention and Article 2 of Decision 2005/876/JHA (under the new procedure, pursuant to Article 4(2) of Framework Decision 2009/315/JHA), the Italian central authority notifies the conviction to the German central authority. The effect of this notification depends on national law and practice in Germany. [ex_mod7_V10_cas_1.1] > Module 7: Obtaining evidence (II) > 2. Criminal records

  20. 2. Information extracted from criminal records Practical example (part II) After having served his sentence for the offences committed in Italy, X leaves and goes to live in Slovenia. An investigation is opened by a Slovenian prosecutor against X for other drugs trafficking offences committed in Slovenia. As part of that investigation the Slovenian prosecutor wishes to assess the danger posed by the person concerned; he contacts his central authority and asks to consult the German criminal records database (Member State of nationality). [ex_mod7_V10_cas_1.2] > Module 7: Obtaining evidence (II) > 2. Criminal records

  21. 2. Information extracted from criminal records Practical example (part III) The Slovenian central authority transmits the request to the German central authority and receives a response within 10 days.The Slovenian central authority is assured of receiving, via the German central authority, the information relating to the conviction handed down in Italy. At the trial stage  this information will have to be taken into account by the Slovenian judge in order to correctly apply the rules on repeat offences (see Module 8) [ex_mod7_V10_cas_1.3] > Module 7: Obtaining evidence (II) > 2. Criminal records

  22. 3. Freezing property • 3.1. Introduction • Specific legal instrument: • Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence • Applicable since 2 August 2005 BUT: • Not all Member States have yet taken steps to implement it (as at 31 Dec 2012, Greece, Italy, Luxembourg and Portugal had not) • Rarely used in practice • Does not replace mutual legal assistance (at the discretion of the requesting or issuing authority) >Module 7: Obtaining evidence (II) > 3. Freezing property

  23. 3. Freezing property 3.1. Introduction Relevant ‘Fiche Belge’: 4.01, 4.02. National situationList here references from your national legislation implementing the FD >Module 7: Obtaining evidence (II) > 3. Freezing property

  24. 3. Freezing property • 3.2. Purpose of the measure • FD on the freezing of property covers: • obtaining evidence (pre-trial) • seizure for the purposes of confiscation (during trial) • Only obtaining evidence is discussed here (see Module 10 for confiscation) = preventive seizure, provisional measure in urgent cases >Module 7: Obtaining evidence (II) > 3. Freezing property

  25. 3. Freezing property • 3.3. Double criminality • Rules the same as for the European arrest warrant: • In principle, DC is maintained • But in reality largely abolished, provided the following 2 conditions are met: • offence punishable by a custodial sentence of at least 3 years • included in a list of 32 categories of offences. • NB: if verification of DC does not take place, this ‘contaminates’ the mutual legal assistance that will be used then to transfer this property to the issuing State  no longer verification of DC > Module 7: Obtaining evidence (II) > 3. Freezing property

  26. 3. Freezing property • 3.4. Form • Original decision + certificate (annexed to the FD) • Only the certificate must be translated • 3.4. Transmission of the order and the certificate • In principle, direct contacts between local judicial authorities,except for the United Kingdom and Ireland (central authorities) •  In reality, some other States require going via a central authority > Module 7: Obtaining evidence (II) > 3. Freezing property

  27. 3. Freezing property • 3.4. Transmission of the order and the certificate • How do you identify the authority competent (locally) to receive the certificate and order? • Atlas does not yet cover this point (see Module 4). • See Annex C: Table of implementation of the FD, indicating the authorities competent to receive the order and the certificate • National situation Indicate here the type of judicial authority competent in your State: • to issue an order freezing property • to receive and execute a certificate and an order > Module 7: Obtaining evidence (II) > 3. Freezing property

  28. 3. Freezing property • 3.5. Execution of the order •  Within 24 hrs ‘if possible’  should be at least the standard time limit under implementing national legislation • 3.6. Grounds for refusal • Exhaustive list of grounds for refusal: • Certificate that is missing, incomplete or clearly does not correspond to the order • Privilege or immunity under the law of the executing State • Ne bis in idem clearly infringed • Double criminality if applicable + no exception for fiscal offence > Module 7: Obtaining evidence (II) > 3. Freezing property

  29. 3. Freezing property • 3.8. Grounds for postponing execution • cf. Art. 9 of the FD 3.9. Legal remedies in the executing State Cannot be suspensive (emergency measure) > Module 7: Obtaining evidence (II) > 3. Freezing property

  30. 3. Freezing property • 3.10. Transfer of frozen property • The certificate must therefore, in principle, be accompanied by a request for transfer: • Request subject to the mutual legal assistance procedure • However, the transfer request cannot be subject to verification of double criminality if this was also prohibited for consideration of the freezing order • 2. It is also possible to not attach a request for mutual assistance aimed at transferring the property. • In this case, it is necessary to indicate in the certificate when this mutual assistance request may be submitted. In such cases, the issuing authority loses the benefit of waiving double criminality for consideration of the transfer request. > Module 7: Obtaining evidence (II) > 3. Freezing property

  31. 3. Freezing property • 3.11. Practical support: asset recovery authorities • Decision 2007/845/JHA: Each Member State must have set up or designated a‘national Asset Recovery Office, for the purposes of the facilitation of the tracing and identification of proceeds of crime and other crime related property which may become the object of a freezing, seizure or confiscation order made by a competent judicial authority in the course of criminal or, as far as possible under the national law of the Member State concerned, civil proceedings’ • Brought together within an informal network, CARIN (Camden Asset Recovery Inter-Agency Network), whose secretariat is based at Europol. > Module 7: Obtaining evidence (II) > 3. Freezing property

  32. 3. Freezing property • 3.11. Practical support: asset recovery authorities • Cooperate through police cooperation. Their work is very useful in the judicial phase in identifying property to be frozen, gaining a better understanding of the national system of the Member State with which cooperation is required and addressing a number of practical issues, such as procedure for the frozen property. National situationIndicate here the asset recovery office for your State and its contact details > Module 7: Obtaining evidence (II) > 3. Freezing property

  33. 4. Hearing of witnesses • 4.1. Introduction • Legal instruments: • Articles 3(2) and 8-12 of the 1959 Convention • Articles 10 and 11 of the 2000 Convention • Fiches Belges:6.01, 6.13. • 4.2. Purpose of the measure • There are various procedures, depending on the case: • Hearing/appearance of the witness (whether or not in custody) or expert in the territory of the requesting State • Hearing/appearance of the witness or expert in the territory of the requested State, including hearing via videoconference and telephone conference • Procedure applicable in the Member State of transit in the event of transfer > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  34. 4. Hearing of witnesses • 4.3. Hearing/appearance of the witness or expert in the territory of the requesting State • 4.3.1. General rule of immunity (specialty) • 4.3.2. If the witness is at liberty: • No specific rule, other than costs • 4.3.3. If the witness is in custody • Transfer for the purposes of investigation (Article of the 1959 Conv.) • Broad grounds for refusal • Consent may be required > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  35. 4. Hearing of witnesses 4.4. Hearing/appearance in court in the territory of the requested State of a witness or expert (who is already present in the territory of that State) 4.4.1. General rule: No penalty against the person refusing to appear 4.4.2. Hearing without specific technical means No specific rule. The authorities must agree on the arrangements for the hearing, including the participation of agents and judicial officers > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  36. 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3. Hearing by video or telephone conference Articles 10 and 11 of the 2000 Conv. 4.4.3.1. Common rules Only if the use of such technical means is not contrary to the fundamental laws of the requested State > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  37. 4. Hearing of witnesses • 4.4. Hearing/appearance of the witness or expert in the territory of the requested State • (4.4.3.1. Common rules) • A judicial authority of the requested Member State shall be present during the hearing, where necessary assisted by an interpreter • Measures for the protection of the person to be heard shall be agreed, where necessary, between the competent authorities of the requesting and the requested Member States • The hearing shall be conducted directly by, or under the direction of, the judicial authority of the requesting Member State • Assistance of an interpreter > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  38. 4. Hearing of witnesses • 4.4. Hearing/appearance of the witness or expert in the territory of the requested State • (4.4.3.1. Common rules) • The person to be heard may claim the right not to testify which would accrue to him or her under the law of either the requested or the requesting Member State • the requesting Member State applies its national law on refusal to testify and on false statements • all costs (equipment, interpreter, remuneration of expert) shall be refunded by the requesting State unless the requested State waives the refunding of some or all of these expenses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  39. 4. Hearing of witnesses • 4.4. Hearing/appearance of the witness or expert in the territory of the requested State • 4.4.3.2. Hearing by videoconference • The consent of the person concerned is not a prerequisite • The request for mutual assistance must indicate why appearance in person is not suitable or not possible • Areport must be drawn up > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  40. 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3.2. Hearing by videoconference • National situation Indicate here whether hearing by videoconference is: • expressly provided for in your national law • not expressly provided for but possible • would be contrary to the fundamental principles of your law • Also indicate, if applicable, how to find out more about using the technical means available. > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  41. 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3.3. Hearing by telephone conference The consent of the person is necessary and must be included in the request for mutual assistance. • National situation Indicate here whether hearing by telephone conference is: • expressly provided for in your national law • not expressly provided for but possible • would be contrary to the fundamental principles of your law • Also indicate, if applicable, how to find out more about using the technical means available. > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  42. 4. Hearing of witnesses • 4.4. Procedure in the Member State of transit • Procedure laid down by Article 11 of the 1959 Convention but unclear: • Form of the request: a mutual legal assistance request may be necessary (uncertain) • General grounds for refusal apply • Article 11 explicitly refers to the channel of the ministries of justice: the rule of direct contact between judicial authorities should also prevail here. • any State may refuse to grant transit of its own nationals (anachronistic in light of the EAW) • If it has agreed to the transit, the Member State of transit must keep the person in custody during travel >Module 7: Obtaining evidence (II) > 4. Hearing of witnesses

  43. 5. Hearing of the accused • 5.1. Introduction • Specific instruments: • - Articles 9, 10 and 11 of the 2000 Convention • Relevant ‘Fiche Belge’: 6.10, 6.11 and 6.12 • Purpose of the measure: • Hearing in the territory of the requested State of a person being prosecuted by the requesting State • Appearance in court in the territory of the requested State of the accused already in custody in the requesting State >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  44. 5. Hearing of the accused • 5.2. Hearing in the territory of the requested State of a person being prosecuted by the requesting State • Not always a European arrest warrant: • Execution of the EAW is refused • EAW not issued because it is not prudent or not possible >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  45. 5. Hearing of the accused • 5.2. Hearing in the territory of the requested State of a person being prosecuted by the requesting State • 5.2.1. Hearing without specific technical means • No rule provided for. • 5.2.2. Hearing by videoconference • Possibility of using the procedure provided for witnesses but • the requested State is always free to refuse • the consent of the person concerned is required. • reference to national laws and the European Convention on Human Rights • 5.2.3. Hearing by telephone conference • Nothing provided for, obstacles as regards rights of the defendant >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  46. 5. Hearing of the accused 5.3. Appearance in the territory of the requesting State by the person in custody in the territory of the requested State Article 11 of the 1959 Convention on mutual legal assistance provides for the temporary transfer of a person in custody in the territory of the requested State to the requesting State in order to be heard as part of proceedings against them. Article 18 of FD 2002/584/JHA of 13 June 2002 on the EAW also authorises this, but does not stipulate conditions. >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  47. 5. Hearing of the accused • 5.3. Appearance in the territory of the requesting State by the person in custody in the territory of the requested State • Grounds for refusal (including the consent of the person) • Costs borne by the requesting State • General rule of immunity for acts not referred to the transfer request >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  48. 5. Hearing of the accused 5.4. Appearance in court in the territory of the requested State of the accused already in custody in the requesting State Article 9 of the 2000 Convention: requesting State A wishes an accused person, in custody in its own territory, to be transferred to the territory of requested Member State B as part of an investigative measure requested by State A but which must take place in State B. Example: a Hungarian judicial officer wishes, as part of his investigation, to reconstruct certain events that took place in Germany. The Hungarian judicial officer wishes the accused, who is in custody in Hungary, to be present at this reconstruction. >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  49. 5. Hearing of the accused • 5.4. Appearance in court in the territory of the requested State of the accused already in custody in the requesting State • An agreement containing the transfer arrangements is necessary • The period in custody in the territory of the requested Member State is deducted • The requested State has an obligation to keep the person in custody • Travelling and custody expenses are borne by the requesting State • General rule of immunity (reference to Art. 12 of the 1959 Convention)  >Module 7: Obtaining evidence (II) > 5. Hearing of the accused

  50. 5. Hearing of the accused 5.4. Appearance in court in the territory of the requested State of the accused already in custody in the requesting State National situation Each Member State may declare that consent will be required, or will be required under certain conditions indicated in the declaration. Indicate here whether your State has made such a declaration. > Module 7: Obtaining evidence (II) > 5. Hearing of the accused

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