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Standard training programme in judicial cooperation in criminal matters within the European Union Ver sion: 3.0 Last up

Standard training programme in judicial cooperation in criminal matters within the European Union Ver sion: 3.0 Last updated: 20.12.2012. With the support of the European Union. The European Judicial Training Network. (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 Ver sion: 3.0 Last up

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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 With the support of the European Union The European JudicialTraining Network

  2. (logo of the training organiser) Training organised by (name of training organiser) on (date) at (place) Title (of the training/ module) With the support of the European Union The European JudicialTraining Network

  3. Module 2General framework of judicial cooperation in criminal matters within the EU Version: 3.0 Last updated: 20.12.2012

  4. Module 2: General framework of judicial cooperation in the EUContents I. Introduction: the concept of cooperation in criminal matters and classifications of the various forms of judicial cooperation II. The evolution of judicial cooperation in criminal matters within the EU 1. Conventional cooperation 2. ‘Enhanced’ judicial cooperation 3. Mutual recognition III. Illustration of this evolution

  5. I. Introduction: concept and classifications 1.The concept of cooperation in criminal matters • 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. > Module 2: General framework of judicial cooperation in criminal matters within the EU

  6. I. Introduction: concept and classifications • 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

  7. 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 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

  8. 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) • the transfer of sentenced persons > Module 2: General framework of judicial cooperation in criminal matters within the EU

  9. II. The evolution of judicial cooperation in criminal matters 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 > Module 2: General framework of judicial cooperation in criminal matters within the EU

  10. 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 March 1983 and its additional Protocol of 18 December 1997 > Module 2: General framework > Conventional cooperation

  11. 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 • 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) • 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

  12. II. The evolution of judicial cooperation in criminal matters 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 > Module 2: General framework > Enhanced cooperation

  13. II. The evolution of judicial cooperation in criminal matters 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

  14. II. The evolution of judicial cooperation in criminal matters 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 alertson 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) => extension of the principle between the Contracting Parties => key,due to ‘transnationalisation’ of the scope of ne bis in idem > Module 2: General framework > Enhanced cooperation

  15. 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 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

  16. II. The evolution of judicial cooperation in criminal matters C. Joint Action of 29 June 1998 => Promoting ‘best practice’ D. The mutual assistance convention of 29 May 2000 => Improvements: • 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

  17. 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 accounts, bank transactions etc.) => 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

  18. II. The evolution of judicial cooperation in criminal matters 3. Mutual recognition of judicial decisions in criminal matters,or the specificity of the EU • 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 > Module 2: General framework > Mutual recognition

  19. II. The evolution of judicial cooperation in criminal matters 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) > Module 2: General framework > Mutual recognition

  20. 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 law-enforcement area’ • recognition and execution of judicial decisions handed down in other Member States • Speed, flexibility, less formality • Ambitious at three levels: 1. Its symbolic or formal aspects 2. Its scope 3. How cooperation functions  > Module 2: General framework > Mutual recognition

  21. II. The evolution of judicial cooperation in criminal matters 1. Symbolic or formal aspects  => change of terminology: Requesting State/Requested State => Issuing State/Executing State Extradition => Surrender > Module 2: General framework > Mutual recognition

  22. 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 > Module 2: General framework > Mutual recognition

  23. II. The evolution of judicial cooperation in criminal matters 3. How cooperation functions 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

  24. II. The evolution of judicial cooperation in criminal matters • 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) > Module 2: General framework > Mutual recognition

  25. 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

  26. II. The evolution of judicial cooperation in criminal matters D. The philosophy and foundation of mutual recognition and respect for fundamental rights • Philosophy and foundation of mutual recognition • Respect for fundamental rights > Module 2: General framework > Mutual recognition

  27. 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 C-261/09, Mantello and Eur. Court HR decision as to inadmissibility of 4 May 2010, StapletonCase. > Module 2: General framework > Mutual recognition

  28. II. The evolution of judicial cooperation in criminal matters 2. Respect for fundamental rights 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 OthersCase, Joined Cases C-411/10 and C-493/10. RaduCase, C-396/11. > Module 2: General framework > Mutual recognition

  29. II. The evolution of judicial cooperation in criminal matters 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

  30. 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:  • substantive criminal law • but above all procedural criminal law > Module 2: General framework > Mutual recognition

  31. 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. Comments: • Transmission of the French request for freezing and letters rogatory for searches • The possibility for the Portuguese authorities to refuse the freezing request • The deadlines • The law governing the search > Module 2: General framework > Mutual recognition

  32. III. Illustrations of the evolution of judicial cooperation in criminal matters • 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 • The length of the procedure • The nature of the procedure and the transmission of the extradition request • Other grounds for refusing extradition 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 opinions. > Module 2: General framework > Mutual recognition

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