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EU cross-border gathering and use of evidence in criminal matters in the EU

Explore mutual legal assistance and mutual recognition in obtaining and using evidence in criminal cases within the EU. Seminar covers conventions, rules, and principles regarding evidence gathering and cooperation.

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EU cross-border gathering and use of evidence in criminal matters in the EU

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  1. EU cross-bordergathering and use of evidence in criminalmatters in the EU 29 September 2016 - Barcelona

  2. EU cross-bordergathering and use of evidence in criminalmatters in the EU cooperation 29 September 2016 - Barcelona

  3. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar

  4. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar Obtainingexistingevidence • House search • Freezing order (with 3rd parties) • Seizure (oftenrequiring house search) • Order to provide/allowaccess to Obtainingnewevidence • Hearing, confrontation, covert investigations, analysis, expertise Obtainingevidence in real time • Interceptiontelecommunication • Covert investigations • Monitoring bank accounts

  5. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance mutualrecognition

  6. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Wide range of traditional legalinstruments • Council of Europe Mutual Legal AssistanceConvention (1959) and itsprotocols • SchengenImplementationConvention (1990) • Napels II Convention (1997) • EU Mutual Legal AssistanceConvention (2000) and itsprotocols • SwedishFrameworkDecision (2006) • PrumConvention (2005) and EU PrumDecision (2008) • Decisions on Eurojust (2002, 2008) • … mutualrecognition

  7. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Principalrules of play • Assistance -> Requesting and requested state • Inter-state perspective – i.e. regulatingcooperationbetweenstates • Double criminality (notgeneralrule) • Locusregitactum & forum regitactum mutualrecognition

  8. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Locus RegitActum Forum-countrywith the court Locus-country where the investigation takes place mutualrecognition result request LRA

  9. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Forum RegitActum Forum-countrywith the court Locus-country where the investigation takes place mutualrecognition result Request with procedures & formalities FRA

  10. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Conventionshopping mutualrecognition

  11. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Conventionshopping mutualrecognition

  12. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance to be implemented domestically principal rules of play • between locally competent judicial authorities • Issuing and executing authorities • no more exequatur or transfer procedures • blind recognition – via order+certificate or warrant • dual criminality requirement basically abandoned mutualrecognition Freezing EEW EIO

  13. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • 2003 FD European Freezing Order • immediate execution (within 24 hours) • of freezing orders, aimed at preventing transfer, destruction, conversion, disposition or movement etc of objects, documents or data which could be produced as evidence in criminal proceedings in the issuing MS • (also of alleged proceeds from crime, equivalent goods, instrumentalities + objectumsceleris) • if accompanied by standard certificate • no exequatur procedure mutualrecognition Freezing EEW EIO

  14. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • 2003 FD European Freezing Order • no dual criminality check for offences • punishable in issuing MS with +3 years • and appearing in the standard list of 32 ‘list’ offences • freezing maintained until transmission • following a separate request to that end (awaiting the EEW) mutualrecognition Freezing EEW EIO

  15. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • 2008 FD European Evidence Warrant • logical post-freezing step (even if freezing is often not useful/needed) • execution within strict time limits of requests • for transmission of objects, documents and data • for seizure, transfer, house search • via uniform EEW • no conversion or exequatur procedure mutualrecognition Freezing EEW EIO

  16. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • 2008 FD European Evidence Warrant • no dual criminality check if • no house search is required • offence in 32-list • Germany allowed opt-out -> reintroduction dual criminality check for 6/32 offences • goal: fast/efficient mechanism for obtaining existing evidence • including accounts/transactions not for new evidence evidence gathering • not for evidence gathering in real time, such as through telecom or bank account tapping mutualrecognition Freezing EEW EIO

  17. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • 2008 FD European Evidence Warrant • evaluation • not a proper MR instrument • quite useless • only existing evidence • need to rely on traditional MLA in case anything more is needed (which usually is the case) • 5 y of negotiations | no support any longer mutualrecognition Freezing EEW EIO

  18. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • “You know, sometimes I wish the EU would sit still long enough to allow it to be evaluated” mutualrecognition Freezing EEW EIO

  19. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance mutualrecognition Freezing EEW EIO

  20. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • 2009 IRCP Evidence Study • overcomplexity of the environment • combination of MR and MLA instruments • partial coverage of investigative measures • need for benchmarking framework • feasibility of future MR based MLA • MLA flexibility through “widest possible measure of assistance” • incompatibility MR and MLA features (e.g. spontaneous information, JIT, …) • free movement of evidence • usually not covered by cooperation instruments mutualrecognition Freezing EEW EIO

  21. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • Future perspective : a comprehensive MR-based instrument • Comprehensive • 32 defined offence list as MR character • Forum regitactum-technique • Somemeasures: JIT, unregulatedmeasures, spontaniousinformation exchange • Proceduralrightspersonsinvolved (best of bothworlds, lexmitior) mutualrecognition Freezing EEW EIO

  22. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance • European Investigation order • Comprehensive -> hardly more than consolidation instrument in terms of measures regulated • 32 defined offence list as MR character • Solution for stringency / capacity • No admissibility of evidence – solution -> painful considering 2003 priority mutualrecognition Freezing EEW EIO

  23. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar mutuallegalassistance Need to rethink the entire field mutualrecognition Freezing EEW EIO

  24. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar authorities • A matter of judicial cooperation, by judicial authorities only? • Contemporary landscape blurred (5 additional authorities) • Member state discretion to appoint ‘judicial’ authorities • Often built-in authority-flexibility in CoE and EU instruments • No ‘judicial’ authority requirement for data protection offences capacity

  25. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar authorities • Distinction judicial vs police cooperation: Artificial, often counterproductive or useless • Notwithstanding the above: often upheld • Europol/Eurojust, EU-US policy, horizontalisation degree, mutual recognition/availability, ECRIS/EPRIS • Limited necessity for ‘judicial’ safeguards • For coercive or intrusive measures only • Not depending on authority, but on respecting procedural rules offences capacity

  26. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar authorities • Traditionally limited dual criminality requirement • For coercive and intrusive investigative measures only (examples) • Further outroling? • Limited ‘breakthrough’ based on 32 list • in Freezing Order and European Evidence Warrant • continued in European Investigation Order (EIO) • 32 list approach highly discussable • Lack of common definitions (EULOCS) • Not beyond 32 list • Except through EULOCS offences capacity

  27. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar authorities EULOCS – EU level offence classification system offences capacity

  28. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar EULOCS – EU level offence classification system

  29. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar authorities • Financial capacity • Cost-sharing -> 50/50 for costs above 10.000 EUR (or lower) threshold? • Costs borne by the requesting or executing Member State (video links, interception, experts) • Extension necessary for: undercover actions • Suggest less costly alternatives • Legal basis to be created • Operational capacity • New autexequiauttolerare rule? • JIT and Naples II acquis – no constitutional hurdles offences capacity

  30. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar cooperation domestic

  31. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar cooperation • Forum regitactum (FRA) • Conceptual flaws and weaknesses of FRA • No per se admissibility • Grey zone maintained re lawfulness of evidence • ‘1-on-1 only’ solution • Quick wins: per se admissibility • Lawful JIT evidence & reports drafted by foreign officials • Quantum Leap • Not by EIO, simply continuing FRA • Common minimum standards instead of FRA domestic

  32. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar cooperation • Only possible through common minimum standards also • Treaty competency EU limited to cross-border situations only • However often overstepped in recent years domestic

  33. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar • Thinking beyond borders • Physically, mentally and policy-wise • In search of coherence • Integrated judicial and police cooperation • New criminal justice finality as basis for criminal policy • Striving for balance • Restore separation of powers • Focus on criminal procedural protection • ‘Judicial’ safeguards where necessary • Giving and taking • Cross-border & EU-wide admissibility via common standards • Practitioners’ interest & input badly needed

  34. evidence cooperation gathering use conclusion 29 September 2016 | EJTN seminar • Questions and discussion

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