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

EU cross-border gathering and use of evidence in criminal matters in the EU. 29 September 2016 - Barcelona. EU cross-border gathering and use of evidence in criminal matters in the EU. cooperation. 29 September 2016 - Barcelona. evidence. cooperation. gathering. use.

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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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