Basic principles of mutual Basic principles of mutual legal assistancelegal assistance and and

extradition agreements extradition agreements with third countrieswith third countries

PurposePurpose

MLA and extradition (and other forms MLA and extradition (and other forms of international judicial cooperation) of international judicial cooperation) with 3rd countries is part of the with 3rd countries is part of the external policy of the Union external policy of the Union

Purpose of policy : Purpose of policy : promote judicial promote judicial cooperation in criminal matters with cooperation in criminal matters with third countries in the framework of third countries in the framework of the EU external policythe EU external policy

EU values: rule of law, human rights, EU values: rule of law, human rights, protection of individualsprotection of individuals

Legal basis for the EU – Legal basis for the EU – third countries MLA and third countries MLA and extradition agreementsextradition agreements

Until 30 November 2009Until 30 November 2009 Article 24 and 38 of the Treaty on the Article 24 and 38 of the Treaty on the

European Union – all existing agreements European Union – all existing agreements were negotiated and signed under this were negotiated and signed under this legal basislegal basis

Negotiations led by the Presidency, Negotiations led by the Presidency, assisted by the Commission. assisted by the Commission.

No involvement of the European No involvement of the European ParliamentParliament

Decisions adopted by unanimity in CouncilDecisions adopted by unanimity in Council Article 24 (5) (compliance with Article 24 (5) (compliance with

constitutional requirements) meant in constitutional requirements) meant in practice a real obstacle for the conclusion practice a real obstacle for the conclusion of these agreementsof these agreements

As of 1 December 2009As of 1 December 2009 Articles 82(1) and 218(6) of the Treaty on the Articles 82(1) and 218(6) of the Treaty on the

Functioning of the European UnionFunctioning of the European Union The negotiations will be open on the basis of The negotiations will be open on the basis of

recommendations from the Commission to the recommendations from the Commission to the CouncilCouncil

The negotiations will be led by the The negotiations will be led by the CommissionCommission

The Council will adopt decisions by qualified The Council will adopt decisions by qualified majoritymajority

The European ParliamentThe European Parliament will be will be fully fully involved – it involved – it will will give its consentgive its consent

No article on compliance with constitutional No article on compliance with constitutional requirementsrequirements

Existing AgreementsExisting Agreements

EU – USA Mutual Legal Assistance and EU – USA Mutual Legal Assistance and Extradition Agreements of 2003Extradition Agreements of 2003

EU – Iceland and Norway mutual legal EU – Iceland and Norway mutual legal assistance Agreement of 2003assistance Agreement of 2003

EU – Iceland and Norway Agreement on EU – Iceland and Norway Agreement on the surrender procedure of 2006the surrender procedure of 2006

EU – Japan Mutual Legal Assistance EU – Japan Mutual Legal Assistance Agreement of 2009Agreement of 2009

No experience with practical No experience with practical implementation of the Agreements so farimplementation of the Agreements so far

Each of these Agreements had Each of these Agreements had different negotiation backgrounddifferent negotiation background

EU – US AgreementsEU – US Agreements- after the events of 9/11 - after the events of 9/11 - EU and US started to cooperate quickly on - EU and US started to cooperate quickly on

modernization of law enforcement and judicial modernization of law enforcement and judicial cooperation cooperation

- 2003: first international agreements in the field of - 2003: first international agreements in the field of justice and home affairs signed by the EU (on the justice and home affairs signed by the EU (on the basis of articles 24 and 38 of the TEU)basis of articles 24 and 38 of the TEU)

- The Agreements were negotiated in very fast and The Agreements were negotiated in very fast and constructive manner (bearing in mind the common constructive manner (bearing in mind the common threat of terrorism)threat of terrorism)

- Framework agreements – set common framework for Framework agreements – set common framework for cooperation, but will co-exist with EU MS – US cooperation, but will co-exist with EU MS – US bilateral agreements (54)bilateral agreements (54)

- EU – Iceland and Norway EU – Iceland and Norway AgreementsAgreements Some MLA provisions Some MLA provisions constitute a development of the constitute a development of the Schengen acquis and therefore have Schengen acquis and therefore have been accepted by Iceland and Norway. been accepted by Iceland and Norway. Even though it has been established Even though it has been established that the surrender procedure does not that the surrender procedure does not constitute a development of the constitute a development of the Schengen acquis, it has been Schengen acquis, it has been concluded concluded that an that an surrender surrender agreement would be negotiated agreement would be negotiated (instead of extradition agreement, (instead of extradition agreement, which had been forwhich had been foreeseen)seen)

EU-Japan MLA AgreementEU-Japan MLA Agreement- Based mainly on political will of both Based mainly on political will of both

partiesparties- Negotiated in record time (given the Negotiated in record time (given the

entry into force of the Lisbon Treaty, entry into force of the Lisbon Treaty, the negotiations had to be completed the negotiations had to be completed before the end of November 2009)before the end of November 2009)

- Unique Agreement - First EU-third Unique Agreement - First EU-third country “self-standing” Agreement country “self-standing” Agreement (no bilaterals)(no bilaterals)

Looking back Looking back

This overview shows that no This overview shows that no coherent approach and clear coherent approach and clear selection criteria were followed in selection criteria were followed in the past negotiations.the past negotiations.

This will change under the This will change under the Stockholm Programme, which Stockholm Programme, which establishes the following:establishes the following:

The Stockholm The Stockholm ProgrammeProgramme

Necessary to identify priorities for the Necessary to identify priorities for the negotiations of mutual legal assistance negotiations of mutual legal assistance and extradition agreements.and extradition agreements.

The Union will still promote the widest The Union will still promote the widest possible accession of the partner possible accession of the partner countries to the most relevant and countries to the most relevant and functioning Conventions.functioning Conventions.

Synergy with the Council of Europe work Synergy with the Council of Europe work should be considered (where possible) should be considered (where possible)

Mandate Mandate

The SP calls upon the Commission, The SP calls upon the Commission, The Council and the European The Council and the European Parliament to:Parliament to:

Develop a policy aimed at the Develop a policy aimed at the establishment of agreements on establishment of agreements on international judicial cooperation international judicial cooperation taking into account the following taking into account the following criteria:criteria:

Possible criteria under the Possible criteria under the Stockholm ProgrammeStockholm Programme

Strategic relationshipStrategic relationship - in the JLS area the EU has developed a very - in the JLS area the EU has developed a very

wide range of relations with third countries wide range of relations with third countries – these should be taken into account – these should be taken into account

Existence of bilateral agreementsExistence of bilateral agreements - two individual examples show EU - two individual examples show EU

agreements were negotiated in both cases agreements were negotiated in both cases (many bilateral agreements existed x no (many bilateral agreements existed x no bilateral agreements existed) – it is always bilateral agreements existed) – it is always necessary to evaluate the added value of necessary to evaluate the added value of the EU-third country agreementthe EU-third country agreement

criteriacriteria

Adherence of the country to human rights’ Adherence of the country to human rights’ principlesprinciples

- the EU has clear criteria as regards human - the EU has clear criteria as regards human rights (CFR):rights (CFR):

- European countries – CoE standards- European countries – CoE standards

- non-European – UN standards- non-European – UN standards General cooperation (e.g. trade) with the EU General cooperation (e.g. trade) with the EU

and Member Statesand Member States The EU priorities of law enforcement and The EU priorities of law enforcement and

judicial cooperation (possible list of priority judicial cooperation (possible list of priority countries established by the Council)countries established by the Council)

MandateMandate Under the SP - the Commission is Under the SP - the Commission is

invited to submit to the Council a list of invited to submit to the Council a list of countries that have requested to countries that have requested to conclude agreements on MLA and conclude agreements on MLA and extradition with the Union and to extradition with the Union and to submit an assessment of the submit an assessment of the appropriateness and urgency of appropriateness and urgency of concluding such agreements with these concluding such agreements with these or other countries. or other countries.

Not possible to indicate any concrete Not possible to indicate any concrete country now.country now.

SP Action PlanSP Action Plan The Stockholm Action Plan is currently The Stockholm Action Plan is currently

being drafted and will be adopted under being drafted and will be adopted under the ES Presidencythe ES Presidency

Under the Action Plan the Commission Under the Action Plan the Commission will have a mandate to come up with its will have a mandate to come up with its Proposal by 2011 - probably in the form of Proposal by 2011 - probably in the form of Communication on the following:Communication on the following:

- Criteria for selecting the countriesCriteria for selecting the countries- List of countries who requestedList of countries who requested- Assessment of the appropriateness and Assessment of the appropriateness and

urgency of concluding such agreements urgency of concluding such agreements with these or OTHER Countrieswith these or OTHER Countries

Concrete case: MLA Concrete case: MLA Agreement with JapanAgreement with Japan

The need to establish clear criteria The need to establish clear criteria for choosing the countries with for choosing the countries with which MLA and extradition which MLA and extradition agreements should be concluded has agreements should be concluded has arisen during the discussion leading arisen during the discussion leading to the adoption of the negotiation to the adoption of the negotiation mandate for the EU-Japan MLA mandate for the EU-Japan MLA Agreement Agreement

Why Japan ?Why Japan ?

PROSPROS No Member State has concluded No Member State has concluded

bilateral MLA agreement with Japanbilateral MLA agreement with Japan Great political will to conclude such Great political will to conclude such

agreement with an important agreement with an important economic and political partnereconomic and political partner

After Japan sent an official request for After Japan sent an official request for negotiation, possible refusal would negotiation, possible refusal would put the EU in rather unfortunate and put the EU in rather unfortunate and difficult positiondifficult position

Why Japan ?Why Japan ?

CONSCONS Rather low number of cases between the Rather low number of cases between the

EU and Japan (200 over past ten years)EU and Japan (200 over past ten years) Therefore the practical importance of the Therefore the practical importance of the

Agreement is difficult to be estimatedAgreement is difficult to be estimated There are other countries, which have There are other countries, which have

much closer cooperation and more MLA much closer cooperation and more MLA requests with the EU Member Statesrequests with the EU Member States

The death penalty issue in The death penalty issue in MLA with JapanMLA with Japan

The EU Member States expressed The EU Member States expressed their clear approach when the their clear approach when the negotiation mandate was adopted in negotiation mandate was adopted in February 2009.February 2009.

Article on the guarantee as regards Article on the guarantee as regards the death penalty had to be includedthe death penalty had to be included

Japan was rather reluctant to agree on Japan was rather reluctant to agree on such articlesuch article, however, , however, the EU made it the EU made it clear that no MLA Agreement can be clear that no MLA Agreement can be concluded without such Article.concluded without such Article.

Death penaltyDeath penalty This was particularly important point given the fact that This was particularly important point given the fact that

this will serve as a “precedent” when negotiating MLA this will serve as a “precedent” when negotiating MLA and extradition agreements with other countries in the and extradition agreements with other countries in the futurefuture

Article 11 (1b) of the EU-Japan AgreementArticle 11 (1b) of the EU-Japan Agreement→ → Assistance may be refusedAssistance may be refused if the requested State if the requested State

considers that:considers that:The execution of a request is likely to prejudice its The execution of a request is likely to prejudice its sovereignty, security, ordre public or other essential sovereignty, security, ordre public or other essential interests. For the purpose of this sub-paragraph, the interests. For the purpose of this sub-paragraph, the requested State may consider that the execution of a requested State may consider that the execution of a request concerning an offence punishable by death request concerning an offence punishable by death under the laws of the requesting State, ……., could under the laws of the requesting State, ……., could prejudice essential interest of the requested State, prejudice essential interest of the requested State, unless the requested State and the requesting State unless the requested State and the requesting State agree on the conditions under which the request can be agree on the conditions under which the request can be executed.executed.

The death penalty issue in The death penalty issue in the EU-US Extradition the EU-US Extradition

AgreementAgreement EU-US extradition AgreementEU-US extradition Agreement→ → Article 13 Capital punishmentArticle 13 Capital punishment

Where the offence for which extradition is sought is Where the offence for which extradition is sought is punishable by death under the laws in the requesting punishable by death under the laws in the requesting State and not punishable by death under the laws in the State and not punishable by death under the laws in the requested State, the requested State may grant requested State, the requested State may grant extradition on the condition that the death penalty shall extradition on the condition that the death penalty shall not be imposed on the person sought, or if for procedural not be imposed on the person sought, or if for procedural reasons such condition cannot be complied with by the reasons such condition cannot be complied with by the requesting State, on condition that the death penalty if requesting State, on condition that the death penalty if imposed shall not be carried out. If the requesting State imposed shall not be carried out. If the requesting State accepts extradition subject to conditions pursuant to this accepts extradition subject to conditions pursuant to this article, it shall comply with the conditions. If the article, it shall comply with the conditions. If the requesting State does not accept the conditions, the requesting State does not accept the conditions, the request for extradition may be denied. request for extradition may be denied.

Guidelines suggested at the Guidelines suggested at the Council Council

in June 2008in June 2008 Political and economical importance of Political and economical importance of

the countrythe country The added value of an agreement as The added value of an agreement as

compared to the existing legal frameworkcompared to the existing legal framework The legal standards of the country The legal standards of the country

concernedconcerned→ → The rule of law, issue of prohibition of The rule of law, issue of prohibition of

the death penalty must be strictly the death penalty must be strictly ensured in the Agreementensured in the Agreement

guidelinesguidelines

The third country’s active approach The third country’s active approach towards conclusion of an agreement towards conclusion of an agreement with the EUwith the EU

Always consider at the same time Always consider at the same time whether there is a need to conclude whether there is a need to conclude particular type of agreementparticular type of agreement

Special consideration may need to Special consideration may need to be given to the protection of be given to the protection of individualsindividuals

Questions to be discussed:Questions to be discussed:

Implementation of the Stockholm Implementation of the Stockholm Programme?Programme?

Should the EU draft a list of priority Should the EU draft a list of priority countries?countries?

Should the EU itself take a more Should the EU itself take a more pro-active approach to enter into pro-active approach to enter into negotiations with defined priority negotiations with defined priority countries?countries?

The role of Eurojust in The role of Eurojust in judicial cooperation with judicial cooperation with

third countriesthird countries Eurojust’s instrument for cooperation with third Eurojust’s instrument for cooperation with third

countries:countries: Possibility to conclude cooperation agreementsPossibility to conclude cooperation agreements- Provided for by Article 26a of the Eurojust Provided for by Article 26a of the Eurojust

DecisionDecision→ → These agreements:These agreements:- set clear rules for the exchange of information set clear rules for the exchange of information

and the data protectionand the data protection- permit posting a “liaison prosecutor” from the permit posting a “liaison prosecutor” from the

third country at Eurojustthird country at Eurojust- Eurojust can serve as a “one-stop shop” for judicial Eurojust can serve as a “one-stop shop” for judicial

cooperation in cases where two or more EU cooperation in cases where two or more EU Member States are involved.Member States are involved.

Eurojust – third countries Eurojust – third countries coopcoopeeration agreementsration agreements

Norway – entered into force in 2005Norway – entered into force in 2005 Iceland – entered into force in 2006Iceland – entered into force in 2006 USA – entered into force in 2007USA – entered into force in 2007 Switzerland – signed in 2008Switzerland – signed in 2008 Former Yugoslav Republic of Former Yugoslav Republic of

Macedonia – signed in 2008Macedonia – signed in 2008 Croatia – entered into force in 2009Croatia – entered into force in 2009

EurojustEurojust

Eurojust decision as amended by Eurojust decision as amended by Decision 2009/426/JHA provides for more Decision 2009/426/JHA provides for more transparency as regards the choice of the transparency as regards the choice of the third countriesthird countries

→ → Article 26a sets an obligation of Eurojust Article 26a sets an obligation of Eurojust to inform the Council of any plans it has to inform the Council of any plans it has for entering into any negotiationsfor entering into any negotiations

→ → The Council has to approve such The Council has to approve such agreement before Eurojust can conclude agreement before Eurojust can conclude it. it.