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

Dr. Wendy De Bondtt. +32 9 264 97 02f. +32 9 264 69 71

[email protected]

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

23 May 2013

Dr. Wendy De Bondtt. +32 9 264 97 02f. +32 9 264 69 71

[email protected]

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

23 May 2013

cooperation

research publications consultancy conferenceswww.ircp.org

Dr. Wendy De Bondt+32 9 264 97 02

[email protected]

23 May 2013 | EJTN seminar

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evidence cooperation gathering use conclusion



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Obtaining existing evidence- House search- Freezing order (with 3rd parties)- Seizure (often requiring house search)- Order to provide/allow access to

Obtaining new evidence- Hearing, confrontation, covert investigations, analysis, expertise

Obtaining evidence in real time- Interception telecommunication- Covert investigations- Monitoring bank accounts



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mutual legal assistance

mutual recognition



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Wide range of traditional legal instruments

- Council of Europe Mutual Legal Assistance Convention (1959) and its protocols

- Schengen Implementation Convention (1990)- Napels II Convention (1997)- EU Mutual Legal Assistance Convention (2000) and

its protocols- Swedish Framework Decision (2006)- Prum Convention (2005) and EU Prum Decision

(2008)- Framework Decisions on Eurojust (2002)- …


mutual recognition



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Principal rules of play

- Assistance -> Requesting and requested state- Inter-state perspective – i.e. regulating

cooperation between states- Double criminality (not general rule)- Locus regit actum & forum regit actum


mutual recognition



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Convention shoppingmutual legal assistance

mutual recognition

Naples II EU 2000 CoE 2001right to request investigative measures in home country

no provision yes (SE) yes (SE)

right to provide the JIT info available in home country

yes, spontaneous(NS

E)

yes, spontaneous

(NSE)

yes, spontaneous

(NSE)

right to use at home info lawfully obtained yes (SE) yes (SE) yes (SE)

JIT-obtained info usable as evidence in home country

possible butconditionable

(NSE)

vague (only for ‘info’)(NSE)

vague (only for ‘info’)(NSE)

criminal and civil liability regulated yes (SE) yes (SE) yes (SE)

right to carry & use service weapons no provision no provision no provision



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Convention shoppingmutual legal assistance

mutual recognition

Naples II EU 2000 CoE 2001

seconded members

right to be present no provisionyes (SE)

(refusable)yes (SE)

(refusable)

right to carry out investigative tasks no (SE) possible (NSE) possible (NSE)

representatives 3rd countries & int’l bodies

right to be present no provision possible (NSE) possible (NSE)

right to carry out investigative tasks no provision possible (NSE) possible (NSE)



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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


mutual recognition

Freezing

EEW

EIO



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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 + objectum sceleris)

– if accompanied by standard certificate– no exequatur procedure


mutual recognition

Freezing

EEW

EIO



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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)


mutual recognition

Freezing

EEW

EIO



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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


mutual recognition

Freezing

EEW

EIO



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– 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


mutual recognition

Freezing

EEW

EIO



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– 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


mutual recognition

Freezing

EEW

EIO



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“You know, sometimes I wish the EU would sit still long enough to allow it to be evaluated”


mutual recognition

Freezing

EEW

EIO



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mutual recognition

Freezing

EEW

EIO



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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


mutual recognition

Freezing

EEW

EIO



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Future perspective : a comprehensive MR-based instrument

Comprehensive32 defined offence list as MR character

Forum regit actum-techniqueSome measures: JIT, unregulated measures, spontanious information exchangeProcedural rights persons involved (best of both worlds, lex mitior)


mutual recognition

Freezing

EEW

EIO



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Proposal for a European Investigation order

Comprehensive -> hardly more than consolidation instrument in terms of measures regulated32 defined offence list as MR characterSolution for stringency / capacityNo admissibility of evidence – solution -> painfull considering 2003 priority


mutual recognition

Freezing

EEW

EIO



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Need to rethink the entire fieldmutual legal assistance

mutual recognition

Freezing

EEW

EIO



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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

authorities

offences

capacity



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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

authorities

offences

capacity



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Traditionally limited dual criminality requirement–For coercive and intrusive investigative measures only (examples)Further outruling?–Limited ‘breakthrough’ based on 32 list–in Freezing Order and European Evidence Warrant–continued in draft European Investigation Order (EIO)–32 list approach highly discussable–Lack of common definitions (EULOCS)–Not beyond 32 list–Except through EULOCS

authorities

offences

capacity



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EULOCS – EU level offence classification systemauthorities

offences

capacity



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EULOCS – EU level offence classification system0200 00 Open Category PARTICIPATION IN A CRIMINAL ORGANISATION

0201 00 OFFENCES JOINTLY IDENTIFIED AS PARTICIPATION IN A CRIMINAL ORGANISATION0201 01 Directing a criminal organisation

Article 2 (b) , Council Framework Decision 2008/841/JHA of 24 October 2008 on the

fight against organised crime

Conduct by any person consisting in an agreement with one or more persons that an activity should be pursued which, if carried out, would amount to the commission of offences, even if that person does not take part in the actual execution of the activity.

0201 02 Knowingly participating in the criminal activities, without being a director

Article 2 (a), Council Framework Decision 2008/841/JHA of 24 October 2008 on the

fight against organised crime

Conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organisation to commit the offences in question, actively takes part in the organisation's criminal activities, even where that person does not take part in the actual execution of the offences concerned and, subject to the general principles of the criminal law of the member state concerned, even where the offences concerned are not actually committed,

0201 03Knowingly taking part in the non-criminal activities of a criminal organisation, without being a director

Article 5 - United Nations Convention on Transnational Organised Crime (UNTS no.

39574, New York, 15.11.2000)

Conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organisation to commit the offences in question, actively takes part in the organisation's other activities (i.e. non-criminal) in the further knowledge that his participation will contribute to the achievement of the organisation's criminal activities.

0202 00 OTHER FORMS OF PARTICIPATION IN A CRIMINAL ORGANISATION



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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 aut exequi aut tolerare rule?–JIT and Naples II acquis – no constitutional hurdles

authorities

offences

capacity



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cooperation

domestic



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– Forum regit actum (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

cooperation

domestic



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– Only possible through common minimum standards also

– Treaty competency EU limited to cross-border situations only

– However often overstepped in recent years

cooperation

domestic



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Thinking beyond borders– Physically, mentally and policy-wiseIn search of coherence– Integrated judicial and police cooperation– New criminal justice finality as basis for criminal policyStriving 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 standardsPractitioners’ interest & input badly needed



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Questions and discussion

www.ircp.org

ContactDr. Wendy De Bondt

t. +32 9 264 97 02f. +32 9 264 69 [email protected]

IRCPGhent UniversityUniversiteitstraat 4B – 9000 Ghent

Documents

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