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Module 6 the pre-trial stage and obtaining evidence (Part I) Version 3.0Module 6 the pre-trial stage and obtaining evidence (Part I) Version 3.0
Module 6 the pre-trial stage and obtaining evidence (Part I) Version 3.0
The European Judicialtraining network
With the support of the European Union
Project description
This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).
The programme as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.
The methodological approach of the standard programme aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.
This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.
In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the projects management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network . Any comments regarding its content and any requests for information about Copen Training should be sent to [email protected], quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisle Vernimmen and Anne Weyembergh. Veronica Santamara and Laura Surano contributed to the previous versions.
How to use this document:The standard training programme in judicial cooperation in criminal matters training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:
1. Its content and layout cannot be altered in any way, except:
- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organisers logo, date, place etc.)
- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned
2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:
- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions
- these additions and amendments must be notified to the projects development team [email protected], quoting Copen Training.
3. No section of the tool or its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.
Whats new in this version?
In particular, this new version (3.0) takes into account:
Implementation of Framework Decision 2003/577/JHA of 22July2003 on the execution of orders freezing property or evidence Work on the proposed directive on the European Investigation Order and the impact of the Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant.
Aims of this module
The aim of mutual judicial assistance in criminal matters is to gather evidence located in another State that is necessary to the investigation and criminal proceedings.
Modules 6 and 7 are therefore central parts of the training. The earlier modules introduced the topic and described the tools for facilitating cooperation but, ultimately, judicial cooperation at the pre-trial stage entails being able to apply the procedures described below.
This module provides an analysis of the cross-cutting issues relating to obtaining evidence.
Module 7, which looks at the various investigative measures, complements Module 6.
Relevant legislation
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (Compendium B.5.1.
European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 ( Compendium A.1.1.; its first additional protocol of 17 March 1978 ( Compendium A.1.2.; and its second additional Protocol of 8 November 2001 ( Compendium A.1.3.
Convention of 19 June 1990 implementing the Schengen Agreement ( Compendium B.2.1.
Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union ( Compendium B.3.10; and its additional Protocol of 16October2001 ( Compendium B.3.11.
Proposal for a Directive on the European Investigation Order (EIO Directive), as provisionally approved by the Council in December 2011 ==> Compendium B.5.9.
Contents
71.What is the legal framework for obtaining evidence?
1.1.Obtaining evidence (judicial cooperation) and information gathering (police cooperation): making the most efficient choice71.2.Mutual legal assistance or mutual recognition?71.3.Towards a comprehensive reform of cooperation in obtaining evidence: the European Investigation Order81.4.Navigating the multiple instruments92.Scope112.1.Severity of the offence112.2.Type of proceedings112.2.1Mutual legal assistance:112.2.2Mutual recognition113.Form and content of the request123.1.Mutual legal assistance:123.1.1Content123.1.2Form123.1.3Translation133.2.Mutual recognition:134.Medium and means of transmitting the request154.1.Medium and means of transmission154.2.Transmission of the request154.2.1Mutual legal assistance:154.2.2Mutual recognition:164.2.3In practice: how does direct contact work?174.2.4Best practice175.Nature of the execution procedure206.General grounds for refusal to execute a request216.1.Mutual legal assistance:216.2.Mutual recognition227.Double criminality247.1.Mutual legal assistance:247.1.1The basic rule on double criminality in obtaining evidence247.1.2Implicit or explicit extension to other investigative measures257.2.Mutual recognition:258.Procedural law applicable to executing a request278.1.The locus regit actum principle278.2.Qualification of the principle278.3.Practical implications:279.Admissibility of evidence299.1.Lack of European rules on admissibility of evidence299.2.How can these difficulties be overcome?2910.Rights of legal remedy against the investigative measure3110.1.Mutual legal assistance3110.2.Mutual recognition3111.Subsequent use of evidence gathered in this way33
1. What is the legal framework for obtaining evidence?
1.1. Obtaining evidence (judicial cooperation) and information gathering (police cooperation): making the most efficient choice
This section looks at obtaining evidence, that is, the necessary elements to constitute the criminal case. As we saw in the module on police cooperation (Module 5), this must be fully utilised at an early stage in the investigation, when information is not yet being gathered as evidence but instead in order to close off avenues in the various directions the investigation might take. Investigators prefer to use police cooperation insofar as possible, since it is more flexible than mutual legal assistance, particularly since it can allow direct access to the national databases of another Member State (see Module 5).
The two forms of cooperation are not heterogeneous. Thus, with regard to DNA profiling, direct access to national databases (Prm Treaty system, see Module 5) only tells us whether information exists about the profile concerned (hit/no hit system). To be able to obtain information about the person concerned, it is often necessary to use mutual legal assistance in criminal matters. Furthermore, information that is gathered via police cooperation and that proves decisive may be validated via judicial cooperation for use as evidence. This applies solely to information; physical material is only exchanged through mutual legal assistance.
See Module 5 for more information about the exchange of information through police cooperation.
1.2. Mutual legal assistance or mutual recognition?
Currently, obtaining evidence is still principally governed by mutual legal assistance. The situation concerning application of the principle of mutual recognition of judgments in criminal matters (see Module 2) for obtaining evidence is somewhat confusing. There are two Framework Decisions:
Framework Decision 2008/577/JHA of 22 July 2003 (Compendium B.5.1.), which covers preventive seizure: this is applicable and implemented in the national law of most Member States (albeit with many shortcomings) see, in Module 7, the section on the freezing of evidence. In reality, the FD is rarely applied by judicial officers, who consider the system too cumbersome and complex and often prefer mutual legal assistance. It will probably be replaced by the Directive on the European Investigation Order. Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant (Compendium B.5.4.): this was due to be applied from 9 January 2011 but has been widely criticised. This is particularly due to the fact that it only applies to gathering pre-existing evidence (e.g. searches, but not the hearing of witnesses or surveillance) and therefore presupposes a much-criticised fragmentation of the legal framework for obtaining evidence. The Directive on the European Investigation Order is due to replace this Framework Decision. In the meantime, Framework Decision 2008/978/JHA is still applicable in principle but has in reality been transposed by only two Member States (Denmark and Finland). Although unsatisfactory from a legal perspective, this situation is made less problematic by the fact that, under the EEW, the use of mutual legal assistance is left to judicial officers discretion.
The current situation is therefore that mutual legal assistance remains the legal framework applicable to obtaining evidence between the EU Member States, with the exception of preventive seizure (freezing of evidence), where it coexists with Framework Decision 2003/577/JHA. In the event that Framework Decision 2003/577/JHA is applicable, the issuing authority may choose between the two systems.
1.3. Towards a comprehensive reform of cooperation in obtaining evidence: the European Investigation Order
In the Stockholm Programme adopted in December 2009, the European Council considered that in the matter of obtaining evidence, the existing instruments in this area constitute a fragmentary regime. A new approach is needed, based on the principle of mutual recognition, but also taking into account the flexibility of the traditional system of mutual legal assistance. The European Council called for a comprehensive system to replace all the existing instruments in this area, including Framework Decision 2008/978/JHA on the European Evidence Warrant, covering as far as possible all types of evidence and containing deadlines for enforcement and limiting as far as possible the grounds for refusal.On the basis of this mandate, several Member States submitted a proposal for a Directive on the European Investigation Order (hereinafter, the EIO Directive) in March 2010. These negotiations were particularly challenging and were a true test for post-Lisbon Treaty mutual recognition. We will refer to the version provisionally approved by the Council in December 2011, but which has yet to be negotiated with the European Parliament (Compendium B.5.9.).
The main thrust of the proposal was as follows:
A comprehensive system covering all evidence, to end the current fragmentation;
A system based, as in mutual legal assistance, on the type of investigative measure to be executed, rather than, as in the FD on the EEW, on the type of evidence to be gathered; A system based on mutual recognition of judgments in criminal matters which avoids some of the formalism of the existing instruments of mutual recognition and seeks to preserve the flexibility of mutual legal assistance;
Deadlines for execution.
It seems clear that if the EIO Directive is one day adopted, its scope will indeed be general and will cover all types of evidence.
However, the institutions differ on the key issue of the verification that may or may not be exercised by the executing authority concerning the decision taken by the issuing authority, as well as on how to address procedural rights. Although the EIO Directive is an opportunity for a comprehensive reform of the framework for obtaining evidence in the EU, it remains to be seen whether a solution can be found to reconcile the different positions while at all costs avoiding creating a system that would make the work of judicial officers more complicated than in mutual legal assistance.
This uncertainty means it is too early to present the EIO in detail: it is impossible to know at this stage how it will look once negotiations have ended. We will return later on in this module, as well as in Module 7 (specific procedures for obtaining evidence), to some proposed solutions in the EIO, but it must be borne in mind that at this stage we cannot know whether these solutions will be retained in the final text.
The proposed EIO Directive does, however, has a concrete impact: tabled by the Member States in order to avoid using the FD on the evidence warrant, its effect is that most Member States have already abandoned implementing the aforesaid FD into their domestic law (see above).
1.4. Navigating the multiple instrumentsWhether as requesting authority or requested authority, to obtain evidence effectively judicial officers must juggle a large number of separate international instruments.
As we have seen, it is first necessary to determine whether the applicable system falls under mutual legal assistance or mutual recognition. In the latter, it is the applicable Framework Decision that determines the legal system. In the case of mutual assistance, the framework is more complex:
1. The basic framework remains the Council of Europes International Convention of 1959 on Mutual Assistance in Criminal Matters (hereafter, the 1959 Convention) (Compendium A.1.1).
2. However, this Convention has been supplemented (but not replaced) by a number of general instruments:
The first additional protocol (1978) and the second additional protocol (2001) to the 1959 Convention (Compendium A.1.2. and A.1.3.);
The Convention implementing the Schengen Agreement (1990), hereinafter, the Schengen Convention (Compendium B.2.1.);
NB: The articles of the Schengen Convention relating to mutual legal assistance in criminal matters apply between all EU States with the exception of Ireland (see Module 1).
The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000), hereafter, the 2000 Convention (Compendium B.3.10);
The additional protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2001), hereafter, the 2001 Protocol ( Compendium B.3.11).3. Bilateral instruments or those specific to a small group of States (e.g. Nordic cooperation, Benelux countries) also apply: the scope of this standard training does not, however, allow them to be taken into account here.
4. In addition, specific rules are laid down for certain investigative measures. Most are provided for in the aforesaid instruments but some arise from other instruments (e.g. Article29 et seq. of the Council of Europe Convention of 23November2001 on Cybercrime).
NB: This module often refers to certain conventions signed a long time ago, whose ratification involved political commitments that have been ratified by a large majority of Member States and have entered into force. Unfortunately, these conventions are not yet applicable with the few States that have not yet ratified them. Particular attention is drawn to the following failures to ratify (as at 1 November 2012):
2000 Convention: GR, ITAL, IRL
2001 Protocol to the 2000 Convention: EST, GR, ITA, IRL
2. Scope
2.1. Severity of the offence
Unlike extradition or the European arrest warrant, judicial cooperation for the purposes of obtaining evidence is not limited by the severity of penalty attached to the offence concerned and may therefore be used even for minor offences.
This issue of the severity of the offence may, however, reappear at different levels (see below):
Verification of double criminality
Impossibility of using the measure in question in the executing/requested State for this type of offence
Lack of proportionality between the measure sought and the severity of the acts
2.2. Type of proceedings
The mutual legal assistance described here of course applies to obtaining evidence in the context of criminal proceedings but may, more often than not, also be used in other contexts that are not strictly criminal in nature.
2.2.1 Mutual legal assistance:
Pursuant to Article49 of the Schengen Convention (Compendium B.2.1) and Article3 of the 2000 Convention (Compendium B.3.10), mutual legal assistance must be considered applicable, in addition to in criminal proceedings:
a) In proceedings brought by the administrative authorities in respect of acts that are punishable under the national law of one of the two Contracting Parties, or of both, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court whose jurisdiction covers criminal matters;
b) In proceedings for claims for damages arising from wrongful prosecution or conviction;
c) In clemency proceedings;
d) In civil actions joined to criminal proceedings, as long as the criminal court has not yet taken a final decision in the criminal proceedings.
2.2.2 Mutual recognition
Framework Decision 2003/577/JHA of 2003 on freezing property is very restrictive on this point, since Article1 only cites criminal proceedings (Compendium B.5.1).
Framework Decision 2008/978/JHA of 18December2008 on the evidence warrant ( Compendium B.5.4.), on the other hand, contains the same extensions as indicated above for mutual legal assistance.
3. Form and content of the request
The form and content of the request vary depending on the system applicable:
3.1. Mutual legal assistance:
3.1.1 Content
Article 14 of the 1959 Convention (Compendium A.1.1) states that mutual assistance requests should indicate the following:
The authority making the request
The object of and the reason for the request
Where possible, the identity and the nationality of the person concerned
Where necessary, the name and address of the person to be served
The offence
A summary of the facts
The last two points are only formally required for requests for the purposes of:
Procuring evidence or transmitting articles to be produced in evidence, records or documents
Carrying out searches or seizures
Hearing witnesses or experts on oath
Enabling the presence of the requesting authority or interested persons during execution of the request
These categories are broad and it is simpler to assume that the six types of information must always be cited in the request.
It should also be noted that the requirements of Article14 are minimum requirements. More specific formalities may be required for some types of measure (see below). This is the case with regard to intercepting telecommunications or obtaining banking information.
3.1.2 Form
The Conventions do not prescribe a specific format for mutual legal assistance requests. There are, however, two tools for standardising these requests to some degree, thus making them easier for the requested authority to process.
The cover note: this standard cover note is designed to accompany mutual assistance requests (Annex A to this module,). This cover note greatly facilitates the processing of the request by the requested State and subsequent provision of information to the requesting State. This form is available from the following address:
http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=485&lang=EN&mode=g
The Compendium: this is a tool, available on the EJN website (http://www.ejn-crimjust.europa.eu/), encompassing a number of EJN parameters and tools to help judicial officers draft their mutual assistance requests (see Module 4).
Indicate here whether your State has standard mutual assistance requests and attach these templates to the training module
3.1.3 Translation
Article 16 of the 1959 Convention (Compendium A.1.1) states that, as a rule, the mutual assistance request and annexed documents do not have to be translated. However, it allows Member States to make a declaration that they do require documents to be translated into French, English or national language of the requested State.
Almost all EU States have made such a declaration. A table is attached showing the language arrangements that apply, depending on the requested State (Annex 1 to this module, at the end of this document).
3.2. Mutual recognition:
If mutual recognition applies, it is mandatory to use the certificate or warrant provided for in the applicable Framework Decision (see below). Using a certificate (as in the 2003 Framework Decision on freezing property) means that both the judgment to be executed and the certificate in question must be transmitted. By contrast, a warrant (as in the Framework Decision on the European arrest warrant and, in future, the Framework Decision on the European evidence warrant) is sufficient in itself.
With regard to translation, the basic rule is that the certificate or warrant must be transmitted in one of the national languages of the executing State. That State may, however, declare that it will accept certificates transmitted in another language. See Module7, in the sections on freezing property and search and seizure, for a list of the languages accepted. In the case of a certificate, where the decision to be executed must therefore be annexed, the fact that the texts are silent on this point would imply that the executing State cannot require a translation of that decision.
4. Medium and means of transmitting the request
4.1. Medium and means of transmission
In the case of mutual legal assistance, as with mutual recognition, provision is made for requests/certificates/warrants to be transmitted by any means capable of producing a written record, under conditions allowing the receiving (or executing) State to establish authenticity.The document containing the request may be transmitted by post or by courier. Most States also allow it to be transmitted by fax, or an interim copy to be transmitted by fax before the original is received. Electronic transmission is unfortunately not yet sufficiently widespread.
A secure network has existed since 2009 between the contact points of the European Judicial Network, but its implementation is gradual (see Module 4, Section 2 on the EJN). In cases when a fax is not sufficient or is not considered sufficiently secure, it is therefore possible to transmit requests/certificates/warrants in this way.
4.2. Transmission of the request
As seen in Module2, the rules on transmission of the request have evolved considerably. Direct contact between locally competent judicial authorities is now favoured, even though there are numerous exceptions to this rule, depending on the States involved.
4.2.1 Mutual legal assistance:
4.2.1.1 The rule: direct contact between locally competent judicial authorities
Since Article53 of the Schengen Convention (Compendium B.2.1), confirmed by Article 6(1) of the 2000 Convention (Compendium B.3.10), mutual legal assistance within the EU has favoured direct contact between competent judicial authorities.
This means that exchanges taking place in the context of mutual assistance requests no longer have to go via the ministries of justice (nor, a fortiori, through diplomatic channels). It also means that such direct contact between judicial authorities at the smallest level of geographic division must be encouraged if these are the authorities competent to send, receive or execute a request.
This rule does not necessarily signal the end of government intervention in proceedings, for example to authorise execution of a mutual assistance request. However, as a rule, ministries of justice only liaise with the judicial authorities of their State. Contact with the requesting State is for the judicial authorities only.
4.2.1.2 Exceptions: going via a central authority
There are a number of exceptions to this rule of direct contact between locally competent judicial authorities, where it is still possible to go through a central authority (such as the Ministry of Justice):
a) In specific cases, going through a central authority is still permitted (Article6(2) of the 2000 Convention): this situation must, in principle, become the exception. It may, for example, arise when the requesting authority does not have the necessary information to identify the requested judicial authority. It must at least be inferred that no negative legal consequences may be attached to the fact that the requesting Member State has gone through government channels.
b) There is express derogation for the United Kingdom and Ireland, which still operate through government central authorities (the Home Office for the United Kingdom and the Ministry of Justice for Ireland).
c) In urgent cases, mutual assistance requests may also be sent via Interpol.
d) Information on convictions and extracts from criminal records continue to go through the central authorities (see below).
e) It is also possible to send mutual assistance requests via Eurojust: Eurojust thus merely acts as a channel for transmitting the request and subsequent contact will be between competent judicial authorities direct. To reiterate, it is especially useful to go through Eurojust when there is a specific need to coordinate transmission or execution of requests (see Module 4).
f) Lastly, it should be noted that certain Member States have retained the requirement to go through the Ministry of Justice, even though this is contrary to the binding rules outlined above: a judicial authority wishing to send a mutual assistance request to one of these States unfortunately has no choice but to comply with this requirement. In principle, this requirement to go through the Ministry of Justice should not prevent subsequent direct contact between competent judicial authorities.
4.2.2 Mutual recognition:
The mutual recognition instruments follow this same trend:
The basic rule is, of course, direct exchange between competent judicial authorities. States that wish to do so may designate a central authority, but this authority may only play an administrative role in transmitting decisions for execution and cannot therefore play a filtering role. In the Framework Decision on freezing assets, only the United Kingdom and Ireland are afforded this option (Article 4(2)). However, the instruments adopted since EU enlargement in 2004 allow any Member State to make use of this derogation: such is the case with the Framework Decision on the European evidence warrant (Article 3(2)).
4.2.3 In practice: how does direct contact work?
4.2.3.1 Identifying the competent authority It is not easy to identify the locally competent judicial authority in another State, since this requires understanding the internal judicial system of the State in question. It is also necessary to know whether this State is complying with its obligations or continues to require contact through the Ministry of Justice.
That is why the EJN has developed an Atlas for the transmission of mutual assistance requests. This Atlas, available on the EJN website (see Module 4) makes it possible, based on a number of parameters (requested State, locality concerned, type of procedure, urgent or non-urgent, type of measure requested), for the requesting judicial authority to obtain the specific contact details (name, address, telephone, fax, e-mail) of the judicial authority competent to receive its request.
http://www.ejn-crimjust.europa.eu/ejn/EJN_EAWAtlas.aspxNB:
Atlas must be updated in line with each Framework Decision on mutual recognition. Although this is already the case for the European arrest warrant, Atlas is not yet equipped to identify the authorities locally competent to receive a decision on freezing assets for execution in conformity with the 2003 Framework Decision. In such situations, you are advised to contact an EJN contact point.
The Compendium incorporates Atlas functionality: if judicial authorities use the Compendium to draft their mutual assistance requests, the tool identifies for them the authority competent to receive the request.
4.2.3.2 Contact problems?Sometimes, despite using Atlas, direct contact does not work for various reasons: incorrect contact details in Atlas, human communication problems, language difficulties, etc.
In such cases, it is strongly recommended that the judicial authority concerned contact an EJN contact point of its own Member State. If there is a specific need for coordination, Eurojust may also be called upon.
4.2.4 Best practice
Joint Action of 29 June 1998 on good practice in mutual legal assistance in criminal matters includes examples of best practice for facilitating judicial cooperation. These are rules of protocol that must be promoted and observed. Some of these became binding in the 2000 Convention:a) Where requested to do so by the requesting Member State, to acknowledge all requests and written enquiries concerning the execution of requests unless a substantive reply is sent quickly; the requesting Member State may not require an acknowledgement unless the request is marked urgent by that Member State or, in its view, an acknowledgement is necessary in the light of the circumstances of the case;
Note: Compliance with this good practice will be made easier if the requesting authority includes the standard cover note mentioned above in its mutual assistance request.
Note: the proposed EIO Directive provides for systematic acknowledgement of receipt within one week of receipt of the request. This provision does not appear to be contentious (Article 15, Council doc. EU 18918/11, Compendium B.5.9).b) When acknowledging the requests and enquiries referred to in this paragraph, to provide the requesting authority with the name and contact details, including telephone and fax numbers, of the authority, and if possible the person, responsible for executing the request;c) To give priority, as far as it is not contrary to the law of the requested Member State, to requests which have clearly been marked urgent by the requesting authority; and to treat requests, whether or not marked urgent no less favourably than comparable enquiries made in the requested Member State on behalf of that Member State's own authorities;
d) Where the assistance requested cannot be executed in whole or in part, to give the requesting authorities a written or oral report explaining the difficulty and where possible offering to consider jointly with the requesting authority how the difficulty might be overcome;
e) Where it is foreseeable that the assistance cannot, or cannot fully, be provided within any deadline set by the requesting Member State and that this will impair proceedings in the requesting Member State, promptly to give its authority a written or oral report, and any further reports requested by that authority explaining when the assistance requested is likely to be provided;
f) To submit requests for assistance as soon as the precise assistance needed is identified and, where a request is marked urgent or a deadline is indicated, to explain the reasons for the urgency or deadline; the Statement shall include an undertaking not to mark as urgent requests which are of minor importance;
g) To ensure that requests are submitted in compliance with the relevant treaty or other international arrangements;
h) When submitting requests for assistance, to provide the requested authorities with the name and contact details, including telephone and fax numbers, of the authority and, if possible, the person responsible for issuing the request
Note: See standard cover note mentioned above.
5. Nature of the execution procedure
To reiterate, judicial cooperation has only been partly judicialised, particularly as regards obtaining evidence:
Mutual legal assistance: despite direct contact between judicial authorities, it is still possible for each State to involve an administrative or government authority in the execution of a mutual assistance request, or even to give that authority decision-making power.
Mutual recognition: in mutual recognition, the procedure has been fully judicialised; the central authority only plays a supporting or intermediary role. The decision on execution of the foreign decision therefore lies with a judicial authority (except in cases of incorrect transposition of the Framework Decisions by a Member State).
6. General grounds for refusal to execute a request
6.1. Mutual legal assistance:
The grounds for refusal to execute a request under mutual legal assistance are divided into three categories. Only the last of these will be discussed here:
Double criminality, which will be looked at in the next section of this chapter
Specific grounds for refusal referred to in the special procedures for certain investigative measures, which will be analysed in the second part of this module
General grounds for refusal
The general grounds for refusal are set out in Article 2(2) of the 1959 Convention. Mutual legal assistance may thus be refused if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, law and order or other essential interests of its country.This very broad wording makes it possible to cover two sets of reasons:
a) Political reasons for refusal: risk of prejudicing the States sovereignty, national security, essential economic interests, etc. These grounds for refusal are linked to the fact that, under the mutual assistance system, the final decision on execution of the request may be entrusted to the government (see above).
b) Legal reasons for refusal: these grounds may be multiple and cannot be listed here. However, attention is drawn to the following points:
1. The impossibility of using the requested measure in the executing State for this type of offence or lack of proportionality between the measure sought and the severity of the acts:
While not explicitly addressing these situations, the arrangements for interception of telecommunications refer to the possibility of refusing to execute a request if the measure could not be taken in a similar national case (Article 20(4) c) of the Convention of 29 May 2000): this wording makes it possible to refuse execution in the two instances mentioned.
By contrast, this possibility of refusal should not exist elsewhere in mutual legal assistance. The general grounds for refusal (reasons of law and order, for example) still make it possible to make use of these limitations. However, this does not mean that using them is desirable.
2. Refusal to execute a request concerning a fiscal offence: this reason for refusal, explicitly referred to in Article2(1) of the 1959 Convention, was abolished by Article8 of the 2001Protocol.
3. Refusal to execute a request concerning a political offence (i.e. refusal based on the fact that the offence was motivated by political objectives): this reason for refusal, explicitly referred to in Article2(1) of the 1959 Convention, was, in principle, abolished by Article9 of the 2001Protocol. Each Member State may, however, declare that it will limit this waiver to specific terrorism offences. Of the 18 Member States that had ratified the Protocol as at 1 November 2012, only three States have made this declaration (France, Denmark and Latvia).
4. Refusal to execute a request concerning breach of banking secrecy: this reason for refusal, which was not explicitly mentioned but could be considered as covered by Article 2(2) of the 1959 Convention and was often invoked by certain Member States, was abolished by Article7 of the 2001Protocol.
6.2. Mutual recognition
The grounds for refusal are reduced significantly in the framework decisions on mutual recognition.Political grounds for refusal no longer exist, coupled with the fact that the procedure has been fully judicialised.
In addition, the grounds for refusal are no longer defined by reference to vague concepts such as law and order, but in relation to more precise notions such as amnesty and statute of limitations.
The grounds for refusal common to the two mutual recognition instruments currently governing the obtaining of evidence (FD 2003/57/JHA on the freezing of evidence and FD 2008/978/JHA on the European Evidence Warrant) concern:
Infringement of the ne bis in idem principle:the Framework Decision on freezing property requires, however, that it is instantly clear from the information provided in the certificate (Article 7(1) c)) that this principle would be infringed, whereas the Framework Decision on obtaining evidence is vague on this point (Article 13(1) a) see Module 9 for more information on the ne bis in idemprinciple)
Immunity or privilege
Incomplete or incorrect warrant or certificate
However, the Framework Decision on the European evidence warrant also contains other grounds for refusal, about which we will not go into detail here, since this instrument is not applied.
The proposed EIO Directive should contain somewhat new rules on grounds for refusal but it is too early to say exactly how it will look. As indicated above, the question of verification of the issuing authoritys decision by the executing authority is central to the differences of opinion between the institutions: the grounds for refusal are therefore inevitably affected.
7. Double criminality
The double criminality requirement varies, depending on whether the framework is mutual legal assistance or mutual recognition.
7.1. Mutual legal assistance:
7.1.1 The basic rule on double criminality in obtaining evidence
Article 5 of the 1959 Convention states that:
Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession, reserve the right to make the execution of letters rogatory for search or seizure of property dependent on one or more of the following conditions:a) that the offence motivating the letters rogatory is punishable under both the law of the requesting Party and the law of the requested Party;
b) that the offence motivating the letters rogatory is an extraditable offence in the requested country;
c) that execution of the letters rogatory is consistent with the law of the requested Party;
d) Where a Contracting Party makes a declaration in accordance with paragraph 1 of this article, any other Party may apply reciprocity.Article 51 of the Schengen Convention, for its part, states that:
The Contracting Parties may not make the admissibility of letters rogatory for search or seizure dependent on conditions other than the following:a) the act giving rise to the letters rogatory is punishable under the law of both Contracting Parties by a penalty involving deprivation of liberty or a detention order of a maximum period of at least six months, or is punishable under the law of one of the two Contracting Parties by an equivalent penalty and under the law of the other Contracting Party by virtue of being an infringement of the rules of law which is being prosecuted by the administrative authorities, and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters;
b) execution of the letters rogatory is consistent with the law of the requested Contracting Party.Article 51 of the Schengen Convention does not replace Article 5 of the 1959 Convention but specifies that no conditions other than the following may be prescribed. It must be inferred from combining these two Articles that:
a) The double criminality requirement is only permissible if execution of the mutual assistance request makes it necessary to carry out a search or seizure (however, see below);
b) Applying reciprocity is no longer permissible within the EU in this area;
c) The EU States cannot use Article 5(b) of the 1959 Convention, i.e. the requirement for an extraditable offence, between themselves (since this condition is more restrictive than the one found in Article51 of the Schengen Convention);
d) The EU States may therefore, between themselves:
Waive the double criminality rule;
Apply double criminality without reference to a minimum penalty;
If they apply double criminality with a minimum penalty, require that the penalty in question is up to six months.
Lastly, it should be noted that, if the mutual legal assistance request seeks a transfer of evidence that was frozen pursuant to the Framework Decision of 22July2003 on freezing property (= mutual recognition), partial waiver of the double criminality that applies to the freezing itself (see below) is also valid for this transfer of property even if it is governed by mutual legal assistance (see Module 7).
7.1.2 Implicit or explicit extension to other investigative measures
In the aforesaid Articles, the double criminality requirement is only permissible if execution of the mutual assistance request necessitates carrying out a search or seizure. On the contrary, this verification cannot therefore take place for other investigative measures. This statement must be qualified at three levels:
1. Several subsequent international instruments have created a specific procedure for certain investigative measures and have directly or indirectly provided for a double criminality requirement (see below, aspects of cooperation concerning banking information and interception of telecommunications).
2. Some consider that the double criminality requirement may also be used for other investigative measures not expressly referred to but which are at least as coercive as search or seizure, or more so. Extending this requirement necessitates two comments:
This extension cannot apply to investigative measures expressly referred to in other European international instruments, unless the double criminality requirement has been provided for;
When it is permissible, this extension must be interpreted narrowly: it would not be possible, for example, to require double criminality for simply hearing witnesses.
3. It is still possible to indirectly apply the double criminality requirement more broadly, through the ground for refusal based on law and order: such an extension should, however, in a European judicial area, remain the exception.
7.2. Mutual recognition:
Under the mutual recognition system, the double criminality requirement is in principle strictly limited but not entirely abolished.
This is the case in FD 2003/577/JHA on freezing evidence. Remember that this FD focuses on preventive seizure and therefore on one of the two measures for which mutual legal assistance explicitly maintains the possibility of verification of double criminality. FD 2003/577/JHA applies the approach adopted in the FD on the European Evidence Warrant verification of double criminality is generally possible, except where the following conditions are met:
The offence in question is punishable by a custodial sentence of at least 3 years in the issuing State;
This offence, as defined by the law of the issuing State, is included in a list of 32 categories of offences.
The reference to the law of the issuing State, rather than that of the executing State, is crucial to explaining this limitation of the verification of double criminality. The executing judicial authority may consequently not verify correspondence between the classification of the offence and its domestic law (nor of course the severity of the penalty). In other words, the executing authority must confine itself to noting that the issuing authority has ticked one of the 32 boxes in the list contained in the certificate or warrant (see below).
In addition, the terms included in this list of 32 categories of offence should be interpreted flexibly by the issuing authority when completing the certificate or warrant. It is of course not required that exactly the same terms (e.g. sabotage) are used in domestic law. The wording is generic.
FD 2008/978/JHA on the European Evidence Warrant, which is not applicable in practice, provides for similar rules where evidence is gathered through a search or seizure.
It is not possible to know how double criminality will be regulated in the proposed EIO Directive. The initial proposal removed any verification of double criminality, whereas the version approved by the Council in December 2011 provides for a differentiated procedure depending on the investigative measure.
8. Procedural law applicable to executing a request
8.1. The locus regit actum principle
The procedural law applicable to executing a request is the law of the requested (or executing) State. This basic principle of locus regit actum is valid for both mutual legal assistance and mutual recognition. 8.2. Qualification of the principle
Rigid application of the locus regit actum principle may be problematic, since application of the procedural law of the requested State ensures the admissibility of the evidence in that State but not necessarily in the requesting State where more stringent, or simply different, formalities are required. However, it is for use in this latter State that the evidence is obtained.
That is why, in the case of both mutual assistance and mutual recognition, a qualification to the governing law principle is now provided for:
The procedural law applicable is that of the requested (or executing) State.
BUT the requested State must apply the formalities and procedures required by the requesting State, provided these formalities and procedures are not contrary to the fundamental principles of law of the requested State.
This therefore creates a hybrid system, a mixture of locus regit actum and forum regis actum.8.3. Practical implications:
1. The requesting authority must always ensure that in the request it expresses clearly the formalities and procedures that must be applied in the requested State, to avoid prejudicing the admissibility of the evidence
2. The precise scope of this system for each individual case will depend on how the phrase formalities and procedures not contrary to the fundamental rights of the requested State is interpreted. It may be inferred that the requested authority should always apply the formalities and procedures required by the requesting authority when these formalities and procedures:
involve purely formal modifications that do not affect the rights of individuals and do not invalidate the evidence in the requested State
involve measures that increase protection of the rights of the defendant without prejudicing the rights of victims.
Example
If the requesting authority requires that no lawyer be present during a suspects hearing, whereas the law of the requested State provides for a lawyers presence, it may be anticipated that this requirement will be rejected. If, on the other hand, the requesting authority requires a lawyer to be present during the hearing, whereas it is not mandatory in the requested State, the requested authority should accept this requirement, which does not prejudice its own legal system and is necessary to ensure the admissibility of the evidence.
ex_mod6_v10j_1.1Note ECHR case-law: There is very little case law of the European Court of Human Rights concerning mutual legal assistance in criminal matters, but an important judgment was delivered in the Stojkovic v France & Belgium case (EU Court HR, 27 October 2011). The case concerned the hearing of an individual in a Belgian prison in connection with French letters rogatory. The person was heard without the assistance of their lawyer, which was in accordance with Belgian law but not French criminal procedure, given the individuals assisted witness status in the investigation in France. In his letters rogatory, the French investigating judge also requested the presence of a lawyer. The Convention of 29 May 2000 only entered into force one year after the hearing in question and the Court did not refer to it in its decision. It concluded that France had breached Article 6 ECHR because the individual did not benefit from the rights granted to them under French law, but did not conclude that Belgium was in breach.9. Admissibility of evidence
9.1. Lack of European rules on admissibility of evidence
Currently, there is no binding instrument concerning the admissibility of evidence gathered in another Member State. Therefore, the national law of the requesting State applies. National laws vary on this point.
The mere fact that evidence was obtained abroad is clearly not enough to bypass all the procedural rules considered fundamental in the State where this evidence is to be used. On the other hand, it is often accepted that evidence may have been obtained improperly according to the law of the requesting State or of the requested State, without this necessarily making the evidence inadmissible. This occurs to varying degrees.
For example, if the search cannot take place during the night in the requesting State, is evidence gathered during such a search in the requested State inadmissible in the requesting State?
Insert here the rules in force in your country according to legislation or case-law
There is also no (or almost no) harmonisation of investigative measures. The procedural requirements of the different legal systems may therefore vary, creating problematic situations in terms of admissibility of evidence.
9.2. How can these difficulties be overcome?
These difficulties can usually be overcome if the judicial officers involved, with assistance from the EJN or Eurojust if necessary, address this problem immediately and duly communicate with each other on this point.
To reiterate (see above concerning governing law), the requested authority must apply the formalities and procedures required by the requesting State, provided these formalities and procedures are not contrary to the fundamental laws of the requested State.
Four recommendations can therefore be made:
1. The requesting authority would benefit from consulting, in the Fiches Belges (see Module 4) for the requested State, the measure corresponding to that which it wishes to be carried out, in order to be aware of the applicable procedure in the requested State and the potential difficulties;
2. The requesting authority must ensure it describes the formalities and procedures it wishes to be applied clearly, bearing in mind the following:
its legal system is unfamiliar to the requested authority (which entails, inter alia, bearing in mind that legal concepts may mean little, or may not mean the same thing, to the requested authority);
only the formalities and procedures truly necessary to ensuring the admissibility of evidence need to be mentioned.
3. The requested authority should contact the requesting authority if there is a comprehension problem;4. Since these exchanges may raise reciprocal comprehension problems, assistance from the EJN contact points should be considered.
10. Rights of legal remedy against the investigative measure
10.1. Mutual legal assistance
The mutual legal assistance instruments are silent on the issue of (a priori or a posteriori) legal remedy by an individual against execution of a request for mutual assistance.
It is therefore the national law that applies to the procedure applicable in the requesting State, as well as to that of the requested State. Moreover, this means that the question of whether to suspend the transfer of evidence while a legal remedy is pending in the requested State is not regulated.
10.2. Mutual recognition
The instruments of mutual recognition should, by contrast, address this issue, which appears to be politically very important for the EU institutions.
Framework Decision 2003/577/JHA on the freezing of evidence and Framework Decision 2008/978/JHA on the European Evidence Warrant each devoted an Article to this question (Articles 11 and 18 respectively). Article 13 of the EIO Directive, as provisionally approved by the Council (Council Doc. 18918/11, Compendium B.5.9.) is also devoted to legal remedies and takes its cue from the Framework Decision.
Jurisdiction:
Legal remedies that do not concern the substantive reasons for issuing the decision to be executed: in the existing Framework Decisions and in the text of the EIO Directive approved by the Council, legal remedies may be brought in the issuing State and in the executing State. It is likely that this will be kept in the EIO Directive because a precise differentiation between the two States would be difficult;
Legal remedies that concern the substantive reasons for issuing the decision to be executed: in the existing Framework Decisions and in the text of the EIO Directive approved by the Council, legal remedies may only be brought in the issuing State and not in the executing State. We await whether the European Parliament will adopt this approach in the final version of the EIO Directive.
Rules: the two existing framework decisions rather vaguely require States to provide for legal remedy procedures, without specifying whether the existing legal remedy procedures should simply be applied to domestic cases, or whether new legal remedy procedures should be created. By contrast, the EIO Directive provisionally approved by the Council explicitly refers to the legal remedy procedures available under national law. Although some would wish to create a common minimum basis for entitlement to legal remedy, it is difficult to do this for a mutual recognition instrument that covers all investigative measures. This matter should be a point of discussion during the negotiations with the European Parliament.
Transfer of evidence: the question of the impact of a legal remedy on the transfer of evidence does not arise for the freezing of property. FD 2008/978/JHA explicitly states that the executing State may suspend the transfer of evidence pending the outcome of the legal remedy. The text of the EIO Directive, provisionally approved by the Council, also makes some provision in this regard. It states that if the transfer has already taken place and the investigative measure is subsequently invalidated by the executing State, the issuing State is required to take into account this decision (but is not therefore necessarily required to set aside the evidence).
11. Subsequent use of evidence gathered in this way
Obtaining evidence through mutual legal assistance or mutual recognition always takes place in connection with a very specific investigation or trial, usually (but not exclusively, see above) in a criminal case.
Provided the applicable mutual legal assistance or mutual recognition procedure has been correctly followed, the evidence gathered may of course be used in the case in question
However, can the State that obtained the evidence also use it for other purposes?
The Conventions on mutual legal assistance have only resolved this question relatively recently; it was not until the 2000 Convention (Article 23) that the situation was clarified. Article 23 in fact only covers the use of personal data; since evidence most often concerns such data, this Article is indeed the apposite measure for determining the procedure for subsequent use of evidence:
1. Personal data communicated under this Convention may be used by the Member State to which they have been transferred:
for the purpose of proceedings to which this Convention applies;
for other judicial and administrative proceedings directly related to proceedings referred to under point (a);
for preventing an immediate and serious threat to public security;
for any other purpose, only with the prior consent of the communicating Member State, unless the Member State concerned has obtained the consent of the data subject.
2. This Article shall also apply to personal data not communicated but obtained otherwise under this Convention.
3. In the circumstances of the particular case, the communicating Member State may require the Member State to which the personal data have been transferred to give information on the use made of the data.
Note that the remainder of Article 23 must also be taken into account:
For some investigative measures, it is expressly stated that the requested State may impose specific conditions: if they involve reuse of the data for other purposes, these conditions shall prevail over Article 23(1).
Luxembourg has a specific derogation in this respect (paragraph 7).
See Module 7 on approaches to obtaining evidence for each type of investigative measure
Annex 1Table of declarations made under Article16 of the 1959 Convention
= language required for translation of the mutual assistance request and, if applicable, annexed documents when the State concerned is the requested State
States that have not made a declaration (Belgium and the Czech Republic) under Article16 are assumed not to require translation of the request.
The full text of the declarations is provided below as an annex.
National languageEnglishFrenchOther
Germanyxxx
Austriaxxx
BelgiumNo declaration
Bulgariaxxx
Cyprusxx
Denmark xxx
Spainx
Estoniax
FinlandxxxSwedish, Danish, Norwegian, German
Hungaryxxx
Irelandxx
Italyxxx
Latviax
Lithuaniaxxx
Luxembourgxxx
Maltaxx
Netherlands(x)
Polandxxx
Portugalxx
Czech RepublicNo declaration
United Kingdomxx
Slovakiaxxx
Sloveniax
SwedenxDanish, Norwegian
Non-EU Schengen countries
IcelandxxDanish, Norwegian, Icelandic
NorwayxxDanish, Swedish
Switzerlandxx
Germany: If the request for mutual legal assistance and the annexed documents are not in German, they must be accompanied by a translation of the request and the supporting documents into German or into one of the official languages of the Council of Europe.
Austria: Subject to the provisions of paragraph 3 of Article 16, requests and annexed documents that are not drawn up in German, French or English must be accompanied by a translation into one of these languages. A translation of the information referred to in Article 21(1) is not required.
Bulgaria: The Republic of Bulgaria declares that it will require mutual legal assistance requests and annexed documents to be accompanied by a translation into Bulgarian, or in the absence thereof, by a translation into one of the official languages of the Council of Europe.
Cyprus: Requests and annexed documents not drawn up in English or Greek must be accompanied by a translation into one of these languages.
Denmark: Requests and annexed documents from countries other than Austria, France, the Federal Republic of Germany, Ireland, Norway, Sweden or the United Kingdom must be accompanied by a translation into Danish or one of the official languages of the Council of Europe. For very long documents, the Danish Government has made reservations to require, in a specific case, a Danish translation or to have the documents translated at the expense of the requesting State.
Spain: Spain reserves the right to stipulate that mutual legal assistance requests and annexed documents be sent to it accompanied by a duly authenticated translation into Spanish.
Estonia: Pursuant to Article 16(2) of the Convention, the Republic of Estonia declares that requests and annexed documents sent to the Estonian authorities shall be accompanied by a translation into English.
Finland: Finland has declared that requests and annexed documents that are not drawn up in Finnish, Swedish, Danish or Norwegian, or in English, French or German, must be accompanied by a translation into one of these languages.
Hungary: A translation of the request for mutual assistance and annexed documents into Hungarian or any of the official languages of the Council of Europe will be required, if not drawn up in one of these languages.
Ireland: In accordance with Article 16(2), the Government of Ireland reserves the right to stipulate that requests and annexed documents be sent to it accompanied by translations into Irish or English.
Italy: Having regard to the provisions of Articles 16 and 21(3), Italy will require, on condition of reciprocity, that requests for mutual legal assistance, together with the annexed documents, and the laying of information provided for in Article 21 of the Convention, be accompanied by a translation into French or English.
Latvia: Pursuant to Article 16(2) of the Convention, the Republic of Latvia stipulates that requests and annexed documents addressed to the Estonian authorities shall be accompanied by a translation into English.
Lithuania: In accordance with Article 16(2) of the Convention, the Republic of Lithuania has declared that it reserves the right to stipulate that requests and annexed documents be addressed to it accompanied by a translation into one of the official languages of the Council of Europe. Lithuania shall claim compensation for any costs incurred in the translations if this requirement is not met.
Luxembourg: The Government of the Grand Duchy of Luxembourg will require mutual legal assistance requests and annexed documents addressed to it to be accompanied by a translation into French, German or English.
Malta: The Government of Malta declares that requests and annexed documents should be addressed to it accompanied by a translation into English.
Netherlands: The Government of the Kingdom of the Netherlands declares, having regard to Article 16, that it will require requests for mutual legal assistance relating to the Netherlands Antilles and Aruba to be accompanied by an English translation.
Poland: Requests and annexed documents transmitted to Poland shall be accompanied by a translation into Polish or into one of the official languages of the Council of Europe; the translation of the documents to be transmitted is not required if the transmission takes the form of a simple service. In other instances, these documents shall be translated into Polish if the recipient is a Polish national or a person residing in Poland.
Portugal: Portugal declares that requests and annexed documents addressed to it must be accompanied by a translation into Portuguese or French.
United Kingdom: In accordance with Article 16(2), the Government of the United Kingdom reserves the right to stipulate that requests and annexed documents shall be addressed to it accompanied by translations into English.
Romania: Requests for mutual assistance and annexed documents addressed to the Romanian judicial authorities in accordance with this Convention will be accompanied by a translation into one of the official languages of the Council of Europe.
Slovakia: The Slovak Republic invites the other Contracting Parties to submit their requests and annexed documents that are not drawn up in Slovak or one of the official languages of the Council of Europe together with a translation into one of these languages.
Slovenia: In accordance with Article 16(2), the Republic of Slovenia reserves the right to require that requests and annexed documents be addressed to it accompanied by a translation into Slovenian.
Sweden: The request and annexed documents shall be translated into Swedish, Danish or Norwegian, unless the authority dealing with the request stipulates otherwise in the particular case.
Schengen countries:
Iceland: Requests and annexed documents not drawn up in Icelandic, Danish, English, Norwegian or Swedish shall be accompanied by a translation into Icelandic or English.
Norway: Requests and annexed documents not drawn up in Norwegian, Danish, English or Swedish, shall be accompanied by a translation into Norwegian. Otherwise, Norway reserves the right to have them translated into Norwegian at the expense of the requesting State.
Switzerland: Switzerland requests that all mutual legal assistance requests and annexed documents addressed to its authorities, with the exception of requests for the service of summons, be accompanied by a translation into French, German or Italian, if they are not drawn up in one of these languages.
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.
Annex ACover note
COVER NOTE FOR ROGATORY LETTERS Joint Action of 29 June 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on good practice in mutual legal assistance in criminal matters. (Official Journal L 191, 07/07/1998 p. 0001 - 0003) REQUEST (To be filled in by requesting authority) Case number: Name(s) of suspect(s): Authority who can be contacted regarding the request: Organization: Place: Country: Name: Function: Spoken Language: Telephone number: Fax Number: E-mail: Deadline: This request is urgent. Please execute this request before (date): Reasons for deadline: Date: Signature: ............................................................................................................................................................................................... ACKNOWLEDGEMENT OF REQUEST (To be filled in by the requested authority) Registration number: ............................................................................................................................ Date: ....................................................................................................................... Authority receiving the request Organization: ......................................................................... Place: .................................................................................... Country: ................................................................................. Name: ................................................................................... Function: ................................................................................... Spoken Language: ............................................................. Telephone number: ............................................................ Fax Number: ................................................................................ E-mail: ................................................................................ Authority who can be consulted on the execution of the request Same as above Other, namely: Organization: ......................................................................... Place: .................................................................................... Country: ................................................................................. Name: ................................................................................... Function: ................................................................................... Spoken Language: ............................................................. Telephone number: ............................................................ Fax Number: ................................................................................ E-mail: ................................................................................ Deadline: The deadline will probably: be met not be met. Reason: ..................................................................................................................................................................
Date:.........................................................................................Signature:...........................................................................................................................................................................
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Training organised by
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Based on
the standard training programme in judicial cooperation in criminal matters
within the European Union
Module 6
the pre-trial stage
and obtaining evidence (partI):
cross-cutting issues
Version: 3.0
Last updated: 20.12.2012
OJEU L 196, 2 August 2003, p. 45.
OJEU L 350, 30 December 2008, p. 72.
The 2nd additional protocol to the 1959 Convention also applies, but the instruments of the European Union already provide for the changes it introduced.
Note to trainers: this document is included in the training tool (Annex A final to this module).
This model cover note has not yet been translated into the languages of the Member States that joined the EU on 1 May2004.
Article 6 of the 2000 Convention, Article4(1) of Framework Decision 2003/577/JHA (freezing assets) and Article8(1) of Framework Decision 2008/978/JHA (European evidence warrant).
Joint Action 98/427/JHA of 29 June 1998 on good practice Joint Action 98/427/JHA of 29 June1998 on good practices in mutual legal assistance in criminal matters, OJ L 191 of 7 July 1998, p. 1
The exact wording of Article9 is as follows:
For the purposes of mutual legal assistance between Member States, no offence may be regarded by the requested Member State as a political offence, an offence connected with a political offence or an offence inspired by political motives.
Each Member State may, when giving the notification referred to in Article 13(2), declare that it will apply paragraph 1 only in relation to:
the offences referred to in Articles 1 and 2 of the European Convention on the Suppression of Terrorism of 27 January 1977; and
offences of conspiracy or association, which correspond to the description of behaviour referred to in Article 3(4) of the Convention of 27 September 1996 relating to extradition between the Member States of the European Union, to commit one or more of the offences referred to in Articles 1 and 2 of the European Convention on the Suppression of Terrorism.
Reservations made pursuant to Article 13 of the European Convention on the Suppression of Terrorism shall not apply to mutual legal assistance between Member States.
At most, execution might be refused based on the fact that there is a manifest discrepancy between the description of the acts and the box ticked in the list. It should also be noted that not all national legislation implementing framework decisions on mutual recognition necessarily conforms to those decisions, so the executing authority may find itself faced with contradictory orders.
Article 4(1) of the 2000 Convention, Article 5(1), paragraph 2 of the Framework Decision on freezing property, Article 11(1) a and Article 12 of the Framework Decision on the European Evidence Warrant.
Cf., however, the proposal for a Directive on access to a lawyer in criminal proceedings, which provides for some exclusionary rules for evidence (Article 13, COM(2011)154). This proposal is contentious, with some states leaving questions of admissibility entirely to the discretion of the judge; the rule in question has also disappeared in the text approved by the Council in June 2012 (Council doc. 10467/12). We await the outcome of negotiations with the European Parliament to see the final result.
This Article is echoed by Article 11 of Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data (OJ L 350, 30 December 2008, p. 60). To be read in conjunction with Article 28 of the same Framework Decision.
See HYPERLINK "http://www.coe.int" http://www.coe.int
Solely for requests for mutual legal assistance relating to the Netherlands Antilles and Aruba.
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