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Standard training programme in judicial cooperation in criminal matters in the European Union
Version : 3.0Last updated: 20.12.2012
The European JudicialTraining Network
With the support of the European
Union
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(logo of the training organiser)
Training organised by(name of training organiser)
on (date) at (place)
Title (of the training/ module)
The European JudicialTraining Network
With the support of the European
Union
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Module 6 The pre-trial stage and
obtaining evidence (part I): cross-cutting issues
Version: 3.0 Last updated: 20.12.2012
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Contents
> Module 6: Obtaining evidence (I):
Contents:
1. Legal framework2. Scope3. Form and content of the request4. Transmission of the request5. Nature of the execution procedure6. Grounds for refusal7. Double criminality8. Procedural law applicable to execution9. Admissibility of evidence10. Subsequent use of evidence
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Pre-trial stage limited here to obtaining evidence transmission of records and laying of information with a view to proceedings are addressed in Module 9
Module 6 (general procedure) and Module 7 (specific procedures for types of investigative measure) are inseparable
Introduction
> Module 6: Obtaining evidence (I):
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Contents:
Judicial cooperation and police cooperation
Judicial cooperation and mutual recognition
Navigating the multiple instruments
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.1. Judicial cooperation and police cooperation
Police cooperation is preferred for the preliminary stage of the investigation, when avenues of inquiry are closed off
More flexible, faster, more efficient
If ‘police’ information proves significant, possibility of ‘validating’ it through mutual legal assistance
Police cooperation = applicable only to information, not to objects
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.2. Mutual legal assistance or mutual recognition?
Mutual legal assistance = the rule / Mutual recognition = the exception
Mutual recognition situation somewhat confusing: Framework Decision of 22 July 2003 on freezing property and
evidence not widely applied
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.2. Mutual legal assistance or mutual recognition?
(Mutual recognition situation somewhat confusing:) Council Framework Decision of 18 December 2008 on the European
Evidence Warrant was due to apply to some evidence from 9 January 2011
But widely criticized as too complex and not sufficiently broad Most Member States have decided not to apply it Proposal for a Directive on the European Investigation Order (EIO
Directive) under negotiation but very slow progress
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.2. Mutual legal assistance or mutual recognition?
Pending the EIO Directive: mutual assistance and mutual recognition coexist, at the discretion of the requesting/issuing authority – reason and disadvantages
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.3. Towards a comprehensive reform of obtaining evidence
The EIO Directive – if adopted! – will replace all instruments (mutual legal assistance and existing instruments of mutual recognition) with a single legal framework for obtaining evidence
The EIO Directive will cover all investigative measures and should provide for time limits for execution
The EU Council has approved a draft text which must then be negotiated with the European Parliament
The end result and when it will be finalised are very uncertain
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.4. Navigating the multiple instruments
For the freezing of property, if the instrument of mutual recognition is chosen, a single FD
If the system is mutual assistance (i.e. most cases), need to juggle with several instruments
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.4. Navigating the multiple instrumentsThe instruments of mutual legal assistance:1. Basic framework = 1959 Convention2. Amended and supplemented (but not replaced) by
1. First additional protocol to the 1959 Convention (1978)2. Schengen Convention (1990)3. Convention of 20004. Additional protocol to the Convention of 2000
NB: The Convention of 2000 and its 2001 Protocol are in force but have not yet been ratified by all!
1. Legal framework
> Module 6: Obtaining evidence (I):
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1.4. Navigating the multiple instruments
The instruments of mutual legal assistance:3. + Instruments with restricted frameworks (bilateral agreements,
Benelux cooperation, Nordic cooperation)4. Some specific rules for some investigative measures in the
various instruments
1. Legal framework
> Module 6: Obtaining evidence (I):
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2.1. Severity of the offence
No limitation But indirect obstacle (see below): Double criminality Impossibility of using the measure in question for the type of
offence Lack of proportionality between the measure sought and the
severity of the acts
2. Scope
> Module 6: Obtaining evidence (I):
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2.2. Type of proceedingsCriminal proceedings but also:1. Mutual legal assistance (Article 49 Schengen Conv. and Article
3 2000 Conv):- administrative offences subject to legal remedy before a criminal
court- compensation proceedings related to a criminal case- civil and criminal cases joined while the criminal proceedings are
pending- …
2. Mutual recognition:- FD freezing property: very restrictive- FD EEW = as for mutual legal assistance
2. Scope
> Module 6: Obtaining evidence (I):
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3.1. Mutual legal assistance
3.1.1. Content = Article 14 of the 1959 Conv. the authority making the request the object of and the reason for the request where possible, the identity and nationality of the person
concerned where necessary, the name and address of the person to be
served the offence a summary of the facts
3. Form and content of the request
> Module 6: Obtaining evidence (I):
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3.1.2. Form
Article 6 of the 2000 Convention: requests for mutual assistance ‘shall be made in writing, or by any means capable of producing a written record under conditions allowing the receiving Member State to establish authenticity’.
There are two tools for partially standardising these requests Standard cover note (see Annex A) Compendium (EJN website)
3. Form and content of the request
> Module 6: Obtaining evidence (I):
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3.1.2. Form
3. Form and content of the request
National situation
Indicate whether your State has standard mutual assistance requests and attach these templates to the
training module
> Module 6: Obtaining evidence (I):
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3.1.3. Translation
Article 16 of the 1959 Convention
See Annex 1: table of languages accepted by each State
3. Form and content of the request
> Module 6: Obtaining evidence (I):
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3.2. Mutual recognition
Stricter form and content: a ‘certificate’ (with the original decision attached) FD on
freezing (2003) or a ‘warrant’ (= the decision) FD on the EEWTranslation: see Module 7.
3. Form and content of the request
> Module 6: Obtaining evidence (I):
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4.1. Medium and means
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’.
- Post or courier- Fax: accepted in most States, at least as a draft- Electronically: no sufficiently extensive practice BUT secure
EJN network
4. Medium and transmission of the request
> Module 6: Obtaining evidence (I):
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4.2. Transmission of the request
4.2.1. Mutual legal assistance• The rule = direct contact between judicial authorities• Exceptions: Going via a central authority ‘in specific cases’ UK and Ireland Certain other Member States, in contradiction to the Schengen Conv.
and the 2000 Conv. Urgent cases via Interpol Extracts of criminal records Transmission via Eurojust
4. Medium and transmission of the request
> Module 6: Obtaining evidence (I):
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4.2.2. Mutual recognition
Rule of thumb is always direct contact
But exceptions vary:• FD on freezing (2003): exception only for the UK and
Ireland• DC EEW: more flexible, possibility available to all MS
4. Transmission of the request
> Module 6: Obtaining evidence (I):
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4.2.3. How does direct contact work?
Identify the competent local authorityFor mutual legal assistance: Atlas on the EJN website (see
Module 3)For mutual recognition: not yet Atlas for the FD on freezing
property (see below)
Contact problems? EJN and Eurojust
4.3. Best practice
4. Transmission of the request
> Module 6: Obtaining evidence (I):
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Reminder (see Module 2):
Mutual legal assistance has not been fully judicialised the governmental/political authority may play a role or have a right of veto
Mutual recognition fully judicialised, in principle no decision-making role for government, unless instruments are improperly implemented
5. Nature of the execution procedure
> Module 6: Obtaining evidence (I):
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6.1. Mutual legal assistance (For specific grounds for refusing certain investigative measures, see Module 7 + For double criminality see below)General grounds for refusal (Article 2(2) 1959 Conv.):‘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’.
= very broad wording that includes:- Political grounds- Legal grounds to be qualified by subsequent limitations
6. Grounds for refusal
> Module 6: Obtaining evidence (I):
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(6.1. Mutual legal assistance)
Impossibility of using the measure for this type of offence or lack of proportionality:
• only explicitly referred to for telecoms interception• conversely, not applicable in principle to the remainder, but...
Fiscal offence: ground for refusal abolished (Article 8 2000 Conv.)
Political offence: abolished (Article 9 2001 Protocol) but may be partly maintained (optional declarations: DK, FR, LAT)
Banking secrecy: abolished (Art. 7 2001 Protocol)
6. Grounds for refusal
> Module 6: Obtaining evidence (I):
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6.2. Mutual recognition
Reminder (see Module 2): More grounds for refusal of a political nature (judicialisation)Legal grounds for refusal limited and reference to specific legal
conceptsSee Module 6 for the FD on freezing (2003)
6. Grounds for refusal
> Module 6: Obtaining evidence (I):
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6.2. Mutual recognition
• infringement of the ne bis in idem principle • immunity or privilege• incomplete or incorrect warrant or certificate
The issue of grounds for refusal is central issue in debates in negotiations on the EIO Directive. Final system impossible to predict.
6. Grounds for refusal
> Module 6: Obtaining evidence (I):
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7.1. Mutual legal assistance
7.1.1. The basic ruleBasic rule: Article 5 1959 Convention, Article 51 CISA 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);
application of reciprocity is no longer permissible within the EU in this area;
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 Article 51 of the Schengen Convention);
7. Double criminality
> Module 6: Obtaining evidence (I)
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7.1. Mutual legal assistance
7.1.1. The basic rule (2)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.
7. Double criminality
> Module 6: Obtaining evidence (I)
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7.1. Mutual legal assistance 7.1.1. The basic rule (3)NB: subsequent transfer of evidence frozen on the basis of the FD on freezing (2003) partial removal of double criminality applied
7.1.2 Implicit or explicit extension to other investigative measuresIn principle, ‘DC’ limited to searches and seizures BUT:Special procedures for some investigative measures (e.g. telecoms
interception) some take the view that ‘DC’ applies by analogy to measures involving
constraint application of ‘DC’ via general grounds for refusal (public order)
7. Double criminality
> Module 6: Obtaining evidence (I)
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7.2. Mutual recognition
For freezing decisions (FD 2003/577JHA), the double criminality requirement is strictly limited cf. solution of the FD on the European arrest warrant.
No verification if:- Prison sentence of at least 3 years in the issuing State- + the offence, as defined by the law of the issuing State, is
included in a list of 32 categories of offences.
7. Double criminality
> Module 6: Obtaining evidence (I)
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8.1. The ‘locus regit actum’ principle8.2. Qualification of the principle
Procedural law applicable is that of the requested (or executing) State
2. 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. (Art 6(1) 2000 Conv., Art 5(2) FD freezing)
8. Law applicable to executing a request
> Module 6: Obtaining evidence (I)
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9.1. No EU rule on this point Reference to national law 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?
9. Admissibility of evidence
National situation
Indicate here the general rules on the admissibility of evidence gathered abroad under your national law
> Module 6: Obtaining evidence (I)
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9.2. Overcoming difficulties
Consult the ‘Fiches Belges’ (see Module 4) Requesting authority: indicate the formalities and procedures
that must be applied Contact the requested authority Use the EJN and Eurojust to overcome obstacles in mutual
understanding
9. Admissibility of evidence
> Module 6: Obtaining evidence (I)
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10.1. Mutual legal assistance
Instruments on mutual legal assistance leave the issue of legal remedy to the discretion of national laws
10.2. Mutual recognition
Explicit but rather vague rules in the existing instruments. Stumbling block in negotiations on the EIO Directive.
10. Rights of legal remedy against the measure
> Module 6: Obtaining evidence (I)
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Can the evidence be used for purposes other than thoseoriginally intended? Art 23 of the 2000 Conv.:
The data can be used: for the purposes of criminal proceedings; 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.
11. Admissibility of evidence
> Module 6: Obtaining evidence (I)
Th
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