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NEW LEGAL MECHANISM FOR CREATING AN AREA OF FREEDOM, SECURITY AND JUSTICE

EUROPEAN INITIATIVES IN THE FIELD OF MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION. NEW LEGAL MECHANISM FOR CREATING AN AREA OF FREEDOM, SECURITY AND JUSTICE. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION.

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NEW LEGAL MECHANISM FOR CREATING AN AREA OF FREEDOM, SECURITY AND JUSTICE

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  1. EUROPEAN INITIATIVES IN THE FIELD OF MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION NEW LEGAL MECHANISM FOR CREATING AN AREA OF FREEDOM, SECURITY AND JUSTICE

  2. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • TRADITIONAL MECHANISMS: Council of Europe and Bilateral arrangements. • MUTUAL LEGAL ASSISTANCE: • EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS, 1959. • FIRST ADDITIONAL PROTOCOL. • Bilateral agreements. • EXTRADITION: • EUROPEAN CONVENTION ON EXTRADITION, 1957. • FIRST AND SECOND ADDITIONAL PROTOCOLS. • Bilateral agreements. • ENFORCEMENT OF CRIMINAL JUDGEMENTS: • EUROPEAN CONVENTION ON THE TRANSFER OF SENTENCED PERSONS, 1983. • EUROPEAN CONVENTION ON THE VALIDITY OF CRIMINAL JUDGEMENTS, 1990.

  3. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • MUTUAL LEGAL ASSISTANCE • FRAMEWORK FOR TRADITIONAL LEGAL ASSISTANCE SYSTEM • SYSTEM OF CENTRAL AUTHORITIES: NO DIRECT TRASNMISSION, EXCEPT IN CASE OF URGENCY (cc CENTRAL AUTHORITY) • GROUNDS FOR REFUSAL BASED ON PUBLIC ORDER AND ESSENTIAL NATIONAL INTEREST • EXECUTION RULED BY THE LAW OF THE REQUESTING COUNTRY (locus regit actum) • FORMS OF ASSISTANCE: NOTIFICATIONS, TAKING OF EVIDENCE, HANDING OF OBJECTS, REQUEST FOR SEARCH AND SEIZURE (SUBJECT TO DOUBLE CRIMINALITY)...

  4. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • Traditional mutual assistance is based on the recognition of judicial borders and the principle of territoriality. • The intervention of Central Authorities implies political control over the granting of the assistance: public order as ground for refusal. • Application of the Law of the Requested Party can lead to the non validity of the material in the proceedings in the Requesting Party. • New forms of assistance based on new investigating measures: videoconference, joint investigation teams, undercover agents...

  5. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • SOLUTIONS AT EUROPEAN LEVEL • EUROPEAN UNION • SCHENGEN AGREEMENT: COMPLEMENTING THE EC ON MLA, ON A VOLUNTARY BASIS. • DIRECT NOTIFICATION • DIRECT TRANSMISSION OF REQUESTS BETWEEN JUDICIAL AUTHORITIES • ADMINISTRATIVE AUTHORITIES.

  6. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • CONVENTION ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE MEMBER STATES, 29th May 2000. • Entry into force: 8 ratifications of the “old” MS. • Extends the application of MLA to proceedings before administrative authorities and proceedings involving legal persons. • Provides for the application of the law of the Requesting State (if it is not contrary to the principles of the Requested State). • To the extent possible, deadlines must be met, and reasons to non compliance must be given.

  7. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • SERVICE OF DOCUMENTS: • GENERAL RULE: BY POST • ONLY IN CERTAIN CIRCUMSTANCES IT IS POSSIBLE TO SERVE THE DOCUMENT THROUGH THE COMPETENT AUTHORITIES OF THE REQUESTED STATE. • TRANSLATION: ONLY IF THE ADDRESEE DOES NOT UNDERSTAND THE LANGUAGE OF THE REQUESTING STATE, AND ONLY THE IMPORTANT PASSAGES THEREOF. • ACCOMPANIED BY A REPORT STATING HIS/HER RIGHTS (ALSO TRANSLATED TO A LANGUAGE OF HIS/HER KNOWLEDGE).

  8. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • REQUEST FOR MUTUAL LEGAL ASSISTANCE AND SPONTANEOUS EXCHANGE OF INFORMATION: • GENERAL RULE: DIRECT TRANSMISSION BETWEEN JUDICIAL AUTHORITIES. • TRASNMISSION THROUGH CENTRAL AUTHORITIES IS ALSO POSSIBLE. • INFORMATION LAID WITH A VIEW TO PROCEEDINGS IN THE REQUESTED STATE: they may be transmitted directly. • TRANSMISSION THROUGH CENTRAL AUTHORITIES> • TEMPORARY TRANSFER OR TRANSIT OF PERSONS IN CUSTODY • EXCHANGE OF INFORMATION ON CRIMINAL RECORDS.

  9. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • NEW FORMS OF ASSISTANCE: • HEARING BY VIDEO AND TELE CONFERENCE • CONTROLLED DELIVERIES (for extraditable offences) • JOINT INVESTIGATION TEAMS (information obtained may be used for the purpose for which the JIT was created, and for other purposes in certain cases). • COUNCIL FRAMEWORK DECISION OF 13 JUNE 2002 • COVERT INVESTIGATIONS • INTERCEPTIONS OF TELECOMMUNICATIONS

  10. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • COUNCIL OF EUROPE: • SECOND ADDITIONAL PROTOCOL TO THE 1959 CONVENTION. • Entry into force: 3 ratifications (done). • SIMILAR FRAMEWORK AS PROVIDED FOR BY THE 2000 CONVENTION. • ADMINISTRATIVE AUTHORITIES • SERVICE BY POST • DIRECT TRANSMISSION • LAW APPLICABLE TO THE EXECUTION • NEW FORMS OF ASSISTANCE

  11. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • EXTRADITION • PROCEDURE: 2 PHASES, ADMINISTRATIVE + JUDICIAL. • POLITICAL DECISSION: TO CONTINUE WITH THE JUDICIAL PHASE OF THE EXTRADITION PROCEDURE + TO SURRENDER THE PERSON. • DISCRETIONARY GROUNDS FOR REFUSAL. • NO DEADLINES FOR GRANTING EXTRADITION OR EFFECTING SURRENDER. • PRINCIPLE OF DUAL CRIMINALITY

  12. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • EUROPEAN ARREST WARRANT • COUNCIL FRAMEWORK DECISSION OF JUNE 13, 2002 ON THE EUROPEAN ARREST WARRANT AND SURRENDER PROCEDURES BETWEEN MEMBER STATES. • FIRST CONCRET MEASURE TO IMPLEMENT MUTUAL RECOGNITION WITHIN THE EU IN THE FIELD OF CRIMINAL LAW • ENTRY INTO FORCE: 1st January 2004 (old Member States), 1st May 2004 (for the new MS). • However, some MS did not comply with this deadline (Germany, Czeck Republic, Italy). Since the entry into force of the implementing legislation in Italy, on 14 May 2005, all 25 MS apply now the EAW.

  13. The objective set for the Union to becomean area offreedom, security and justice leads to abolishingextradition between Member States and replacing it by asystem of surrender between judicial authorities.Further, the introduction of a new simplified system ofsurrender of sentenced or suspected persons for thepurposes of execution or prosecution of criminalsentences makes it possible to remove the complexityand potential for delay inherent in the presentextradition procedures. Traditional cooperation relationswhich have prevailed up till now between MemberStates should be replaced by a system of free movementof judicial decisions in criminalmatters, covering bothpre-sentence and final decisions, within an area offreedom, security and justice. The European arrest warrant provided for in thisFramework Decision is the first concrete measure in thefield of criminal law implementing theprinciple ofmutual recognition which the European Council referredto as the “cornerstone” of judicial cooperation. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION

  14. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • Definitition of the EAW: it IS a JUDICIAL DECISION. • It is issued by a MS with a view to view to the arrest and surrender byanother Member State of a requested person, for the purposesof conducting a criminal prosecution or executing a custodialsentence or detention order. • Member States SHALL execute any European arrest warranton the basis of the principle of mutual recognition.

  15. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • SCOPE OF THE EAW: • Actspunishable by the law of the issuing Member State by acustodial sentence or a detention order for a maximum periodof at least 12 months or, • where a sentence has been passed ora detention order has been made, for sentences of at leastfourmonths. • DUAL CRIMINALITY is excluded in respect of a list of 36 offences punishable in the issuing MS by a custodial sentence of at least three years, including terrorism, drug trafficking, money laundering, homicide, etc…

  16. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • GROUNDS FOR NON-EXECUTION: • MANDATORY: • AMNESTY IN THE EXECUTING MS • NE BIS IN IDEM • NON LIABILITY OF THE PERSON ON ACCOUNT OF HIS/HER AGE. • OPTIONAL: • PROCEEDINGS PENDING IN THE EXECUTING MS • THE PERSON IS STATUTE-BARRED IN EXECUTING MS • FOR EXECUTION OF A SENTENCE, IF THE PERSON IS A NATIONAL OF THE EXECUTING MS AND IT UNDERTAKE TO EXECUTE THE SENTENCE ITSELF • TERRITORIALITY

  17. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • GUARANTEES TO BE GIVEN IN PARTICULAR CASES: • DECISION RENDERED IN ABSENTIA • LIFE SENTENCE PENALTY • EAW FOR PROSECUTION, IF THE PERSON IS A NATIONAL OF THE EXECUTING MS, THAT HE/SHE WILL BE SENT BACK TO SERVE THE SENTENCE.

  18. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • FORM, CONTENT AND PROCEDURE: • MULTILINGUAL STANDARD FORM • INFORMATION: name of the person, issuing judicial authority, nature of the offence, penalty, description of the facts. • TRANSMISSION: directly to the executing judicial authority, or by an alert in the Schengen Information System. By any secure means of transmission.

  19. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • SURRENDER DECISION: • The person shall be kept in custody • If the person consents: 10 DAYS. • Otherwise: MAX. 60 DAYS AFTER DETENTION (possibility to extend another 30 days). • TIME LIMITS FOR THE SURRENDER: • AS SOON AS POSIBLE, AND NO LATER THAN 10 DAYS AFTER THE DECISION IS MADE.

  20. LEGAL ASSISTANCE IN CRIMINAL MATTERS AND MUTUAL RECOGNITION • OTHER CONCRETIONS OF THE MUTUAL RECOGNITION PRINCIPLE: • COUNCIL FRAMEWORK DECISION OF JULY 22, 2003 ON THE EXECUTION OF SEARCH ORDERS. • COUNCIL FRAMEWORK DECISION OF FEBRUARY 24, 2005 ON THE APPLICATION OF MUTUAL RECOGNITION OF ECONOMIC SANCTIONS. • IN NEGOTIATION: THE EUROPEAN EVIDENCE WARRANT AND FM FOR THE ENFORCEMENT OF CUSTODIAL SENTENCES IN THE EU.

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