Getting Ready for MLA: Drafting Regulations, "Fudging" the Provisions in Already Existing Law, and Forum Selling Bryane Michael, Linacre College

Background Many accession and ENP countries “importing” law  acquis + intl conventions  UN Convention and ETS 182  but have national laws already in place  and regulations “around” those laws Adopted ETS 182 but no implementing provisions  cant move suspects outside jurisdiction  can’t call over to CU or POL of another country  Germans cant just tell our courts what to do  Cant just show up and drive around with police  no money to protect witnesses How can countries “get around” the laws?  will of people versus intl commitment Your co-operation is against our laws

Using Existing Laws to Enable ETS 182 Writing admin law around legislation For example, Balkania Law on Internal Affairs allows “employees who perform activities directly linked with police or operational matters” engage in investigations. Prima facia – no foreigners are allowed to help Just write admin Instruction from Minister such that “employees” can also be defined as foreign advisors Easy Way  Simply change the laws and regulations  but no money, know-how and not to mention politics of Parliament the newest temp “employee” of Balkania

When the Law (Legislation) is silent Most inability of law enforcement agencies to be pro-active about ETS 182 stems around positive rights  Not comfortable relying on Convention  will get in trouble if contact French police friends Ministers/Directors instructions can clarify when law completely silent art 34f “The Investigative Department is allowed to recruit on a contractual or on a pro- bono basis expert advice from a foreign country with the permission of the Director”

Example from Balkania Instruction on the Internal Affairs Unit of the Border Police CHAPTER IV: IMPLEMENTING THE LAW ON OMBUDSMAN AND THE ANTI-CORRUPTION LAW CHAPTER III: PROCEDURES FOR WORKING WITH EXPERTS FROM FOREIGN JURISDICTIONS BEFORE: Requests for MLA ignored AFTER: Procedure and disciplinary measures in place if fail to comply – international “advisors” now help with investigations and provide information from own service (subject to their own rules!)

New Rulemaking ETS 182 Article 17 – Cross- border observations Separate Customs Instruction on “Cross-border investigations”  mobile teams to report to Control Centre  Control Centre to report to foreign agency  foreign received information handed by Intel Unit  (still no entry of foreign LE officials) This co-operation structure has problems (addressed later)

The Resource Issue Parties shall not claim from each other the refund of any costs resulting from the application of this Convention = no co-operation The Article 5 Equation: EU Parties: Bring your own everything (translator, admin and logistics staff, expert staff, even sometimes paper and printers) Indeed, if you can leave stuff behind, it will be appreciated. A+ ENP: Don’t be proud, tell the team coming they need to BYOB.

The Memorandum of Understanding Even though ETS 182 gives right to “hearing by telephone conference”, former Socialist country would never “hear of it” But are comfortable with intl agreements So find partner countries where such exchanges useful and sign bilateral or multi-lateral agreements  in EE, usually must try first before adopting!  good practice and experience in working with these kinds of convention obligations  Indeed Art and 28 of ETS 182 allows for supremacy of these...

I’ve got a problem Art. 4 relies on inter-MoJ requests  rough in Byzantine admin structures of the accession/ENP world allows for bilateral agreements anyway back to the MOU But...  doesnt resolve inter-agency problem  Most accession/ENP set up inter- agency co-ordin bodies Intl Co-ordinating Bodies to do this Duplication is good  direct contact  require to inform Co-ordin  require Co-ordin to co-ordin with Co- ordin CU Pol CU Pol Co-ordin

The EU approach to Judicial Co-operation Eurojust case Serial Killer (19 victims, 3 countries) on 32 year killing spree! investigatory matters – evidence collection in ES, DE and FR prosecution – deciding jurisdiction truck drivers mischief 1. caught on candid camera 2. MLA request to Germany 3. EAW issued by Spanish Judge 4. Eurojust resolves jurisdictional issues

Forum Selling Forum Shopping – choosing most favorable jurisdiction to be tried in Forum Selling – arranging the intl case for arrest in forum most likely to prosecute quick and easy Customs cases are classic  but knowingly letting criminal out of jurisdiction is an offence  letting evidence out of jurisdiction impossible split the case into parts and try each  focuses on conspirators and accomplices within the jurisdiction  back to MOUs instead of “friendly settlement” fraud committed in country of departure receiving country’s Customs detects under- valuation

An Accession-ENP Approach to ETS 182 (and stuff like it) Continue “harmonisation” (of course) Dont try to bend the spoon  adopt regulatory instruments unlikely to be stricken down  most cases now have intl element  MOUs can bring in intl element No leapfrogging  Most signatories of 182 using it successfully already had it in place before ratification...  start now....