CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE EUROPEAN JUDICIAL TRAINING NETWORK BARCELONA, 29 – 30 September 2016   Daniel BERNARD Federal Magistrate Federal Prosecutor Office of Belgium daniel.bernard@just.fgov.be

I - GENERAL INTRODUCTION CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE I - GENERAL INTRODUCTION National investigation 1st stage : Need to collect evidences in order to link a suspect to criminal facts = gathering of evidences – sometimes abroad Application of the national legislation, international instruments and the legislation of the requested state (locus regit actum) 2d stage : Presentation to the Court of the gathered evidences (on national and international level) in order to prosecute the suspect = admissibility of evidences Depends only of the national legislation and jurisprudence

CROSS BORDER GATHERING EVIDENCE CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE PLAN OF THE PRESENTATION BEST PRACTICES IN CROSS BORDER GATHERING OF EVIDENCES 1. Regarding the requested investigation How do you want that the requested state collects the evidences ? 2. Regarding the way of requesting the investigation How do you want to request the investigation measures to the requested state ? 3. Regarding the  international legal framework to use Which international legal framework do you want to use ? 4. Regarding the execution of the request in the requested state How will the requested state execute your request and what can you do ?

How do you want that the requested state collects the evidences ? CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE 1. Regarding the requested investigation in order to collect the evidence How do you want that the requested state collects the evidences ? Depends of the nature of the evidence you need - hearings of suspect(s), victims, witness(es), expert(s) - eventually by video-conference - cross examination/confrontation of suspect/witness - eventually by video-conference - searches : houses, cars, hospitals, public administration, firms, lawyer office, … - bank investigations : identification, historic, freezing - telephone investigation : identification, historic, wire taps - special police technics : observation, controlled deliveries, infiltration, ... - gathering of information : police data base, criminal register, ongoing investigation, … - DNA, fingerprints - search and arrest of suspect(s) - etc …

CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE REQUESTED INVESTIGATION MEASURE 1. Legality : Is the requested measure legal in your own legal system ? Is the requested measure legal and feasible in the requested state ? 2. Proportionality : Is the requested measure proportional to the purpose of your investigation ? e.a. : police capacity, costs (bank data collect, phone data collect, ... ) 3. Time frame : Is the proposed time frame to collect the evidence (e.a. urgency) realistic regarding the legal rules of the requested state ?

CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE REQUESTED INVESTIGATION MEASURE HOW TO ANSWER THIS QUESTIONS 1. Check your own legislation / jurisprudence / practices (consult colleagues) 2. Collect the information regarding the legal system / practices of the requested state BEFORE to send the international request for legal assistance HOW ? → direct contact (if possible) → check the appropriated website : EJN, Eurojust, EU, Council of Europe, …. → use of facilitators : EJN or other networks, liaison magistrate if any, liaison officers if any, Eurojust

CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE INTERNATIONAL INSTRUMENT TO USE 1. LETTER OF REQUEST (will be replaced by EIO) 2. FREEZING ORDER (will be replaced by EIO) 3. JOINT INVESTIGATION TEAM 4. EUROPEAN ARREST WARRANT / EXTRADITION REQUEST 5. NEAR FUTURE (MAY 2017) : EUROPEAN INVESTIGATION ORDER

1. LETTER OF REQUEST (will be replaced by the EIO) CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE INTERNATIONAL INSTRUMENT TO USE 1. LETTER OF REQUEST (will be replaced by the EIO) → Form and countain : see article 14 of the European Convention of 20/04/1959 → Provide in annexes any relevant information facilitating the execution (easy check : see if you could your self execute what you ask in your LoR) → Use professional translators , not “Google translators”. ( a poor qualtity translation = main obstacle for the execution) → If doubt : consult the requested judicial authority before sending the LoR or use the facilitators (national experts, EJN, Eurojust, …. ) → Complete contact details in order to facilitate direct contact Best practice for the requesting and requested authority : exchange of the draft of the letter of request

2. FREEZING ORDER (will be replaced by the EIO) CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE INTERNATIONAL INSTRUMENT TO USE 2. FREEZING ORDER (will be replaced by the EIO) → check the implementation of this tool in the requested EU Member State → not mandatory : can be asked by letter of request - but recommended → use the last updated form (available on the EJN website : judicial library – forms) → use the support of your national experts : Central Offices of assets recovery

3. JOINT INVESTIGATION TEAM CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE INTERNATIONAL INSTRUMENT TO USE 3. JOINT INVESTIGATION TEAM → Proportionality : serious crime → When limited efficiency of exchange of letters of requests : To many LoR or need for quick reaction (interception telecommunication, freezing bank accounts, … ) → In general, presupposes the existence of simultaneous criminal investigations in, at least, 2 (Member) States → Check the relevant legal basis (JIT with EU MS, COE MS, non European States) → use the support of your national JIT experts and JIT Secretariat → use the support of EUROJUST and EUROPOL when appropriate (not mandatory) → do not forget to decide together who will prosecute who, in each State member of the JIT

CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE LEGAL FRAMEWORK TO USE → Bilateral agreements → Regional international conventions e.a. Benelux, Schengen, Prüm, Scandinavian countries, East European countries, … → European Union conventions 29.05.2000 Convention → Council of Europe conventions 20.04.1959 Convention and additional Protocols →United Nations Conventions

BEST PRACTICES REGARDING THE LEGAL FRAMEWORK TO USE CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE LEGAL FRAMEWORK TO USE → use of the relevant legal framework(s) and check ratification / implementation → send it through the relevant channel of transmission - Inside EU : don’t missuse the Central Authorities – main rule is direct transmission between judicial authorities → in urgent cases : send signed advanced copy of the LoR to the executing authority if already identified → use of facilitators : EJN or other networks, liaison magistrate if any, liaison officers if any, Eurojust Advice : use only ONE facilitator in the same time to avoid overlaps OTHERWISE …

BELGIUM MEMBER STATE MIN J COSC EUROJUST Office Office BE MS PG CP EJN Reference prosecutor URGENCY PC EJN OCC PPO ENCS FP ? CP EJN MS PC EJN IJ Competent Authority MS COSC ? LO MS LO BE WebSite EJN POL MS POLICE SPOC EUROPOL Office Office LO BE OL EM

(Document of the Council of the EU ref. 11233/14 of 27.06.2014) CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE FACILITATOR TO USE EUROJUST or EJN ? On national level → indications : Belgium → directives : Sweden and Spain → law : Romania Eurojust & EJN → « joint task force paper » of 06/05/2014 (Document of the Council of the EU ref. 11233/14 of 27.06.2014)

BEST PRACTICES REGARDING THE FACILITATOR TO USE EUROJUST or EJN ? CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE FACILITATOR TO USE EUROJUST or EJN ? Eurojust & EJN « joint task force paper » of 06/05/2014 1. What is the EJN and what can the EJN do for you? 2. What is Eurojust and what can Eurojust do for you? 3. What is the role of the ENCS? 4. If you are not sure which one to contact It does not matter because the National Desks of EUROJUST and the EJN Contact Points can easily liaise Therefore there is no need to address both entities with the same problem.

BEST PRACTICES REGARDING THE GATHERING OF THE EVIDENCES CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE GATHERING OF THE EVIDENCES Application of the law of the requested State : “LOCUS REGIT ACTUM” => limited influence of the requesting State 1. BEST PRACTICES FOR THE REQUESTING STATE → knowledge of the particularities of the legal system of the requested state some particularities good to know : in some countries, role of the investigating judge, main role of the police, common law versus continental law, need for judicial order for some requests (e.a. house searches) → check the compatibility with your national rules regarding admissibility → request the formalities necessary in your legal system : presence of lawyer, oath or not, …) → use of possibilities for the requesting authorities to assist to the execution → if LoR sent to several States, use the support of EUROJUST to coordinate the execution in each State (Operational coordination centre) → use of facilitators in order to speed up execution of the LoR  

BEST PRACTICES REGARDING THE GATHERING OF THE EVIDENCES CROSS BORDER GATHERING EVIDENCE “BEST PRACTICES” IN MUTUAL LEGAL ASSISTANCE BEST PRACTICES REGARDING THE GATHERING OF THE EVIDENCES 2. BEST PRACTICES FOR THE REQUESTED STATE → to accept to start execution of urgent LoR on the basis of signed advanced copy → to send an acknowledgement of receipt with complete information regarding the executing authority : identification, contact details, file reference → to inform as soon as possible the requesting state if need of additional information or if any difficulty in the execution → to make all efforts in order to guarantee the admissibility of the evidence in the requesting State → to execute the LoR in a reasonable time frame

Thank you for your attention Daniel BERNARD Federal Magistrate Federal Prosecutor Office of Belgium daniel.bernard@just.fgov.be