1 Substantive criminal law and mutual recognition Hans G. NILSSON, Jur Dr h.c. Head of Division Criminal justice Council of the European Union

2 Programme of Measures Commission Communication 26/ OJ C 12/10, –Strengthen cooperation –Enhance protection of individual rights –Rehabilitating offenders –Legal certainty –Rapid All stages criminal proceedings

3 Programme of Measures 2.Enforcement of pre-trial orders 2.1.Orders concerning the keeping of evidence and freezing of assets and freezing of assets Orders for the purpose of obtaining evidence 2.1.2Interim measures with a view to confiscation or to restitution to victims 2.2.Orders relating to persons Arrest warrants Non-custodial supervision measures 2.3.Taking account of decisions to prosecute taken in other Member States

4 Programme of Measures 3.Sentencing 3.1.Prison sentences Recognition and immediate enforcement of a final sentence delivered in a Member State in respect of a national of another Member State Transfer of persons intent on fleeing justice after they have been finally sentenced Transfer of sentenced persons in the interests of social rehabilitation. 3.2.Fines 3.3.Confiscation 3.4.Disqualifications and similar sanctions

5 A PARADIGM- SHIFT? AREA COOPER- ATION SALUT/HELLO

6 Gözutok/Brügge C- 187/01 The Court said (p 33) The Court said (p 33) « In those circumstances, whether the ne bis in idem principle … is applied to procedures whereby further prosecution is barred (regardless of whether a court is involved) or to judicial decisions, there is a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied ».

7 Link with harmonisation MR: (Programme of Measures) European Arrest Warrant European Arrest Warrant Freezing of Assets Freezing of Assets Financial Penalties Financial Penalties Traffic Fines Traffic Fines … etc. … etc.Harmonisation Conventions (PIF) Conventions (PIF) Joint Actions (Racism & Xenophobia, Confiscation) Joint Actions (Racism & Xenophobia, Confiscation) Framework Decisions : Framework Decisions : –Euro –Trafficking in Human Beings –Drugs –Racism & Xenophobia –Terrorism –Cyber Crime Civil and Criminal MR vs Harmonisation

FD 2003 /577/JAI First FD link with EAW 22 July 2003 First FD link with EAW 22 July 2003 secure evidence; seize easily movable property secure evidence; seize easily movable property freezing order; property that could be subject to confiscation or evidence freezing order; property that could be subject to confiscation or evidence property 1990 Convention property 1990 Convention proceeds of an art 3 offence proceeds of an art 3 offence evidence produced as evidence evidence produced as evidence 8

Procedure direct transmission direct transmission without any further formality required without any further formality required in the same way as for a freezing order of your own country in the same way as for a freezing order of your own country for evidence: not contrary to fundamental procedures; observe formalities of procedure for evidence: not contrary to fundamental procedures; observe formalities of procedure within 24 hours within 24 hours 9

Procedure few grounds for non recognition: certificate related; immunity or privilege; ne bis in idem; double criminality (except 32 cat offences) few grounds for non recognition: certificate related; immunity or privilege; ne bis in idem; double criminality (except 32 cat offences) subsequent MLA or confiscation requests subsequent MLA or confiscation requests legal remedies legal remedies reimbursement reimbursement 10

assessment unwieldy unwieldy practitioners preferred MLA based on 1990 Convention practitioners preferred MLA based on 1990 Convention not exclusive instrument not exclusive instrument COM (2008) 885 final 22/12/2008 COM (2008) 885 final 22/12/ MS not transmitted info to COM 8 MS not transmitted info to COM implementation « not satisfactory » « numerous omissions and misinterpretations » implementation « not satisfactory » « numerous omissions and misinterpretations » 11

FD 2006/783/JAI implementation of MR to confiscation implementation of MR to confiscation all kinds of confiscation orders; final penalty or measure imposed by a court following proceedings in relation to a criminal offence or offences, resulting in the definitive deprivation of property all kinds of confiscation orders; final penalty or measure imposed by a court following proceedings in relation to a criminal offence or offences, resulting in the definitive deprivation of property 12

confiscation at least 7 grounds for non execution at least 7 grounds for non execution 5 possibilities of postponement 5 possibilities of postponement similar issues like in all other FD on mutual recognition similar issues like in all other FD on mutual recognition 13

assessment report COM COM (2010)428 final report COM COM (2010)428 final based on 20 MS based on 20 MS degree of implementation not satisfactory but for those that did it generally satisfactory degree of implementation not satisfactory but for those that did it generally satisfactory additional grounds of non recognition additional grounds of non recognition 14

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