1. TAIEX SEMINAR JUDICIAL COOPERATION IN CRIMINAL MATTERS: TWENTY YEARS OF SHARING EU EXPERTISE 3 June, 2016 Dr. Anna Fiodorova Working group II EaP session From mutual legal assistance to the mutual legal recognition of judicial decisions – An EU approach – Case study B

2. Summary 1. General information about mutual recognition 2. European Convention on Extradition and European Arrest Warrant (EAW)

3. 1. General information about mutual recognition

4. FIRST AGREEMENTS Agreement between Denmark, Norway and Sweden regarding the recognition and enforcement of judgments in criminal matters 1948 Agreement between Denmark, Finland, Island, Norway and Sweden on the cooperation concerning the mutual assistance of the enforcement of judgments or decisions on fines, confiscation or compensation for litigation costs 1962 Treaty between Belgium, Luxembourg and the Netherlands on the execution of judicial decisions in criminal proceedings 1968

5. CONCEPT AND ITS DEVELOPMENT IN EU Cornerstone principle of the judicial cooperation “Free movement” of judicial decisions or the "fifth liberty" of the EU* Mentioned for the first time in 1999 in Tampere Conclusions Since 2009 part of the Treaty on the Functioning of the European Union (Articles 67(3) and 70) * As a continuation of four main liberties of the EU: free movement of persons, goods, services and capital.

6. MAIN FEATURES OF MUTUAL RECOGNITION Recognition and execution of judicial decisions of other EU Member State (MS) as its own ones As a general rule: direct contact between competent judicial authorities (although use of central authorities is also possible) In recognition and execution of some judicial decisions requirement of double criminality is limited (not necessary) Well-defined procedures (with deadlines for reply / execution) applicable in all EU MS

7. QUESTIONS AND ANSWERS What is necessary for the direct recognition and execution of judicial decision of one State by another State? Mutual trust. What does mutual trust mean? Confidence that other State applies rules of criminal procedure that corresponds to Rule of Law and respects fundamental rights. How is it possible to achieve mutual trust? By establishing that all participating States shall apply the same (at least minimum) procedural warranties.

8. PROCEDURAL WARRANTIES WITHIN THE EU (I)  Directive (EU) 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings  Directive (EU) 2016/343 of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings  Directive 2013/48/EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty  Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA  Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings  Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings  Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings  Commission Recommendation of 27 November 2013 on the right to legal aid for suspects or accused persons in criminal proceedings

9.  In the “pipe line”:  Draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings PROCEDURAL WARRANTIES WITHIN THE EU (II)

10. MUTUAL RECOGNITION INSTRUMENTS (I)  Directive 2014/42/EU of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union  Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters  Directive 2011/99/EU of 13 December 2011 on the European protection order  Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention  Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions

11. MUTUAL RECOGNITION INSTRUMENTS (II)  Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union  Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders  Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties  Council Framework decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence  Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States

12. 2. European Convention on Extradition and European Arrest Warrant (EAW)

13. EXTRADITION AND EAW Extradition Formalised procedure EAW Judicial decision of established form Comprehensive formalised procedure, including deadlines

14. Differences in action International alert DetectionArrest or no Extradition procedure Alert with EAW DetectionArrest or noSurrender Extradition EAW EXTRADITION AND EAW FROM THE PERSPECTIVE OF REQUESTED (EXECUTING) STATE

15. Difference in action Differences in action International alert DetectionArrest or no Extradition procedure Alert with EAW DetectionArrest or noSurrender Extradition EAW EXTRADITION AND EAW FROM THE PERSPECTIVE OF REQUESTING (ISSUING) STATE

16. DIFFERENCES IN ACTIONS Execution Extradition EAW Alert Extradition EAW Regulated by national legislator of requested State on the basis of general requirements established in bilateral/multilateral agreements, conventions. Regulated by national legislator of executing MS on the basis of comprehensive requirements and procedure established by the Framework Decision 2002/584/JHA. Regulated by national legislator of requested State on the basis of general requirements established in bilateral/multilateral agreements, conventions. Regulated by national legislator with the obligatory use of European Arrest Warrant form (annexed to the Framework Decision 2002/584/JHA).

17. Extradition Double criminality of the offences Punishable by custodial sentence or detention order for maximum period of at least one year Prison sentence or detention order for at least four months in requesting State EAW Punishable by custodial sentence or detention order for a maximum period of at least 12 months in EAW issuing EU MS Prison sentence or detention order for at least four months in EAW issuing EU MS OR SCOPE OR Verification of the double criminality only if legislation of executing EU MS foresees so. In any case, double criminality cannot be applied for the following offences… EXCEPTION: extradition for several offences and some of them punishable with lower punishment that foreseen above. NOT EXTRADITABLE offences: political, military

18. EXCEPTIONS FROM DOUBLE CRIMINALITY UNDER EAW The following offences if they are punishable in the issuing EU MS by a custodial sentence or a detention order for a maximum period of at least three years  Participation in a criminal organisation,  Terrorism,  Trafficking in human beings,  Sexual exploitation of children and child pornography,  Illicit trafficking in narcotic drugs and psychotropic substances,  Illicit trafficking in weapons, munitions and explosives,  Corruption,  Fraud, including that affecting the Financial interests of the European Communities,  Laundering of the proceeds of crime,  Counterfeiting currency,  Computer-related crime,  Environmental crime,  Facilitation of unauthorised entry and residence,  Murder, grievous bodily injury,  Illicit trade in human organs and tissue,  Kidnapping, illegal restraint and hostage- taking,  Racism and xenophobia,  Organised or armed robbery,  Swindling,  Racketeering and extortion,  Counterfeiting and piracy of products,  Forgery and trafficking of administrative documents  Forgery of means of payment,  Illicit trafficking in cultural goods, in hormonal substances and other growth promoters, in nuclear or radioactive materials, in stolen vehicles,  Rape,  Arson,  Crimes within the jurisdiction of the International Criminal Court,  Unlawful seizure of aircraft/ships,  Sabotage.

19. PROCEDURE ExtraditionEAW Written request and: a)the original or an authenticated copy of the judicial decision, b)a statement of the offences, c)a copy of the relevant enactments or statement of the relevant law, d)a description of the person claimed. Third protocol foresees simplified procedure (without the need of documents a, b and c) in case of sought of person for provisional arrest and if he/she consents to be surrendered and requested State agrees on that. European Arrest Warrant Translation into language of the requesting State / executing EU MS or other indicated by it. Channel: As a rule - Ministry of Justice, Diplomatic channel, Other on the basis of bilateral agreement. Channel: Directly to executing judicial authority (when the location of the requested person is known), Schengen Information System, Secure telecommunications system of the European Judicial Network, Interpol (when it is not possible to use SIS), Central judicial authority (if it foreseen by executing EU MS).

20. EAW PROCEDURE Sought person Gives consent to be surrendered Definitive decision within 10 days Non-authorisation of surrender Authorisation of surrender Does not give consent to be surrendered Definitive decision within 60 days Right to be heard by the executing judicial authority Authorisation of surrender Non-authorisation of surrender 10 days Surrender

21. If definitive decision cannot be taken within the foreseen deadline (10 or 60 days), it can be extended for further 30 days. If the surrender is prevented by circumstances beyond the control of any of the EU MS, the executing and issuing judicial authorities shall agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. Upon expiring deadlines for surrender, the person held in custody has to be released. EAW PROCEDURE

22. SOME STATISTICS ON EAW PROCEDURE Last available data is from 2013, not all MSs provided the figures.

23. SOME STATISTICS ON EAW PROCEDURE Last available data is from 2013, not all MSs provided the figures.

24. ExtraditionEAW Non bis in idem* Amnesty Lapse of time for the criminal prosecution or punishment according to the law of the either requested or requesting State. According to the law of the executing EU MS, person under EAW may not be held criminally responsible for the acts on which the arrest warrant is based due to his/her age. MANDATORY NON-EXECUTION OF REQUEST *The Convention establishes some special rules in case of final judgment taken by a third State.

25. ExtraditionEAW Offence committed in whole or in part in the territory of the requested State / executing EU MS or in a place treated as its territory. Pending process for the same offence in requested State / executing EU MS or it has been committed outside its territory and its law does not allow prosecution in such cases. Competent authority of the requested State / executing EU MS has decided either not to institute or to terminate procedure in respect of the same offence(s). Judicial decision in absentia (conditions are not the same for extradition and EAW). Person is national of requested State. At the request of the requesting State it shall submit the case to its competent authorities. Person requested for execution of custodial sentence or detention order is staying in, or is a national or a resident of the executing EU MS and it undertakes steps to execute the custodial sentence or detention order in accordance with its domestic law. OPTIONAL NON-EXECUTION OF REQUEST (When it is foreseen in national legislation of requested State / executing EU MS)

26. ExtraditionEAW Lapse of time for the criminal prosecution or punishment according to the law of the executing EU MS and the acts fall within the jurisdiction of that EU MS under its own criminal law. Capital punishment without assurance that death penalty will not be applied. This provision is not applicable to states that have ratified Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty, i.e. all states of the Council of Europe except Russia. Requested person has been judged for the same offence by a third State and the sentence has been served, is currently being served or may no longer be executed. Lack of double criminality for offences other than those of the list mentioned before. OPTIONAL NON-EXECUTION OF REQUEST (Explicitly foreseen in national legislation of requested State / executing MS)

27. POSSIBLE ADDITIONAL CONDITIONS OF SURRENDER UNDER EAW If the offence is punishable by custodial life sentence or life-time detention order, the execution of the EAW may be subject to the condition that the issuing EU MS has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency that could be applied to surrendered person. Where a person is a national or resident of the executing EU MS a surrender may be subject to the condition that the person, after being heard, is returned to the executing EU MS to serve there the custodial sentence or detention order passed against him in the issuing EU MS.

28. RULE OF SPECIALITY ExtraditionEAW General rule Rule of speciality: a person may not be prosecuted, sentenced or otherwise deprived of liberty for an offence committed prior to surrender and is not one for which he or she was surrendered. Exceptions When the person having had an opportunity to leave the territory of State / EU MS to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it. Consent of the requested State. EU MS has notified consent for prosecution of person surrendered from its territory for other offences, but only in those EU MSs that have made the same notification. EU MS always maintains a possibility that its judicial authorities will refuse prosecution for other offences in particular case.

29. ExtraditionEAW The offence is not punishable by a custodial sentence or detention order. The criminal proceedings do not give rise to the application of a measure restricting personal liberty. When the person could be liable to a penalty or a measure not involving the deprivation of liberty (but it may give rise to a restriction of his or her personal liberty). When the person consented to be surrendered and renounced the right to speciality rule (in general). When the person has expressly renounced right to the speciality rule with regard to specific offences preceding his or her surrender. Consent of executing judicial authority. PROSECUTION FOR OTHER OFFENCES

30. RE-SURRENDER TO STATE OTHER THAN REQUESTED / EXECUTING ONE ExtraditionEAW To any other State Consent of the requested State / executing EU MS. When the person having had an opportunity to leave the territory of State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it. -

31. RE-SURRENDER TO EU MS OTHER THAN EXECUTING ONE ExtraditionEAW -EU MS has notified consent for re-surrender to other EU MS that have made the same notification. EU MS always maintains a possibility that its judicial authorities will refuse prosecution for other offences in particular case. Consent of surrendered person. The requested person, having had an opportunity has not leave the territory of the EU MS of surrender within 45 days of his final discharge, or has returned to that territory after leaving it. Consent of executing judicial authority.

32. Dr. Anna Fiodorova anna.fiodorova@uc3m.esanna.fiodorova@uc3m.es