1. Slide 1/75 © copyright Standard training programme in judicial cooperation in criminal matters within the European Union Version: 3.0 Last updated: 20.12.2012 The European Judicial Training Network With the support of the European Union

2. Slide 2/75 © copyright (logo of the training organiser) Training organised by (name of training organiser) on (date) at (place) Title (of the training) Version: 2.0 Last updated: 31.08.2009 The European Judicial Training Network With the support of the European Union

3. Slide 3/75 © copyright Module 7 The pre-trial stage and obtaining evidence (part II): specific procedures according to types of investigative measure Version: 3.0 Last updated: 20.12.2012

4. Slide 4/75 © copyright Introduction > Module 7: Obtaining evidence (II) Module 6 = cross-cutting issues and general procedure for obtaining evidence Module 7 = specific procedures for different investigative measures  Only rules which depart from the general procedure

5. Slide 5/75 © copyright Contents > Module 7: Obtaining evidence (II) 1.Banking information 2.Interception of telecommunications 3.Criminal records 4.Freezing of assets 5.Hearing and appearance in court of witnesses 6.Hearing and appearance in court of an accused person 7.Searches 8.Cross-border surveillance and hot pursuit 9.Infiltration and covert investigations

6. Slide 6/75 © copyright 1. Banking information > Module 7: Obtaining evidence (II) > 1. Banking information 1.1. Introduction Legal instruments: 2001 Protocol to the 2000 Conv., Articles 1-4 + Framework Decision on the European evidence warrant (from January 2011) Fiche Belge: 4.03

7. Slide 7/75 © copyright 1. Banking information > Module 7: Obtaining evidence (II) > 1. Banking information 1.1. Introduction Type of measure: Information on bank accounts: identifying a person’s accounts in any bank Information on banking transactions: information about an account and transactions during a limited period in the past Monitoring banking transactions: monitoring transactions from a specific time

8. Slide 8/75 © copyright 1. Banking information > Module 7: Obtaining evidence (II) > 1. Banking information 1.2. Scope In the 2001 Protocol: 1.2.1. Information on bank accts: limitation to serious crimes (4 years in the requesting State and 2 years in the requested State, Europol’s competence or protection of the financial interests of the Community) 1.2.2. Information on banking transactions: no limitations 1.2.3. Monitoring of banking transactions: limitations provided for by the law of the requested State In the FD on the European evidence warrant: no limitations

9. Slide 9/75 © copyright 1. Banking information > Module 7: Obtaining evidence (II) > 1. Banking information 1.3. Double criminality 1.2.1. Information on bank accts: same procedure as for searches and seizures 1.2.2. Information on banking transactions: same procedure as for searches and seizures 1.2.3. Monitoring of banking transactions: full application of double criminality 1.4. Mandatory information Besides the information required in all mutual assistance requests, the 2001 Protocol stipulates obligations to indicate why the information is needed

10. Slide 10/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 1. Banking information 2.1. Introduction Specific legal instrument: Framework Decision 2009/315/JHA of 26 February 2009 (criminal records) Implemented by Council Decision 2009/316/JHA of 6 April 2009 (European Criminal Records Information System) (ECRIS) Relevant ‘Fiche Belge’: 405

11. Slide 11/75 © copyright > Module 7: Obtaining evidence (II) > 2. Criminal records 2.2. Type of measure: Transmission of information extracted from the criminal records of a Member State. The request may be made in the context of criminal proceedings, for example to get an idea, at the investigation stage, of the profile of the person concerned or, at the judgment stage, in order to apply the rules on reoffending. National laws on criminal records vary greatly which offences are recorded? legal and natural persons? only final judgments? only criminal convictions? 2. Information extracted from criminal records

12. Slide 12/75 © copyright > Module 7: Obtaining evidence (II) > 2. Criminal records 2.3. Centralisation of information on convictions in the Member State of nationality The challenge is not only how to obtain the information, but also knowing which State to obtain it from.  the State where conviction took place (= the State of conviction) notifies it to the State of the convicted person’s nationality (= State of nationality).  State of nationality (central authority) must retain the data in question to be able to transmit it to the central criminal record of another Member State requesting the information. 2. Information extracted from criminal records

13. Slide 13/75 © copyright > Module 7: Obtaining evidence (II) > 2. Criminal records The principle of centralising convictions is coupled with an interconnection of the criminal records  ECRIS (European Criminal Records Information System), in operation since April 2012. no direct access to criminal records: an intervention will be required each time in the Member State of conviction Value-added: electronic exchange, standardisation  obligation for Member States (of conviction and nationality) to use the equivalence tables (offence and penalty) to transmit convictions. 2. Information extracted from criminal records 2.4. The ECRIS system: interconnection and standardisation

14. Slide 14/75 © copyright > Module 7: Obtaining evidence (II) > 2. Criminal records 2.5. Future developments Establishment of a ‘European index’ for nationals of third countries convicted in one of the Member States (to identify the State of conviction). 2. Information extracted from criminal records

15. Slide 15/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records 2.6. Transmission channel Exception to the rule of direct contacts: here, everything goes via a central authority in each Member State and transmission from one State to another is done electronically via ECRIS National situation Indicate here the contact details of the central authority for your State

16. Slide 16/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records 2.7. Form of the request Transmission of the request and the response between the central authority of the requesting State and that of the requested State is, however, standardised and electronic: the information required is laid down by Framework Decision 2009/315/JHA. 2.8. Time limits: 10 days max National situation Indicate here how to ask your central authority to request consultation of the criminal records of another Member State.

17. Slide 17/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records 2.9. Depending on the person involved 2.6.1. EU nationals The requesting authority requests the State of nationality and obtains information on convictions handed down: in the requested State (= the State of nationality here) in any other EU Member State (immediate notification under the Member State of nationality principle) in any Member State of the Council of Europe (notification once per year under the Member State of nationality principle) where applicable, in another Member State, but this depends on relations between that State and the requested State.

18. Slide 18/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records 2.6.2. National of a (non-EU) third country Possibility of directly addressing the State of nationality, but legal framework for cooperation uncertain If the person is resident in the EU, advisable to contact the Member States  Work underway to create, potentially, a European index of third country nationals convicted in EU territory  to determine which Member State to contact

19. Slide 19/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records Practical example (part I) X, of German nationality, is convicted in Italy of drugs trafficking. This conviction is entered into the Italian criminal records database. Pursuant to Article 22 of the 1959 Convention and Article 2 of Decision 2005/876/JHA (under the new procedure, pursuant to Article 4(2) of Framework Decision 2009/315/JHA), the Italian central authority notifies the conviction to the German central authority. The effect of this notification depends on national law and practice in Germany. [ex_mod7_V10_cas_1.1]

20. Slide 20/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records Practical example (part II) After having served his sentence for the offences committed in Italy, X leaves and goes to live in Slovenia. An investigation is opened by a Slovenian prosecutor against X for other drugs trafficking offences committed in Slovenia. As part of that investigation the Slovenian prosecutor wishes to assess the danger posed by the person concerned; he contacts his central authority and asks to consult the German criminal records database (Member State of nationality). [ex_mod7_V10_cas_1.2]

21. Slide 21/75 © copyright 2. Information extracted from criminal records > Module 7: Obtaining evidence (II) > 2. Criminal records Practical example (part III) The Slovenian central authority transmits the request to the German central authority and receives a response within 10 days. The Slovenian central authority is assured of receiving, via the German central authority, the information relating to the conviction handed down in Italy. At the trial stage  this information will have to be taken into account by the Slovenian judge in order to correctly apply the rules on repeat offences (see Module 8) [ex_mod7_V10_cas_1.3]

22. Slide 22/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.1. Introduction Specific legal instrument: Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence Applicable since 2 August 2005 BUT: Not all Member States have yet taken steps to implement it (as at 31 Dec 2012, Greece, Italy, Luxembourg and Portugal had not) Rarely used in practice Does not replace mutual legal assistance (at the discretion of the requesting or issuing authority)

23. Slide 23/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.1. Introduction Relevant ‘Fiche Belge’: 4.01, 4.02. National situation List here references from your national legislation implementing the FD

24. Slide 24/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.2. Purpose of the measure FD on the freezing of property covers: obtaining evidence (pre-trial) seizure for the purposes of confiscation (during trial) Only obtaining evidence is discussed here (see Module 10 for confiscation) = preventive seizure, provisional measure in urgent cases

25. Slide 25/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.3. Double criminality Rules the same as for the European arrest warrant: In principle, DC is maintained But in reality largely abolished, provided the following 2 conditions are met: o offence punishable by a custodial sentence of at least 3 years o included in a list of 32 categories of offences. NB: if verification of DC does not take place, this ‘contaminates’ the mutual legal assistance that will be used then to transfer this property to the issuing State  no longer verification of DC

26. Slide 26/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.4. Form Original decision + certificate (annexed to the FD) Only the certificate must be translated 3.4. Transmission of the order and the certificate In principle, direct contacts between local judicial authorities, except for the United Kingdom and Ireland (central authorities)  In reality, some other States require going via a central authority

27. Slide 27/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.4. Transmission of the order and the certificate How do you identify the authority competent (locally) to receive the certificate and order? Atlas does not yet cover this point (see Module 4). See Annex C: Table of implementation of the FD, indicating the authorities competent to receive the order and the certificate National situation Indicate here the type of judicial authority competent in your State: to issue an order freezing property to receive and execute a certificate and an order

28. Slide 28/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.5. Execution of the order  Within 24 hrs ‘if possible’  should be at least the standard time limit under implementing national legislation 3.6. Grounds for refusal Exhaustive list of grounds for refusal: Certificate that is missing, incomplete or clearly does not correspond to the order Privilege or immunity under the law of the executing State Ne bis in idem clearly infringed Double criminality if applicable + no exception for fiscal offence

29. Slide 29/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.8. Grounds for postponing execution  cf. Art. 9 of the FD 3.9. Legal remedies in the executing State Cannot be suspensive (emergency measure)

30. Slide 30/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.10. Transfer of frozen property 1.The certificate must therefore, in principle, be accompanied by a request for transfer: Request subject to the mutual legal assistance procedure However, the transfer request cannot be subject to verification of double criminality if this was also prohibited for consideration of the freezing order 2. It is also possible to not attach a request for mutual assistance aimed at transferring the property. In this case, it is necessary to indicate in the certificate when this mutual assistance request may be submitted. In such cases, the issuing authority loses the benefit of waiving double criminality for consideration of the transfer request.

31. Slide 31/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.11. Practical support: asset recovery authorities Decision 2007/845/JHA: Each Member State must have set up or designated a ‘ national Asset Recovery Office, for the purposes of the facilitation of the tracing and identification of proceeds of crime and other crime related property which may become the object of a freezing, seizure or confiscation order made by a competent judicial authority in the course of criminal or, as far as possible under the national law of the Member State concerned, civil proceedings’ Brought together within an informal network, CARIN (Camden Asset Recovery Inter-Agency Network), whose secretariat is based at Europol.

32. Slide 32/75 © copyright 3. Freezing property > Module 7: Obtaining evidence (II) > 3. Freezing property 3.11. Practical support: asset recovery authorities Cooperate through police cooperation. Their work is very useful in the judicial phase in identifying property to be frozen, gaining a better understanding of the national system of the Member State with which cooperation is required and addressing a number of practical issues, such as procedure for the frozen property. National situation Indicate here the asset recovery office for your State and its contact details

33. Slide 33/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.1. Introduction Legal instruments: Articles 3(2) and 8-12 of the 1959 Convention Articles 10 and 11 of the 2000 Convention Fiches Belges : 6.01, 6.13. 4.2. Purpose of the measure There are various procedures, depending on the case: Hearing/appearance of the witness (whether or not in custody) or expert in the territory of the requesting State Hearing/appearance of the witness or expert in the territory of the requested State, including hearing via videoconference and telephone conference Procedure applicable in the Member State of transit in the event of transfer

34. Slide 34/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.3. Hearing/appearance of the witness or expert in the territory of the requesting State 4.3.1. General rule of immunity (specialty) 4.3.2. If the witness is at liberty: No specific rule, other than costs 4.3.3. If the witness is in custody Transfer for the purposes of investigation (Article of the 1959 Conv.) Broad grounds for refusal Consent may be required

35. Slide 35/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance in court in the territory of the requested State of a witness or expert (who is already present in the territory of that State) 4.4.1. General rule: No penalty against the person refusing to appear 4.4.2. Hearing without specific technical means No specific rule. The authorities must agree on the arrangements for the hearing, including the participation of agents and judicial officers

36. Slide 36/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3. Hearing by video or telephone conference Articles 10 and 11 of the 2000 Conv. 4.4.3.1. Common rules Only if the use of such technical means is not contrary to the fundamental laws of the requested State

37. Slide 37/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State ( 4.4.3.1. Common rules) A judicial authority of the requested Member State shall be present during the hearing, where necessary assisted by an interpreter Measures for the protection of the person to be heard shall be agreed, where necessary, between the competent authorities of the requesting and the requested Member States The hearing shall be conducted directly by, or under the direction of, the judicial authority of the requesting Member State Assistance of an interpreter

38. Slide 38/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State (4.4.3.1. Common rules) The person to be heard may claim the right not to testify which would accrue to him or her under the law of either the requested or the requesting Member State the requesting Member State applies its national law on refusal to testify and on false statements all costs (equipment, interpreter, remuneration of expert) shall be refunded by the requesting State unless the requested State waives the refunding of some or all of these expenses

39. Slide 39/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3.2. Hearing by videoconference The consent of the person concerned is not a prerequisite The request for mutual assistance must indicate why appearance in person is not suitable or not possible A report must be drawn up

40. Slide 40/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3.2. Hearing by videoconference National situation Indicate here whether hearing by videoconference is: expressly provided for in your national law not expressly provided for but possible would be contrary to the fundamental principles of your law Also indicate, if applicable, how to find out more about using the technical means available.

41. Slide 41/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Hearing/appearance of the witness or expert in the territory of the requested State 4.4.3.3. Hearing by telephone conference The consent of the person is necessary and must be included in the request for mutual assistance. National situation Indicate here whether hearing by telephone conference is: expressly provided for in your national law not expressly provided for but possible would be contrary to the fundamental principles of your law Also indicate, if applicable, how to find out more about using the technical means available.

42. Slide 42/75 © copyright 4. Hearing of witnesses > Module 7: Obtaining evidence (II) > 4. Hearing of witnesses 4.4. Procedure in the Member State of transit Procedure laid down by Article 11 of the 1959 Convention but unclear: Form of the request: a mutual legal assistance request may be necessary (uncertain) General grounds for refusal apply Article 11 explicitly refers to the channel of the ministries of justice: the rule of direct contact between judicial authorities should also prevail here. any State may refuse to grant transit of its own nationals (anachronistic in light of the EAW) If it has agreed to the transit, the Member State of transit must keep the person in custody during travel

43. Slide 43/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.1. Introduction Specific instruments: - Articles 9, 10 and 11 of the 2000 Convention Relevant ‘Fiche Belge’ : 6.10, 6.11 and 6.12 Purpose of the measure: Hearing in the territory of the requested State of a person being prosecuted by the requesting State Appearance in court in the territory of the requested State of the accused already in custody in the requesting State

44. Slide 44/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.2. Hearing in the territory of the requested State of a person being prosecuted by the requesting State Not always a European arrest warrant: Execution of the EAW is refused EAW not issued because it is not prudent or not possible

45. Slide 45/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.2. Hearing in the territory of the requested State of a person being prosecuted by the requesting State 5.2.1. Hearing without specific technical means No rule provided for. 5.2.2. Hearing by videoconference Possibility of using the procedure provided for witnesses but the requested State is always free to refuse the consent of the person concerned is required. reference to national laws and the European Convention on Human Rights 5.2.3. Hearing by telephone conference Nothing provided for, obstacles as regards rights of the defendant

46. Slide 46/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.3. Appearance in the territory of the requesting State by the person in custody in the territory of the requested State Article 11 of the 1959 Convention on mutual legal assistance provides for the temporary transfer of a person in custody in the territory of the requested State to the requesting State in order to be heard as part of proceedings against them. Article 18 of FD 2002/584/JHA of 13 June 2002 on the EAW also authorises this, but does not stipulate conditions.

47. Slide 47/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.3. Appearance in the territory of the requesting State by the person in custody in the territory of the requested State -Grounds for refusal (including the consent of the person) -Costs borne by the requesting State -General rule of immunity for acts not referred to the transfer request

48. Slide 48/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.4. Appearance in court in the territory of the requested State of the accused already in custody in the requesting State Article 9 of the 2000 Convention: requesting State A wishes an accused person, in custody in its own territory, to be transferred to the territory of requested Member State B as part of an investigative measure requested by State A but which must take place in State B. Example: a Hungarian judicial officer wishes, as part of his investigation, to reconstruct certain events that took place in Germany. The Hungarian judicial officer wishes the accused, who is in custody in Hungary, to be present at this reconstruction.

49. Slide 49/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.4. Appearance in court in the territory of the requested State of the accused already in custody in the requesting State An agreement containing the transfer arrangements is necessary The period in custody in the territory of the requested Member State is deducted The requested State has an obligation to keep the person in custody Travelling and custody expenses are borne by the requesting State General rule of immunity (reference to Art. 12 of the 1959 Convention)

50. Slide 50/75 © copyright 5. Hearing of the accused > Module 7: Obtaining evidence (II) > 5. Hearing of the accused 5.4. Appearance in court in the territory of the requested State of the accused already in custody in the requesting State National situation Each Member State may declare that consent will be required, or will be required under certain conditions indicated in the declaration. Indicate here whether your State has made such a declaration.

51. Slide 51/75 © copyright 6. Searches > Module 7: Obtaining evidence (II) > 6. Searches 6.1. Introduction Specific instruments: Article 5 of the 1959 Convention and Article 51 of the Schengen Convention Framework Decision 2008/978/JHA on the European Evidence Warrant, in principle applicable from 19 January 2011, but doubts as to its use in practice. Only the mutual legal assistance procedure will be discussed here, given that this procedure may continue to be used when the European evidence warrant is applicable. Relevant ‘Fiche Belge’: 5.01 Purpose of the measure: search is a coercive measure whereby a competent authority enters private premises in order to establish an offence or gather evidence.

52. Slide 52/75 © copyright 6. Searches > Module 7: Obtaining evidence (II) > 6. Searches 6.2. Specific procedure General procedure, save for the clarification concerning the double criminality requirement (see Module 1) Reminder: Member States may: waive the double criminality rule; or apply double criminality without reference to a minimum sentence; or if they apply double criminality with a minimum penalty, require that the penalty in question is up to six months.

53. Slide 53/75 © copyright 6. Searches > Module 7: Obtaining evidence (II) > 6. Searches Practical example A Hungarian judge wishes to have a search executed in France. By consulting the appropriate ‘Fiche’, he will be able to identify some essential conditions under French law. He will learn, for example, that ‘searches are only authorised during the day, more specifically between 06:00 and 21:00 hours, although operations started during the day may continue into the night’. [ex_mod7_V10_perquis_1] 6.3. Practical aspects Differences between national laws Advisable to consult the ‘Fiche Belge’ on searches to establish the basic conditions in the requested State.

54. Slide 54/75 © copyright 6. Searches > Module 7: Obtaining evidence (II) > 6. Searches 6.3. Practical aspects Conducting simultaneous searches in different places: simultaneous searches in the same country: consult ‘Atlas’ on the EJN website (see Module 4), click on ‘Unknown location or more than one location’  usually directed to an authority with specific coordination functions. The requesting authority may also get in touch with the EJN contact points. simultaneous searches in several different Member States: this is typically a case for referral to Eurojust is (see Module 4).

55. Slide 55/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.1. Introduction Type of measure: No definition of ‘telecommunications’ Does not include simple locating or identifying  less intrusive on privacy  normal procedure Fiche Belge: 1.01 Legal instruments: Articles 17-22 of the 2000 Convention Creates an explicit legal basis and procedure for mutual assistance in this sector: possible before but procedure uncertain Addresses certain technical aspects linked to technological changes.

56. Slide 56/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.2. Legal framework too complex – being simplified Articles 17 to 22 of the 2000 Convention are very obscure Discussions on the EIO Directive have clarified the situation and are already having an impact

57. Slide 57/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.2. Legal framework too complex – being simplified 7.2.1. Immediate transmission is only a technicality Immediate Transmission = ‘diversion’ of communications to the requested State  it is then there that the interception and recording takes place in practice The 2000 Convention has established a very complicated system (grounds for refusal vary depending on whether or not there is immediate transmission), so this solution is rarely used. But very useful solution in future. In the EIO Directive, immediate transmission is merely a technicality that does not affect the procedure  read the 2000 Convention in this regard

58. Slide 58/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.2. Legal framework too complex – being simplified 7.2.2. More and more situations where the requested State is not the State where the target is located The 2000 Convention is visionary on this point, even if the situations that motivated its drafting are not totally pertinent. In the new telecommunications landscape, the data necessary for interception are less and less present in the State in which the telecommunication took place.  2 relationships: -Between the requesting State and the State able to provide the technical assistance (whether or not the subject is located there); -Between the requesting State and the State where the subject is located but which is not able to provide the technical assistance

59. Slide 59/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.3. Relations with the State providing technical assistance -If several States can provide technical assistance, priority given to the that where the person is located: but for the remainder, location of the person unimportant -Mutual legal assistance procedure but with supplementary conditions/formalities -Broader grounds for refusal: execution of the request is only mandatory ‘where the requested measure would be taken by it in a similar national case’.

60. Slide 60/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.5. Person’s right to be informed of the interception - Not referred to in the 2000 Convention  depends on national law. - If a judicial authority (requesting, requested or notified) plans on providing such information, it should first contact the other judicial authority involved.

61. Slide 61/75 © copyright 7. Interception of telecommunications > Module 7: Obtaining evidence (II) > 7. Telecoms interception 7.4. Relationship with the State where the person is located but which is not providing technical assistance -This situation is unusual because it is geographically where the invasion of privacy takes place but no investigative measure is actually executed; -Article 20 of the 2000 Conv. provides for a notification system  interception can take place provided the other State does not refuse.

62. Slide 62/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.1. Introduction Specific instrument: Articles 40 and 41 of the Schengen Convention Relevant ‘Fiche Belge’ : 8.01, 8.02 and 8.03 Purpose of the measure: possibilities for the authorities of a Member State to continue surveillance or hot pursuit of an individual beyond its national border. land, sea or air borders

63. Slide 63/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.1. Member States concerned Only between the member countries of the Schengen area + United Kingdom Surveillance and pursuit are possible with/between other States, provided frameworks other than the Schengen Convention exist National situation If your State is not a Schengen State or has borders with a State that is not a Schengen State, indicate to what extent cross-border surveillance and/or hot pursuit are possible outside the system of the Schengen Convention.

64. Slide 64/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.1. Member States concerned NB: bilateral cooperation may involve rules more ambitious than those of the Schengen Convention (e.g. Benelux Treaty) National situation If rules more favourable than those of the Schengen Convention apply in relations between your State and other EU border States, indicate here their legal basis and how this system differs from that of the Schengen Convention.

65. Slide 65/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.2. Cross-border surveillance Practical example In State A, a person placed under surveillance in connection with a criminal investigation gets into a vehicle that is tailed by officers of State A and crosses the border between State A and State B.

66. Slide 66/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.2. Cross-border surveillance 8.2.1. Requirement of a mutual legal assistance request 1. A preliminary request is required in principle  except in urgent cases, in which case crossing the border must be communicated immediately the mutual assistance request must be transmitted ‘without delay’ 2. A mutual legal assistance request is required (Article 40 of the Schengen Convention) Disagreement over the scope of the term  police or judicial cooperation? Must the request be signed by a judicial authority? => No solution to date

67. Slide 67/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.2. Cross-border surveillance 8.2.1. Requirement of a mutual legal assistance request 2. A mutual legal assistance request is required (Article 40 of the Schengen Convention) National situation Indicate here the situation in your State: Where your State is the requested State, is there a requirement for the surveillance request to be signed by a judicial authority? Where your State is the requesting State, is it stipulated that surveillance requests must be signed by a judicial authority? If not, is this still possible if the requested State so requests ?

68. Slide 68/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.2. Cross-border surveillance 8.2.2. Person involved The surveillance must concern: a person suspected of involvement in an offence, or a person in respect of whom there is valid reason to believe that he or she can assist in identifying or tracing such a person. 8.2.3. Offence involved the offence must be extraditable in addition, urgent surveillance is only authorised for a limited, albeit fairly broad, list of acts

69. Slide 69/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.2. Cross-border surveillance 8.2.4. Other principal rules The agents of State A must comply with the law of State B and obey the instructions of its agents. Wearing uniform is not obligatory but the agents must be able to prove that they are acting in an official capacity. Carrying service weapons is permitted, but their use is only authorised in cases of legitimate self-defence. Entry into private homes and premises not accessible to the public is prohibited. The agents carrying out the surveillance may neither challenge nor arrest the person under surveillance

70. Slide 70/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.2. Cross-border surveillance 8.2.4. Surveillance using a transmitter The Schengen Convention does not address the question of remote surveillance through the placement of a transmitter. The State in whose territory the person is travelling has no means of knowing that the surveillance is taking place; not merely a theoretical question. => if the surveillance produces important evidence for the investigation, may create problems as regards the evidence’s admissibility. it is therefore advisable, even in this instance, to observe the conditions laid down in Article 40.

71. Slide 71/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.3. Cross-border hot pursuit Article 41 of the Schengen Convention: also allows an agent of State A to enter the territory of State B objective: arrest of a person caught in the act of committing an offence or escaping. may therefore only concern a person who has committed or is suspected of having committed the offence.

72. Slide 72/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.3. Cross-border hot pursuit In principle: no right to apprehend The law of the State B applies to administrative arrest: Article 41(6) states that ‘if the person is not a national of the Contracting Party in whose territory the person was arrested, that person shall be released no later than six hours after the arrest was made, not including the hours between midnight and 9.00 a.m., unless the competent local authorities have previously received a request for that person's provisional arrest for the purposes of extradition in any form whatsoever’. Reference to nationals is anachronistic, given the European arrest warrant

73. Slide 73/75 © copyright 8. Surveillance and hot pursuit > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 8.3. Cross-border hot pursuit State B must be notified no later than the time the border is crossed. Hot pursuit may take place solely over land borders. Pursuit is only authorised for offences of a certain severity The agents carrying out the pursuit must report to the locally competent authorities of State B regarding their mission, even if no person has been apprehended. The agents carrying out the pursuit must be able to be identified as legitimate officers, either by a device placed on their vehicle (such as a flashing light) or by a distinctive sign on their person (uniform or armband). Entry into private homes and premises is prohibited. Carrying service weapons is permitted, but their use is only authorised in cases of legitimate self-defence.

74. Slide 74/75 © copyright 9. Infiltration and covert investigations > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 9.1. Introduction Specific instrument : Art. 14 of the 2000 Convention. Relevant ‘Fiche Belge’ : 2.01, 2.02. Purpose of the measure: Developing lasting relationships between an agent acting under false identity and one or more persons suspected of criminal acts. Investigations into crime by officers acting under covert or false identity (Article 14(1) of the 2000 Convention). This does not refer to infiltration by a person other than an officer or agent.

75. Slide 75/75 © copyright 9. Infiltration and covert investigations > Module 7: Obtaining evidence (II) > 8. Surveillance and hot pursuit 9.1. Specific rules Article 14 of the 2000 Convention: simply provides a legal basis No obligation for the requested State to accept the mutual assistance request. If the request is accepted, the operation is conducted in accordance with the national law and procedures of the Member State in whose territory it takes place. => In practice: practical and substantive aspects of this type of operation and differences between national laws: - whether it is possible to use infiltration by an officer of the requesting State on the territory of the requested State - the offences for which infiltration may be authorised - the commission of offences in connection with infiltration The contents and opinions expressed herein are solely that of the EJTN, and the European Commission cannot be held responsible for any use that may be made of these contents and opinions.