1. Slide 1/39 © copyright Standard training programme in judicial cooperation in criminal matters in 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 2/39 © copyright (logo of the training organiser) Training organised by (name of training organiser) on (date) at (place) Title (of the training/ module) The European Judicial Training Network With the support of the European Union

3. Slide 3/39 © copyright Module 6 The pre-trial stage and obtaining evidence (part I): cross-cutting issues Version: 3.0 Last updated: 20.12.2012

4. Slide 4/39 © copyright Contents > Module 6: Obtaining evidence (I): Contents: 1.Legal framework 2.Scope 3.Form and content of the request 4.Transmission of the request 5.Nature of the execution procedure 6.Grounds for refusal 7.Double criminality 8.Procedural law applicable to execution 9.Admissibility of evidence 10.Subsequent use of evidence

5. Slide 5/39 © copyright  Pre-trial stage limited here to obtaining evidence  transmission of records and laying of information with a view to proceedings are addressed in Module 9  Module 6 (general procedure) and Module 7 (specific procedures for types of investigative measure) are inseparable Introduction > Module 6: Obtaining evidence (I):

6. Slide 6/39 © copyright  Contents: Judicial cooperation and police cooperation Judicial cooperation and mutual recognition Navigating the multiple instruments 1. Legal framework > Module 6: Obtaining evidence (I):

7. Slide 7/39 © copyright 1.1. Judicial cooperation and police cooperation  Police cooperation is preferred for the preliminary stage of the investigation, when avenues of inquiry are closed off  More flexible, faster, more efficient  If ‘police’ information proves significant, possibility of ‘validating’ it through mutual legal assistance  Police cooperation = applicable only to information, not to objects 1. Legal framework > Module 6: Obtaining evidence (I):

8. Slide 8/39 © copyright 1.2. Mutual legal assistance or mutual recognition?  Mutual legal assistance = the rule / Mutual recognition = the exception  Mutual recognition situation somewhat confusing:  Framework Decision of 22 July 2003 on freezing property and evidence  not widely applied 1. Legal framework > Module 6: Obtaining evidence (I):

9. Slide 9/39 © copyright 1.2. Mutual legal assistance or mutual recognition?  (Mutual recognition situation somewhat confusing:)  Council Framework Decision of 18 December 2008 on the European Evidence Warrant was due to apply to some evidence from 9 January 2011  But widely criticized as too complex and not sufficiently broad  Most Member States have decided not to apply it  Proposal for a Directive on the European Investigation Order (EIO Directive) under negotiation but very slow progress 1. Legal framework > Module 6: Obtaining evidence (I):

10. Slide 10/39 © copyright 1.2. Mutual legal assistance or mutual recognition?  Pending the EIO Directive: mutual assistance and mutual recognition coexist, at the discretion of the requesting/issuing authority – reason and disadvantages 1. Legal framework > Module 6: Obtaining evidence (I):

11. Slide 11/39 © copyright 1.3. Towards a comprehensive reform of obtaining evidence  The EIO Directive – if adopted! – will replace all instruments (mutual legal assistance and existing instruments of mutual recognition) with a single legal framework for obtaining evidence  The EIO Directive will cover all investigative measures and should provide for time limits for execution  The EU Council has approved a draft text which must then be negotiated with the European Parliament  The end result and when it will be finalised are very uncertain 1. Legal framework > Module 6: Obtaining evidence (I):

12. Slide 12/39 © copyright 1.4. Navigating the multiple instruments  For the freezing of property, if the instrument of mutual recognition is chosen, a single FD  If the system is mutual assistance (i.e. most cases), need to juggle with several instruments 1. Legal framework > Module 6: Obtaining evidence (I):

13. Slide 13/39 © copyright 1.4. Navigating the multiple instruments The instruments of mutual legal assistance: 1. Basic framework = 1959 Convention 2. Amended and supplemented (but not replaced) by 1.First additional protocol to the 1959 Convention (1978) 2.Schengen Convention (1990) 3.Convention of 2000 4.Additional protocol to the Convention of 2000 NB: The Convention of 2000 and its 2001 Protocol are in force but have not yet been ratified by all! 1. Legal framework > Module 6: Obtaining evidence (I):

14. Slide 14/39 © copyright 1.4. Navigating the multiple instruments The instruments of mutual legal assistance: 3. + Instruments with restricted frameworks (bilateral agreements, Benelux cooperation, Nordic cooperation) 4. Some specific rules for some investigative measures in the various instruments 1. Legal framework > Module 6: Obtaining evidence (I):

15. Slide 15/39 © copyright 2.1. Severity of the offence  No limitation  But indirect obstacle (see below): Double criminality Impossibility of using the measure in question for the type of offence Lack of proportionality between the measure sought and the severity of the acts 2. Scope > Module 6: Obtaining evidence (I):

16. Slide 16/39 © copyright 2.2. Type of proceedings Criminal proceedings but also: 1. Mutual legal assistance (Article 49 Schengen Conv. and Article 3 2000 Conv): -administrative offences subject to legal remedy before a criminal court -compensation proceedings related to a criminal case -civil and criminal cases joined while the criminal proceedings are pending -… 2. Mutual recognition: -FD freezing property: very restrictive -FD EEW = as for mutual legal assistance 2. Scope > Module 6: Obtaining evidence (I):

17. Slide 17/39 © copyright 3.1. Mutual legal assistance 3.1.1. Content = Article 14 of the 1959 Conv. the authority making the request the object of and the reason for the request where possible, the identity and nationality of the person concerned where necessary, the name and address of the person to be served the offence a summary of the facts 3. Form and content of the request > Module 6: Obtaining evidence (I):

18. Slide 18/39 © copyright 3.1.2. Form Article 6 of the 2000 Convention: requests for mutual assistance ‘shall be made in writing, or by any means capable of producing a written record under conditions allowing the receiving Member State to establish authenticity’. There are two tools for partially standardising these requests Standard cover note (see Annex A) Compendium (EJN website) 3. Form and content of the request > Module 6: Obtaining evidence (I):

19. Slide 19/39 © copyright 3.1.2. Form 3. Form and content of the request National situation Indicate whether your State has standard mutual assistance requests and attach these templates to the training module > Module 6: Obtaining evidence (I):

20. Slide 20/39 © copyright 3.1.3. Translation Article 16 of the 1959 Convention See Annex 1: table of languages accepted by each State 3. Form and content of the request > Module 6: Obtaining evidence (I):

21. Slide 21/39 © copyright 3.2. Mutual recognition Stricter form and content: a ‘certificate’ (with the original decision attached)  FD on freezing (2003) or a ‘warrant’ (= the decision)  FD on the EEW Translation: see Module 7. 3. Form and content of the request > Module 6: Obtaining evidence (I):

22. Slide 22/39 © copyright 4.1. Medium and means Requests/certificates/warrants to be transmitted ‘by any means capable of producing a written record, under conditions allowing the receiving (or executing) State to establish authenticity’. - Post or courier - Fax: accepted in most States, at least as a draft - Electronically: no sufficiently extensive practice BUT secure EJN network 4. Medium and transmission of the request > Module 6: Obtaining evidence (I):

23. Slide 23/39 © copyright 4.2. Transmission of the request 4.2.1. Mutual legal assistance The rule = direct contact between judicial authorities Exceptions: Going via a central authority ‘in specific cases’ UK and Ireland Certain other Member States, in contradiction to the Schengen Conv. and the 2000 Conv. Urgent cases  via Interpol Extracts of criminal records Transmission via Eurojust 4. Medium and transmission of the request > Module 6: Obtaining evidence (I):

24. Slide 24/39 © copyright 4.2.2. Mutual recognition Rule of thumb is always direct contact But exceptions vary: FD on freezing (2003): exception only for the UK and Ireland DC EEW: more flexible, possibility available to all MS 4. Transmission of the request > Module 6: Obtaining evidence (I):

25. Slide 25/39 © copyright 4.2.3. How does direct contact work? Identify the competent local authority For mutual legal assistance: Atlas on the EJN website (see Module 3) For mutual recognition: not yet Atlas for the FD on freezing property (see below) Contact problems?  EJN and Eurojust 4.3. Best practice 4. Transmission of the request > Module 6: Obtaining evidence (I):

26. Slide 26/39 © copyright Reminder (see Module 2): Mutual legal assistance has not been fully judicialised  the governmental/political authority may play a role or have a right of veto Mutual recognition  fully judicialised, in principle no decision- making role for government, unless instruments are improperly implemented 5. Nature of the execution procedure > Module 6: Obtaining evidence (I):

27. Slide 27/39 © copyright 6.1. Mutual legal assistance (For specific grounds for refusing certain investigative measures, see Module 7 + For double criminality see below) General grounds for refusal (Article 2(2) 1959 Conv.): ‘if the requested Party considers that execution of the request is likely to prejudice the sovereignty, security, law and order or other essential interests of its country’. = very broad wording that includes: - Political grounds - Legal grounds  to be qualified by subsequent limitations 6. Grounds for refusal > Module 6: Obtaining evidence (I):

28. Slide 28/39 © copyright (6.1. Mutual legal assistance) Impossibility of using the measure for this type of offence or lack of proportionality: only explicitly referred to for telecoms interception conversely, not applicable in principle to the remainder, but... Fiscal offence: ground for refusal abolished (Article 8 2000 Conv.) Political offence: abolished (Article 9 2001 Protocol) but may be partly maintained (optional declarations: DK, FR, LAT) Banking secrecy: abolished (Art. 7 2001 Protocol) 6. Grounds for refusal > Module 6: Obtaining evidence (I):

29. Slide 29/39 © copyright 6.2. Mutual recognition Reminder (see Module 2): More grounds for refusal of a political nature (judicialisation) Legal grounds for refusal limited and reference to specific legal concepts See Module 6 for the FD on freezing (2003) 6. Grounds for refusal > Module 6: Obtaining evidence (I):

30. Slide 30/39 © copyright 6.2. Mutual recognition infringement of the ne bis in idem principle immunity or privilege incomplete or incorrect warrant or certificate The issue of grounds for refusal is central issue in debates in negotiations on the EIO Directive. Final system impossible to predict. 6. Grounds for refusal > Module 6: Obtaining evidence (I):

31. Slide 31/39 © copyright 7.1. Mutual legal assistance 7.1.1. The basic rule Basic rule: Article 5 1959 Convention, Article 51 CISA the double criminality requirement is only permissible if execution of the mutual assistance request makes it necessary to carry out a search or seizure (however, see below); application of reciprocity is no longer permissible within the EU in this area; the EU States cannot use Article 5(b) of the 1959 Convention, i.e. the requirement for an extraditable offence, between themselves (since this condition is more restrictive than the one found in Article 51 of the Schengen Convention); 7. Double criminality > Module 6: Obtaining evidence (I)

32. Slide 32/39 © copyright 7.1. Mutual legal assistance 7.1.1. The basic rule (2)  the EU States may therefore, between themselves: waive the double criminality rule; apply double criminality without reference to a minimum penalty; if they apply double criminality with a minimum penalty, require that the penalty in question is up to six months. 7. Double criminality > Module 6: Obtaining evidence (I)

33. Slide 33/39 © copyright 7.1. Mutual legal assistance 7.1.1. The basic rule (3) NB: subsequent transfer of evidence frozen on the basis of the FD on freezing (2003)  partial removal of double criminality applied 7.1.2Implicit or explicit extension to other investigative measures In principle, ‘DC’ limited to searches and seizures BUT: Special procedures for some investigative measures (e.g. telecoms interception) some take the view that ‘DC’ applies by analogy to measures involving constraint application of ‘DC’ via general grounds for refusal (public order) 7. Double criminality > Module 6: Obtaining evidence (I)

34. Slide 34/39 © copyright 7.2. Mutual recognition For freezing decisions (FD 2003/577JHA), the double criminality requirement is strictly limited  cf. solution of the FD on the European arrest warrant. No verification if: -Prison sentence of at least 3 years in the issuing State -+ the offence, as defined by the law of the issuing State, is included in a list of 32 categories of offences. 7. Double criminality > Module 6: Obtaining evidence (I)

35. Slide 35/39 © copyright 8.1. The ‘locus regit actum’ principle 8.2. Qualification of the principle Procedural law applicable is that of the requested (or executing) State 2. BUT the requested State must apply the formalities and procedures required by the requesting State, provided these formalities and procedures are not contrary to the fundamental principles of law of the requested State. (Art 6(1) 2000 Conv., Art 5(2) FD freezing) 8. Law applicable to executing a request > Module 6: Obtaining evidence (I)

36. Slide 36/39 © copyright 9.1. No EU rule on this point  Reference to national law  For example, if the search cannot take place during the night in the requesting State, is evidence gathered during such a search in the requested State inadmissible in the requesting State? 9. Admissibility of evidence National situation Indicate here the general rules on the admissibility of evidence gathered abroad under your national law > Module 6: Obtaining evidence (I)

37. Slide 37/39 © copyright 9.2. Overcoming difficulties Consult the ‘Fiches Belges’ (see Module 4) Requesting authority: indicate the formalities and procedures that must be applied Contact the requested authority Use the EJN and Eurojust to overcome obstacles in mutual understanding 9. Admissibility of evidence > Module 6: Obtaining evidence (I)

38. Slide 38/39 © copyright 10.1. Mutual legal assistance Instruments on mutual legal assistance leave the issue of legal remedy to the discretion of national laws 10.2. Mutual recognition Explicit but rather vague rules in the existing instruments. Stumbling block in negotiations on the EIO Directive. 10. Rights of legal remedy against the measure > Module 6: Obtaining evidence (I)

39. Slide 39/39 © copyright Can the evidence be used for purposes other than those originally intended? Art 23 of the 2000 Conv.: The data can be used: for the purposes of criminal proceedings; for other judicial and administrative proceedings directly related to proceedings referred to under point (a); for preventing an immediate and serious threat to public security; for any other purpose, only with the prior consent of the communicating Member State, unless the Member State concerned has obtained the consent of the data subject. 11. Admissibility of evidence > Module 6: Obtaining evidence (I) 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.