EU cross-border gathering and use of evidence in criminal matters in the EU Future legal framework under the EIO 12 May 2015 Barcelona t. f. +32 9 264 69 71
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3 Preparation and lead-up IRCP study 37 EU cross-border gathering and use of evidence Green paper European Commission April 2010 Belgian proposal Ambition End fragmented and complicated landscape Move from MLA to MR philosophy o One single legal regime (only few exceptions) One single instrument to cover evidence gathering (cfr Art. 3) o Except JITs -> still EU MLA & Framework Decision o Except cross-border surveillance -> SIC (cfr. Pupino) Opt-in, Opt-out, Out altogether UK : yes IR: no DK not possible
4 F o r t h e i s s u i n g MS F o r t h e e x e c u t i n g MS A p p l i c a b l e l a w ( a d m i s s i b i l i t y ) [ ] ordered under the same conditions in a similar domestic case quid post-trial cooperation Recital (25) : all stage of criminal proceedings, including trial stage
5 F o r t h e i s s u i n g MS F o r t h e e x e c u t i n g MS A p p l i c a b l e l a w ( a d m i s s i b i l i t y ) No formalities, recognize & execute, unless Art. 10 different type of investigative measure does not exist would not be available in similar national case same result through less intrusive measure Art. 10.2 list of investigative measures that should be accessible for other MS existing evidence information in police or judicial databases hearing of witness, expert, victim, suspect or accused non-coercive investigative measures identification measures (IP address)
6 F o r t h e i s s u i n g MS F o r t h e e x e c u t i n g MS Locus Regit Actum Forum-country with the court Locus-country where the investigation takes place A p p l i c a b l e l a w ( a d m i s s i b i l i t y ) result request LRA
7 F o r t h e i s s u i n g MS F o r t h e e x e c u t i n g MS Forum Regit Actum Forum-country with the court Locus-country where the investigation takes place A p p l i c a b l e l a w ( a d m i s s i b i l i t y ) result Request with procedures & formalities FRA
8 F o r t h e i s s u i n g MS F o r t h e e x e c u t i n g MS A p p l i c a b l e l a w ( a d m i s s i b i l i t y ) Art. 9.2 Forum Regit Actum Identify procedures and formalities to include Correctly interpret and apply Concept: Fundamental principle No per se admissibility Best outcome in 1-on-1 situation Problem needs alternative sollution Towards minimum standards? Cfr. DNA standards
9 G r o u n d s f o r r e f u s a l G r o u n d s f o r p o s t p o n e m e n t Q u i d c a p a c i t y c o n c e r n s? Art. 11.1 List of optional grounds (a) immunity or privilege (b) ordre public narrow (c) would not be authorized in similar national administrative / infringement case (d) ne bis in idem (e) territoriality clause (f) violation of Art 6 TEU & Charter (g) double criminality (h) severity-thresholds (g) and (h) not for minimum investigative measures that have to be available (e.g. all non-coercive measures)
10 G r o u n d s f o r r e f u s a l G r o u n d s f o r p o s t p o n e m e n t Q u i d c a p a c i t y c o n c e r n s? 0200 00 Open Category PARTICIPATION IN A CRIMINAL ORGANISATION 0201 00 OFFENCES JOINTLY IDENTIFIED AS PARTICIPATION IN A CRIMINAL ORGANISATION 0201 01 Directing a criminal organisation Article 2 (b), Council Framework Conduct by any person consisting in an agreement with one or more persons Decision 2008/841/JHA of 24 that an activity should be pursued which, if carried out, would amount to the October 2008 on the fight against commission of offences, even if that person does not take part in the actual organised crime execution of the activity. 0201 02 Knowingly participating in the criminal activities, without being a director Conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organisation to commit the offences in question, actively takes part in the organisation's criminal activities, even where that person does not take part in the actual execution of the offences concerned and, subject to the general principles of the criminal law of the member state concerned, even where the offences concerned are not actually committed, Article 2 (a), Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime Article 5 - United Nations Convention on Transnational Organised Crime (UNTS no. 39574, New York, 15.11.2000) Knowingly taking part in the non-criminal activities of a criminal 0201 03 organisation, without being a director Conduct by any person who, with intent and with knowledge of either the aim and general criminal activity of the organisation or the intention of the organisation to commit the offences in question, actively takes part in the organisation's other activities (i.e. non-criminal) in the further knowledge that his participation will contribute to the achievement of the organisation's criminal activities. 0202 00 OTHER FORMS OF PARTICIPATION IN A CRIMINAL ORGANISATION
11 G r o u n d s f o r r e f u s a l G r o u n d s f o r p o s t p o n e m e n t Q u i d c a p a c i t y c o n c e r n s? Art. 12 Strict deadlines As soon as possible Recognise within 30 days (max 60 days) Execute within 90 days (max agreed days) Art. 15 Postpone execution (a) Might prejudice an ongoing criminal investigation (b) Evidence is being used -> required to stay in the county
12 G r o u n d s f o r r e f u s a l G r o u n d s f o r p o s t p o n e m e n t Q u i d c a p a c i t y c o n c e r n s? Financial capacity MLA vs MR philosophy Costs borne by the executing Member State Exceptional costs -> consultation & discussion Alternative: cost-sharing-mechanism o Cost efficiency o Accumulation of small costs Operational capacity New aut exequi aut tolerare rule? Art. 9.4 o o Request of IMS needs to be complied with Unless against fundamental principles
13 Tr a n s f e r to y o u Tr a n s f e r a l o n g V i d e o c o n f. Te l e p h o n e c o n f. B a n k a c c o u n t s R e a l t i m e C o v e r t ops Te l e p h o n e t a p Transfer to you (Art. 22) Person in custody in another MS have him transferred to you for investigative measure to gather evidence in the presence of person involved Additional optional refusal grounds both related to the person involved: consent & possible prolonged detention Transfer along (Art. 23) Person in custody in your MS transfer along with the order to have the investigative measure carried out in the EMS, in the presence of the person involved (e.g. reconstruction, line up, ) Additional optional refusal ground consent
14 Tr a n s f e r to y o u Tr a n s f e r a l o n g V i d e o c o n f. Te l e p h o n e c o n f. B a n k a c c o u n t s R e a l t i m e C o v e r t ops Te l e p h o n e t a p Video conference (Art. 24) witness, expert AND suspect and accused additional optional refusal ground consent + contrary to fundamental principles applicable rules: best of both worlds procedural rights that accrue to him under the law of the executing and the issuing member state Telephone conference (Art. 25) only witness and expert -> no extension to suspect and accused
15 Tr a n s f e r to y o u Tr a n s f e r a l o n g V i d e o c o n f. Te l e p h o n e c o n f. B a n k a c c o u n t s R e a l t i m e C o v e r t ops Te l e p h o n e t a p Information on the accounts Art 26 Fishing expedition Banks have to cooperate For non-banks -> possible to rely on fact that measure WOULD not be authorized in similar national case Information on the operations Art 27 info on specific identified accounts banks have to cooperate for non-banks -> possible to rely on fact that measure WOULD not be authorized in similar national case
16 Tr a n s f e r to y o u Tr a n s f e r a l o n g V i d e o c o n f. Te l e p h o n e c o n f. B a n k a c c o u n t s Information in real time Art 27 Controlled deliveries Would not be authorized in a similar domestic case Linked to discussion on overstepping your national law R e a l t i m e C o v e r t ops Te l e p h o n e t a p
17 Tr a n s f e r to y o u Tr a n s f e r a l o n g V i d e o c o n f. Te l e p h o n e c o n f. B a n k a c c o u n t s R e a l t i m e C o v e r t ops Te l e p h o n e t a p Covert operations Art 29 (though advised against) Not really MR because of rules Need for agreement between IMS and EMS LRA: laws of the MS on which territory the operation takes place Quid civilian undercover agent? Clear that always EMS-authorities -> not possible to have AEAT although could be useful to cope with capacity issues
18 Tr a n s f e r to y o u Tr a n s f e r a l o n g V i d e o c o n f. Te l e p h o n e c o n f. Art 30 and following Difference between telephone tap and environmental tamming. B a n k a c c o u n t s R e a l t i m e C o v e r t ops Te l e p h o n e t a p
19 Thinking beyond borders Physically, mentally and policy-wise In search of coherence Integrated judicial and police cooperation New criminal justice finality as basis for criminal policy Striving for balance Restore separation of powers Focus on criminal procedural protection Judicial safeguards where necessary Giving and taking Cross-border & EU-wide admissibility via common standards Practitioners interest & input badly needed
20 Questions and discussion
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