6 December 2010 Judicial cooperation in the EU From mutual legal assistance to mutual recognition Adrienne Boerwinkel Senior Legal Adviser Dutch Ministry of Security and Justice

TAIEX Ankara | 6-7 December Overview presentation  History of judicial cooperation in the EU  Principle of mutual recognition  State of play mutual recognition instruments  Mutual legal assistance vs. mutual recognition  Mutual recognition in practice

TAIEX Ankara | 6-7 December Judicial cooperation in the EU - history Three main phases: Cooperation on the basis of Council of Europe Conventions Cooperation on the basis of EU conventions Cooperation on the basis of EU instruments based on the principle of mutual recognition

TAIEX Ankara | 6-7 December Cooperation on basis of CoE conventions  1957 Convention on extradition  1959 Convention on mutual legal assistance  1970 Convention on the validity of criminal judgments  1972 Convention on transfer of proceedings  1983 Convention on transfer of sentenced persons

TAIEX Ankara | 6-7 December Cooperation on basis of EU conventions  1990 Convention implementing the Schengen Agreement (OJ 2000, L 239)  2000 Convention on Mutual Assistance in Criminal Matters (OJ 2000, C 197)  2001 Protocol to the EU Convention on Mutual Assistance (OJ 2001, C 326)

TAIEX Ankara | 6-7 December European Council Conclusions Tampere 1999 “Enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. The principle should apply both to judgments and to other decisions of judicial authorities.”

TAIEX Ankara | 6-7 December Principle of mutual recognition  Judicial cooperation should be based on principle of mutual recognition  Should apply to both final judgments and pre-trial decisions  Since Treaty of Lisbon ( ) legal basis in the Treaty (Art. 82 of the Treaty on the Functioning of the EU) But…. what is it?

TAIEX Ankara | 6-7 December Mutual recognition Cassis de Dijon judgment Internal Market ---- Area of Freedom, Security and Justice Closer cooperation -> difference between the legal systems should not hamper judicial cooperation -> obligation to cooperate unless a specific ground of refusal applies

TAIEX Ankara | 6-7 December Mutual legal assistance vs. mutual recognition Request-> Order (obligation to execute) Requesting State -> Issuing State Requested State -> Executing State General grounds for refusal-> Specific grounds for refusal Dual criminality-> Partial abolition of dual crim. No deadlines-> Deadlines No standard forms-> Standard forms/certificates No language rules-> Language of executing State Via Ministry of Justice-> Direct contact jud. authorities

TAIEX Ankara | 6-7 December State of play – mutual recognition instruments Extradition/surrender of persons –European Arrest Warrant (replaces the CoE Extradition Convention) 2) Enforcement of final judgments/sentences -Framework Decision on financial penalties -Framework Decision on confiscation orders -Framework Decision on custodial sentences -Framework Decision on alternative sanctions and probation measures -Framework Decision on taking into account previous convictions

TAIEX Ankara | 6-7 December State of play – mutual recognition instruments 3) Pre-trial decisions/mutual legal assistance -Framework Decision on orders freezing evidence or property -Framework Decision on European Evidence Warrant -Framework Decision on supervision measures as alternative to provisional detention

TAIEX Ankara | 6-7 December Evidence gathering – current situation Partly based on mutual legal assistance (CoE Convention of 1959, Schengen Implementation Agreement and EU 2000 Convention) and partly based on mutual recognition (FD on freezing orders and FD on European Evidence Warrant) How to proceed? Stockholm programme (multi annual programme for Justice and Home Affairs in EU): a comprehensive instrument based on mutual recognition that will replace all existing instruments

TAIEX Ankara | 6-7 December Mutual recognition in practice Practitioners need to change their habits and attitude Confidence in legal system and authorities of the other Member States is crucial  training  exchange programs  networking, contact points  easy access to sources of European (criminal) law  evaluation and monitoring  minimum standards for procedural rights of suspects and accused