Course: European Criminal Law SS 2009 Hubert Hinterhofer

Mutual Recognition Fundamentals – Cornerstone of cooperation in criminal matters between the MS – Starting point: European Council Tampere 1999 – Main Meaning: Decision of one MS has to be recognized (accepted) in each other MS without formal obstacles Presumptions – Compliance of the decisions with the principle of legality – Mutual trust of the MS in their criminal justice systems

Mutual Recognition Fundamentals – Legal Origin Single European Market Principle Free marketability of goods = mutual recognition of judgments in criminal law matters – Purpose Overcoming the time consuming “old” system of legal assistance and extradition in the EU Effective and fast transnational prosecution in the EU Part of real “European legal area”

Mutual Recognition Examples – European Arrest Warrant (EAW) General Purpose – Eliminating the current extradition system within the EU – Based on the principle of Mutual Recognition of decisions in criminal matters Legal Basis – FWD 2002 – All MS have transformed the EAW into national law

Mutual Recognition Examples – European Arrest Warrant (EAW) Definition – Judicial Decision issued by a MS = issuing MS – General Intention: arrest and surrender a suspect by another MS = executing MS – Special Purposes Conducting a criminal prosecution Executing a custodial sentence Executing a detention order

Mutual Recognition Examples – European Arrest Warrant (EAW) System – Executing MS in principle has the duty to accept requests for the surrender of a suspect – Replacement of the former texts concerning extradition law European Extradition Convention (1957): Council of Europe Convention on extradition 1996: EU Relevant provisions of the Schengen Agreement

Mutual Recognition Examples – European Arrest Warrant (EAW) Prerequisites for issuing an EAW – Offences punishable by imprisonment of 1 year or more – Final sentence of imprisonment for a period of at least 4 months – Listed offences Without verification of double criminality Punishable by imprisonment of 3 years or more Examples: terrorism, murder, racism, rape … – Non-Listed offences: Double Criminality

Mutual Recognition Examples – European Arrest Warrant (EAW) Form – Standard blank – Has to consist relevant information (identity, offence, penalty, issuing court …)

Mutual Recognition Examples – European Arrest Warrant (EAW) Procedures – Purely judicial proceeding Only judicial authorities involved No political impacts (anymore) – Direct transmission of the EAW from the issuing judicial authority to the executing judicial authority – Assisted by Eurojust and the EJN

Mutual Recognition Examples – European Arrest Warrant (EAW) Procedures – Executing state may take coercive measures – Rights of the arrested person Information Lawyer and interpreter Right to be heard – Time limit Final decision on the EAW in the executing state no later than 60 days after arrest – Simplified Procedure Consent to the surrender by the suspect Final decision within 10 days after the consent

Mutual Recognition Examples – European Arrest Warrant (EAW) Grounds for refusal of an EAW – Mandatory Grounds Ne bis in idem > Final judgment in a MS in respect of the same offence > Execution of the judgment Amnesty Minors

Mutual Recognition Examples – European Arrest Warrant (EAW) Grounds for refusal of an EAW – Optional Grounds Territorial jurisdiction of the executing MS > Prosecution for the same act > Decision not to prosecute Ne bis in idem > Final judgment in a MS in respect of the same offence > Not yet executed

Mutual Recognition Examples – European Arrest Warrant (EAW) Grounds for refusal of an EAW – Optional Grounds Ne bis in idem: Final judgment of a Third State in respect of the same act Limitation of time (according to the law of the executing MS) Prohibition of prosecution (according to the law of the executing MS)

Mutual Recognition Examples – European Arrest Warrant (EAW) Confiscation of property – Evidence – Result of the offence (absorption of enrichment) Austrian Law on the EAW – EU-JZG (2004) – Surrender of Austrian nationals Listed offence Committed in the issuing MS No punishability under Austrian Law

Mutual Recognition Examples – European Arrest Warrant (EAW) Austrian Law on the EAW – Execution of an EAW is bound to the catalogue of human rights provided in the ECHR – Possibility of an appeal against the execution of the EAW (to the High Court of Appeal) – National implementation corresponds to the FWD – Rather conservative

Mutual Recognition Examples – Execution of orders freezing property or evidence Legal Basis: FWD (2003) Purpose – Extension of the principle of mutual recognition to pre-trial orders freezing property or evidence – Executing MS has to recognize and execute an order coming from the Issuing MS Definitions – Freezing Order: preventing destruction, transformation or displacement of property – Evidence: relevant material in criminal proceedings

Mutual Recognition Examples – Execution of orders freezing property or evidence Listed Offences – Decisions executed without double criminality-check – Punishable in the issuing MS by imprisonment of 3 years or more Non Listed Offences – Double Criminality-Check

Mutual Recognition Examples – Execution of orders freezing property or evidence Procedures – Certificate – Transmission from the issuing judicial authority to the executing authority – Recognition in the executing MS without any further formality Grounds for non-recognition (e.g.) – Incomplete Certificate – Ne bis in idem – Immunity under the law of the executing MS Remedies – Against freezing order – Any interested party – No suspensive effect

Mutual Recognition Examples – Financial Penalties Legal Basis: FWD (2005) Purpose: Extension of the principle of mutual recognition to financial penalties Definition of Financial Penalty – Sum of money on conviction of an offence – Compensation for victims – Costs of court proceedings – Sum of money to a public fund/victim support organiz.

Mutual Recognition Examples – Financial Penalties Listed Offences – No double criminality check – List also covers road traffic offences Non-Listed Offences – Double criminality check Against natural persons or a legal person Judicial or administrative penalties Decision must be final

Mutual Recognition Examples – Financial Penalties Procedures – Certificate – Transmission from the issuing judicial authority to the executing authority – Recognition in the executing MS without any further formality

Mutual Recognition Examples – Financial Penalties Grounds for non-recognition (e.g.) – Below 70 € – Incomplete Certificate – Ne bis in idem – Immunity under the law of the executing MS – Minors

Mutual Recognition Examples – European Evidence Warrant Legal Basis: FWD 2008 Purpose: Extension of the principle of mutual recognition to European Evidence Warrants Evidence – Objects, documents and data – For use in criminal proceedings

Mutual Recognition Examples – Probation Decisions and Alternative Sanctions Legal Basis: FWD 2008 Purpose: mutual recognition and supervision of – Conditional sentences – Alternative sanctions – Conditional release – Confiscation Orders Legal Basis: FWD 2006 Purpose: mutual recognition of orders to confiscate property