Digitalization of courts in the context of mutual assistance in criminal matters Dr Arkadiusz Lach Department of Criminal Procedure University of Nicolaus Copernicus in Torun

Agenda Definition of mutual assistance Definition of mutual assistance Legal instruments of cooperation Legal instruments of cooperation Videoconferences Videoconferences Audioconferences Audioconferences Translating Translating Data and documents Data and documents Criminal records Criminal records Conclusions Conclusions

Definition of mutual assistance Assistance given by requested state to requesting state, esp. in gathering of evidence Assistance given by requested state to requesting state, esp. in gathering of evidence In EU mutual assistance is to be systematically replaced by mutual recognition subject to minimum safeguards (without exequatur procedure) In EU mutual assistance is to be systematically replaced by mutual recognition subject to minimum safeguards (without exequatur procedure)

Legal instruments of cooperation in Europe Council of Europe convention on mutual assistance in criminal matters (1959) with additional protocols (1978 and 2001) Council of Europe convention on mutual assistance in criminal matters (1959) with additional protocols (1978 and 2001) Convention on mutual assistance between Member States of EU (2000) with additional protocol (2001) Convention on mutual assistance between Member States of EU (2000) with additional protocol (2001) Council framework decision on the execution in EU of orders freezing property or evidence (2003) Council framework decision on the execution in EU of orders freezing property or evidence (2003) Council framework decision on European Evidence Warrant (2003 proposal) Council framework decision on European Evidence Warrant (2003 proposal)

Videoconferences 2000 Convention (art. 10): the requested MS shall agree to the hearing by videoconference provided the use of the videoconference is not contrary to the to fundamental principles of its law and on condition that it has the technical means for videoconferencing, such means may be made available to it by the requesting State by mutual agreement 2000 Convention (art. 10): the requested MS shall agree to the hearing by videoconference provided the use of the videoconference is not contrary to the to fundamental principles of its law and on condition that it has the technical means for videoconferencing, such means may be made available to it by the requesting State by mutual agreement Similar provision in the CoE second additional protocol (art. 9) Similar provision in the CoE second additional protocol (art. 9) Witness, expert, sometimes the accused (suspect) Witness, expert, sometimes the accused (suspect)

Audio (telephone) conferences 2000 Convention (art. 11): if a person is on MS territory and has to be heard as witness or expert by judicial authorities of another MS 2000 Convention (art. 11): if a person is on MS territory and has to be heard as witness or expert by judicial authorities of another MS Agreement of witness or expert Agreement of witness or expert Similar provision in the second additional protocol (art. 10) Similar provision in the second additional protocol (art. 10)

Main advantages of audio and videoconferences Costs Costs Time Time Immediacy principle (best evidence), not only depositions but also examination and cross- examination Immediacy principle (best evidence), not only depositions but also examination and cross- examination Allow to overcome some legal obstacles concerning admissibilty of evidence in written form (ex. requirement of oath), esp. in very strict jurisdictions (ex. Australia) Allow to overcome some legal obstacles concerning admissibilty of evidence in written form (ex. requirement of oath), esp. in very strict jurisdictions (ex. Australia) Witness protection (ex. anonymous and crown witness) Witness protection (ex. anonymous and crown witness)

Main problems with audio and videoconferences Time differences Time differences Presence of judicial authority Presence of judicial authority Loss of transmission Loss of transmission Speed of tranmission Speed of tranmission Visible to all participants Visible to all participants Presentation of documents and objects to testifying person Presentation of documents and objects to testifying person Estimation of credibility of testifying person (difference between audio and videoconferences) Estimation of credibility of testifying person (difference between audio and videoconferences) Costs Costs

Translating and converting voice Pilot programmes to translate and converting voice (voice recognition systems) Pilot programmes to translate and converting voice (voice recognition systems) Possibility of simoultanous translation Possibility of simoultanous translation

Obtaining documents or data EEW: documents and data (stored) EEW: documents and data (stored) 2000 Convention: interception of communication 2000 Convention: interception of communication Access to foreign law and tools for translating Access to foreign law and tools for translating Translators to facilitate preparing warrants in the language of exexuting state Translators to facilitate preparing warrants in the language of exexuting state Access to documents from case files Access to documents from case files Passing of documents should be possible without converting them to different format Passing of documents should be possible without converting them to different format New instrument: spontaneous exchange of information New instrument: spontaneous exchange of information

Criminal records Framework decision on EEW (art.8): Each Member State shall designate a central criminal records authority to which the EEW can be transmitted (directly or indirectly) for the purpose of obtaining a copy of any official records Framework decision on EEW (art.8): Each Member State shall designate a central criminal records authority to which the EEW can be transmitted (directly or indirectly) for the purpose of obtaining a copy of any official records Art. 10 conditions on the use of personal data (1981 Convention applies not 1995 directive) Art. 10 conditions on the use of personal data (1981 Convention applies not 1995 directive) Plans to establish European Criminal Registration Plans to establish European Criminal Registration

Means of transmission of request 2003 „freezing” FD (art. 4): a freezing order shall be transmitted by any means capable of producing a written record under conditions allowing the executing State to establish authenticity 2003 „freezing” FD (art. 4): a freezing order shall be transmitted by any means capable of producing a written record under conditions allowing the executing State to establish authenticity 2000 Convention (art. 6): in writing, or by any means capable of producing a written record under conditions allowing the receiving MS to establish authenticity 2000 Convention (art. 6): in writing, or by any means capable of producing a written record under conditions allowing the receiving MS to establish authenticity 1959 Convention (art. 15): may be forwarded by any electronic or other means of telecommunication provided that the requesting party is prepared upon request, to produce at any time a written record of it and the original. However any state may establish the conditions under which it shall be willing to accept and execute requests received by electronic or other means of telecommunication 1959 Convention (art. 15): may be forwarded by any electronic or other means of telecommunication provided that the requesting party is prepared upon request, to produce at any time a written record of it and the original. However any state may establish the conditions under which it shall be willing to accept and execute requests received by electronic or other means of telecommunication

Conclusions Digitalization of courts shall be continued in order to make use of legal instruments relating to mutual assistance in criminal matters Digitalization of courts shall be continued in order to make use of legal instruments relating to mutual assistance in criminal matters On the other hand technological progress supports and enhances mutual assistance which is now developing very dynamically On the other hand technological progress supports and enhances mutual assistance which is now developing very dynamically As mutual assistance is getting decentralized digitalization is needed also on lower levels As mutual assistance is getting decentralized digitalization is needed also on lower levels We are working on a common legal standard. Do we need a common technical standard as well? (UK example-six systems with different infrastracture, data management and applications) Interoperability issue (CoE R (2003) 14 We are working on a common legal standard. Do we need a common technical standard as well? (UK example-six systems with different infrastracture, data management and applications) Interoperability issue (CoE R (2003) 14 Exchanging or sharing information? Exchanging or sharing information? One of the main problems is authentification of records One of the main problems is authentification of records Need for supervisory activities Need for supervisory activities

Thank you for your attention

Questions ?