1. EU cross-border gathering and use of evidence in criminal matters in the EU Future legal framework under the EIO
30 September 2016 – Barcelona

2. Background MR Grounds Measures Conclusion
30 September 2016 | EJTN seminar

3. Preparation and lead-up
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
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
One single legal regime (only few exceptions)
One single instrument to cover evidence gathering (cfr Art. 3)
Except JITs -> still EU MLA & Framework Decision
Except cross-border surveillance -> SIC (cfr. Pupino)
Opt-in, Opt-out, Out altogether
UK : yes | IR: no | DK not possible

4. Applicable law (admissibility)
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
For the issuing MS
“[…] ordered under the same conditions in a similar domestic case”
quid post-trial cooperation
Recital (25) : all stage of criminal proceedings, including trial stage
For the executing MS
Applicable law (admissibility)

5. Applicable law (admissibility)
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
For the issuing MS
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 – 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)
For the executing MS
Applicable law (admissibility)

6. Applicable law (admissibility)
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
For the issuing MS
Locus Regit Actum
Forum-country with the court
Locus-country where the
investigation takes place
For the executing MS
Applicable law (admissibility)
result
request
LRA

7. Applicable law (admissibility)
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
For the issuing MS
Forum Regit Actum
Forum-country with the court
Locus-country where the
investigation takes place
For the executing MS
Applicable law (admissibility)
result
Request with
procedures
& formalities
FRA

8. Applicable law (admissibility)
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
For the issuing MS
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
For the executing MS
Applicable law (admissibility)

9. Art. 11.1 – List of optional grounds (a) immunity or privilege
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Grounds for refusal
Art – List of optional grounds
(a) immunity or privilege
ordre public ‘narrow’
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
double criminality
severity-thresholds
(g) and (h) not for minimum investigative measures that have to be available (e.g. all non-coercive measures)
Grounds for postponement
Quid capacity concerns?

10. Background MR Grounds Measures Conclusion Grounds for refusal
30 September 2016 | EJTN seminar
Grounds for refusal
Open Category
PARTICIPATION IN A CRIMINAL ORGANISATION
OFFENCES JOINTLY IDENTIFIED AS PARTICIPATION IN A CRIMINAL ORGANISATION
Directing a criminal organisation
Article 2 (b) , Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime
Conduct by any person consisting in an agreement with one or more persons that an activity should be pursued which, if carried out, would amount to the commission of offences, even if that person does not take part in the actual execution of the activity.
Knowingly participating in the criminal activities, without being a director
Article 2 (a), Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime
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,
Knowingly taking part in the non-criminal activities of a criminal organisation, without being a director
Article 5 - United Nations Convention on Transnational Organised Crime (UNTS no , New York, )
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.
OTHER FORMS OF PARTICIPATION IN A CRIMINAL ORGANISATION
Grounds for postponement
Quid capacity concerns?

11. Recognise within 30 days (max 60 days)
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Grounds for refusal
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 country
Grounds for postponement
Quid capacity concerns?

12. Costs borne by the executing Member State
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Grounds for refusal
Financial capacity
MLA vs MR philosophy
Costs borne by the executing Member State
Exceptional costs -> consultation & discussion
Alternative: cost-sharing-mechanism
Cost efficiency
Accumulation of ‘small costs’
Operational capacity
New aut exequi aut tolerare rule?
Art. 9.4
Request of IMS needs to be complied with
Unless against fundamental principles
Grounds for postponement
Quid capacity concerns?

13. Additional optional refusal ground consent
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Transfer to you
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
Transfer along
Video conf.
Telephone conf.
Bank accounts
Real time
Covert ops
Telephone tap

14. Video conference (Art. 24) witness, expert AND suspect and accused
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Transfer to you
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
Transfer along
Video conf.
Telephone conf.
Bank accounts
Real time
Covert ops
Telephone tap

15. Information on the accounts Art 26 Fishing expedition
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Transfer to you
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
Transfer along
Video conf.
Telephone conf.
Bank accounts
Real time
Covert ops
Telephone tap

16. Information in real time Art 27 Controlled deliveries
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Transfer to you
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
Transfer along
Video conf.
Telephone conf.
Bank accounts
Real time
Covert ops
Telephone tap

17. Art 29 (though advised against) Not really MR because of rules
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Transfer to you
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
Transfer along
Video conf.
Telephone conf.
Bank accounts
Real time
Covert ops
Telephone tap

18. Difference between telephone tap and environmental tapping.
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Transfer to you
Art 30 and following
Difference between telephone tap and environmental tapping.
Transfer along
Video conf.
Telephone conf.
Bank accounts
Real time
Covert ops
Telephone tap

19. Thinking beyond borders Physically, mentally and policy-wise
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
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. Conclusions Background MR Grounds Measures Conclusion
30 September 2016 | EJTN seminar
Mutual trust is accepted as the essential common standard among judicial authorities. However, mutual trust is not generally present. Mutual trust can be improved, provided that there is a better understanding and guarantee of common minimum standards to be used when coercive or intrusive measures are involved;
Today, free movement of evidence in the EU is not generally accepted. Most countries will accept the admissibility of evidence based on an assessment in light of their own legislation, meaning that foreign evidence can move freely to them, provided that it is guaranteed that the foreign evidence was not gathered in a way that would violate the fundamental principles of law of the trial state. For those countries the admissibility depends on their own legislation making it irrelevant to know whether the evidence would be admissible in the gathering country. A minority of countries uphold that evidence can only be admissible if also admissible in the gathering country.

21. Conclusions Background MR Grounds Measures Conclusion
30 September 2016 | EJTN seminar
There is no common approach on the admissibility and probative value of information retrieved from an anonymous police informant. In some member states the information retrieved from an anonymous police informant (be it or not from another state) can be used only as steering info (e.g. for investigation purposes) but not as evidence; In other member states it can be used as evidence, provided that it is corroborated by other evidence.
There is no common understanding on how to determine the best place for prosecution. In general, the member state where the offence took place receives significant weight by all participating countries. More discussion is needed to set clear guidelines on how to determine the best place for prosecution as well as a decision on the position of Eurojust (advisory or deciding role) therein.

22. Conclusions Background MR Grounds Measures Conclusion
30 September 2016 | EJTN seminar
There is an agreement among the participating countries to launch the discussion on the best place for prosecution at an early stage of the investigation and continue an open mind throughout the investigative stage. Only at the end of the investigation a well founded decision on the best place for prosecution can be taken;
There is a need to raise awareness for the existence of EJN-contact point within their own country

23. Questions and discussion
Background MR
Grounds
Measures
Conclusion
30 September 2016 | EJTN seminar
Questions and discussion

24. What would be an acceptable urgency reason?
European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION B - URGENCY
What would be an acceptable urgency reason?

25. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION C - MEASURE
What measures would
be acceptable?

26. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

27. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

28. SECTION F – TYPE OF PROCEEDINGS
European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION F – TYPE OF PROCEEDINGS
What is the relevance of this information?

29. SECTION G – GROUNDS | OFFENCE
European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION G – GROUNDS | OFFENCE
Will there be a national declaration regarding the offence list?

30. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

31. How do you decide what formalities to list?
European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION I – FRA
How do you decide what formalities to list?

32. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

33. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

34. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

35. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

36. Is there anything else you would like to know?
European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION D – Info for IMS
Is there anything else you would like to know?

37. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

38. European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar

39. Is this a realistic time frame? What would be reasons to object?
European Investigation Order
Receipt
Notification
30 September 2016 | EJTN seminar
SECTION V – OBJECTION
Is this a realistic time frame? What would be reasons to object?