1. Judicial Cooperation in Criminal Matters within the European Union
Florin Răzvan RADU
Director for International Law and Treaties
Ministry of Justice
Romania
27 Slides on
Judicial Cooperation in Criminal Matters within the European Union
of 27 Member States
Sovata, 9 July 2007
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2. Freedom, Security and Justice
Building an area of
Freedom, Security and Justice
Article 2 of the Treaty of Amsterdam, entered into force on the 1st of May 1999, stipulates that the European Union shall set itself the objective to maintain and develop the Union as an area of freedom, security and justice.
With the European Council held in Tampere, Finland, on October 15-16, mutual recognition of judgments became the corner stone of judicial cooperation between the E.U. Member States
Three principles of the EU Judicial Cooperation:
Mutual trust
Mutual recognition
Direct contacts
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3. The area of Freedom, Security and Justice
(Third Pillar of the European Union)
Judicial Cooperation in Criminal matters and Police Cooperation are covered by Title VI of the T.E.U. (art )
One of the Union’s objectives is, as stipulated by art. 29 (1) of T.E.U., “to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.”
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4. According to art. 29 (2) of T.E.U.:,
“That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:
-  closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,
-  closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit ("Eurojust"), in accordance with the provisions of Articles 31 and 32,
-  approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e)”
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5. Legal instruments of the E.U. Judicial Cooperation in Criminal Matters
In the field of Police and Judicial Cooperation in Criminal matters, the Council may:
(a)  adopt common positions defining the approach of the Union to a particular matter;
(b)  adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;
(c)  adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;
(d)  establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council.
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6. (b) facilitating extradition between Member States;
Article 31 T.E.U. – the main legal basis for the E.U. instruments
on Judicial Cooperation in Criminal
matters
Article 31 (1):
Common action on judicial cooperation in criminal matters shall include:
(a)  facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b)  facilitating extradition between Member States;
(c)  ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d)  preventing conflicts of jurisdiction between Member States;
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7. From inter-governmental…
The beginnings of the cooperation in criminal matters among the Member States were modest. At the middle of ’70’s, this cooperation started in inter-governmental framework.
By the Schengen Agreement signed on 14 June 1985, Belgium, France, Germany, Luxembourg and the Netherlands agreed that they would gradually remove controls at their common borders and introduce freedom of movement for all nationals of the signatory Member States, other Member States or third countries.
Five years later, a Convention implementing the Schengen Agreement was adopted on the 19th of June It lays down the arrangements and safeguards for implementing freedom of movement. It was signed by the same five Member States on 19 June 1990 but did not enter into force until 1995.
The Agreement and the Convention, the rules adopted on that basis and the related agreements together form the "Schengen acquis". Since 1999, this has formed part of the institutional and legal framework of the European Union by virtue of a protocol to the Treaty of Amsterdam.
The Schengen agreements have been extended over time to all 15 old Member States: Italy signed them in 1990, Spain and Portugal in 1991, Greece in 1992, Austria in 1995 and Finland, Sweden and Denmark (under a special arrangement) in Ireland and the United Kingdom are only partial participants in the Schengen acquis, since their border controls have been maintained.
The 12 new Member States have adopted the Schengen acquis, but a decision of the Council of the European Union will be required before controls at their borders are lifted.
Two non-Community countries -- Iceland and Norway -- have also belonged to the Schengen area since 1996, though they have only a limited role in decision-taking. Switzerland has also begun to work towards joining the Schengen acquis.
Countries that are candidates for Union membership must have accepted the whole of the Schengen acquis at the time of accession.
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8. … to Mutual Recognition
Different specific conventions have been adopted in the field of judicial cooperation in criminal matters: The Benelux Treaty on extradition and mutual legal assistance in criminal matters. (Brussels, ), Convention on simplified extradition procedure between Member States ( ), Convention on extradition between Member States ( ), Convention on M.L.A. in criminal matters between M.S. ( ) and its Protocol ( )
During the last years, the most used instruments are the Council Framework Decisions based on the Tampere principle of mutual recognition
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9. Three capital Framework-Decisions have been adopted on June 13, 2002: -Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States ; - Council Framework Decision 2002/465/JHA on Joint Investigation Teams; - Council Framework – Decision no. 2002/475/ JHA on combating terrorism.
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10. European Arrest Warrant in Brief:
Mutual recognition instead of extradition bureaucratic formalities
Mutual trust instead of mutual fear
Direct Contact instead of diplomatic or other administrative channels
No more political interference or decision
Surrender of own nationals
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11. More about E.A.W.
E.A.W. is the first concrete measure in criminal law implementing the principle of mutual recognition.
It replaces the classical legal instruments on extradition (bilateral treaties and multilateral conventions).
From the legal point of view, the E.A.W. is a “judicial decision”. It eliminates any political intervention.
From the practical perspective, the E.A.W. is a Form. No more need for hundred of pages of supporting documents like in classical extradition.
The Central authorities (M.o.J.s) may only assist the judicial authorities in dealing with the E.A.W.
E.A.W. abolishes the requirement of dual criminality for 32 generic criminal offences.
Short Time limits for the surrender procedure: 10 – 60 – 90 days.
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12. Mutual legal assistance in criminal matters within the E.U.
Legal instruments:
Schengen Convention (Title III, Chapter 2, art )
Convention on M.L.A. in criminal matters between the E.U. M.S. from 29 May 2000 entered into force on August 23, 2005
Protocol from October 16, 2001
Framework-Decisions
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13. Mutual legal assistance in criminal matters within the EU = modern investigative means
Joint investigation teams
Within the European Union, Joint investigation teams are regulated by article 13 of the E.U. M.L.A. Convention from 29 May 2000 and by the Framework – Decision from the 13th of June 2002.
JITs operate for a specified period of time. It may be extended by mutual consent. The composition of the JIT should be specified in the agreement. Depending on the States concerned and the nature of the facts under investigation, membership is likely to include prosecutors, judges, law enforcement officers and experts.
Where agreement is achieved on the setting up of a JIT, the JIT will normally be established in the State in which the main part of the investigations is expected to be carried out. ‘’
a JIT will operate on the basis that its leader will be a representative of the competent authority participating in criminal investigations for the State in which the JIT operates. This means, in particular, that the leadership of the JIT will change, for the specific purposes concerned, if investigations are carried out by the JIT in more than one State. The leader of the JIT must act within the requirements of his or her national law. In addition, the JIT must fully abide to the law of the State where it operates.
Members of a JIT who are not operating in their own State (seconded members) are permitted, under paragraph 5, to be present when investigative measures are taken in the State of operation. However, the JIT leader may, for particular reasons, in accordance with the law of the State where the JIT is operating, decide otherwise. In this context, the expression "particular reasons" has not been defined but it can be taken to include, for example, situations where evidence is being taken in cases involving sexual crimes, especially where the victims are children. Any decision to exclude a seconded member from being present may not be based on the sole fact that the member is a foreigner. In certain cases operational reasons may form the basis for such decisions.
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14. Mutual legal assistance in criminal matters within the EU
Hearings by Videoconference
Article 10 of the E.U. M.L.A Convention.
In the context of paragraph 2 the reference to "fundamental principles of law" implies that a request may not be refused for the sole reason that hearing of witnesses and experts by videoconference is not provided under the law of the requested Party, or that one or more detailed conditions for a hearing by videoconference would not be met under national law.
The law applicable is the law of the State where the person is, i.e. the place where the person may immediately, without further steps, be prosecuted, if appropriate, for perjury. Moreover, this paragraph is intended to guarantee that the witness, in case of non-compliance with an obligation to testify, is subject to consequences similar to those applicable in a domestic case not involving videoconference.
Where the difficulties mentioned in paragraph 7 occur, the requesting and the requested Parties may communicate with each other in relation to the application of the paragraph. This will normally imply that the authority of the requesting Party conducting the hearing as soon as possible provides the authority of the requested Party with the information necessary to enable the latter to take appropriate measures against the witness or expert.
This article applies generally to hearings of experts and witnesses. However, under paragraph 9, it may, under certain conditions, also apply to hearings of the accused persons.
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15. Hearings by telephone conference of witnesses and experts Article 11 E
Hearings by telephone conference of witnesses and experts Article 11 E.U. M.L.A Convention
Controlled deliveries
Under Article 1 (g) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna,1988), "controlled delivery" means the technique of allowing illicit or suspect consignments of goods or money, or items substituted for them, to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to identifying persons involved in the commission of offences.
Article 12 of the E.U. M.L.A Convention
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16. Covert investigations
Article 14 of the E.U. M.L.A. Convention. In the mind of the drafters the requesting Party should not make a request under this article unless it would be impossible or very difficult to investigate the facts without resorting to covert investigations
Covert investigations should be limited to precise missions of a precise duration.
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17. Interception of telecommunications
Cross-border observations and pursuits Schengen Convention – articles 40 and 41 Second additional Protocol to the C.o.E. M.L.A. in criminal matters Convention ( )
Interception of telecommunications
Articles of the E.U. M.L.A. Convention from 29 May 2000
Bank Accounts
Protocol from 16 October 2001 to the E.U. M.L.A. Convention
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18. The Hague Programme
Strengthening freedom, security and justice in the European Union [Official Journal C 53 of , p. 1].
Ten priorities for 5 years
A genuine European area of justice. Access to justice must be guaranteed in order for judgments to be made and enforced. The Union must take steps to instil mutual confidence between Member States by laying down minimum procedural standards which safeguard, for example, the right of defence.
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19. The Hague Programme
was adopted by the European Council from November,
establishes the framework for new concrete measures and for the consolidation of the legislative aproximation in order to combat transnational crime
special attention to the fight against terrorism and organised crime
in the field of international judicial cooperation in criminal matters - strengthening the role of Eurojust, in order to become a Key – player in this field.
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20. New instruments based on mutual trust and mutual recognition
Under the Hague Programme, new F.D. based on mutual recognition have been adopted during the last years:
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of the orders freezing property or evidence
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders
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21. Strengthening the mutual trust
Several proposals for Framework Decisions are in ongoing adoption process:
Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters
Council Framework Decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcements in the European Union
Council Framework Decision on the recognition and enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children
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22. Strengthening the mutual trust
Other proposals are now negotiated in COPEN:
European Supervision Order
Suspended and Conditional sentences, etc.
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23. Institutional Framework of the EU Judicial Cooperation in Criminal Matters
Eurojust
European Judicial Network
Liaison Magistrates
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24. EUROJUST www.eurojust.europa.eu
Council Decision 2002/187/JHA of 27 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime.
Eurojust is the „Judicial Cooperation Unit” of the European Union.
Eurojust stimulates and improves the co-ordination of investigations and prosecutions between competent authorities in the Member States. Eurojust improves co-operation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests. Eurojust supports the competent authorities of the Member States in order to render their investigations and prosecutions more effective when dealing with cross border crime.
The College of Eurojust is now composed of 27 National Members, one nominated by each EU Member State. The national members are senior, experienced prosecutors or judges; some national members are supported by Deputies and Assistants.
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25. European Judicial Network www.ejn-crimjust.europa.eu
The Council adopted, on 29 June 1998, the Joint Action 98/428/JHA on the creation of a European Judicial Network (OJ L 191 of 07 July 1998, p.4) . The EJN was the first practical structured mechanism of judicial cooperation in the EU to become truly operational.
The principle that inspires it is quite simple: to identify and promote people in every Member State who play a fundamental role in practice in the area of the judicial co-operation in criminal matters, with the purpose of creating a network of experts to ensure the proper execution of mutual legal assistance requests. EJN gains particular significance in the context of the proclamation of the principle of direct contacts between competent judicial authorities.
National contact points are designated by each Member State among Central authorities in charge of international judicial co-operation, judicial authorities and other competent authorities with specific responsibilities in the field of international judicial co-operation, both in general and for certain forms of serious crime, such as organized crime, corruption, drug trafficking or terrorism.
Contact points are "active intermediaries", with the task of facilitating judicial cooperation between Member States, particularly in order to combat different forms of serious crime.
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26. Liaison Magistrates
Joint Action 96/277/JHA of 22 April 1996 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union
The tasks of liaison magistrates shall normally include any activity designed to encourage and accelerate all forms of judicial cooperation in criminal and, where appropriate, civil matters, in particular by establishing direct links with the relevant departments and judicial authorities in the host State. Under arrangements agreed between the home Member State and the host Member State, liaison magistrates' tasks may also include any activity connected with handling the exchange of information and statistics designed to promote mutual understanding of the legal systems and legal data bases of the States concerned and to further relations between the legal professions in each of those States.
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27. E.U.: IT’S EASY TO COOPERATE WITHOUT BORDERS
Within an area of free movement of persons we cannot combat crime by maintaining the obstacles to judicial cooperation in criminal matters, such as state sovereignty, non-extradition of nationals, bureaucratic extradition and MLA procedures. Thus, it is mandatory that the free movement applies also to criminal judgments and judicial authorities of the E.U. Member States, based on mutual trust and mutual recognition.
Thank you!
Răzvan RADU
Copyright 2007
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