CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE EUROPEAN JUDICIAL TRAINING NETWORK BARCELONA SEMINAR, 29-30 SEPTEMBER 2016 JORGE COSTA – PORTUGAL (This presentation was elaborated with the contributions made by JAN VAN GAEVER – Belgium and JUAN ANTONIO JABALOY – Spain and presented in a slightly different version in the Krakow’s , Barcelona’s and Scandicci’s seminars (2015)
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE I - GENERAL INTRODUCTION 1. Judicial authorities increasingly feel the need for “mutual (legal) assistance” in cross-border cases. 2. That need comes as a consequence of : a) An increased internationalization and complexity of the crime; b) Easier cross border movements of criminals and persons (witnesses, experts, victims) involved in the criminal proceedings. 3. By the other hand, the contributions of the police have been increasing in general aspects of the so-called “penal cooperation ”. 2
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 4. “Mutual legal assistance” is a request for support, issued by a (competent authority of a State and transmitted to (the competent authority) of another State, with the objective to ask the latter to take some action, namely to gather/collect and transmit to the first evidences, such as: - Hearings (of suspects, indicted persons, witnesses, victims, and experts); - Searches (of premises, including houses or professional offices); - Seizure/freezing of goods, products and evidences of crimes - Confiscation, including of bank accounts; 5. The classic forms of “mutual legal assistance” were the “ rogatory letters”. Those “ rogatory letters” are still in use, even if “new forms” now exist within the European Union. 3
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 6. LEGAL FRAMEWORK: The classic legal framework (Council of Europe and the first legal instruments in EU (Schengen Agreements)) - was based on principles, rules and practices that, nowadays, are not considered to be kind to an efficient cooperation. Why? - The communication channels are very formal and bureaucratic (diplomatic channels); - The rule of “locus regit actum ” : the requests are executed according to the law of the requested State, imposing possible difficulties on the requesting State, regarding the validity and admissibility of gathered evidence; -Unclear and multiple grounds of refusal; -Weak interaction between involved authorities. 4
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 7. MUTUAL LEGAL ASSISTANCE = EUROPEAN UNION “Mutual legal assistance” with the purpose of facilitating and reinforcing cross-border gathering of evidence, has been object of a strong evolution within the European Union. These are the main aspects: a) The adoption of the EU Convention of 2000 and the its respective Protocol, offering specific rules in relation to the existing legal framework (based on the Council of Europe Conventions and protocols; Schengen rules): (eg. direct contacts ; the rule of “forum regit actus ”, etc) b) A (new) legal framework to establish Joint Investigations Teams (JIT), in cross-border cases; c) The approval and implementation of new Framework Decisions and Directives, some of them based on the “principle of mutual recognition ”, with the goal to improve and facilitate mutual legal assistance/cooperation in specific areas (freezing of goods and evidences; confiscation, exchange of information, etc.), 5
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 8. OTHER RELEVANT ASPECTS SHOULD BE UNDERLINED: - Training: Common training of judges, public prosecutors and other actors has been developed last years, namely by ETJN and national schools. - New language skills : judiciary actors achieve language skills that allow them to speak to each other. 6
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE Even so, to turn into reality (to make effective) the cooperation/mutual assistance, we must be aware that the “law in action” is not less important than the “law in books”, being of the utmost importance to observe “good practices” in the everyday life of the Courts . Let’s see some “practical guidelines”… 7
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE II- GOOD PRACTICES IN PENAL COOPERATION A . GENERAL PRINCIPLES 1. GENERAL PRINCIPLE : PROPORTIONALITY CHECK : no trivial or disproportionate requests (e.g. no wiretap in a shoplifting case) 2. REQUESTS OF MUTUAL LEGAL ASSISTANCE ( Content, grounds and legal base ): a) The requests should be proper formulated in a clear way, specifying precisely what is requested. For example: distinction between a requestof the execution of mere freezing orders and a request of freezing orders in view of a future confiscation; distinction between a cross-examination of a suspect and the hearing of a witness or an expert; (why?..) b) The requests should contain as much “facts” as possible (who, what, when, where, why, how), even if in a summary description , allowing a good understanding about what is “in cause”; c) The description of the facts should be simple but clear, avoiding unnecessary or confusing use of legal terminology; 8
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE d) The reason for the request should be indicated; you should explain in your request why the hearing or the search is needed) e) The drafting of the request should be done or (at least) supervised by the (judicial) competent authority; (in most countries the administrative staff has insufficient knowledge of those matters) f) When possible, the international legal instrument(s) providing for the concrete requested cooperation should be mentioned (Treaty, Convention, Agreement, Framework Decision or Directive ) ; (this instruments are the “common base” of the cooperation) g) The classification of the request as “urgent” must be well evaluated by the issuing authority, and, if appropriate, it should be dealt as a priority by the executing authority; (all of you in your country are very busy…) h) A copy of national law should be attached and translated into a language accepted by the competent authorities, if possible; 9
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 3. TRANSLATION ( The request is transmitted to a colleague of another State , with a different native language and so you must translate that request. Some guidelines may help ): a) For a clear understanding of the requests, translation should be rigorous and of the highest quality, in both aspects: the concerned “facts” and the legal grounds; b)Translation should be done by experts, with deep knowledge on legal/criminal matters. A revision by the judicial competent authority is convenient; c) Agreements avoiding the need of translation should be taken into account and used; d)A copy of the original decision might be joined; 10
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 4. CONTACTS AND CONSULTATIONS ( DIALOGUE AND AGREEMENT: To create and consolidate a very “friendly professional relationship”) a)In requests and respective answers, authorities should include a maximum of contact details (telephone numbers; electronic addresses; fax; mail address) in order to facilitate the communication providing as many ways for mutual consultation as possible; b)b) Mutual consultations may/should be performed when deemed useful or necessary “to find a solution”, especially (i) in “complex” cases, (to explain and give clear/direct informations) (ii) in cases of concurrent prosecution or proceedings, (to convince … ) (iii) in starting own proceedings, and (will it be needed?) (iv) in the transmission of evidence (when and how); (were all requirements duly observed?) c) The contacts of the Central Authorities may help; d) The executing authority should confirm reception and keep the requesting authority informed (delays, etc) ; 11
CROSS BORDER GATHERING EVIDENCE “GOOD PRACTICES” IN MUTUAL LEGAL ASSISTANCE 5 . ISSUING/EXECUTING: To issue and execute in the best way possible…! a) Whenever the request should be executed according to specific rules and formalities, imposed by the law of the requesting State in order to guarantee the validity of the evidence, the issuing authority should specify those rules and formalities (example: hearing of minor suspects; searches of houses, professional offices (lawyer offices) or other measures (monitoring of bank accounts; wiretaps) for which a preceding judicial authorization is required. b) If it is not possible to execute according to those specific procedure rules, it is very important to talk and find a solution. c) The issuing authority should answer in a fast and clear way to the questions raised by the executing authority ; 12
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