EU Cross-Border Evidence Gathering and Use in Criminal Matters

1. EU cross-border gathering and use of evidence in criminalmatters in the EUFuturelegalframeworkunder the EIO 30 September 2016 – Barcelona

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

3. 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. 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 Applicablelaw (admissibility)

5. 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. 10.2 – 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 Applicablelaw (admissibility)

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

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

8. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar For the issuing MS • Art. 9.2 – Forum RegitActum • Identify procedures and formalities to include • Correctly interpret and apply • Concept: ‘Fundamental principle’ • No per se admissibility • Best outcome in 1-on-1 situation • Problemneedsalternativesollution • Towards minimum standards? • Cfr. DNA standards For the executing MS Applicablelaw (admissibility)

9. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Groundsforrefusal • Art. 11.1 – 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) Groundsforpostponement Quidcapacity concerns?

10. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Groundsforrefusal Groundsforpostponement Quidcapacity concerns?

11. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Groundsforrefusal • 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 Groundsforpostponement Quidcapacity concerns?

12. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Groundsforrefusal • 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 autexequiauttolerare rule? • Art. 9.4 • Request of IMS needs to be complied with • Unless against fundamental principles Groundsforpostponement Quidcapacity concerns?

13. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Transfer toyou • 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. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Transfer toyou • 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. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Transfer toyou • 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. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Transfer toyou • 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. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Transfer toyou • 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. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar Transfer toyou • Art 30 and following • Differencebetweentelephone tap andenvironmentaltapping. Transfer along Video conf. Telephone conf. Bank accounts Real time Covert ops Telephone tap

19. 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. Background MR Grounds Measures Conclusion • Conclusions 30 September 2016 | EJTN seminar • Mutual trust is accepted as theessential common standard amongjudicialauthorities. However, mutual trust is notgenerally present. Mutual trust canbeimproved, providedthatthere is a betterunderstandingandguarantee of common minimum standardstobeusedwhencoercive or intrusivemeasures are involved; • Today, free movement of evidence in the EU is notgenerallyaccepted. Most countrieswill accept theadmissibility of evidencebased on an assessment in light of theirownlegislation, meaningthatforeignevidencecan move freelytothem, providedthatit is guaranteedthattheforeignevidence was notgathered in a way thatwouldviolatethefundamentalprinciples of law of the trial state. For thosecountriestheadmissibilitydepends on theirownlegislation making it irrelevant toknowwhethertheevidencewouldbeadmissible in thegathering country. A minority of countriesupholdthatevidencecanonlybeadmissibleifalsoadmissible in thegathering country.

21. Background MR Grounds Measures Conclusion • Conclusions 30 September 2016 | EJTN seminar • There is no common approach on theadmissibilityandprobativevalue of information retrieved from ananonymouspolice informant. In some member statesthe information retrieved from ananonymouspolice informant (beit or not from another state) canbeusedonly as steering info (e.g. forinvestigationpurposes) but not as evidence; In other member statesitcanbeused as evidence, providedthatit is corroboratedbyotherevidence. • There is no common understanding on howtodeterminethe best placeforprosecution. In general, the member state wheretheoffencetookplacereceives significant weightbyallparticipatingcountries. More discussion is neededto set clearguidelines on howtodeterminethe best placeforprosecution as well as a decision on theposition of Eurojust (advisory or decidingrole) therein.

22. Background MR Grounds Measures Conclusion • Conclusions 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. Background MR Grounds Measures Conclusion 30 September 2016 | EJTN seminar • Questions and discussion

24. European Investigation Order Receipt Notification 30 September 2016 | EJTN seminar SECTION B - URGENCY Whatwouldbeanacceptableurgencyreason?

25. European Investigation Order Receipt Notification 30 September 2016 | EJTN seminar SECTION C - MEASURE Whatmeasureswould beacceptable?

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

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

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

29. European Investigation Order Receipt Notification 30 September 2016 | EJTN seminar SECTION G – GROUNDS | OFFENCE Will therebe a nationaldeclarationregardingtheoffence list?

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

31. European Investigation Order Receipt Notification 30 September 2016 | EJTN seminar SECTION I – FRA How do youdecidewhatformalitiesto 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. European Investigation Order Receipt Notification 30 September 2016 | EJTN seminar SECTION D – Info for IMS Is thereanythingelseyouwould like toknow?

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

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

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