Module 6 the pre-trial stage and obtaining evidence (Part I)
Version 3.0Module 6 the pre-trial stage and obtaining evidence
(Part I) Version 3.0
Module 6 the pre-trial stage and obtaining evidence (Part I)
Version 3.0
The European Judicialtraining network
With the support of the European Union
Project description
This module is part of a standard training programme in judicial
cooperation in criminal matters within the European Union (EU-Copen
Training Programme).
The programme as a whole is an educational training tool
designed to facilitate the training of judicial authorities in the
field of judicial cooperation in criminal matters within the
European Union. The tool is primarily aimed at any national
authority responsible for judicial training, for the purpose of
developing specific training courses on the subject, as well as to
any stakeholder involved in judicial cooperation as part of their
day-to-day professional practice. It may also be used by anyone
interested in this field.
The methodological approach of the standard programme aims to
provide authoritative information while also focusing on the
practical aspects of the mechanisms of judicial cooperation.
This tool was originally developed based on two projects run in
2005-2006, and subsequently in 2009, by the Institute for European
Studies (Free University of Brussels) and ECLAN (European Criminal
Law Academic Network) with funding from the European Commission
(under the AGIS programme and subsequently the 'Criminal Justice'
programme) of the Ministry of Justice of the Grand Duchy of
Luxembourg and the International University Institute of
Luxembourg.
In 2012, the European Judicial Training Network, which has been
involved in the Copen Training programme since it began, took over
the projects management and coordination. Version 3 (3.0) of the
Copen Training tool is therefore the property of the European
Judicial Training Network . Any comments regarding its content and
any requests for information about Copen Training should be sent to
[email protected], quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisle
Vernimmen and Anne Weyembergh. Veronica Santamara and Laura Surano
contributed to the previous versions.
How to use this document:The standard training programme in
judicial cooperation in criminal matters training tool and all
parts thereof are the property of the European Judicial Training
Network. Its use is subject to the following conditions:
1. Its content and layout cannot be altered in any way,
except:
- where space is explicitly provided for the insertion of data
relating to training organised on the basis of this standard
programme (organisers logo, date, place etc.)
- where space is explicitly provided for the insertion of data
relating to the national situation of the Member State
concerned
2. If the user feels that corrections or additions need to be
made to the content of the tool or parts thereof, provided each of
the following criteria is met:
- the additions or amendments must be accompanied by a foreword
indicating the origin of these amendments or additions
- these additions and amendments must be notified to the
projects development team [email protected], quoting Copen Training.
3. No section of the tool or its parts may be copied or
separated from the tool as a whole without the express permission
of the Institute for European Studies and of its authors.
Whats new in this version?
In particular, this new version (3.0) takes into account:
Implementation of Framework Decision 2003/577/JHA of 22July2003
on the execution of orders freezing property or evidence Work on
the proposed directive on the European Investigation Order and the
impact of the Framework Decision 2008/978/JHA of 18 December 2008
on the European Evidence Warrant.
Aims of this module
The aim of mutual judicial assistance in criminal matters is to
gather evidence located in another State that is necessary to the
investigation and criminal proceedings.
Modules 6 and 7 are therefore central parts of the training. The
earlier modules introduced the topic and described the tools for
facilitating cooperation but, ultimately, judicial cooperation at
the pre-trial stage entails being able to apply the procedures
described below.
This module provides an analysis of the cross-cutting issues
relating to obtaining evidence.
Module 7, which looks at the various investigative measures,
complements Module 6.
Relevant legislation
Council Framework Decision 2003/577/JHA of 22 July 2003 on the
execution in the European Union of orders freezing property or
evidence (Compendium B.5.1.
European Convention on Mutual Assistance in Criminal Matters of
20 April 1959 ( Compendium A.1.1.; its first additional protocol of
17 March 1978 ( Compendium A.1.2.; and its second additional
Protocol of 8 November 2001 ( Compendium A.1.3.
Convention of 19 June 1990 implementing the Schengen Agreement (
Compendium B.2.1.
Convention of 29 May 2000 on Mutual Assistance in Criminal
Matters between the Member States of the European Union (
Compendium B.3.10; and its additional Protocol of 16October2001 (
Compendium B.3.11.
Proposal for a Directive on the European Investigation Order
(EIO Directive), as provisionally approved by the Council in
December 2011 ==> Compendium B.5.9.
Contents
71.What is the legal framework for obtaining evidence?
1.1.Obtaining evidence (judicial cooperation) and information
gathering (police cooperation): making the most efficient
choice71.2.Mutual legal assistance or mutual
recognition?71.3.Towards a comprehensive reform of cooperation in
obtaining evidence: the European Investigation Order81.4.Navigating
the multiple instruments92.Scope112.1.Severity of the
offence112.2.Type of proceedings112.2.1Mutual legal
assistance:112.2.2Mutual recognition113.Form and content of the
request123.1.Mutual legal
assistance:123.1.1Content123.1.2Form123.1.3Translation133.2.Mutual
recognition:134.Medium and means of transmitting the
request154.1.Medium and means of transmission154.2.Transmission of
the request154.2.1Mutual legal assistance:154.2.2Mutual
recognition:164.2.3In practice: how does direct contact
work?174.2.4Best practice175.Nature of the execution
procedure206.General grounds for refusal to execute a
request216.1.Mutual legal assistance:216.2.Mutual
recognition227.Double criminality247.1.Mutual legal
assistance:247.1.1The basic rule on double criminality in obtaining
evidence247.1.2Implicit or explicit extension to other
investigative measures257.2.Mutual recognition:258.Procedural law
applicable to executing a request278.1.The locus regit actum
principle278.2.Qualification of the principle278.3.Practical
implications:279.Admissibility of evidence299.1.Lack of European
rules on admissibility of evidence299.2.How can these difficulties
be overcome?2910.Rights of legal remedy against the investigative
measure3110.1.Mutual legal assistance3110.2.Mutual
recognition3111.Subsequent use of evidence gathered in this
way33
1. What is the legal framework for obtaining evidence?
1.1. Obtaining evidence (judicial cooperation) and information
gathering (police cooperation): making the most efficient
choice
This section looks at obtaining evidence, that is, the necessary
elements to constitute the criminal case. As we saw in the module
on police cooperation (Module 5), this must be fully utilised at an
early stage in the investigation, when information is not yet being
gathered as evidence but instead in order to close off avenues in
the various directions the investigation might take. Investigators
prefer to use police cooperation insofar as possible, since it is
more flexible than mutual legal assistance, particularly since it
can allow direct access to the national databases of another Member
State (see Module 5).
The two forms of cooperation are not heterogeneous. Thus, with
regard to DNA profiling, direct access to national databases (Prm
Treaty system, see Module 5) only tells us whether information
exists about the profile concerned (hit/no hit system). To be able
to obtain information about the person concerned, it is often
necessary to use mutual legal assistance in criminal matters.
Furthermore, information that is gathered via police cooperation
and that proves decisive may be validated via judicial cooperation
for use as evidence. This applies solely to information; physical
material is only exchanged through mutual legal assistance.
See Module 5 for more information about the exchange of
information through police cooperation.
1.2. Mutual legal assistance or mutual recognition?
Currently, obtaining evidence is still principally governed by
mutual legal assistance. The situation concerning application of
the principle of mutual recognition of judgments in criminal
matters (see Module 2) for obtaining evidence is somewhat
confusing. There are two Framework Decisions:
Framework Decision 2008/577/JHA of 22 July 2003 (Compendium
B.5.1.), which covers preventive seizure: this is applicable and
implemented in the national law of most Member States (albeit with
many shortcomings) see, in Module 7, the section on the freezing of
evidence. In reality, the FD is rarely applied by judicial
officers, who consider the system too cumbersome and complex and
often prefer mutual legal assistance. It will probably be replaced
by the Directive on the European Investigation Order. Council
Framework Decision 2008/978/JHA of 18 December 2008 on the European
Evidence Warrant (Compendium B.5.4.): this was due to be applied
from 9 January 2011 but has been widely criticised. This is
particularly due to the fact that it only applies to gathering
pre-existing evidence (e.g. searches, but not the hearing of
witnesses or surveillance) and therefore presupposes a
much-criticised fragmentation of the legal framework for obtaining
evidence. The Directive on the European Investigation Order is due
to replace this Framework Decision. In the meantime, Framework
Decision 2008/978/JHA is still applicable in principle but has in
reality been transposed by only two Member States (Denmark and
Finland). Although unsatisfactory from a legal perspective, this
situation is made less problematic by the fact that, under the EEW,
the use of mutual legal assistance is left to judicial officers
discretion.
The current situation is therefore that mutual legal assistance
remains the legal framework applicable to obtaining evidence
between the EU Member States, with the exception of preventive
seizure (freezing of evidence), where it coexists with Framework
Decision 2003/577/JHA. In the event that Framework Decision
2003/577/JHA is applicable, the issuing authority may choose
between the two systems.
1.3. Towards a comprehensive reform of cooperation in obtaining
evidence: the European Investigation Order
In the Stockholm Programme adopted in December 2009, the
European Council considered that in the matter of obtaining
evidence, the existing instruments in this area constitute a
fragmentary regime. A new approach is needed, based on the
principle of mutual recognition, but also taking into account the
flexibility of the traditional system of mutual legal assistance.
The European Council called for a comprehensive system to replace
all the existing instruments in this area, including Framework
Decision 2008/978/JHA on the European Evidence Warrant, covering as
far as possible all types of evidence and containing deadlines for
enforcement and limiting as far as possible the grounds for
refusal.On the basis of this mandate, several Member States
submitted a proposal for a Directive on the European Investigation
Order (hereinafter, the EIO Directive) in March 2010. These
negotiations were particularly challenging and were a true test for
post-Lisbon Treaty mutual recognition. We will refer to the version
provisionally approved by the Council in December 2011, but which
has yet to be negotiated with the European Parliament (Compendium
B.5.9.).
The main thrust of the proposal was as follows:
A comprehensive system covering all evidence, to end the current
fragmentation;
A system based, as in mutual legal assistance, on the type of
investigative measure to be executed, rather than, as in the FD on
the EEW, on the type of evidence to be gathered; A system based on
mutual recognition of judgments in criminal matters which avoids
some of the formalism of the existing instruments of mutual
recognition and seeks to preserve the flexibility of mutual legal
assistance;
Deadlines for execution.
It seems clear that if the EIO Directive is one day adopted, its
scope will indeed be general and will cover all types of
evidence.
However, the institutions differ on the key issue of the
verification that may or may not be exercised by the executing
authority concerning the decision taken by the issuing authority,
as well as on how to address procedural rights. Although the EIO
Directive is an opportunity for a comprehensive reform of the
framework for obtaining evidence in the EU, it remains to be seen
whether a solution can be found to reconcile the different
positions while at all costs avoiding creating a system that would
make the work of judicial officers more complicated than in mutual
legal assistance.
This uncertainty means it is too early to present the EIO in
detail: it is impossible to know at this stage how it will look
once negotiations have ended. We will return later on in this
module, as well as in Module 7 (specific procedures for obtaining
evidence), to some proposed solutions in the EIO, but it must be
borne in mind that at this stage we cannot know whether these
solutions will be retained in the final text.
The proposed EIO Directive does, however, has a concrete impact:
tabled by the Member States in order to avoid using the FD on the
evidence warrant, its effect is that most Member States have
already abandoned implementing the aforesaid FD into their domestic
law (see above).
1.4. Navigating the multiple instrumentsWhether as requesting
authority or requested authority, to obtain evidence effectively
judicial officers must juggle a large number of separate
international instruments.
As we have seen, it is first necessary to determine whether the
applicable system falls under mutual legal assistance or mutual
recognition. In the latter, it is the applicable Framework Decision
that determines the legal system. In the case of mutual assistance,
the framework is more complex:
1. The basic framework remains the Council of Europes
International Convention of 1959 on Mutual Assistance in Criminal
Matters (hereafter, the 1959 Convention) (Compendium A.1.1).
2. However, this Convention has been supplemented (but not
replaced) by a number of general instruments:
The first additional protocol (1978) and the second additional
protocol (2001) to the 1959 Convention (Compendium A.1.2. and
A.1.3.);
The Convention implementing the Schengen Agreement (1990),
hereinafter, the Schengen Convention (Compendium B.2.1.);
NB: The articles of the Schengen Convention relating to mutual
legal assistance in criminal matters apply between all EU States
with the exception of Ireland (see Module 1).
The Convention on Mutual Assistance in Criminal Matters between
the Member States of the European Union (2000), hereafter, the 2000
Convention (Compendium B.3.10);
The additional protocol to the Convention on Mutual Assistance
in Criminal Matters between the Member States of the European Union
(2001), hereafter, the 2001 Protocol ( Compendium B.3.11).3.
Bilateral instruments or those specific to a small group of States
(e.g. Nordic cooperation, Benelux countries) also apply: the scope
of this standard training does not, however, allow them to be taken
into account here.
4. In addition, specific rules are laid down for certain
investigative measures. Most are provided for in the aforesaid
instruments but some arise from other instruments (e.g. Article29
et seq. of the Council of Europe Convention of 23November2001 on
Cybercrime).
NB: This module often refers to certain conventions signed a
long time ago, whose ratification involved political commitments
that have been ratified by a large majority of Member States and
have entered into force. Unfortunately, these conventions are not
yet applicable with the few States that have not yet ratified them.
Particular attention is drawn to the following failures to ratify
(as at 1 November 2012):
2000 Convention: GR, ITAL, IRL
2001 Protocol to the 2000 Convention: EST, GR, ITA, IRL
2. Scope
2.1. Severity of the offence
Unlike extradition or the European arrest warrant, judicial
cooperation for the purposes of obtaining evidence is not limited
by the severity of penalty attached to the offence concerned and
may therefore be used even for minor offences.
This issue of the severity of the offence may, however, reappear
at different levels (see below):
Verification of double criminality
Impossibility of using the measure in question in the
executing/requested State for this type of offence
Lack of proportionality between the measure sought and the
severity of the acts
2.2. Type of proceedings
The mutual legal assistance described here of course applies to
obtaining evidence in the context of criminal proceedings but may,
more often than not, also be used in other contexts that are not
strictly criminal in nature.
2.2.1 Mutual legal assistance:
Pursuant to Article49 of the Schengen Convention (Compendium
B.2.1) and Article3 of the 2000 Convention (Compendium B.3.10),
mutual legal assistance must be considered applicable, in addition
to in criminal proceedings:
a) In proceedings brought by the administrative authorities in
respect of acts that are punishable under the national law of one
of the two Contracting Parties, or of both, by virtue of being
infringements of the rules of law, and where the decision may give
rise to proceedings before a court whose jurisdiction covers
criminal matters;
b) In proceedings for claims for damages arising from wrongful
prosecution or conviction;
c) In clemency proceedings;
d) In civil actions joined to criminal proceedings, as long as
the criminal court has not yet taken a final decision in the
criminal proceedings.
2.2.2 Mutual recognition
Framework Decision 2003/577/JHA of 2003 on freezing property is
very restrictive on this point, since Article1 only cites criminal
proceedings (Compendium B.5.1).
Framework Decision 2008/978/JHA of 18December2008 on the
evidence warrant ( Compendium B.5.4.), on the other hand, contains
the same extensions as indicated above for mutual legal
assistance.
3. Form and content of the request
The form and content of the request vary depending on the system
applicable:
3.1. Mutual legal assistance:
3.1.1 Content
Article 14 of the 1959 Convention (Compendium A.1.1) states that
mutual assistance requests should indicate the following:
The authority making the request
The object of and the reason for the request
Where possible, the identity and the nationality of the person
concerned
Where necessary, the name and address of the person to be
served
The offence
A summary of the facts
The last two points are only formally required for requests for
the purposes of:
Procuring evidence or transmitting articles to be produced in
evidence, records or documents
Carrying out searches or seizures
Hearing witnesses or experts on oath
Enabling the presence of the requesting authority or interested
persons during execution of the request
These categories are broad and it is simpler to assume that the
six types of information must always be cited in the request.
It should also be noted that the requirements of Article14 are
minimum requirements. More specific formalities may be required for
some types of measure (see below). This is the case with regard to
intercepting telecommunications or obtaining banking
information.
3.1.2 Form
The Conventions do not prescribe a specific format for mutual
legal assistance requests. There are, however, two tools for
standardising these requests to some degree, thus making them
easier for the requested authority to process.
The cover note: this standard cover note is designed to
accompany mutual assistance requests (Annex A to this module,).
This cover note greatly facilitates the processing of the request
by the requested State and subsequent provision of information to
the requesting State. This form is available from the following
address:
http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=485&lang=EN&mode=g
The Compendium: this is a tool, available on the EJN website
(http://www.ejn-crimjust.europa.eu/), encompassing a number of EJN
parameters and tools to help judicial officers draft their mutual
assistance requests (see Module 4).
Indicate here whether your State has standard mutual assistance
requests and attach these templates to the training module
3.1.3 Translation
Article 16 of the 1959 Convention (Compendium A.1.1) states
that, as a rule, the mutual assistance request and annexed
documents do not have to be translated. However, it allows Member
States to make a declaration that they do require documents to be
translated into French, English or national language of the
requested State.
Almost all EU States have made such a declaration. A table is
attached showing the language arrangements that apply, depending on
the requested State (Annex 1 to this module, at the end of this
document).
3.2. Mutual recognition:
If mutual recognition applies, it is mandatory to use the
certificate or warrant provided for in the applicable Framework
Decision (see below). Using a certificate (as in the 2003 Framework
Decision on freezing property) means that both the judgment to be
executed and the certificate in question must be transmitted. By
contrast, a warrant (as in the Framework Decision on the European
arrest warrant and, in future, the Framework Decision on the
European evidence warrant) is sufficient in itself.
With regard to translation, the basic rule is that the
certificate or warrant must be transmitted in one of the national
languages of the executing State. That State may, however, declare
that it will accept certificates transmitted in another language.
See Module7, in the sections on freezing property and search and
seizure, for a list of the languages accepted. In the case of a
certificate, where the decision to be executed must therefore be
annexed, the fact that the texts are silent on this point would
imply that the executing State cannot require a translation of that
decision.
4. Medium and means of transmitting the request
4.1. Medium and means of transmission
In the case of mutual legal assistance, as with mutual
recognition, provision is made for requests/certificates/warrants
to be transmitted by any means capable of producing a written
record, under conditions allowing the receiving (or executing)
State to establish authenticity.The document containing the request
may be transmitted by post or by courier. Most States also allow it
to be transmitted by fax, or an interim copy to be transmitted by
fax before the original is received. Electronic transmission is
unfortunately not yet sufficiently widespread.
A secure network has existed since 2009 between the contact
points of the European Judicial Network, but its implementation is
gradual (see Module 4, Section 2 on the EJN). In cases when a fax
is not sufficient or is not considered sufficiently secure, it is
therefore possible to transmit requests/certificates/warrants in
this way.
4.2. Transmission of the request
As seen in Module2, the rules on transmission of the request
have evolved considerably. Direct contact between locally competent
judicial authorities is now favoured, even though there are
numerous exceptions to this rule, depending on the States
involved.
4.2.1 Mutual legal assistance:
4.2.1.1 The rule: direct contact between locally competent
judicial authorities
Since Article53 of the Schengen Convention (Compendium B.2.1),
confirmed by Article 6(1) of the 2000 Convention (Compendium
B.3.10), mutual legal assistance within the EU has favoured direct
contact between competent judicial authorities.
This means that exchanges taking place in the context of mutual
assistance requests no longer have to go via the ministries of
justice (nor, a fortiori, through diplomatic channels). It also
means that such direct contact between judicial authorities at the
smallest level of geographic division must be encouraged if these
are the authorities competent to send, receive or execute a
request.
This rule does not necessarily signal the end of government
intervention in proceedings, for example to authorise execution of
a mutual assistance request. However, as a rule, ministries of
justice only liaise with the judicial authorities of their State.
Contact with the requesting State is for the judicial authorities
only.
4.2.1.2 Exceptions: going via a central authority
There are a number of exceptions to this rule of direct contact
between locally competent judicial authorities, where it is still
possible to go through a central authority (such as the Ministry of
Justice):
a) In specific cases, going through a central authority is still
permitted (Article6(2) of the 2000 Convention): this situation
must, in principle, become the exception. It may, for example,
arise when the requesting authority does not have the necessary
information to identify the requested judicial authority. It must
at least be inferred that no negative legal consequences may be
attached to the fact that the requesting Member State has gone
through government channels.
b) There is express derogation for the United Kingdom and
Ireland, which still operate through government central authorities
(the Home Office for the United Kingdom and the Ministry of Justice
for Ireland).
c) In urgent cases, mutual assistance requests may also be sent
via Interpol.
d) Information on convictions and extracts from criminal records
continue to go through the central authorities (see below).
e) It is also possible to send mutual assistance requests via
Eurojust: Eurojust thus merely acts as a channel for transmitting
the request and subsequent contact will be between competent
judicial authorities direct. To reiterate, it is especially useful
to go through Eurojust when there is a specific need to coordinate
transmission or execution of requests (see Module 4).
f) Lastly, it should be noted that certain Member States have
retained the requirement to go through the Ministry of Justice,
even though this is contrary to the binding rules outlined above: a
judicial authority wishing to send a mutual assistance request to
one of these States unfortunately has no choice but to comply with
this requirement. In principle, this requirement to go through the
Ministry of Justice should not prevent subsequent direct contact
between competent judicial authorities.
4.2.2 Mutual recognition:
The mutual recognition instruments follow this same trend:
The basic rule is, of course, direct exchange between competent
judicial authorities. States that wish to do so may designate a
central authority, but this authority may only play an
administrative role in transmitting decisions for execution and
cannot therefore play a filtering role. In the Framework Decision
on freezing assets, only the United Kingdom and Ireland are
afforded this option (Article 4(2)). However, the instruments
adopted since EU enlargement in 2004 allow any Member State to make
use of this derogation: such is the case with the Framework
Decision on the European evidence warrant (Article 3(2)).
4.2.3 In practice: how does direct contact work?
4.2.3.1 Identifying the competent authority It is not easy to
identify the locally competent judicial authority in another State,
since this requires understanding the internal judicial system of
the State in question. It is also necessary to know whether this
State is complying with its obligations or continues to require
contact through the Ministry of Justice.
That is why the EJN has developed an Atlas for the transmission
of mutual assistance requests. This Atlas, available on the EJN
website (see Module 4) makes it possible, based on a number of
parameters (requested State, locality concerned, type of procedure,
urgent or non-urgent, type of measure requested), for the
requesting judicial authority to obtain the specific contact
details (name, address, telephone, fax, e-mail) of the judicial
authority competent to receive its request.
http://www.ejn-crimjust.europa.eu/ejn/EJN_EAWAtlas.aspxNB:
Atlas must be updated in line with each Framework Decision on
mutual recognition. Although this is already the case for the
European arrest warrant, Atlas is not yet equipped to identify the
authorities locally competent to receive a decision on freezing
assets for execution in conformity with the 2003 Framework
Decision. In such situations, you are advised to contact an EJN
contact point.
The Compendium incorporates Atlas functionality: if judicial
authorities use the Compendium to draft their mutual assistance
requests, the tool identifies for them the authority competent to
receive the request.
4.2.3.2 Contact problems?Sometimes, despite using Atlas, direct
contact does not work for various reasons: incorrect contact
details in Atlas, human communication problems, language
difficulties, etc.
In such cases, it is strongly recommended that the judicial
authority concerned contact an EJN contact point of its own Member
State. If there is a specific need for coordination, Eurojust may
also be called upon.
4.2.4 Best practice
Joint Action of 29 June 1998 on good practice in mutual legal
assistance in criminal matters includes examples of best practice
for facilitating judicial cooperation. These are rules of protocol
that must be promoted and observed. Some of these became binding in
the 2000 Convention:a) Where requested to do so by the requesting
Member State, to acknowledge all requests and written enquiries
concerning the execution of requests unless a substantive reply is
sent quickly; the requesting Member State may not require an
acknowledgement unless the request is marked urgent by that Member
State or, in its view, an acknowledgement is necessary in the light
of the circumstances of the case;
Note: Compliance with this good practice will be made easier if
the requesting authority includes the standard cover note mentioned
above in its mutual assistance request.
Note: the proposed EIO Directive provides for systematic
acknowledgement of receipt within one week of receipt of the
request. This provision does not appear to be contentious (Article
15, Council doc. EU 18918/11, Compendium B.5.9).b) When
acknowledging the requests and enquiries referred to in this
paragraph, to provide the requesting authority with the name and
contact details, including telephone and fax numbers, of the
authority, and if possible the person, responsible for executing
the request;c) To give priority, as far as it is not contrary to
the law of the requested Member State, to requests which have
clearly been marked urgent by the requesting authority; and to
treat requests, whether or not marked urgent no less favourably
than comparable enquiries made in the requested Member State on
behalf of that Member State's own authorities;
d) Where the assistance requested cannot be executed in whole or
in part, to give the requesting authorities a written or oral
report explaining the difficulty and where possible offering to
consider jointly with the requesting authority how the difficulty
might be overcome;
e) Where it is foreseeable that the assistance cannot, or cannot
fully, be provided within any deadline set by the requesting Member
State and that this will impair proceedings in the requesting
Member State, promptly to give its authority a written or oral
report, and any further reports requested by that authority
explaining when the assistance requested is likely to be
provided;
f) To submit requests for assistance as soon as the precise
assistance needed is identified and, where a request is marked
urgent or a deadline is indicated, to explain the reasons for the
urgency or deadline; the Statement shall include an undertaking not
to mark as urgent requests which are of minor importance;
g) To ensure that requests are submitted in compliance with the
relevant treaty or other international arrangements;
h) When submitting requests for assistance, to provide the
requested authorities with the name and contact details, including
telephone and fax numbers, of the authority and, if possible, the
person responsible for issuing the request
Note: See standard cover note mentioned above.
5. Nature of the execution procedure
To reiterate, judicial cooperation has only been partly
judicialised, particularly as regards obtaining evidence:
Mutual legal assistance: despite direct contact between judicial
authorities, it is still possible for each State to involve an
administrative or government authority in the execution of a mutual
assistance request, or even to give that authority decision-making
power.
Mutual recognition: in mutual recognition, the procedure has
been fully judicialised; the central authority only plays a
supporting or intermediary role. The decision on execution of the
foreign decision therefore lies with a judicial authority (except
in cases of incorrect transposition of the Framework Decisions by a
Member State).
6. General grounds for refusal to execute a request
6.1. Mutual legal assistance:
The grounds for refusal to execute a request under mutual legal
assistance are divided into three categories. Only the last of
these will be discussed here:
Double criminality, which will be looked at in the next section
of this chapter
Specific grounds for refusal referred to in the special
procedures for certain investigative measures, which will be
analysed in the second part of this module
General grounds for refusal
The general grounds for refusal are set out in Article 2(2) of
the 1959 Convention. Mutual legal assistance may thus be refused if
the requested Party considers that execution of the request is
likely to prejudice the sovereignty, security, law and order or
other essential interests of its country.This very broad wording
makes it possible to cover two sets of reasons:
a) Political reasons for refusal: risk of prejudicing the States
sovereignty, national security, essential economic interests, etc.
These grounds for refusal are linked to the fact that, under the
mutual assistance system, the final decision on execution of the
request may be entrusted to the government (see above).
b) Legal reasons for refusal: these grounds may be multiple and
cannot be listed here. However, attention is drawn to the following
points:
1. The impossibility of using the requested measure in the
executing State for this type of offence or lack of proportionality
between the measure sought and the severity of the acts:
While not explicitly addressing these situations, the
arrangements for interception of telecommunications refer to the
possibility of refusing to execute a request if the measure could
not be taken in a similar national case (Article 20(4) c) of the
Convention of 29 May 2000): this wording makes it possible to
refuse execution in the two instances mentioned.
By contrast, this possibility of refusal should not exist
elsewhere in mutual legal assistance. The general grounds for
refusal (reasons of law and order, for example) still make it
possible to make use of these limitations. However, this does not
mean that using them is desirable.
2. Refusal to execute a request concerning a fiscal offence:
this reason for refusal, explicitly referred to in Article2(1) of
the 1959 Convention, was abolished by Article8 of the
2001Protocol.
3. Refusal to execute a request concerning a political offence
(i.e. refusal based on the fact that the offence was motivated by
political objectives): this reason for refusal, explicitly referred
to in Article2(1) of the 1959 Convention, was, in principle,
abolished by Article9 of the 2001Protocol. Each Member State may,
however, declare that it will limit this waiver to specific
terrorism offences. Of the 18 Member States that had ratified the
Protocol as at 1 November 2012, only three States have made this
declaration (France, Denmark and Latvia).
4. Refusal to execute a request concerning breach of banking
secrecy: this reason for refusal, which was not explicitly
mentioned but could be considered as covered by Article 2(2) of the
1959 Convention and was often invoked by certain Member States, was
abolished by Article7 of the 2001Protocol.
6.2. Mutual recognition
The grounds for refusal are reduced significantly in the
framework decisions on mutual recognition.Political grounds for
refusal no longer exist, coupled with the fact that the procedure
has been fully judicialised.
In addition, the grounds for refusal are no longer defined by
reference to vague concepts such as law and order, but in relation
to more precise notions such as amnesty and statute of
limitations.
The grounds for refusal common to the two mutual recognition
instruments currently governing the obtaining of evidence (FD
2003/57/JHA on the freezing of evidence and FD 2008/978/JHA on the
European Evidence Warrant) concern:
Infringement of the ne bis in idem principle:the Framework
Decision on freezing property requires, however, that it is
instantly clear from the information provided in the certificate
(Article 7(1) c)) that this principle would be infringed, whereas
the Framework Decision on obtaining evidence is vague on this point
(Article 13(1) a) see Module 9 for more information on the ne bis
in idemprinciple)
Immunity or privilege
Incomplete or incorrect warrant or certificate
However, the Framework Decision on the European evidence warrant
also contains other grounds for refusal, about which we will not go
into detail here, since this instrument is not applied.
The proposed EIO Directive should contain somewhat new rules on
grounds for refusal but it is too early to say exactly how it will
look. As indicated above, the question of verification of the
issuing authoritys decision by the executing authority is central
to the differences of opinion between the institutions: the grounds
for refusal are therefore inevitably affected.
7. Double criminality
The double criminality requirement varies, depending on whether
the framework is mutual legal assistance or mutual recognition.
7.1. Mutual legal assistance:
7.1.1 The basic rule on double criminality in obtaining
evidence
Article 5 of the 1959 Convention states that:
Any Contracting Party may, by a declaration addressed to the
Secretary General of the Council of Europe, when signing this
Convention or depositing its instrument of ratification or
accession, reserve the right to make the execution of letters
rogatory for search or seizure of property dependent on one or more
of the following conditions:a) that the offence motivating the
letters rogatory is punishable under both the law of the requesting
Party and the law of the requested Party;
b) that the offence motivating the letters rogatory is an
extraditable offence in the requested country;
c) that execution of the letters rogatory is consistent with the
law of the requested Party;
d) Where a Contracting Party makes a declaration in accordance
with paragraph 1 of this article, any other Party may apply
reciprocity.Article 51 of the Schengen Convention, for its part,
states that:
The Contracting Parties may not make the admissibility of
letters rogatory for search or seizure dependent on conditions
other than the following:a) the act giving rise to the letters
rogatory is punishable under the law of both Contracting Parties by
a penalty involving deprivation of liberty or a detention order of
a maximum period of at least six months, or is punishable under the
law of one of the two Contracting Parties by an equivalent penalty
and under the law of the other Contracting Party by virtue of being
an infringement of the rules of law which is being prosecuted by
the administrative authorities, and where the decision may give
rise to proceedings before a court having jurisdiction in
particular in criminal matters;
b) execution of the letters rogatory is consistent with the law
of the requested Contracting Party.Article 51 of the Schengen
Convention does not replace Article 5 of the 1959 Convention but
specifies that no conditions other than the following may be
prescribed. It must be inferred from combining these two Articles
that:
a) The double criminality requirement is only permissible if
execution of the mutual assistance request makes it necessary to
carry out a search or seizure (however, see below);
b) Applying reciprocity is no longer permissible within the EU
in this area;
c) The EU States cannot use Article 5(b) of the 1959 Convention,
i.e. the requirement for an extraditable offence, between
themselves (since this condition is more restrictive than the one
found in Article51 of the Schengen Convention);
d) The EU States may therefore, between themselves:
Waive the double criminality rule;
Apply double criminality without reference to a minimum
penalty;
If they apply double criminality with a minimum penalty, require
that the penalty in question is up to six months.
Lastly, it should be noted that, if the mutual legal assistance
request seeks a transfer of evidence that was frozen pursuant to
the Framework Decision of 22July2003 on freezing property (= mutual
recognition), partial waiver of the double criminality that applies
to the freezing itself (see below) is also valid for this transfer
of property even if it is governed by mutual legal assistance (see
Module 7).
7.1.2 Implicit or explicit extension to other investigative
measures
In the aforesaid Articles, the double criminality requirement is
only permissible if execution of the mutual assistance request
necessitates carrying out a search or seizure. On the contrary,
this verification cannot therefore take place for other
investigative measures. This statement must be qualified at three
levels:
1. Several subsequent international instruments have created a
specific procedure for certain investigative measures and have
directly or indirectly provided for a double criminality
requirement (see below, aspects of cooperation concerning banking
information and interception of telecommunications).
2. Some consider that the double criminality requirement may
also be used for other investigative measures not expressly
referred to but which are at least as coercive as search or
seizure, or more so. Extending this requirement necessitates two
comments:
This extension cannot apply to investigative measures expressly
referred to in other European international instruments, unless the
double criminality requirement has been provided for;
When it is permissible, this extension must be interpreted
narrowly: it would not be possible, for example, to require double
criminality for simply hearing witnesses.
3. It is still possible to indirectly apply the double
criminality requirement more broadly, through the ground for
refusal based on law and order: such an extension should, however,
in a European judicial area, remain the exception.
7.2. Mutual recognition:
Under the mutual recognition system, the double criminality
requirement is in principle strictly limited but not entirely
abolished.
This is the case in FD 2003/577/JHA on freezing evidence.
Remember that this FD focuses on preventive seizure and therefore
on one of the two measures for which mutual legal assistance
explicitly maintains the possibility of verification of double
criminality. FD 2003/577/JHA applies the approach adopted in the FD
on the European Evidence Warrant verification of double criminality
is generally possible, except where the following conditions are
met:
The offence in question is punishable by a custodial sentence of
at least 3 years in the issuing State;
This offence, as defined by the law of the issuing State, is
included in a list of 32 categories of offences.
The reference to the law of the issuing State, rather than that
of the executing State, is crucial to explaining this limitation of
the verification of double criminality. The executing judicial
authority may consequently not verify correspondence between the
classification of the offence and its domestic law (nor of course
the severity of the penalty). In other words, the executing
authority must confine itself to noting that the issuing authority
has ticked one of the 32 boxes in the list contained in the
certificate or warrant (see below).
In addition, the terms included in this list of 32 categories of
offence should be interpreted flexibly by the issuing authority
when completing the certificate or warrant. It is of course not
required that exactly the same terms (e.g. sabotage) are used in
domestic law. The wording is generic.
FD 2008/978/JHA on the European Evidence Warrant, which is not
applicable in practice, provides for similar rules where evidence
is gathered through a search or seizure.
It is not possible to know how double criminality will be
regulated in the proposed EIO Directive. The initial proposal
removed any verification of double criminality, whereas the version
approved by the Council in December 2011 provides for a
differentiated procedure depending on the investigative
measure.
8. Procedural law applicable to executing a request
8.1. The locus regit actum principle
The procedural law applicable to executing a request is the law
of the requested (or executing) State. This basic principle of
locus regit actum is valid for both mutual legal assistance and
mutual recognition. 8.2. Qualification of the principle
Rigid application of the locus regit actum principle may be
problematic, since application of the procedural law of the
requested State ensures the admissibility of the evidence in that
State but not necessarily in the requesting State where more
stringent, or simply different, formalities are required. However,
it is for use in this latter State that the evidence is
obtained.
That is why, in the case of both mutual assistance and mutual
recognition, a qualification to the governing law principle is now
provided for:
The procedural law applicable is that of the requested (or
executing) State.
BUT the requested State must apply the formalities and
procedures required by the requesting State, provided these
formalities and procedures are not contrary to the fundamental
principles of law of the requested State.
This therefore creates a hybrid system, a mixture of locus regit
actum and forum regis actum.8.3. Practical implications:
1. The requesting authority must always ensure that in the
request it expresses clearly the formalities and procedures that
must be applied in the requested State, to avoid prejudicing the
admissibility of the evidence
2. The precise scope of this system for each individual case
will depend on how the phrase formalities and procedures not
contrary to the fundamental rights of the requested State is
interpreted. It may be inferred that the requested authority should
always apply the formalities and procedures required by the
requesting authority when these formalities and procedures:
involve purely formal modifications that do not affect the
rights of individuals and do not invalidate the evidence in the
requested State
involve measures that increase protection of the rights of the
defendant without prejudicing the rights of victims.
Example
If the requesting authority requires that no lawyer be present
during a suspects hearing, whereas the law of the requested State
provides for a lawyers presence, it may be anticipated that this
requirement will be rejected. If, on the other hand, the requesting
authority requires a lawyer to be present during the hearing,
whereas it is not mandatory in the requested State, the requested
authority should accept this requirement, which does not prejudice
its own legal system and is necessary to ensure the admissibility
of the evidence.
ex_mod6_v10j_1.1Note ECHR case-law: There is very little case
law of the European Court of Human Rights concerning mutual legal
assistance in criminal matters, but an important judgment was
delivered in the Stojkovic v France & Belgium case (EU Court
HR, 27 October 2011). The case concerned the hearing of an
individual in a Belgian prison in connection with French letters
rogatory. The person was heard without the assistance of their
lawyer, which was in accordance with Belgian law but not French
criminal procedure, given the individuals assisted witness status
in the investigation in France. In his letters rogatory, the French
investigating judge also requested the presence of a lawyer. The
Convention of 29 May 2000 only entered into force one year after
the hearing in question and the Court did not refer to it in its
decision. It concluded that France had breached Article 6 ECHR
because the individual did not benefit from the rights granted to
them under French law, but did not conclude that Belgium was in
breach.9. Admissibility of evidence
9.1. Lack of European rules on admissibility of evidence
Currently, there is no binding instrument concerning the
admissibility of evidence gathered in another Member State.
Therefore, the national law of the requesting State applies.
National laws vary on this point.
The mere fact that evidence was obtained abroad is clearly not
enough to bypass all the procedural rules considered fundamental in
the State where this evidence is to be used. On the other hand, it
is often accepted that evidence may have been obtained improperly
according to the law of the requesting State or of the requested
State, without this necessarily making the evidence inadmissible.
This occurs to varying degrees.
For example, if the search cannot take place during the night in
the requesting State, is evidence gathered during such a search in
the requested State inadmissible in the requesting State?
Insert here the rules in force in your country according to
legislation or case-law
There is also no (or almost no) harmonisation of investigative
measures. The procedural requirements of the different legal
systems may therefore vary, creating problematic situations in
terms of admissibility of evidence.
9.2. How can these difficulties be overcome?
These difficulties can usually be overcome if the judicial
officers involved, with assistance from the EJN or Eurojust if
necessary, address this problem immediately and duly communicate
with each other on this point.
To reiterate (see above concerning governing law), the requested
authority must apply the formalities and procedures required by the
requesting State, provided these formalities and procedures are not
contrary to the fundamental laws of the requested State.
Four recommendations can therefore be made:
1. The requesting authority would benefit from consulting, in
the Fiches Belges (see Module 4) for the requested State, the
measure corresponding to that which it wishes to be carried out, in
order to be aware of the applicable procedure in the requested
State and the potential difficulties;
2. The requesting authority must ensure it describes the
formalities and procedures it wishes to be applied clearly, bearing
in mind the following:
its legal system is unfamiliar to the requested authority (which
entails, inter alia, bearing in mind that legal concepts may mean
little, or may not mean the same thing, to the requested
authority);
only the formalities and procedures truly necessary to ensuring
the admissibility of evidence need to be mentioned.
3. The requested authority should contact the requesting
authority if there is a comprehension problem;4. Since these
exchanges may raise reciprocal comprehension problems, assistance
from the EJN contact points should be considered.
10. Rights of legal remedy against the investigative measure
10.1. Mutual legal assistance
The mutual legal assistance instruments are silent on the issue
of (a priori or a posteriori) legal remedy by an individual against
execution of a request for mutual assistance.
It is therefore the national law that applies to the procedure
applicable in the requesting State, as well as to that of the
requested State. Moreover, this means that the question of whether
to suspend the transfer of evidence while a legal remedy is pending
in the requested State is not regulated.
10.2. Mutual recognition
The instruments of mutual recognition should, by contrast,
address this issue, which appears to be politically very important
for the EU institutions.
Framework Decision 2003/577/JHA on the freezing of evidence and
Framework Decision 2008/978/JHA on the European Evidence Warrant
each devoted an Article to this question (Articles 11 and 18
respectively). Article 13 of the EIO Directive, as provisionally
approved by the Council (Council Doc. 18918/11, Compendium B.5.9.)
is also devoted to legal remedies and takes its cue from the
Framework Decision.
Jurisdiction:
Legal remedies that do not concern the substantive reasons for
issuing the decision to be executed: in the existing Framework
Decisions and in the text of the EIO Directive approved by the
Council, legal remedies may be brought in the issuing State and in
the executing State. It is likely that this will be kept in the EIO
Directive because a precise differentiation between the two States
would be difficult;
Legal remedies that concern the substantive reasons for issuing
the decision to be executed: in the existing Framework Decisions
and in the text of the EIO Directive approved by the Council, legal
remedies may only be brought in the issuing State and not in the
executing State. We await whether the European Parliament will
adopt this approach in the final version of the EIO Directive.
Rules: the two existing framework decisions rather vaguely
require States to provide for legal remedy procedures, without
specifying whether the existing legal remedy procedures should
simply be applied to domestic cases, or whether new legal remedy
procedures should be created. By contrast, the EIO Directive
provisionally approved by the Council explicitly refers to the
legal remedy procedures available under national law. Although some
would wish to create a common minimum basis for entitlement to
legal remedy, it is difficult to do this for a mutual recognition
instrument that covers all investigative measures. This matter
should be a point of discussion during the negotiations with the
European Parliament.
Transfer of evidence: the question of the impact of a legal
remedy on the transfer of evidence does not arise for the freezing
of property. FD 2008/978/JHA explicitly states that the executing
State may suspend the transfer of evidence pending the outcome of
the legal remedy. The text of the EIO Directive, provisionally
approved by the Council, also makes some provision in this regard.
It states that if the transfer has already taken place and the
investigative measure is subsequently invalidated by the executing
State, the issuing State is required to take into account this
decision (but is not therefore necessarily required to set aside
the evidence).
11. Subsequent use of evidence gathered in this way
Obtaining evidence through mutual legal assistance or mutual
recognition always takes place in connection with a very specific
investigation or trial, usually (but not exclusively, see above) in
a criminal case.
Provided the applicable mutual legal assistance or mutual
recognition procedure has been correctly followed, the evidence
gathered may of course be used in the case in question
However, can the State that obtained the evidence also use it
for other purposes?
The Conventions on mutual legal assistance have only resolved
this question relatively recently; it was not until the 2000
Convention (Article 23) that the situation was clarified. Article
23 in fact only covers the use of personal data; since evidence
most often concerns such data, this Article is indeed the apposite
measure for determining the procedure for subsequent use of
evidence:
1. Personal data communicated under this Convention may be used
by the Member State to which they have been transferred:
for the purpose of proceedings to which this Convention
applies;
for other judicial and administrative proceedings directly
related to proceedings referred to under point (a);
for preventing an immediate and serious threat to public
security;
for any other purpose, only with the prior consent of the
communicating Member State, unless the Member State concerned has
obtained the consent of the data subject.
2. This Article shall also apply to personal data not
communicated but obtained otherwise under this Convention.
3. In the circumstances of the particular case, the
communicating Member State may require the Member State to which
the personal data have been transferred to give information on the
use made of the data.
Note that the remainder of Article 23 must also be taken into
account:
For some investigative measures, it is expressly stated that the
requested State may impose specific conditions: if they involve
reuse of the data for other purposes, these conditions shall
prevail over Article 23(1).
Luxembourg has a specific derogation in this respect (paragraph
7).
See Module 7 on approaches to obtaining evidence for each type
of investigative measure
Annex 1Table of declarations made under Article16 of the 1959
Convention
= language required for translation of the mutual assistance
request and, if applicable, annexed documents when the State
concerned is the requested State
States that have not made a declaration (Belgium and the Czech
Republic) under Article16 are assumed not to require translation of
the request.
The full text of the declarations is provided below as an
annex.
National languageEnglishFrenchOther
Germanyxxx
Austriaxxx
BelgiumNo declaration
Bulgariaxxx
Cyprusxx
Denmark xxx
Spainx
Estoniax
FinlandxxxSwedish, Danish, Norwegian, German
Hungaryxxx
Irelandxx
Italyxxx
Latviax
Lithuaniaxxx
Luxembourgxxx
Maltaxx
Netherlands(x)
Polandxxx
Portugalxx
Czech RepublicNo declaration
United Kingdomxx
Slovakiaxxx
Sloveniax
SwedenxDanish, Norwegian
Non-EU Schengen countries
IcelandxxDanish, Norwegian, Icelandic
NorwayxxDanish, Swedish
Switzerlandxx
Germany: If the request for mutual legal assistance and the
annexed documents are not in German, they must be accompanied by a
translation of the request and the supporting documents into German
or into one of the official languages of the Council of Europe.
Austria: Subject to the provisions of paragraph 3 of Article 16,
requests and annexed documents that are not drawn up in German,
French or English must be accompanied by a translation into one of
these languages. A translation of the information referred to in
Article 21(1) is not required.
Bulgaria: The Republic of Bulgaria declares that it will require
mutual legal assistance requests and annexed documents to be
accompanied by a translation into Bulgarian, or in the absence
thereof, by a translation into one of the official languages of the
Council of Europe.
Cyprus: Requests and annexed documents not drawn up in English
or Greek must be accompanied by a translation into one of these
languages.
Denmark: Requests and annexed documents from countries other
than Austria, France, the Federal Republic of Germany, Ireland,
Norway, Sweden or the United Kingdom must be accompanied by a
translation into Danish or one of the official languages of the
Council of Europe. For very long documents, the Danish Government
has made reservations to require, in a specific case, a Danish
translation or to have the documents translated at the expense of
the requesting State.
Spain: Spain reserves the right to stipulate that mutual legal
assistance requests and annexed documents be sent to it accompanied
by a duly authenticated translation into Spanish.
Estonia: Pursuant to Article 16(2) of the Convention, the
Republic of Estonia declares that requests and annexed documents
sent to the Estonian authorities shall be accompanied by a
translation into English.
Finland: Finland has declared that requests and annexed
documents that are not drawn up in Finnish, Swedish, Danish or
Norwegian, or in English, French or German, must be accompanied by
a translation into one of these languages.
Hungary: A translation of the request for mutual assistance and
annexed documents into Hungarian or any of the official languages
of the Council of Europe will be required, if not drawn up in one
of these languages.
Ireland: In accordance with Article 16(2), the Government of
Ireland reserves the right to stipulate that requests and annexed
documents be sent to it accompanied by translations into Irish or
English.
Italy: Having regard to the provisions of Articles 16 and 21(3),
Italy will require, on condition of reciprocity, that requests for
mutual legal assistance, together with the annexed documents, and
the laying of information provided for in Article 21 of the
Convention, be accompanied by a translation into French or
English.
Latvia: Pursuant to Article 16(2) of the Convention, the
Republic of Latvia stipulates that requests and annexed documents
addressed to the Estonian authorities shall be accompanied by a
translation into English.
Lithuania: In accordance with Article 16(2) of the Convention,
the Republic of Lithuania has declared that it reserves the right
to stipulate that requests and annexed documents be addressed to it
accompanied by a translation into one of the official languages of
the Council of Europe. Lithuania shall claim compensation for any
costs incurred in the translations if this requirement is not
met.
Luxembourg: The Government of the Grand Duchy of Luxembourg will
require mutual legal assistance requests and annexed documents
addressed to it to be accompanied by a translation into French,
German or English.
Malta: The Government of Malta declares that requests and
annexed documents should be addressed to it accompanied by a
translation into English.
Netherlands: The Government of the Kingdom of the Netherlands
declares, having regard to Article 16, that it will require
requests for mutual legal assistance relating to the Netherlands
Antilles and Aruba to be accompanied by an English translation.
Poland: Requests and annexed documents transmitted to Poland
shall be accompanied by a translation into Polish or into one of
the official languages of the Council of Europe; the translation of
the documents to be transmitted is not required if the transmission
takes the form of a simple service. In other instances, these
documents shall be translated into Polish if the recipient is a
Polish national or a person residing in Poland.
Portugal: Portugal declares that requests and annexed documents
addressed to it must be accompanied by a translation into
Portuguese or French.
United Kingdom: In accordance with Article 16(2), the Government
of the United Kingdom reserves the right to stipulate that requests
and annexed documents shall be addressed to it accompanied by
translations into English.
Romania: Requests for mutual assistance and annexed documents
addressed to the Romanian judicial authorities in accordance with
this Convention will be accompanied by a translation into one of
the official languages of the Council of Europe.
Slovakia: The Slovak Republic invites the other Contracting
Parties to submit their requests and annexed documents that are not
drawn up in Slovak or one of the official languages of the Council
of Europe together with a translation into one of these
languages.
Slovenia: In accordance with Article 16(2), the Republic of
Slovenia reserves the right to require that requests and annexed
documents be addressed to it accompanied by a translation into
Slovenian.
Sweden: The request and annexed documents shall be translated
into Swedish, Danish or Norwegian, unless the authority dealing
with the request stipulates otherwise in the particular case.
Schengen countries:
Iceland: Requests and annexed documents not drawn up in
Icelandic, Danish, English, Norwegian or Swedish shall be
accompanied by a translation into Icelandic or English.
Norway: Requests and annexed documents not drawn up in
Norwegian, Danish, English or Swedish, shall be accompanied by a
translation into Norwegian. Otherwise, Norway reserves the right to
have them translated into Norwegian at the expense of the
requesting State.
Switzerland: Switzerland requests that all mutual legal
assistance requests and annexed documents addressed to its
authorities, with the exception of requests for the service of
summons, be accompanied by a translation into French, German or
Italian, if they are not drawn up in one of these languages.
The contents and opinions expressed herein are solely that of
the EJTN, and the European Commission cannot be held responsible
for any use that may be made of these contents and opinions.
Annex ACover note
COVER NOTE FOR ROGATORY LETTERS Joint Action of 29 June 1998
adopted by the Council on the basis of Article K.3 of the Treaty on
European Union, on good practice in mutual legal assistance in
criminal matters. (Official Journal L 191, 07/07/1998 p. 0001 -
0003) REQUEST (To be filled in by requesting authority) Case
number: Name(s) of suspect(s): Authority who can be contacted
regarding the request: Organization: Place: Country: Name:
Function: Spoken Language: Telephone number: Fax Number: E-mail:
Deadline: This request is urgent. Please execute this request
before (date): Reasons for deadline: Date: Signature:
...............................................................................................................................................................................................
ACKNOWLEDGEMENT OF REQUEST (To be filled in by the requested
authority) Registration number:
............................................................................................................................
Date:
.......................................................................................................................
Authority receiving the request Organization:
.........................................................................
Place:
....................................................................................
Country:
.................................................................................
Name:
...................................................................................
Function:
...................................................................................
Spoken Language:
.............................................................
Telephone number:
............................................................ Fax
Number:
................................................................................
E-mail:
................................................................................
Authority who can be consulted on the execution of the request Same
as above Other, namely: Organization:
.........................................................................
Place:
....................................................................................
Country:
.................................................................................
Name:
...................................................................................
Function:
...................................................................................
Spoken Language:
.............................................................
Telephone number:
............................................................ Fax
Number:
................................................................................
E-mail:
................................................................................
Deadline: The deadline will probably: be met not be met. Reason:
..................................................................................................................................................................
Date:.........................................................................................Signature:...........................................................................................................................................................................
(logo of the training organiser)
Training organised by
(name of training organiser)
on (date) at (place)
Based on
the standard training programme in judicial cooperation in
criminal matters
within the European Union
Module 6
the pre-trial stage
and obtaining evidence (partI):
cross-cutting issues
Version: 3.0
Last updated: 20.12.2012
OJEU L 196, 2 August 2003, p. 45.
OJEU L 350, 30 December 2008, p. 72.
The 2nd additional protocol to the 1959 Convention also applies,
but the instruments of the European Union already provide for the
changes it introduced.
Note to trainers: this document is included in the training tool
(Annex A final to this module).
This model cover note has not yet been translated into the
languages of the Member States that joined the EU on 1 May2004.
Article 6 of the 2000 Convention, Article4(1) of Framework
Decision 2003/577/JHA (freezing assets) and Article8(1) of
Framework Decision 2008/978/JHA (European evidence warrant).
Joint Action 98/427/JHA of 29 June 1998 on good practice Joint
Action 98/427/JHA of 29 June1998 on good practices in mutual legal
assistance in criminal matters, OJ L 191 of 7 July 1998, p. 1
The exact wording of Article9 is as follows:
For the purposes of mutual legal assistance between Member
States, no offence may be regarded by the requested Member State as
a political offence, an offence connected with a political offence
or an offence inspired by political motives.
Each Member State may, when giving the notification referred to
in Article 13(2), declare that it will apply paragraph 1 only in
relation to:
the offences referred to in Articles 1 and 2 of the European
Convention on the Suppression of Terrorism of 27 January 1977;
and
offences of conspiracy or association, which correspond to the
description of behaviour referred to in Article 3(4) of the
Convention of 27 September 1996 relating to extradition between the
Member States of the European Union, to commit one or more of the
offences referred to in Articles 1 and 2 of the European Convention
on the Suppression of Terrorism.
Reservations made pursuant to Article 13 of the European
Convention on the Suppression of Terrorism shall not apply to
mutual legal assistance between Member States.
At most, execution might be refused based on the fact that there
is a manifest discrepancy between the description of the acts and
the box ticked in the list. It should also be noted that not all
national legislation implementing framework decisions on mutual
recognition necessarily conforms to those decisions, so the
executing authority may find itself faced with contradictory
orders.
Article 4(1) of the 2000 Convention, Article 5(1), paragraph 2
of the Framework Decision on freezing property, Article 11(1) a and
Article 12 of the Framework Decision on the European Evidence
Warrant.
Cf., however, the proposal for a Directive on access to a lawyer
in criminal proceedings, which provides for some exclusionary rules
for evidence (Article 13, COM(2011)154). This proposal is
contentious, with some states leaving questions of admissibility
entirely to the discretion of the judge; the rule in question has
also disappeared in the text approved by the Council in June 2012
(Council doc. 10467/12). We await the outcome of negotiations with
the European Parliament to see the final result.
This Article is echoed by Article 11 of Framework Decision
2008/977/JHA of 27 November 2008 on the protection of personal data
(OJ L 350, 30 December 2008, p. 60). To be read in conjunction with
Article 28 of the same Framework Decision.
See HYPERLINK "http://www.coe.int" http://www.coe.int
Solely for requests for mutual legal assistance relating to the
Netherlands Antilles and Aruba.
37/38
12/39