Transcript Judicial cooperation in the EU

Judicial cooperation
in the EU
From mutual legal
assistance to mutual
recognition
Justice
Adrienne Boerwinkel
Senior Legal Adviser
Dutch Ministry of Security and
6 December 2010
Overview presentation
 History of judicial cooperation in the EU
 Principle of mutual recognition
 State of play mutual recognition instruments
 Mutual legal assistance vs. mutual recognition
 Mutual recognition in practice
2
TAIEX Ankara | 6-7 December 2010
Judicial cooperation in the EU - history
Three main phases:
• Cooperation on the basis of Council of Europe Conventions
• Cooperation on the basis of EU conventions
• Cooperation on the basis of EU instruments based on the
principle of mutual recognition
3
TAIEX Ankara | 6-7 December 2010
Cooperation on basis of CoE conventions
 1957 Convention on extradition
 1959 Convention on mutual legal assistance
 1970 Convention on the validity of criminal judgments
 1972 Convention on transfer of proceedings
 1983 Convention on transfer of sentenced persons
4
TAIEX Ankara | 6-7 December 2010
Cooperation on basis of EU conventions
 1990 Convention implementing the Schengen Agreement
(OJ 2000, L 239)
 2000 Convention on Mutual Assistance in Criminal Matters
(OJ 2000, C 197)
 2001 Protocol to the EU Convention on Mutual Assistance
(OJ 2001, C 326)
5
TAIEX Ankara | 6-7 December 2010
European Council Conclusions Tampere 1999
“Enhanced mutual recognition of judicial decisions and
judgements and the necessary approximation of legislation
would facilitate co-operation between authorities and the
judicial protection of individual rights. The European Council
therefore endorses the principle of mutual recognition
which, in its view, should become the cornerstone of
judicial co-operation in both civil and criminal matters
within the Union. The principle should apply both to
judgments and to other decisions of judicial authorities.”
6
TAIEX Ankara | 6-7 December 2010
Principle of mutual recognition
 Judicial cooperation should be based on principle of mutual
recognition
 Should apply to both final judgments and pre-trial decisions
 Since Treaty of Lisbon (1.12.2009) legal basis in the Treaty
(Art. 82 of the Treaty on the Functioning of the EU)
But…. what is it?
7
TAIEX Ankara | 6-7 December 2010
Mutual recognition
Cassis de Dijon judgment
Internal Market ---- Area of Freedom, Security and Justice
Closer cooperation -> difference between the legal systems
should not hamper judicial cooperation -> obligation to
cooperate unless a specific ground of refusal applies
8
TAIEX Ankara | 6-7 December 2010
Mutual legal assistance vs. mutual recognition
Request
Requesting State
Requested State
General grounds for refusal
Dual criminality
No deadlines
No standard forms
No language rules
Via Ministry of Justice
9
->
->
->
->
->
->
->
->
->
Order (obligation to execute)
Issuing State
Executing State
Specific grounds for refusal
Partial abolition of dual crim.
Deadlines
Standard forms/certificates
Language of executing State
Direct contact jud. authorities
TAIEX Ankara | 6-7 December 2010
State of play – mutual recognition instruments
• Extradition/surrender of persons
– European Arrest Warrant (replaces the CoE Extradition
Convention)
2) Enforcement of final judgments/sentences
- Framework Decision on financial penalties
- Framework Decision on confiscation orders
- Framework Decision on custodial sentences
- Framework Decision on alternative sanctions and
probation measures
- Framework Decision on taking into account previous
convictions
10
TAIEX Ankara | 6-7 December 2010
State of play – mutual recognition instruments
3) Pre-trial decisions/mutual legal assistance
- Framework Decision on orders freezing evidence or
property
- Framework Decision on European Evidence Warrant
- Framework Decision on supervision measures as
alternative to provisional detention
11
TAIEX Ankara | 6-7 December 2010
Evidence gathering – current situation
Partly based on mutual legal assistance (CoE Convention of
1959, Schengen Implementation Agreement and EU 2000
Convention) and partly based on mutual recognition (FD on
freezing orders and FD on European Evidence Warrant)
How to proceed?
Stockholm programme (multi annual programme for Justice
and Home Affairs in EU): a comprehensive instrument based
on mutual recognition that will replace all existing instruments
12
TAIEX Ankara | 6-7 December 2010
Mutual recognition in practice
Practitioners need to change their habits and attitude
Confidence in legal system and authorities of the other
Member States is crucial
 training
 exchange programs
 networking, contact points
 easy access to sources of European (criminal) law
 evaluation and monitoring
 minimum standards for procedural rights of suspects and
accused
13
TAIEX Ankara | 6-7 December 2010