Transcript Course: European Criminal Law SS 2009

Course: European Criminal Law
SS 2009
Hubert Hinterhofer
Mutual Recognition
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Fundamentals
–
–
–
Cornerstone of cooperation in criminal matters
between the MS
Starting point: European Council Tampere 1999
Main Meaning:


Decision of one MS has to be recognized (accepted) in
each other MS without formal obstacles
Presumptions
–
Compliance of the decisions with the principle of legality
– Mutual trust of the MS in their criminal justice systems
Mutual Recognition

Fundamentals
–
Legal Origin


–
Single European Market Principle
Free marketability of goods = mutual recognition of
judgments in criminal law matters
Purpose



Overcoming the time consuming “old” system of legal
assistance and extradition in the EU
Effective and fast transnational prosecution in the EU
Part of real “European legal area”
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

General Purpose
–
Eliminating the current extradition system within the EU
– Based on the principle of Mutual Recognition of decisions
in criminal matters

Legal Basis
–
–
FWD 2002
All MS have transformed the EAW into national law
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Definition
–
Judicial Decision issued by a MS = issuing MS
– General Intention: arrest and surrender a suspect by
another MS = executing MS
– Special Purposes
 Conducting a criminal prosecution
 Executing a custodial sentence
 Executing a detention order
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

System
–
–
Executing MS in principle has the duty to accept requests
for the surrender of a suspect
Replacement of the former texts concerning extradition
law
 European Extradition Convention (1957): Council of
Europe
 Convention on extradition 1996: EU
 Relevant provisions of the Schengen Agreement
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Prerequisites for issuing an EAW
–
–
–
–
Offences punishable by imprisonment of 1 year or more
Final sentence of imprisonment for a period of at least 4
months
Listed offences
 Without verification of double criminality
 Punishable by imprisonment of 3 years or more
 Examples: terrorism, murder, racism, rape …
Non-Listed offences: Double Criminality
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Form
–
Standard blank
– Has to consist relevant information (identity, offence,
penalty, issuing court …)
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Procedures
–
Purely judicial proceeding
 Only judicial authorities involved
 No political impacts (anymore)
– Direct transmission of the EAW from the issuing judicial
authority to the executing judicial authority
– Assisted by Eurojust and the EJN
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Procedures
–
–
Executing state may take coercive measures
Rights of the arrested person
 Information
 Lawyer and interpreter
 Right to be heard
– Time limit
 Final decision on the EAW in the executing state no later
than 60 days after arrest
– Simplified Procedure
 Consent to the surrender by the suspect
 Final decision within 10 days after the consent
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Grounds for refusal of an EAW
–
Mandatory Grounds
 Ne bis in idem
> Final judgment in a MS in respect of the same
offence
> Execution of the judgment
 Amnesty
 Minors
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Grounds for refusal of an EAW
–
Optional Grounds
 Territorial jurisdiction of the executing MS
> Prosecution for the same act
> Decision not to prosecute
 Ne bis in idem
> Final judgment in a MS in respect of the same
offence
> Not yet executed
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Grounds for refusal of an EAW
–
Optional Grounds
 Ne bis in idem: Final judgment of a Third State in
respect of the same act
 Limitation of time (according to the law of the
executing MS)
 Prohibition of prosecution (according to the law of the
executing MS)
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Confiscation of property
–
–

Evidence
Result of the offence (absorption of enrichment)
Austrian Law on the EAW
–
EU-JZG (2004)
– Surrender of Austrian nationals
 Listed offence
 Committed in the issuing MS
 No punishability under Austrian Law
Mutual Recognition

Examples
–
European Arrest Warrant (EAW)

Austrian Law on the EAW
–
Execution of an EAW is bound to the catalogue of human
rights provided in the ECHR
– Possibility of an appeal against the execution of the EAW
(to the High Court of Appeal)
– National implementation corresponds to the FWD
– Rather conservative
Mutual Recognition

Examples
–
Execution of orders freezing property or evidence


Legal Basis: FWD (2003)
Purpose
–
Extension of the principle of mutual recognition to pre-trial orders
freezing property or evidence
– Executing MS has to recognize and execute an order coming
from the Issuing MS

Definitions
–
Freezing Order: preventing destruction, transformation or
displacement of property
– Evidence: relevant material in criminal proceedings
Mutual Recognition

Examples
–
Execution of orders freezing property or evidence

Listed Offences
–
Decisions executed without double criminality-check
– Punishable in the issuing MS by imprisonment of 3 years
or more

Non Listed Offences
–
Double Criminality-Check
Mutual Recognition

Examples
–
Execution of orders freezing property or evidence

Procedures
–
–
–

Grounds for non-recognition (e.g.)
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–
–

Certificate
Transmission from the issuing judicial authority to the executing authority
Recognition in the executing MS without any further formality
Incomplete Certificate
Ne bis in idem
Immunity under the law of the executing MS
Remedies
–
–
–
Against freezing order
Any interested party
No suspensive effect
Mutual Recognition

Examples
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Financial Penalties



Legal Basis: FWD (2005)
Purpose: Extension of the principle of mutual recognition
to financial penalties
Definition of Financial Penalty
–
Sum of money on conviction of an offence
– Compensation for victims
– Costs of court proceedings
– Sum of money to a public fund/victim support organiz.
Mutual Recognition

Examples
–
Financial Penalties

Listed Offences
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–

Non-Listed Offences
–

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No double criminality check
List also covers road traffic offences
Double criminality check
Against natural persons or a legal person
Judicial or administrative penalties
Decision must be final
Mutual Recognition

Examples
–
Financial Penalties

Procedures
–
Certificate
– Transmission from the issuing judicial authority to the
executing authority
– Recognition in the executing MS without any further
formality
Mutual Recognition

Examples
–
Financial Penalties

Grounds for non-recognition (e.g.)
–
–
–
–
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Below 70 €
Incomplete Certificate
Ne bis in idem
Immunity under the law of the executing MS
Minors
Mutual Recognition

Examples
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European Evidence Warrant


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Legal Basis: FWD 2008
Purpose: Extension of the principle of mutual recognition
to European Evidence Warrants
Evidence
–
Objects, documents and data
– For use in criminal proceedings
Mutual Recognition

Examples
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Probation Decisions and Alternative Sanctions


Legal Basis: FWD 2008
Purpose: mutual recognition and supervision of
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Conditional sentences
– Alternative sanctions
– Conditional release
–
Confiscation Orders
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
Legal Basis: FWD 2006
Purpose: mutual recognition of orders to confiscate property