NEW EXISTING TOOLS FOR ENHANCING INTERNATIONAL JUDICIAL COOPERATION WITHIN THE EUROPEAN UNION Towards a new generation of mutual legal assistance mechanisms based on mutual trust

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU

Mutual legal assistance.

MLA as a sub-type of

international (inter-States) cooperation

on a specific matter: judicial and legal matters.

Therefore, its legal instruments are traditional

International Treaties

.

Exercise of jurisdiction outside the national borders, granting the validity of the evidence obtained in the judicial proceedings.

Manifestation of

judicial solidarity

.

New aim

of international judicial cooperation: fight against organised, international crime.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU HISTORICAL EVOLUTION OF MLA INSTRUMENTS:

• First- generation instruments : based on the principle of sobereignty and closed societies.

• Second- generation instruments: based on the system of central authorities and Conventions.

• Third- generation instruments: new tools based on direct transmission, supported by informal networks.

• The future of MLA: mutual recognition.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU FIRST- GENERATION INSTRUMENTS: XIX century

- Closed, inward- looking societies, and national focused crime.

- Traditional communication technologies.

- Approach towards problem- solving: not so jurisdictional.

This social, legal and economic context creates its own corresponding tools: No real need for efective cooperation mechanisms and no legal frame.

- The principle of reciprocity: diplomatic channels and political decission.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU SECOND- GENERATION INSTRUMENTS: XX century

- A new international community: the formation of independent States, open societies and open borders.

- New challenges to national security.

- New approach to conflict-solving: declaration of human rights, acess to justice. Increasing litigation and fight against crime.

- The consolidation of national States and borders lead to an opposite process of creating areas of common values and shared sobereignty: the era of International Organisations and the adoption of Treaties in different fields, as a symbol of mutual trust.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU SECOND- GENERATION INSTRUMENTS: XX century

THE COUNSEL OF EUROPE: Actions in the field of MLA.

- European Convention on Extradition of 1957 (and subsequent Protocols).

- European Convention on Mutual Legal Assistance in Criminal Matters, 1959 (and 2 Protocols).

- Other Conventions for cooperation in specific fields: money laundering, corruption, terrorism, cybercrime, for the transfer of sentenced persons, for the international validity of penal sentences...

-All of them are based on the system of Central Authorities: still focused on national sobereignty, but allowing for faster procedures and reducing uncertainty as to grounds for refusal and political discretionality.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU PROBLEMS OF SECOND- GENERATION INSTRUMENTS :

Central authorities provide with

added value

to legal assistance procedures: taking care of requests and seeing to it that they comply with the Conventions. They also have the expertise and know-how of international cooperation.

- BUT, there is a total

loss of control and follow- up

of the requests, and absolute

disconnection

between the requesting Judge/ Prosecutor and the executing authority in the other country.

- Conventions were focused on

traditional investigating measures

: notifications, taking of evidence (hearings and testimonies, handling of objects...) and provisional measures (freezing and confiscation).

- The

attitude

of judicial and administrative authorities towards legal assistance: “the last thing to worry about”.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU THIRD- GENERATION TOOLS: towards transnational justice in the XXI century.

- From agricultural societies to industrial societies, and finally to the

SOCIETY OF KNOWLEDGE AND INFORMATION (THE INTERNET).

- This implies a multipolarization and delocation of actors and responsabilities.

- The new instruments go beyond sobereignty and national borders, to enfasize

shared values and mutual trust.

- They implement the concept of NETWORKING to optimize cooperation and reinforce its results. - New social context, as regards criminality and fight against crime: transnational crime demands transnational investigating measures / international terrorism / new concept of national security connected with global security...

- A new approach towards effectiveness and quality of public services. The need to respond to the society’s real needs.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU THIRD- GENERATION TOOLS: towards transnational justice in the XXI century. THE SOLUTIONS IN THE EU.

LEGAL INSTRUMENTS - 2000 CONVENTION SUPPORTING INSTRUMENTS - LIAISON MAGISTRATES - JOINT INVESTIGATION TEAMS - EJN (NETWORK) - EUROPEAN ARREST WARRANT - EUROJUST

A combination of a challenging and creative legal framework with a series of informal supporting mechanisms, creating a new concept and functioning of mutual legal assistance.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU THIRD- GENERATION TOOLS: towards transnational justice in the XXI century. THE SOLUTIONS IN THE EU.

- MLA:

direct transmission

between judicial authorities and application of the

law of the requesting country.

- EXTRADITION: new

surrender procedure

which eliminates Government intervention. Direct Judge-to-Judge request based on a common form and directly enforceable in the executing country.

- New investigating measures: Joint investigation teams, videoconference, interception of communications...

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU THIRD- GENERATION TOOLS: towards transnational justice in the XXI century. THE SOLUTIONS IN THE EU.

DIRECT TRANSMISSION:

- It quickens procedures, eliminating intermediaires.

- It considerably reduces grounds for refusal to strictly legal grounds (no administrative or political intervention).

- It locates the responsability of the outcome of the request for assistance within its inmediate users: Judges and Prosecutors.

- It allows for direct contact between requesting and requested judicial authorities, in order to convey the information pertaining the request and get a feedback of its execution.

- Applying the law of the requesting country facilitates the use of the evidence in the original criminal proceedings.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU THIRD- GENERATION TOOLS: towards transnational justice in the XXI century. THE SOLUTIONS IN THE EU.

DIRECT TRANSMISSION:

- However, it places the

burden

of knowing the procedures, legal framework and management of MLA within the requesting Judge.

- Without the mediation of the Central Authority, the two legal systems interact, and that may cause frictions.

- The requested Judge is confronted with a foreign law and legal system.

The solution

: EJN contact points and Liaison Magistrates.

-

Modus operandi:

informality, responsiveness, complementarity with legal and conventional procedures, mutual trust and pro -cooperation aimed.

NEW TOOLS FOR ENHANCING MUTUAL LEGAL ASSISTANCE IN THE EU THIRD- GENERATION TOOLS: towards transnational justice in the XXI century. THE SOLUTIONS IN THE EU.

EUROPEAN ARREST WARRANT:

- It

replaces

the traditional extradition procedure (two phases: governmental and judicial, no deadlines, extremely long procedures, possible Government refusal...).

- Main features: - first concretion of the mutual recognition principle - It is directly enforceable by the executing Judge (no Government) - based on a multilingual common form the arrest warrant - fixed limited grounds for refusal - fixed deadlines.