COOPERATION IN CRIMINALMATTERS IN EUROPE

MODULE IIIJUDICIAL COOPERATIONIN THE FRAMEWORK OF THE EU

TutorMaría Poza Cisneros

UNIT 7 THE SCHENGEN AREA

Measures of Measures of investigation: investigation: police cooperationpolice cooperation• Police assistancePolice assistance• Cross-border Cross-border

surveillancesurveillance• ““Hot pursuit”Hot pursuit”• Controlled Controlled

deliveriesdeliveries

UNIT 7 THE SCHENGEN AREAUNIT 7 THE SCHENGEN AREA

Measures for speeding up proceduresMeasures for speeding up procedures• Extension of the scope of assistanceExtension of the scope of assistance

Compensation proceedings following unjustified Compensation proceedings following unjustified prosecution or sentencingprosecution or sentencing

Pardon proceedingsPardon proceedings Civil actions resulting from criminal offencesCivil actions resulting from criminal offences Notification of finesNotification of fines Alternatives to the execution of prison sentencesAlternatives to the execution of prison sentences Regulation infractionsRegulation infractions

• Service of documents by post. ExceptionsService of documents by post. Exceptions• Direct communication between judicial authorities. Direct communication between judicial authorities.

ExceptionsExceptions• Search or seizure of assets. Restriction of grounds for Search or seizure of assets. Restriction of grounds for

refusalrefusal

UNIT 7 THE SCHENGEN AREAUNIT 7 THE SCHENGEN AREA

Letters rogatoryLetters rogatory• Direct communication between judicial Direct communication between judicial

authoritiesauthorities• Possibility of transfer via INTERPOLPossibility of transfer via INTERPOL• Information on rulings and measures Information on rulings and measures

affecting nationalsaffecting nationals• Transfer of claimsTransfer of claims• TranslationTranslation

UNIT 7 THE SCHENGEN AREAUNIT 7 THE SCHENGEN AREA

The principle of “The principle of “ne bis in idem"ne bis in idem"• Precedents: European Convention on Extradition and its Precedents: European Convention on Extradition and its

Additional ProtocolAdditional Protocol• Articles 54 to 58 of the Schengen Implementation AgreementArticles 54 to 58 of the Schengen Implementation Agreement

Scope of application: article 54Scope of application: article 54 Lis pendens (a pending lawsuit)Lis pendens (a pending lawsuit) Petitions for informationPetitions for information Deduction of time of imprisonment already servedDeduction of time of imprisonment already served Possibility to declare exemption from the binding obligationPossibility to declare exemption from the binding obligation

• Acts that took place in whole or in part in its own territoryActs that took place in whole or in part in its own territory• Acts committed by state officials in violation of the duties of Acts committed by state officials in violation of the duties of

their officetheir office• Acts constituting an offence against national security or other Acts constituting an offence against national security or other

equally essential interestsequally essential interests

UNIT 7 THE SCHENGEN AREAUNIT 7 THE SCHENGEN AREA

Transfer of judgment enforcementTransfer of judgment enforcement• Supplementary to the Convention on the Supplementary to the Convention on the

Transfer of Sentenced Persons of 1983Transfer of Sentenced Persons of 1983• Serving of prison sentences in nationals' own Serving of prison sentences in nationals' own

countriescountries• Alternative to the extradition of nationalsAlternative to the extradition of nationals• Possibility for remandPossibility for remand• Consent of the sentenced offender irrelevant if Consent of the sentenced offender irrelevant if

the sentencing state requests the country the sentencing state requests the country where the offender has taken refuge to take where the offender has taken refuge to take over the enforcement of the penaltyover the enforcement of the penalty

UNIT 7 THE SCHENGEN AREAUNIT 7 THE SCHENGEN AREA

The Schengen Information SystemThe Schengen Information System• Aim: Computer network for the exchange of alerts on Aim: Computer network for the exchange of alerts on

persons and property.persons and property.• Data protectionData protection• OrganisationOrganisation

International level: Executive Committee/ Central Group International level: Executive Committee/ Central Group /work groups/work groups

National levelNational level• Configuration: N.SIS+ C.SIS+SIRENEConfiguration: N.SIS+ C.SIS+SIRENE• Areas requiring the introduction of dataAreas requiring the introduction of data

Requests for arrest for purposes of extraditionRequests for arrest for purposes of extradition Requests for arrest for purposes of an EAWRequests for arrest for purposes of an EAW Other informationOther information

• Limited capacity of the systemLimited capacity of the system

UNIT 8 THE 2000 UNIT 8 THE 2000 CONVENTIONCONVENTION

Scope of applicationScope of application Judicial assistance in Judicial assistance in

generalgeneral Specific forms of Specific forms of

judicial assistancejudicial assistance Interception of Interception of

telecommunicationstelecommunications Information and Information and

control of bank control of bank accountsaccounts

UNIT 8 THE 2000 CONVENTIONUNIT 8 THE 2000 CONVENTION

Subjective scopeSubjective scope• All EU Member States exceptAll EU Member States except

GreeceGreece IrelandIreland ItalyItaly

• Protocol: the same except Estonia.Protocol: the same except Estonia.• +Iceland and Norway+Iceland and Norway

Objective scope: extensionObjective scope: extension• Administrative proceedings subject to judicial reviewAdministrative proceedings subject to judicial review• Charges against legal entitiesCharges against legal entities• Tax offencesTax offences

UNIT 8 THE 2000 CONVENTIONUNIT 8 THE 2000 CONVENTION

Supplementary to:Supplementary to:• European Convention on Mutual Assistance in European Convention on Mutual Assistance in

Criminal Matters of 20.4.1959Criminal Matters of 20.4.1959 Auxiliary effectiveness (minimum content of letters Auxiliary effectiveness (minimum content of letters

rogatory, language, face-to-face hearing)rogatory, language, face-to-face hearing) Reference for purposes of interpretationReference for purposes of interpretation Different subjective scopeDifferent subjective scope

• Schengen Implementation Agreement of Schengen Implementation Agreement of 19.6.1990: express repeals19.6.1990: express repeals

• Benelux TreatyBenelux Treaty• Other (more favourable provisions)Other (more favourable provisions)

UNIT 8 THE 2000 CONVENTIONUNIT 8 THE 2000 CONVENTION

International judicial assistance in generalInternational judicial assistance in general Law applicable to enforcement: Law applicable to enforcement: forum regit actumforum regit actum

• Request of the Requesting State and description of the proceedingsRequest of the Requesting State and description of the proceedings• Compatibility with the basic legal principles of the Requested StateCompatibility with the basic legal principles of the Requested State• ExceptionsExceptions

Statement of the term of enforcementStatement of the term of enforcement Service of documents in connection with the proceedings: Service of documents in connection with the proceedings:

• By post, exceptBy post, except Unknown addressUnknown address Requirement of proof of service other than that provided by the post serviceRequirement of proof of service other than that provided by the post service Impossibility of serviceImpossibility of service Reasons to believe it will be inefficient or inappropriateReasons to believe it will be inefficient or inappropriate

• Translation?Translation? Channels for transmissionChannels for transmission

• General rule: direct communication between judicial authoritiesGeneral rule: direct communication between judicial authorities• AlternativesAlternatives• ExceptionsExceptions

UNIT 8 THE 2000 CONVENTIONUNIT 8 THE 2000 CONVENTION

Specific forms of judicial assistanceSpecific forms of judicial assistance• Restitution of objectsRestitution of objects• Temporary transfer of persons held in custody Temporary transfer of persons held in custody

for investigative purposesfor investigative purposes• Hearing of witnesses, experts and defendants Hearing of witnesses, experts and defendants

via videoconference or telephone conferencevia videoconference or telephone conference• Controlled deliveriesControlled deliveries• Joint investigation teamsJoint investigation teams

Set-up and purposesSet-up and purposes Make-upMake-up Territorial and material scope of actionTerritorial and material scope of action

• Covert investigationsCovert investigations

UNIT 8 THE 2000 CONVENTIONUNIT 8 THE 2000 CONVENTION

Interception of telecommunicationsInterception of telecommunications• According to assistance needsAccording to assistance needs

Requiring the technical assistance of another StateRequiring the technical assistance of another State• Subject is in the requesting State, and assistance is neededSubject is in the requesting State, and assistance is needed• Subject is in the requested State, and communications can be Subject is in the requested State, and communications can be

intercepted in that Stateintercepted in that State• Subject is in a third Member StateSubject is in a third Member State

Through service providers (tele-command)Through service providers (tele-command) Without the technical assistance of another StateWithout the technical assistance of another State

• According to transmission/recording needsAccording to transmission/recording needs General rule: interception & immediate transmissionGeneral rule: interception & immediate transmission Exception: interception, recording & subsequent Exception: interception, recording & subsequent

transmissiontransmission

UNIT 8 THE 2000 CONVENTIONUNIT 8 THE 2000 CONVENTION

Information on bank accounts and control of Information on bank accounts and control of transactionstransactions

• The Protocol to the 2000 Convention of The Protocol to the 2000 Convention of 16.10.200116.10.2001

• Information on the accounts held or controlled by Information on the accounts held or controlled by a given persona given person

• Information on bank transactionsInformation on bank transactions• Control of bank transactionsControl of bank transactions• Supplementary requestsSupplementary requests

UNIT 9: THE PRINCIPLE OF AVAILABILITY: UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND THE TREATY OF THE CRIMINAL RECORD AND THE TREATY OF

PRÜMPRÜM THE PRINCIPLE OF THE PRINCIPLE OF

AVAILABILITYAVAILABILITY• Definition: The Hague Definition: The Hague

ProgrammeProgramme• Transposition of the Transposition of the

principleprinciple FD 2006/960/JHAFD 2006/960/JHA Treaty of PrümTreaty of Prüm Decisions 2008/615 & Decisions 2008/615 &

616/JHA616/JHA

UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND TREATY OF PRÜMTREATY OF PRÜM

TREATY OF PRÜM TREATY OF PRÜM SignatoriesSignatories

Germany, Austria, Benelux, Spain, France Germany, Austria, Benelux, Spain, France Nature: enhanced cooperation?Nature: enhanced cooperation?

• ContentContent Automatic access to certain filesAutomatic access to certain files Measures against terrorismMeasures against terrorism Measures against illegal immigrationMeasures against illegal immigration Other forms of cooperationOther forms of cooperation Provisions on personal data protectionProvisions on personal data protection

UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND TREATY OF PRÜMTREATY OF PRÜM

TREATY OF PRÜMTREATY OF PRÜM Computerised access to national filesComputerised access to national files

• DNA profilingDNA profiling• Fingerprint dataFingerprint data• Vehicle registrationsVehicle registrations• Other dataOther data

UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND TREATY OF PRÜMTREATY OF PRÜM

TREATY OF PRÜMTREATY OF PRÜM Prevention of terrorist attacksPrevention of terrorist attacks

Exchange of information for preventative purposesExchange of information for preventative purposes Air marshals in flightsAir marshals in flights

Fight against illegal immigrationFight against illegal immigration Advisors on false documentationAdvisors on false documentation Mutual assistance on repatriationsMutual assistance on repatriations

Other examples of cooperationOther examples of cooperation Cooperation centres on bordersCooperation centres on borders Joint patrolsJoint patrols Borders crossingsBorders crossings Joint operationsJoint operations Cooperation upon requestCooperation upon request

UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND TREATY OF PRÜMTREATY OF PRÜM

TREATY OF PRÜMTREATY OF PRÜM• Protection of personal dataProtection of personal data

Guarantees minimum levels of protection in Guarantees minimum levels of protection in national lawnational law

Data must be linked to purposes - limits on Data must be linked to purposes - limits on the processing of data transferredthe processing of data transferred

Guarantee of accuracy and current Guarantee of accuracy and current relevancerelevance

Record of consultations, data security and Record of consultations, data security and legal controllegal control

Individual rights: information, rectification, Individual rights: information, rectification, cancelation, indemnification.cancelation, indemnification.

UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND TREATY OF PRÜMTREATY OF PRÜM

INCORPORATION OF THE TREATY OF PRÜM INCORPORATION OF THE TREATY OF PRÜM INTO EU LAWINTO EU LAW

Decision 2008/615/JHADecision 2008/615/JHA• Access online and monitoring of DNA profilesAccess online and monitoring of DNA profiles• Fingerprint dataFingerprint data• Vehicle registration dataVehicle registration data• Transmission of data in relation to sporting events and Transmission of data in relation to sporting events and

meetings of the European Councilmeetings of the European Council• Prevention of terrorist attacksPrevention of terrorist attacks• Other forms of cooperationOther forms of cooperation• Data protectionData protection

Decision 2008/616/JHA: technical-administrative Decision 2008/616/JHA: technical-administrative supplement to the formersupplement to the former

TEMA 9 TEMA 9 PRINCIPIO DE DISPONIBILIDAD: ANTECEDENTES PENALES Y PRINCIPIO DE DISPONIBILIDAD: ANTECEDENTES PENALES Y TRATADO DE PRÜMTRATADO DE PRÜM

EL PRINCIPLE OF AVAILABILITY IN THE EL PRINCIPLE OF AVAILABILITY IN THE STOCKHOLM PROGRAMMESTOCKHOLM PROGRAMME

A new context/a new paradigm.A new context/a new paradigm. Express recognition of the value of the principle of Express recognition of the value of the principle of

availability + concern for coherence and the availability + concern for coherence and the protection of fundamental rights.protection of fundamental rights.

Action Plan of the 25Action Plan of the 25thth of November 2009. of November 2009. Proposal for a Directive on data protection by Proposal for a Directive on data protection by

competent authorities with a view to the prevention, competent authorities with a view to the prevention, investigation, detection and trial of criminal offences. investigation, detection and trial of criminal offences.

Proposal for a Regulation for the protection of natural Proposal for a Regulation for the protection of natural persons within the processing of personal datapersons within the processing of personal data

Proposal for a Regulation on migration to SIS IIProposal for a Regulation on migration to SIS II

UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND UNIT 9: THE PRINCIPLE OF AVAILABILITY: THE CRIMINAL RECORD AND THE TREATY OF PRÜMTHE TREATY OF PRÜM

THE CRIMINAL RECORDTHE CRIMINAL RECORD FD 2008/675/JHA: taking account of convictions in other FD 2008/675/JHA: taking account of convictions in other

Member StatesMember States FD 2009/315/JHA: the exchange of information on criminal FD 2009/315/JHA: the exchange of information on criminal

recordsrecords• ObjectivesObjectives• Obligations of the convicting Member StateObligations of the convicting Member State• Obligations of the Member State of the person’s nationalityObligations of the Member State of the person’s nationality• Information on convictionsInformation on convictions

Request for informationRequest for information Replies to requests made in the context of criminal Replies to requests made in the context of criminal

proceedings or outside them and by a third countryproceedings or outside them and by a third country DeadlinesDeadlines Transmission methodsTransmission methods Conditions of use of personal dataConditions of use of personal data

Decision 2009/316/JHADecision 2009/316/JHA