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
SUPPORTING INSTRUMENTS
- 2000 CONVENTION
- 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.