Criminal Procedure from a comparative and international perspective - CEILS 2023/2024, Appunti di Diritto Processuale Penale

Scarica Criminal Procedure from a comparative and international perspective - CEILS 2023/2024 e più Appunti in PDF di Diritto Processuale Penale solo su Docsity! Criminal procedure from a comparative perspective BASIC CONCEPTS Criminal justice is a set of agencies and powers/activities established by governments to control crime and identify and punish perpetrators of crime. All criminal procedure systems have a lot of actors, at least 5: police, prosecutors, defense attorneys, courts, prisons or correctional agencies. - police: takes reports of crimes happened in their area + investigate the crime + arrest a person (risk of abuse: requirements to be respected, violence during the arrest) - prosecutor: public officer that represents the state throughout the criminal proceeding + prosecution power (to file the charge against a person, decide if the case deserves to be brought to trial or not) - defense attorney: private party that represents the defendant, the person charged with a criminal offense, against the prosecutor case - court: run by judges, decide the case applying the law and settle the dispute → adjudication power; also, in the pre-trial phase, decide on many investigative activities infringing fundamental rights (pre-trial detention, search on a person or inside a home, secret intrusive investigations such as gps, interception of communications, …) - prisons/correctional facilities: facilities that hold offenders, mainly convicted but also in pre-trial detention + rehabilitation function (only for convicted persons; in reality, not performed) There are two important ingredients of a criminal system: criminal law, giving a rule and punishment + criminal procedure, regulating the investigation on whether a rule of criminal law has been breached (usually limiting the power of public actors). First, criminal law, later, criminal procedure. If the procedural rules are not respected, procedural consequences arise, like the discharge, the loss of evidence, … The purpose of criminal justice is to identify and catch individuals who committed a criminal offense in order to inflict them a punishment, i.e. a criminal sanction. It pertains to the enforcement of criminal law. Uk website: the purpose of the criminal justice system is to deliver justice for all, by convicting and punishing the guilty and helping them to stop offending while protecting the innocent. This reference to both the protection of the innocent and the punishment of the guilty explains the metaphor of the shield and the sword, often used to describe criminal justice. Why is criminal justice so important? By means of the system, we create a peaceful law-abiding society (without it, only private revenge would be available, and this is not acceptable in a rule of law system). Rules are designed to guarantee the constitutional due process: put limits on public authorities, avoid the abuse of power, and avoid wrongful conviction of innocent people. As in all human activities, there is the possibility of mistakes, of false negative (guilty) and false positive (innocent). There is a basic structure of criminal procedure but different models In the book “A world view on criminal justice”, the author says that there is no agreement on what constitutes a universal model suitable for every society: different societies have different values and so different approaches. However, there are fundamental similarities in every legal system: - entry of the case in the criminal justice system (a crime has been committed) - investigation to collect evidence to see if a crime has occurred and who is responsible - some actors (prosecutors or prosecutorial agencies) decide about the prosecution: send to trial or drop the case - if sent to trials, courts of judges that have to decide the case and say if the defendant is guilty or innocent - usually, after the trial, other remedies are possible (appeals) Every criminal proceeding has at least two cases: - screening phase (called pre-trial phase, instrution, indagini preliminari): investigation to gather evidence by the police alone, sometimes under the direction of the prosecutor/investigating judge, and other subjects can be involved; news of a crime + investigation (various subjects and activities) + decision to send or not to trial - trial itself (called adjudicatory phase): an impartial and independent judge (otherwise, no due process) decides on the judge, whether the defendant is innocent or guilty. If there’s a guilty person, the same or another court has to define the sanction or penalty (sentencing phase). There is the possibility of appeal to review the decision of the first judge. When all the possibilities of appeal are exhausted, the decision is final: ne bis in idem/double jeopardy clause means it cannot be revised again. To reopen a case when a decision is final, there are limited extraordinary remedies; usually this is possible only in cases of conviction to avoid the risk that an innocent person is wrongfully convicted. Some countries have more than two: for example, in Italy there is in the middle the preliminary hearing. Scholars design two models to understand the features of criminal justice systems, not only looking at the structure but also at the power and role of actors. They’re abstract models: it is difficult to find a system purely inquisitorial or purely adversarial, because of the merging of procedures in legal systems (e.g. Italy was inquisitorial but in 1988 it moved toward adversarial; France on the contrary is mostly inquisitorial; common law countries are more adversarial). Both systems have the same goal: finding the truth about the crime; however, the way to discover the truth is different. 1. Adversarial: the truth is found putting the parties one against another as in a battle, a game: a competition between the parties is the best way to find the truth. The judge has to decide who is the winner of the battle, staying seated and observing. This system is party-driven: parties are the true actors, they have to gather evidence, present them before the judge, to develop their arguments, … The judge has to ensure that the game is fair and decide the winner. The emphasis is on the trial phase. It’s typical of the anglo-american systems. 2. Inquisitorial: typical of continental Europe. Parties have an interest to hide the truth, so the judge has to have a lot of more in every step of the proceeding: he has extensive investigative power in every step (also in pre-trial phase) and has different roles in different steps; the symbol of this judge is the French juge d’instruction/ investigation judge (in Italy there was the giudice istruttore), present in many countries as a legacy of the Code de Napoleon. The investigation phase is an extensive investigation not done by the police or prosecutors, but by the judge that at the end decides whether to send the case to trial or not. The judge is a sort of inquisitor with powers that in other systems belong to police or prosecutors. The judge in the trial is different from the investigative one but he also has a very active role in the trial: he presents evidence and questions witnesses, … The emphasis is on the screening phase. There is a sort of communicating vase system: the evidence collected in the pre-trial phase becomes evidence for the trial phase too. The two systems are different mainly for this three aspects: - power to initiate a proceeding: ADV party-driven; INQ: ex officio/sua sponte of a judge - evidence gathering: ADV parties present evidence and question witnesses; INQ all in the end of the judge - treatment of accused person waiting for trial: ADV strong right of silence, not expected to collaborate + presumption of innocence + free before trial; INQ presumption of guilt + expected to collaborate and every means is used to obtain the truth + pre-trial detention Distinguishing between public and private law presents a problem when criminal law is categorized: crime is considered a matter of private law, but it also affects the whole society. Common law never had this dilemma (no clear distinction). INQUISITORIAL PROCESS The victim is replaced by a public official that does not keep the role of accuser, but only as investigator (the state is the accuser in a replacement, substitution of the private vengeance). There is no contest, a referee is not necessary: the judge is an inquisitor actively seeking to determine the truth (truth found by continuing investigation, through a screening process). The power is concentrated more in the judge, while defendants are expected (but not required) to cooperate in the investigation. It was created in the 13th century and later spread in Europe thanks to the Napoleon’s code, which removed torture as a preliminary stage. Before, there was a single judge investigating and deciding guilt; the Napoleon code introduced the juge d’instruction that questioned witnesses and prepared a dossier, while another judge decided guilt. Truth is found by continuing investigation; judges actively examine evidence because parties may have interests in hiding the truth, while the state must be involved to continue the investigation. A plea bargaining is not theoretically possible and not advisable; it would violate the principle of legality according to which the prosecutor brings charges for what the suspect has done, not for what he admits to have done. However, there are examples of negotiations also here (offer a lower sentence in exchange of admission to the charges; a judge must accept or reject the proposal). There are also incentive mechanisms; in Germany the public interest in prosecution can be satisfied by paying or performing some actions for the benefit of the public. Common features include a pretrial investigative stage where evidence is gathered and a trial stage where it is presented in written form. There is a procedurally active judge and rather passive lawyers (opposite of adversarial process). Both models are based on a presumption of innocence, but the extensive pretrial investigation gives the feeling that defendants arriving to trial are most likely to be guilty. Without impartiality, the trial is merely review and affirmation of pretrial investigation. ADVERSARIAL PROCESS The accuser, with the passing of time, moved from being the victim to being the state (the state is the accuser in a continuation of private vengeance); accusation is done before an impartial judge serving as a referee in a context similar to a competition (truth found in a competition during the trial phase, from a free and open competition over who has the correct facts). The judge has only to control that the parties are playing according to the rules and to decide who wins. Power is shared by the prosecutor, judge, defense and police; the defendant is not expected to cooperate with the investigation. It was created from the trial by ordeal in the 10th-13th century; the procedures for the ordeal increased their attention and it became a system emphasizing proceduring. It was possible to use the law to gain an advantage, so two safeguards were introduced: the cross-examination (challenge or destroy a witness’ testimony or honesty) and the power shared between the prosecutor, the judge and defense instead of one single position. The defense differs quite a lot in the Us and Uk system (Us: more emotional, erecting procedural barriers; Uk: more detached, accepting the punishment for a defendant found guilty). There are the rights to an attorney, to remain silent, to be free on unwarranted searches, to confront one’s accuser and also to compel witnesses to appear. Comparing the two, we can identify four areas: - IS emphasize the screening phase (careful investigation determine factual guilt); AS emphasize the trial phase - AS is more likely to restrict the involvement of the judiciary in the investigation and adjudication; IS requires the involvement of a judicial officer - in IS all are seeking the truth, so the defendant is expected to cooperate supplying info, answering questions; in AS not - in AS the judge is a referee, deciding between the two versions; in IS he’s another investigator with added powers The importance of how a person is adjudicated seems more important in the AS than determining whether he committed the crime in fact. The IS emphasizes the factual guilt, while the AS the legal one. There is also noticeable merging of the procedures. There are inquisitorial procedures influencing the process in AS (e.g. early and broad disclosure of prosecutorial evidence, increased emphasis on the pretrial stage). Also the opposite is true, with AS being introduced in the inquisitorial process (e.g. written statements by witnesses from the investigating phase cannot be evidence, versions of guilty plea, abolition of the investigating judge as a consequence of the increased use of adversarial role). There are also the so-called popular systems, with popular participation (the oldest methods) integrated in both models. The main method is the jury, one or more lay judges helping the professional one; lay judges are not professionals, normal citizens elected or chosen. They provide a balance between the state and the peers of the accused. Many small towns also have the justice of the peace for small controversies like traffic violations, small civil claims, … are distinguished only by their different functions. The state prosecutor enjoys the guarantees established in the prosecutor’s favor by the provisions concerning the organization of the Judiciary. Prosecutors’ independence is lower than the one of judges (for organizational reasons, the general attorney gives indications to public prosecutors of his/her area). [Poland enacted laws to put judges under the political control of the government; through the establishment of a disciplinary panel with authorities over the country’s judges; according to a ECJ ruling (2021) this undermines judicial independence and Poland received financial penalties]. In civil law countries the way to become a judge or a prosecutor is similar to Italy, but prosecutors have a separate career from judges and are part of the executive (must follow instructions of superiors). In common law countries they are appointed through a selection by politicians. In the US: - federal judges are appointed by the President with the consent of the Senate (serve for life) - federal prosecutors/attorneys are appointed by the President for 4 years and can be removed - state judges are appointed or elected - state prosecutors are most commonly elected for a short term (political liability) The universal basic structure of the judiciary is in three levels: lowest (first instance), mid-level (appeal), highest (last resort). The organization of courts in Italy is the following: - first instance: - tribunal: 1 or 3 judges - corte d’assise: 2 professional judges and 6 lay judges (for serious crimes); there are problems of organization because lay judges are not able to give reasons which are required by art.107.6 IC. The assise is a form of direct participation of people in the administration of justice - giudice di pace: honorary magistrate (not strictly a magistrate). only for 3 or 4 years and for misdemeanor - courts of second instance: - court of appeal - corte d’assise of appeal - supreme court of cassazione: only for giudizio di legittimità, on application of the law, substantial and procedural. It’s not involved in fact finding and cannot decide the kind of proceeding. The prosecutorial offices have a first instance (procura della repubblica, attached to the Tribunal) and a second instance (procura generale, attached to the court of appeal and the supreme court). In Italy one judge determines both fact and law at same time. This is different from common law, where two judges are involved: the lay judges in the jury trial carry out the fact finding process (guilty or not guilty); the professional judge takes the technical decision on admission of evidence and witness, on the amount of punishment, … There are also different types of justice: - adversarial: if rules are respected, the judgment is right (procedural justice) - inquisitorial: final goal is reached when the material truth of the fact is found though the different phases. The truth is reached after the third degree; before, there is the presumption of innocence. Indagato (accused) They have the right to be present at trial, but they can waive this right (in absentia process is possible). They cannot waive the right to counsel. Victim (persona offesa) They can be witnesses or civil parties (apply for a compensation but directly through the criminal proceeding). The assistance of counsel is mandatory. The new code of 1988 is a case of legal transplant, from the inquisitorial system to the adversarial one. The criminal code is the only code to be replaced since the adoption of the constitution (other codes were amended, but not replaced). The criminal code is important for the organization of society and the previous one was in contrast with the constitution. The 1930 old code was rooted in the code d’instruction criminelle. It merged the inquisitorial and adversarial model: there was an investigative judge and a public hearing (relation between the two stages: if the judge can use all evidence collected also before the trial phase, it’s more inquisitorial). The key feature was the investigating judge (giudice istruttore) that aggregated the prosecution and adjudication in the same function: it conducted investigations, it gave orders to the police, it developed a judgment of acquittal or it referred the case to trial The products of investigations were substantial evidence at trial. All materials collected by an investigating judge could be used in a trial. The judge at trial could use the record of the witness collected in the investigating phase and the record of the trial phase and could choose which one to use at trials, simply asking witnesses if they confirmed what was said before. This system is defined as the communicating vessel system. Prosecutors and defense could ask questions after the trial judge, and only by means of the judge. The investigative judge was the symbol of authority. The trial judge decided facts, law, whether a person was guilty and the punishment mainly on the basis of out-of-court statements: it was hard to guarantee the right to confrontation, not effective. Now, there is the preliminary investigation by public prosecutors instead of the action of an investigative judge. Also, there is more power to parties, especially in the evidence field: now only the parties are able to submit evidence. There are more rights for suspects. An example is the right to a lawyer: having a right doesn’t mean exercising it (Miranda case: police must give the Miranda warrant saying that you have the right to an attorney. It’s different from Italy). It’s not possible to investigate anyone without the presence of the lawyer, who is mandatory. There are clearer separations of functions between prosecutors and courts and between pre-trial and trial phases. There is the double file, double dossier system, abandoning the communicating vessel system: the trial judge doesn’t have access to the pretrial dossier (to guarantee separation). This is evident from art. 431 Code of crim. proc. on trial dossier: 1. Immediately after the decree for committal to trial has been issued, the Preliminary Hearing Judge shall proceed to the production of the trial dossier after hearing the parties. If one of the parties requests a new hearing for the production of the trial dossier, the Judge shall set it within fifteen days. The trial dossier shall contain: a) the documents related to the admissibility of criminal prosecution or civil action; b) the records of unrepeatable actions conducted by the criminal police; it’s not possible to repeat the search c) the records of unrepeatable actions conducted by the Public Prosecutor and the lawyer; d) documentary evidence gathered abroad, by means of an international letter rogatory, and the records of unrepeatable actions carried out through the same procedure; documents collected abroad are part of the trial dossier e) the records of the evidence gathered during the special evidentiary hearing; when there’s the risk of losing evidence if the trial is waited forl, the judge can be asked to do a special hearing during the investigation phase following the rules for public hearing j) the records of the evidence, other than those provided for in letter d), gathered abroad after an international letter rogatory to which the lawyers were allowed to assist and exercise their rights under Italian law; g) the general certificate of the criminal record and the other documentary evidence referred in Art.236; h) the corpus delicti and material items related to the offense, if they do not have to be kept elsewhere. 2. The parties may agree to gather in the trial dossier documents contained in the investigative dossier, as well as the records of defense investigative activities. These are evidence included logically in the trial dossier, because they were collected in front of the judge with the right to confrontation. Other investigative acts are out of the trial dossier and part of prosecutor dossier. Law of evidence also changed. It’s no longer the judge to ask witnesses and order submission of evidence: now this is granted only to the parties that have complete control of the fact finding process. The presentation of evidence is partisan and also the cross examination is conducted by the parties. Art.190 - Right to evidence 1. Evidence shall be admitted upon request of a party. The court shall decide without delay by issuing an order, excluding any evidence that is not allowed by law or manifestly superfluous or irrelevant. 2. The cases in which evidence shall be admitted of the court‟s own motion are set by law. It’s the symbol of mixed systems: the model here is inquisitorial: the cases where it’s the judge to provide for evidence are possible but are exceptional. 3. Decisions concerning the admission of evidence may be revoked after hearing the parties. Before, there was one procedure for all crimes. Now the adversarial model requires more time, money and resources so special proceedings are introduced for simpler cases. Special proceedings are the plea bargaining and summary trial (the accused waives his right to confrontation and the punishment is reduced: he accepts to be tried in the preliminary hearing, without public debate and cross examination of witnesses). The ordinary proceeding is the following: - Preliminary investigations: conducted/directed by prosecutor, with help of police under the control of a judge of preliminary investigations (GIP). The defense lawyer might be present: he has the right to participate in the investigation. - Preliminary Hearing (GUP): a filter to ensure judge’s control on rash charges of prosecutor (as in common law) - Trial – first instance: collection of evidence, discussion, decision. Not possible to use material collected in pre-trial phase - Appeal – second instance: full review of the case (facts and law) - Court of Cassazione: only review of errors of law (in applying substantial or procedural rules) Preliminary investigating judge - GIP The investigation is directed by public prosecutors. However, to safeguard the rights of citizens, a judge of preliminary investigation can be included: he’s not permanent, doesn’t work in the investigation, but only intervenes when the prosecutor asks for something (pre detention, telephone tapping…) that might infringe fundamental rights of the suspect. Also the evidentiary special hearings are done by GIP, who acts and interferes with investigations when requested. The proceedings starts with the crime notice/notitia criminis which is recorded in the criminal register. The preliminary investigations starts (prosecutor, police, judge are the subjects); it must last a maximum 6 months, but there can be extensions. At the end there are two options: - the prosecutor asks for a dismissal; the GIP has to verify the request, which is one of the main differences with common law, where prosecutors are autonomous, independent and responsible for their choice to dismiss the case. The GIP can either confirm the dismissal, ask to bring charges if he doesn’t agree or further investigations (a sort of control of legality); in the last two cases, prosecution will start - the prosecutor starts a prosecution with a direct summon (directly to the trial) for small crimes, the special procedures or with a preliminary hearing in front of the GUP for serious crimes. The GUP can issue a judgment of acquittal in fact or in law or order to send the case to trial. Then, the trial starts. Preliminary investigations It starts with the notitia criminis; it is not possible to investigate all notitiae, but it must be done and then dismissed. It must last 6 months maximum (there can be extensions, e.g. for organized crimes). In France: the investigating magistrate issues orders for the police to conduct many investigations. In reformed models (Italy and Germany), there is an investigating prosecutor and the control by a judge. In common law, the prosecutors are trial accusers and can use police investigations. The types of activities carried out are: - Non-coercive measures: technical assessments, interviews to witnesses, questioning the accused or interrogation - Coercive measures: - search and seizure of the person or in the house to search for evidence. A judicial warrant is needed by the prosecutor (done directly by the police only in urgent cases), not by a judge. - wiretapping, interception and monitoring of communication through secret connection to the telephone line; a warrant is issued by the GIP upon request of the prosecutor. - Restraints of personal liberty before trial: - Arrest: by the police in case of flagrant crime (person caught while committing a crime), without prior authorization but with ex-post review (convalida) by the judge within a short time (96 hours); the judge can also issue a decree for the immediate release. The decision of the judge must be done in public in the presence of the defendant and his lawyer. - Fermo/temporary detention by police or prosecutor: when there is a risk of flight, without prior authorization but with convalida ex post within 96 hours. - precautionary measures (house arrest, pre-trial detention, …): GIP authorization is necessary upon request of the prosecutor (because there is no urgency). These measures can be applied only to satisfy the proceeding’s needs respecting the presumption of innocence; there are three criteria to apply them: - reasonable cause, serious indication of guilt by a specific person - sufficient grounds: risks for the trial (contamination of evidence, flight, commitment of another crime … - only for serious crimes only (not if the final sentence will be less than 5 years). They are subject to remedies by a group of judges that can challenge it (riesame) within 10 days from the request of challenge. Art.274 code of criminal procedure: 1. Precautionary measures shall be ordered: a) if specific and mandatory needs arise for the investigation of the criminal acts under prosecution, due to situations of real and current danger which could jeopardize the gathering or the authenticity of evidence; b) if the accused has fled or there is a real and immediate risk of flight; c) if there is real and immediate danger of the suspect or accused committing serious armed or violent crimes Rules on individual freedoms and rights are one of the most important parts of criminal procedure. In adversarial systems, the defendant is usually free and not detained during the proceeding, contrary to the inquisitorial one (even if the adversarial principle is not absolute in any place). Art.13 IC, similar to art.5 ECHR, are really relevant: Personal liberty is inviolable. No one may be detained, inspected, or searched nor otherwise subjected to any restriction of personal liberty except by order of the Judiciary stating a reason and only in such cases and in such manner as provided by the law. From the constitutional pov, the public prosecutor could be able to restrict personal liberty (he is part of the Judiciary); however, in the proceeding he acts as the lawyer of the State and the order must be done by a judge. In exceptional circumstances and under such conditions of necessity and urgency as shall conclusively be defined by the law, the police may take provisional measures that shall be referred within 48 hours to the Judiciary for validation and which, in default of such validation in the following 48 hours, shall be revoked and considered null and void. If the judge doesn’t confirm the measure, the provisional measure should be considered null and void and the person must be released immediately. Any act of physical and moral violence against a person subjected to restriction of personal liberty shall be punished. The law shall establish the maximum duration of preventive detention. Art. 292 explains what the order by the judge should contain. 1. The court shall issue an order for its decision on the request of the prosecutor for the application of a precautionary measure. 2. The order directing the precautionary measure shall contain, under penalty of nullity: a) the personal details of the accused or any other element suitable to identify him; b) a brief description of the criminal act with the indication of the allegedly violated rules of law; c) an outline and independent evaluation (from the one of the prosecutor) of specific grounds for precautionary measures and serious indications of guilt justifying the ordered measure, indication of the underlying facts and the reasons for their relevance; c-bis) an outline and independent evaluation of reasons for considering irrelevant the elements provided by the defense and, in case of application of precautionary detention in prison, outline and independent evaluation of practical and specific reasons for which other measures cannot be adopted; the defense can intervene and if they are present in the dossier of the investigation, the judge has to consider them and explain why they are not relevant. d) the setting of the expiry date of the measure; e) the date and the signature of the judge. The judge must always deliver a written opinion (even if the court is a mixed court with lay judges). Also, the decision must contain reasons (differently from common law juries). The right to a reasoned judgment is recognized in art.111 IC: All judicial decisions shall include a statement of reasons. The judge must state which are the evidence analyzed and the criteria used to evaluate the evidence (proof is the consequence of evidence, they are not the same). Art.192 on evaluation of evidence: the court shall evaluate evidence specifying the results reached and the criteria adopted in the grounds of the judgment. The existence of a fact cannot be inferred from circumstantial evidence unless such evidence is serious, precise and consistent. The judge also has to explain which provisions he’s applying. This right to reasoned judgment was also established by the ECtHR in Taxquet Case: in proceedings conducted before professional judges, the accused’s understanding of his conviction stems primarily from the reason given in judicial decisions. In such cases, the national courts must indicate with sufficient clarity the ground on which they base their decisions. Although the older European codes often still say the judge should decide based on “conscience” (Spain) or “free conviction” (Germany), newer codes expressly require reasons (Italy and Russia). Yet the case law in some countries (Spain and Germany) has outlined strict requirements for judgment reasons, and the requirement of reasons has been accepted throughout Europe. Special procedures Some cases can go directly to trial to expedite the case, without the preliminary hearing: - giudizio direttissimo: when there is an arrest for flagrant crime. There is the discussion on the legitimacy of the arrest and then on the merits of the case (the charges are brought directly). - giudizio immediato: when there is clear and strong evidence (e.g. confession). The prosecutor can ask for it, skipping the preliminary hearing because it is not necessary. Some cases can avoid trail and are closed in the pre-trial stage (waiving the right to cross-examination and public debate): - summary trial (giudizio abbreviato): available for all crimes (exception if life imprisonment can be imposed); the decision is made in the preliminary hearing by GUP. Art.438 on prerequisites for summary trial: 1. The accused may request that the decision on the accusation be taken at the preliminary hearing based on the available elements of evidence (collected in the investigation phase). 5. The accused may subordinate the request to supplementary evidence necessary for the decision. The court shall order a summary trial if the requested supplementary evidence is necessary for the decision to be taken and is compatible with the purposes of economy of the proceedings (there is room for evidence gathering, but very limited) It’s a sort of inquisitorial proceeding. The defendant might prefer this option to have a reduction of the penalty of ⅓ when he knows that there is no chance to challenge the credibility of witnesses or to gather enough evidence (which doesn’t mean he thinks he’s responsible). - sentencing by parties’ request (patteggiamento): it’s an agreement between the prosecutor and the defendant about the sentence to be imposed; there is a reduction of the penalty up to ⅓. It’s similar to US plea bargaining, but adapted to our tradition. In common law, the public prosecutor has discretionary power to bring charges to trial (he can decide on political grounds, public interest, which crimes to prosecute). You can agree with him and maybe change the legal qualification of the fact, because he has the power to do so; in the case of many co-defendants, the prosecutor can think that one is more responsible than the other and can agree with others to avoid trial in exchange of additional information. In our tradition, the prosecutor has the duty to prosecute every crime and cannot change the legal qualification of the fact (principle of legality). It is ruled in art.444: 1. The accused and the Public Prosecutor may agree to request the court to impose a penalty, specifying its type and length or amount. Such a penalty may be either a substitute or a financial penalty reduced by a maximum of a third, or a sentence of imprisonment when, considering the circumstances and after its reduction by a maximum of a third, it does not exceed five years of imprisonment or five years of imprisonment combined with a financial penalty. The judge cannot define the sentence, he can only accept or refuse the agreement between the parties. There can be two sources for reduction: circumstances and patteggiamento. 2. The judgment on the application of the punishment shall be delivered only if, on the basis of the available elements of evidence, the court believes the legal definition of the criminal act, the application and comparison of the circumstances are correct and the requested punishment is adequate. The judge has some space of decision: he must control the legality of the agreement, checking the legal definition (to check if patteggiamento is available for such crimes), the circumstances and the punishment (to check if it’s proportionate to the concrete facts). 90% of trials are defined in this way; in Italy, this proceeding didn’t succeed as expected, only 20%. It’s relevant to say that it’s not available for all crimes (sexual crimes, terrorism, organized crimes): the legislator mistrusts the effectiveness of this proceeding in serious crimes. - proceeding by penal decree: it’s available for minor offenses and can impose only financial punishment. It’s the most inquisitorial proceeding in our system. You have no prior notice and you just receive the conviction (the prosecutor investigates and sends the case to the GUP that decides to reject it or issue the conviction). You can oppose this decision by opening the trial: you waive your right to trial only if you accept the decree. This might not be completely in line with the Constitution (it was accepted by the Constitutional Court to “save the system”). Since 2014, there has been a new special proceeding, the suspension of the proceeding pending probation (con messa alla prova), for minor crimes. The request is done by the accused on the basis of a treatment programme; if the probation is successful, the court declares that the offense is extinguished. Appeals and cassation Defendants and prosecutors have a right to appeal, to challenge the decision before a superior court. The right to appeal is recognised in the constitution (art.111). and in ECHR (Prot.7 art.2): everyone convicted of a criminal offense by a tribunal shall have the right to have his conviction reviewed by a higher tribunal. The exercise of this right shall be governed by law. This right may be subject to exceptions in regard to offenses of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal. The Italian Appellate remedied system is typical of the civil law tradition: second instance before Corte di Appello, third instance before Corte di Cassazione, ordinary remedies preventing the judgment becoming final. Many continental European systems provide for a second instance where factual questions may be relitigated and where new evidence may be introduced. Most “appeals” are heard by courts staffed by professional judges, even though the first instance may have been a court with lay participation; exceptions are found in France and Italy, which provide for appellate “juries”. All systems provide for at least one level where legal errors may be reviewed, which is called “appeal in cassation”. Normally there is no taking of new evidence at this stage. Court “breaks” judgment of the first instance and returns the case for a new trial. The bureaucratic organization in which every proceeding has to reach the court of cassazione is particular in the common law tradition. If we accept that the best method to achieve the truth is the cross-examination before the court of first instance, it’s not easy to accept that the court of appeal and of cassazione can modify it. It comes from the organization of the judges previous to the reform. However, the ECtHR in the Orefice vs Italia case condemned Italy saying that the court of appeal cannot overturn the acquittal judgment only on the basis of the written statements collected in the first instance trial: the court of appeal must hear again witnesses that were important for the acquittal. When appeals are exhausted, the decision becomes final. The decision can be executed in case of conviction: the penalty/punishment can be enforced (if imprisonment, the person can be arrested) The principle of ne bis in idem (not twice in the same fact) is relevant, also in ECHR: no one can be prosecuted or criminally convicted by the jurisdiction of the same State for a violation from which he has already been acquitted or convicted due to a definitive decision. It’s similar to the American double jeopardy clause and important in EU law. After res iudicata (final judgment), some extraordinary appellate remedies may be invoked to reopen the case even if the decision is final and are available only against final convictions, under strict requirements. The rationale is to give protection to the innocent against judicial errors, against wrongful convictions. Revision (revisione) is available if there is a claim of factual innocence (e.g. new evidence arises). It has been widened by the Constitutional Court to allow the reopening of the case to comply with a ECHR judgment, if a violation of fair trial rights occurred. - Ricorso straordinario per cassazione: in case of error of the Cassazione (a material error or a factual error). - Rescissione del giudicato: if the judgment was issued in absentia but not for negligence or fault, the person can ask the Court of appeal to revoke the judgment, and a new trial is held before the first instance court. The adversarial turn is not a success from the pov of the efficiency of the system (delays, overload, …) but from the pov of protection of fundamental rights, it is a success (in the previous system, the State had really broad powers). Also, for organized crimes, corruption and terrorism, the adversarial system works well respecting the rights of citizens without going down at the level of criminals. CRIMINAL PROCEDURE IN THE US First, the Us system is complex. - it’s a federal system with two levels (federal and national justice system) - sources are complex (many levels) - internal rules of police departments governing different aspects of investigation (e.g. use of force during the arrest, development of lineup, interrogations, …). They haven’t force of law so they have no consequences in the criminal proceedings, but they may result in internal sanctions. - rules adopted by national and federal legislators and courts, collected in Title III (disqualification from jury service, interception of communications, …). Federal rules of criminal procedure and federal rules of evidence developed by the Supreme Court pursuant to authority granted by the Congress - Us constitution and State constitutions and case law connected to them (especially in 60s and 70s); the study of criminal procedure is basically the study of constitutional law and case law. The following provisions, relevant for criminal procedure, are considered the Bill of Rights, adopted in 1791. - 4th amendment: investigation phase to restrict coercive power on individuals (right to be secure from unreasonable arrest, search and seizure; warrant /probable cause). It is an old provision but it’s still valid today for not physical but electronic investigative techniques (electronic surveillance, GPS, …). - 5th amendment: right to grand jury; privilege against self incrimination; forbids double jeopardy; right to due process of law (nor to be deprived of life, liberty, or property, without due—process of law) - 6th amendment: right to a speedy trial; right to a trial by jury (not common in Europe, 6-12 common people); right to information (to be informed of the nature and cause of the accusation); right to confrontation with the witness; right to a lawyer - 8th amendment: right to bail (excessive bail shall not be required); forbids cruel and unusual punishments - 14th amendment: made previous amendments applicable at state level (incorporation doctrine, due process clause). No state shall make or enforce any law which shall abridge the privileges or immunities of US citizens; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. According to the incorporation doctrine, the first ten amendments of the US Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause. Incorporation applies both substantively and procedurally. The Constitution might contain the seeds of tyranny by the government. So, a bill of rights was included, first containing 10 amendments, in 1791. The relevant ones for criminal procedure are the 5th (protecting against self-incrimination, right to silence), 6th (providing for right to speedy and public trial, impartial jury, counsel), 8th (prohibition of excessive bail, fines and cruel punishments). These were limiting only the federal government. In 1868, the 14th was added and made applicable to states as well as to the federal government. The 4th amendment states: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. It doesn’t prohibit all searches, but only those that are unreasonable. U.S. Supreme Court dealt with this in cases relating to searches and seizures. The exclusionary rule is the judicially developed regulation associated with the 4th amendment. State and federal courts must exclude from trial any evidence obtained in violation of the privileges guaranteed by the constitution (defective warrant, absence of a warrant, lack of probable cause, …); this is done to deter police misconduct, but it can make a case against a guilty person invalid. So, the good-faith exception has been introduced: evidence obtained with an illegal warrant cannot be excluded if the police show that they reasonably believed they were acting lawfully. Let’s turn to the actors of the proceeding. The several components of the US criminal justice system (which is not a system, systematic) are fragmented and uncoordinated from a functional point of view. - Police The model is multiple, decentralized and uncoordinated (opposite to the Italian case). There are many types of police force (law enforcement agencies), each under different authorities. At federal level: 100 agencies with criminal justice functions, mostly under the Department of Justice At state level: over 17,000 autonomous law enforcement agencies, most of them organized on a local basis (counties, cities, townships). A different authority supervises the force at each level: every community can issue documents for the fight against crime. This seems strange for Europeans, but it’s appropriate in the Us because it is a way of making the administrative system suitable for the pluralistic society. Police are not functionally dependent on the prosecutor, they are totally independent. There is the risk that they pursue different purposes: they have different political orientation and different efficiency’s criteria for public opinion (e.g. for the police, number of arrests compared to the number of reported crimes; for prosecutors, number of convictions compared to the number of prosecutions). Police tend to implement the indications from the community where they belong, while prosecutors are expressions of the political world and tend to follow their policies. - Prosecutor At the federal level, they are regulated by Judiciary Act 1798 that established the US Attorney General (AG) and a network of US District Attorneys (DA), both appointed by the Us President for a term of four years, with confirmation by the Senate. Usually they go back to the previous job (often lawyers) or enter into politics (first step of political career). - AG is the head of the department of Justice; he’s established in the capital - DA are located in various districts; they represent the US government before district courts and courts of appeal At the state level, there are the Chief Prosecutor (appointed as an expression of the political world) and the District Attorney (mostly elected by population for a short renewable term). Federal and state prosecutions follow the principle of discretionary/opportunity prosecution (including discretion about the charge). So, the system of recruitment, the relation with the political world and the method of prosecution are different from the Italian one. - Judges/courts (adjudicatory power) Federal judges have a political appointment by the President, confirmed by the Senate, on the basis of the CV; they serve for life. State courts/judges are selected in a variety of ways, including election, appointment or both. The hierarchy of courts is the following one: - District courts: first instance, trial courts deciding on the merits of the court (guilt or no guilt) - Circuit courts: courts of appeal, intermediate level only available to the convicted on grounds of error of law - Court of last resort: Supreme Court, not usually required to accept and hear the appeal (it selects the cases at its discretion based on the grant of certiorari; only 1% of appeals are accepted). The habeas corpus procedure (art.1 §9.2 Cost.) is a civil proceeding strictly linked to the criminal trial; a person held in prison can request to the federal district court the release from custody complying that detention is in violation of the Us Constitution. used to make drugs. There are also financial intelligence units (FAU), money laundering units, usually administrative, not judicial, authorities. Environmental authorities can also be involved; non complying with the license allowing for waste recycling can be a crime or not, depending on the country. Financing terrorism depends on executive decisions listing associations as terrorist associations; financing them is a criminal act, so it falls under the anti terrorist authorities. Who: classic prosecutors and police and judges + all authorities granted judicial power, even if not strictly judicial authorities; when this happens, they act under the supervision of prosecutors (e.g. tax, custom, environmental, …) States are sovereign, but in this case they can’t go very far if they stay alone: they need to collect evidence, they can prosecute only in their country, they can not surrender people staying abroad, they cannot enforce their decisions abroad. So, it’s impossible without cooperation. Although they are sovereign and autonomous, they need to cooperate because they have a common interest in tackling crime. However, to do so they must have a common idea of what crime is (e.g. abortion). It’s not cooperation between judicial authorities, but between States, mainly based on treaties and conventions. Sovereign states started to change at the end of the 19th century, first finding common definitions of what crime is. So, they started to sign conventions between the two world wars. They have been negotiated in international forums, like the League of Nations. For substantial law, the addressed crimes were international drug trade, counterfeiting of currency, piracy on the high seas, terrorism. For the instruments of judicial cooperation, extradition was addressed in bilateral treaties in the 1870s/1880s. However, these bilateral conventions are useful if they are numerous, but their content might be different and they might contain many declarations and reservations (e.g. in the Netherlands, cooperation for financial matters should be approved also by the minister of finance). In the treaties, there is a duty to cooperate but also many exceptions to this duty, called refusal grounds: - double criminality (the behavior must be a crime in both countries), - crimes excluded from the treaty (tax crime, custom offense: only interested in their own crimes; political offenses like treason, related to state interests) - extradition of your own nationals (especially Germany), but then you have the duty to prosecute; aut dedere aut judicare - raison d’etat, state interests, used a lot in the past. Two examples: 1) ongoing investigation in Belgium in the 80s about corruption; evidence found in France but not possible to bring them to Belgium because it was protected by military secrets. 2) Head of state of Suriname investigated for drug trade in the Netherlands, asked to be extradited to Suriname, the original place, which refused. Then flew to Brazil, but extradition was not accepted by the Netherlands itself: too delicate to deal with the head of state of another country. Exequatur → decision making executable a foreign decision, making it domestic If evidence is found, it can’t be sent to Italy because the defendant has the right to appeal for remedies to the Dutch decision making the Italian one domestic. Treaties are applicable law from international public law, so they need to be implemented in domestic law. We can say that treaties have an international and a domestic face. When a domestic authority uses a treaty, it is using domestic law, at the end domestic law is applied (even if the origin is international). In domestic law, treaties are in special statutes or sometimes in ordinary codes. The authorities competent to send requests are assigned by every state and they can be different in different states. When a request is sent, the main aim of the authority is to follow the indications given by the sending authority, for the pursuit of the interest of crime control (e.g arrest, collect evidence). However, there is also due process, not only crime control (interest of the state): does the defense have the same power to collect evidence abroad? No: evidence must be gathered in favor and against the defendants, but the defense can’t intervene (can’t even trigger a request), it’s only a state-to-state relation. The suspect is not a subject of this proceeding: he has no rights and no role. However, this doesn't mean that all instruments are against him: - speciality principle: if a state is asking for an extradition and the suspect is surrendered, he can be prosecuted and convicted only for the crime for which extradition was asked. The asking country cannot prosecute for other crimes different from the one triggering extradition. - refusal grounds: one of the reasons to refuse cooperation is the risk of serious hr violations (torture). Example: request by Spain to Belgium to extradite people in an independentist political organization; Belgium refused because Spain violated their hr (freedom of opinion, torture by police, …). Extradition is not necessarily dramatic for suspects: evidence can be gathered in your favor and it’s regulated well, so States cannot do anything. States sometimes are so obsessed with getting someone that this system is perceived as too strict and they have the desire to circumvent the procedures; according to the ECHR circumventing can be a violation of hr. Example: In Italy a man was convicted in absentia for financial fraud. For the execution, Italy needed cooperation with France (he was there). France refused because of the in absentia conviction (violation of public order in France, normal in Italy). France deported him (administrative measure) in Switzerland and then he arrived in Italy. France was convicted by EtCHR because of this circumvention. According to the ECHR, extradition is not a judicial, but an administrative procedure. This means that art.6 ECHR on fair trial does not apply. However, for extradition you need to arrest and detain a person, depriving them of liberty; deprivation of liberty is protected by ECHR in art.5 ECHR which can be invoked in cases of extradition. ECHR sometimes makes it impossible to extradite: in Soering vs Uk case Germany wanted to extradite, but ECHR forbade it, for reasons connected to Art.3 ECHR (even though it was not capital punishment, death row, i.e. waiting for years, is an inhuman treatment). If there is a risk of hr violation through death row, extradition is not possible. Summing up, although ECHR says it’s an administrative measure, it regulates extradition and States must respect the convention. States elaborated these conventions and execute requests because they trust each other. There are states with no common treaty because of a lack of trust or because they didn’t want to cooperate (Japan, China). In the Neth, in one year there are 30’000 request incoming and 1 mln requests outgoing, so the system is functioning quite well. Time line: - 1870s/1880s: first bilateral treaties, mostly on extradition and gathering evidence - ww1 - Conferences on piracy, terrorism, … in the League of Nations (substantive law) - ww2 - 50s: Un and regional bodies (CoE, Eu) - The Council of Europe in the ‘50s issued the ECHR and 2 types of conventions: suppression conventions (dealing with definition of offenses) and conventions on judicial cooperation in criminal matters (updated in protocols). They’re multilateral instruments: the philosophy is the same, what changes is the multilateral setting. The advantage of the CoE is that it works in a forum, where political expression is allowed for states. - At regional level, there are no multilateral conventions. - At the UN level, there is a suppression convention but no extradition convention. - The Eu was created with the Treaty of Rome (initial aim: economic integration). In the 60s/70s in the Eu there were huge problems: terrorist groups (brigate rosse and similar in all MSs, many fled justice and set up operations from abroad, so the cross border element was important and made easy thanks to the internal market); increasing drug and arms trade; illegal migration. There was a strong demand from below (from enforcement authorities like police) for cooperation; they started to work together without any legal framework exchanging info, cooperating, … This could be illegal, risky (a lot of power without controls), but the solutions asked arrived after a while. The old treaty integrated, beside agriculture and economic fields, a domain of justice which didn't work because many MSs didn’t want to bring justice into the integration model (it’s not cooperation like in the Un when states retain power). The first solution arrived in 1985 with an execution agreement in 1991: the Schengen agreement (not only for free movement). It introduced the SIS, Schengen Information System, the biggest police data bank based in Strasbourg (data on driving licenses, dna, …); for the first time, there were provisions on police cooperation and judicial cooperation. It was still an international and intergovernmental agreement under public international law; at the beginning only BeNeLux, France and Germany joined. Being intergovernmental, States remained sovereign and there were periodical meetings of ministers. All classical conventions remained in place (CoE and 19th century) but the philosophy changed. The combination of judicial decision and political approval was outdated; the ministers of foreign affairs and justice could not decide anymore on the requests coming from abroad → state-to-state cooperation is turned into judicial cooperation. The exequatur (decision by domestic judge on request from abroad) is only informed to the ministers, not decided by them. Many declarations and reservations to classical treaties could not work for an integrated market in the Schengen agreement and also some refusal grounds were forbidden (e.g. tax, custom and political offense are a ground for cooperation). All exceptions were cut out and the Schengen philosophy was applied together with classical conventions. The Eu integration goes on and the Maastricht Treaty of 1992 replaced the Rome one, introducing the Union instead of the communities. There was a lot of pressure to integrate the Schengen acquis in the new treaty. Neth tried in particular, proposing the harmonization of substantive criminal law and the introduction of areas of cooperation: police, custom and judicial. This draft was rejected. The pillar structure was introduced, with different policies with different features (it was not possible to integrate all): 1. community law; 2. foreign policy and defense; 3. justice and home affairs. The Schengen agreement survived as an intergovernmental unit: ministers were meeting in a cooperation setting and right after as a union. The third pillar was regulated through the production of conventions (unanimity + incorporation), led by sovereign states. The first and the second were regulated with regulations and directives (qualified majority, binding immediately) led by the commission. Conventions for the third pillar were produced, but negotiations were long (7-8 years); also, the implementation at domestic level was absent or required very long procedures in the parliaments. Even if States didn’t comply with implementation, in this area it was not possible to start infringement procedures. In 1997 the Amsterdam Treaty replaced the Maastricht one. It kept the temple structure but civil justice and immigration moved from the third to the second pillar and many changes were done to the third one. The third pillar was now regulated with framework decisions, similar to directives but approved by unanimity. The commission and parliaments are involved. The court of justice is also included. Schengen is integrated in the EU. It’s a middle way between intergovernmental and supranational cooperation. The area of freedom, security and justice contained policy areas like civil justice, migration but also criminal justice. The ministers of justice set up a council to give content to the area of FSJ and the commission has the role to elaborate actions. The concept of mutual recognition was included, in this case for judicial decisions (copied from the internal market). So now there were two separate lines: classic international law (going on: see what happened in 2000 and 2001) and integration of Eu. In 2000, the Palermo Convention (a suppression convention) was adopted; it was also called UNTOC, UN Transnational Organized Crime Convention. The UNTOC remained very classic on extradition, … but it was ratified by nearly all Un states: for this reason, when no bilateral or regional treaties are present, even if only for the offenses covered by this convention, States can judicially cooperate. Also the UNCAC, against corruption, was adopted. These conventions were of a new generation, not only with substantial criminal law (definitions) but also with a big part on sanctions and judicial cooperation; for the first time, omni comprehensive conventions were adopted. In 2001, the 9/11 terrorist attack happened. A list of terrorists was written and many of them had to be subject to rendition (be put at disposal of justice; not extradition, no prison). For example, the Us went illegally to Panama to kidnap one and bring it to US justice; this followed the constitutional principle of malus captus, bene detentus: the illegal capture doesn’t matter if it’s detained legally (the way of kidnapping does not invalidate the legality) Secret intelligence programmes organized extraordinary rendition. The aim was not bringing them to justice, but securing them (imminent danger of other terrorist attacks). Eu intelligence authorities cooperated with the Us: Spain organized military secret flights, Italy collaborated for kidnapping in Italian territory, … However, in Eu ECHR applies to all civil servants also acting on another territory and now there are more than 10 cases at ECtHR (art.2 life, art.3 torture) in which states have been convicted for acts related to this event. The concept of mutual recognition comes from the internal market. It is not based on total harmonization, but on harmonization of most important things (e.g. procedure to get it is more or less the same, not exactly the same, but very similar). Mutual recognition of judicial decisions in criminal matters is also without any harmonization, all based on mutual trust. Where did the idea of judicial cooperation come from? Uk, always in favor of swift cooperation without touching domestic procedure. The idea was elaborating proper instruments to cooperate for pre-trial and trial proceedings (extradition, transfer of proceedings, convictions, execution of judgments, transfer of convicted prisoners from one country to another). It replaced from the internal side all existing instruments: bilateral treaties, coe multilateral treaties, Untoc, …. still exists, but within Eu States only used Eu instruments (with foreign states, apply previous ones). The first instrument of judicial cooperation was the European arrest warrant. The proposal was made in 2002. Normally, negotiations would have taken several years (unanimity was required) but it was adopted fast, because of 9/11 (show to US solidarity and answers). The Us asked to be part of the European arrest warrant, but it was refused: only MSs. It was adopted in 2002 with a framework agreement, later changed in 2008. - inside MSs the word “surrender”, not extradite, is used - recitals: copying pasting Schengen ideas: respect fundamental rights; not preventing MSs from apply constitutional rules; rec.13: No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. - art.1 (definition): The European arrest warrant is a judicial decision issued by a MS with a view to the arrest and surrender by another MS of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. - art.2: 1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. It means all serious offenses. There is a new check of criminality: there is a list of behaviors - not called offense - that don’t have to be subject to the double criminality check (you cannot deny because it’s not a crime in your country). Many of these crimes have not been harmonized. also grounds for non execution/refusal: some are mandatory, some are optionary. list is very short (less exceptions): 2. The following offenses, if they are punishable in the issuing MS for a maximum period of at least three years and as they are defined by the law of the issuing Ms, shall, without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: participation in a criminal organization, terrorism, trafficking in human beings, child pornography, illicit trafficking in narcotic drugs and weapons, corruption, fraud, computer-related crime, environmental crime, murder, racism, … - art.3 (grounds for mandatory non-execution): The judicial authority of the MS of execution shall refuse to execute the European arrest warrant in the following cases: if the offense is covered by amnesty in the executing MS; if the executing judicial authority is informed that the requested person has been finally judged by a MS in respect of the same acts; if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State. - art. 4 (grounds for optional non-execution): The executing judicial authority may refuse to execute the European arrest warrant:if the act does not constitute an offense under the law of the executing Member State, however, in relation to executing State. 2. MSs shall execute an EIO on the basis of the principle of mutual recognition and in accordance with this Directive. 3. The issuing of an EIO may be requested by a suspected or accused person, or by a lawyer on his behalf, within the framework of applicable defense rights in conformity with national criminal procedure. 4. This Directive shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles as enshrined in Art.6 TEU, including the rights of defense of persons subject to criminal proceedings, and any obligations incumbent on judicial authorities in this respect shall remain unaffected. Art.1.3 sets for the first time a mechanism for judicial cooperation in which defense can ask for investigative acts. Art.1.4 makes reference to human rights. Art.2 gives definitions, The issuing authority is defined as (i) a judge, a court, an investigating judge or a public prosecutor or (ii) any other competent authority which, in the specific case, is acting in its capacity as an investigating authority with competence to order the gathering of evidence. So, also non judicial authorities doing investigation (tax, custom authorities, …) can under one condition: it must be subject to a court decision. Art.6 gives the conditions: it must be necessary and proportionate for the purpose of proceeding. The issuing authority may only issue an EIO where the following conditions have been met: (a) the issuing of the EIO is necessary and proportionate for the purpose of the proceedings considering the rights of the suspect; and (b) the investigative measure indicated in the EIO could have been ordered under the same conditions in a similar domestic case. 2. The conditions referred to in paragraph 1 shall be assessed by the issuing authority in each case. 3. Where the executing authority has reason to believe that the conditions have not been met, it may consult the issuing authority on the importance of executing the EIO. After that consultation the issuing authority may decide to withdraw the EIO. Art.9.2 is on recognition and execution. The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in this Directive and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.An Italian prosecutor asks to interrogate a person to a Dutch prosecutor and this order is executed (person invited for interrogation); during the interrogation he’s suspected: in the Neth there is no right to a lawyer. This piece of evidence has a problem in Italy because it is obtained without a lawyer, violating the constitutional right. When executing an order, the lex loci is applied. The issuing country can ask the foreign authority to apply a lex forum to the extent that it doesn't violate the constitutional right or law of the country. Art.10: The executing authority shall have recourse to an investigative measure other than that provided for in the EIO where: (a) the investigative measure indicated in the EIO does not exist under the law of the executing State; or (b) the investigative measure indicated in the EIO would not be available in a similar domestic case Art.11-12 contain the grounds for not recognition or execution. They are all optional, not mandatory (a lot of leeway to MSs). The newest ground is letter f: the receiving prosecutor can refuse if there is a potential violation of hr (hr exception built in, but absent in arrest warrant; it was pushed through by parliaments, but it was not wanted by states). All remedies are concentrated in the issuing state. In a 2019 case on organized crime, Bulgaria asked the Czech Republic. In the Czech Republic, the order can’t be challenged for review. So, can the order be challenged in Bulgaria, is there a right to an effective remedy? The suspect can only challenge at trial phase, so very late. ECJ: the right to a remedy against it is in the issuing state. If there is no such remedy, the order cannot be issued or executed. So, there is mutual recognition also for some remedies. European investigation order for obtaining evidence in the criminal proceedings In 2009, the EU Commission adopted the “Green Paper on obtaining evidence in criminal matters from one MS to another and securing its admissibility”. Later, a text for a Proposal for a Directive regarding the European Investigation Order in criminal matters (hereinafter PD EIO) was issued. The EIO takes some rules from the Framework Decision on the European Evidence Warrant (FD EEW), expands its scope and adds rules that appeared already in the EU Convention on Mutual Assistance in Criminal Matters of 2000. In general, the EIO seeks to replace the fragmented regulation on the gathering of evidence with a comprehensive instrument applicable to almost all elements of evidence. One of the main concerns in the development of a single European area of freedom, security and justice has been to improve the instruments of judicial cooperation in criminal matters. II. The Background of the EIO Mutual Assistance instruments The mutual assistance in the obtaining of evidence within Europe has been governed by the European Convention of 1959, complemented by the Protocols signed in 1978 and 2001. Additionally the rules on mutual assistance in criminal matters were developed by the Schengen Agreement: grounds to refuse the execution of a mutual assistance request were reduced and the requirement of double incrimination was also restricted. Moreover it provided for a simplified procedure for the transmission of the requests, allowing as a general rule the direct contact between judicial authorities of the requesting and executing state. These were the essential rules regarding the gathering of evidence in criminal matters in another Member State, until the European Convention on Mutual Assistance in Criminal Matters of 2000 was adopted. It took more than five years until a sufficient number of states had signed the Convention, based upon the same principles as the 1959 Convention, but it represents a significant step forward in the development of judicial cooperation in criminal matters. In parallel, while mutual legal assistance was being reinforced and updated through international conventions, the existing international rules on mutual legal assistance were replaced with new European instruments based on the principle of mutual recognition. In these programmes the obtaining of evidence and its admissibility in criminal matters is placed as a priority for the EU institutions. The so-called free movement of evidence appears to be one of the goals within the establishment of a single area of justice. Approval of the European Evidence Warrant. In 2003 the Commission presented the Proposal for a Framework Decision on the European Evidence Warrant. Later the Hague Programme12 defined a five year roadmap to advance towards the establishment of a European area of freedom, security and justice, and expressly mentions the decisions related to the obtaining of evidence and its admissibility. The Framework Decision on the Evidence Warrant (hereinafter FD EEW) was not approved until 2008. The FD on EEW has a limited scope as it only applies to obtain pieces of evidence that already exist. This instrument should constitute the first step towards a single mutual recognition instrument that would in due course replace all of the existing mutual assistance regime”. The 2009 Stockholm Programme also includes among the priorities the setting up of a comprehensive system for obtaining evidence in cases with cross-border dimension. And in 2010, even before the FD on EEW was applied, an initiative for a Directive of an EIO was launched. As it can be seen, the EIO is the result of the advancement of the programme designed to strengthen judicial cooperation. Mutual legal assistance versus mutual recognition. Some have express their concerns with regard to the EIO based on the principle that underpins this instrument, the mutual recognition of judicial decisions; others have shown open opposition to the EIO because the affirm it violates the principle of equality of arms between prosecution and defense in the criminal procedure. As it is known, under the principle of mutual recognition, the judicial decisions from another Member State shall have the same effect and value as the national judicial decisions without a prior procedure of recognition and homologation. The system of mutual recognition thus is based on mutual trust. In essence it means that the state of execution can renounce to exert control upon the grounds that motivate the request because the execution state can trust that the requesting authorities. If there is trust in another legal system and in their judges, there is in principle no problem. When the states apply common procedural safeguards and grant an equivalent protection to human rights, there is no problem. This is the main difference between the mutual legal assistance system and the mutual recognition principle. Apart from the formalities – under the mutual legal assistance there is a “request”, whilst under the mutual recognition system, the issuing state sends an “order” – one of the main differences between mutual legal assistance and mutual recognition lies in the procedure for recognition and the grounds for refusal of the request. Under the system of mutual assistance the executing state has much more leeway to check the merits of the foreign judicial decision. However, this does not mean that the principle of mutual recognition is equivalent to a blind and automatic recognition and execution of the measure requested, but as a rule, the grounds for refusal are restricted to a minimum. The Convention of 1959 allows the requested party to refuse to cooperate if it “considers that execution of the request is likely to prejudice the sovereignty. These grounds for refusal are very broad. According to the European institutions, the traditional mutual assistance mechanisms are too slow and inefficient to meet the needs of judicial cooperation in criminal matters and therefore the system of mutual assistance has to be replaced by instruments of judicial cooperation based on the principle of mutual recognition. The new instruments shall speed up the transmission procedure. According to this scheme the FD EEW defines much more narrowly the grounds for refusal and eliminates the mandatory application of these grounds articles, stating that the evidence warrant “may” be refused. The principle of mutual recognition is to be implemented gradually or step by step. The Member States as well as the European institutions are well aware that it is probably too early to exclude all grounds for refusal as it is still necessary to allow the requested state to invoke certain grounds in order to deny the execution of the request. The European Investigation Order: a step further in the gathering of evidence in another Member State A comprehensive order. The FD EEW, approved in 2008 due to its limited scope of application, has to coexist with the instruments of mutual legal assistance, mainly the 1959 and 2000 Conventions on mutual assistance in criminal matters. It is unclear whether the EEW will in practice contribute significantly to facilitate the gathering of evidence in cross-border criminal cases and its admissibility in the criminal trial. We have to bear in mind that the EEW is another piece of a fragmented system, and this piecemeal approach does not help simplify the judicial cooperation between Member States. As the EEW is only applicable to pre existing elements of evidence, for all other evidentiary materials that might be also needed, practitioners will still have to use the letters rogatory of the mutual legal assistance system. Confronted with such a situation, it can be advanced that practitioners will opt to request all the evidence through one channel, the mutual legal assistance system, which covers all of them. It seems that the advantages of the EEW will be of limited significance. The shortcomings of the EEW were known to the Commission, especially the fragmentation of the instruments, but according to the Commission this should only happen during a transitional period, until the EIO. This might explain why the proposal for an EIO has been launched even before the EEW has been applied. Overcoming the fragmentary regime in the obtaining of evidence and providing an efficient instrument to facilitate the cooperation is the aim of the EIO: obtaining of evidence through judicial cooperation shall occur as quick and easy as possible. In order to overcome the complexity, the system of mutual legal assistance has to be replaced completely with a single European instrument for the obtaining of all kinds of evidence. Main differences between the EEW and the EIO. The PD EIO covers all kinds of investigative measures, except the setting up of joint investigation teams and certain interceptions of communications, not limited to a list of offenses, as it is the case in the EEW. As a rule, the EIO is applicable to all criminal proceedings or administrative proceedings in criminal matters. The grounds to refuse the request for evidence are further limited: a) certain kind of immunities or privileges; b) grounds of national security or national interest, as well as intelligence activities; c) the measure requested is not foreseen in the executing state and no other measure available would serve to achieve a similar result.; and d) the EIO has not been issued within a criminal procedure and the measure would not be authorized in a similar national case. As seen, the fact that the measure is not regulated in the executing state is not an automatic ground for refusal. The requested authority shall try to achieve the same result through other legal measures, and only if this is not possible either, then the absence of legal regulation will end up in a refusal to enforce the measure. The PD EIO has eliminated the statement contained in EEW, which requires the issuing state to check the legality, proportionality, admissibility and necessity of the evidence prior to issuing the EEW. Furthermore the PD EIO includes certain specific rules for measures that do not fall under the scope of the EEW and presently can only be requested through the mechanisms provided in the Convention of mutual assistance. With the aim of reducing the fragmentation, several provisions contained in the 2000 Convention are transferred to the text of the EIO. As to the time limits to enforce the request of evidence, neither the Convention of 1959 nor the Convention of 2000 establish a fixed term, although the 2000 Convention expressly states that the request shall be executed “as soon as possible. With the aim of speeding up the enforcement of the request of evidence, the FD EEW provides for a deadline that is also included in the PD EIO. Finally, an important difference between the FD EEW and PD EIO is to be found with regard to the legal remedies. Member States shall ensure the access to the legal remedies to all interested parties as well as third parties affected. The PD EIO remains silent on this issue. Such an express statement might not be indispensable, as the duty to provide full access to courts and to legal remedies against judicial measures is something that is implied in the procedural safeguards. Limitation of the grounds for refusal. Two are the issues that in my opinion merit a closer analysis: the suppression of the requirement of double criminality and the absence of a reference to the ordre public as a possible ground to refuse. And secondly, the difficulties that entail the application of a single instrument to legal systems whose principles of criminal justice and procedure differ significantly, if they are not contradictory. The requested State is obliged to comply with the EIO issued by another Member State, even in those cases where the cooperation requested is directed to the investigation of an act that does not constitute an offence in the executing State. The condition of the double criminality has been partially eliminated. The European Commission has clearly stated that the requirement of double criminality is contrary to the principle of mutual recognition. This means that, the executing State is obliged to carry out the investigative measure requested as an EIO even if the evidence is aimed to prosecute an offence which is not punishable under the law of the executing State. Double criminality might not be necessary to establish the obligation to cooperate in the obtaining of evidence if no coercive investigative measures are to be adopted in the executing State. However, if the fulfillment of the EIO requires to carry out a telephone tapping or a domicile search, the executing State should be allowed to refuse the enforcement of such a measure on the basis of the preservation of the coherence of its own criminal justice system. It appears to be quite inconsistent that a State might be obliged to restrict the fundamental rights of its own citizens in its own territory to investigate an act that is not punishable under its own laws. When the offense that gives rise to the EIO is not punishable under the laws of the executing State, it is manifest that both States do not share the same criteria with regard to the need and proportionality of the investigative measure and thus the basis that underpins the principle of mutual recognition, mutual trust, is blurred. In sum, in my opinion, only if the evidence can be collected without resorting to the restriction of fundamental rights, the dual criminality requirement could be disregarded. The executing State should be able to oppose the recognition alleging that the execution is contrary to its constitutional principles. If a measure can be refused because it is only provided for a more serious crime, it should also be possible to refuse it if the measure could not be applied to investigate the offense described in the EIO form, because the offense as such does not exist in the executing State. Certain national criminal justice systems in Europe apply the principle of legality in a very strict way, others have foreseen wide exceptions and finally some states decide the criminal prosecution upon reasons of convenience or opportunity to prosecute. In practice it has often occurred that a Spanish investigating judge sends to the Dutch authorities a request for collecting evidence that is needed to investigate a minor drug offense. Such an offense, if only a little quantity of drugs is involved, won’t be prosecuted in The Netherlands as a result of applying the principle of opportunity. This means that the Dutch State has decided not to allocate resources for the investigation of these minor offenses if they occur in their territory. Would it be sensible to oblige that State to change that policy. According to the PD EIO the requested state can not invoke the absence of the double incrimination requirement or the lack of proportionality of the measure to refuse the enforcement of the EIO. The practice nowadays shows that the States that apply the principle of opportunity as a rule refuse to execute those requests issued by another Member State regarding the investigation of minor offenses. IV. An Assessment of the PD EIO If we look at the PD EIO from the perspective of facilitating reciprocal judicial cooperation to obtain evidence from another Member State, it is unquestionably a positive and useful initiative. National authorities would have at their disposal a uniform and simple form to fill out in order to transfer their requests for gathering evidence. Another positive aspect of PD EIO is that it includes a formal declaration of respect for fundamental rights and for the principles derived from art. 6 of the Union Treaty. The directive shall not have the effect of requiring member States to adopt measures that are contrary to their respective constitutional principles related to the right of association, freedom of the press and freedom of expression. This provision makes clear that no State shall be obliged to recognize or execute an investigation order if it implies infringing on fundamental rights protected by its own Constitution. A third element that deserves a positive evaluation is the fact that the current PD EIO has mitigated the strict application of the principle of mutual recognition. This instrument is aimed at improving the implementation of the principle of mutual recognition but with the traditional flexibility of the system of mutual assistance. EIO authorizes States to refuse the enforcement of requests when its own laws do not foresee the requested measures or justify them only for more serious crimes. The authorities of the executing State shall comply with the investigation order following the formalities and proceedings indicated by the issuing State only if the application of the lex fori does not contradict its own fundamental legal principles. Also the establishment of deadlines for execution by PD EIO can be viewed as appropriate. It certainly may impose a strong pressure on the authorities of the executing State. These provisions seem justified considering that excessive delay in the execution of letters rogatory – especially those related to the collecting of evidence – is one of the most serious problems in the realm of judicial cooperation. In spite of the advantages that EIO can bring for a greater efficiency in the transmission and execution of requests for gathering evidence in criminal matters, it also raises some important questions. The executing State cannot refuse to comply with the requested measure on substantive grounds nor the affected party oppose the enforcement of the measure. Furthermore, in the standard form annexed in the PD EIO it is not even necessary to mention the indications or suspicions that have led to the commencement of the criminal investigation and consequently to the request for obtaining evidence. The authorities of the executing State are bound to trust the issuing State. With this in mind, we may accept that PD EIO imposes the judicial authorities of different States to have a ‘blind’ trust on each other, but to require from the parties in the process an identical trust on the public authorities is perhaps not so easy to accept without objections. We should not forget that one of the functions of the defense consists in verifying the legality and constitutionality of all measures adopted in the investigation of a crime. Often this verification can be done only a posteriori. To require the defense to trust blindly in the way of acting of the law enforcement authorities, prosecutors or judges – regardless if they are national or foreign authorities – is contrary to their own duties. Without the assistance or support of lawyers that are acquainted with the legal system of the executing State (or States), it is virtually impossible to control if the evidence has been legally obtained. Another controversial issue is the fact that PD EIO does not require judicial authorization to perform those investigative measures that entail especially serious limitations on fundamental rights. The text of PD EIO can be interpreted in the sense that also public prosecutors can issue the EIO. In any event, the most controversial question regarding PD EIO is the principle of equality of arms in criminal procedure. The EU is mainly concerned only about reinforcing the efficiency of criminal prosecution and endowing judicial cooperation with more speedy mechanisms, but there is no parallel effort to increase and refine procedural guarantees for the accused. If the aim is to put supranational measures at the disposal of the public prosecution, it is logical to think that one of the priorities should be facilitating the articulation of the defense at the same level. It is normally very difficult for the defendant to have access to elements of evidence available in other member State.Despite the many and intensive efforts by European institutions, this proposal for a framework decision on certain procedural rights in the criminal proceedings has not yet reached the necessary consensus to be approved. In order to facilitate the admissibility of evidence gathered in another Member State, the PD EIO considers the possibility that the authorities of the issuing State assist in obtaining that evidence. These two provisions aim at preventing that the evidence is rendered inadmissible in the issuing State in which it must have effect. Naturally, to ensure the free circulation of evidence and its admissibility by any court irrespective of where it has been obtained, the ideal would be to have homogeneous procedural rules. But, as this goal seems unrealistic at the moment, at least it would be useful to bring the national legislation nearer through the approval of some minimum standards. However, I do not consider that this harmonization should be understood either as a prerequisite for the approval of PD EIO or as a sine qua non for the implementation. At present, the issue of the admissibility of evidence must be dealt with primarily at the national level, according to the checks and balances of each system of criminal justice. For instance, in Spain the Supreme Court has held since long ago, that all evidence gathered abroad was admissible, provided that it had been obtained in accordance with the procedural laws of the executing State. Spanish courts have been applying the principle of mutual recognition prior to the European mutual recognition instruments, but as a result of trust – or pragmatism –, but not as an imposed obligation to show firm trust towards European judicial decisions. More harmonization at the pre-trial stage would be positive not only to facilitate the admissibility of evidence, but also to help the defense in controlling the lawfulness of the collecting of evidence. Conclusion remarks. A single instrument that can be used for the request of almost all types of evidence is much more practical and efficient than the EEP, of predictable little success because of its limited scope of application. However, if we take the perspective of the accused, the PD EIO continues to ignore that facing evidence obtained in a foreign country causes additional difficulties for the defense, and does not foresee a way to balance the inequality of arms between the parties in the criminal procedure. Perhaps approving the PD EIO is somewhat premature and it would be preferable to wait until the directive on the procedural rights of the accused raises sufficient consensus. We can even question the very ground of the creation of EIO as an instrument of judicial cooperation. On the one hand, it is grounded on the premise that the instruments of mutual assistance do not function appropriately; and on the other hand, without a clear rationale, it advocates that – instead of improving them – we There is suspicion of an offense. Offenses are provided in the domestic law. The corpus iuris harmonized offenses with the idea to insert them in the regulation. The draft of 2013 by the commission and the final text don’t contain such offenses: they have a definition of the financial crimes against the Union, but no definition of the offenses. Offenses have been harmonized but not for the EPPO, only for horizontal harmonization through a directive to be implemented (no full harmonization, e.g. penalties not the same everywhere). If EPPO is functioning in a single area, if there are doubts on offense it has to go to the domestic level, to the law implementing the directive. The result is a fragmented picture of substantive criminal law: no full harmonization, different choices made while implementing it, bad implementation or no implementation at all. There is only a body of law, fragmented and not clear. The governance structure is complex. In the 2013 commission proposal, there was a central EPPO office with deputies and delegates prosecutors at MS level, all part of a single office and applying European law (regulated by the draft provisions). Judicial cooperation had no sense: it was one only body. However, Fr and Ger wrote to the commission stating that they would leave negotiations if a change was not done in the governance structure: they wanted to copy paste the classic structure of public prosecutor offices, very vertical (chief, substitute, …): - central office: chief prosecutor with deputies and eurojust; deputies are called european prosecutors (members of MS, all MS have a member there), 1 chief and 28 members from MS; - delegate offices The final text divides it into chambers (usually, terminology of courts) composed of the chief prosecutor and other 2 or 3 prosecutors. This is because there was a change in philosophy during negotiation: text of 2013: general principles copy pasted from corpus iuris → single office, single legal area, harmonization of investigative acts text of 2017: general principles no longer there → notions of single legal area and european territoriality are gone; the single office is still there but it’s acting in domestic jurisdiction, with many articles of privacy but no harmonization of investigative acts. EDPs apply domestic law of the jurisdiction where they are (so they have different powers depending on where they are). Today there are 140 EDP, European Deputy prosecutors; according to the draft text they should apply EU law, but in the final text they must apply national law. In the draft text, cases must arrive at the central office in Lux (even if Eurojust and Europol are Hague). The final text imposes a stringent duty for all national authorities when they are suspicious of an offense: they have the duty to notify. EPPO assesses if they’re under their jurisdiction and whether to accept the case or not. When it arrives at the central office, each case is assigned to a chamber, but in practice it is governed by EDPs in domestic jurisdictions applying domestic law. The chief prosecutor is only the main manager, internally and externally. There is a complex procedure to nominate it (council, parliament and commission give candidates). He/she has to organize the office internally (coordination of the 15 chambers), but also externally (e.g. opinions on the legislative framework). EPPO challenges the judicial culture of MSs. E.g. policy of prosecutor office → taboo in Italy where there is mandatory prosecution In the draft text, with the single legal area and European territoriality, no mutual recognition is needed. However, now there is national territoriality,with a single office but national law is applied, so we need to go back to cooperation. But which form of cooperation? A sui generis one: approach each other, ask things; there is no mutual recognition except for arrests (gathering evidence or other forms need to follow the sui generis cooperation, with no legal framework). Art.37 of the final text on evidence. According to art. 86 TFEU, the regulation should contain rules on admissibility of evidence. This part was negotiated for a long time and it is very short, as a consequence. Evidence presented by the prosecutor of the EPPO or the defendants to a court should not be denied admission on the mere ground that evidence was gathered in another MS in accordance with the law of that State. Again, the way in which evidence can be legally collected varies a lot in different MSs. There are also rules on exclusion of evidence. The power of the trial court to freely assess the evidence presented by the defendant or by the prosecutor of the EPPO shall not be affected by this Regulation. If evidence is violating substantive hr, there is no answer on its admissibility: everything depends on national law (with the rule that evidence gathered in another state must be accepted). It’s completely left open to interpretation, there is nothing about inadmissibility in the text. ECJ can intervene with preliminary rulings on the interpretation of the regulation. However, it has limited competences because it cannot examine all issues. Investigative acts, for example, are domestic and not harmonized, so they are left to national law. The judicial warrant is brought by the EDP to the domestic magistrate to carry it out; if it has to be done in another country, “one magistrate decision might suffice”: it’s not clear if in some cases two decisions are required, one for each country. So, there is the risk of having lower protection than with mutual recognition. All participating states have to adopt domestic legislation to bring regulation in place. Adaptation laws are short in some MSs and long in another. Usually they are short when States believe they don’t have to adapt anything (but it’s not always true: in the Neth for serious crimes there is the examining magistrate in Neth; in EPPO there is no such magistrate). The problems are: - bottom up info flow: EPPO is independent from the executive. In some states, they have to report to the national general prosecutor, in others to the minister, which is the highest level of the executive. In some countries, the report is parallel (EPPO but also ministries). - the competent authorities are different. Example: Spain (all crimes are investigated by a magistrate, the prosecutor only prosecutes; they set aside national laws when dealing with EPPO); other countries have investigating judges (Neth and Fr set aside national rules, Belg didn’t) - tax authorities have a strong power (tax authorities can have the monopoly for prosecution of tax offense in some countries) - suspects at high political level can have immunities and can’t be prosecuted unless immunities are waived. Who decides? If national authorities don’t want to refer to EPPO, they can change the type of crime to keep it national. Another way to escape EPPO is when excises are higher than VAT and custom taxes (if this is the case, EPPO has no competence; it depends on MSs rates). There is a fight over jurisdiction and competence. In case of conflict of competence between EPPO and States, the competence is of the highest national level (supreme court) and no appeal is available. Defense rights disappeared from the body of law, they’re only the national ones. It’s only for financial crimes. It’s working but there are many problems, it might work much better. Poland doesn’t recognize it and it’s not part of it, even though it receives the fund anyway. Judicial and political accountability for criminal investigations and prosecutions by a EPPO Compared with classic EU Agencies in the field of the internal market, the AFSJ agencies certainly have fewer regulatory and more operational powers. They also have as their distinctive feature that their operational activity is strongly interlinked with national law enforcement and judicial authorities. The most prominent example is the EPPO. In criminal justice, the adjudication of alleged offenses is the exclusive competence of the Member States and that remains the case under Article 86 TFEU. This means that all trial procedures, and related issues of evidence, are national. Even during investigations, the EPPO will continually interact with the national investigative authorities. Under the Lisbon Treaty, the European Union has set as a key objective to maintain and develop the Union as an area of freedom, security and justice in which both the free movement of persons and the prevention and combating of crime are assured (art 3(2) TEU). Under Chapter 4 of Title V, on judicial cooperation in criminal matters, the missions and competences of the EPPO are an integral part. Article 86 TFEU provides a legal basis for establishing the EPPO and also elaborates on the regulatory specifications when it comes to the investigation, prosecution and adjudication of crimes affecting the financial interests of the European Union (PIF crimes) or, if extended by the European Council, serious crimes having a cross-border dimension. In 2013, the Commission submitted to the Council its proposal for a regulation. The EPPO will not deal with the horizontal judicial cooperation between national judicial authorities, as Eurojust does, but in essence it will act through a vertical setting as an investigative and prosecutorial office in the combined territory of the Union’s Member States, being a single legal area. In the original proposal, the central office of the EPPO8 consisted of the European Public Prosecutor with Deputies, as well as European Delegated Prosecutors who would act (only) within their national jurisdictions. Only in specific circumstances was the European Public Prosecutor allowed to lead the investigation himself/herself. The present Council text now includes a new governing structure within the EPPO, whereby the original vertical structure (a centralized European Public Prosecutor’s Office and decentralized Delegated Public Prosecutors) has been replaced by a College of European Prosecutors of all Member States and by Permanent Chambers. The Central Office will consist of the College, the Permanent Chambers, the European Chief Prosecutor, his/her Deputies and the European Prosecutors. Under that model, the College would be responsible for policy and strategic management, but with no powers of instruction in individual cases. Several Permanent Chambers, composed of a Chair and two permanent members of the College, will be set up by the College and would become responsible for monitoring the investigations and prosecutions by the European Delegated Prosecutors and the coordination of cross-border cases. Further, they may instruct Delegated Prosecutors on the commencing and transfer of investigations, as well as on case allocation. Within the Permanent Chambers European Prosecutors will play a decisive role as they are responsible for supervision on behalf of the Permanent Chambers, can propose decisions and can instruct the Delegated Prosecutors. The investigations and prosecutions themselves will be conducted in the Member States by Delegated Prosecutors, who will have the same powers as national prosecutors. Article 7 of the negotiation text still refers to an indivisible/single office with a decentralized structure. However, from the new governance structure it is clear that the function of the Chief Prosecutor has been significantly reduced. As far as the content is concerned, the function description is rather that of a general administrator. Who is de iure and de facto responsible for ‘investigating, prosecuting and bringing to judgment’ is, to say the least, complex, both internally and externally. In fact it is a combination of decisions by the College, Permanent Chambers, European Prosecutors and European Delegated Prosecutors. In fact the EPPO has no hierarchical organization. The legislative guidance is rather puzzling as it is laid down in a regulation dealing with the institutional and procedural aspects, and in a directive dealing with the substantive dimension. The material applicable law will finally largely depend on the result of the implementation process in the jurisdiction of every single Member State. Substantive dimension. Art.86 TFEU is silent on the precise scope of the competence ratione materiae of the EPPO, as it contains a limited reference to a basic mandate to combat crime affecting the financial interests of the EU (PIF offences) or, after a unanimous decision in the Council, to an extended mandate to combat serious crimes having a cross-border dimension. It is also unclear if the substantive competence can or must be included in the EPPO regulation(s). The Commission is aiming at a material scope of competence limited to PIF offenses. Although the directive will harmonise the constitutive elements of some offences, it only contains references to serious offences. Whether an offence is serious is defined according to national law, having regard to all relevant circumstances, such as the value of any damage done or advantages gained, or the damage to the integrity of confidence in systems for managing Eu financial interests. The scope of EPPO’s powers in relation to VAT is unclear. Concerning sanctions, minimum sanctions are not included and the harmonisation of maximum sanctions is limited to their minimum thresholds. Finally, those suspected of PIF offences can be not only natural persons and legal persons but also EU officials. Procedural dimension. Given the institutional design of the EPPO, it is of crucial importance to know who is taking the final investigative and prosecutorial decisions. Article 30(1) of the 2016 provisional text states clearly that evidence presented by the prosecutors of the EPPO or the defendant to a court must not be denied admission on the mere ground that the evidence was gathered in another Member State or in accordance with the law of another Member State. However, it also leaves open the possibility for the trial court to examine the admissibility of evidence in order to respect the fairness of the procedure and the rights of the defense. In any case, based on Article 30(2), the power of the trial court to freely assess the evidence is not affected by the regulation. All this means that the EPPO can have a great interest in carefully selecting the jurisdictions for the gathering of the evidence. When it comes to the opening and closing of the investigation and the decision to prosecute or to drop the case, there is no doubt that these decisions are taken by the EPPO on the basis of EU law. Although the European Prosecutors’ personal independence might be beyond doubt, not all prosecution services in the Member States function de iure and/ or de facto independently from the executive. There is thus a clear risk that the functioning of the EPPO at the central level will be jeopardized by a lack of functional independence. When it comes to the operational powers of the EPPO, the situation was rather unclear and complex in the Commission proposal. In the actual text under negotiation these powers would be carried out by European Delegated Prosecutors in the Member States on the basis of national law. For this reason, the listing of investigative powers of the EPPO (and related procedural safeguards) has been replaced by partial harmonization of the investigative measures in the Member States. However, even in that very decentralized design the Permanent Chambers act and instruct under EU law and can also authorize the European Prosecutors to conduct the investigation themselves. The overall picture is that (to a certain extent under the original proposal, but certainly after its modifications) the EPPO will be, unless there are exceptional circumstances, fully dependent on the delegates in the national legal regime for conducting the investigation. Moreover, the Delegated Prosecutors will wear two hats: exclusive competence for EPPO offenses, but also exercise their function as national prosecutors. This means that the applicable law remains the national law of the jurisdiction where the investigative acts are performed, even in case of cross-border cooperation and mutual recognition. JUDICIAL ACCOUNTABILITY. Legal accountability is based on judicial oversight and effective judicial remedies. The executive should be accountable before the law and there must be remedies for citizens to trigger this process and protect their legitimate interests. Judicial review is part of that legal accountability. Judicial review is normally understood as a process under which executive decisions are subject to ex-post review by the judiciary. The EPPO is, however, not at all a regulatory agency, but an exclusive enforcement agency, moreover one with far-reaching coercive powers that interfere with the civil rights and liberties of citizens. The EPPO is also responsible for investigating, prosecuting and bringing to judgment. An important distinction must be made here between ex-ante judicial authorisation and ex-post judicial review. For certain measures the EPPO will need the prior authorisation of the investigative act by a judge. Ex-post judicial review is also not limited to final decisions. Relevant matters are of course whether the EPPO has to give reasons for its enforcement decisions and whether, in the case of a breach of law, there exist remedies to restore the breach. Legal accountability depends foremost on the foreseeability of the applicable law and this is problematic both from a vertical and horizontal perspective. EPPO is based on a decentralized model that combines much national law. The system of juridical oversight is part of the shared governance between the EU level and the national level (vertical level) and the division of power is not spelled out clearly. The regulation also has to be compatible with the judicial oversight by the European Court of Justice (ECJ) that cannot be undermined or set aside. EPPO is functioning in a single legal area that is split up into separate national criminal jurisdictions. The EPPO can opt for the most favorable jurisdictions for gathering the evidence and for choosing the trial forum. The EPPO text also provides citizens with no answers as to the question of on which of the potential applicable legal regimes they should rely for effective judicial control. The same question is on the table with respect to the applicable substantive norms of EPPO competence in relation to the forum choice, as the rules on evidence and the minimum and maximum punishments, even with harmonized offenses, vary from Member State to Member State. It is questionable whether the inherent systemic flexibility meets the standards of accessibility and foreseeability under Article 7 ECHR. Commission proposal. Although the review of some of the procedural measures of the EPPO (it is unclear which ones precisely) has been ‘given back’ to the ECJ, the main rule remains that the national courts are competent to review procedural decisions taken by the EPPO. This means that the EPPO is considered as a national authority for the purpose of judicial oversight. As such, this is a significant departure from the ground rule that EU courts control the legality of actions by EU bodies, whereas national courts exert control over the actions of national authorities. Provision Council text. It was, however, clear from the very beginning that the rules applicable to the judicial review of EPPO measures would not follow the classic scheme of other EU bodies and agencies. Recital 77 of the text clearly states that the specific nature of the tasks and structure of the EPPO requires special rules regarding judicial review. In a new draft, acts of investigation of the EPPO which are intended to produce legal effects vis-à-vis private parties (suspects, victims, third parties) must be subject to review by the competent national courts in accordance with the requirements and procedures laid down by national law. Where national law provides for judicial review concerning procedural acts other than those which relate to the investigation, this regulation should not be interpreted as replacing or amending such legal provisions. This basic line does not include harmonization of the mechanism of national judicial oversight. Moreover it accepts that Member States can provide for additional judicial oversight. The result is that judicial oversight of the most important investigative and prosecutorial acts depends on a patchwork of provisions of judicial oversight in the single jurisdictions. This might result in substantial differences in access to effective judicial remedies. However, the fact that national courts may not refer questions on the validity of the acts of investigation of the EPPO with regard to national procedural law does of course seriously undermine the relevance of the preliminary ruling, both from the point of view of control on legality as well as from the point of view of building uniform interpretation in the AFSJ. By way of exception, direct appeal to the ECJ is provided for. This is of course a very limited number of cases. In a German-Italian proposal they insisted on increased judicial oversight, based on direct judicial review, by the ECJ. POLITICAL ACCOUNTABILITY. Political accountability in a narrow sense is ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct. First, the EPPO is not a regulatory agency, but an enforcement agency. Enforcement, certainly in relation to criminal liability, has to be performed by independent judicial authorities. Judicial independence does not exclude political accountability, but certainly limits its scope. EPPO has a strong decentralized structure by which the major part of the investigation and prosecution activity will be carried out in the jurisdiction of the Member States by the Delegated Prosecutors, while taking into account that they are exercising EU duties while applying national law. This means that the EPPO will be dependent upon national prosecution services that institutionally are very different. In other words, the constitutional standing of the prosecution services differs very much from one jurisdiction to another33 and does not always guarantee functional independence. This difference in constitutional standing in national prosecution services is not really a guarantee for independent investigation, integrity and a sound system of political accountability. Finally, the functioning of the prosecution services depends to a large extent on the formal existence of discretionary competences and policymaking competences. In systems dealing with a judicial matter. It must be added that the main obligation to cooperate is not always absolute. First of all, many States Parties have made reservations and declarations, which results in a complex patchwork of obligations. Secondly, the 1959 CoE Convention contains far- reaching grounds for refusal. Finally, as the Convention is based on interstate cooperation there is a double- track procedure, both in the requesting and in the requested state. That means that a request from a judicial authority must be channeled through the central authorities of the Ministries of Justice and Foreign Affairs both in the requesting and requested countries. With the deepening of European integration it became clear that there was an increasing need for a proper MLA regime in the EU. Due to a lack of political agreement in the EU, the Schengen Agreement was adopted, which was followed by the Schengen Implementing Convention in 1990, containing provisions on MLA and intended to supplement the 1959 CoE Convention. They replaced the diplomatic channel by direct cooperation between judicial authorities, which did become competent for deciding, sending, executing and resending. Gradually other EU Member States and non-EU Member States acceded to these agreements. In 1993 it became possible to include MLA in the EU Maastricht Treaty. However, it ended up in the EU’s so- called third pillar, with a strong intergovernmental character. The CoE conventions were gradually replaced by EU conventions: the 1997 Naples II Convention on Mutual Assistance and Cooperation between Customs Administrations and the 2000 EU Convention on Mutual Legal Assistance in Criminal Matters (2000 MLA Convention). The Convention, inspired by the Schengen Conventions, is conceptually based on direct cooperation between judicial authorities. Direct cooperation between judicial authorities in the EU does not mean that a request from a requesting authority automatically has legal value in the territory of the requested authority. As a rule, these warrants must be converted into a national decision in the requested State through exequatur proceedings. The 2000 MLA Convention is also very innovative as far as the investigative tools themselves are concerned. Requests can be sent out to obtain the gathering of evidence through the use of SITs. Article 13 of the 2000 MLA Convention provides the legal basis for the setting up of JITs, composed of judicial, police and/or customs officials of the Member States and even of Europol. The JITs were later developed in a specific framework decision. Finally, requesting authorities can request authorities to apply provisions of their domestic law with the aim of obtaining admissible evidence before the courts of the requesting State. Requested authorities can apply this lex forum rule instead of the lex locus rule, if it does not contravene. The 2000 MLA Convention was further enriched in 2001 with an Additional Protocol aiming at further improving MLA in the financial sector. It sets aside bank secrecy and introduces obligations. The EU has not only focused on the drafting of new EU conventions, but has also invested in practical improvements: the establishment of liaison magistrates and the creation of a European Judicial Network. However, only a minority of the EU Member States have established liaison magistrates. They have no operational powers and cannot investigate, but are facilitators. Thanks to both their knowledge of systems and their contacts, they know what has to be done legally and practically to prepare and execute MLA requests. The European Judicial Network in MLA has been very successful in establishing a horizontal network between judicial authorities responsible for MLA. In 1999 the European Council organized a special meeting on the AFSJ in Tampere. In the Tampere conclusions mutual recognition (MR) became a cornerstone of judicial cooperation and the aim was to replace all MLA conventions by proper EU MR instruments. 31 The MR concept had been applied by the community legislator in many substantive fields of the internal market with the aim of avoiding detailed harmonization. However, the possibility of extrapolating it to judicial decisions was not that self- evident, as harmonization in the area of criminal procedure and applicable safeguards was minimal or non- existent. In 2000 the European Commission published its Communication on Mutual Recognition of Final Decisions in Criminal Matters. Mutual recognition would apply to both court decisions and pre- trial decisions, as well as orders or warrants to gather evidence or to arrest and surrender suspects. The basic idea was that, despite the differences between the procedural regimes in the Member States, they were all party to the European Convention on Human Rights and could thus trust each other. Mutual trust was presupposed and considered sufficient grounds to apply MR, even with little or no harmonization in the field. This means that MR orders or warrants coming from an issuing Member State have legal value in the AFSJ and could thus automatically be executed without an exequatur procedure. In 2002 the Council of Ministers adopted the first MR instrument: the European Arrest Warrant (EAW), 33 replacing the extradition conventions. The EAW was adopted under a fast- track procedure after the 9/11 events and did not include harmonization of investigative acts or procedural safeguards. An EAW, whether meant to bring a suspect to trial or to execute the trial sentence, is based on mutual trust and must thus be recognized and executed, unless mandatory or optional grounds of non- recognition apply. However, the grounds are strongly restricted and do not contain grounds that are based directly on a human rights clause. After the introduction of the EAW it was time to deal with the replacement of MLA by MR in the area of evidence. In 2003 the European Commission submitted a proposal for a European Evidence Warrant (EEW) that was finally adopted in 2008 after difficult negotiations. The EEW was limited to existing evidence. The EEW applies to orders issued by judicial authorities and also to a certain extent to orders issued by administrative law enforcement agencies. In order to issue an EEW the issuing authority must comply with the proportionality principle. The latter means that the objects, documents or data can be obtained under the law of the issuing State in a comparable case if they were available on the territory of the issuing State, even though different procedural measures might be used. The EEW also contains complex provisions on double criminality. These were offenses for which no double criminality requirement exists in the EAW. Moreover, some of them have been harmonized by EU law. Also, when coercive measures such as search and seizure are ordered, Member States can impose double criminality requirements that go beyond the ones foreseen in the EAW. The execution of an EEW should, to the widest extent possible and without prejudice to fundamental guarantees under national law, be carried out in accordance with the formalities and procedures expressly indicated by the issuing State. This means that an enlarged concept of lex fori is applied. Moreover, the list of grounds of non- recognition or non- execution in Article 13 is very long and all of them are optional. Although the EEW was adopted in 2008, Member States have either not implemented it or do not use it. The EEW does not deal with all evidence and leads in practice to very complex procedures. In the 2009 Stockholm program, the European Council decided that the setting up of a comprehensive system for obtaining evidence in cases with a cross- border dimension, based on MR, should be further pursued. It called for a comprehensive system to replace all the existing instruments, including the EEW. The EIO has a horizontal scope and therefore applies to all investigative measures aimed at gathering evidence. The proposed EIO also recognizes that this single regime for obtaining evidence will have to be completed by additional rules for some types of investigative measures. The MR regime of the EIO is certainly not the automatic one envisaged at Tampere. Indeed, something akin to ‘double procedurality’ or ‘double lock’ has been introduced. The MR regime does not lead to automatic execution. Issuing authorities may assist in the execution of the EIO (as in the MLA regime), but assistance is also conditional on respect for fundamental principles of the law of the executing state and essential national security interests. Lex fori principles do apply unless contrary to the fundamental principles of the law of the executing State. The EIO has a quite complex system of grounds for non- recognition and non- execution. The executing authority should, wherever possible, use another type of measure if the requested measure does not exist under its national law. The issuing authority should therefore ascertain whether the evidence sought is necessary and proportionate for the purpose of proceedings. It is interesting that it has obtained the inclusion of a human rights clause in the substantive provisions. In a case where the EIO would be incompatible with the executing Member State’s obligations under Article 6 TEU and the EU Charter of Fundamental Rights (EUCFR), or in a case where execution would infringe the ne bis in idem principle, the recognition or execution of the EIO may be refused. However, these grounds for non- recognition or non- execution are, like all the others, optional and dependent upon the implementing legislation. It is of interest that the EIO may also be requested by a suspected or accused person, within the framework of applicable defense rights. Legal remedies available against an EIO should be at least equal to those available in the domestic case against the investigative measure concerned, including the process being subject to the same time limits. However, substantive reasons for issuing the EIO may only be challenged in the issuing State. The EU has negotiated a set of bilateral MLATs with third States (Japan, Us). The added value is high as these MLATs contain modern techniques of evidence gathering including video- conferencing, JITs and financial evidence gathering. At the Tampere Council it was also decided to set up Eurojust, in which prosecutors from every Member State (national members) form a College. In 2002, the legal framework for its mission and empowerment was adopted and reflected a strong intergovernmental approach. Eurojust’s aims include promoting and improving MLA between the competent national authorities. Eurojust acts through its national members or through the College. They remain primarily liaison officers. Eurojust is mostly involved in the coordination of investigative and prosecutorial action and in organizing and sustaining the JITs. In 2009 the Eurojust Decision was amended in order to achieve greater equivalence powers for the national members in their national legal orders. Very few Member States have enacted legislation in order to insert the powers for their national member into the national legal order. Many Member States are opposed to the idea of delegated competences for national members, even if they can only act in their own jurisdiction. The Lisbon Treaty laid down in Article 85 TFEU a new legal basis by which Eurojust is to become a European Agency in the AFSJ and is to gain a new mission. It will remain competent for serious cross- border crime but should also deal with serious crime requiring prosecution on a common basis. It may also initiate investigations, but it is clear from the text that Eurojust cannot become a supranational or federal investigative and prosecutorial office. Eurojust will remain, as it stands, mainly an agency that coordinates the cross- border activities of the law enforcement agencies of the Member States. Thus the only real vertical dimension for MLA is the establishment of the European Public Prosecutor’s Office (EPPO). After long discussions, going back to the Corpus Juris project, the EU Lisbon Treaty included in Article 86 TFEU a legal basis to establish the EPPO. It will be an independent EU body with the authority to investigate and prosecute offenses affecting the Union’s financial interests (EU subsidy fraud, EU corruption, EU fraud with custom duties etc.). Adjudication of these criminal cases does, however, remain the exclusive competence of the Member States. In other words, the EPPO will prosecute these cases before national courts of the Member States. The Commission financed an academic study with the aim of elaborating Model Rules for the criminal procedure of the EPPO. In the Commission’s draft regulation the EPPO is to be an EU body with a decentralized structure of delegate prosecutors in the Member States. Its task is to direct and supervise investigations, and carry out acts of prosecution. As a rule, the investigations of the EPPO within the Member State should be carried out by the proposed ‘European Delegated Prosecutors’. The territory of the Union’s Member States shall be considered a single legal area in which the EPPO may exercise its competence’. If we examine the EPPO proposal, it is doubtful whether the content of what is proposed is in line with the aim of Article 86 TFEU, as it seems that it could have been achieved by upgrading Eurojust under Article 85 TFEU. The proprio motu investigative and prosecutorial powers, for which he/she would not need to rely on MLA or MR, are absent from the proposal. Moreover, the whole concept of European territoriality, as a common jurisdiction to investigate and prosecute, has been watered down in the proposal to a fragmented panoply of national jurisdictions. The rights of the suspect in the Eu AFSJ The EU’s AFSJ concerns the free movement of citizens and their protection; in the field of criminal justice, it strengthens police and judicial cooperation and also respects human rights. Initially, it deals with investigation, prosecution and sentencing but after the Stockholm Program in 2010-2014, it put different emphasis on the rights of the suspect and accused persons. Before the Lisbon Treaty, police and judicial cooperation took place in the third pillar of Justice and Home Affairs, through conventions, common positions and framework decisions subject to weaker democratic control and without direct effect. Now achieving consensus is easier as post Lisbon decisions can be taken with a qualified majority. Eu criminal justice doesn’t aim to harmonize the laws of MSs, but rather to focus on intergovernmental cooperation through mutual recognition, which creates a sort of extra territoriality in which national laws must be followed in states that have had no part in their enactment. The first attempt on the protection of suspects was the 2003 Green Paper on Procedural Safeguards for Suspects; later the Commission proposed the draft Framework decisions; both were not well received by governments and the legal basis was also contested, so they were abandoned. The Stockholm Programmes recognized mutual trust as an essential prerequisite for mutual recognition and the way to build it was ensuring common minimum standards. It issued a Roadmap that ensured the same protection of the draft framework decisions but with a step-by-step approach. The result was the issuing of the 3 directives. At the level of ECHR, Art.6 speaks of the right to a fair trial, but the protection extends also the pre-trial phase: presumption of innocence, right to know the charge, legal assistance, translation, … All this poses a real challenge in practice because of different traditions and procedures. In the Salduz v Turkey case the ECHR guaranteed in the strongest terms the suspect’s right to custodial legal advice before and during police interrogation. As a result, many countries had reformed their procedure, but significant differences remain (e.g. right to a lawyer not implemented in a uniform way: in the Neth introduced what in France was changed because it was too limited). The important thing is that ECHR imposed guarantees for rights that are not theoretical or illusory, but practical and effective: rights on paper that are unenforceable or denied are not satisfactory. ECHR provided for important baseline guarantees, but without setting out the degree of uniformity required for mutual trust. Also, ECHR has limited ability to ensure uniform application of ECHR guarantees, while a system of Eu protection allows citizens to rely on specific procedural safeguards more immediately. The 3 directives apply from the time in which the person is made aware of being suspected or accused of a criminal offense, until the end of the criminal proceeding: also people not formally arrested are entitled. They also apply to the EAW and in this case the right to legal advice is offered in both countries. They are interconnected: the right to interpretation makes more effective the right to be informed. Interpretation and translation. It is impossible for a suspect to understand his charges if they don’t speak the language. Interpretation should be provided free of charge during police investigation, communication with the lawyer and at trial. Written translation of essential documents is also imposed; the competent authorities decide which documents are essentials and the directive requires MSs to put in place a mechanism to ascertain whether an interpreter is needed. Sign language should also be covered. States must also establish a register of qualified interpreters which are bound by the requirement of confidentiality. Information All suspects must be informed of their rights orally and, if arrested, through a letter. The minimum rights that must be communicated in simple and accessible language are: right to access to a lawyer, entitlement to free legal advice, right to be informed of the accusation, right to interpretation. In addition, also the right of access to materials, to have consular assistance and informed one person, right to urgent medical assistance and maximum length of time of deprivation of liberty before being brought in front of a judicial authority, possibility to challenge the arrest. The Directive mandates the provision of information about the rights, rather than the content. Legal assistance It was the most difficult to agree upon. It was first proposed in 2011 by the Commission and approved only in 2013. It is consistent with Salduz v Turkey, providing the right of access to a lawyer from the very first stage of police questioning. The lawyer can have confidential meetings, be present and participate in the interrogation, asking questions and not being constrained to a passive presence. It goes further than ECHR case law allowing for a lawyer during other investigative acts such as house searches, even when there is no deprivation of liberty. There are also detailed derogations possible for compelling reasons: geographical remoteness, serious risk for life, immediate action required, seriousness of the offense; they must be proportionate, necessary, limited in time and authorized by a judicial authority. There are negotiations for the adoption of new instruments for the presumption of innocence (right not to be presented as guilty by public authorities, importance of the burden of proof, right to silence and to be represent at your own trial), protection of children (training for personnel, respect of international standards, special measures, recording of all questions; however, it’s limited to criminal proceedings but in some countries criminal offenses of juveniles are judged in non-criminal proceedings) and vulnerable persons and provisional legal aid (connection between legal aid provisions and effective exercise of defense rights; however, it’s only for those deprived of the liberty). There are many challenges: very different legal traditions, lack of suspect focus approach (e.g. translation useful for police during questioning, rather than to the suspect), rights denied purely on bureaucratic grounds, anxiety that measures reinforcing rights are antithetical to the interest of investigation, .. This can be overcome with clear and sufficiently precise terms. Mutual recognition, mutual trust and fundamental rights after Lisbon MR is the main motor of integration in criminal matters under the third pillar, based on MT. However, there are some controversies; at the heart of the debate there is the position of FR in the general scheme of MR: do they limit the automaticity of MR or the acceptance of the existence of MT doesn’t leave room for the examination of FR? The AFSJ is based on the abolition of internal borders which secures free movement; however this is not accompanied by a single area of law because MSs retain to a great extent their sovereignty. To simplify the interaction between national legal systems, automaticity is used: national decisions will be enforced beyond the territory of the issuing MS by authorities of another MS. The method chosen to secure automaticity is MR, attractive because it fosters cooperation without changing national laws, thanks to an extra territorial effect. The acceptance of such extra territoriality requires high levels of MT, but membership of the EU presumes full respect of FR which creates such MT. The consequences of MR are automaticity and speed in the execution of judicial decisions with minimum formality checks and limited grounds for refusal. In particular, for the EAW, there is a limited time, the absence of the verification of double criminality and only 3 mandatory grounds for refusal, among which FR respect is not present. FR concern has been addressed in the legislation in three ways: parallel mutual recognition instruments to alleviate adverse FR consequences, insertion of grounds of refusal in subsequent legislation (e.g. EIO or domestic implementing laws) and proportionality concerns (e.g. EAW for minor offenses; Uk introduced non compliance with proportionality as a ground for refusal). The CJEU has developed its own parameters of this relation MT, MR and FR. First in Advocaten voor de Wereld and later in Radu, it has adopted a teleological interpretation of MR, stating that MR could not be refused on FR grounds, otherwise the very system would fail. In Melloni it reiterated this, giving priority to MR effectiveness, based on presumed MT. This emphasis on the centrality of MT as a factor prioritizing law enforcement goals via MR over the protection of FR has been clarified in the following passage:MT between MSs is of fundamental importance given that it allows an area without internal borders to be created and maintained. When implementing Eu law, MSs are required to presume that FR have been observed, so that not only they can’t demand a higher level of protection but they can’t check whether the other MS has actually observed FR. The ECHR ruling is different in Tarakhel (duty to carry out an individualized examination of FR), NS andMSS vs Belgium and Greece. In these last two cases the CJEU adopted a high threshold of existence of systemic deficiencies in the MS, while the ECHR in Tarakhel, rather than requiring a general finding of systemic deficiency, stated that the presumption of compliance with FR is rebuttable and always requires an assessment. The ECHR approach to examination of compliance with FR is at odds with the approach of the CJEU. At the beginning, the application of MR based on unquestioned MT didn’t include focus on parallel measures to harmonize national law. This changed with the entry into force of the Lisbon Treaty that accepted that MR must be followed by a degree of harmonization of criminal procedural law. However, in this field, Eu competence is not self-standing, but functional, only in place to the extent necessary to facilitate mutual recognition. Some measures on the rights of suspects have been adopted. However, the use of MT as the justification for the adoption of EU measures is problematic, because it’s subjective and not objective as required by the criteria assessing the legality of EU instruments. An alternative could be addressing the effects of the operation of automatic inter-state cooperation, strengthening procedural rights protection. The adoption of measures harmonizing procedural rights had a transformative effect for four reasons: some provisions have a direct effect, there is a high level of centralized enforcement of Eu criminal law, national procedure must be applied in compliance with the directive and their implementation must respect the CFREU (which applies also to other elements of domestic law not directly implementing EU law). By superimposing common meaning of key domestic concepts, these autonomous concepts become a mechanism of enforcement of Eu law impacting on domestic systems. The application of MR originally was based on presumed, unquestioned MT; MR measures were designed to achieve quasi-automaticity with little space for examination of the consequences. Also, MT was not accompanied by any degree of harmonization. Concerns on FR respect watered down the automaticity which was challenged by the ECHR. The reluctance of the CJEU to set limites was addressed by harmonization of some domestic law, in particular procedural rights, with a transformative effect of the individual positions. Avv. Nicola Canestrini Italy has no centralized system of international cooperation (=/= Neth: only Amsterdam court). The court of appeal is the 1st instance court of criminal cooperation which has only two stages. In extradition there are the requesting and requested States (it’s a request, nothing is mandatory); in EAW there are the issuing and executing countries. In the EAW there are usually two defense lawyers, one in the issuing and one in receiving State (for cross border proceeding, effective defense means double defense: important to have a double check, access to case file), but: - if the client can afford it: it’s a problem. Legal aid: means test in Italy (earning less than 11’5000€ are entitled to have legal aid) /merits test (if court thinks you deserve it). Eu intervened with the Legal Aid Directive, but it’s not effective. - mutual trust, even States cheat: very often the info sent by issuing state is not true. EAW warrant is a national arrest warrant that later is filled in a form and receives european wide diffusion. In Europe there are 3 systems of judicial cooperation: - European convention on extradition, 1957: for all countries not part of Eu (Turkey, Montecarlo). It’s a political cooperation, (ministers of justice ask, refuse, accept).