Substantive criminal law and mutual recognition Hans G

Substantive criminal law and mutual recognition Hans G. NILSSON, Jur Dr h. c. Head of Division Criminal justice Council of the European Union 1

Programme of Measures Commission Communication 26/7 2000 OJ C 12/10, 15. 1. 2001 – – – Strengthen cooperation Enhance protection of individual rights Rehabilitating offenders Legal certainty Rapid All stages criminal proceedings 2

Programme of Measures 2. Enforcement of pre-trial orders 2. 1. Orders concerning the keeping of evidence and freezing of assets 2. 1. 1. 2 Orders for the purpose of obtaining evidence Interim measures with a view to confiscation or to restitution to victims 2. 2. Orders relating to persons 2. 2. 1. 2. 2. 2. Arrest warrants Non-custodial supervision measures 2. 3. Taking account of decisions to prosecute taken in other Member States 3

Programme of Measures 3. Sentencing 3. 1. Prison sentences 3. 2. 3. 3. 3. 4. 3. 1. 1. Recognition and immediate enforcement of a final sentence delivered in a Member State in respect of a national of another Member State 3. 1. 2. Transfer of persons intent on fleeing justice after they have been finally sentenced 3. 1. 3. Transfer of sentenced persons in the interests of social rehabilitation. Fines Confiscation Disqualifications and similar sanctions 4

A PARADIGMSHIFT? SALUT/HELLO COOPERATION AREA 5

Gözutok/Brügge C 187/01 n The Court said (p 33) « In those circumstances, whether the ne bis in idem principle … is applied to procedures whereby further prosecution is barred (regardless of whether a court is involved) or to judicial decisions, there is a necessary implication that the Member States have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other Member States even when the outcome would be different if its own national law were applied » . 6

Link with harmonisation Civil and Criminal MR vs Harmonisation MR: Harmonisation (Programme of Measures) n n n European Arrest Warrant Freezing of Assets Financial Penalties Traffic Fines … etc. n n Conventions (PIF) Joint Actions (Racism & Xenophobia, Confiscation) Framework Decisions: – – – Euro Trafficking in Human Beings Drugs Racism & Xenophobia Terrorism Cyber Crime 7

FD 2003/577/JAI First FD link with EAW 22 July 2003 n secure evidence; seize easily movable property n freezing order; property that could be subject to confiscation or evidence n property 1990 Convention n proceeds of an art 3 offence n evidence produced as evidence n 8

Procedure direct transmission n without any further formality required n in the same way as for a freezing order of your own country n for evidence: not contrary to fundamental procedures; observe formalities of procedure n within 24 hours n 9

Procedure few grounds for non recognition: certificate related; immunity or privilege; ne bis in idem; double criminality (except 32 cat offences) n subsequent MLA or confiscation requests n legal remedies n reimbursement n 10

assessment unwieldy n practitioners preferred MLA based on 1990 Convention n not exclusive instrument n COM (2008) 885 final 22/12/2008 n 8 MS not transmitted info to COM n implementation « not satisfactory » « numerous omissions and misinterpretations » n 11

FD 2006/783/JAI implementation of MR to confiscation n all kinds of confiscation orders; final penalty or measure imposed by a court following proceedings in relation to a criminal offence or offences, resulting in the definitive deprivation of property n 12

confiscation at least 7 grounds for non execution n 5 possibilities of postponement n similar issues like in all other FD on mutual recognition n 13

assessment report COM 23. 8. 2010 COM (2010)428 final n based on 20 MS n degree of implementation not satisfactory but for those that did it generally satisfactory n additional grounds of non recognition n 14

15