RICERCA ITALIANA     

JUDICIAL COOPERATION IN CRIMINAL INVESTIGATIONS BETWEEN EUROPEAN UNION MEMBER STATES: INSTRUMENTS, SUBJECTS AND RESULTS

Università degli Studi di Roma "Tor Vergata"

Abstract

Has The globalisation of markets, together with the freedom of movement of people and goods, facilitated the committing of crime beyond national borders, imposing on states the obligation to favour the “circulation” of the instruments of investigation and evidence collection; the trend, therefore is an acceleration of judicial cooperation in the European context, through a network of standards that facilitate the use, in internal proceedings, of data that is acquired in other jurisdictions. In this regard, there are several initiatives, both at the Council of Europe, and the more cohesive space of the EU, to create investigative ties that are ever more advanced and efficient. This development dates back to the Convention of 1959, which represented the first attempt by the Council of Europe to give this subject an organic arrangement. Since then there have been successive initiatives, among them the Convention on Mutual Assistance in Criminal Matters (2000), which aimed to complete, for EU member states, the “mother” text of 1959 (and related protocol of 1978) and the Convention implementing the Schengen Agreement of 1985: an agreement that is still not in force in Italy, despite being innovative in terms of form, procedure and the time required to complete the necessary paperwork (as it moves beyond the traditional ministerial channels to the advantage of direct relationships between judicial authorities, and abandons the principle of lex loci actus in the execution of the applications), to the benefit of the forms in the applying country. Of essential support in the process of European legal assistance are the diverse supranational investigative agencies, which were gradually introduced: joint investigative teams (formed by the competent authorities in two or more member states to carry out investigations in each others’ territories); Europol (for the coordination of police forces); liaison magistrates (to facilitate cooperation, through direct contact with the authorities in the destination state); the European Judicial Network (points of judicial contact with branches in various member states). Above all there is Eurojust, the new EU agency whose function is to facilitate the coordination between national authorities, assisting in the investigation of organised crime and cooperating with the European Judicial Network; but it is precisely the institutional discipline of Eurojust and the implications it entails that are creating difficulties in relation to the Italian constitution. From an operational point of view, one of the main investigative tools (yet at the same time, one of the more delicate ,on the grounds of civil liberties) is the interception of communications across international networks, a discipline that is now governed by the Convention on Mutual Assistance in Criminal Matters (2000), through previsions that require further study as regards the limits to the use of the material intercepted and the relationship between the intrusive nature of the surveillance techniques and the rights of the individual. In the same light we can find the activities that aim to acquire material and evidence pertinent to crime, both for the collection of evidence, and for the supply of the product or proceeds of criminal activity; on this theme, there are initiatives drafted in the third pillar of the EU, through strategies of cooperation between court authorities, such as the framework decision 2003 / 577 / JHA on the freezing of criminal assents, and the proposed framework decision adopted by the Council of Ministers of the EU (June 2006) on the search of objects, documents and data. The overall trend, in any case, is to implement the principal of mutual recognition of decisions, even in the investigative field in the search for evidence, which presents, all things considered, some difficulties due to the lack of a model unit of guarantees. The issue of the human rights of the accused cannot be ignored, not to mention the opportunity for the defendant to seek and acquire evidence in their own interest; this material illustrates, all things considered, a lack of discipline in the texts of the conventions, heightening an imbalance caused by the fact that, while the public prosecutor may use the instruments of investigative collaboration that have already been drawn up, there is no such prevision available for the private prosecutor. <<<

Principal Investigator

Adolfo Scalfati Università degli Studi di ROMA "Tor Vergata"

Research Objectives

Only recently has the field of academic research tackled the theme of the movement of investigations in the European Community from a pan-national perspective. The intensification of studies in this direction is based on the international character of the modern criminal phenomenon and the proliferation of EU declarations on the matter. In fact, diplomatic agreements constitute the legal basis for cooperative instruments such as the sharing of information, the supply of data relating to the proceeds of crime, and the new entity for the implementation and coordination of investigations, Eurojust. However, research in this area has not always been conducted in an organic manner.
The aim of the research project, taking into account the variety and complexity of the conventional norms, is, first of all, to collect and make a systematic study of the material available, taking into account both domestic and international law, and the relationship between both sources. Secondly, an analytical study is needed of the individual normative frameworks, highlighting the less clear passages and what is lacking in the discipline. Finally, given the excessive fragmentation of the discipline, a critical aid is needed for those who have to operate in this complicated panorama of standards, with an eye to resolving practical applicative problems.
An interesting intermediate goal, indispensable towards the final end, will be constituted by a review of the basic features of the trial systems in the various EU member states, to identify, and then contrast, the greatest points of distance between them.
Given the lack of a unified set of rules for cross-border investigations in the European Union, the research will therefore be directed towards the identification of a framework of standard minimum rules with a view to harmonising the systems operating in this field. Naturally, towards this end, the need for the circulation of data and evidence needs to be balanced with the inalienable rights guaranteed by the respective constitutions of the EU member states and the European Court of Human Rights.
The project also aims to extend its analysis to closely examine the guidelines developed by the national and European courts; above all regarding the argument of the surveillance and interception of telecommunications and in rem measures with a view to resolving the many issues related to this field of practice.
As regards those involved in the investigations – considering both their recent genesis, and current lack of involvement (due in part, to a lack of knowledge regarding the discipline in question) – the intent is to study the nature of their interventions, and the use of the results attained through their activity, with particular regard to Eurojust.
The objectives here expressed will also include the verification the role of defence in the European judicial space; the existing international legislation is silent on the point of private investigations, and therefore it is still to be understood which legal tools willprove to be legal when working in the supranational context.
The final outcome of the project is to provide suitable arguments for debate regarding: 1) the recognition of minimum guarantees in the context of the movement of investigations; 2) the proper implementation of recent legislative proposals (the European Evidence Warrant). This goal will be reached through the study undertaken by individuals and research groups, through meetings at the local, national and international level, and through the drafting of documents to be brought to the attention of the governing bodies. <<<

First Results

Several developments are expected during the course of this research, the results of which should arouse great interest for the scientific progress made, as well as having a major impact on a practical judicial level.
Above all, each working group, working on their individual thematic area, is expected:
- to assess existing gaps in regulation, in the attempt to develop concrete proposals that can overcome the obstacles to the work of legal professionals
- to identify, where necessary, the norm to apply: a heterogeneous view of the legislature of different origin (community, national and international), abstractly applicable, that complicates the work of those called to disentangle this complex web of rules; also the non homogeneity of the internal aspects, the differences in terminology, differences in attributed meaning between different institutions that create ulterior questions about application and that represent an objective weak point in judicial cooperation
- to overcome the differences between the various legal systems, not always overlapping, suggesting, for each of the profiles of judicial cooperation covered in this research, a harmonic framework of rules on a European basis, which recognise the rights put forth in the constitutions of the individual member states and laid down in the European Convention on Human Rights
- to inform operators in the sector about new legislation (even on the theme of European entities for coordination investigations) and support them in the analysis of the texts
A work of this nature can not but attract the attention of the scientific community, in terms of the systematic dimension of the approach, the depth of the analysis of the relationship between the sources of legislation and the balanced appraisal of the values at stake; and there will be interest among legal practitioners for the commitment to offer a concrete solution to problems of judicial cooperation; and the conclusions will benefit the institutions, through the proposals made for the implementation of key legislation on the fight against crime across the European Union. <<<

Timescale

24 months

National and international background

Only in recent times has the theme of the free movement of investigations between European Union member states attracted greater interest. Moreover, the intensification of studies in this direction finds a solid basis in the proliferation of conventional sources, which require coordination – and above all in the cross border phenomenon that is modern criminality. But the research thus far is still not very far reaching, and, above all, has not always been conducted in an organic way regarding the problems underlying the circulation of evidence and related data across national borders. Cross border assistance is a more fertile ground with regard to the implementation of the measures related to the delivery of suspects and evidence; while the scientific panorama is less rich, especially in the EU, with reference to: 1) the means of acquisition, and the limits and use of the material collected by foreign authorities; 2) the interception of communications; 3) the role of the defence and the private investigator in the European context; 4) supranational bodies of investigative coordination. A constructive debate is required on the minimum rules to be adopted in the communal judicial area, in order to guarantee the effectiveness of the law without sacrificing the guarantees of individual liberty.
With regard to the supply and acquisition of data and the proceeds of crime, it can be said that the 1959 Convention is largely limited to searches and seizures, and, a reflection on the variety of means available, for example in our system (which along with the search of the person and places also recognises other typologies of acquisition in rem) brings us to realise the emptiness of the discipline and the subsequent associated operative difficulties. The various treaties also present a deficit that can be recognised as regards defining terminology, which generates serious concern when the nomenclature used corresponds, in different jurisdictions, with very different assumptions, disciplines and effects. However, these interesting profiles have not received, until now, adequate analysis: the cultural panorama offers, for the most part, contributions of a general character, dedicated to given standards, while being revealed as unable to cope with the many problems that are presented. The framework decision 2003 / 577 / JHA on the freezing of criminal assets (or the seizure of evidence) is a new field of investigation, along with the European Evidence Warrant, which is even more innovative, but they have yet to be systematically examined in terms of related operational issues. There are also the choices made internally in some EU member states, especially with regard to the implementation of EU Declarations that require legislation (such as framework decisions), the study of which still lacks a solid foundation on which a harmonious frame of rules regarding a homogeneity between the disciplines could be drawn up.
Turning to the theme of the interception of communications in Europe, above all what is missing is a communal platform of comparison between member states, which would regulate this search technique. Similar institutes that do not receive a consistent legal basis on the supranational plane find discipline in the Convention on Mutual Assistance in Criminal Matters (2000), not yet operative in Italy. As relates to this argument, the scientific panorama offers studies of a very general nature, to the extent that those operating in the field face problems of a practical, operational nature; this is a current topic of debate that requires a more in depth analytical study, as emerged at the Convention held in Milan (5th-7th October 2007) where an entire session was dedicated to the interception of transnatiotional communications.
Even less thoroughly dealt with by the scientific community, on the grounds that the conventional sources of material on cooperation do not contain any references, is the role of the defence in cross border defensive investigations in Europe (see the brief and commendable note in M.R. Marchetti, International Judicial Assistance, Turin, 2005). Indeed, the legal framework prioritises the need to protect the community while obscuring the guarantees of individual liberties, which still find a strong recognition at the European Court of Human Rights, as recalled by article 6 of the UE Treaty. Moreover, it is noted that, in December 2000, the Charter of Fundamental Rights was signed, which, provides for the right to a free trial and the respecting of the values of defence for every defendant; principles reaffirmed in the green paper (adopted by the European Commission in 2003), the preparatory work for which illustrates a great variety of rules regarding defence in the various EU member states. To this has been added the second Annual Report of 2007 – undertaken by the European Commission to implement the programme of The Hague – which underlines the obstacles to agreement on the procedural minimum conditions for the accused.
Turning to the theme of the direct implementation and coordination of investigations by European entities, there is a legal foundation in a plurality of acts. In this respect the scientific community has offered some general illustrative contributions; but the question remains open as to the exact nature of the subjects, the exact nature of interventions, and the specific powers to be conferred on them. In particular, there lacks an in depth study relating to the status of the members of Eurojust, and the nature of the functions undertaken by the body, also in relation to the principles contained in the Italian statutes as regards the autonomy and independence of the judiciary. <<<