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 >>>

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 >>>

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 >>>

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 >>>