RICERCA ITALIANA     

Research program

Judicial cooperation in civil and criminal matters within the European Union. Experiences, results and perspectives.

University Co-ordinator

Università degli Studi di TORINO - SCIENZE GIURIDICHE - TORINO(TO)

Research Unit Leader

Mario CHIAVARIO

Description

In the frame of the general theme of judicial cooperation with special regard to its rebound on the ground of fundamental rights, the local research group aims to focus on some very peculiar aspects, strictly related to criminal proceedings. Two main subjects have been singled out, in the broader framework of the European Constitution for Europe. The first is generally related to the matter of gathering both inquiring elements and pieces of evidence. Clearly, the question concerns two different important phases of criminal proceedings, namely the pre-trial phase, and the judgement one. First of all, the need for intervention of a foreign judicial authority might recur during investigation, when police and prosecutor, specially, need to find out all those elements helping to take a decision in order to prosecute or not to prosecute (art. 326 cpp). In this particular moment, the new instruments of judicial cooperation - recently introduced and tested at the European level – may offer a great help, by assuring a wider and faster circulation of data and documents. To this specific aim, respond both the newly created data bases - which allow national authorities to access directly to the pieces of information they need - and the various network connecting, at different levels, the domestic bodies involved in investigations. Under this point of view, the E.U. activity has been knowing a great improvement, the most important stages of which are represented by the creation of the European judicial network, and, later on, of Europol and Eurojust. The role that such organizations can play in the investigation phase is meaningful: on one side, the net can be very useful in pointing out the true geographical extension of the criminal phenomenon; on the other side, the chance of invoke the intervention of a local authority grants rapidity, which is fundamental in gathering charging elements and pieces of evidence (with special regard to financial crimes and prohibited substances crimes, based on currency flows and illegal materials flows, that tend not to leave lasting traces). What's more, the structure of this new super-national bodies – intended to attend permanently to a "connecting function" and composed by a permanent member for each country, normally a magistrate - grants two topical features: firstly, the national inquiring servants can refer to a person being an expert of the domestic rules of procedure, who can promptly understand their specific needs; secondly, this very same person is used to dealing with the other members of the international body, and can correctly explain them what his national colleagues need. With special regard to the trial phase (even if evidence can be assumed even during the investigative phase, with the peculiar instrument of incidente probatorio), great relevance have the cooperation means for gathering true pieces of evidence, intended to be used by the trial judge to resolve about the criminal responsibility of the accused. In this phase, the respect of the form imposed by the law for acts is extremely important: only a regular evidence can be evaluated by the judge in the final decision. Nowadays, the mean that usually responds to the need of international cooperation in this matter, is commission rogatory: this instrument is based, according to the rules of the Italian criminal procedure code, on the "political channel", as the rogatory letters are sent and received by the Ministry of Justice. Of course, such a discipline applies only when no international Covenant can be enforced; and, in fact, at the European level, the matter is regulated be the 1959 European Convention on Mutual Assistance in Criminal Matters (as updated since its enforcement). By the way, even under this point of view, the recent, increasing normative activity of the European Union - following to the E.U. Council of Tampere, 1998 – produced interesting consequences: in fact, the May 2000 Convention on Mutual Assistance in Criminal Matters between the Members of European Union (ratified, at this date, just by few States) introduced the "international multi-link"; this mean allows to assume testimony and statements of the accused by a direct and mutual audio-videolink, between the Court and the remote site, where the witness or the accused himself stand, in the impossibility to take part personally to the judgement: its implementation, of course, would mean to by-pass the letters rogatory and all its disadvantages. The second theme is represented by the European Arrest Warrant. Set aside the political debate about the opinions expressed by the Italian Government and reported by the newspapers chronicles at the days of the approval of the Council framework decision (June 2003), the long and difficult path that brought to implement the high grade of mutual recognition, invoked by the Tampere final document, has highlighted some very critical aspects under the point of view of the criminal procedure. First of all, the warrant is intended to «replace all the previous instruments concerning extradition»; so, before analysing the improvement eventually offered by this new mean of cooperation, it will be necessary to consider which are the problems that now affect extradition procedures. By the way, it is possible, since now, to stress that one of the most relevant features of the new discipline lays on the fact that no political intervention is requested in the procedure, at any level. The attention of the local research group will focus especially on the consequences that the implementation of the European arrest warrant may produce on the guarantees now recognized in the proceeding of extradition proceedings. Under this point of view, it will be necessary to analyse, in accordance with the domestic legislation, the status of the authorities entitled to release acts limiting personal liberty, as well as the avenues of appeal against such acts. What kind of remedies are possible? Which are the authorities entitled to receive the plaints? What kind of judgment (on fact, or on law) can be led on it?
Last but not least, of course, it will be very interesting to follow eventual developments about the discipline of the European Prosecutor, introduced by the Corpus Iuris 2000 project – which has become now a green book of the European Commission – and now mentioned by the European Constitution; this subject, in fact, should be entitled to lead investigations and to prosecute the authors of those crimes, damaging the European financial interests.