Solution approaches. Workshop ERA Helsinki Defence Counsel. A), I. Request for information issue

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1 Solution approaches Workshop ERA Helsinki DR. CLIFF GATZWEILER Defence Counsel A), I. Request for information issue A. Criminal investigation procedure in Norway I. The prosecutor requests mutual assistance from Estonia and Latvia and wants to know which cars have been registered on Nagy s name. After one year the Estonians give him the information about one Mercedes S class which is registered on Nagy's name. The prosecutor requests to Latvia to give him all relevant information about Nagy like address or/and stays in Latvia. After 4 months the Latvian authorities give information about Nagy's secondary residence in Latvia. 1. Are the requests and the answers justified? 2. What about possible remedies for Nagy s interests? Should Nagy look for a Norwegian, Latvian or Estonian defence counsel? DR. CLIFF GATZWEILER, Defence Counsel 2 1

2 A), I. Request for information law instruments Relevant law instruments: European Convention on Mutual Assistance in Criminal Matters of Art. 14 form, content; art. 15 normally across Ministries of Justice (not practical and long); art. 4 no deadlines. Convention of on Mutual Assistance in Criminal Matters between the Member States of the European Union Art. 1 supplement and simplification of Assistance. Art. 4 (requested state must comply with the formalities and procedures indicated by the requesting State, deadline as soon as possible, duty to inform promptly). Art. 6 directly between judicial authorities. COUNCIL FRAMEWORK DECISION 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters Getting (existing!) data (car registration, residential address, evidence after freezing order) Art. 7 Principle of proportionality, lawfulness if only national case. Initiative for a Directive of the European Parliament and of the Council of regarding the European Investigation Order in criminal matters (9288/10); Wider scope - also investigation of facts through requested State (investigative measure) DR. CLIFF GATZWEILER, Defence Counsel 3 A), I. Request for information remedies Challenge EEW: No concretisation of the facts, criminal offences are not named. But no decision of judge necessary. Possibility of remedy against acts of Prosecutor? Separate civil case: public liability when damage; disciplinary complaint Art. 13 h) EEW non recognition because of wrongful form, but no subjective rights? Art EEW remedy in Estonia respectively Latvia against recognition and execution of EEW. Art remedy in Norway against order of EEW lack of sufficient factual grounds Breach of principle of fair trial? Principle of proportionality in art. 7! DR. CLIFF GATZWEILER, Defence Counsel 4 2

3 A), I. Request for information remedies Challenge EIO: Remedies mentioned, art. 13 EIO. Question if judge has to be competent for EIO. That would make the challenge in a formal procedure much easier. Preface (17), art. 1 3 EIO: Gate to defence: EU Charter, ECHR! Art 8, 10, 13, 14 EIO. Art. 13 EIO challenge against issue in Norway (equal remedies as domestic case, with Norwegian lawyer); against recognition and execution remedy in Estonia respectively Latvia with lawyer from there. Form (F) EIO to mention facts and criminal offences. Here breaches of deadlines, but probably no subjective rights. Art. 11 EIO 30 day deadline decision on recognition and execution. Then 90 day deadline to carry out the measure. Exceptions possible. DR. CLIFF GATZWEILER, Defence Counsel 5 A), II. Police interview and information on bank accounts - issue II. After that the Prosecutor orders to Latvian authorities to carry out a suspect hearing of Nagy by videoconference. In addition all information on his bank accounts shall be given and his ongoing bank account movements shall be controlled. In Latvia does not exist legal hearing by videoconference. In execution of a normal hearing with two Norwegian Police Officers present, one of them gives Nagy a slap in the face. 3. Is the order and execution justified or should remedies be followed? DR. CLIFF GATZWEILER, Defence Counsel 6 3

4 A), II. Police interview and information on bank accounts law instruments European Convention of 1959 on mutual assistance of (no special rules) Convention of 2000 on mutual assistance in EU (lex specialis): art (hearing by videoconference), consent Nagy's necessary. Protocol of 2001 Convention of 2000 on mutual assistance in EU (information on bank accounts) criminal offence at least 4 years maximum penalty in requesting State and at least 2 years in the requested State or other offences mentioned (art. 1 3). DR. CLIFF GATZWEILER, Defence Counsel 7 A), II. Police interview and information on bank accounts law instruments European Evidence Warrant (of 2008): Pref. (7) EEW historical data of bank accounts possible. Already existing data can be transferred. Monitoring of bank accounts not possible, art. 4 2 c)=investigation. Hearing/interview=investigation and equally excepted, art. 4 2 a) EBA. DR. CLIFF GATZWEILER, Defence Counsel 8 4

5 A), II. Police interview and information on bank accounts law instruments European Investigation Order: Pref. (14); art. 9 1 a), 10 1 c), 21 EIO, Latvian police can execute suspect interview without videoconference. Slap in the face: art. 8, 16 EIO criminal liability as an official under Latvian Criminal Code. Art EIO civil liability of Norway under Latvian Civil Code. 2 first Latvian liability, 3 Reimbursement of Norway to Latvia. Info on bank account: art EIO, requesting State has to give reasons (max. penalty at least 4 years (see same above) and execution State 2 years (see same above), art. 24 info on bank transactions; monitoring of banking transactions: art. 25 3, 27 EIO. More reasons have to be given because of higher intensity of infringement. DR. CLIFF GATZWEILER, Defence Counsel 9 A), II. Police interview and information on bank accounts - remedies Challenge the EEW: Historical bank data: pref. (12), art. 7 Proportionality and examination lawfulness domestic case. Here: measure is disproportional because Nagy has only kept the defect of his car engine secret). Art refers to art. 7 (challenge before Norwegian Court=issuing State) Good! How can you challenge in an equal national case? Is there a Court decision necessary for obtaining information on bank accounts? DR. CLIFF GATZWEILER, Defence Counsel 10 5

6 A), II. Police interview and information on bank accounts - remedies Challenge the EIO: Equally as EAW there is little place for non recognition through the executing State. There are no explicit grounds referring to breaches of fundamental rights of the suspect (only Pref. (17), art. 1 3 EIO); Equality of arms remedies in Pref. (13 a) new edition. Transnational request with clear deadlines must not be easier to execute than national investigation measure. Protection mechanisms have to be of the same quality. (No direct evidence request through lawyer possible, same as weak position in national investigation procedure in Germany.) In the first text there was no test of proportionality included, which is important in cases of minor offences. In text of 2011 after Council meeting of 9./10. June 2011 Pref. (10a) added with weak formulations should, art. 5 a) with mirror theory! Art. 9 Nr. 1a proportionality. Remark: recognition without control of certain important conditions should not be possible. The States have to comply with the ECHR and the EU Charter. DR. CLIFF GATZWEILER, Defence Counsel 11 A), III. Securing evidence issue III. The Norwegian Prosecutor is of the opinion that Nagy has stolen the Mercedes and wants to sell it in near future. He orders the Estonian authorities to take possession of the car. 4. Which rules are applicable and how can a defence counsel challenge the act? DR. CLIFF GATZWEILER, Defence Counsel 12 6

7 A), III. Securing evidence law instruments and remedy COUNCIL FRAMEWORK DECISION 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence Art. 3 1 a), b) FD: securing evidence or subsequent confiscation of property Art. 3 2 FD: trafficking in stolen vehicles no double criminality necessary Art. 11 FD: remedy in Norway challenge substantive reasons. Pref. (6) measure is unfair and disproportionate. No sufficient suspicion of the criminal offence. Just speculation of the Prosecutor. In national case judge decision necessary? DR. CLIFF GATZWEILER, Defence Counsel 13 A), III. Securing evidence incorporated national law Germany: Gesetz über die internationale Rechtshilfe in Strafsachen (IRG) statute of the international mutual assistance in criminal matters. DR. CLIFF GATZWEILER, Defence Counsel 14 7

8 A), IV. House searching and seizure issue IV. The Norwegian Prosecutor orders to take possession of the in his opinion counterfeit - sale contract of the Mercedes at Nagy s residence in Estonia. The police then seize a contract but wrongfully the contract is of another person. 5. Is the evidence order lawful? Which rules are relevant? 6. Which possibilities to challenge the acts exist respectively which protection has the person concerned? 7. Is the evidence order maybe easier to realize than in a national case? DR. CLIFF GATZWEILER, Defence Counsel 15 A), IV. House searching and seizure law instruments Art. 5 Convention of mutual assistance of 1959 in conjunction with art. 51 Schengen agreement CONVENTION from 19 June 1990 APPLYING THE SCHENGEN AGREEMENT OF 14 JUNE 1985 The Contracting Parties may not make the admissibility of letters rogatory for search or seizure dependent on conditions other than the following: a) the offence giving rise to the letters rogatory is punishable under the law of both Contracting Parties by a custodial sentence or a security measure restricting liberty of a maximum of at least six months or is punishable under the law of one of the two Contracting Parties by an equivalent penalty and under the law of the other Contracting Party as an infringement of the regulations which is prosecuted by the administrative authorities where the decision may give rise to proceedings before a criminal court. b) execution of the letters rogatory is consistent with the law of the requested Contracting Party. Critics: very wide and few controls. DR. CLIFF GATZWEILER, Defence Counsel 16 8

9 A), IV. House searching and seizure EEW European Evidence Warrant: Searching and seizure, art EEW. Art. 7, Pref. (12): measure disproportionate. Only speculation of Prosecutor, no sufficient suspicion. mirror image in national case! Basically judge decision of Norway (issuing State) necessary. Art EEW: Is there an Estonian judge decision necessary? DR. CLIFF GATZWEILER, Defence Counsel 17 A), IV. House searching and seizure EIO European Investigation Order new draft edition Art. 5 a) Principle of Proportionality and Mirror-theory inserted! Good! DR. CLIFF GATZWEILER, Defence Counsel 18 9

10 A), IV. House searching and seizure Remedies Art EEW; 13 EIO: Third person has to challenge in Estonia (execution state). Nagy has to challenge the act in Norway (issuing state), art EEW; 13 EIO) Art. 1 3, Pref. (8), (27) EEW; Pref. (17), art. 1 3EIO! Gate to Charter of fundamental rights and ECHR. Judge decision necessary and disproportionate. Art. 13 h) EEW (non recognition wrong form), subjective rights of Nagy? Art. 10 EIO in comparison only a few grounds of non recognition. In proposal new edition a little more, but not of the wrong form. Step back from EEW to EIO. DR. CLIFF GATZWEILER, Defence Counsel 19 B), a) Information on procedural rights national rules a) Which procedural rights Nagy has to be informed of by the police officer? Which international, European, national rules are applicable? National Code of Criminal Procedure. In Germany: Info about allegation, right to remain silent, access to lawyer before questioning, request of evidence, free interpreter (but no info about legal aid for lawyer), period of deprivation of liberty, medical assistance, info someone else about detention/info consulate* DR. CLIFF GATZWEILER, Defence Counsel 20 10

11 B), a) Information on procedural rights international rules *Right of consular assistance, Vienna Convention on Consular Relations, done at Vienna on 24 April Entered into force on 19 March United Nations, Treaty Series Article 36 Communication and contact with nationals of the sending State 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. DR. CLIFF GATZWEILER, Defence Counsel 21 B), a) Information on procedural rights European rules Art. 6 ECHR (Right to a fair trial) 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. DR. CLIFF GATZWEILER, Defence Counsel 22 11

12 Information on procedural rights European rules CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION Article 47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. Article 48 Presumption of innocence and right of defence 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed. DR. CLIFF GATZWEILER, Defence Counsel 23 B), b) Information on procedural rights police questioning form Germany DR. CLIFF GATZWEILER, Defence Counsel 24 12

13 B), c) Information on procedural rights pre-trial detention 1.) 140 German Code of Criminal Procedure ( ) Information on right to legal aid/ duty counsel in case of pre-trial detention. Assignation of counsel after a few days. Before assignation by court, suspect has the right to chose a counsel. DR. CLIFF GATZWEILER, Defence Counsel 25 B), c) Information on procedural rights pre-trial detention 2.) Information on remedies: appeal and examination of legality of custody. DR. CLIFF GATZWEILER, Defence Counsel 26 13

14 B), d) Information on procedural rights pre-trial detention form DR. CLIFF GATZWEILER, Defence Counsel 27 B), e) Information on procedural rights EU-directives (measures A-C) Trust in fair proceedings of all Member States helps mutual assistance Directive A: DIRECTIVE 2010/64/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 October 2010 on the right to interpretation and translation in criminal proceedings. First directive as a co-decision of EP and Council. Pref. (6), (7), (14): directive necessary as codified law, because ECHR and case law of ECtHR not clear enough for all Member States. Mostly Member States do not change their national law if there is a new decision by the ECtHR between two other States. Pref. (10): After 9/11 attack the change in mind of legislative actors: the roadmap for strengthening procedural rights of suspect and accused persons in criminal proceedings (Stockholm 2009). Additionally measure F: shortening the time of pre-trial detention for EU citizen foreigners (green paper). Pref. (16): exclusion in cases of minor offences as traffic offences. Pref. (20): strong right to an interpreter. Pref. (30), art. 3: essential documents have to be translated. Pref. (32) only minimum rules/ minimum EU standard like the other draft directives. Art. 1 2, 2: Right to interpreter also by police questioning without arrest. In German law this right is not mentioned in the normal questioning form (without arrest). Art. 2 5 (interpretation), 3 5 (translation): right to challenge (remedy). Good! Art. 3 8 waiver needs some formal conditions, similar to directive measure C, problematic. The waiver of the suspect should only be possible if a competent lawyer had given advice before. DR. CLIFF GATZWEILER, Defence Counsel 28 14

15 B), e) Information on procedural rights EU-directives (measures A-C) Directive B: Proposal of the European Commission of for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the right to information in criminal proceedings. The national Ministers of Justice in Council have begun hearings with the EP. Actual compromise draft text of (excluding in some way minor offences like traffic offences). Art. 3 FD: enumeration of rights: any entitlement to legal advice free of charge and the conditions for obtaining it Annex (new edition): two (one esp. for EAW) Model written Letter of Rights (non binding illustration): You have the following rights: A. ASSISTANCE OF A LAWYER/ ENTITLEMENT TO LEGAL AID B. INFORMATION ABOUT THE ACCUSATION C. INTERPRETATION AND TRANSLATION D. RIGHT TO REMAIN SILENT E. ACCESS TO DOCUMENTS F. INFORMING SOMEONE ELSE ABOUT YOUR DETENTION / INFORMING YOUR CONSULATE OR EMBASSY G. URGENT MEDICAL ASSISTANCE H. PERIOD OF DEPRIVATION OF LIBERTY DR. CLIFF GATZWEILER, Defence Counsel 29 B), e) Information on procedural rights EU-directives (measures A-C) Directive C, very important (right of access to a lawyer) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest (COM[2011] 326/3) Art. 2 (Scope) in discussion if directive should apply for minor offences (like traffic offences) Art. 4: right to meet lawyer in person, not only communication (by phone) (in discussion). Art. 4 4 right to check the conditions of detention. Art. 9: waiver of the right to a lawyer possible with some formal criteria s. Formal criteria's are good, but legal advice should always be given through a competent lawyer. It shouldn t be too easy to waive the right. See critical statement of ECBA. Art. 11 3: Dual defence in case of EAW (Fair Trials International is strong supporter of this idea). Art. 13 Remedy: 2 definition of the ECtHR, exclusion of evidence (Salduzjudgement) but text in discussion. Critic say Court has to decide on that in each case. DR. CLIFF GATZWEILER, Defence Counsel 30 15

16 B), e) Information on procedural rights EU-directives (measures A-C) critics of hardliner (law-and-order-states): The draft directive C (access to a lawyer) is strongly criticized by Justice Ministers of France, Belgium, UK, Ireland (both States think not to opt-in to the directive) and the Netherlands. In a note of September In their opinion police investigation would get too difficult (esp. in minor offences and evidence gathering) and procedural costs would increase. They also criticize that the question of legal aid will be ruled in a separate directive. Additionally the proposal would give more rights to the suspect or accused than the ECtHR has decided. Against the German proposal of 2004 there was already heavy resistance from Ireland and Italy (terror experiences with IRA, Mafia). Mental excursus: Which role has the defence counsel in the criminal procedure? DR. CLIFF GATZWEILER, Defence Counsel 31 B), f) Information on procedural rights consequences of breach No right to have access to a lawyer. Only information on right to remain silent: Salduz judgment grand chamber of the ECtHR of (unanimity) according to art. 6 1 (fair trial) 3 c) (access to lawyer) ECHR the suspect has the right - in every stadium of the procedure to contact his lawyer. The Chamber has noticed that the police questioning is a very important phase of the whole procedure, in which procedural rights must be guaranteed with the same quality as in a Court proceeding (in this line also judgement Panovits versus Cyprus of , No /04, ). The statement of the suspect in this early step of criminal procedure (like the confession of the minor aged Salduz in front of the Turkish police) in many cases can decisive for the result of the court procedure. In that case Turkish State Security Court was competent (support of PKK as an illegal organisation). After these special procedural rules a lawyer is not allowed to meet the suspect during the police questioning. 55 of the judgement: Article 6 1 [of the ECHR] requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Salduz said, that he was put enormously under pressure by the police. Consequence: applicant is put in the position in which he would have been had art. 6 ECHR not been disregarded. Confession not valid anymore. There has to be an new Court procedure in accordance with this judgement. National retrial for non-pecuniary damage, for costs and expenses (for national procedure and of ECtHR first instance, at Grand Chamber legal aid was granted. Low sum if you be aware that Salduz was 2 ½ years in prison. DR. CLIFF GATZWEILER, Defence Counsel 32 16

17 B), f) Information on procedural rights consequences of breach Art. 2 5, 3 5 Directive (measure A): Right to challenge decision that interpreter or translator necessary or to challenge if the quality of interpreting/translation is not good enough. Clear national rules have to be created. DR. CLIFF GATZWEILER, Defence Counsel 33 C), 1. EAW general rules 1. Outline the relevant rules of an extradition procedure based on an EAW. What are the formal and substantive preconditions of an EAW? DR. CLIFF GATZWEILER, Defence Counsel 34 17

18 C), 1. EAW general rules Look in your national rules. COUNCIL FRAMEWORK DECISION of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) and COUNCIL FRAMEWORK DECISION 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial are incorporated in your national law (in Germany Gesetz über die internationale Rechtshilfe in Strafsachen [IRG]). An EAW is a judicial decision made in one MS seeking arrest and surrender of requested person by another MS for the purposes of prosecution or executing a custodial sentence in another MS, art. 1 FD Art. 2 1, 4 FD 2002: maximum period of at least 12 months prison or if sentenced at least 4 months; double criminality Art. 2 2 FD 2002: Framework List Offences (also trafficking in stolen vehicles). Maximum period of at least 3 years prison then no double criminality necessary. Art. 3 FD 2002: grounds for mandatory non-execution of the EAW: amnesty, ne bis in idem, non-age. Art. 7, 9, 10 FD 2002: transmission: central authorities, Schengen Information System (SIS) alert, European Judicial Network (EJN), Interpol; Handbook of EAW Art. 11 FD 2002 rights of requested person, legal counsel Art. 12 FD 2002: law and court of executing state decides whether requested person has to remain in detention (parallel national warrant for extradition). Art. 13 FD 2002: consent to surrender to speed up the procedure; renunciation of entitlement to the speciality rule (art FD 2002, only prosecution for criminal offences of the EAW) Art. 17 FD 2002: time limits decision 10 days with consent, 60 days without Art. 23 FD 2002: time limits surrender 10 days DR. CLIFF GATZWEILER, Defence Counsel 35 C), 2. EAW defence work Cooperation with colleague of issuing State. New draft EU-Directive (measure C, right to prompt access to lawyer): 2nd lawyer in issuing state, who knows the prison conditions there and knows if the ECHR is regarded. Less costs if intelligent and practical solution without custody. Think creative. Or give consent to extradition if charges are clear to speed up the procedure. DR. CLIFF GATZWEILER, Defence Counsel 36 18

19 C), 2. EAW Violation of rules/ human rights Evident violation of form, Art. 8 1 e), annex FD 2002 (no non-execution ground). Art FD 2002 request for supplementary information. Challenge EAW! Pref. (12), Art. 1 3 FD 2002 Gate to Charter and ECHR. DR. CLIFF GATZWEILER, Defence Counsel 37 C), 2. EAW violation of rules/ human rights The Court can decide not to execute the EAW if the prison conditions in the issuing state do not have a minimum European standard. See art. 3 ECHR and art. 4 EU Charter of fundamental rights, which are identical: Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. More detailed you find art EU Charter: Protection in the event of removal, expulsion or extradition 2. No one may 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. DR. CLIFF GATZWEILER, Defence Counsel 38 19

20 C), 2. EAW violation of rules/ human rights Example: In a recent judgment, The Minister for Justice Equality and Law Reform v Robert Rettinger, 23 July 2010, the Irish Supreme Court overturned on appeal a decision by the Irish High Court to surrender a suspected person subject to a European Arrest Warrant to an issuing State. The Supreme Court referred the matter to the High Court to be reconsidered taking into account all the material before it in a rigorous examination to establish whether there was a real risk of a surrendered person being subject to treatment contrary to Article 3 of the ECHR. In its decision the Irish Supreme Court referred to a number of European Court of Human Rights (ECtHR) cases on detention conditions where the ECtHR concluded that complainants have been detained in conditions that were inhuman and degrading. In ECtHR MSS v Belgium and Greece No /09: Although Greece has signed the ECHR, Court is not allowed to simply presume the accordance with human rights. Especially if the defence gives contrary evidence. Although this was a expulsion case of asylum based on Dublin II Convention, you can use the decision analogue to extradition cases. (International Centre of Prison Studies [ICPS]) give statistics if prisons are overcrowded and how many nonnationals are there). Green paper of EU Commission from June 2011 till end Nov Green Paper on the application of EU criminal justice legislation in the field of detention (prison conditions). Art. 8 ECHR (protection family). Nagy is transported away from home. (even if a weak argument) Council of Europe European Prison Rules, non binding - Rec(2006)2, adopted by the Council of Europe Committee of Ministers to member states on 11 January 2006 DR. CLIFF GATZWEILER, Defence Counsel 39 C), 2. EAW violation of rules/ human rights General problems with the EAW: Problem no specific controls of proportionality, especially in cases of minor offences (Poland), where no prison will be sentenced. The observance is only recommended in the non binding handbook to the EAW actual edition 2011 (website European Judicial Network). Basically extradition custody should be avoided when pre-trial detention cannot be ordered. Problem of evident violations to get evidence (Salduz-judgement) or wrong identity of the person concerned, which can be proven in the issuing state easily (2nd lawyer!). Problem, if EAW is challenged successfully in the execution state, it is still valid in the other Member States. No duty of issuing state to cancel the EAW. This practice is against the principle of mutual recognition of a court decision. DR. CLIFF GATZWEILER, Defence Counsel 40 20

21 C), Mod. 1 EAW surrender of nationals Art. 5 3 FD 2002 EAW for prosecution and person concerned is a national or resident of execution state, surrender may be subject to the condition that future custodial sentence can be served in execution state. In Germany 80 IRG (which followed after a decision of the German Constitutional Court). In case of extradition for execution of a custodial sentence (client is convicted) the extradition of a German or foreigner with residence in Germany is inadmissible without the consent of the person concerned. Execution of sentence then only in German prison possible. Issuing state has to request this explicitly. The EU Council criticises this regulation which you cannot find in the FD DR. CLIFF GATZWEILER, Defence Counsel 41 Art. 4 Nr. 2 FD 2002 C), Mod. 2 EAW Ne bis in idem Depends if criminal act is consistent or can be separated in different acts in different states. DR. CLIFF GATZWEILER, Defence Counsel 42 21

22 C), Mod. 3 EAW in-absentia convictions Art. 4a) FD 2009 which amends Art. 5 1 FD 2002! DR. CLIFF GATZWEILER, Defence Counsel 43 C), Mod. 4 EAW deadlines Art. 23 RB surrender of person In Germany surrender often takes more than 10 days, because - to reduce costs - often there is no transport of a single prisoner in Germany. This systematic breach of art. 23 FD 2002 is criticised by the European Council. In Germany a person was never released because of this. DR. CLIFF GATZWEILER, Defence Counsel 44 22

23 D), 1. Pre-trial detention pragmatic defence approaches If Nagy does not appear to a hearing, again an EAW could be issued to ensure the proceeding. Nagy could register a residence in Estonia where the post of court can be received. Or registration at the grandparents. Common requests to avoid custody: surrender of travel passport, caution etc. DR. CLIFF GATZWEILER, Defence Counsel 45 D), 1. Pre-trial detention problems in EU In EU free work and movement of persons many foreigners of one Member State are in another Member State without residence. They are treated as foreigners who can flee to their country, why orders of pre-trial detention are too often a consequence. This costs states amounts of money. Often pre-trial detention is very long and there is missing an adequate examination system. States - as for example Germany - have no absolute time limit of pre-trial detention. Principles of presumption of innocence and proportionality are violated. Idea of mutual recognition of supervision orders between the member states. DR. CLIFF GATZWEILER, Defence Counsel 46 23

24 D), 1. Pre-trial detention European Supervision Order (ESO) FD European Supervision Order (ESO) Council Framework Decision 2009/829/JHA of 23 October 2009 on the application of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention is to be implemented by 1 December 2012 (not yet implemented in Germany). Pref. (16), art. 5 FD provides that Member States must respect fundamental rights and fundamental legal principles (ECHR, Charter). Art. 8 FD: types of supervision measures The ESO concerns provisional release in the pre-trial stage. It will enable a non-custodial supervision measure to be transferred from the Member State where the non-resident is suspected of having committed an offence to the Member State where he is normally resident. This will allow a suspected person to be subject to a supervision measure in his home Member State until the trial takes place in the foreign Member State, and thus provides a way to reduce pretrial detention of non-resident European Union citizens in the future. Example: Nagy, who is a resident of Norway is arrested and charged with an offence in Member State Estonia. His trial will not start for 6 months. If he was a resident of Estonia, the judge would be inclined to release him on bail, with a condition of reporting to the police station, but the judge is reluctant to do so because Nagy lives in another Member State and will return there pending trial. The judge fears that Nagy will not return and may even flee. Under the ESO, the judge can allow Nagy to return home imposing a reporting condition, and can ask the authorities in Norway (execution state) to ensure that Nagy does report to the police station in accordance with the order of the court in Estonia (issuing state). In case of breach Estonia will issue an arrest warrant and Nagy can be surrendered to Estonia based on FD 2002 EAW (art. 21 FD ESO). DR. CLIFF GATZWEILER, Defence Counsel 47 E), 1. Court proceeding EU-Criminal Records Information system (ECRIS) Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States/ COUNCIL DECISION 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA. Estonia is home country of Nagy (nationality), there all convictions in EU are registered. Other Member States can use ECRIS to get the information electronically. Danger: In Norway it is difficult to evaluate a foreign conviction. It is not clear in which cases convictions are registered there. COUNCIL FRAMEWORK DECISION 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings Art. 1 1 FD pre-conviction for other facts! Art. 3 1 FD taking account as national pre-convictions. DR. CLIFF GATZWEILER, Defence Counsel 48 24

25 E), 2. Court proceeding ne bis in idem Art Schengen agreement convention from 19 June 1990 APPLYING THE SCHENGEN AGREEMENT OF 14 JUNE 1985 no clear rules. But now art. 50 EU Charter of fundamental rights which is in force. Right not to be tried or punished twice in criminal proceedings for the same criminal offence No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law. Identity of the criminal act, as a complex of circumstances which has to be seen as one natural event. DR. CLIFF GATZWEILER, Defence Counsel 49 E), 3. Court proceeding consequence no interpreter Art. 2 5 Directive (measure A): national remedy is obligatory. Defence council has to challenge the infringement as early as possible. DR. CLIFF GATZWEILER, Defence Counsel 50 25

26 E), 4. Court proceeding deduction extradition custody Art. 26 FD 2002 EAW: two weeks of extradition custody in Latvia have to be deducted from the prison sentence! DR. CLIFF GATZWEILER, Defence Counsel 51 F), a) Execution of sentence transfer of prisoners The Transfer of Prisoners Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments imposing custodial sentences or measures involving deprivation of liberty is to be implemented by 5 December It establishes a system for transferring convicted prisoners back to the Member State of nationality or habitual residence (or to a Member State with which they have close ties). Article 3(4) provides that Member States must respect fundamental rights and fundamental legal principles. It should facilitate the social rehabilitation of the sentenced person by ensuring that they serve their sentence in their home country. Example: Nagy is a national of Estonia. He is convicted of an offence in Norway where he habitually lives and sentenced to 3 ½ years in prison (issuing state). The authorities of Norway may return him to Estonia (execution state) to serve the sentence without seeking his consent. (Pref. (5), (9) aspect of better rehabilitation, art. 6 2, 3 FD (possibility to statement of prisoner)). DR. CLIFF GATZWEILER, Defence Counsel 52 26

27 F), a) Execution of sentence transfer of prisoners Here: art. 4 1 a) FD: Estonia. Art. 4 5 FD: also Nagy can request transfer, but no subjective right Art. 12, 15 FD time limits: 90 days recognition, then 30 days transfer (ambitious) Disadvantages of actual Conventions: Pref. (4), art. 26 FD (actual Conventions mentioned): 1 year takes the transfer based on the actual European Convention on the transfer of sentenced persons of 21 March In case of request for probation for the rest of prison time (2/3 or ½ ) in the execution state, only the time in prison in that state counts, that makes it longer than in a national case. This is a violation of art. 5 ECHR (right of liberty). Example: Nagy is 18 months in Norwegian prison, 24 months more in Estonia to reach 3 ½ years. 2/3 of the 3 ½ years are 28 months (national case); instead 2/3 of 24 months (in execution state) are 16 plus 18 (in issuing state already served) = 34 months, which is half a year more. In future: Art FD, Annex I lit. j form, annex II. (good!) (See again art. 9 1 i) FD non recognition in absentia case, which is amended through FD of 2009 like it is in FD 2002 EAW) DR. CLIFF GATZWEILER, Defence Counsel 53 F), b), 1. Execution of sentence probation decision Probation and Alternative Sanctions Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition of probation decisions and alternative sanctions is to be implemented by 6 December The Framework Decision relates to the post-trial stage. It applies the principle of mutual recognition to many of the alternatives to custody and measures facilitating early release. Article 1(4) provides that Member States must respect fundamental rights and fundamental legal principles. The probation decision or other alternative sanction would be executed in a Member State other than the one in which the person was sentenced, and can be executed in any Member State. Example: Nagy is a national of Member State Estonia but is on holiday in Norway. He is convicted of an offence in Norway and sentenced to carry out community service in lieu of a custodial sentence. He can return to his home Member State Estonia and the authorities of that Member State are obliged to recognise the community sentence and to supervise Nagy s execution of it. DR. CLIFF GATZWEILER, Defence Counsel 54 27

28 F), b), 1. Execution of sentence probation decision Pref. 21 FD (remedies): the national law has to foresee remedies against negative decision in the issuing state = Norway DR. CLIFF GATZWEILER, Defence Counsel 55 F), b), 2. Execution of sentence probation decision Art. 14 FD execution state = Estonia is competent for all subsequent decisions (including the revocation of the suspension of the execution of the judgment or the revocation of the decision on conditional release, Art b) FD)! Decisions and execution of the prison sentence shall directly take place in the home country (home principle). In case of revocation the prison sentence has to be executed here. DR. CLIFF GATZWEILER, Defence Counsel 56 28

29 F), b), 3. Execution of sentence probation decision Nagy can influence the decision when he returns or wants to return to his residence state, art. 5 1 FD. Only in case of a third Member State Nagy s consent is necessary, art. 5 2 FD. DR. CLIFF GATZWEILER, Defence Counsel 57 F), c), 1. Execution of sentence financial penalties and administrative fines Bilateral contract of mutual assistance between Latvia and Norway as for example between Germany and Austria of 1990 (administrative fines from 25 )? COUNCIL FRAMEWORK DECISION 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties Must be incorporated in your national law (in Germany law of ). National procedure of recognition in Germany, executing authorities gives concerned person opportunity to statement, possibility to challenge decision and bring the case before Court. DR. CLIFF GATZWEILER, Defence Counsel 58 29

30 F), c), 1. Execution of sentence financial penalties and administrative fines Here: art. 5 1 FD (infringements against traffic regulations are included in the extended catalogue, so no examination of double criminality necessary for recognition and execution) Possibility of national incorporation: fine amount (costs included, art. 1 b), iii) FD) has to be higher than 70, art. 7 2 h) FD, so in Germany. But money stays generally in executing state, art. 13 FD! DR. CLIFF GATZWEILER, Defence Counsel 59 F), c), 2. Execution of sentence financial penalties and administrative fines Art. 7 1 FD national legislator can decide if strict form is obligatory for recognition; duty to communicate and cooperate with issuing state before non-recognition, art. 7 3 FD. DR. CLIFF GATZWEILER, Defence Counsel 60 30

31 F), c), 3. Execution of sentence financial penalties and administrative fines a) Fine is not translated into the Estonian language, art 7 2 g) FD new edition (2009) together with art. 5 3 EU-Convention of mutual assistance in criminal matters of 2000! b) Prosecution only because of ownership of the car is in many countries - as in Germany - not possible. Only the person who conducted the vehicle can be fined (principle of personal guilt) For example in France, Italy or the Netherlands it is in the contrary possible. DR. CLIFF GATZWEILER, Defence Counsel 61 F), d), 1. Execution of sentence confiscation COUNCIL FRAMEWORK DECISION 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders Must be incorporated law in your country. Confiscation aims on deprivation of specific property. Issuing State can additionally explicitly request securing measures according to FD 2003/577/JHA (freezing order). Art. 9 FD: Legal remedies in the executing State against recognition and execution of confiscation order. DR. CLIFF GATZWEILER, Defence Counsel 62 31

32 G), Complaint before the ECtHR Art. 34 ECHR Individual applications The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Form referred to in Rule 47 1 of the Rules of the Court. Applicant has got 6 months time to bring his complaint before Court after all national remedies were unsuccessfully taken in due time, art ECHR. Complaint (also in his language possible) against State (administrative act, as for ex. decision of Court or administration) because of direct and personal breach of human right (victim). Complaint only under ECHR, not EU Charter. Public and oral hearings are exceptions. Primary the Court decides if the complaint is admissible. Here we have already negative decisions in more than 90% of the cases. If admissible (now only in English and French possible) the ECtHR recommends a friendly settlement, art. 39 ECHR. If not reachable, the violation of the ECHR is examined which takes more than a year for the first decision. Legal aid is possible. If there is a violation the Court can decide on just satisfaction, which means a sum of money, art. 41 ECHR). If State loses process, it has to pay all the costs, if individual applicant loses, he does not have to pay other costs than his own. The Court has no competence to suspend national decisions or national law. But after decision person concerned can request a reopening of his national criminal proceeding under strict observance of the judgement of the ECtHR. The Committee of Ministers of the Council of Europe supervises the execution of the judgement, not the ECtHR. Rule 39 of the Rules of Court deals with requests for INTERIM MEASURES. Important in extradition cases, if surrender is ordered in near future. The ECtHR recommends to make this urgent request already before the last national decision, in case of a negative decision. So the ECtHR has enough time to react. DR. CLIFF GATZWEILER, Defence Counsel 63 32