Module 2 - General framework of judicial cooperation in criminal matters within the EU - version 3.0
The European Judicial
training network /
With the support of the European Union
Project description
This module is part of a standard training programme in judicial cooperation in criminal matters within the European Union (EU-Copen Training Programme).
The ‘programme’ as a whole is an educational training tool designed to facilitate the training of judicial authorities in the field of judicial cooperation in criminal matters within the European Union. The tool is primarily aimed at any national authority responsible for judicial training, for the purpose of developing specific training courses on the subject, as well as to any stakeholder involved in judicial cooperation as part of their day-to-day professional practice. It may also be used by anyone interested in this field.
The methodological approach of the ‘standard programme’ aims to provide authoritative information while also focusing on the practical aspects of the mechanisms of judicial cooperation.
This tool was originally developed based on two projects run in 2005-2006, and subsequently in 2009, by the Institute for European Studies (Free University of Brussels) and ECLAN (European Criminal Law Academic Network) with funding from the European Commission (under the AGIS programme and subsequently the 'Criminal Justice' programme) of the Ministry of Justice of the Grand Duchy of Luxembourg and the International University Institute of Luxembourg.
In 2012, the European Judicial Training Network, which has been involved in the Copen Training programme since it began, took over the project’s management and coordination. Version 3 (3.0) of the Copen Training tool is therefore the property of the European Judicial Training Network. Any comments regarding its content and any requests for information about Copen Training should be sent to , quoting Copen Training.
The main authors of version 3.0 are: Serge de Biolley, Gisèle Vernimmen and Anne Weyembergh. Veronica Santamaría and Laura Surano contributed to the previous versions.
How to use this document:
The 'standard training programme in judicial cooperation in criminal matters' training tool and all parts thereof are the property of the European Judicial Training Network. Its use is subject to the following conditions:
1. Its content and layout cannot be altered in any way, except:
- where space is explicitly provided for the insertion of data relating to training organised on the basis of this standard programme (organiser’s logo, date, place etc.)
- where space is explicitly provided for the insertion of data relating to the national situation of the Member State concerned
2. If the user feels that corrections or additions need to be made to the content of the tool or parts thereof, provided each of the following criteria is met:
- the additions or amendments must be accompanied by a foreword indicating the origin of these amendments or additions
- these additions and amendments must be notified to the project’s development team , quoting Copen Training.
3. No section of the tool or any of its parts may be copied or separated from the tool as a whole without the express permission of the Institute for European Studies and of its authors.
/ What’s new in this version?
- 3rd version (updated).
/ Aims of this module
Module 2 aims to explain the specifities of current judicial cooperation within the European Union by looking at how cooperation mechanisms between Member States have evolved.
This module divides this evolution into three stages: conventional cooperation (the main conventions adopted within the Council of Europe, such as the 1959 European Convention on Extradition), enhanced cooperation (such as the 1995 and 1996 European Union extradition treaties) and mutual recognition, or the specificity of the European Union. The module emphasises the continuity but also the points of divergence between initially intergovernmental cooperation, increasingly efficient enhanced cooperation, and finally mutual recognition between judicial authorities.
First, we define the concept of cooperation and present the classifications of the various forms of judicial cooperation.
Relevant legislation
-The European Convention on the International Validity of Criminal Judgments of 28 May 1970 Compendium A.1.6.
-European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 Compendium A.1.1.; its first protocol of 17 March 1978 Compendium A.1.2.; and its second Protocol of 8 November 2001 Compendium A.1.3.
-European Convention on Extradition of 13 December 1957 Compendium A.2.1.; its two additional protocols of 15 October 1975 Compendium A.2.2.; and of 17 March 1978 Compendium A.2.3.
-Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 Compendium B.2.1.
-European Convention on extradition of 10 March 1995 Compendium B.4.1.
-European Convention on extradition of 27 September 1996 Compendium B.4.2.
-Joint Action of 29 June 1998 on good practice in mutual legal assistance in criminal matters Compendium B.3.9.
-Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union Compendium B.3.10 and its Protocol of 16 October 2001 Compendium B.3.11.
-Instruments aimed at implementing the mutual recognition principle Compendium sections B.4. and B.5.
/ Contents1.Introduction: the concept of cooperation in criminal matters and classifications of the various forms of judicial cooperation
1.1.The concept of cooperation in criminal matters
1.2.Types of traditional mechanisms of judicial cooperation in criminal matters
2.The evolution of judicial cooperation in criminal matters within the EU
2.1.The starting point: conventional judicial cooperation
2.2.Enhanced judicial cooperation
2.3.Mutual recognition of judicial decisions in criminal matters, or the specificity of the EU
Module 2 - General framework of judicial cooperation in criminal matters within the EU - version 3.01.Introduction: the concept of cooperation in criminal matters and classifications of the various forms of judicial cooperation
1.1.The concept of cooperation in criminal matters
Criminal law, which respects the idea of national sovereignty, is in principle territorialist. If there is strict application of this territorialism, situations with a foreign element cannot be adequately managed. Therefore, intergovernmental judicial cooperation has been developed to prevent the existence of borders and the principle of territoriality from disrupting the smooth running of the criminal justice system. Judicial cooperation in criminal matters has become all the more important as the number of situations with foreign elements has increased. As a result, the number of organisations and fora concerned with these matters has also increased.
Judicial cooperation in criminal matters is a generic concept covering different mechanisms whose functioning depends on the application of agreements, conventions and other instruments. The degree of cooperation differs according to the framework in which it occurs: it reflects the different degrees of legal integration. While some purely intergovernmental frameworks – such as the global framework of the United Nations, or the European framework of the Council of Europe – have relatively traditional mechanisms of cooperation, the European Union is developing mechanisms that are increasingly integrated, and increasingly fluid and rapid. This explains the need to accurately determine the specific framework of cooperation and instrument applicable to a particular case.
Under the conventional system, judicial cooperation in criminal matters can be defined as ‘a series of actions performed by a competent judicial authority (requested authority) within a State (requested State) on behalf of a requesting judicial authority within another State (requesting State)’[1]. Due to the impact of the evolution that led to the mutual recognition process within the European Union, these two key concepts of ‘Requesting State’ and ‘Requested State’ were replaced by those of 'Issuing State', which issues the decision to uphold and enforce, and ‘Executing State', which executes the foreign judgment.
1.2.Types of traditional mechanisms of judicial cooperation in criminal matters
1.2.1Types of mechanism based on the stage of the criminal proceedings in which cooperation takes place
It is this type of mechanism we will focus on: it distinguishes between cooperation mechanisms depending on whether they relate to the pre-trial stage, or before the ruling on the merits, the trial stage (ruling on the merits), or the post-trial stage, after the ruling. This classification has the advantage of being focused on the practice of cooperation and being appropriate to the changes that have taken place in judicial cooperation in criminal matters within the European Union (hereinafter, EU) following the implementation of mutual recognition. However, it should be borne in mind that some cooperation mechanisms are ‘cross-stage', in that they are likely to relate to several 'moments' in the criminal proceedings. This is the case for extradition and the European Arrest Warrant, and the surrender procedures relating to both the pre-trial and trial stages. This type of mechanism is discussed in Modules 5 to 10.
1.2.1.1. Pre-trial cooperation mechanisms
Pre-trial cooperation mechanisms include:
a)‘Minor’ mutual legal assistance: this the most widely used form of cooperation in daily practice. It covers a host of different types of assistance, which may include the transmission of certain documents (such as criminal records) or the transmission of certain information (such as information related to bank accounts or transactions). A request for mutual assistance may also involve a judicial authority requesting a foreign judicial authority to act on its behalf in one or more investigative activities, such as taking statements from witnesses, experts or detainees, transporting them to premises or carrying out more restrictive activities, such as searches, seizures etc.
b)Transfer of proceedings: this is the mechanism whereby the Member State in which the offence took place requests the Member State where the perpetrator is located to prosecute on its behalf, for example due to the latter Member State’s refusal to extradite the individual in question. Alongside the transfer of proceedings, there is also the mechanism whereby a Member State can notify a complaint with a view to proceedings before the courts of another Member State.
1.2.1.2. Straddling the pre-trial and the trial stages: extradition
Extradition can be defined as 'the surrender of an individual by one State to another requesting State in order to try them for a criminal offence or enforce a sentence'[2]. The aim of extradition may therefore be criminal prosecution (for example, the authorities responsible for the enquiries are investigating a person in connection with various economic crimes. This person did not attend the hearing, so an alert is sent to Belgium and abroad with a view to their arrest. If that person is arrested abroad, it is possible to request their extradition so that the criminal investigation can be completed and the person required to stand trial before a Belgian court) or the execution of a custodial sentence (for example, a drugs trafficker sentenced to several years in prison does not return to prison after being released on parole. He is then sought in Belgium and abroad. If he is arrested abroad, Belgium may submit an extradition request so that he can serve the remainder of his sentence).
1.2.1.3. Cooperation mechanisms relating to the trial or post-trial stage that are associated with recognising the validity of foreign judgments or with the extraterritorial effects of court judgments
These include the following three types of mechanism:
a)The enforcement of foreign judgments: this is the case for a ruling handed down in Belgium and executed in France, for example.
b)Recognition of the res judicata authority of foreign judgments: this authority may either be:
- positive: this is the taking into consideration by a country’s judicial authorities of judgments handed down previously by the courts or tribunals of other countries, in order to produce certain effects provided for under their national criminal law, such as to establishrepeat offences (e.g. where a person is tried in Belgium and whose previous convictions abroad are taken into account by the Belgian court), to stipulate disqualifications or lack of competence under national law etc.
- negative: negative res judicata authority is expressed by the well-known Latin maxim non bis in idem, which refers to the requirement for a country’s authorities to refrain from prosecuting and trying a person for an offence for which they have already been tried by the courts and tribunals of another country (see below).
c)Transfer of sentenced persons: this means allowing the transfer of a prisoner to another country in order to serve their sentence. Transfer offers several advantages, including the habilitation or rehabilitation of prisoners: it is usually preferable for the person to serve their sentence in their original social environment.
1.2.2Other possible classifications
Other classifications available include the classification based on the role played by the requested country of which cooperation is demanded, and which distinguishes between:
a)secondary mutual legal assistance in criminal matters, which refers to cooperation mechanisms where the requesting country remains in control of the suit, or 'dominus litis'. The requested country merely provides their collaboration or assistance. This category includes minor mutual legal assistance and extradition
b)primary mutual legal assistance in criminal matters. This includes various mechanisms, all of which entail a taking over of responsibility or a much more substantial role for the requested country, which takes control of the suit, or dominus litis. These require a more significant integration of criminal laws between the requesting country and the requested country than under 'secondary mutual legal assistance', insofar as they assume that the requested country takes over the criminal procedure or at least a critical stage thereof. The requesting country therefore relinquishes control of the suit. These mechanisms require extraterritoriality of court judgments. The main mechanisms of cooperation falling under this second category include transfer of proceedings and enforcement of foreign judgments.
This classification into primary or secondary mutual assistance primarily covers cooperation mechanisms as they traditionally operate within conventional intergovernmental international fora, such as the Council of Europe. It no longer really corresponds to cooperation mechanisms as they function and/or will come to function in future within the EU following the implementation of the principle of mutual recognition (see below).
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2.The evolution of judicial cooperation in criminal matters within the EU
In the early 1970s, work began between the Member States of the European Communities or of the European Union to try to simplify and accelerate the mechanisms of judicial cooperation in criminal matters as they functioned within the existing cooperation frameworks, such as that of the Council of Europe. Judicial cooperation in criminal matters has therefore gradually evolved within the EU towards further integration in criminal justice. There are three distinct phases:
2.1.The starting point, or conventional judicial cooperation
2.2.Enhanced judicial cooperation
2.3.Mutual recognition of court judgments in criminal matters, or the specificity of the EU
2.1. The starting point: conventional judicial cooperation
2.1.1Description of the main instruments
From the 1950s onwards, a number of multilateral conventions were concluded within the Council of Europe on cooperation in criminal matters. Some of these conventions were only partly ratified and therefore had an extremely limited impact on the practice of cooperation: this is the case for most of the conventions providing for primary cooperation, such as the European Convention on the International Validity of Criminal Judgments of 28 May 1970 (Compendium A.1.6.). Others, however, were extremely successful, in the sense that they were ratified by several States[3]and therefore have had a major impact on day-to-day cooperation in practice. This is particularly the case for instruments providing for secondary mutual legal assistance, namely those relating to:
a)minor mutual legal assistance: cf. the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 (Compendium A.1.1.); its 1st protocol of 17 March 1978 (Compendium A.1.2.); a second Protocol to this convention was adopted on 8 November 2001 (Compendium A.1.3.), which relates more to enhanced cooperation, that is, the second stage (see below);
b)extradition: cf. the European Convention on Extradition of 13 December 1957 (Compendium A.2.1.) and its two additional protocols of 15 October 1975 (Compendium A.2.2.) and of 17 March 1978 (Compendium A.2.3.), as well as the European Convention of 27 January 1977 on the prevention of terrorism.
However, it is also the case for transfers. Since the European Convention of 21 March 1983 on the Transfer of Sentenced Persons was ratified by a huge number of States – this convention was supplemented by an additional protocol on 18 December 1997.
2.1.2The conventional nature of the mechanisms established
These conventions adopted within the Council of Europe, the conventional intergovernmental forum, established cooperation mechanisms that are, for the most part, very traditional. These mechanisms are still profoundly influenced by the principle of territorial sovereignty. The granting of cooperation is far from automatic. It functions slowly and cumbersomely. This is reflected in various aspects, such as the channel used to transmit cooperation requests, the scope of the acts giving rise to cooperation, the various grounds for refusing cooperation, the lack of timescale in which the cooperation must take place, and the options open to Member States to make reservations or declarations.
2.1.2.1The channel used to transmit cooperation requests.
In conventional cooperation, requests are transmitted through diplomatic channels or through the central authorities. Thus, under the 1957 extradition convention, requests are transmitted through diplomatic channels (Article 12 (1)). Meanwhile, the 1959 mutual assistance convention provides in principle for transmission through the competent Ministries of Justice (Article 15(1)). It is only in cases of urgency that direct transmission may be used (paragraph 2)).
2.1.2.2The scope of the acts giving rise to cooperation
Conventional cooperation is subject to a number of restrictions with regards to the acts that can give rise to cooperation. These restrictions relate to:
- severity and/or double criminality: to give rise to cooperation, the acts must usually have a minimum level of severity and meet the double criminality requirement. This means that to give rise to cooperation, the offences in question must be punishable under the laws of the requested State and of the requesting State. These two conditions are in any case conventional with regards to extradition: they can both be found, inter alia, in Article 2 of the European Convention on Extradition of 13 December 1957: ‘Extradition shall be granted in respect of offences punishable under the laws of the requesting Party and of the requested Party by deprivation of liberty or under a detention order for a maximum period of at least one year or by a more severe penalty (...)’. The 1959 Convention on Mutual Assistance does not provide for a condition associated with the severity of the offences and does not, in general terms, stipulate the condition of double criminality. However, it does allow States to reserve the right to refuse cooperation on this basis in the case of searches or seizures (Article 5).
- their nature: see the exceptions to cooperation based on the political, fiscal or military nature of the offence. Thus, the 1957 European Convention on Extradition provides for a mandatory grounds for refusal of extradition based on the political nature of the offence for which extradition is requested (Article 3(1)); it leaves extradition for fiscal offences subject to a decision by the contracting parties (Article 5) and excludes from its scope of application military offences that are not offences under ordinary criminal law (Article 4). Some of these exceptions have been somewhat lessened over time:
- with regards to the political nature of the offence, notable are the 'depolitisation' of the taking or attempted taking of life of a Head of State or a member of their family under the 1957 extradition convention (Article 3(3)), the depolitisation of crimes against humanity and other crimes by the 1st protocol of 1975 and the 'depolitisation' of terrorist acts listed by the Council of Europe Convention on the Prevention of Terrorism of 27 January 1977.
- with regards to fiscal offences, the significance of the second protocol to the extradition convention, dated 17 March 1978 (Article 2) should be noted.
The 1959 European Convention on Mutual Assistance in Criminal Matters provides that cooperation may be refused if the request concerns an offence that the requested party considers a political offence, an offence connected with a political offence, or a fiscal offence (Article 2(a)). The Protocol of 1978 excluded the grounds for refusal where the request concerned a fiscal offence, while authorising Member States to make a declaration to the contrary.