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The European Criminal Law Associations' Forum 2019

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The European Criminal Law Associations' Forum 2019 eucrim 2019 / 1 THE EUROPEAN CRIMINAL LAW ASSOCIATIONS‘ FORUM Focus: Evidence Gathering – Current Legal Issues Dossier particulier: Recueil de preuves – questions juridiques actuelles Schwerpunktthema: Beweissammlung – Aktuelle Rechtsfragen Guest Editorial Ladislav Hamran Legal and Practical Challenges in the Application of the European Investigation Order José Eduardo Guerra and Christine Janssens The European Investigation Order and Its Relationship with Other Judicial Cooperation Instruments Jorge A. Espina Ramos Access to the Case Materials in Pre-Trial Stages Anneli Soo, PhD and Anna Pivaty, PhD Fighting Terrorism through the European Public Prosecutor’s Office (EPPO)? Adam Juszczak and Elisa Sason 2019/ 1 ISSUE / ÉDITION / AUSGABE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim. Contents News* Articles Evidence Gathering – European Union Current Legal Issues Foundations Procedural Criminal Law 46 Legal and Practical Challenges in the 2 Fundamental Rights 23 Procedural Safeguards Application of the European Investigation 5 Security Union 25 Data Protection Order – Summary of the Eurojust Meeting 7 Area of Freedom, Security 27 Victim Protection of 19–20 September 2018 and Justice 29 Freezing of Assets José Eduardo Guerra and Christine 8 Schengen Janssens 8 Legislation Cooperation 30 Police Cooperation 53 The European Investigation Order and Its Institutions 31 Customs Cooperation Relationship with Other Judicial Coopera- 10 European Court of Justice (ECJ) 31 European Arrest Warrant tion Instruments – Establishing Rules on the 10 OLAF 36 European Investigation Order Scope and Possibilities of Application 11 Eurojust 38 Law Enforcement Cooperation Jorge A. Espina Ramos 12 Europol 13 Frontex 60 Access to the Case Materials in Pre-Trial 14 Agency for Fundamental Rights (FRA) Stages – Critical Questions of Article 7 Council of Europe of Directive 2012/13/EU on the Right to Specific Areas of Crime / Information in Criminal Proceedings Substantive Criminal Law Anneli Soo, PhD and Anna Pivaty, PhD 15 Protection of Financial Interests Foundations 17 Money Laundering 43 Human Rights Issues 66 Fighting Terrorism through the European 18 Non-Cash Means of Payment Public Prosecutor’s Office (EPPO)? 19 Organised Crime Specific Areas of Crime What future for the EPPO in the EU’s 19 Cybercrime 43 Corruption Criminal Policy? 21 Racism and Xenophobia 45 Money Laundering Adam Juszczak and Elisa Sason * The news contain Internet links referring to more detailed information. As of 2018, these links are being embedded into the news text. They can be easily accessed by clicking on the underlined text in the online version of the journal. If an external website features multiple languages, the Internet links generally refer to the English version. For other language versions, please navigate using the external website. Guest Editorial Dear Readers, Twenty years have passed since the EU heads of state and gov- tical and legal problems increased ernment came together in Tampere and agreed that the princi- from 217 cases in 2013 to 410 ple of mutual recognition should become the cornerstone of newly registered cases in 2018. judicial cooperation in criminal matters between the EU Mem- Particularly in recent years, ECJ ber States. This was followed by the adoption of an ambitious case law raised new questions, and list of mutual recognition instruments for the pre-trial, trial, practitioners often struggled with and post-trial phases, which all reflect the same basic notions: requests for additional information direct contact between judicial authorities, uniform templates, and to meet deadlines. In 2018, short deadlines, a duty to recognise and execute (subject to Eurojust also opened 830 new limited grounds for refusal), and a presumption of mutual trust. cases on the EIO. The outcome report of the Eurojust Meeting on But what do twenty years of experience with the mutual rec- the EIO − summarized further on ognition principle tell us? In the past two decades, judicial in this journal − provides a good authorities have applied mutual recognition in practice when overview of some of the main issuing and executing European Arrest Warrants (EAWs), Eu- issues that mutual recognition Ladislav Hamran ropean Investigation Orders (EIOs), and freezing, confiscation, has triggered. Similarly, the first and supervision orders. Despite its advantages, there ensued preliminary ruling (Case C-324/17 Gavanozov) is currently challenges and limits to this principle that were not always pending before the ECJ and raises relevant questions on the readily apparent. The authorities learned how differences be- meaning of mutual recognition and fundamental rights. It will tween national legal systems complicate mutual recognition, be very interesting for practitioners to see how ECJ case law but also how these differences can be overcome. The jurispru- develops in the field of the EIO. dence of the European Court of Justice (ECJ) provided insight into how key legal issues need to be interpreted in light of the Applying the mutual recognition principle is not only about mutual recognition principle. overcoming legal challenges. Efficient cooperation also re- quires judicial authorities to have the necessary practical There now exists a deeper understanding that mutual recogni- means at their disposal, and a fundamental requirement for tion is based on mutual trust, but not on blind trust. Often, cross-border cooperation is a secure communication chan- additional information needs to be requested and there is a nel. Against this background, Eurojust recently launched an stronger awareness that mutual recognition is not only aimed initiative to develop a digital infrastructure to support the ex- at facilitating cooperation between authorities, but also at change of operational information and evidence between ju- protecting individual rights. Perhaps most significantly, we dicial authorities across the EU, between judicial authorities have come to realise that mutual recognition is not a miracle and Eurojust, and between Eurojust and other JHA Agencies. solution. While it can be efficient and effective, it can also This infrastructure will allow judicial authorities to identify be cumbersome and complicated. Even though direct contact connections between proceedings in different Member States with colleagues abroad is a great starting point, it is not always more easily and to communicate more efficiently with Euro- sufficient. Fortunately, when judicial authorities need help in just on cases requiring its support. Together with the secure applying the principle of mutual recognition, they have Euro- online portal currently being developed by the Commission, just’s support at their disposal. I am convinced that it will soon greatly facilitate judicial co- operation. Facilitating the execution of requests and decisions based on mutual recognition is at the heart of Eurojust’s work. The Ladislav Hamran, number of EAW cases where Eurojust helped overcome prac- President of Eurojust eucrim 1 / 2019 | 1 News Actualités / Kurzmeldungen be guided by the principles enshrined in Art. 21(1) TEU. EU agencies operating in the sphere of justice and home affairs and/or those whose activities could have an impact on the rights and principles deriving from the Charter should adopt internal European Union* fundamental rights strategies and pro- mote regular fundamental rights and Reported by Thomas Wahl (TW) and Cornelia Riehle (CR) Charter training sessions for their staff at all levels. The Commission is called on to strengthen its awareness-raising activi- ties concerning the Charter, with the full Foundations Strengthening the integration of the involvement of civil society organisa- Charter in the legislative and decision- tions, and to promote and fund Charter- making processes; targeted training modules for national Fundamental Rights Mainstreaming the Charter into EU judges, legal practitioners as well as policies; civil servants. In this context, the Com- EP: Potential of Charter Must The Charter and the EU Agencies; mission should give full visibility to the Be Strengthened Implementation of the Charter at na- FRA’s recently published Handbook on The European Union must take resolute tional level; Applying the Charter of Fundamental steps to strengthen its own engagements More consistent interpretation of the Rights of the European Union in law and in guaranteeing the enjoyment of all of Charter. policymaking at national level. Where the rights of the Charter of Fundamental MEPs stress that the EU’s legisla- needed, the Commission must safeguard Rights, including social rights. This is tive proposals must fully comply with fundamental rights through infringe- one of the main requests of a EP resolu- the Charter; therefore, they advocate for ment proceedings. tion of 12 February 2019 “on the imple- enhanced forms of consultation, com- Member States are encouraged to reg- mentation of the Charter of Fundamental prehensive impact assessments, and ularly exchange information and experi- Rights of the European Union in the EU legal scrutiny with the involvement of ence on the
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