Slide 1/117 © copyright Standard training programme in judicial cooperation in criminal matters...

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Standard training programme in judicial cooperation in

criminal matters within the European Union

Version: 3.0Last updated: 31.10.2012

The European JudicialTraining Network

With the support of the European Union

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logo of the training organiser

Training organised by(name of training organiser)

on (date) at (place)

Title (of the training)

Version: 3.0Last updated: 31.10. 2012

The European JudicialTraining Network

With the support of the European Union

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Module 4 Key actors

in judicial cooperation in criminal matters

1. Eurojust2. The European Judicial Network (EJN)3. The EJN tools4. Joint investigation teams

Version: 3.0 Last updated: 31.10.2012

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EUROJUST

> Key actors in cooperation in criminal matters

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Contents

1.1. Introduction 1.2. Objective1.3. Competence 1.4. Referral to Eurojust1.5. Composition1.6. Action by Eurojust and by the national members 1.7. Information processing at Eurojust1.8. Relations with partners 1.9. Perspectives1.10. In practice...

> Module 4: Key actors in judicial cooperation > Eurojust

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1.1. Introduction

Permanent judicial cooperation unit based in The Hague.Not a supranational body, provides support to national

judicial authorities Intervention in bilateral, or rather, multilateral cases

requiring coordination between national authorities Legal framework: Decision of 28 February 2002 establishing

Eurojust, as amended and strengthened by the Decision of 16 December 2008


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1.2. Objectives

1. to stimulate and improve the coordination, between the competent authorities of the Member States, of investigations and prosecutions in the Member States;

2. to improve cooperation between the competent authorities of the Member States, in particular by facilitating the execution of international mutual legal assistance and the implementation of extradition requests;

3. to support otherwise the competent authorities of the Member States in order to render their investigations and prosecutions more effective.


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1.3. Competence ‘Territorial’ competence

Principle: at least two Member States involved In exceptional cases:

1 Member State and the Community (e.g. fraud affecting the financial interests of the Community) 1 Member State and 1 third State

Subject-matter competence (Article 4) Exhaustive list but broad types of crime in line with Europol

+ Any offence committed together with one of the offences referred to in the list+ Any other offence, if a competent authority of aMember State requests it


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1.4. Referral to Eurojust

The principle: No need for preliminary request => Eurojust may act at its

initiative

Exceptions: when only one Member State is involvedwhere assistance is requested for a type of crime that does

not fall within Eurojust’s general competence


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1.5. Composition


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1.5. Composition

1.5.1. The national members Appointment: by each Member State and according to the

organisation and distribution of internal competences Location: in the Eurojust building (The Hague, Netherlands) Status: determined by the Member State of origin Duration: variable (min. 4 years from 2010) Powers: variable, conferred by the Member State of origin.

May include, in particular, the power to order investigative measures (see below)


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1.5. Composition

National situation

Indicate here:

• the name of your State’s national member

• the duties they performed prior to their appointment

• the date of their appointment and term of office

1.5.1. The national members


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1.5. Composition

1.5.2. Deputies and assistants

Mere possibility in the 2002 decision. Designation of 1 assistant and 1 deputy became mandatory with the 2008 decision.

Appointment and status depend on the national system assistant =/= deputy: the deputy must be able to replace the national

member, while this is only a possibility for the assistant Location: usually Eurojust but not mandatory


National situationIndicate here the contact details of the assistant(s)

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1.5. Composition

1.5.3. Eurojust College

Made up of the 27 national members 1 President + 2 Vice Presidents Meets at least once a week Involvement in some specific cases Decisions by QM or 2/3 majority


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1.5. Composition


1.5.4. Staff Consists of European civil servants Approximately 270 people Administrative Director Networks’ Secretariat at Eurojust (joint investigation

teams, genocide)

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1.5. Composition

1.5.5. National correspondents National judicial authorities designated to act as preferential

link with the national member Not an obligatory point of passage between the national

member and national judicial authorities!

National situation

Indicate here the contact details of the correspondents


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1.5. Composition

1.5.6. Eurojust national coordination system (ENCS)

Each Member State was to establish an ENCS by 4 June 2011 (2008 Decision)

Objective: to cement Eurojust’s national base and coordinate the activities of various key national players in EU judicial cooperation


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1.5. Composition

1.5.6. Eurojust national coordination system (ENCS)Composition:

- Correspondents (including terrorism correspondent)- EJN correspondent + max 3 EJN contact points- National members of EU networks on:

- Joint investigation teams- War crimes and crimes against humanity- Asset recovery offices- Combating corruption

At least 8 people, for whom tasks related to the ENCS are in addition their national duties. No grouping in a separate body.


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1.5. Composition


The members of the ENCS have access to the Eurojust CMS (see below)

ENCS called upon to play a coordinating role at national level, beyond relations with Eurojust


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1.5. Composition



National situation

List here the names and contact details of ENCS members and indicate how the ENCS operates at national level (e.g. periodic meetings)

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1.6. Eurojust’s action


1.6.1. Who acts on behalf of Eurojust?

1.6.2. Action by national members as national authorities

1.6.3. Eurojust’s means of action in concrete cases

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1.6.1. Who acts for Eurojust? Principle: priority intervention by the national members Intervention of the College (Article 5) when:

1. so requested by one or more of the national members concerned by a case dealt with by Eurojust

2. the case involves investigations or prosecutions which have repercussions at Union level or which might affect Member States other than those directly concerned

3. a general question relating to the achievement of its objectives is involved


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The 2002 Decision required that each MS defined the powers granted to its national member

The 2008 reform created a (more or less) common base of powers (Article 9a to 9e of the amended Eurojust Decision) 3 categories of powers + broad possibility of derogation for the final two


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Category 1: ‘ordinary’ powers (Art. 9b), i.e. without specific conditions concerning the processing of requests (transmission, facilitation, supplementary information, follow-up)


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Category 2: delegated powers (Art. 9c): require authorisation on a case-by-case basis from the competent national authority. Issuing and completing cooperation requests Executing a cooperation request Ordering an investigative measure decided upon at a

coordination meeting Authorising and coordinating a controlled delivery


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Category 3: powers in urgent cases (Art. 9c): must be able to be exercised in urgent cases and if the competent authority is not identifiable or contactable: Authorising and coordinating a controlled delivery Executing a judicial cooperation request


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Derogation for categories 2 (delegated powers) and 3 (powers in urgent cases):

A State should not grant such powers if it is contrary to its constitutional rules or certain fundamental aspects of the criminal justice system, but the national member must at least be competent to submit a proposal


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National situation

List here the powers of the national member of your Member State when acting as national authority

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The measures taken by Eurojust are not binding --> but pressure at national level + role of the national members in the national system of origin

Description of the means: 1. Facilitating contacts 2. Organisation of operational meetings3. Sending requests to national authorities 4. Judicial cooperation requests 5. Conflicts of jurisdiction6. European arrest warrants

1.6.3. Eurojust’s means of action


7. The European evidence warrant

8. Joint investigation teams

9. Other

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Practical example (part I)A Dutch prosecutor from Amsterdam is investigating a human trafficking ring.

His investigation reveals links with Germany and Hungary. If the human trafficking case is submitted to Eurojust, the latter will act through the Netherlands, German and Hungarian national members. They will then contact the national authorities concerned on behalf of Eurojust. The other national members do not, in principle, have to be involved unless the case requires intervention by the College (see below).



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1.6.3.1. Facilitating contacts

= Key element of judicial cooperation

Practical example (part I – b)

By approaching his Eurojust national member, the Dutch prosecutor benefits from the direct contact that member makes with the German and Hungarian national members and then from the contact those members make with the national authorities.



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1.6.3.2. Organising operational meetings

--> 3 levels of operational meeting

Level 1 meetings: periodic meetings of the College dealing with cases in

which it has been decided that, given the importance of the case, Eurojust should act as the College.



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Level 2 meetings: internal Eurojust meetings involving the national members

(and their assistants) of the countries concerned by a specific case.

Level 3 meetings:meeting involving the national members of the countries

concerned by a case + judicial and/or police authorities involved in the investigations in question.

Multiple advantages: logistical and financial support of Eurojust



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Practical example (part II – a)

The human trafficking case raises questions of principle concerning conflicts of jurisdiction and the Dutch member wishes to refer it to the College. If the College accepts the request, the case will be closely monitored during the College’s regular meetings. It may also be the focus of level 2 and level 3 meetings.

The national member for the Netherlands, to whom the matter has been referred by the Amsterdam prosecutor, invites the German and Hungarian members to review the case. These Level 2 meetings will be organised on a regular basis.



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Practical example (part II – b)

The human trafficking case grows in scale and practical coordination problems emerge. It seems, in particular, that a number of simultaneous searches should be conducted in the various States. The Dutch, German and Hungarian national members each invite those leading the ongoing investigations (judges and/or police officers) in their State to a Level 3 meeting. This full-day meeting in The Hague benefits from logistics and interpreting provided via Eurojust, as well as assistance with any travel costs. This enables the simultaneous search operation to be initiated.



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1.6.3.3. Sending requests to national authorities Sent by the College or the national member Non-binding but formal requests (not simply contacts)

Eurojust can request (Articles 6 and 7): to undertake an investigation or prosecution of specific acts to accept that one of them may be in a better position to undertake an

investigation or to prosecute specific acts to coordinate between the competent authorities of the Member States

concerned to set up a joint investigation team in keeping with the relevant

cooperation instruments to provide it with any information that is necessary for it to carry out its

tasks to take any other measure justified for the investigation or prosecution



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Practical example (part III)

The investigation into the human trafficking ring reveals that X heads the criminal organisation responsible for the offences. X is arrested in Germany but the victims are mainly located in Amsterdam. The Dutch and German judges are unable to reach agreement on conducting a prosecution. Eurojust, through the College or through the German Eurojust member, sends a formal request to the German judge asking that the proceedings be transferred to the Netherlands on grounds of the victims’ location and the fact that the most serious acts (forced prostitution) took place in the Netherlands.



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1.6.3.4. Judicial cooperation requests


Eurojust Decision of 2002: Eurojust may be used as a channel used to transmit cooperation requests between Member States in certain cases.

2008 Decision strengthening Eurojust: this rule became obsolete as national members received more extensive powers

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a) Transmission of and follow-up to judicial cooperation requests

= ordinary powers (Art. 6b) no derogation or conditions The national member may still act as intermediary,

including for the transmission and receipt of these requests.

Referral to Eurojust in the event of recurring problems (Article 7(3) of the Decision)

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Practical example (part IV – a)

It may prove useful, as mentioned above, to conduct simultaneous searches in different Member States. These searches may take place at the initiative of each national authority concerned, but may also be requested by a single national authority. The Dutch prosecutor may therefore issue formal requests for judicial assistance in order to have simultaneous searches conducted in Germany and Hungary.

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Practical example (part IV – b)

In this instance, and to ensure proper coordination from the stage when the requests are sent and received, the Dutch prosecutor may transmit the assistance requests to his national member, so that they may transmit them to the national authorities concerned, stressing coordinated execution.

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b) Executing and issuing judicial cooperation requests

Articles 9c and 9d:- Issuing a judicial cooperation request: on express

delegation by the competent authority- Executing a judicial cooperation request:

- on express delegation or- in urgent cases if the competent authority cannot be identified

or contacted

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b) Executing and issuing judicial cooperation requests

Double uncertainty: possibility for each Member State:- to go further than the 2008 decision- to make use of the derogation in Article 9e and therefore

not grant such powers

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c) Execution of investigative measures

= to execute a measure in their Member State of origin for the investigation conducted in that State and not to execute a request for judicial cooperation from another Member State

Article 9c double restriction:- An express delegation is required- The investigative measure must have been decided upon

at a Eurojust coordination meeting

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c) Execution of investigative measures

Again, double uncertainty: possibility for each Member State:- to go further than the 2008 decision- to make use of the derogation in Article 9e and therefore

not grant such powers

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1.6.3.5. Conflicts of jurisdiction


2002 decision: Eurojust may ask a national authority to agree that another authority is better placed to conduct the prosecution

Framework Decision of 23 October 2009 on conflicts of jurisdiction: when two authorities are conducting parallel investigations into the same people and the same offences and fail to agree on resolution of the conflict of jurisdiction obligation to refer to Eurojust ‘as necessary’

2008 Decision strengthening Eurojust (Article 7(2)): automatic referral to the College when two national members fail to agree on a conflict of jurisdiction assurance of having an opinion from Eurojust

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1.6.3.6. The European arrest warrant


2002 EAW Framework Decision: Article 16: in the event of multiple EAWs, possibility of seeking

Eurojust’s opinion Article 17: obligation to inform Eurojust when the fixed time

limits for deciding on the execution of the EAW are not met

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1.6.3.7. The European evidence warrant


2008 Framework Decision on the European evidence warrant:

when a national authority is considering making use of the territoriality clause to refuse execution of a warrant, it must consult Eurojust before taking the decision. If Eurojust's opinion is not followed, the Member State concerned shall inform the Council.

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1.6.3.8. Support for and participation in joint investigation teams


Eurojust and the national members have a natural connection with the joint investigation teams, since they were set up for the same types of case (serious, complex, transnational cases)

See below

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1.6.3.9. Other forms of support


No exhaustive list Eurojust may assist national authorities by any appropriate means, provided this is not contrary to the Eurojust Decision

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1.7. Data processing


Data processing takes on a new dimension with the 2008 Decision strengthening Eurojust.

1. The Case Management System tool2. Transmission of information to Eurojust and vice versa3. Who transmits the information?4. Purpose of data processing5. Protection and confidentiality of data

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The Case Management System (CMS) = Eurojust's information system = two tools:

- the index- temporary work files

1.7.1. The Case Management System tool

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a) The index: Gateway to the temporary work files Each national member determines what data from the

temporary work file will be visible in the index


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b) Temporary work files

Temporary work files are created by the national member concerned for each concrete case dealt with by Eurojust and for which information is transmitted to them

- Cases in which Eurojust’s intervention has been requested- Cases for which information has been transmitted to Eurojust

without requesting its assistance (see below)


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b) Temporary work files

The work file contains data on the facts (perpetrator, victims, type of offence etc.) and the proceedings (relevant authorities, judicial cooperation requests)

Who has access to the files? Who updates the files? Links between the files


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The national authorities send Eurojust the necessary information to enable Eurojust to provide its support.

2005 Terrorism Decision: provides for obligations regarding systematic transmission of information to Eurojust

2008 Decision Strengthening Eurojust (Article 13a): systematic transmission beyond the area of terrorism

Setting up of joint investigation teams and results of their work Records relating to at least three MS and for which cooperation requests were sent to at

least two MS Feedback by Eurojust

1.7.1.2. Transmission of information to Eurojust and vice versa

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The national authority contacting its national member to request that member’s assistance transmits the information directly to them

Systematic transmission of information to Eurojust: the ENCS must ensure this (but not necessarily do so itself) and the information must be transmitted in a structured way.

Initially, the information is transmitted on the basis of standard forms produced by Eurojust.

ENCS members will in future be able to encode the information directly in the CMS.

1.7.1.3. Who transmits information to Eurojust?

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No clearly stated objective in the Decision. Examples include:

facilitating management of files for which Eurojust’s assistance is requested

uncovering links between different criminal cases and thus promoting cooperation and coordination of investigations and prosecutions

gaining an overview of judicial cooperation in criminal matters and its challenges.

1.7.1.4. Purpose of data processing

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Strict personal data protection framework ‘Need to know’ principle Classified information

1.7.1.4. Data protection and confidentiality

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1.8. Relations with authorities other than the national authorities


Eurojust and Europol are natural partners Cooperation agreement signed in 2004 and strengthened in

2009 Operational level:

Analysis work files Europol’s participation in a Eurojust operational coordination

meeting Reciprocal information when the information provided by one leads

to a cross-reference with information contained in a database of the other

1.8.1. Relations with Europol

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Example (extract from 2011 annual report)

In 2009, information suggested that a criminal group had rigged the result of 170 football matches by bribing football players, referees and others in Germany, Hungary, and other European countries. The German and Hungarian authorities opened an investigation in November and December 2009. Police forces in the 2 MS cooperated intensely to gather evidence. Hungary sent a MLA request to Germany to obtain evidence gathered in the German investigation.

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Example (continued)

[ex_mod4_euj_2]

As the Hungarian case developed, links to Croatia and Slovenia were detected. Eurojust held a coordination meeting where judicial and law enforcement authorities from the affected MS exchanged information. Eurojust also assisted with the drafting of judicial cooperation requests to ensure that matters could be progressed efficiently. Eurojust worked closely with Europol, which provided operational and analytical support.

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1.8.2. Contacts with third countries and international organisations Memorandum of Understanding Individual cases: Eurojust may, in limited cases, receive and

transmit mutual assistance requests issued from or transmitted to a third country (Article 27b)

Designation of ‘Eurojust’ contact points in certain third countries Liaison magistrate seconded to Eurojust Formal cooperation agreement with some States 2008 Decision strengthening Eurojust: possibility of seconding a

Eurojust liaison magistrate in a third country

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1.8.3. Cooperation with OLAF

(OLAF) = anti-fraud office = independent body integrated within the European Commission, responsible for detecting and investigating ‘Community fraud’ cases.

OLAF is an administrative body with investigative powers within this framework but has no powers of criminal investigation.

OLAF nevertheless has a team of judicial officers to facilitate links with the national judicial authorities for the judicial review of offences detected by OLAF.

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1.8.3. Cooperation with OLAF

Eurojust and OLAF have competence in Community fraud clear interaction

E.g. administrative investigation conducted by OLAF highlights large-scale fraud (such as VAT ‘carousel’ fraud) affecting several Member States, allegations of corruption against members of the EP.

practical agreement signed on 24 September 2008

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1.9 Future perspectives

Article 85 TFEU Regulations on the structure, operation, field and

tasks of Eurojust Ordinary legislative procedure

Article 86 TFEU European Public Prosecutor’s Office From Eurojust Against the financial interests of the EU Probably enhanced cooperation (at least 9 EM)

Future Commission proposals (2013)

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1.10. In practice... Contacting Eurojust

How? Contacting the national member Contact method: unimportant (phone, e-mail, letter, fax)In principle, no intermediary requiredNo direct contact in principle with a member national of another Member State

In urgent cases: Eurojust on-call coordination (OCC)Result of the 2008 DecisionFreephone number= contact point reachable 24/7Possibility of sending the request to the OCC, which will contact the national member of origin and the national members of the other States concerned to put them in immediate contact


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1.9. In practice... Contacting Eurojust

In what circumstances? Bilateral cases: usually referred to the EJN contact points rather than to Eurojust, but possibility of referral to Eurojust (e.g. Eurojust’s intervention in conflicts of jurisdiction)Multilateral cases: referred to Eurojust, particularly if coordination is needed and it is a serious and complex case


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1.9. In practice...

Being contacted by Eurojust How?

The national member may contact the national authorities directlyNo specific format (phone, fax, e-mail, letter) unless it is a formal request (Article 6 and 7)

In what circumstances? Formal requestInformal request


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1.9. In practice...


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2. The European Judicial Network

> Module 4: Key actors in judicial cooperation > EJN

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Contents

2.1. Legal framework2.2. Introduction 2.3. Illustration 2.4. Composition2.5. Operation 2.6. Eurojust-EJN relations2.7. In practice


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2.1. Legal framework

Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (and repealing the Joint Action of 29 June 1998)

Article 25a of the Decision of 28 February 2002 setting up Eurojust, as amended by Decision 2009/426/JHA of 16 December 2008.


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2.2. Introduction

Concept: Established in 1998: first major practical initiative for EU judicial

cooperation Made up of ‘contact points’ who may be contacted by any judicial

officer of an EU Member State encountering a practical difficulty in connection with judicial cooperation

Development of several software tools designed for judicial officers Establishment:

Joint Action of 29 June 2008 (repealed by the 2008 Decision on the EJN)

Secretariat is part of Eurojust


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2.3. Illustration

Practical example

A Polish prosecutor in Warsaw wishes to have a search executed at a recently purchased residence of a Polish national in the coastal area of Tavira in Portugal. After consulting the judicial Atlas available on the EJN website (see below), the Polish prosecutor sends his request to the Tavira ‘Tribunal da Comarca’ on 10 May 2005.

Having received no reply after two months and after trying in vain to make direct contact with the relevant Portuguese court, the Polish prosecutor contacts one of the Polish contact points (a prosecutor in the national prosecution office) to explain the situation and ask him to intervene.

[ex_mod4_ejn_1]


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2.3. Illustration

Practical example

The Polish contact point telephones the Portuguese contact point, whom he met recently at an EJN meeting. After learning of the situation, the Portuguese contact point asks his colleague to fax him a copy of the mutual assistance request. The Portuguese contact point then gets in touch with one of his colleagues at the ‘Tribunal da Comarca’ to trace the mutual assistance request.

[ex_mod4_ejn_1]


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2.3. Illustration

Practical example

During this exchange, the Tavira judicial officer in charge of the case informs the Portuguese contact point that he has not taken action on the request because it contains very little information concerning the description of the acts justifying the search.

Through the intermediary of the two Portuguese and Polish contact points, the judicial officers in charge of the case in each of the two Member States are able to re-establish contact and understand each other. The mutual assistance request is completed by the Warsaw prosecutor, and then executed without difficulty by the Tavira judicial officer.

[ex_mod4_ejn_1]


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2.4. Composition of the EJN

2.4.1. The contact points Choice

Designated by each State: judicial officers and/or representatives of the central authority for mutual legal assistance in criminal matters

Experience of international judicial cooperation (in principle) language skills Sometimes ‘local’ authorities', sometimes 'national'

authorities Currently (October 2009): almost 400 contact points


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2.4.1. The contact points


Austria 6 France 51 Norway 7

Belgium 8 Greece 7 Poland 15

Bulgaria 2 Croatia 6 Portugal 7

Switzerland 2 Hungary 2 Romania 6

Cyprus 3 Ireland 4 Sweden 8

Czech Republic 11.

Iceland 4 Slovenia 8

Germany 18 Italy 44 Slovakia 4

Denmark 5. Luxembourg 2 Turkey 5

Estonia 3 Latvia 3 United Kingdom 23

European Commission

4 Malta 2

Finland 13 Netherlands 12

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2.4.1. The contact points

Enter the contact details of the contact points for your State (full name, job title, postal address, e-mail, telephone + territorial competence if applicable)

[nat_mod4_ejn_1]


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2.4. Composition of the EJN2.4.1. The contact points ‘Active intermediary’ Facilitate cooperation by placing in contact

- with a judicial authority of the same State - or with one of its counterparts in another Member State

The contact points are therefore ‘at the service’ of the national judicial authorities.

2.4.2. Presidency Trio Presidency


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2.4.3.The Secretariat Currently consists of 5 people. Does not intervene in specific cases. Tasks: internal management of the network and development of IT

tools Keeping a record of decisions and projects Information sharing

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2.4. Composition of the EJN2.4.4. Other components national correspondents (one for each Member State) = EJN contact

points but who, in addition to their contact point duties, are also called on to meet and discuss matters concerning the EJN’s internal functioning.

Correspondents responsible for technical aspects: these may be, but are not necessarily, contact points. They ensure that information relating to their Member State is properly included and updated in the EJN’s IT tools.


Enter the contact details of the EJN correspondent (full name, job title, postal address, e-mail, telephone)

[nat_mod4_ejn_1a]

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2.5. Operation of the EJN

4 modes of operation:1. Action by the contact points in specific cases2. Meetings

a) Plenary sessionsb) National correspondentsc) Correspondents responsible for technical aspects

3. Availability of practical information from the EJN4. Secure network


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2.6. Relationship between Eurojust and the EJN

Eurojust and the EJN are complementary structural inks: the EJN Secretariat is part of the Eurojust administration the Eurojust national coordination system includes at least one, and

up to three, EJN contact points; one of the tasks of the ENCS is to help determine whether a case

needs to be handled with the assistance of Eurojust or of the European Judicial Network

No pre-established dividing line between cases that should be referred to Eurojust and those where assistance should instead be requested from an EJN contact point. The main question is whether there is a need for ‘coordination’, in which case referral to Eurojust is preferable. > Module 4: Key actors in judicial cooperation > EJN

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2.7. When and how should the EJN be used?

Via the contact points or by using the web site --> Contact a contact point

To overcome various problems:to draft a mutual assistance request correctlyto re-establish contactto understand the legislation of another State

Contacting a contact point of own Member State is recommended

Where: database on the EJN websitepassword


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Via the contact points or by using the website -->

Use the EJN toolsAtlasContact points databaseFiches BelgesCompendiumon the website: http://www.ejn-crimjust.europa.eu


2.7. When and how should the EJN be used?

http://www.ejn-crimjust.europa.eu/

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3.1. Atlas

=> Identifies the competent authority in the requested State to receive a mutual legal assistance

request: promoting direct contact between locally competent judicial authorities

to receive a European arrest warrant in the State of execution (+ limitation periods and linguistic procedure)

+ to receive another decision to execute on the basis of the mutual recognition principle (in development)


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3.2. Contact points database

provides detailed information (name, telephone number, address, languages spoken, etc.) about each of the contact points.

the contact points only section that is password-protected:

Login: ****Password: ****


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3.3. The Fiches Belges

standardised practical information on the execution of different investigative measures in each of the Member States

why use it? how to use it?

Information depends on the State of executionMore than 40 measures divided into 8 categories


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3.4. Compendium

this tool helps the user to draft a judicial cooperation request (including a European arrest warrant or soon a decision for execution under the mutual recognition principle)


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Contents

4.1. General information4.2. Introduction 4.3. Setting up a joint investigation team4.4. How a joint investigation team operates 4.5. Follow-up to a joint investigation team4.6. Further information


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4.1. General information

Convention on mutual assistance in criminal matters between the Member States of the EU of 29 May 2000

Council Framework Decision of 13 June 2002 on joint investigation teams

For application with non-EU countries: Article 20 of the 2nd additional protocol to the 1959 Convention

National situation

List here references from the relevant national legislation


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4.2. Introduction

Concept: bringing together investigators from several Member States to facilitate mutual legal assistance and improve investigative efficiency Context of transnational investigations For a defined purpose and for a limited time

Model Agreement adopted by the Council Europol and Eurojust have published:

a manual on joint investigation teams: at the time of this module’s completion, the manual was being revised and was not available in electronic format. It should soon be available on the websites of Eurojust and Europol.

a guide to national laws concerning joint investigation teams.


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4.3. Setting up the team4.3.1. In what circumstances? Never mandatory Used for particularly serious and complex cases in the context of

transnational investigations where coordinated and concerted action by the States concerned is necessary

Two areas are illustrative examples (see the manual on joint investigation teams):

- investigation into drug trafficking where it is immediately clear that the trafficker’s residence differs from the destination of the drugs

- terrorism case in which the place of an attack being prepared differs from the place where the evidence is gathered.


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4.3. Setting up the team4.3.2. Scope: Material: specific, defined purpose Temporal: time-limited Territorial: between EU Member States, however

Possible with other States of the Council of Europe: if ratification of the 2nd Additional Protocol to the Convention on Mutual Assistance of 1959

Nothing to prevent the involvement of a third State in the team, but the representatives of this State will have limited powers.


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4.3. Setting up the team

4.3.3. Request to set up a joint investigation team = start of the procedure to set up the team. However:

important that the authorities concerned (+ probably Europol and Eurojust) meet before the formal request is sent, so that they can best adapt the request to national specificities.

Origin of the request: one of the States involved, Europol or Eurojust

Request sent direct to the competent authorities of the States involved

Importance (but no obligation) of involving Europol and Eurojust (and sometimes OLAF)


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Practical exampleIn August 2010, French police stopped a lorry containing over 2,000 kg of cannabis. Links with Belgium, the Netherlands, Lithuania and Estonia were established and Eurojust was asked to assist. Three coordination meetings were held at Eurojust, with the participation of Europol, to promote the exchange of information to target the entire criminal network. The exchange of information revealed that a Dutch organised crime group was involved and that a JIT should be established. This was done in February 2011, and the JIT received Eurojust funding to support its operational activities. In May 2011, several arrests were carried out in Belgium and France and search warrants executed in the Netherlands, successfully disrupting the criminal group.


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4.3.4. Agreement for setting up a team Crucial and complex step Possible support (expertise and logistics) from Europol

and/or Eurojust4.3.5. Who concludes the agreement? Depends on the national law4.3.6. What must the agreement contain? Model agreement for setting up a joint investigation team


Indicate the type of authority authorised in your country to conclude such an agreement

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Example

Several meetings are organised with Europol and Eurojust’s logistical support to draft agreements and prepare the proper functioning of the team. In the United Kingdom the team leader is… and the members are investigators from…In France the team leader is the Public Prosecutor of Nantes and the members are investigators from the national police.In Italy the team leader is….


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4.4. Operation

4.4.1. Composition of the team Different ‘profiles’

Leader (always national authority of the Member State of operation) The national members of the Member State of operation Seconded members The members of Europol, Eurojust or OLAF Any representatives of other bodies or third countries

4.4.2. Powers within the team Rule of thumb: action under the direction of the leader of the team, and

compliance with the law of the Member State of operation. Powers of the national members: in accordance with the law of the

Member State of operation (normal duties)


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4.4. Operation

4.4.2. Powers within the team Powers of the seconded members:

must be described in the agreement may be present during the investigative measures, except

where otherwise decidedpossibility of performing investigative measures if the

Member State of secondment and the Member State of operation agree

Indicate the powers entrusted to seconded members by national legislation when your State is the Member State of operation


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4.4. Operation

4.4.2. Powers within the team Powers of members of the EU actors

EuropolParticipation expressly provided forPassive presence during investigative measures

OLAFUncertain powers


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4.4. Operation


Eurojust national members have the right, in principle, to participate in joint investigation teams in which their Member State of origin is a partner (Article 9f of the Eurojust Decision) but Member States may make this participation subject to the agreement of the competent authority. Even if such agreement is necessary, participation is automatic when the joint investigation team in question receives EU funding.national members may participate in the team either as Eurojust representative or as national authority. It is for each Member State to make this choice (Article 9f of the Eurojust Decision). Impact in terms of powers.


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4.4. Operation


Eurojust Eurojust’s participation may be useful from a logistics perspective, due to experience of joint investigation teams’ operations or links with other cases.the setting up of a joint investigation team and the results of its work must always be notified to Eurojust (Article 13(5) of the Eurojust Decision).


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4.4. Operation

Practical example

While the joint investigation team is operating in Italy, a major search in an illicit laboratory is scheduled.

This search is conducted according to Italian law and under the direction of the Italian team leader. In line with what was set out in the agreement, it is understood that the seconded French and British members will take an active part in the search but not in any use of force that may be required.


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4.4. Operation

Practical example (continued)

A Europol official specialising in combating drugs will be present but will remain passive during the operation. The Italian Eurojust national member will be present as the Italian authority. The French and British Eurojust members will also be present as national authorities. The Dutch Eurojust member, responsible within Eurojust for joint investigation teams in general, will, like the Europol member, be present but remain passive during the search.

]


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4.4. Operation

4.4.3. Exchange of information (Article 1.9) Principle: free exchange of information to which the team

members have access in their Member States of origin --> considerable advantage as it overcomes legal obstacles to the exchange of information, BUT does not prejudge conditions of admissibility of evidence.


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4.4. Operation

Example (continued)

During the search in Italy a vehicle registered in the United Kingdom is seized. The British members of the team immediately contact their colleagues in London by telephone and receive the vehicle’s registration details direct, and therefore the name of the owner. They also ask whether the national police records already contain information about the individual in question. The various items of information communicated are added to the file held by the joint investigation team.


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4.4. Operation

4.4.4. Execution of investigative measures Principle: the law governing execution of an investigative

measure is the law of the State in which it must be executed (locus regit actum)

New: seconded members of a team may ask their own competent authorities to take investigative measures without using the channel of conventional mutual legal assistance


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4.4. Operation

Practical example (continued from slide 110)

A mobile telephone is seized during the search in Italy. By order of the Italian judicial officer, issued as in a national case, an analysis of recent communications is requested from the Italian telecommunications operator concerned. This analysis reveals recurrent communications with a French mobile telephone number. The French investigators contact the French judicial officer who is a member of the team and located in France at that time. In France, that judicial officer orders that the number in question be placed under surveillance. The results of that surveillance are added to the file put together by the joint investigation team.

[ex_mod4_jit_1.5]


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4.5. Follow-ups

4.5.1. Risks of conflict of jurisdiction.No binding rule on this, but possibility of addressing this issue in the agreement establishing the team and/or involving Eurojust

4.5.2. Subsequent use of the information obtained for the purposes for which the team has been set up subject to the prior consent of the Member State where the information

became available, for detecting, investigating and prosecuting other criminal offences.

for preventing an immediate and serious threat to public security, and without prejudice to subparagraph (b) if a criminal investigation is subsequently opened

for other purposes to the extent that this is agreed between Member States setting up the team.


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4.6. Further information...

Network of contact points for joint investigation teams Set up in 2005 Secretariat is part of Eurojust Meets regularly to discuss best practice for setting up joint

investigation teams.


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